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'" '!! II 1M ll ll II , 8~ HOULIHAN VALUATION ADVISORS Salt Lake City. Las Vegas. Orange County. Los Angeles. San Francisco. San Carlos

Specialists in providing valuation opinions . . .

BONNEVILLE THE BONNEVILLE THE QUESTAR ALTA GOLD PACIFIC CORPORATION PACIFIC CORPORATION CORPORATION CORPORATION ¡ ¡ Employee Stock Ownership Plan Employee Stock Pnrchase Plan (previously Silver King Mines, Inc.) ti has acquired 80% (An Employee Stock Ownership Plan) f; of the commoii stock of purcha.\'ed comiiuJ/ shares of has mel;lled with i has IJ/rchased comm011 shares of RECOMP, INC. BONNEVILLE PACIFIC PACIFIC SILVER CORPORATION QUESTAR CORPORATION A CORPORATION iii a lei1eraged ESOP Irallacfioli ! We rendered a fnimess opinion to the Bo¡ird of in a leveraged ESOP traiisaciioii Djrlxio~ of Bonneville Pacifc Corporation as t, 10 the value of the ui:auircd common stock of We renderedii fairnessopinion 10 ihe Board of We rendered 11 Fairness opinion as to Ihe Rcconip, Inc. Direclors ofBonneville Pacific Corporation common ~tock exchange r¡iiio u~ed 10 merge ¡ We served us independent finllndal advisors 10 iheabovecompaoies. ~ as 10 Ihe vHlue of common shures purchHsed First SecurilY Bank of Utah a.~ 10 the v¡ilue of by The Boiinevile Pacific Corporation Em- common shares piircha~ed by The QlIeslar ployee SIock Ownership Plan. Employee SIoek Purcha-~e Plan (an Employee Siock Ownership Plan). €§. €§. €§. 110011,IIMN Iloill.llll\N IIOIII.tIIAN €§. \",\I.ll,lION VAI.tl,\TION \',\l.II,\"I'ION 110011.il1AN AIWlSOIIS ,\)\'ISOtlS \',\I.ll,\'I'ION ,\)\SOllS t\L\lS0ILS

BRIAN HEAD NRS ASSOCIATES and ENTERPRISES, INC. HENDSUB DOD, INC. SMG INCORPORATED TL ENTERPRISES, INC. ihe owner aiid operalor of a has acquired through a merger the general parmers iii sei'eral Southern Vlah ski resort, has A newly formed corporatiolJ limited partiierships (,OIlfailiilig received coiifirmation of its orgaiiized hy franchised I'eslauraiil operalioJls iiicluding: Henderson Iii'estmeiil Compaiiy GCI INDUSTRIES, INC. Sizzler-II Reslauraiiis REORGANIZATION aiid memhers of managemeiii Toiiy Roma's-2 Re.~/aliralils 1Ia,\' acquired ihe husiiiess of aiid its wholly-owned suhsidiary Viva La Pa.~/a-1 Restaurant PLAN have completed aiid has heen dismissedfroii its DOD ELECTRONICS GOLF CARD INTERNATIONAL CORP. PARTNERSHIP CHAPTER 11 VALUATIONS BANKRUPTCY CASE We rendered a fa.mess opinion 10 the Board of We rendered an opinioLlofsolveney in DireetorsoFGCllndustries,lnc.asioihevulue We rendered 11 valuaiion opinion 10 Ronald J. supporl oFihi~ transaction. of Ihe common stock oFGCllndustrìcs, Inc Ockey, Aiiorney at Law wilh ihe nnii of Jones. We rendered a valuation opinion 10 the Waldo, Holbruo-.&.MuDonoligh, counsel io TrusleeoFBrianHead Enierprises, Inc. as NRS Associales and SMG lncurporuted, as 10 to the value ofihe ~ki resort as~el~. ihecumiilalivcfairmarkel value ofihe above listedeniities. €§. €§. ~oo €§. ItOlILlllAN 11001l.III,\N 11001i.11,\N ilOlII.tllAN \',\.IIA"tI)N \',\I.lWttON \',\I,(IXI'IDN \',\I.I,\TION AI)\"SOIIS AD\1S0iiS ,\I)11S0Iis ,\I)\SOIIS

TERRA TEK, INC. The Shareholders/Managers of THE MONROC, INC. ALLIED CLINICAL Employee Stock Ownership Plan HILLSIDE VILLA HEALTH Employee Stock Ownership Plan LABORATORIES, INC. ("ESOP") CARE CENTER ("ESOP")

issued has compleied a valuaiioii of their has completed iis COl'eiiaJl 1I0t to Cómpete iii coiiiiection "as completed iis wiil/al ESOP i'aliiaiion of with the acquisitioii of the center aniiual ESOP l'olliarioli of INCENTIVE STOCK OPTIONS (IS OS) hy TERRA TEK, INC. MONROC, INC. MISSION HEALTH SERVICES to cerlaiii key employees.

We rcndcrcdaiiindcpendcnlopinionas IOlhcflllr Wercndcrcdaiiintlepcntlenlopinion:isloihe Wcrendercdan iiidcpcndcniopinion as 10ihc rair markclvallicoflhcTcrraTck,lnc.coiinionsiock We rcndercdan independeiilopinioiias 10 fairmarkelvalue of MonroeInc.coiinnm slUck. miikel vlllue or Ihe opiioned common slOck oj ihc valueofihe Covenantnol loCompclc Allied Clinical Laboraiories, Inc. on a minorily inlercsibasis ۤ. ۤ. ۤ. 1I0011.1tIAN IlOlII,lltAN 110011.rII,\N ۤ. tioili.iltAN \'AUixlION \'AI,tl.\TlON \',\I'iIATION "M.ll'\I'lI)N .\tl\'SOIl.~ '\)\s()it~ A1l'ISOllS 111)\"IS01IS

Contact: FredJones or Dave Dorton. (801) 322-3300 SALT LAE CITY OFFICE: 136 East South Temple. Suite,lÆ" ()~" 84111 ,. z.; " , ""t~ ,'". "',' - 'fliL--" ."UTAH,BARJOURNAL ,~¡ ~ , ~~, ~ VoL. 4, NO.9 November 1991

Editorial Note ...... 4

President's Message By James Z. Davis...... 5

Chapter 11 of the Bankruptcy Code: The Reorganization Process By Ronald W. Goss ...... 6

Judicial Profiles Judge David K. Winder ...... 13 Judge David E. Roth ...... 14

State Bar News ...... ;...... 15

Views From the Bench "Causation and the Judicial Equation" By Honorable Bruce S. Jenkins ...... 24

The Barrister ...... 3 i

Utah Bar Foundation ...... 33

CLE Calendar ...... 34

Classified Ads ...... 36

1991-92 Bar Directory Update ...... 37

COVER: Autumn Tamarisk, Capital Reef National Park, by Chris Wangsgard, Shareholder in Parsons Behle & Latimer.

Members of the Utah Bar who arc interested in having their photographs on the cover of the Utah Bar Joiirnal should contact Randall L. Romrell. Associate General Counsel, Huntsman Chemical Corporation. 2000 Eagle Gate Tower, Salt Lake City, UT 841 i 1,532-5200. Send both the transparency and a print of each photograph you want to be considered. Artists who are interested in doing illustrations are also invited to make themselves known.

The Utah Bar Joiirnal is published monthly, except July and August, by the Utah State BaL One copy of each issue is furnished to members as part of their State Bar dues. Subscription price to others, $25; single copies, $2.50; second-class postage paid at Salt Lake City, Utah. For information on advertising rates and space reservation, call or write Utah State Bar offices.

Statements or opinions expressed by contributors are not necessarily those of the Utah State Bar, and publication of advertisements is not to be considered an endorsement of the product or service advertised.

Copyright a: 199 I by the Utah State BaL All rights reserved.

Nm'emher 1991 3 q

o,¡ EDITORIAL NOTE

I'

Very littleentitled information "Judicial Profiles,"is available spotlighting in print on judges Utah judges.in Utah Instate this and issue federal of the courts. Utah The Bar articles Journal, wil we recognize begin a seriesthe contributions of articles, judges have made to the legal community, and apprise lawyers of the background, interests, views, and procedural preferences of each judge. These articles, when collected by firms and individual practitioners, should be a valuable reference source for attorneys preparing to practice before a judge for the first time, as well as for experienced lawyers who can gain new insights about familar judges. Elizabeth Dolan Winter and Terry E. Welch will write the articles.

Elizabeth Dolan Winter re- Terry Welch graduated from ceived her bachelor's degree the University of Utah with a from the University of Utah Col-, B.A. in Business Finance in lege of Nursing in 1986. Winter 1987. Welch graduated Order of practiced as a registered nurse at the Coif from the University of Holy Cross Hospital from 1986 Utah College of Law in 1990. until 1989. She attended the Uni- He served as a member of the versity of Utah College of Law, Utah Law Review from 1988 to where she was a staff member 1990. From August, 1990 to Au- and Note Editor of the Utah Law gust, 1991, Welch clerked on the Review. After graduating Order Utah Supreme Court for Justice of the Coif from the University Michael D. Zimmerman. Welch of Utah, Winter completed a one- is currently associated with Kim- year judicial clerkship with the ball, Parr, Waddoups., Brown & honorable Christine M. Durham on the Utah Supreme Court. Win- Gee in Salt Lake City. Previous publications include the follow- ter is an associate with the law firm of VanCott, Bagley, Cornwall ing: Handicapped Children Education: Is Legislature Above & McCarthy, and serves on the board of directors of the Univer- Law?, The Neo-Analyst, Jan.-Feb. 1991; Comment, Of Bank- sity of Utah College of Nursing Alumni Association. Publications ruptcy Judges and Jury Trials: The Past, The Present. . . and The include: Development, Terminating Parental Rights Based on Future?, 1990 Utah L. Rev. 347; Development, Appearance of a Abandonment: No State Duty to Notif or Assist Parent, 1989 Child Adoptee at Adoption Proceedings, 1989 Utah L. Rev. 295. Utah L. Rev. 270; State Board of Nursing's Proposed Revisions to Nurse Practice Act, voL. 8 Nursing Excellence (Fall 1991).

American WILL yw. DEFEIJD lYE? C- Arbitration w\\Ar ARE WJ cHAR&ED Association / WlíH ~ Dispute Resolution :c Services 00 Since 1926, the American Arbitration Association has been the leader in the development and administration of =: impartial dispute resolution services. - Arbitration - Mediation - Mini-trial - Factfinding ~ - Retired and Senior Judges - Membership Services - Training - Publications - Elections Q Come to the Leader. (!ÐliI American Arbitration Association . ~:;Øf~ ~ Utah Law and Justice Center 645 South 200 East - Suite 203 Salt Lake City, OT 84111-3834 . ~ (801) 531-9748, FAX (801) 531-0660 ~ Offices in 35 cities nationwide.

4 Vol. 4 NO.9 By James Z. Davis

each and everyone of you carefully going The Supreme Court Task Forèe has As manyleadership of you and are staff, aware, with the Barable over the material and sharing with either identified what it has characterized as a assistance of other Bar members, began John Baldwin, Arnold Birrell or myself "communication problem" between mem- studying such things as the financial and your responses to the following questions bers of the Bar and the Bar, a'nd suggested computer needs of the Bar well prior to or any other comments: that the problem goes both ways. Histori- the involvement and assistance of Grant cally, member input has been scant, at Thornton. IIWas the format understandable? best. It is with great satisfaction that I am It is the intention of the Bar to publish able to report to you that, by the time you IIWere the graphics helpful? financial and other information at least an- read this, many if not all of the recom- nually. The purpose of publishing that in- mendations of Grant Thornton, together IIWere the narrative comments helpful? formation is to communicate with Bar with recommendations of Deloitte & Tou- members so that they can assist the Bar in che, the Bar's auditors, have been or are in IIWould you like to see more detail? making informed decisions. If the infor- the process of full implementation. mation is not achieving that purpose for The Deloitte & Touche audit of the IIwould you like to see less detail? some reason, it is essential that the Bar Bar for FY 1990-91 was completed on or have your input. about August 16, 1991, and approved by IIWould you prefer more explanation? Please keep those cards and letters the Commission at its meeting in Provo on coming. September 26, 1991. Any of you who IIWould you prefer less explanation? Vtali~ might be interested in obtaining a copy of the audit may do so from the Bar Office. Over the past several years, it has be- Elsewhere in this issue, the Bar is pub- come apparent to me that lawyers and ac- lishing a summary of the results of the countants frequently think they are speak- 1991 audit, comparison figures for 1990, ing the same language, while not commu- and a summary of the 1992 budget. In or- nicating at alL. In addition, certain kinds of der to assist you in understanding the accounting information may appear on one numbers, a graphic and explanation sheet document, such as a balance sheet, while are included. To my knowledge, this is the different kinds of information may appear Bar's first effort to provide its members on another document, such as a statement and others this sort of information in this of revenues and expenses. format. As a result, I would appreciate

Non'iiha /99/ 5 -

CHAPTER 11 OF THE BANKRUPTCY CODE: An Overview for the General Practitioner

PART II: THE REORGANIZATION PROCESS

By Ronald W. Goss

i. Operations in Chapter 11 The importance of notice in Chapter A Chapter 11 debtor, though left in 11 proceedings cannot be overemphasized, possession of its business, is not allowed for notice is the due process component to operate as it did before filing the bank- that gives all parties in interest an opportu- ruptcy petition. After filing, the debtor is nity to be heard. In most instances, pro- known as a debtor in possession and has posed actions involving the use of prop- many of the powers and duties of a trust- erty outside of the ordinary course of busi- ee.' Its board of directors and executive ness may be taken without an actual hear- officers are responsible for carrying out ing and an order of the court, if proper these duties and must act as a fiduciary for notice is given and no creditor objects." the creditors, as would a trustee.' The Actions not in the ordinary course of busi- debtor in possession will decide what ness that require notice to creditors and a causes of action to pursue or settle, what hearing if objections are raised include ob- claims to contest or not to contest, what taining secured credit or incurring secured assets to utilize and what assets to liqui- debt, abandoning burdensome property, date or abandon, and what contracts to as- assuming or rejecting executory contracts sume or reject. In short, the debtor in pos- or unexpired leases, selling property out- session must conserve, protect and maxi- side of the ordinary course of business, mize the value of its business. and compromising or settling disputed Sèction 1108 of the Bankruptcy Code RONALD W. GOSS received his J.D. in 1982 claims. authorizes the debtor in possession to op- jiom the University of Utah where he was Ar- II. Post-Petition Financing ticles Editor of the Journal of Contemporary erate its business without any order from Law. Since graduation jiom law school, his During the Chapter 11 case most debt- the court. Thus, the bankruptcy court does practice has been exclusively devoted to bank- ors require some form of financing to not supervise the operation of the business ruptcy, creditors' rights and insolvency mat- maintain business operations, make pay- during the reorganization case. Section ters. From 1984-86 he served as a judicial roll, pay rent, utilities, insurance premi- 363( c)(1) authorizes the debtor to use, sell clerk to the Honorable Glen E. Clark, Chief ums and other crucial operating expenses, or lease property, and enter into transac- United States Bankruptcy Judge for the dis- and to otherwise preserve the assets of the tions in the ordinary course of business trict of Utah. Mr. Goss formerly was a share- estate. Often the only cash available to the without notice to creditors and a hearing in holder with Van Cott, Bagley, Cornwall & debtor in possession is cash collateral, the bankruptcy court. The purpose of the McCarthy, P.C., in Salt Lake City. He cur- which may not be used without the con- rently is a member of the law jïrm of Hacker ordinary course of business rule is to allow sent of the secured creditor or authoriza- Matthews. P.S. in Seattle, Washington. a business to continue its daily operations tion from the bankruptcy court.' Cash col- without the burden of obtaining court ap- lateral is defined in the Bankruptcy Code proval or notifying creditors for minor estate, the phrase "ordinary course of busi- as "cash, negotiable instruments, docu- transactions, while at the same time pro- ness" is criticaL. Generally, courts will ments of title, securities, deposit accounts, tecting creditors from dissipation of the consider the debtor's pre-petition practices or other cash equivalents" in which a cred- estate's assets by requiring notice and a and conduct, as well as the general prac- itor holds a security interest. Generally, hearing to approve actions outside the or- tice in the relevant industry: Where the cash collateral wil include rents, accounts dinary course of business.' debtor in possession merely exercises its receivable and proceeds from the sale of In determining whether notice to credi- business judgment with respect to ordinary collateral, to the extent they are subject to tors and a hearing are required before the business matters, its actions are not subject a perfected lien. The debtor in possession debtor can use property of its bankruptcy to creditor scrutiny or judicial control. must segregate and is prohibited from us-

6 Vol. 4 NO.9 ing cash collateral unless the secured cred- cant concessions that affect the interests of make the debtor's rehabilitation more 13 itor consents or the bankuptcy court, after other creditors. likely by relieving it of burdensome obli- notice and a hearing, authorizes its use.9 Section 364 of the Bankruptcy Code gations while it attempts to recover finan- Upon a finding by the bankptcy court encourages lenders to extend post-petition cially and develop a plan to repay credi- that the secured creditor is adequately pro- financing to the debtor in possession tors. tected, cash collateral may be used to pay through an escalating series of induce- The Bankruptcy Code does not define rent, wages and other operating expenses ments.I4 First, under 364(a) creditors who "executory contract", but the term gener- during the case. are wiling to extend unsecured credit in ally is taken to mean any agreement in It is common for the debtor to file an the ordinary course of business are entitled which substantial performance obligations "emergency" motion to use cash collateral to an administrative priority allowable un- remain on each party.IS There must be a simultaneously with its bankuptcy peti- der 503(b). If a creditor is wiling to ex- contract in existence at the time of filing, tion and request a hearing on abbreviated tend unsecured credit outside of the ordi- otherwise there is nothing left to assume notice. The court wil schedule a hearing nary course of business, such credit may or reject. A contract is not executory "in accordance with the needs of the debt- be authorized by the court, after notice and within the meaning of 365 unless it is ex- or," but may treat it as a preliminary hear- a hearing, pursuant td364(b). Under rare ecutory as to both parties. If a material ing and authorize limited use of cash col- circumstances, if a lender has made a post- breach occurred before the bankrptcy, the lateral only "to the extent necessary to petition loan without first obtaining court contract may not be executory and subject avoid immediate and irreparable harm" approval, the bankruptcy court may grant to assumption or rejection because the 19 pending the final hearing. lO retroactive approval of the unauthorized debtor has no further duty to perform.

The court's inquiry regarding the use loan. 15 However, only the most foolhardy The 1984 amendments to the Bank- of cash collateral focuses on whether the lender would take a chance on such ap- ruptcy Code introduced several provisions secured creditor is adequately protected proval being granted. designed to protect lessors of nonresiden- and whether the debtor should be allowed If lenders are unwilling to extend un- tial real property from nonpayment of rent to use the proceeds. Typically, as adequate secured credit to the debtor in possession, during a tenant's bankruptcy. First, under 16 The protection for the use of its cash collateral, other inducements are available. 365(d)(4) the debtor is limited to a 60-day the secured creditor will be granted a re- court may, after notice and a hearing, period, unless extended by the court, placement lien against the debtor's post- grant a "super-priority" over any and all within which to decide whether to assume petition accounts receivable. Although the administrative claims under 364(c)(l).17 or reject the lease. Failure to assume secured creditor's property rights is the To warrant approval of a super-priority fi- within that time results in automatic rejec- primary concern, the interests of all other nancing arrangement, the court must make tion of the lease and an obligation to sur- creditors and the benefit to them from a clear findings that the debtor cannot obtain render the premises to the landlord.20 Sec- successful reorganization also have a bear- unsecured credit, the funds are necessary ond, 365(d)(3) requires debtors to pay rent ing on whether cash collateral should be to preserve the estate, and the arrangement and other charges in accordance with the used.II is in the best interest of the estate. As an terms of the lease pending the decision to i Third, the rent falling A cash collateral order permits the alternative financing arrangement, the assume or rej ect. debtor in possession to use existing pro- court may also grant the post-petition due during the 60-day period is an allow- ceeds, such as accounts receivable, but lender a lien on any unencumbered prop- able administrative expense which may be does not provide for new advances by the erty of the debtor pursuant to 364(c)(2), or paid by the debtor without the necessity of lender. Often a Chapter 11 debtor will a junior lien on encumbered property in notice and a hearing. Finally, 365(d)(3) need additional working capital financing accordance with 364(c)(3). Finally, codifies the obvious point that a termi- during its reorganization. Such post- 364(d) permits the bankptcy court to nated lease cannot be assumed or as- petition financing may come from a pre- grant the post-petition lender a senior, or signed. petition lender. An existing lender may "priming" lien on property already subject Leases of personal property, such as seek to reduce its exposure and improve to an existing lien, provided the debtor is equipment, are not subject to automatic re- its collateral position by providing new fi- otherwise unable to obtain credit and the jection if not assumed within 60 days, nor nancing. The post-petition secured lender holder of the existing lien is adequately is the statutory duty to pay post-petition can insist, as a condition to extending new protected. rent applicable. Moreover, a lessor under credit, that the financing order provide that III. Executory Contracts and Unex- an unexpired lease of personal property its pre-petition liens and security interests pired Leases may not demand adequate protection or are valid, properly perfected and enforce- In most reorganization cases, the seek relief from the automatic stay based able. This wil protect the lender from debtor wil be a party to various executory upon a lack of such protection. In such subsequent challenges to the validity of its contracts, such as an option, purchase circumstances the lessor's exclusive rem- liens. Debtor in possession loans typically agreement, license, right of first refusal, edy is to move the court to compel the are several points above the prime rate and franchise, or settlement agreement, and debtor to assume or reject such a lease are among the most secure available.I2 may also be a pary to unexpired leases, within a specified period of time.22 Some courts have made post-petition fi- such as equipment and vehicle leases or a IV. Trustees and Examiners nancing even more attractive by allowing commercial lease covering its business A debtor is entitled, unless ousted, to the lender to "cross-collateralize", i.e., re- premises. Section 365 of the Bankrptcy remain in possession and operation of its ceive additional, post-petition collateral as Code provides that the debtor in posses- business. There is a presumption in Chap- security for both the new post-petition sion, subject to court approval, may as- ter 11 that the debtor should continue to debt and the existing pre-petition debt. sume or reject any executory contract or control its business without the interven- Such arrangements often are approved unexpired lease. Rejection of an executory tion of a trustee unless a party in interest even though the debtor must make signifi- contract or unexpired lease is designed to

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8 Vol.4No.9 Ii brings to the attention of the court an ab- Courts give considerable deference to for cause.31 Absent extraordinar circum- normality in the administration of the case. actions taken by Chapter 11 trustees. The stances the exclusivity period should not The court's wilingness to allow a standard governing banptcy court re- be extended because it disturbs the bal- debtor's management to remain in posses- view of a trustee's actions is explained in ance of power between the debtor and its sion "is premised upon an assurance that the leading case of In re Curlew Valley creditors. The right to file a creditor's plan the officers and managing employees can Associates, 14 Bank. 506 (Banr. D. Utah after 120 days is an important creditors' be depended upon to cary out the fidu- 1981). Absent fraud or mismanagement on protection provision of the Code and a ciary responsibilities of a trustee. "23 If the the part of the trustee, the court wil not strong showing is usually required before court finds that the debtor's management is attempt to second guess the trustee's busi- this right wil be curtailed. However, in an unable to discharge its fiduciary duty to ness judgment made in good faith, upon a unusually large or complex case the bank- creditors, the court may appoint a trustee reasona1Je basis, and within the scope of ruptcy court often wil extend the exclu- to run the business. the trustee's authority. sivity period.32 The Code also gives the Under l104(a)(l) of the Bankptcy The appointment of a trustee in a' debtor a 180-day exclusivity period for Code, the cour must order the appoint- Chapter 11 case is an extraordinary rem- gaining acceptances of its plan, which also ment of a trustee for "cause" found. The edy and one which seldom leads to the may be extended for cause. An extension term "cause" is defined to include "fraud, successful rehabilitation of the debtor. for gaining acceptances of a plan which dishonesty, incompetence, or gross mis- Trustees, like individual creditors or credi- has already been filed does not have the management of the affairs of the debtor by tors' committees, rarely fie operating same potential for disturbing the creditor's current management, either before or after plans of reorganization. With some nota- bargaining position as an extention of the the commencement of the case." Section ble exceptions, Chapter 11 trustees usually exclusive plan filing period. Therefore, l104(a)(2) embodies an alternative stan- wil not operate a business for long, but courts may apply a less stringent standard dard under which the bankruptcy court wil merely preserve the property, collect in granting an extension.33 must engage in a cost-benefit analysis, and the assets, and liquidate the estate. The plan confirmation process begins order the appointment of a trustee only if A less drastic alternative to the ap- with bankptcy court approval of the dis- such appointment is in the best interest of pointment of a trstee is the appointment closure statement. A disclosure statement creditors and the delay and cost involved of an examiner. Section lI04(a) permits must contain "adequate information~'. to is justified under all of the circumstances.24 the appointment of an examiner if the "enable a hypothetical reasonable investor The appointment of a trustee may be court does not order the appointment of a typical of holders of claims or interests of warranted under subsection (a)(2) if there trustee and if such appointment is in the the relevant class to make an informed is a deadlock among the board of directors best interest of creditors. Generally, courts judgment about the plan."34 What consti- or a conflict of interest in the management wil apply a lesser evidentiary burden in tutes adequate information is determined of the debtor, where the debtor in posses- considering the appointment of an examin- on a case-by-case basis under a flexible sion fails to commence actions to avoid er. 26 Where sufficient evidence is offered standard, taking into account the size and insider transfers or other preferences and to show that allegations of misconduct or complexity of the case, the kind of plan fraudulent conveyances, or where there incompetence have a sound factual basis, proposed, the kind of claims involved, and has been no meaningful progress towards the bankruptcy court should appoint an ex- creditors' access to outside sources of in- reorganization. aminer rather than a trustee wherever the formation. If the appointment of a Chapter 11 protection afforded by a trustee could In the leading case of In re Jeppson, 66 trustee is ordered by the bankruptcy court, equally be provided by an examiner.27 Bank. 269 (Ban. D. Utah 1986), the the U.S. Trustee wil appoint a disinter- An examiner's role in the affairs of a court offered the following checklist of in- ested person, subject to the court's approv- Chapter 11 debtor is less intrusive than a formation which generally should be in- al, to serve as trustee. The U.S. Trustee is trustee's. An examiner wil not displace cluded in a disclosure statement: required to consult with parties in interest the debtor's management or operate its 1. The circumstances that gave rise to and consider their suggestions for a suit- business. Instead, the examiner's primary the filing of the bankuptcy petition; able trustee. The U.S. Trustee wil con- duty is to investigate and report on the fi- 2. A complete description of the abail- sider members of the local panel of Chap- nancial condition of the debtor, the opera- able assets and their value; ter 7 trustees as well as other qualified tion of the debtor's business, and the desir- 3. The anticipated future of the debtor; persons in making the appointment. abilty of the continuation of such busi- 4. The source of the information pro- Section 1106(a) specifies 11 statutory ness.28 The order directing the appointment vided in the disclosure statement; duties of a trustee. A trustee in a reorgani- of an examiner generally specifies certain 5. A disclaimer; zation case is a fiduciary and must exer- areas the cour wants the examiner to in- 6. The condition and performance of cise due care, diligence and skil in the vestigate, and may also limit the scope of the debtor while in Chapter 11; administration of the estate.25 In addition the investigation and set a ceilng for ex- 7. Information on claims against the to the duty to identify and where necessary penses to be incurred.29 CPAs, rather than èstate; compel turnover of property of the estate, lawyers, are often appointed to serve as 8. The estimated return that creditors the power to use or sell such property, and examiners for their investigative skils in would receive under Chapter 7; to avoid preferences and fraudulent con- financial matters. 9. The accounting and valuation meth- veyances of the debtor, the trustee has the V. The Disclosure Statement and Plan ods used in the disclosure statement; power to operate the debtor's business, the After a banuptcy petition is fied 10. Information regarding the future duty to investigate the debtor, and the only the debtor in possession may file a management of the debtor; right to fonnulate and propose a plan of plan of reorganization during the first 120 11. A summary of the plan of reorgani- reorganization or recommend conversion days.30 This statutory exclusivity period zation; of the case to Chapter 7. may be reduced or extended by the court 12. An estimate of all administrative

November 1991 9 ~-

I~

expenses, including attorneys' fees treatment. Section 1123(a)(5) broadly dation because the disposition of assets and accountants' fees; states that a plan must provide adequate may be conducted in a less expensive, 13. The collectibility of any accounts re- means for the plan's implementation. more orderly manner by a debtor in pos- ceivable; These means may include the transfer of session, as opposed to a trustee who is a 14. Any financial information, valua- the debtor's property to a new entity, stranger to the business and unfamiliar tions or pro forma projections that merger or consolidation of the debtor with with the property of the estate.39 would be relevant to creditors' deter- another entity, curing or waiving any de- VI. Confirmation and Cramdown minations of whether to accept or re- fault, and issuance of new securities in ex- The bankruptcy court must hold an ev- ject the plan; change for claims against the debtor. Fi- identiary hearing in ruling on the confir- 15. Information relevant to the risks be- nally, 1123(a)(6) requires that the plan mation of a proposed plan of reorganiza- ing taken by the creditors and inter- provide for the inclusion in the charter of tion:o Regardless of whether any objec- est holders; the debtor or a successor corporation of a tions are filed, the court must determine 16. The actual or projected value that provision prohibiting the issuance of non- whether the statutory requirements for can be obtained from voidable trans- voting securities and providing an appro- confirmation have been met. All creditors fers; priate distribution of voting power. The are entitled to notice of the confirmation 17. The existence, likelihood and possi- purpose of this provision is to assure that hearing and have an opportunity to object. be success of non-bankruptcy litiga- creditors who are forced to take stock in a In Reliable Electric Co. v. Olson Const. tion; reorganized company will be entitled to Co., 726 F.2d 620 (1984), the Tenth Cir- 18. Any tax consequence of the plan; exercise full voting control and have a cuit held that a creditor who knew of the and voice in the selection of management that pendency of the Chapter II case but did 19. The relationship of the debtor with will protect their interests. not receive formal notice of the confirma- affiliates. Section I I 22(a) of the Code allows a tion hearing was not bound by the plan of The hearing on the disclosure state- plan proponent to place particular credi- reorganization and its claim was not dis- ment should not be turned into a mini- tors' claims together in a class only if such charged pursuant to the plan. confirmation hearing, and only objections claims are "substantially similar." The In order to be confirmed, a plan of as to the adequacy of the information are reorganization must satisfy all thirteen re- proper. However, if the bankruptcy court quirements of I I 29(a) of the Code, except can determine from a reading of the plan "The chief purpose of Chapter that if a plan meets all of the requirements and disclosure statement that the plan on except for acceptance by all impaired its face does not comply with I I 29(a) of 11 is to secure the prompt, classes of claims, that plan may neverthe- the Code, it may decline approval of the effective settlement of all less be confirmed if at least one impaired disclosure statement and spare the estate class votes to accept the plan and it also the unnecessary expense of a confirmation claims against the debtor, satisfies the requirements of 1129(b). The hearing. bankruptcy court may not rewrite the plan The mandatory provisions for a plan of restructure its business and i or confirm parts of the plan and reject oth- reorganization are contained in 1123(a). . ers; the plan must be confirmed or rejected Under 1123(a)(I), the plan must designate financial affairs, and to return in its entirety:' classes of claims other than certain prior- the company to the mainstream The plan must comply with the provi- ity claims, which remain unclassified. sions of title II:' This mandates that Section 1123(a)(2) provides that the plan of commerce." claims be properly classified and the plan must specify any class of claims or inter- contain the provisions specified in 1123 of ests that is not "impaired." Section the Code:' The plan proponent must also 1123(a)(3) requires that a plan specify the Bankruptcy Code allows some flexibility comply with the applicable provisions of treatment of impaired classes. The con- in the classification of creditors' claims but title 11.44 Objections to confinnation un- cept of impairment is of vital importance the plan may not create separate classes so der this requirement usually involve fail- in Chapter iI because a class that is not as to manipulate the voting requirements. ure to comply with the adequate disclosure impaired is deemed to have accepted the Classification of secured claims ordinarily and the limitations on solicitation provi- plan.35 Courts have consistently inter- will be based upon priority, nature of col- sions of 1125, and with 1126 regarding preted the term "impaired" very broadly lateral, and agreements between creditors acceptances of the plan:' such that if a plan alters any of the credi- with respect to subordination. Secured A plan must be proposed "in good tor's rights in any respect, that plan does creditors may not be classified together faith and not by any means forbidden by not leave the claim unimpaired.'6 An im- when they have liens against different law."46 For purposes of determining good portant exception to the expansive defini- property or possess liens of different prior- faith, the court's concern is whether the tion of impairment is found in 1124(2) of ity against the same property, since their plan wil achieve a result consistent with the Code, which permits the debtor to cure respective legal rights are not substantially the objectives and purposes of the Bank- the default of an accelerated loan, reinstate similar.37 Classification abuse may occur ruptcy Code:7 The Tenth Circuit has de- the original maturity date as it existed be- when the plan contains multiple classes of fined the good faith standard in terms of fore default, and thereby reverse the accel- unsecured claims for the purpose of creat- whether "the debtor intended to abuse the eration. ing an impaired accepting class in order to judicial process and purposes of the reor- Section 1123(a)(4) provides that each cramdown the plan. ganization provisions. "48 creditor within a particular class must re- Liquidating plans are allowed in Chap- All payments made or promised by the ceive the same treatment under the plan ter 11.J8 Systematic liquidation in Chapter debtor for services in connection with the unless a creditor agrees to less favorable II may be preferable to a Chapter 7 liqui- case must be disclosed and approved by, or be subject to approval by, the bank- io Vol. 4No. 9 ruptcy court:9 In the rare case where a tions of every other class of creditors.59 the case may be) are to retain their equity plan provides for a change in rates that are The plan must also provide for payment of interests, unless the junior interest holder subject to governmental regulation, the U.S. Trustee fees60 and for continuation of makes a new cash infusion which is both agency with jurisdiction over such rates benefits for retired employees.6! necessary under the circumstances and must approve the change.5o Most importantly, the plan proponent substàntia1. 68 The plan proponent is required to dis- must demonstrate that confirmation of the If the plan proposes to pay a secured close the identity and affiliations of all in- plan is not likely to be followed by the creditor in installments, the present value dividuals proposed to serve as officers and liquidation, or the need for further finan- of the future payments must equal the directors of the reorganized company. cial reorganization of the debtor, unless amount of the creditor's claim. In order to The appointment to or continuance of provided for in the plan.62 This feasibility provide the creditor with the present value someone in one of these positions must be requirement is to ensure that the plan of- of its claim, interest at an appropriate rate consistent with the interests of creditors.5! fers a reasonable prospect of success.63 must be added to the installment pay- Generally, the debtor's choice of manage- Otherwise, creditors are entitled to have ments. ment wil not be disturbed by the court the business liquidated and avoid wasting VI. Post-Confirmation Matters except for compelling reasons such as in- its assets in a speculative venture. In mak- The chief purpose of Chapter 11 is to competence, inexperience, or affiliations ing the feasibility determination, the fol- secure the prompt, effective settlement of with groups inimical to creditors' inter- lowing factors are pertinent: all claims against the debtor, restructure its ests.52 1. The projected future earings of the business and financial affairs, and to re- Non-accepting creditors whose claims business; turn the company to the mainstream of are impaired under the plan must receive 2. The soundness and adequacy of the commerce. A plan of reorganization is a not less than they would receive in a debtor's capital structure; court-approved contract between the Chapter 7 liquidation.53 To satisfy this re- 3. The prospective availability of cred- debtor and its creditors and binds all of the quirement the debtor must present valua- it; parties.69 The order confirming the plan is tion evidence and show what distribution 4. Economic and market conditions; res judicata as to any issues that were or creditors would receive in a hypothetical and could have been raised in the confirmation liquidation. In parnership cases this liqui- 5. The skil and ability of management, proceedings.70 dation analysis should take into account and the likelihood that the same Upon confirmation the bankuptcy "es- what could be recovered from general management wil continue.64 tate" ceases to exist and the property of partners, since their assets can be reached If the plan provides for the payment of that estate revests in the debtor.7! The au- in Chapter 7 to satisfy any deficiency in creditors' claims from future earnings of tomatic stay also terminates at the time of payment of the partnership's creditors.54 the business, the debtor must present evi- '. confirmation.72 Thereafter, the terms of the Section l129(a)(8) provides that each dence of its future budget, and projected plan itself control the extent to which the class of creditors must either accept the revenues and expenses during the life of debtor's property is subject to creditors' plan or be unimpaired. Subsection (a)(8) the plan. The debtor's past and present claims. The reorganized debtor has the does not require that each individual cred- financial records are probative of its future right to encumber or dispose of its prop- 55 Rather, it requires itor accept the plan. performance, and the debtor should ex- erty without notice to creditors or bank- only that each class accept the plan. This plain significant discrepancies between ruptcy court control, unless this right is provision must also be read in conjunction historical earnings and its prediction of specifically restricted by the plan. with 1129(b), which permits "cramdown" improved performance following confir- The vast majority of Chapter 11 cases of the plan even though l129(a)(8) is not mation. The critical question is whether do not end at confirmation. Following complied with. If all classes of claims and the business has sufficient prospects of fu- confirmation, the bankuptcy court gener- interests vote by the requisite majorities to ture earnings and profits to pay its credi- ally retains jurisdiction to determine pend- accept the plan, no consideration need be tors pursuant to the plan. If the debtor's ing disputes, interpret and enforce the pro- given to whether the plan also satisfies the income and expense projections are unre- visions of the plan, and enter such orders requirements for "cramdown" under alistic, the court wil deny confirmation.65 that are necessary to carry out the plan.73 1129(b). The banuptcy court may confirm a Jurisdiction often is retained to decide ob- Section l129(a)(9) provides for the plan of reorganization over the dissent of jections to creditors' proofs of claim, ad- treatment of various priority claims which one or more classes of creditors under the versary proceedings retained pursuant to arise under 507 of the Bankruptcy Code, "cramdown" provisions of l129(b) ifcer- 1121(b)(3)(B) of the Code, and .allow- including the claim of the debtor's attorney tain requirements are met.66 For cram- ances of professional fees and other ad- for fees and claims for taxes. Administra- down to apply, it is necessary that the dis- ministrative expenses. However, perva- tive expense claims, including profes- senting class be "impaired". If the propo- sive jurisdiction over any controversy in- sional compensation, must be paid in full nent requests cramdown of the plan over volving the reorganized debtor would de- on the effective date of the plan unless the the dissent of an impaired class, the bank- feat the purpose of reorganization, namely, holder of the claim agrees to a different ruptcy court must confirm a plan "if the to restructure a business so that it is able to treatment.56 If taxes are to be paid over plan does not discriminate unfairly, and is go forward in the marketplace under its time, the plan must provide for their pay- fair and equitable," with respect to such own power without judicial interference. ment with interest within six years from class.67 Thus, post-confirmation jurisdiction is the date of assessmeni.7 The so-called "absolute priority rule" is limited to what is necessary to effectuate At least one impaired class must affir- preserved in the "fair and equitable" stan- the plan.74 matively vote to accept the plan.58 Once dard forcramdown. The rule requires that After confirmation, the plan proponent an impaired class has accepted the plan, it any dissenting unsecured creditor be paid or the reorganized debtor may modify the may be "crammed down" over the objec- in full if the shareholders (or partners as plan if the circumstances warrant such

November 1991 11 F

i 11 U.S.c. § 1 107(A). See Commodity Futures Trading Comm'n v. Down Under the New Bankruptcy Code," 53 Am. Bania. L.J. 133 modification and the plan as modified sat- Weintraub, 471 U.S. 343,105 S. Ct 1986 (1985); In re Devers, 759 F. (1979). 2d 751, 754, (9tl1 Cir. 1985). "U.S.C §1129(b). isfies the other requirements of Chapter 2See generally, M. Bienenstock, Bankruptcy Reorganization 72-76 ~See Noiwest Bank Worthington v. Ahlers, 485 U.S. 197.108 S.Ct. 963 (1987). (1988); Case v, Los Angeles Lumber Products Co., 308 U.S. 106, 121, 11. A creditor"ffay not propose a modifi- 'In re Selgar Realty Corp., 85 Bankr. 235, 240 (Bank. E.D.N.Y. 60 S.CL 1 (1939); In re Landau Boat Co" 8 Bankr. 436, 438-39 cation of the ~confirmed plan unless that 1988). (Banlo'. W.D. Mo. 1981). 4See In re Johns-Manvile Corp., 60 Bankr. 612, 616-19 (Bankr. .. II U.S.c. §1141(a). See Paul v. Monts, 906 F.2d 1468, 1471 (10th creditor was the plan proponent.6 If the S.D.N.Y.1986). Cir. 1990); In re Stratford of Texas, Inc., 635 F.2d 365, 368 (5th Cir. 'See In relames A. Philips, Inc., 29 Ban. 391, 394 (S.D.N.Y. 1983); 1981); Bankruptcy Reorganization, supra, note 2 at 702. plan has been "substantially, consummat- In re Simasko Production Co., 47 Bank. 44, 449 (Bankr. D. Colo. mSee generally, Stoll v. Golllieb, 305 U.S. 165,59 S. Ct. 134 (1938); In 1985). re Chattanooga Wholesale Antiques, Inc., 930 F.2d 458, 463 (6th Cir. ed" it cannot be modified. There are three 'See II U.S.c. § 109(1); HK Rep. No. 95-595, 95th Cong., 1st Sess. 1991); In re Justice Oaks II Ltd., 898 F.2d 1544, 1552 (11th Cir. 315 (1977). 1990); Republic Supply Co. v. Shoaf, 815 F.2d 1046, 1051.54 (5th Cir. requirements for "substantial 'II U.S.c. § 363(c) (2). 1987). " II U.S.c. § 1141 consummation. "77 First, the '11 U.s.c. §363(a). (b). SeeIn re Tri-L Corp., 65 Bankr. 774 (Banla D. debtor must 'II U.S.c. §363(c) (2). Utah 1986). have transferred all or substantially all of " 11 U.S.c. §363(c) (3); BankruptCy Rule 4001 (b) (2). " II U.S.c. §362(c) (I). "In re O'Connor, 808 F.2d 1393, 1397-98 (10th Cir. 1987). "See 11 U.s.c. §1 142(b); Bankruptcy Rule 3020(d). See generally, In the property proposed in the plan to be llN. Alquist & L. Rosenbloon',. Bankruptcy Law for Lenders 3.5 re Terracor, 86 BanI. 671 (D. Utah 1988); In re Tri-L C01p., 65 Bankr. at 774; In re J. M, Fields, Inc., 26 Bankr. 852, 854 (Bankr. (1989).JJSee generally, In re Saybrook . Mfg. Co., Inc., 127 Bankr. 494 (M.D. S.D.N.Y. 1982). transferred. Second, the debtor must have 741n re Tri-L Coip., 65 Banke. at 778. See Claybrook Drillng Co. v. Di- Ga. 1991). assumed management of the property dealt 14See In re Photo Promotion Associates, Inc., 87 Banle. 835, 839 vanco, Inc., 336 F.2d 697, 700-01 (10th Cir. 1964); In re Cascade En- (Bankr. S.D.N.Y. 1988), affd, 881 F.2d 6 (2d Cir. 1989). ergy & Metals Corp., No. 90C-908W, slip op. at 5 (D. Utah. Apr. 23, with by the plan. Third, distributions un- "See In re CEN.,1nc., 86 Bankr. 303,306 (Bankr. D. Me. 1988) (col- 1991) (per Winder, J.). lecting cases). Cf In re Executive Air Services, 62 Bankr. 474 (D. Utah " 11 U.S.c. §1127(b). der the p,lan must have commenced. 1986) (district court affrmed bankruptcy court order refusing to grant "In re Horne, 99 Bankr, 132, 134 (Bankr. M.D, Ga. 1989). a retroactive super-priority for post-petition advances). "See II U.S.c. §1101(a) (2) (A)-(C). The first requirement has been the 16See generally, Prager, "Financing the Chapter i 1 Debtor: The Lend- 18In re Heatron, Inc., 34 ~an. 526 (Bankr. W.D. Mo. 1983). source of the most confusion in this area. ers' Perspective," 45 Bus. Law. 2127-50 (Aug. 1990). 19See U.S. v. Novak, 86 BanI. 625 (D.S.D. 1988); In re Burlingame, 17See Executive Air Services, 62 Bankr. at 474; In re American Re- 123 Bank. 409 (Bank. N.D. Okla. 1991); In re Hayball Trucking, ' Where a plan proposes to pay creditors sources Mgml. Corp., 51 Bankr. 713 (Bankr. D. Utah 1985). Inc., 67 Bankr. 681 (Ban. RD. Mich. 1986). "See NLRB v. Bildisco & Bildisco, 465 U.S. 513, 522 n.6 (1984); In re over many years and the debtor makes an Booth, 19 Bankr. 53 (Bankr. D. Utah 1982); Countryman, Executory Contracts in Bankruptcy: Part J, 57 Minn. L. Rev 439, 460 (1973). Utahim initial distnbution at or near the time of "In re Lopez, 93 Bankr. 155, 158-59 (Ban. N.D.1l 1988); In re Fey- line Presenls, Inc., 81 Ban. 623, 627 (Ban. D. Colo. 1988); Coun- confirmation, it is obvious that distrbu- tryman, Executory Contracts in Bankruptcy: Part II, 58 Minn. L. Rev. tions have "commenced". But when does 479,506 (1974). "See In te By-Rite Distributing, Inc., 55 Ban. 740 (D. Utah 1985). the transfer of "substantially all" of the "See In re Granada, Inc., 88 Bank. 369 (Bank. D. Utah 1988). "In re SWel!lfater, 40 Bankr. 733 (Ban. D. Utah 1984). debtor's property occur? One court pet; 2JCommoditiès Futures Trading Comm'n v. Weintraub. 471 U.S. 343, 355,105 S.Ct 1986,1994 (1985), quoting Waifv. Weinstein, 372 U.S. mitted post-confirmation modification # ~ 633,651,83 S.Ct 969, 980 (1963). "See In re Oklahoma Refining Co" 838 F.2d 1133, 1136 (10th Cir. ter looking to' the percentage of thepa§~ 1988). "Sherrv. Winkler, 552 F.2d 1367, 1374 (10th Cir. 1977). ments to be made to creditors over the life 26Snider, "The Examiner in the Reorganization Process: A Need to of the plan, holding that 56% did not con- Modif," 45 Bus. Law. 35, 37.38 (Nov. 1989). "See H. R. Rep. No. 95.595, 95th Cong., 1st Sess. 402 (1977). "11 U.S.c. § 1 106(b). stitute "substantially all" of such pay- 29See Acconcia, "The Role of Examiners in the Bankrptcy Proceed- ments.78 The better view rejects this inialy- ing," Bank. L Rev. 31,32 (Summ. 1989). ~11 U.S.c. § 1121(b). sis and holds that distrbutions to,êreditors "11 U.S.c. §l 121(d). 32See, e.g., In re Texas Extrusion Corp., 68 Banle. 712, 725 (N.D. Tex. over time are not the Ltype of tränsfers 'of 1986); In re United Press International, Inc., 60 Bank. 265, 269 property contemplated by the statute, and (Bank. D.D.C. 1986). "See In re Perkins 71 Ban. 294, 299 (W.D. Tenn. 1987). TRY ~ II U.S.c. §1125(a)(l). THE BEST only those transfers made, at' òr near the nii U.S.c. § 1 126(f). time the plan is confirme,d, which shape "In re Jones, 32 Bankr. 951, 957 (Bankr. D. Utah 1983); In re Bar- In Service and Price rington Oaks General Partnership. 15 Banke. 952, 955.67 (Bank. D. the new financial structurè of the reorgac Utah 1982). Nationwide Research and "In re Jersey City Medical Cenler, 817 F.2d 1055, 1060 (3d Cir. 1987); nized company, should be considered.79 In re Commercial Western Finance Corp., 761 F.2d 1329, 1338 (9th Document Retrieval Cir.1985). VII. Conclnsion 38In re Coastal Equities, Inc., 33 Bank. 898, 904 (BanI. S.D. CaL. 1983); In re Koopmans, 22 Bank. 395, 40 2.03 (Bank'. D. Utah 1982); Chapter 11 of the Baifiptcy Code per- HR Rep, No. 95-595, 95th Cong., 1st Sess. 407 (1977). See 11 U.S.c. . Background/Asset Searches forms a valuable role in¡pteServing finan- §§1123(b)(4), 1129(a) (11). "See 11 U.S.C §1123(b)(4);ln re Naron & Wager, 88 Bankr. 85, 88 . Service of Process Nationwide cially distressed but viàiJle businesses. (Banke. D. Md. 1988). . Corporate Info/Document Filing ~ II U.S.c. §1128(a); Bankruptcy Rule 3020(b); In re Acequia, Inc" The great virtue of the reorganization 787 F.2d 1352, 1358 (9th Cir. 1986). . Corporate Good Standings 4lSee In re Spanish Lake Associates, 92 Ban. 875. 877-78 (Bankr. chapter has been its flexibility. It has E.D. Mo. 1988); In re Janssen Charolais Ranch, Inc., 73 Banle. 125, . UCC Searches/Filings 128 (Bank'. D. Mont 1987). proved effective in the financial rehabilita- " 11 U.S.c. §1 129(a)(I). . Tax Liens, Judgment Searches tion of individuals iI1d small businesses, "Maiier of Johns-Manville Corp., 68 Bankr. 618, 629 (Bankr. . DMV, Bankruptcy Searches S.D.N.Y. 1986). as well as giant corporations. ~ 11 U.S.c. §1129(a)(2). . Real Estate Ownership and 45Johns-Manvile, 68 Bania. at 630. Encumbrances The Bankuptcy dbde shifts the empha- % 11 U.S.c. § I 129(a) (3). 41In re Madison Hotel Associates, 749 F.2d 410, 424-25 (7th Cir. . All Courts. Nationwide sis in reorganization from judicial supervi- 1984). ~ln re Pikes Peak Water Co., 779 F.2d 1456, 1460 (10th Cir. 1986). . Many More Services Available sion to çreditor control. While the ban- ~ 11 U.S.c. §1129(a)(4). ruptcy c,Our has a ddgree of leeway in de- ~ 11 U.s.c. §1129(a)(6). SeeIn re Auto-Train Corp, 6 Bankr. 510, 517-18 (Baukr. D.D.C. 1980). Our people are in every county cidingwhere the' case wil move, the role " 11 U.S.c. §1129(a)(5). 52See In re Polytherm Industries, Inc., 33 Bankr. 823 (W.O. Wis. 1983). and state to give you hands-on of the ,court is to adjudicate disputes, not ß 11 U.S.c. §1129(a)(7). )-See 11 U.S.c. §723(a); In re Diversifed Investors Fund XVII, 91 research quickly, effciently - manai\~ debtors', estates. The system is Ban. 559, 562-63 (Bankr. C.D. CaL. 1988); In re 1-37 Gulf Ltd. Partnership, 48 Bankr. 647, 650 (Banla S.D. Tex. 1985). accurately! premised on activ,e participation by debt- "See In re Ruti.Sweetwater, Inc., 836 F.2d 1263, 1267 (10th Cir. 1988) (a non-voting, non-objecLIng judgment lien creditor, who was the only on¡ and their creditors. As a practical mat- member of a class, was deemed to have accepted the plan). ~ 11 U.S.c. §1129(a) (9) (A). Local: 801-532-7024 ter, t~is means thai attorneys are the driv- " 11 U.S.c. § 1129(a) (9)(C). " 11 U.S.c. §1 L29(a) (10). See Barrington Oaks General Partnership, Fax: 801-532-7033 ing fprce in Chapter l 1. If the vitality of 15 Bank. at 952. "In re Ruti-Sweetwater, Inc., 836 F.2d 1263 (10th Cir. 1988). Nationwide: 800-227 -3152 tre reorganization pfúcess is to be af- 00 11 U.S.c. §1129(a) (12). " 11 U.S.c. §1129(a)(13). firmed, all business lawyers must acquire " 11 U.S.c. §1 129(a)(11). and rtaintairt a working knowledge of the 6'See Dietrich Corp. v. King Resources Co., 583 F.2d 1143 (lOth Cir. 1978). substantive and procedural mechanisms of lAIn re Polyiherm Industries, Inc., 33 Banle. 823, 831 (W.D. Wis. 1I//&ttlfcli 1983); In re Prudential Energy Co., 58 Bank. 857, 863 (Bankr. & INSPECTION, INC. C~~pter 11. S.D.N.Y.1986). Min re Stuart Motel, Inc., 8 Bankr, 48, 49-50 (Bankr, S.D. Fla. 1980). 243 East 400 South, Suite 301 66See generally, Klee, "All You Ever Wanted to KnowAbout Cram Salt Lake City, UT 84111

12 Vol.4No.9 JUDICIAL PROFILES

Views on Legal System

If Judge Winder could make one Judgesides Winder of an seesissue advocacyas one of the on major both change in our system, he would revamp the strengths of our legal system. Such an ap- civil torts system. He sees a large discrep- proach enables the court to "get at the ancy between awards for similar injuries. truth." He notes that often a case seems Additionally, he finds it outrageous that clear after hearing one side's argument, but less than half of all compensation money the issues become much closer and better goes to the claimant; the remainder going defined after hearing both sides. "If money to lawyers, experts, claims people of insur- and time were no object," he states, "the ance companies and so on. Winder doesn't system would be just great." argue that such people don't earn their The greatest weakness of our system, money, but rather believes that the system Judge Winder states, is how harmful the needs some reconsideration. The worker's process is to the litigants. Too often even compensation system, for example, com- the so-called winners turn out to be losers. pensates the injured person regardless of Very few, if any, litigants about to go Judge David K. Winder fault. Much less of the money goes to ad- through contested proceedings have any United States District Judge ministration and more goes to the injured idea what they are going to face. The over- District of Utah personfor the injury. whelming harm to litigants is . caused Appointed: 1979 by President Carter As for whether our system is heading Law Degree: 1958, Stanford largely by a system that encourages each Practice: Litigation partner, Assistant U.S. Attorney, in the right direction, Judge Winder sees side to portray the other side in the worst Deputy County Attorney, Utah District little change in the system itself since he possible light. Even in an average negli- Court Judge, Chief Deputy District Attor- ney, Law Clerk to Chief Justice Crockett- began practicing law. Rather, what has gence case, the defendant wil attempt to Utah Supreme Court changed is the cost of litigating. Much liti- make the plaintiff look like a malingerer- Law Related American College of Trial Lawyers gation has become a battle of experts as Activites (nominated and approved, not inducted be. like she did nothing to mitigate her inju- cause appointed to bench); Advocate, lawsuits have become more and more com- ries. Similarly, the claimant wil portray American Board of Trial Advocate; Exam- plicated. defendant as calloused and uncaring- iner and Chairman, Bar Examiners, Utah much worse than reality, perhaps in an at- Judge Winder is not really sure what motivated STRATEGY FOR SUCCESS BEFORE tempt for punitive damages. him to become a lawyer. After majoring in En- JUDGE WINDER As an ilustration, Judge Winder cites glish at the University of Utah, he attended Judge Winder never enters the court a recent age discrimination case in which Stanford Law School "because I was admitted." except totally prepared and expects the the plaintiff failed to receive a promotion While he wanted to further his education, he same from attorneys. Judge Winder's ad- from his employer and quit. His employer says frankly that his choice of law school was vice to attorneys is as follows: held a banquet at which the plaintiff re- almost "by default." . BE ON TIME. Judge Winder is abso- ceived awards and was told he was highly While a practicing attorney, Judge Winder lutely punctual. valued. At trial, however, defendant at- specialized in insurance defense litigation, and . Learn the extent of a judge's preparation tempted to show through various means was also involved in domestic relations law. beforehand. If the judge is prepared, get that plaintiff was incompetent and did not Although completely satisfied with his practice and particularly with his colleagues, Winder to the point. Deal with the merits. deserve the promotion. Thus, what had lists the abilty to make decWons that he feels . Treat the other side civilly. Avoid at- otherwise been a pleasant work experi- are right as a major motivation in becoming a tacks on opposing clients and counseL. ence, turned sour. Winder recognizes that judge. Practice sometimes requires represent- . A void becoming emotional. discrimination statutes legitimately deter ing causes or issues in which one has no par- . A void repetition. discrimination. Unfortunately, litigants ticular interest. This can ultimately lead to feel- . Accept rulings graciously. simply don't understand the often brutal ing "burned-out." Comparing life in practice to . Take time to re-read briefs and other reality of the suit, he states. life on the court, Winder remarks that he has written materiaL. Oral arguments are The system's second weakness, Judge never wished to return to practice--ot be- helpful, but written material is more im- cause practice was not fulfiling, but because Winder believes, is the expense necessary portant. A void misstatement of law or to accommodate average claims. He cites he finds the abilty to rule as he sees fit more satisfying and rewarding. fact and exaggeration. Such misstate- a recent study which showed that only 43 Interaction with his staff and clerks is the ments wil harm your credibility. percent of every award goes to compensa- aspect Judge Winder enjoys most about being . Learn the Rules of Evidence. There is a tion of the claimant. The discovery system on the bench-articularly during jury trials. real art in objecting to what is harmful as it now stands is one cause of the exorbi- On the other hand, making decisions in dificult and inadmissible, while not simply be- tant cost of litigation. civil, non-jury cases is perhaps the least enjoy- ing an obstructionist. able aspect of his job.

November 1991 13 -- i1

Judge Winder advises new attorneys to reputation will be invaluable. Winder en- Winder reads all United States Supreme develop a set of goals right from the begin- courages attorneys with particular ques- Court and Tenth Circuit decisions, and ning and follow through on them. He en- tions regarding procedure in his court- keeps up with other areas of the law. courages all lawyers to develop an attitude room, to call his staff. In what little spare time remains, of getting along with fellow lawyers with- Judge Winder enjoys drives with his wife out sacrificing the client's interest. Main- OUTSIDE ACTIVITIES and spending time with his three children taining such a balance is crucial, he feels, Judge Winder arrives each morning at and his grandchildren. He plays golf in developing a sound reputation as not 4: 15 a.m., after which he runs two miles ("very bad golf," he says) and likes to read only a good lawyer, but one who is profes- and does 100 sit ups to begin the day. He b~ographies, historical books and maga- sional and pleasant to work with. Such a normally works seven days a week. zines.

(1

before you want to argue your position. Limit discovery. Decide the two or three SinceJudge coming Roth on notes the benchthree significantin 1974, ii changes in the legal climate-an increased main claims upon which your case is hostility among lawyers; a greater number based, then stick to what is relevant to of cases with questionable merit; and a those claims. At a bench trial, Roth liter- need for greater judicial intervention to ally forces lawyers to reevaluate the merit work out simple, previously easily accom- of pursuing multiple, related causes of ac- modated matters. The root of these prob- tion. Roth, who readily admits he is a lems, according to Roth, is that "too many "type A" personality "with limited pa- lawyers are competing for roughly the tience, at best," acknowledges that at times same amount of good work-so some law- he may try to oversimplify a case. He yers settle for second rate work" and bring finds it much more productive, however, those cases to court. The competitive at- to pursue only the "bottom-line" issues in mosphere promotes inflexibility among a case rather than allowing "insecure" law- yers to pursue numerous, attenuated lawyers. Inflexible lawyers, says Roth, means judges must become more involved Judge David E. Roth causes of action. with routine matters that could be easily Utah State District Judge In jury trials, "don't underestimate the worked out between the parties. In the Second District Court intellgence of the jury." Roth says juries past, lawyers simply called each other for Appointed: 1974 to Ogden City Court, 1978 to Sec. are sophisticated enough to know when a an extension of time to respond to discov- ond Circuit Court, appointed to District plaintiff is really injured, so "don't try to Court in 1984 by Gov. Scott M. Mathe- ery or to answer a motion. Today, lawyers sell a bad case through experts." Roth sees son "very few trials where experts make much refuse to accommodate each other, "relying Law Degree: 1969, University of Utah of a difference." Roth also encourages instead on some form of judicial interven- Legal Practice Tax lawyer, IRS; Prosecutor, Weber tion. County lawyers to recognize that "juries have Law Related Utah Judicial Council; Chair, Judicial enough common sense to figure out how a Another problem Judge Roth sees in Activities: Resources Committee; Chair, Rules of the current legal climate is the growing Practice Committee. car accident happened," and says experts trend for lawyers to seek "high-tech" ways such as "accident reconstructionists" are a to litigate. Roth sees lawyers relying on Judge Roth grew up in Holladay, Utah. Although his needless expense in many cases. word processors to produce overwhelming first "real job" was picking strawberries when he Finally, Judge Roth says lawyers numbers of interrogatories; deposing any was 11, his first job out of law school was for the should feel free to call to ask questions Internal Revenue Service in Ogden. Initially, Roth one with any conceivable knowledge of relating to the procedure in his court. Be envisioned himself developing a niche as a tax ex- facts surrounding the case; and attempting prepared, however, Roth answers his own pert, but after just one year at the IRS, he switched to line. to dazzle the jury with impressive experts. prosecuting juveniles for Weber County. In 1973 Roth says this push for extensive discovery Roth became Deputy County Attorney for Weber OUTSIDE INTERESTS contributes significantly to the overwhelm- County. Roth enjoyed the exposure to diferent judges ing costs of litigation. Because most indi- and lawyers from his frequent court appearances all Judge Roth's Schwinn Sierra mountain viduals cannot afford upward of one- over the county. Roth says he learned a great deal bike leans against the wall of his office hundred dollars an hour for an attorney to from watching diferent judges and lawyers in prac- from his morning ride to work. He says pursue endless discovery, lawyers again tice, and developed his own style by incOlporating mountain biking is a new sport for him, compete for the clients who can pay. diferent aspects of the styles of those around him. As but claims already to have endured Moab's a judge, Roth misses the perspective one gains from "Slickrock Trail" at least a half-dozen "PET PEEVES" watching peers in action. times. Quite an accomplishment for a "be- Judge Roth detests: "lawyers who treat ginner." Roth also buys, sells, and collects witnesses as villains and liars when the fect; and endless, and often needless, pro- motorcycles. He currently owns four road witness' response is simply unfavorable to liferation of discovery due to the capabil- bikes and one dirt bike. Every year Roth the lawyer's position;" receiving a brief at ity of word processors. participates in a cross-country motorcycle the same time the lawyer wants to argue ride with a group of local lawyers and the issue; judicial decisions that are legally STRATEGY FOR SUCCESS BEFORE others-pseudo biker-types no doubt. correct but morally or emotionally difficult JUDGE ROTH Roth says he would like to ride with because of the decision's devastating ef- Roth rules from the bench, so don't gnarly Harley-Davidson types, but muses, surprise him with a big memoir minutes "I don't think they'd have me." Utahim

14 Vol. 4 NO.9 STATE BAR NEWS

Commission 7. Baldwin reviewed the July financials. 15. Baldwin distributed a report of the Au- 8. Baldwin reported that the Bar has set gust 1991 Bar department activities Highlights up two concentration or "sweep" ac- and a summary of the Utah Dispute During its regularly scheduled meet- counts with First Security Bank which Resolution Mediation Program for the ing of August 30, 1991, the Board of Bar are backed by U.S. Government secu- Board's review. Commissioners received the following re- rities. 16. Member Benefits Committee Chair- ports and took the actions indicated. 9. The Proposed FY92 Budget for the man, Randon Wilson, appeared and re- 1. The minutes of the August 2, 1991, Young Lawyers Section was presented viewed the programs endorsed by the meeting were reviewed and approved by Charlotte Miler and approved by Bar including (1) Health & Accident- with minor changes. the Board. Blue Cross/Blue Shield; (2) Profes- 2. The Board requested that staff re- 10. Denise Dragoo presented the findings sional Liability Insurance-Home In- search the dues structure in other juris- and suggestions of the ad hoc commit- surance Co.; (3) Disability Insurance- dictions and ascertain the number of tee on Improving Bar Communica- Currently with Standard; (4) Life members at the local law schools that tions. Insurance-Blue Cross/Blue Shield' are currently active and inactive. 11. Staff Counsel, Wendell Smith, re- (5) Collections Program-IC Systems; 3. Jim Davis assigned Bar Commission- viewed the pending litigation. and (6) MasterCard. ers to be liaisons with Bar Sections 12. The Board adopted a hearing panel's 17. The Board voted to change the disabil- and Committees. recommendation to deny a Bar Exami- ity endorsement to Union Mutual in- 4. The Board decided to defer any ap- nation appeaL. stead of Standard. pointments of Alternates to the various 13. The Board refused to reconsider their 18. A motion was defeated to endorse Trial Court Judicial Nominating Com- previous decision on an applicant who Transworld for the collection program missions until it receives clarification had been denied admission after a instead of IC Systems. No collection of the statute. Character & Fitness hearing and deci- program was, therefore, endorsed. 5. Supreme Court Chief Justice Hall was sion. reported as the permanent liaison for 14. The Board reviewed Lawyer Referral A full text of the minutes of these and the Bar. Service sign-ups and voted to petition other meetings of the Bar Commission is 6. John Baldwin reported that the audit the Supreme Court to allow continua- available for inspection at the office of the was completed and the auditors would tion of the LRS by using the existing Executive Director. like to present their report at the Sep- budget and to review ways to improve tember meeting of the Board. the service.

MCLE Reminder 61 Days Remain . . WHT is ATTORNEYS'TITLE On November i, 1991, there will remain 61 days to meet your Mandatory Continu- GUAR FUN. INC_ ing Legal Education requirements for the at-to~ney' ti-tle first reporting period. In general the n. 1. a. A Ute copa crted by the membe of the Uta Ba MCLE requirements are as follows: 24 Asiation (Ba-Relatedll) to asist real estate attorney b. A hours of CLE credit per two-year period Utle company that alows attorney to ear money from Utle Inurance (up to 70% of the Utle preum) 2. A title company plus three hours in ETHICS, for a 27-hour owned by attorneys. and opeted for attorneys 3. A Utle total. Be advised that attorneys are re- company which provdes attorney: a. Rearh and LltigaUon quired to maintain their own records as to lnormaUon b. Foreclosure inormaUon c. Banptcy the number of hours accumulated. The Inormtion d. Mechancs Lien inonnUon e. Judgement lnormaUon and f. ntle Inormation 4. A Utle company first reporting period ends December 31, dedicated to preservg and promoti the attorney's role in i 99 i at which time each attorney must fie ~i1 re este wi a Reto b. Leer c. Co a Certificate of Compliance with the Utah d. Attorney. State Board of CLE. Your Certificate of FOR MORE INFORMTION Compliance should list programs you have CM 1rm1 328-8229 attended to meet the requirements, unless you are exempt from MCLE requirements. On page i 7 is a Certificate of Compliance form for your use. If you have questions Ats'TU Moi-e thJust a t1 co 1 concerning the MCLE requirements please contact Sydnie Kuhre, Mandatory CLE . . Administrator at (80 i) 53 i -9077.

November 1991 15 -r i

Discipline Corner attorney engaged in active negotiation for violating Rule 3.5(a) (decorum) by tap- with the insurance provider. ing a telephone conversation between him- PRIVATE REPRIMAND SUSPENSION self and a judge without the judges knowl- 1. An attorney was privately repri- On June 30, 1991, John M. Bybee was edge or consent (August/September 1991). manded for violating Rule 1.14 of the suspended from practice of law for a pe- The reason for the admonishment was that Rules of Professional Conduct for misrep- riod of six (6) months for failure to exer- the judge objected to the taping of the con- resenting to the client, on two separate oc- cise reasonable diligence in representing versation. We trust this wil eliminate any casions, that his claim was pending before his client in a guardianship action. Mr. By- confusion that this inadvertent error may have caused our readers. . the Industrial'Commission and scheduled bee accepted representation and prepared for a hearing to determine liability in June the guardianship petition, obtained his cli- RULE CHANGES of 1990 when in fact the liability determi- ents' signatures and the filing fee in March (Lawyer Helping Lawyers) nation had been made in October of 1989. 1990 but failed to file the petition. Further, The following amendments to the Rules Further, the attorney failed to submit a Mr. Bybee refused to refund the filing fee. of Professional Conduct should be noted: 1. Rule 1.6 (Confidentiality of Informa- medical evaluation to the Industrial Com- Mr. Bybee's conduct violated Rules 1.3, mission which he received in May 1990. (diligence); 1.3(c), (safekeeping proper- tion) is amended by the addition of the The client, subsequent to the termination ty); and 8.4(c), (misconduct); of the Rules following, of the attorney in August 1990, submitted of Professional Conduct. (c) Representation of a client includes the same medical evaluation to the Indus- Mr. Bybee's six (6) month suspension counseling a lawyer(s) about the need for trial Commission and settled the claim. was stayed pending his successful comple- or availability of treatment for substance 2. An attorney was privately repri- tion of a one (l) year period of probation. abuse or psychological or emotional prob- manded for violating Rule 1.4(a) of the Mr. Bybee's sanction was aggravated by a lems by members of the Utah State Bar Rules of Professional Conduct for failure prior two (2) year suspension from the serving on the Lawyers Helping Lawyers Committee. to respond to the c1ient's repeated request practice of law in the State of Idaho before for information regarding the status of the his move to Utah. As a mitigating factor, 2. Rule 8.3 (Professional Misconduct) is case during the period March through Sep- the Court took into consideration Idaho amended by the addition of the following, tember 1990. The attorney was also pri- Code of Professional DR-9-102(A) which (d) This rule does not require disclosure vately reprimanded for violating Rule 1.3 states that "in the appropriate circumstanc- of information provided to or discovered by members of the Utah State Bar during of the Rules of Professional Conduct for es, lawyer's personal monies and client failure to exercise reasonable diligence in trust monies may be commingled." Mr. the course of their work on the Lawyers moving the case forward resulting in the Bybee assumed, incorrectly, that the same Helping Lawyers Committee, a committee medical bils being assigned for collection rule applied in Utah. which has as its purpose the counseling of causing the client unnecessary stress. Sub- CORRECTION other bar members about substance abuse sequent to the client's filing of the Com- The Office of Bar Counsel previously or psychological or emotional problems. plaint with the Office of Bar Counsel, the reported that an attorney was admonished Government Law Section CLE Luncheon on the 1992 Election Pollster Dan Jones of Dan Jones & As- sociates wil speak at a luncheon spon- sored by the Government Law Section. He wil discuss the 1992 general election: what he sees wil likely be the issues, how redistricting wil affect the election results, and what trends were revealed by 1991 municipal elections. Fee includes lunch. CLE Credit: 1 hour wil be requested Date: November 19, 1991 Place: Utah Law & Justice Center Fee: $8.00 ($5.00 for Section Members) EORGE, U Time: Noon to 1 :30 p.m. Upcoming Events MARCH 12-14 (more details next month) . December 10, 11 or 12 (tentative): Sena- tor Orrin Hatch on "The Process of Con- firming Federal Judges." Luncheon with i hourofCLE. . January 25 (tentative): One-half day seminar on topics of interest for govern- to jf ¡¡ hI i. ment attorneys and other attorneys. 4 Hours CLE plus lunch.

16 Vol. 4 No. 9 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 NO.: ADDRESS: TELEPHONE:

Professional Responsibilty and Ethics* (Required: 3 hours) 1

1 1.

1 Program Name Provider/Sponsor Date of Activity CLE Credit Hours Type** 21 I 2. 01 Program Name I Provider/Sponsor Date of Activity CLE Credit Hours Type** ..1 ¡-i 3. ul Program Name 1 Provider/Sponsor Date of Activity CLE Credit Hours Type * * ~i cr I Continuing Legal Education* (Required: 24 hours) (See Reverse) 1

I 1. ¡-I Program Name Provider/Sponsor Date of Activity CLE Credit Hours Type * * 1 ~I 2. 01 Program Name I Provider/Sponsor Date of Activity CLE Credit Hours Type** 1 1 3. ~I Program Name ~I Provider/Sponsor Date of Activity CLE Credit Hours Type** 1 ~I 4. ¡-I Program Name

1 Provider/Sponsor Date of Activity CLE Credit Hours Type** * Attach additional sheets if needed. 1 **(A) audio/video tapes; (B) writing and publishing an article; (C) lecturing; (D) law school faculty teaching or lecturing outside your school at an approved CLE program; (E) CLE program-list each course, workshop or seminar separately. NOTE: No credit is allowed for self-study programs.

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 Regulation 5-103(1) and the other information set forth on the reverse.

Date: (signature)

November 1991 17 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 for which the statement of compliance is filed, and shall be submitted to the board upon written request.

EXPLANATION OF TYPE OF ACTIVITY z o A. AudiolVideo Tapes. No more than one-half of the credit hour requirement may be obtained through study with audio and video tapes. See Regulation 4(d)-101(a) ¡. B. Writing and Publishing an Article. Three credit hours are allowed for each u 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 60 days prior to reporting the ~ activity for credit. No more than one-half of the credit hour requirement may be obtained through the writing and publication of an article or articles. See Regulation 4(d)-101(b) C. Lecturing. Lecturers in an accredited continuing legal education program and part-time teachers who are practitioners in an ABA approved law school may receive 3 hours of credit for each hour spent in lecturing or teaching. No more than one-half of the credit hour requirement may be obtained through lecturing and part-time teaching. No o lecturing or teaching credit is available for participation in a panel discussion. See Regu- lation 4(d)-101(c) I i: D. CLE Program. There is no restriction on the percentage of the credit hour I .i, requirement which may be obtained through attendance at an accredited legal education I ~

program. However, a minimum of one-third of the credit hour requirement must be I ¡.' obtained through attendance at live continuing legal education programs. I THE ABOVE IS ONLY A SUMMARY. FORA FULL EXPLANATION SEE REG- I ULATION 4(d)-101 OF THE RULES GOVERNING MANDATORY CONTINU- I ING LEGAL EDUCATION FOR THE STATE OF UTAH. I I

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18 Vol. 4No. 9 Applicants for Criminal CLAIM OF THE MONTH Lawyers Professional "Cameras in the Conflict of Interest Courtroom" Contract Liability Alleged Error or Omission Further to Utah Supreme Court decision on The Insured allegedly provided improper petition of KSL TV et al for Modification of The Salt Lake Legal Defender Associa- Canon 3(a)(7) and (8) of the Utah Code of tion is currently accepting applications for advice to a decedent in connection with Judicial Conduct. the tax planning of his estate. three conflct of interest contracts to be Resume of Claim awarded for the fiscal year 1992. To qual- The Insured did not utilze, either par- ify each application must consist of two or Minute Entry tially or fully, the marital deduction and more individuals. Should you and your as- September 16, 1991 therefore may have accelerated the tax ob- sociate have extensive experience in crim- That par of the petition requesting au- ligation to the detriment of the estate. The inal law and wish to submit an application, thorization of electronic media coverage in please contact F. JOHN HILL, Director of Insured advised that the tax planning was the Utah Court of Appeals is hereby grant- Salt Lake Legal Defender Association, done after substantial discussions with the ed, subject to the following conditions. decedent concerning the tax planning is- 532-5444. Installation of all necessary wiring and sue. The decedent, according to the In- associated facilities needed to permit the sured, was an attorney and was also well use of television cameras shall be at the versed in matters of estate planning. Fur- petitioners' expense and shall be to the American Bar Adopts ther, the plan described in the wil was the court's satisfaction. decedent's plan. Furhermore, the notice provisions and Organ Donation How Claim May Have Been A voided general guidelines published in the Appen- The matter could have been avoided by dix to the Petition of Society of Profes- Resolution full documentation by the Insured in the sional Journalists, for Modification of Recently, the American Bar Association's form of a letter or a memorandum to his Canon 3 A (7) etc., published at 727 P2d Section of Real Property, Probate and client. This letter should have outlined the 200, shall apply equally to the Utah Su- Trust Law adopted a resolution encourag- consequences of the estate plan adopted preme Cour and the Utah Court of Ap- ing attorneys to counsel clients about or- and further outlined the alternative conse- peals with one amendment. Appendix A gan and tissue donation. quences had a different plan been adopted, subsection (5) is hereby amended to read: The leadership of the section, which including the use of the martal deduction. "At least two working days' written notice represents over 34,000 attorneys nation- An attorney's law firm may also consider requesting media access shall be given to wide, accepted the resolution at the annual purchasing computerized practice assis- the court, unless good cause exists to jus- meeting of the American Bar Association tance. In most cases, the software provides tify shorter notice . . . " in August. The resolution states: the practitioners with checklists and sug- WHEREAS, there are over 23,000 peo- gested forms. "Claim of the Month" isfurnished by Rollns Burdick Hunter of Utah, ple waiting in the United States for life- Administrator a/the Bar Sponsored Lawyers' Professional Liabilty In- surance Program. saving organ transplants; and WHEREAS, trust and estate lawyers are uniquely positioned to have the most en- Five Hours CLE Credit during influence in raising awareness on the topic of organ and tissue donation; IT IS THEREFORE RESOLVED that Toward a More Effective Penal System in Utah all members of the Section of Real Proper- A Conference Sponsored by ty, Probate and Trust Law should, when Citizens for Penal Refoim practicable, counsel their clients on the Featured speakers: subject of organ and tissue donation. +Laura Magnani, American Friends Service Committee Intermountain Organ Recovery System Historical Perspectives on Corrections NO\tnber Hi, 1991 (IORS), a non-profit, federally designated +Ernest D. Wright, M.S.w., Former Director, Utah Division of organization dedicated to the recovery of 1O:()() a.ll. to .l:()() p.il. organs and tissue within the Intermountain Corrections Utah's Penal System: Hoping Present Is Not Prologue region, would like to thank the leadership lJniversity of Utah for their immediate acceptance of this res- +Hon. Robert Downing, Louisiana State Judge olution. This is an incredible opportunity Alternatives to Incarceration Fine Arts Auditorium to make a strong impact on donation for +Greg Richardson, Chicago Attorney Affilated with Justice Fellowship transplantation. IORS encourages local Five Hours Continuing trst and estate attorneys to become organ Paving the Way for a Better Penal System and tissue donors and to counsel their cli- $25 if received before October 1,1991 Legal Education ents when preparing wils. $35 if received after September 30, 1991 CPR members may deduct $5 Our staff is eager to supply printed in- Fees are not refundable, unless conference is cancelled or postponed. (CLE) mailable. formation or address any questions relat- CPR reserves the right to change speakers and agenda. ing to donation issues. Please call us toll free at 1-800-833-6667. To enroll, please send your name, address, and check to: CPR Conference, 50 West Broadway, #700, Salt Lake City, UT 84101-2006

November 1991 19 r

UTAH STATE BAR

Management's Comments Regarding Financial Statements Year Ended June 30, 1991 i

I¡ii NET RECEIV ABLE FROM THE DEFERRED INCOME LAW AND JUSTICE CENTER As of June 30, 1991, the Bar had col- ~ During the year ended June 30, 1991, lected $315,405 in 1992 Licensing Fees the additions and deductions to the receiv- and Section Membership Fees. These fees able from the Utah Law and Justice Cen- have been classified as Deferred Income ter were as follows: since they pertain to the 1992 fiscal year. To All Bar Members: REVENUE OVER EXPENSES The following pages summarize the fi- Receivable at July 1, 1990 $314,409 The Revenue Over Expenses in the ac- nancial results for the Utah State Bar (the tual amount of $384,516 for 1991 and the Bar), the Client Security Fund, and the Bar Additions: budgeted amount of $471,000 for 1992 are Sections for the year ended June 30, 1991. Overhead fee 114,000 due to increased revenues and cost cutting The Bar's financial statements were au- Other direct operating expenses paid measures instituted by the Bar's Board of by the Bar 71,71 Commissioners and current management. dited by the national accounting firm, De- Payments for room rental and Current plans are to continue the present loitte and Touche, and a complete copy of catering 122,702 the audit report is available upon written policies to provide the funds necessar for request. Please direct these to the attention Deductions: debt retirement, to make necessar capital of Arnold Birrell. The 1990 results and Fees charged for room renta and expenditures, provide replacement and 1992 budget figures are provided for in- catering (68,134) contingency reserves, which were previ- formational and comparison purposes Cash received (223,238) ously not budgeted for, and to maintain a only. reasonable fund balance.. Receivable at June 30,1991 $331,450 The statements provided include a Bal- SUMMARY ance Sheet and Statement of Revertue and In summary, the Bar has made substan- Expenses. To help you better understand Because the Bar does not expect to col- tial progress financially during 1991. The lect the receivable from the Center during the information being reported, included new computer system is on line and being below are notes of explanation on certain the 1992 fiscal year, the receivable has used to produce accurate and timely items within the reports. Should you have been classified as long-term. The collect- monthly financial information. The new other questions, please feel free to contact ibilty of this receivable is not presently membership portion of the system is Arold Birrell or John Baldwin. determinable, and no provision has been planned to be on line in November. When made in the financial statements for any all proposed new software systems are on CASH AND OTHER CURRENT loss that may result if the receivable is line, we should be able to provide you ASSETS ultimately determined to be uncollectible. with information on a consistently timely The Bar's cash position is much stronger basis. than one year ago. The bottom portion of PAYMENT OF DEBT the Statement of Revenues and Expenses As of June 30, 1991, with the exception provides an explanation of how this of the mortgage on the Utah Law and Jus- money is to be used. After allowing for tice Center, all of the Bar's debt was paid payment of Current Liabilities and provid- off. Monies belonging to the Client Secu- rity Fund and Bar Sections have been ing certain reserves, the Bar's unrestricted cash balance is $108,524 at June 30, 1991 physically segregated to separate re- strcted bank accounts which are unavail- and projected to be $88,649 at June 30, 1992. able for Bar operations. In August, 1991, the Bar made a prepayment equal to twelve monthly payments on the mort- gage. As a result, the mortgage balance was reduced by $178,269. Additional pay- ments wil be made as funds permit and upon approval of the Bar's Board of Com- missioners.

20 Vol. 4 No. 9 UTAH STATE BAR BALANCE SHEET STATEMENT OF REVENUES AND EXPENSES As of June 30,1991 (with 1990 totals for comparison only) For the year ended June 30, 1991 (1990 actual and 1992 budgeted for comparson only)

ASSETS 1990 1991 1992 CURRENT ASSETS: 1990 1991 Budget Cash and short term investments $ 118,113 $ 854,663 REVENUE: Receivables 76,864 58,238 Bar examination fees $ 106,993 $ 121,915 $114,000 Prepaid expenses 27,112 15,383 License fees 943,223 1,351,288 1,426,200 Total current assets 222,089 928,284 Meetings. 90,798 210,861 151,000 Services and programs 380,896 360,784 338,600 NET RECEIVABLE FROM LAW AND 314,409 331,450 Section fees 123,919 75,933 30,000 JUSTICE CENTER Interest income 6,354 19,778 12,500 PROPERTY: Other 4,481 Land 316,571 316,571 Total revenue $1,652,183- $2,145,040 $2,072,300- Building and improvements 1,320,777 1,320,777 Office furniture and fixtures 308,763 318,419 EXPENSES: Computer and computer software 233,841 256,092 Bar examination $ 72,591 $ 113,220 107,400 Total property 2,179,952 2,211,859 Licensing 29,329 54,558 52,300 Less accumulated depreciation (539,564) (710,836) Meetings 129,471 174,669 194,500 Net property 1,640,388 1,501,023 Services and programs 447,473 453,590 489,400 TOTAL ASSETS $ 2,176,886 $ 2,760,757 Sections 133,498 19,300 Offce of Bar Counsel 205,032 298,364 393,600 LIABILITIES AND FUND BALANCES Commission 39,003 145,173 132,400 CURRENT LIABILITIES: General and administrative 595,131 362,181 212,400 Line of credit $170,200 Other 40,788 25,271 Accounts payable and accrued liabilities 111,901 $ 240,933 Total expenses $1,558,818 $1,760,524 $1,601,300 Deferred income 315,205 Note and installment contracts payable- 14,701 REVENUE OVER EXPENSES $ 93,365 $ 384,516 $ 471,000 short -term portion Add Non-Cash Expenses 90,321 171,272 157,336 Payable to L&J Center- 126,341 Depreciation current portion 1992 licensing fees 315,205 Long-term debt--urent portion 40,496 Other (16,330) Total curreri liabilities $423,143- $596,634 Increase in debt 293,182 Cash cared forward from 1991 - - $108,524 NOTE AND INSTALLMENT $476,778 $854,663 $736,918 CONTRACTS 17,087 PAYABLE-long-term portion ACTUAL AND PLANNED

LONG-TERM PAYABLE TO LAW AND 1,347,237 USES OF CASH JUSTICE CENTER Mortgage Payment (178,269) Capital Expenditues (60,000) LONG-TERM DEBT 1,390,188 1992 Licensing Fees (315,205) Total liabilities 1,787,467 1,986,822 Real Property Tax Reserve (81,000) Client Security Fund Cash (208,095) FUND BALANCES: Accounts Payable (80,972) (159,933) Unrestricted 129,864 573,172 Accounts Receivable (206,143) 58,283 Restricted: Non-Mandatory revenues (40,189) Client security 96,908 77,576 Bar's support ofL& J Center (110,000) Other 162,647 123,187 Reserves (300,000) Total fund balances 389,419 773,935 UNRESTRICTED CASH AT $ 23,317 $ 108,524 $ 88,649

TOTAL LIABILITIES AND FUND $ 2,176,886 $ 2,760,757 JUNE 30 BALANCES

November 1991 21 UTAH STATE BAR Financial Results and Projections

REVENUES BY SOURCE EXPENSES BY CATEGORY For the Year Ended June 30, 1990 For the Year Ended June 30, 1990

Services (29%)

Licenses (57%) Sections (0%)

Bar Exam (6%) Licensing (2%) Interest (0%) Bar Counsel (13%) ....".,Bar Exam (5%) Sections (7%) ~A Other (3%) ,~#. Meetings (5%) Commission (3%) Services (23%) Administrative (38%)

REVENUES BY SOURCE EXPENSES BY CATEGORY For the Year Ended June 30,1991 For the Year Ended June 30,1991

Services (26%) Licenses (63%)

Bar Exam (6%) Licensing (3%)

Other (0%) Sections (8%) Bar Exam (6%) Interest (I %) Other (1%) Sections (4%) Bar Counsel (17%) Meetings (10%) Administrative (2 i %) Services (17%)

Commission (8%)

REVENUES BY SOURCE EXPENSES BY CATEGORY Estimated for 1992 Estimated for 1992

Meetings (12%) Licenses (69%) Services (3 i %) Licensing (3%)

Bar Exam (6%) Bar Exam (7%)

Interest (I %) Other (0%) Sections (I %) Sections (I %) Administrative (13%)

Bar Counsel (25%) Commission (8%) Meetings (7%)

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Citation Rank(R) Page(P) Jackson. Thomas G.R1 of 2 P1 012 Name: Jackson, Thomas G. City: New York State: New York Position: Partner Firm: Philips, Nizer, Benjamin, Krim & Bailon Address: 40 W. 57th Street, New York, NY 10019 Phone: (212) 977-9700 Electronic Mail: Fax Area Code (212) Phone 841.0597 Born: March 9,1949, New York, NY, U.S.A. Education: University of Virginia, Charlottesville, Virginia, J.D.,1974 Dartmouth College, Hanover, New Hampshire, A.B., 1971, Magna Cum Laude Admitted: New York, 1975 Federal Court, 1975 U.S. Supreme Court, 1978 Areas of Practice: 65% Litigation 5% Administrative law 10% Antitrust 5% Appellate Law 10% Securities 5% Business Law Affiliations: Vilage of irvington (NY) Environmental Conservation Board, Chair, 1981 . Present Vilage of Irvington Cable Advisory Committee, Member, 1978. Present Association of the Bar of New York City, Member, 1975. Present Representative Cases: Penthouse International, LId. v. Superior Court of Los Angeles County, Court of Appeal, 2nd Dis!., 187 CaLRptr. 535, 1982 Rancho La Costa, Inc. v. Superior Court of Los Angeles County, Court of Appeal, 2nd Dis!., 165 Cal.Rptr. 347,1980 ~ Securities Investor Protection Corp. v. Vigman, U.S. District Court for the Central District of Caiifornia, 587 F.Supp. 1358, 1984 United Housing Foundation, Inc. v. Forman, 95 S.C!. 2051, 1975 ~. Abrams v. Community Services, Inc., Supreme Court, Appellate Division, First Department, 429 N.Y.S.2d 10, 1980 COPR. (C) West 1990 No Claim to Orig. U.S. Govt. Works.

Note: Many Professional Profie IIstings contain multiple screens of lnformation. (g 1991 West Publishing Company. 1-9280.5/4-91 I 2671021

November 1991 23 í'!

:1'

Causation and the Judicial Equation i !

!

By Honorable Bruce S. Jenkins

BRUCE S. JENKINS is Chief Judge, United Whatever the "cause," the battle was I havewrite been about asked the subjectto think, of "causation"talk, and States District Court, District of Utah. lost. from the point of view of a trial judge. Prior to assuming the bench, Judge Jenkins According to Franklin, our early Within my allotment of time and space, I practiced law and was active in civic affairs. American scientist; the "cause" was the He was a State_Senator, Minority Leader of will express only the point of view of this absence of the naiL. In a later version, as a the Senate and at the age of 36 became Presi- preface to the maxim, he does say: "A lit- trial judge. I make no pretense to speak dent of the Utah State Senate. for anyone but myself. He is the author of published opinions, tle neglect may breed mischief. . . . " Benjamin Franklin, a person of scien- speeches and essays on a variety of legal sub- Years ago, at a meeting of prosecutors tific bent, in his early best seller, Poor Ri- jects. He is best known in legal circles for his in Las Vegas, a comedian told the follow- chards Almanac, offers the following: opinion in Allen, et al. v. United States, 588 F. ing story. A young man was being tried in For want of a nail the shoe was lost, for Supp. 247 (/984), wherein he found the United a paternity action. Plaintiff through coun- want of the shoe the horse was lost, for States was liable to certain plaintifs for the sel opened. The "facts" were essentially want of a horse the rider was lost, for negligent conduct by the United States of open undisputed. During a party at plaintiffs want of a rider the battle was lost-and all air atomic testing. He has lectured before Bar home, the plaintiff and defendant had gone Associations, Judges, Civic, Professional and for the want of a naiL. into the unlighted garden and found a Academic Groups. He has lectured to Law comfortable spot to give vent to their As far as I know, no one ever inquired Schools, Law Faculties, Judges and Bar Asso- as to why the nail was not in the shoe. We ciations in Third World Countries in Africa. He youthful passion. They had an explicit un- can speculate together that the blacksmith keynoted the Fourth Annual Airlie House Con- derstanding that through the exercise of deliberately left it out; that he carelessly ference on the Environment sponsored by the discipline on his part, seed would never left it out; that it was poorly seated and Standing Committee on Environmental Law of reach egg. But alas, seed and egg con- worked its way out through use; that it the American Bar Association. He also key- joined. Plaintiff asked that the court find was carefully and appropriately seated and noted a nationwide conference on Trying Mass paternity and require support of the child. worked its way out through misuse; that Toxic Torts in San Francisco, sponsored by the Defendant through counsel countered. the blacksmith, against his better judg- American Bar Association. He acknowledged the essential facts re- Judge Jenkins holds B.A. (/949) and Juris lated by plaintiff. There is an additional ment, merely followed the direction of his Doctor (/952) degrees from the University of part to the story. Her mother saw them re- employer to use seven and not eight nails, Utah. He is a member of Phi Beta Kappa, Phi thus effecting a projected materials cost Kappa Phi and Phi Eta Sigma. In 1985, he was pair to the garden. She followed them. Her eyes did not adjust quickly to the dark- savings of 12 Yi%, as well as the labor named Alumnus of the Year by the University of cost from time and motion unspent; or that Utah College of Law. ness. At the very moment when defendant it was removed by some unseen person or Judge Jenkins was born in Salt Lake City, was fulfiling his obligation to ensure that force. Utah. He is married to Peggy Watkins. They seed did not meet egg, concerned mother have four children and six grandchildren. 24 Vol. 4No. 9 stumbled into well-intentioned defendant. from radiation to Rorschach, from pyg- ened use of the power of the state and, The defense was: Plaintiffs mother is mies to PCB. Some say science, then, is a more importantly, the wilingness of most the father of that child. These ilustra- method which makes knowledge. One men to abide by such standards. tions raise wonderful questions concerning finds some content in its ancient character- The consequence to a person of not causation: Cause-in-fact, i.e., scientific ization as "knowledge making." living up to the prescribed standard is by cause? Cause-in-Iaw? But-for? Substantial The prestige accorded scientific no means inevitable. It is not universaL. It factor? Proximate? Foreseeable? Interven- knowledge is derived from the fact that is not mechanical, it is parochial, not only ing? scientific knowledge can usually be dem- in space but in time as well. It makes a All such varations on the theme of onstrated again and again and again. Sci- great deal of difference whether one is in cause concern all of us in our quest to ence seeks universals. Moscow, Idaho, or Moscow, USSR, or make sense out of what we do in the pur- Distiled even further, I suggest that 18th-century or 20th-century America, as suit of "trth" or in the pursuit of "dispute scientific law is descriptive of what is. It is to how we are expected to treat one an- resolution"-indeed, in our common pur- assumed to be universal and capable of other and the consequences of not living suit of "dispute resolution"-indeed, in observation again and again. Scientific de- up to such group-prescribed expectations. our common pursuit of both. scriptions and formulations have evolved My point is this: Atoms are not con- I am to talk about causation from my as scientists have leared more. In con- cerned with how we treat each other. Men location, my perspective. Others are to trast, the laws of nature have not changed. are. Molecules are not concerned with talk about causation from theirs. We are Our knowledge has changed. It has been right and wrong. Men are. A rod of pluto- having a cross-discipline conversation in sharened, focused, refined. Scientific law nium is not concerned with the rod of the hope that we wil each learn some- is mechanical, regular, and value-neutral. Moses. Men are. thing. If "A" goes in, "B" comes out. The se- Let me try to summarize the major dif- Each of us is too old for indirection, so quence is fixed. A body in motion tends to ferences between civil and scientific law let me be direct right from the beginning. stay in motion. Hydrogen and oxygen in as I see them (Table 1). I do so with the Causation in court is not the same as given proportions produce a compound caveat that all summaries are inexact. I do causation in the world of physics, the called water which, at given temperatures so, as well, with the caveat that my sum- world of chemistr, or the world of biolo- and pressures, becomes solid, liquid, or mary as to the law of science is more de- gy. vapor-a process or sequence which is in- terministic than modem thought would The science of law and the law of sci- evitable, neat, regular, and capable of end- suggest. ence are very different. They are different less replication whether II Moscow, in subject. They are different in nature. USSR, or Moscow, Idaho. TABLE 1 They are different in purpose. They are Such wil occur whether Congress, the Law of Science Science of Law different in process. President, a trial judge, or a legislature de- While it is elementar that lawyer and crees or orders otherwise. King Knute can Descriptive of what is Prescriptive of judge and scientist each use the word order the waves to tum back. The waves human conduct "law," Law 1, positive law made by man, won't listen. Universal is not the same as Law 2, natural law, the Civil law, law enforced by group pow- (at least assumed so) Parochial-time observed or discovered regularities of er, at its most basic is concerned with how and location physics or chemistry or biology. While we should treat one another. It is prescrip- Value-neutral Value-rich this is indeed elementary, the two should tive, not descriptive. It is prescriptive of not be confused. conduct-not descriptive of what is. It is Found Made They are often confused by judges and not found, discovered, observed. It is scientists alike. (In deference to my stric- made. It is made by men. It is made by Used by men for Used to prevent or ture of time, I have deliberately omitted men for men. (My use of the word "men" good or ill resolve problems of human conduct reference to such disciplines as econom- is generic and all-inclusive.) ics, political science, psychology, and so- Civil law is concerned with standards ciology, which are labeled science by of conduct by which men, or at least most some enthusiasts, but which lack compel- of them, are willing to live. Civil law is As a trial judge, the causation issue with ling precision of description or prediction. not value-neutral. It is fraught with values which I am confronted is human I have omitted, as well, mathematics on of what is right and wrong and good and causation-what a human being did or did the theory that it is not science, but simply bad and life-affirming and life-detracting. not do, or should have done or should not one of the languages of science.) For example, in various forms, we are told have done. I must determine whether hu- A judge or a jury who "finds" a "fact" by the group-state or nation-to avoid man conduct in some identifiable fashion is differently engaged with a different pur- conduct dangerous to the lives of others. contributed to a damaging consequence to pose than a scientist who "discovers" a In the eyes of some, the ultimate value- another human being, his relationships, or "fact" or "observes" a "fact" or formulates what is important-is life itself, and con- his property. a "scientific law" describing relationships duct which preserves and enhances life is Such human "cause" obviously may re- between "facts" that thereafter may be ver- thought to be important and an appropriate late to the manner in which a human being ified and accepted by others. subject of civil law. deals with materials or products or forces Can we define science? At its broad- The standards found in civil law are about which scientists have a great deal of est, it is simply knowledge. Modem usage prescribed by legislatures, administrative knowledge and a great deal to say. narows the meaning to knowledge of a agencies, courts, and judges, not by The function of a trial judge is to resolve paricular kind. But the kinds are almost nature. These standards are enforced by conflict as to the appropriateness of con- infinitely diverse from viruses to Venus, the power of the group-the use or threat- duct which the parties have been unable to

November 1991 25 resolve for themselves. The trial judge each defines the other. Each gives the entific knowledge more and more be- thus provides a peaceful resolution to an other shape and context. It is how they comes part of the judicial equation con- existing dispute about conduct. He ordi- come together that makes a case-much cerned with "human causation." A good narly has a duty of decision. Civilized like light and shadow on a Rembrandt ilustration of the kinds of elements which paries come to the courts to resolve im- painting make a portrait. The river and the go into a judicial equation finding "human portant disputes about conduct. Others river bank define each other. causation" is a case I tried called Allen v. take to the streets. Scientists must understand the nature of United States. It is found at 588 F.Supp. Litigants in a specific dispute come to a court. Courts are passive. They don't 247. That case, at least in par, is the rea- court because the court is a steward of seek business. They are available. son for my being here. It was an effort on power, and power is needed to vindicate Courts are disinterested. Not the part of a trial judge to meld the meth- their position. Each wants the court to unintenlsted. Disinterested. They have no ods of science with principles of law and stand with him. As to appropriate human axe to grind. They stand apart. public policy and underlying social values. conduct, the judge has the duty of decision Their purpose is dispute resolution. The complaint alleged that each of 1,192 without the luxury of perfect knowledge, In. the dispute resolution process, there plaintiffs had suffered loss through injury i.e., he has the duty to exercise judgment. are useful questions that can be asked in or death resulting from exposure to radio- In deciding questions of human causa- my Case by parties, by attorneys, and ulti- active fallout that drifted away from the tion, before a judge may appropriately say, mately by the court, which can assist in Nevada atomic test site and settled upon "in my opinion," or "in my judgment," he identifying what really is at issue for court communities and isolated populations in must first be able to say, "I understartd." détermination. southern Utah, northern Arizona, and Understanding in a trial setting usually in" Is there a problem? southeastern Nevada. Each claimed loss volves both fact and law. What is the problem? due to radiation-caused cancer or .leuke- Every case, bar none, stars with a story. Is it a problem which can be resolved mia. Each claimed injury resulting from Every story is unique. Thus, every case by the court? (Whose problem is it?) the negligence of the United States in con- stars with a piece of history-a micro- What should the court do about the ducting open-air nuclear testing, in moni- cosm. The court is concerned with "what problem? toring testing results, in failng to inform happened." Witnesses to what happened How should the court do it? persons at risk of attendant dangers from don't view what happened with the same Why should the court do it? such testing, and in failng to inform such eyes. Churchil and Hitler, for example, If court help is suitable, the parties, persons how to avoid or minimize such viewed what happened during World War through counsel, have to give exacting damage. II with different eyes. President Bush and thought as to what and how and why. There were 1,192 plaintiffs, 98 witness- Noriega view what happened in Panama whifè I have talked about "the problem," es, 1,692 documéntary exhibits, 7,000 with different eyes. In 'any case, a court in reality there may be many related sub- pages of testimony, 13 weeks of trial, and may well be asked to decide what hap- ordinate problems awaiting court resolu- 17 months spent in writing an opinion pened and to resolve factual disputes as to tion within the canopy of "the problem." which in typescript ran slightly under 500 what happened, and thus "find" facts es- For example, there may well be questions pages. sential to decision. Such "finding" is not of substantive law, its scope, existence, or Let me read from the introductory re- discovery but resolution, a choice between availabilty because of the passage of time. marks in the case to show you generally Hitler's and Churchill's "trths," a choice There may be questions of disputed the variety of the factors which went into between competing sciences-between fact-a need to find "what happened"- that judicial equation and which can be Ptolemy and Copernicus, for example, as the Churchil-Hitler problem. Indeed, ilustrative of the factors that can enter par of the process of resolving disputes there may be the problem of witnesses into a legal dispute of any complexity. among those who seek the court's help. who claim to know something but see and In a sense this case began in the Disciplined by a record made by others, relate the factual sequence differently. Be- mind of a thoughtful resident of the court is usually limited to the materials cause of their differing points of view and Greece named Democritus some presented in the case or material readily at the difficulty of reproducing World War II twenty-five hundred years ago. In re- hand to assist him in dispute resolution. or percolating groundwater with PCB's sponse to a question put two centu- For a court, just as for litigants, it is not under controlled conditions in the court- ries earlier by a compatriot, Thales, enough to treat facts and law in isolation room, the tools of dispute resolution often concerning the fundamental nature of from each other. A case comes about come from persons-"experts"-who matter, Democritus suggested the when fåêts and civil law converge, touch, claim to know something about World idea of atoms. This case is concerned come together, collde. The facts, "what War II or the characteristics of. toxic- with atoms, with government, with happened," and the law must have a rela- infused percolating groundwater. A wit- people, with legal relationships, and tionship with each other, just as the parties ness tells a court what he knows. He tells with social values. in dispute must have a legally recognized what he knows through testimony- This case is concerned with what relationship with each other. words. A court is ever concerned with how reasonable men in positions of In the civil law tral process, in a very he knows what he knows, how he leared decision-making in the United States real and important sense, one cannot un- it, how he records, stores, recalls, and re- Government between 1951 and 1963 derstand "the facts"- really know them- lates his truth. Every case is an adventure knew or should have known about until one understands the law relating to in truth saying and trth finding. Such is the fundamental nature of matter. conduct, and, paradoxical as it may sound, part, but only part, of dispute resolution in It is concerned with the duty, if one cannot really understand the law relat- the courtroom. Such is part of the judicial any, that the United States Govern- ing to conduct until he understands the equation. With technological advance, sci- ment had to tell its people, paricu- facts. They are interdependent. In a sense, larly those in proximity to the experi-

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November 1991 27 ment site, what it knew or should with a discrete dispute with live paries That can be of great benefit when such is have known about the dangers to and a necessity for decision-disciplined par of the broader judicial equation. them from the government's experi- by a record and the application of rules of Yet many a scientist, because of his ments with nuclear fission conducted civil law. All should recognize that a concentration of effort in a narow and above ground in the brushlands of court's findings of evidentiary fact-"what limited area, can be helpful only in a nar- Nevada during those critical years. happened"-are not fixed in absolute row and limited way. He is sometimes This case is concerned with the terms. Factual determination by judge or characterized by the adage that he knows perception and the apprehension of jury in cases of scientific complexity is more and more about less and less until he its political leaders of international really no different from fact finding in any knows everything about nothing. dangers threatening the United States other case, no matter how "complex" the In trth, some "scientists" who appear as from 1951 to 1963. It is concerned facts might be. "witnesses" do not exemplify the stereo- with high level determinations as to In law, as in science, a decision-maker type of the "objective scientist" interested what to do about them and whether always faces a degree of uncertainty. Un- only in truth and always wiling to change such determinations legally excuse certainty is the very condition which de- his point of view. One of the shocks of the United States from being answer- mands judgment. If knowledge were com- growing up-whether at 15 or 50-is to able to a comparatively few members plete, then description alone would suf- discover how human the scientist can be, of its population for injuries alleg- fice. Dispute would be nonexistent and how opinionated, and what a vested inter- edly resulting from open-air nuclear judgment redundant. est he may have in protecting what he experiments conducted in response to Thus, in the fallout case I noted: claims to know. such perceived dangers. This opinion speaks in terms of What a rough awakening it is for a trial It is concerned with the method and "natural and probable" consequenc- judge when a highly credentialed scientist quantum of proof of the cause in fact es. Substantial "factors" and "things says the world is strctured in one way of claimed biological injuries. It is more likely than not." and another equally credentialed scientist concerned with the passage of time, In the pragmatic world of "fact" says the world is structured in another the attendant diminishment of memo- the court passes judgment on the way. Surely such could happen during the ry, and availability of contemporary probable. Dispute resolution de- age of Copernicus and Galieo, but not in information about open-air testing, mands rational decision, not perfect today's enlightened scientific world. and the application of a statute of re- knowledge. I had that problem in the fallout cases pose. Scientists, particularly physical scien- when one group of scientists said that be- It is concerned with what tists, try to accurately describe the world low a certain level of exposure to radia- plaintiffs-laymen, not experts- and how it works and verify their descrip- tion, no body damages occur. I had an- knew or should have known about tions through demonstration, or at least other group say that at any level of radia- the biological consequences that that part of the world to which they devote tion, damage always occurs-a vitriolic could result from open-air nuclear their energies. It is in the realm of "what debate carried on without resolution for tests and when each plaintiff knew or is" ànd "what happened" and the probabil- more than half a century. It remains in should have known of such conse- ities of it happening again- dispute to this day at Hanford, Chernobyl, quences. prediction-and explanation-that a phys- and Rocky Flats. It is ultimately concerned with ical scientist can be a useful source of A witness is called a witness because he who, in fairness, should bear the knowledge in dispute resolution. knows something. He tells the court or the costs in dollars of injury to those per- Because of the scientist's concentration jury what he knows. There is nothing sons whose injury is demonstrated to of energy and attention, he or she can as- wrong with testing what he knows, how he have been caused more likely than sist the court in looking deeper than the knows it, and whether it is descriptive, ob- not by nation-state conducted open- surface of things. servable, reproducible fact, or his own air nuclear events. All I am saying is what was said by synthesis, school of thought, or educated The record contained historic docu- Thoreau many years ago: guess. The scientist, like the court, often ments, newly declassified internal agency We . . . live this mean life we do deals with probabilties, things more likely memoranda, agency directives, correspon- because our vision does not pene- than not. dence, epidemiological studies, scientific trate the surface of things . . . . Let Orwell talked in Animal Farm of some texts, public information pamphlets, and us settle ourselves, and work and pigs that were more equal than others. testimony of witnesses, ranging from wedge our feet downward through Some scientists are more scientific than those who paricipated in the testing pro- the mud and slush of opinion, and others, and some subjects of study are gram to highly trained and gifted "experts" prejudice, and tradition til we come more amenable to verification and replica- to the surviving claimants themselves. to a hard bottom and rocks in place tion than others-the so-called hard sci- My point is that scientific evidence, which we call reality. Most have not ences. technological evidence, is merely an evi- delved six feet beneath the surface . Obviously, we must use both descriptive dentiary element in the judicial equation . . yet we esteem ourselves wise, science and prescriptive law in preventing as to 1egal causation. While often a neces- and have established order on the and resolving human problems involving sary part, and sometimes even a control- surface. . . . human conduct-how we treat one anoth- ling part, it is seldom, if ever, the only The scientist can assist in revealing re- er. part. ality beneath the surface of the apparent. Dispute resolution in court, at its best, is This is particularlý true in courts of law He or she can sum up years of experience, an educational process involving parties, where the social purpose is dispute resolu- capsulize experience, observation, and lawyers, judge, and jury. In litigation in- tion and where the judge or jury is faced replication in a few pithy abstractions. volving subtle and perhaps contested phe-

28 Vol. 4 No. 9 nomena of nature, the advocate and the the credibility which comes from demon- far, becomes circular and unmanageable. judge must transcend the traditional jargon stration over a period of centuries. Who indeed created God? of the law and acquire at least a modest Such is a different sequence than the In law, we deal with only a par of r fluency in the language of modem science, sequence from nail to battle lost. The first history. We view history by the slice. In i physics, chemistry, physiology, epidemi- sequence is capable of replication. Nail to law, we look back only so far, and we ology, and statistics, particularly when battle lost is not. Indeed, the sequence limit ourselves by what we call proximate dealing with matters of sophistication or seems tenuous at best. Perhaps it merely cause, itself a word with the virtue of matters on a grand scale. expresses Franklin as a poet, a moralizer, vagueness--r the vice of imprecision- To resolve a question of duty-the ex- or a poor observer. by which we give fact finders room to pected or prescribed level of conduct-a John Stuart Mil said "causation" is uni- move and exercise judgment as to human court must at least be in a position to form antecedence. It appears to me that cause. speak the language of risk or have access when we speak of a scientific "cause" we We also provide boundares as to how to someone who can translate such lan- are describing a stage in a sequence of far ahead the blacksmith who fixed the guage for him. experience which stage and sequence has shoe need look to be responsible for future It should be recognized that complex become routinized for the person describ- consequences of present actions. Respon- modem-day litigation, of necessity, be- ing it and is expected to be routine for sibility for the battle lost, we say, is a con- comes more and more a cooperative affair, others. For example, when C, D, E, F, G sequence no reasonable man could ever a common search for the trth of what are always, or almost always, preceded by foresee, and thus, the blacksmith is with- happened. To accomplish that, all in- Condition B or when B, C, D, E, F, G out responsibility even though in that pe- volved should retreat from the metaphor always occur in that order the grouping culiar circumstance the lost battle was an of a lawsuit as a battle, a war, or a game. forms a routine of experience where we actual consequence flowing from the miss- Litigants, lawyers, and scientists should can say that B is a "cause" of C, D, E, F, ing naiL. recognize that a good exposition of what G, or they are described as its effects. The court, in resolving questions of risk, , happened and a good explanation as to There is an invariable connection, or at of duty, of cause, and of responsibilty, why enables a legal fact finder to "find" least a high probability thereof. Science must take advantage of the intellectual re- with understanding. assists the court by identifying connec- sume of past experience and prediction Beneath the surface of the fallout case, tions between Event A and Event B, and provided by science, but must always re- as in most cases involving bodily hurt, the level of connection, such as "certain," member that such resume is only part of there is a fundamental principle, a time- "probable," "possible," or even "extremely the judicial equation. The purpose of the honored rule of law, an ethical rule, a remote." court is to resolve disputes between per- moral tenet: Legal causation-in short, "human sons or groups of persons as to how they The law imposes a duty on every- cause," where a human actor did not live should treat one another. one to avoid acts in their nature up to required conduct in relation to other It is in that context that the rod of pluto- dangerous to the lives of others. human beings, breaching his law-imposed nium and the rod of Moses have a unique As I said in the Allen case: duty-is appropriately vague and elastic. fusion all their own. The more paricularized rules of It is given specific meaning by a specific In the judicial mix of expected conduct, negligence and proximate cause as a factual context in time and in space and duty, risk, human values, hurt, in the finite basis for liability which are applied by the exercise of our own best judgment. context of time and space, the ingredients in the body of this opinion are There are infinite human situations may have variable weights and values in rooted in this principle of duty. In from the rudimentary "He hit me; I hurt; no way amenable to precise measurement. this case, as in any other case in tort make him stop; make him pay"; to "The "A little neglect" in how we treat one an- law, the answer to the ultimate good doctor took out my right ovary-it other, as observed by Franklin, may breed question: "Who should bear the bur- was my left ovary which was bad; make "mischief." Unlike some subjects of sci- den of the risks created by the de- him pay"; to "My child died of leukemia ence, in dealing with classes of human fendant's conduct?" It is ultimately in my ars bleeding from eyes and ears; conduct, we must always remember we a question of policy and of public he was exposed to fallout; make them have likenesses, but never identity. values. pay"; to "I have cancer of the stomach; I We strain for certainty, simplicity, and For example, the unspoken policy in our have drawn water from my well for 25 order in an infinitely complex and dy- Las Vegas illustration of ascribing pater- years; up on the hil a miling operator namic universe. In doing so, we often fail nity to the actual but unintended father. dumped waste for the first 15 years I lived to distinguish between those things which Now in science, the chain of sequence, here; it seeped into the aquifer which we directly experience, see, feel, hear, the chain of correctness of observed feeds my well, and I am now a dead wom- taste, smell, measure-"facts" we events may be as long as or longer than an; make him stop; make him pay." Each experience-from those "facts" we infer. the chain of Franklin's nail to Frankin's situation may require a court to make a Each is a form of knowledge we say we battle. In the realm of scientific experi- judgment about human conduct in light of know. We must stay constantly aware of ence, we have observed--xperienced-a the routine of experience involving Event the nature of that which we say we progression from Fact One through Fact A and Event B. "know." Ten, and each time One appears, Ten fol- The word "cause" even in its scientific For example, we "know" of the exist- lows. Our experience may be built upon sense can be equally elastic. From whence ence of the atom. We "know" of the exist- the experience of others as well, encapsu- came Franklin's nail One can find prece- ence of gamma rays. We have never seen lating hundreds of thousands or milions dent, ancestr, connecting the whole se- an atom or a gamma ray. We infer that of instances of priority in time, and ever- quence of history-worlds without end. atoms exist. It is a convenient abstract present connection, and we treat such with The concept of cause, if traced back too model which provides a convenient, co-

November 1991 29 herent, and consistent explanation of an The ancient sage HileL, when asked general semantics (4th ed.). Lakevile, CT: In- immense collection of perceived effects, about human conduct, said there is but one ternational Non-Aristotelian Library Publish- including belatedly observed effects to the rule. He called it the whole law. He said: ing Co. soft tissues of human beings by unstable "What is hurtful to thee, do not unto an- . Mackie. (1980). The cement of the universe: atomic offspring. other." "The rest," he said, "is commen- the study of causation. New York: Oxford Uni- It is in such a problematic setting that tary." versity Press. the judge, conscious of the need for deci- Indeed, it is. . Shapley, Rapport, & Wright. (1958). The sian, may find "cause" or instruct a jury as treasury of science. New York: Harper & to "cause," human cause-a little References Brothers. mischief-not a declaration of eternal The literature of causation is endless. Much of truth, but of what appears reasonable and it is formless. As a trial judge, I have found the Law Review Articles rational under all of the circumstances in following to be helpful to me in my work and . Calabresi, G. (1975). Concerning cause and the record on the imprecise scale of more in the preparation of this essay. the law of torts. University of Chicago Law likely than not. When a fact finder delivers Books Review, 43, 69. a "ver-dict"-says the "truth"~such is . American Bar Association. (1984), Toward a . Schwartzman & Christoffel. (1985). Allen v. done as par of the process of resolving a jurisprudence of injury: the continuing cre- The United States of America: The "substan- dispute as to human conduct, helping peo- ation of a system of substantive justice in the tial" connection between nuclear fallout and ple understand how they should treat one American tort law. cancer. TOURO Law Review, 1,29. another-a vindication of duty-and with . Barzun, J. (1964). Science: the glorious . Weinrib, E. J. (1987). Causation and Wrong- full recognition that such "ver-dict" may entertainment. New York: Harer & Row. doing. Chicago-Kent Law Review, 63,407. be as transient as Ptolemy's geocentric . Green, L. (1977). The litigation process in universe or the medically prescribed tort law (2nd ed.). Indianapolis, New York: Treatise Bobbs-Merrill. bleeding of George Washington for a bout . Restatement (second) of torts. (1965). with the flu. . Hart, H.LA., & Honore, T. (1985). Causation in the law. (2nd ed.). New York: Clarendon Address reprint requests to: Han. Bruce S. Jenkins. Chief Judge. Room \ We remain uncertain stil of our scien- 251. U.s. District Court, District of Utah, Salt Lake City. UT 84101. tific certainties. Organized experience put Press. to the test is ever enlarging and ever being . Hutchings, E., Jr. (1959). Frontiers in Utahim refined. Yesterday's science may be con- science. New York: Basic Books. firmed or modified by today's experience. . Korzybski. (1958). Science and sanityn That is, of course, the method of science. introduction to nonAristotelian systems and Probability theory, induction, and statisti- cal inference are as readily welcome in the courtroom, perhaps more so, than in other social institutions. Human conduct, and thus human respon- sibilty for conduct, is the concern. Dis- How Many Days pute resolution is the mission. A peaceful and just society is the goal. A pragmatic Did Your Firm Lose? rationalism is the process, all in search of the ideaL. Franlin's nail and Oppenheimer's 680r26? fission.produced isotopes have much in common. They are things. They are arti- In a recent survey of Salt Lake area law fmns an facts of science. average of twenty-six work days were mi by How men use things in reference to attorneys due to sick chld cae las year. In practices of 6f or more attorneys, other men is the subject of law-duty, the average number of days lost was sity-eight. conduct, human values, public policy, re- It's a fact, 44% of attorney's spouses work outside the home. It is no longer sponsibility. The nature and characteristics of the things used are the subject of sci- possible for your associates to leave their personal problems at home - beus ence, at least hard science. someone's rarely home to solve them. Intentionally using a thing to har an- When it costs your firm more to have your asociates other, knowingly using a thing to har absent than to be producing for the fi, you nee to another, using a thing in conscious disre- consider HOME-SICK, an emergency child care gard of risk of har to another, using a service of Helpers West. The service is designed to thing without taking care which harms an- provide your associates an in-their-home child care other, are all ways of stating human action alternative when their children are too il to attend said in appropriate context to "cause" the harm. The emphasis is on a breached duty regular day care or schooL. The firm benefits beuse of conduct designed to minimize harm to they have a productive asociate at the offce instead of others. It is duty which looms large in the a costly absenteeism. judicial equation. A little mischief may be enough to find legal cause and thus to im- HELPERS WEST PH. 1-800-658-8721 pose responsibility. Since 1984

30 Vol.4No.9 THE BARRISTER

What Do Your YLS Dollars Buy? Plenty! By James C. Hyde Treasurer of the Young Lawyers Section, Utah State Bar

I hate to sound like a late night car from the Young Lawyers Division of the YLS has received some contributions and advertisement, but with the Young Lawyer ABA. That reputation will continue this has earned income through CLE seminars. Section programs you get your money's year under the direction of the YLS execu- Combined, the budgeted funds from worth and a whole lot more! tive council and with the support of its the State Bar, the grant monies, other con- Did you know that for about $75 the members. tributions and income from CLE seminars Utah Young Lawyers Section (the "YLS") On June 24, 1991, the Utah Supreme provide the YLS with a budget of approxi- provides a hot evening meal to all of the Court handed down a Minute Entry which mately $36,400 for fiscal year 1992. Of families at the Homeless Shelter? Were stated that the Utah State Bar could not that total budget, about $29,400 wil be ex- you aware that for $6 the YLS wil give a allocate funds from mandatory bar dues pended for the community service, legal rape victim a comfortable sweat suit to for the YLS. Fortunately, after further re- education and membership support pro- wear home from the hospital instead of the view, the Court amended its position un- grams of the YLS; the balance of the funds thin paper gown she would otherwise have der an Amended Minute Entry dated July wil be used for administrative expenses to wear home? Did you know that for 23, 1991, stating that the Bar could fund and travel expenses to ABA sponsored about $150 the YLS purchases hundreds the YLS with mandatory bar dues. With- leadership training and program idea work- of informational pamphlets about the law out the funds from the Bar the YLS would shops. and the legal system and distributes them certainly be substantially disabled; its This year a new funding source is on to the general public on National Law projects would be drastically decreased the horizon for the YLS. In cooperation Day. And, did you know that for around and the number of active young lawyers with the Utah MCLE Board, the YLS wil $1,200 the YLS wil print and distribute who make the programs successful would sponsor the mandatory CLE classes that all thousands of copies of a pamphlet it pre- dwindle. The Supreme Court's authoriza- new admitees to the Bar are required to pared to help schoolteachers understand tion for funding the YLS and its recogni- attend. Starting in November of 1991, the the process for and their legal rights con- tion that the YLS is a necessary and pro- new admitees are required to attend 12 of cerning the reporting of child abuse situa- ductive organization wil benefit the com- 18 different CLE courses that are designed tions? munity, the Bar and all young lawyers in to give the new lawyers the basic skils and These are only a few examples of the the State. knowledge to practice in various areas. For many community service and legal educa- The major source of funding for the its participation in the program, the YLS tion programs that the YLS successfully YLS is from the Utah State Bar. For fiscal wil receive a portion of the proceeds. organizes and operates on a modest budget year 1992, the YLS' budgeted funds from These funds wil be added to the YLS bud- which is only a fraction (1.06%) of the the State Bar are approximately $15,000. get for use by program committees of the entire budget of the Utah State Bar. With Additionally, several program committees YLS. thousands of volunteer hours from young of the YLS (specifically the committees On behalf of the YLS, I would like to lawyers throughout the State as its stimu- for Needs of the Elderly, Needs of the thank the Utah State Bar and the Supreme lus, the YLS will convert its funds into Children, Bil of Rights, and Diversity in Court for their support of the YLS and its approximately 25 different community the Legal Profession) have applied for and purposes. Without it the YLS would at service, legal education and membership received grants for their programs from least be ineffective and perhaps nonexist- support projects. Over the years and the ABA and IOL T A. The grants for fiscal ent. Most important, however, I would like through the hard work of past officers and year 1992 total approximately $19,400, of to thank, in advance of their good works, members, the YLS has earned a reputation which $12,000 is a grant given jointly to the young lawyers of the State who wil of being one of the most efficient and pro- the Women Lawyers of Utah and the YLS enable the YLS to successfully carry out ductive sections of the Bar. Indeed, for committee for Diversity in the Legal Pro- its community service, legal education and several consecutive years the YLS has re- fession from IOLTA for the production of membership support objectives. ceived national recognition for excellence a videotape about domestic violence. Also,

November 1991 31 Upcoming Bil of Rights Events The show dealt with questions ranging from The Bil of Rights committee of the whether children make believable witnesses Young Lawyers Section of the Utah State to the tendency of child witnesses to change Bar has recently produced 350 Teacher's- their story. Hornak is a member of the Spe- Resource Manuals on the Bil of Rights. ê8 cial Victim Team of the Salt Lake County The manuals wil be made available to Attorney's office which handles prosecution high school and elementary schoolteach- of all sexual abuse and rape cases as well as A Lawyers ers throughout the state to coincide with all cases involving child physical abuse and the bicentennial of the Bil of Rights on child homicide. Professional December 15. The manuals include high school social studies materials, teaching Young Lawyers Needed for Liability program plans, and role play materials for such Domestic Relations Program events as mock trials and mock school The Salt Lake County Bar and the Utah . . . sponsored by board hearings. Michelle Mitchell and State Bar Young Lawyers Division invites Nancy Matthews wil be making the man- all young lawyers to paricipate in the Joint the Utah State Bar uals available to teachers. Domestic Relations Program. This program Members of the Young Lawyers sec- is set up so that private attorneys can assist tion can paricipate in the Bil of Rights Legal Aid and Legal Services with their do- celebration by volunteering to speak at mestic relations case load. Cases are schools across the state. Anyone inter- screened by the volunteer attorney at Legal ested should contact Gordon K. Jensen at Aid or Legal Services. All attorneys who 964-8228. sign up for the program wil be given a copy As par of a plan to generate interest of the Domestic Relations Training Manual among educators in both programs, the which wil be of great assistance in handling I\WNS ßUßDICf Young Làwyers wil have a booth at the a domestic relations case. This manual in- HUN,TEI Utah Education Association (UEA) con- cludes forms, information about the statutes vention on October 10 and 11. and is a basic guide to handling a domestic The Bil of Rights wil also be com- relations case. This manual is also available memorated in a special concert by the from Legal Aid and Legal Services for 2180 South 1300 East, Suite 500 Utah Symphony on the 6th and 7th of De- $25.00. Any attorney who is interested in Salt Lake City, Utah 84106/(801) 488-25 cember. The Symphony wil perform a volunteering to assist with a case or who specially commissioned piece by Morrs would like a copy of the Domestic Relations Rosenzweig entitled "Concord" as well as Training Manual may call Rex W. Olsen at INVESTIGATIONS Aaron Copeland's "Lincoln Portrait." The Legal Aid Society of Utah, 328-8849 or cost of the concert is being underwritten Anne Milne at Legal Services, 328-8891. - NATIONWIDE SERVICE - by the George S. and Dolores Dore Ec- . Skip Tracing & Missing Persons cles Foundation. People's Law Seminar . Asset & Background Checks For further information on Bil of The Law-Related Education Committee . Nationwide Process Service Rights activities contact Keith A. Kelly at of the Young Lawyer's Section is again . Corporate & UCC Searches 532-1500 or Lorre Lima at 265-5520. sponsoring the People's Law Seminar. The . DMV & Driving Records program consists of six weekly lawyer- . Civil Litigation & Judgements AOP Conference Set for conducted seminars. The seminars began at . Real Propelty Searches April 3-5, 1992 Bryant Intermediate School on Tuesday, . Bankruptcy & Liens The Yarow Hotel wil be the setting October 8, 1991 and wil be held every . Court Records Research for the Rocky Mountain Affiliate Out- Tuesday night through November 12, 1991. . Trial Preparation reach Project of the Young Lawyers Sec- The weekly sessions run from 7:00 p.m. un- . Recorded Witness Statements tion of the American Bar Association on til 8:30 p.m. The seminars are designed to . Nationwide Public Records April 3-5, 1992. Paricipants in Young educate the public on their rights and duties . Video Surveillance Lawyers Sections from the Rocky Moun- in specific areas of the law including the tain states wil be attending the confer- judicial system, consumer credit, wils and We guarantee professional service ence which wil consist of both seminars estates, business organizations, landlord ten- and competetive rates. and social events. All members of the ant law, and domestic relations. Mark R. Young Lawyers Section are invited to at- Gaylord coordinates the program. Kim M. Local (801) 261-8886 tend. For more information contact Rich- Luhn, Michael Drake, Bret Jenkins, Gary FAX (801) 261.8858 ard A. Van Wagoner at 521-9000 or Henrie, Mark Webber, and Shannon Clark Toll Free (800) 748-5335 Larry R. Laycock at 533-9800. are seminar presenters. Young Lawyer Gives Talk on Child Credibilty On August 27, Deputy County Attor- ney Kimberly K. Hornak appeared on DataTrace. Investigations, Inc. KUED television to discuss the reliability Utahim Scott L. Heinecke and credibility of children as witnesses. P.O. Box 57723, SLC, UT 84157

32 Vol. 4 No. 9 l

Utah Bar Foundation Elects New Officers Hon. Norman H. Jackson, Ellen M. Maycock and James B. Lee are the newly elected officers of the Utah Bar Foundation.

il i

I ,

Hon. Norman H. Jackson Ellen M. Maycock James B Lee Hon. Norman H. Jackson begins his Ellen M. Maycock begins her first James B. Lee begins his first term first term as President. He has served on term as Vice President. Ms. Maycock as Secretary/Treasurer. Mr. Lee was the Board of Trustees since 1982 and as has been a Trustee of the Bar Founda- elected as Trustee to the Utah Bar Vice President since 1984. He is one of tion since 1987 and has served as Foundation in 1990. He has been the founding judges of the Utah Court of Secretary /Treasurer since 1990. Ms. President at the Salt Lake City firm of Appeals, a member of the Board of Ap- Maycock is a partner at the Salt Lake Parsons, Behle & Latimer since 1979. pellate Judges and Chair of the Appellate City law firm of Kruse, Landa & Among his many Bar activities, he Courts User Group. Currently, he serves Maycock. She received her Juris Doc- served as President of the Utah State as President of American Inn of Court I tor Degree from the University of Bar 1977-78, President of the Salt (BYU). Utah Law School in 1975 as a mem- Lake County Bar Association 1968-69 He received Bachelor's and Master's ber of the Order of the Coif, and and on the Utah State Bar Commis- Degrees from B.Y.U. and a Juris Doctor served as editor-in-chief of the Utah sion from 1971 to 1978. Degree from the University of Utah. At Law Review in 1974-75. Mr. Lee graduated from the U.s. the time of his judicial appointment, Among her many activities for the Miltary Academy at West Point in Judge Jackson was senior partner in the Utah State Bar, she is currently Chair 1952 and received his Juris Doctor Richfield law firm of Jackson, McIff and of a Disciplinary Screening Panel, a Degree (with honors) from George Mower. member of the Supreme Court Advi- Washington University Law School in Previously, Judge Jackson served on sory Committee on Rules of Evidence 1960. the Utah State Bar Commission, Board of and is a Master of the Bench of the A. He is currently President of the Visitors at J. Reuben Clark College of Sherman Christensen American Inn Utah Foundation and a member of Law, Board of Directors of Utah Legal of Court i. She has served on the Ex- the Fellows of the American Bar As- Services and the Utah Air Travel Com- ecutive Committee of Women Law- sociation. Among his many Bar and mission. yers and in 1988 received the Distin- community accomplishments and A former U.S. Air Force officer, guished Lawyer for Service to the Bar contributions, he received the Utah travel agency owner and cowboy, Judge Award. She also serves as a member State Bar Distinguished Lawyer of the Jackson remains active in Jackson Cattle of the Board of Directors of the Year Award in 1988 and the Distin- Company headquartered in Kanab. After Alumni Association for the Univer- guished Service Award from the En- court and meetings, he and his wife, sity of Utah and the College of Law ergy and Natural Resources Section Ruth, like to retreat to their mountain Alumni Association. for the Utah State Bar for 1989-90. home at Sundance. They are the parents Ms. Maycock and her husband Mr. Lee and his wife and four chil- of five children and grandparents to a enjoy outdoor activities and traveling dren have been avid river runners for dozen grandchildren. with their 4 year old daughter. the past eleven years. Utahim

November 1991 33 CLE CALENDAR

PLEASE NOTE: As of November 1, you only TIME: 8:00 a.m. to 5:30 p.m. PRACTICING ADMINISTRATIVE have 61 days (44 business days) LEFT to meet November 7 LAW IN UTAH- your Mandatory CLE requirements. We 8:00 a.m. to 4:30 p.m. Five Years Since UAPA thought you might want to know this. November 8 This seminar is being co-sponsored with the Western Conference on Administrative RICO A PRACTICAL SEMINAR PROFESSIONAL Law and the Administrative Practice Section A live via satellte seminar. This seminar RESPONSIBILITY: REFORMS- of the Bar. This conference deals with five explains the fundamentals of RICO, both EST A TE PLANNING & years of agency, private practice and judicial civil and criminal, and explores how this stat- FAMILY COUNSELING experience in Utah dealing with the Utah Ad- ute, designed for a specific law enforcement A Probate and Estate Planning Section ministrative Procedures Act and applying the purpose, has altered the legal landscape and Luncheon. new law to practicing administrative law in changed the practice of law. The speakers CLE Credit: 3 hours-ETHICS Utah. This is a practical "nuts and bolts" con- will provide a general overview and a more DATE: November 12, 1991 ference useful to every lawyer and state in-depth explanation of how RICO has im- PLACE: Utah Law & Justice Center agency in Utah. pacted specific practice areas. FEE: $35 CLE Credit: 7 hours CLE Credit: 6.5 hours TIME: 12:00 noon to 3:00 p.m. DATE: November 21,1991 DATE: November 5,1991 PLACE: Utah Law & Justice Center PLACE: Utah Law & Justice Center SECTION 401(a)(4), 401 (K) AND 401 FEE: $120 FEE: $185 (plus $9.75 MCLE fee) (M) FINAL REGULATIONS TIME: 8:00 a.m. to 5:00 p.m. TIME: 8:00 a.m. to 3:00 p.m. A live via satellite seminar. This seminar anticipates the release of the final regulations LEGAL ASSISTANTS THE MILD TO MODERATE package under Internal Revenue Code Sec- ASSOCIATION OF UT AH/UT AH BRAIN INJURY CASE: tion 401 (a)(4). If released, they will be the STATE BAR WHAT THE ATTORNEY focus of this program, featuring a discussion ANNUAL SEMINAR NEEDS TO KNOW on qualified pension and profit-sharing plans. This is the annual presentation co- This seminar is designed to provide basic, CLE Credit: 4 hours sponsored by LAAU and the Utah State Bar but critically important, medical and psycho- DATE: November 12,1991 each year. More information wil be available logical information necessary to understand PLACE: Utah Law & Justice Center on this seminar at a later date. and prepare a mild to moderate brain injury FEE: $150 (plus $6 MCLE fee) DATE: November 22,1991 case. Plaintiffs attorneys sometimes fail to TIME: 10:00 a.m. to 2:00 p.m. PLACE: Utah Law & Justice Center recognize the seriousness of the minor to mild brain injury case, but do not have the ETHICS: CRIMINAL APPELLATE PRACTICE ISSUES tools to adequately evaluate it. Defense coun- INVESTIGATIONS AND THE A Family Law Section luncheon. sel, on the other hand, may be unable to dif- CIVIL PRACTITIONER CLE Credit: 1 hour ferentiate the legitimate case from the exag- This seminar, cosponsored by the Utah DATE: November 22, 1991 gerated one. The information presented in Association of Criminal Defense Lawyers, PLACE: Utah Law & Justice Center this seminar wil help attorneys better pre- will involve a panel discussion of issues re- FEE: Call for reservations pare their cases so that the legitimate needs lated to criminal investigations of corporate TIME: 12:00 noon to 1:00 p.m. of the head-injured will be advanced. clients and clients involved in civil litigation. CLE Credit: 16 hours Some of the issues to be addressed include TITLE INSURANCE BEYOND DATE: November 7-8, 1991 assertions of privileges and conflcts of inter- THE BASICS PLACE: Utah Law & Justice Center est. Panelists wil include state and federal A live via satellite seminar. This program FEE: $345 prosecutors, criminal defense attorneys and is designed to build on the attorney's basic TIME: 8:00 a.m. to 5:00 p.m. each civil practitioners. knowledge of title insurance in order to allow day CLE Credit: 3 hours-ETHICS him to effectively represent his or her client at DATE: November 13, 1991 a more advanced level in commercial transac- 17TH ANNUAL TAX SYMPOSIUM PLACE: University Park Hotel tions as well as specialty situations. This seminar has confirmed some out- FEE: $50/$65 CLE Credit: 6.5 hours standing, nationally known speakers again TIME: 6:00 p.m. to 9:00 p.m. DATE: December 3,1991 this year covering a wide range of topics. PLACE: Utah Law & Justice Center There wil be general session each morning EMPLOYMENT LAW I FEE: $185 (plus $9.75 MCLE fee) with concurrent sessions in the afternoons. This is a New Lawyer CLE workshop and TIME: 8:00 a.m. to 3:00 p.m. This allows participants to select the subjects is open to general registrations on a space that appeal to them and wil be most useful in available basis. This workshop will cover ba- HOW TO TRY A their particular area of practice. All sessions sic employment law issues. FAMILY LAW CASE are designed to provide updates on tax plan- CLE Credit: 3 hours A live via satellite seminar. This course ning ideas and the latest information on tax DATE: November 18, 1991 wil teach you how to strengthen the skills law changes. PLACE Utah Law & Justice Center that are the keys to success in trying cases CLE Credit: 15.5 hours FEE: $30 welL. It will teach you how to try a family law DATE: November 7-8, 1991 TIME: 5:30 p.m. to 8:30 p.m. case from preparation to final submissions. PLACE: Salt Lake Hilton CLE Credit: 6.5 hours FEE: Call DATE: December 4, 1991

34 Vol. 4 NO.9 PLACE: Utah Law & Justice Center FEE: $190 (up to 11-22-91) RAINMAKING: FROM PROSPECTS FEE: $185 (plus $9.75 MCLE fee) TIME: 1:00 p.m. to 5:00 TO CLIENTS TIME: 8:00 a.m. to 3:00 p.m. p.m. December 6 This course is designed for attorneys, in 9:00 a.m. to 5:00 p.m., De- sole, small and large firm practices, who LITIGATION TECHNIQUES FOR LE- cember7 want the most powerful strategies and tech- GAL ASSIST ANTS niques available in order to maximize their A live via satellite seminar. HOW TO ATTACK AND DEFEND THE abilty to attract clients and keep them. If the CLE Credit: 4 hours DEBT DEAL GONE WRONG development and maintenance of your prac- DATE: December 5, 1991 A live via satellte seminar. tice in this changing legal marketplace is a PLACE: Utah Law & Justice Center CLE Credit: 6.5 hours priority, this program is for you. FEE: $150 (plus $6 MCLE fee) DATE: December 10, 1991 CLE Credit: 8 hours TIME: 10:00 a.m. to 2:00 p.m. PLACE: Utah Law & Justice Center DATE: December 16, 1991 FEE: $185 PLACE: Utah Law & Justice Center CLE FOR THE GENERAL (plus $9.75 MCLE fee) FEE: $115 PRACTITIONER TIME: 8:00 a.m. to 3:00 p.m. TIME: 8:00 a.m. to 5:30 p.m. A one and one-half day CLE Institute geared to the needs of sole practitioners and MAKING THE SYSTEM WORK - EMPLOYMENT LAW II attorneys in small offices will be co- BANKRUPTCY SEMINAR This is a New Lawyer CLE workshop and sponsored by Westminster College and the This seminar is part of the continuing se- is open to general registrations on a space Utah State Bar. The Institute offers 12 CLE ries offered by the Bankptcy Section. Bar- available basis. This workshop, a continua- credits (3 of these in ETHICS) in one Friday bara Richman, Chapter 13 Trustee, is the pre- tion of November's wil cover basic employ- afternoon and all day Saturday session. Other senter for this program. We expect a strong ment law issues. topics include appellate procedures; attor- turnout for the program so register early. CLE Credit: 3 hours ney's title guaranty fund; limited liability CLECRED- DATE: December 18, 1991 companies; juvenile, employment, family IT: 2 hours PLACE: Utah Law & Justice Center and collections law; and, implementing com- DATE: December 12, 1991 FEE: $30 puters in the law office. Call 488-4159 for PLACE: Utah Law & Justice Center TIME: 5:30 p.m. to 8:30 p.m. registration information. FEE: $25 CLE Credit: 12 hours (3 in ETHICS) TIME: 12:00 to 2:00 p.m. DATE: December 6-7,1991 PLACE: Westminster College 1840 S. 1300 E. Salt Lake City

1------I Do the Judge and Jury Really Understand? I

I CLE REGISTRATION FORM Make a point they will remember with: I Professionally Prepared Courtroom TITLE OF PROGRAM FEE I Exhibits and Displays. 1. I 2. I YEARSI919'O~-~ )¡¿?! i Make all checks payable to the Utah State Bar/CLE Total Due Name Phone ~~~í /~:Cl; /~ A Address City, State, ZIP \1-.,~ ~-- ,,-'-, ~:: i \~M~ Bar Number American Express/MasterCardNISA Exp. Date Create more understanding by utilizing: Signature . Enlarged documents - up to 40" x 84" . Multi-layered exhibits for presenting consecutive points in an argument Please send in your registration with payment to: Utah State Bar, CLE Department, 645 S. 200 E, Salt Lake City, UT 84111. . Precisely executed graphs, charts and statistical exhibits The Bar and the Continuing Legal Education Department are working with Sections to - also available with color for added emphasis provide a full complement of live seminars in i 99 i. Watch for future mailngs. Registration and Cancellation Policies: Please register in advance, as registrations are . Mounted photographs with interchangeable velcro attachments taken on a space-available basis. Those who register at the door are welcome but cannot . Custom designed exhibits of all kinds - consultation available always be guaranteed entrance or materials on the seminar day. If you cannot attend a seminar for which you have registered, please contact the Bar as far in advance as possible. . Giant photographic enlargements . VHS video editing No refunds will be made for live programs unless notification of cancellation is received at Rapidandiiccuiale, P,olelSlonala,apliicA,ls For further information call: least 48 hours in advance. ServIces. NOTE: It is the responsibilty of each attorney to maintain records of his or her atten- Dnlgn lIu!l.alion dance at seminars for purposes of the two-year CLE reporting period required by the Utah Typeulting 533.0435 . Layoul Mandatory CLE Board. 662 South State Street. Salt Lake City OVen11\ltiT :::::;:"" TIMELY DELIVERY ,~i!)/!,j~I¡'Íjf,ll"t ::::;;.;,.... L ______~ \¡~J1J"; VHSVldcoServlcei CONFIDENTIALITY November 1991 35 For information regarding classified advertising, to building for both clients and staff. Call 272- tance with a large case or deadline. If you don't, please contact Mary Munzert at 531-9095. 1013. call today. More time for you, savings to your Conveniently located next door to Bar Office. client. Clerks Pro Tern, 278-4574. BOOKS- SOUGHT Ground floor includes 2 private offices and re- Small Office Practitioner to represent out- Utah and Pacific Digest first edition set which ception area. Parking and utilities furnished; of-state finance company with Domestication of includes all cases reported in Utah Reports 1850- some furniture optionaL. 655 South 200 East, 532- Judgments and execution of debtors assets. Reply 1931 and Pacific Reporter Volumes 1-300. Call 1150. Reasonably priced. Managing Partner, Box 2524, Bala Cynwyd, P A Gwen at (801) 532-1500. 19004. -POSITION SOUGHT Your time and your client's money-your two -OFFICE SHARING/SPACE A V AILABLE Attorney (5 years), Admitted to Utah Bar. most valuable resources. You're wasting both if Attractive office and location in Salt Lake City Seeks appropriate position. Experienced in sev- you don't delegate basic legal tasks. Clerks Pro with two well-established practitioners. $440 per eral areas of personal injury and commercial liti- Tern responds to demands for research, document month includes phones, reception services, pho- gation, including products liability, motor vehi- drafting, cite-checking and other jobs, performed tocopies, conference-room use and parking. Sec- cle, premises liability, assault and battery, wrong- to your specifications and on your schedule by an retarial, FAX and telex services are available, if ful termination, and civil rights. Wiling to de- experienced J.D. Have a clerk? Get major case or desired. Call us at (801) 487 -7834. velop expertise in other areas. Reply to: David deadline support from Clerks Pro Tern. Can't af- Office space for attorney. Highly attractive ap- James, 476-7643. ford a clerk? Clerks Pro Tern performs work at pearance. Downtown tower. All amenities. Some - no cost to you, and your clients pay less than overflow work. $550 a month. Call Teresa at 328- SERVICES A V AILABLE your rate for top-quality work. Free first half hour 4333. European Defendant? We assist all phases of of legal support. Clerks Pro Tern, 278-4574. Choice office sharing space for rent in beauti- trial preparation, tracing assets, execution of ful, historic building in Ogden, Utah. Several of- judgments against European defendants. Dennis -MISCELLANEOUS fices available. For information, please contact Campbell, Member Iowa and New York Bars, 15 Discontent?? Non-practicing attorney and ex- (801) 621-1384. years' practice Europe, active 16 European juris- algebra teacher have found refreshing way to fi- Newly finished, deluxe, professional office dictions. Salzburg, Austria. Facsimile 43 (662) nancial independence without the stress, politics space for two attorneys and staff. Approximately 432628. Available consultation Salt Lake City, 5- or hassles. Seeking 2-3 burned-out or bored attor- 1,300 square feet, 7821 South 7th East. Space 6 November 1991, Marriott Hotel (801) 531- neys to diversify into our business on a part-time includes two private offices, reception area, con- 0800. basis. Send resume to: The Paradigm Group, ference room, library, file storage, and much Free half-hour of legal support. Clerks Pro 9390 Research Blvd., Suite 400, Austin, TX more. Convenient parking immediately adjacent Tern will perform your research, drafting, etc., to 78759. your demands. If you have a clerk, call for assis- elta delivers SweetS solutions. First

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Quick access to and from 1-80 (801) 261.8006 Walkg distance to new Nordstrom Rack, Olive Garden, ShopKo, Red Lobster, and Cinemark Theatres First Security For fuher inormation ~ Delta Bank,. call Stanley B. Smith Environmental Corporate Real Estate 350-5890 W.. Consultants, Inc. Bank Properties Division 2100 South 1095 East 36 Vol. 4 NO.9 ., r- I

UTAH STATE BAR 1991-1992 EXECUTIVE COMMITTEE

RANDY 1. DRYER JAMES Z. DAVIS H. JAMES CLEGG President-Elect President Commissioner 201 South Main Street, #1800 1020 First Security Bank Building 10 Exchange Place, 11 th Floor P. O. Box 11898 Ogden, Utah 84401 Salt Lake City, Utah 84145 Salt Lake City, Utah 84147 621-0713 . FAX 392-6068 322-9159 . FAX 363-0400 532.1234' FAX 536-611 BAR COMISSIONERS

DENISE A. DRAGOO JAN GRAHAM J. MICHAEL HANSEN DENNIS V. HASLAM GAYLE F. McKEACHNIE 215 South State Street, #1200 236 State Capitol Bldg. 175 South West Temple, Suite 700 175 West 200 South, Suite 4000 363 East Main Street P. O. Box 510210 Salt Lake City, Utah 84114 Salt Lake City, Utah 84101 Salt Lake City, Utah 8410 Vernal, Utah 84078 Salt Lake City, Utah 84151 538-1874 . FAX 538.111 532-7300 . FAX 532-7355 322.222 . 532.3706 789-4908 . FAX 789-4918 531-8900' FAX 596-2814

PAUL T. MOXLEY CRAIG M. SNYDER JEFF R. THORNE HON. PAMELA T. GREENWOOD* H. REESE HANSEN* 170 South Main Street, Suite 400 120 East 300 North 98 North Main Street Immediate Past President Dean, College of Law Salt Lake City, Utah 84101 P. O. Box 778 Brigham City, Utah 84302 230 South 500 East #400 Brigham Young University 537-5555 . FAX 537-5599 Provo, Utah 84603 723-3404 . FAX 723-8807 Salt Lake City, Utah 84102 348 A ¡RCB, Provo, Utah 84602 373-345 . FAX 377.4991 533-800 . FAX 533-356 378.4276 . FAX 378-3595

NORMAN S. JOHNSON" REED 1. MARTINEAu* CHARLOTTE MILLER* LEE TEITELBAUM" JOHN C. BALDWIN* ABA Delegate State Bar Delegate to ABA President, Young Lawyers Section Dean, College of Law Executive Director 50 South Main Street, #1600 10 Exchange Place, 11 th Floor 310 South Main Street, #1200 University of Utah 645 South 200 East, #310 Salt Lake City, Utah 84145 Salt Lake City, Utah 84145 Salt Lake City, Utah 84101 Salt Lake City, Utah 84112 Salt Lake City, Utah 84111 532-3333 . FAX 534-058 521-9000' FAX 363-0400 363.3300. FAX 350-3892 581-6571 . FAX 581.6897 531.9077' FAX 531-0660 'Ex.offcio November 1991 37 1991..92 STANDING COMMITTEES

ADVERTISING Francis M. Wikstrom 10-91 Randall L. Romrell David B. Watkiss, Chair Dennis V. Haslam, Commission Liaison J. Craig Smith John W. Call Denver C. Snuffer J. Craig Carman BAR EXAMINERS E. Kent Sundberg Glen A. Cook Curtis C. Nesset, Chair Homer F. Wilkinson Warren W. Driggs Gary E. Atkin 10-91 Mary J. Woodhead Daniel V. Goodsell Spencer E. Austin 10-91 Gayle F. McKeachnie, Commission Liaison Denton M. Hatch Charles M. Bennet 10-91 Thomas A. Jones David L. Bird 10-92 CHARACTER AND FITNESS H. Ralph Klemm J. Randall Call 10-91 Thomas T. Billings, Chair Ralph J. Marsh John Chindlund 10-91 Timothy C. Allen James D. Mickelson Helen E. Christian 10-93 J. Scott Buehler Maxwell A. Miller Kent H. Collins 10-94 Robert S. Howell Phillip C. Story Mary C. Corporon 10-93 Linda Stengel Lepreau Sue Vogel Charles W. Dahlquist, Jr. 10-91 -Calvin L. Nelson Michael N. Zundel Hon. Lynn W. Davis 10-92 Curtis C. Nesset Craig M. Snyder, Commission Liaison James M. Dester 10-91 Jeffrey R. Oritt Leon A. Dever 10-93 Donald E. Schwinn ALTERNATIVE DISPUTE RESOLUTION L. Mark Ferre 1 0-92 'Gretta C. Spendlove Hardin A. Whitney, Jr., Chair Ray E. Gammon 10-91 E. Russell Vetter Robert F. Babcock Duane H. Gillman 10-91 Dennis V. Haslam, Commission Liaison Wallace R. Bennett Paul M. Halliday 10-92 Nelda M. Bishop Royal i. Hansen 1 0-92 CLIENT SECURITY FUND Wallace C. Burt R. Clayton Huntsman 10-92 David R. Hamilton, Chair 7-93 Craig C. Coburn Randy K. Johnson 10-92 Samuel Alba 7-92 Bruce G. Cohne Dale R. Kent 10-92 Bruce E. Humberstone 7 -93 Glen A. Cook Derek Langton 10-92 Kathleen S. Jeffery 7-92 Robin L. Crouch Paul H. Liapis 10-93 Miles P. Jensen 7-93 Antje F. Curry Milo S. Marsden 10-91 Walker Kennedy, III 7-93 -Kimberly L. Curtis Carolyn B. McHugh 10-91 John T. Kesler 7-93 Wiliam W. Downes, Jr. Douglas M. Monson 10-91 Michael R. Labrum 7-93 -John F. Gay Robert L. Moody 10-91 Jeff R. Thorne, Commission Liaison Barry G. Gomberg Michael F. Olmstead 10-91 Daniel V. Goodsell Warren H. Peterson 10-92 CONTINUING LEGAL EDUCATION Benson L. Hathaway, Jr. Robert H. Rees 10-92 Arlan O. Headman, Jr., Chair J. Lade Heaton Jeffrey W. Shields 10-91 Mark M. Bettilyon R. Dennis Ickes Gregory G. Skordas 10-91 Rex C. Bush Marcella L. Keck Janet H. Smith 10-91 Grant R. Clayton Robert C. Keller James R. Soper 10-93 Jerrald D. Conder Hon. Sandra N. Peuler Hon. Craig D. Storey 10-92 T. Richard Davis Thomas F. Rogan David A. Thomas 1 0-92 Janet A. Goldstein Sidney M. B. Sandberg Charles H. Thronson 10-91 Hon. Richard C. Howe Michael L. Schwab Robert H. Wilde 10-91 Orlano K. Johnson George H. Speciale Dennis V. Haslam, Commission Liaison David D. Loreman Ronald F. Sysak Ralph R. Mabey Stephen A. Trost BAR JOURNAL Brent V. Manning Jan Graham, Commission Liaison Calvin E. Thorpe, Chair Isaac B. Morley Brad C. Betebenner Richard K. Nebeker BAR EXAMINER REVIEW Glen A. Cook Joann Shields Elliot J. Williams, Chair David B. Hartvigsen Denver C. Snuffer Craig G. Adamson 10-93 M. Karlynn Hinman Judi G. Sorenson Kevin E. Anderson 10-91 William D. Holyoak J. Paul Stockdale David J. Castleton 1 0-93 Hon. Michael L. Hutchings David A. Thomas Craig S. Cook 10-92 Victoria K. Kidman A. Robert Thorup Weston L. Harris 10-92 -Glinda W. Langston Stephen M. Tumblin Patricia M. Leith 10-91 Reid E. Lewis Gayle F. McKeachnie, Commission Liaison David E. Leta 10-91 Leland S. McCullough, Jr. Jo Carol Nesset-Sale 10-93 Margaret R. Nelson COURTS & JUDGES John D. Parken 10-92 Clark R. Nielsen John S. Adams, Chair Wayne G. Petty 10-92 John T. Nielsen William B. Bohling Kent L. Walgren 10-91 Glen W. Roberts

38 Vol. 4 NO.9 J. Thomas Bowen *Maggie Wilde Allan T. Brinkerhoff Harry Caston *Sandra Wilkins Robert J. Dale Antje F. Curry Kim R. Wilson Hon. Scott Daniels Phillip W. Dyer J. MacArthur Wright Hon. Lynn W. Davis Vaiden P. Livingston Paul T. Moxley, Commission Liaison Gary E. Doctorman Brent P. Lorimer Hon J. Philip Eves Perrin R. Love ETHICS ADVISORY OPINION *Kent S. Frederickson John R. Lund Leslie P. Francis, Chair *Carolyn Grandstaff Michael D. Lyon Gavin J. Anderson Scott M. Hadley J. Garry McAllister Mark M. Bettilyon Hon. Timothy R. Hanson Carolyn B. McHugh Herschel P. Bullen Brad D. Hardy James D. Mickelson T. Patrick Casey John P. Harrington Jo Carol Nesset-Sale Patricia W. Christensen Hon. Pamela G. Heffernan Hon. Gregory K. Orme Donald L. Dalton Scott J. Hunter Hon. Robin W. Reese Joseph T. Dunbeck, Jr. Hon. Michael L. Hutchings Jaryl L. Rencher Mark S. Gustavson Orlano K. Johnson *Jay G. Roundy C. Richard Henricksen, Jr. Michael K. Jones Paul D. Veasy Michael W. Homer Danny C. Kelly Donald J. Winder Allen R. Jensen Hon. Gordon J. Low Jan Graham, Commission Liaison Miles P. Jensen *Michael Marks John S. Kirkham Joyce Maughan DELIVERY OF LEGAL SERVICES Scott W. Loveless Thomas M. Melton Brian J. Namba, Chair Karen W. McCreary David O. Nuffer Kenneth E. Bresin John K. Morris Langdon T. Owen, Jr. Thomas E. K. Cerruti Michael P. O'Brien Hon. Leonard H. Russon Michael S. Evans Richard D. Parry Anthony W. Schofield Hon. Dennis M. Fuchs F. Robert Reeder Stuart H. Schultz James R. Haisley Gary G. Sackett *Robert L. Stayner David J. Holdsworth Rodney S. Snow Ronald F. Sysak Karen W. McCreary Reid Tateoka David C. West J. Kevin Murphy Jan Graham, Commission Liaison * Jay Worthington Karl G. Perry Hon. David S. Young Lisa J. Remal ETHICS AND DISCIPLINE Craig M. Snyder, Commission Liaison Cheryl A. Russell Dale A. Kimball, Chair John D. Sheaffer, Jr. Willam B. Bohling LAW RELATED EDUCATION AND LAW Jeff R. Thorne, Commission Liaison *Stanley B. Bonham DAY Jon J. Bunderson Bryan A. Larson, Co-Chair DISCIPLINARY HEARING PANEL Francis J. Carney Kim M. Luhn, Co-Chair Helen E. Christian Mary C. Corporon P. Bruce Badger *Mary Condie Leon A. Dever *Virginia Chee Paul M. Durham Paul S. Felt John F. Clark Phillip W. Dyer Russell C. Fericks Gerald M. Conder Robert A. Echard David E. Littlefield *Kimberly L. Curtis Raymond J. Etcheverry Michael D. Lyon Kathy D. Dryer Ervin R. Holmes Ellen M. Maycock Hon. Regnal W. Garf, Jr. Robert S. Howell Terrie T. Mcintosh Patricia Geary Allen R. Jensen Ira B. Rubinfeld Bryan A. Geurts Michael K. Jones Randall N. Skanchy *Marsha L. Gibler Bruce C. Lubeck Gregory G. Skordas *Dawn M. Hales John R. Lund Virginia S. Smith Kimberly K. Hornak Richard P. Makoff *Parry Sorenson *Patricia O. Horton Brent V. Manning *Ted Speros Gordon K. Jensen *Ruth Novak *Jan Tyler Richard A. Kimball, Jr. Harold L. Petersen John B. Wilson Carol Barlow Lear Barbara K. Polich Paul T. Moxley, Commission Liaison Virginia C. Lee Robert J. Stansfield Charles F. Loyd, Jr. *Molly P. Sumner FEE ARBITRATION *Norma Matheson A. Robert Thorup J. Randall Call, Chair *Nancy M. Mathews E. Gregg Tobler Gary N. Anderson *Bonnie G. Miller Robert R. Wallace *Rick Austin John P. Mullen David West *Byron Barkley Harold A. Ranquist Joane P. White 'Brad Barrett

November 1991 39 ~

Scott W. Reed LEGISLATIVE AFFAIRS David W. Steffensen Robert H. Rees David R. Bird, Chair Kendall R. Surfass Gregory G. Skordas Patrice M. Arent Toni M. Sutliff Mark J. Taylor James E. Becker W. Paul Wharton E. Russell Vetter Alan D. Boyack J. Michael Hansen, Commission Liaison G. Michael Westfall Olga A. Bruno Elizabeth S. Whitney Mark K. Buchi UNAUTHORIZED PRACTICE OF LAW Lisa A. Yerkovich Jerrald D. Conder Steve M. Kaufman, Chair Howard C. Young John P. Creer David J. Berceau David W. Zimmerman Glen R. Dawson Herschel P. Bullen Michael N. Zundel Stephen B. Elggren Kirk A. Cullimore Denise A. Dragoo, Commission Liaison Bryan A. Geurts Gregory J. Curtis Arlan O. Headman, Jr. Wade A. Farraway LAWYER BENEFITS Nayer H. Honarvar Gorden S. Jensen Randon W. Wilson, Chair James F. Housley Steven M. Kaufman Bruce E. Babcock James B. Lee Robert M. McRae Michael W. Crippen Richard K. Nebeker G. Steven Sullivan Thomas N. Crowther Carolyn Nichols Kevin P. Sullivan John E. Gates John 1. Nielsen David C. West Julie V. Lund Ken R. Olson Craig M. Snyder, Commission Liaison James G. Swensen, Jr. Michael F. Richman David J. Winterton Robert B. Sykes ANNUAL MEETING Paul 1. Moxley, Commission Liaison Mark J. Taylor Jerry D. Fenn, Chair 'William Vickery Hon. Michael L. Hutchings LAWYERS HELPING LAWYERS J. Michael Hansen, Commission Liaison Keith A. Kelly J. Stephen Mikita, Chair Charlotte L. Miller 'Rita B. Baden NEEDS OF CHILDREN Debra J. Moore Carl R. Buckland , Rosalind McGee, Chair Andrew M. Moose Herschel P. Bullen Ralph W. Adams Craig M. Peterson Clark B. Fetzer Jan W. Arrington Gregory G. Skordas James W. Gilson Brent H. Bartholomew Gretta C. Spendlove Nayer H. Honarvar Craig C. Coburn James Z. Davis, Commission Liaison Bruce C. Lubeck Nicolas Dejonge 'Teresa McCormick Leshia Lee-Dixon MID-YEAR MEETING Hon. Kenneth Rigtrup Ronald L. Dunn Michael L. Larsen, Chair Kent B. Scott Susan P. Dyer J. Michael Bailey Margaret F. Spratley Shari Faulkner Joy Clegg 'Lynda Steele Debbie Hann Hon. Timothy R. Hanson Jane M. Waren ski Daniel W. Hindert Dale J. Lambert Randy L. Dryer, Commission Liaison Randall J. Holmgren Ellen M. Maycock Linda Luinstra-Baldwin G. Fred Metos LEGAL/MEDICAL Hon. Sharon P. McCully Ronald E. Nehring Maureen L. Cleary, Co-Chair Mary T. Noonan Carolyn Nichols Barbara Zimmerman, Co-Chair Grethe Peterson C. Jeffry Paoletti Julia C. Attwood Kevin C. Probasco Ralph C. Petty Wesley M. Baden Richard H. Schwermer Terry L. Wade Penny S. Brooke E. Gregg Tobler Randy L. Dryer, Commission Liaison Joann E. Carnahan Mary Beth Walz Susan Creager Brent D. Wride PROFESSIONAL LIABILITY INSURANCE 'Gigi Darricades Louise S. York Carman E. Kipp, Chair David B. Erickson J. Michael Hansen, Commission Liaison Ray R. Christensen 'Dr. Jay A. Jacobson Jackson B. Howard Barbara L. Maw NEEDS OF THE ELDERLY Thomas L. Kay Karie L. Minaga-Miya 'Stephen Jennings, Chair Thomas R. King Carolyn Nichols Joseph R. Barrios, Jr. James B. Lee Caroline K. Skuzeski Joseph T. Dunbeck, Jr. Barbara K. Polich Kathleen H. Switzer 'Dr. Jerry Goodenough Chris P. Wangsgard Robert B. Sykes Robert A. Goodman Jeff R. Thorne, Commission Liaison Steven K. Walkenhorst Anne Milne Jane M. Warenski Shauna H. O'Neil 'denotes public member Elliott J. Williams Sidney M. B. Sandberg Norman J. Younker 'Brent Scott Craig M. Snyder, Commission Liaison 40 Vol. 4 No. 9 1

ADMINISTRATIVE LAW EDUCATION LAW MILITARY LAW Mark C. Moench, Chair 584-7059 Dixie S. Heufner, Chair 581-8121 Burton K. Brasher, Chair 278-2104 J. Steven Eklund, Vice Chair Douglas F. Bates, Vice Chair Keven F. Smith, Vice Chair Brian W. Burnett, SecretarylTreasurer Barbara H. Ochoa, Secretary Glen A. Cook, SecretarylTreasurer Blake T. Ostler, Treasurer BANKING AND FINANCE PATENT, TRADEMARK AND COPYRIGHT Van M. Ross, Chair 355-6900 ENERGY, NATURAL RESOURCES AND Grant R. Clayton, Chair 566-6633 Jeffrey M. Jones, Vice Chair ENVIRONMENTAL LAW Todd E. Zenger, Vice Chair Janet H. Smith, CLE Coordinator Jody L. Williams, Chair 220-2851 David Tundermann, Vice Chair PROBATE & ESTATE PLANNING BANKRUPTCY A. John Davis, Secretary Steven J. Dixon, Chair 538-2700 Gary E. Jubber, Chair 531-8900 Rosemary J. Beless, Treasurer David J. Castleton, Chair-Elect Kevin R. Anderson, Vice Chair Fred D. Essig, SecretarylTreasurer Gerald H. Suniville, SecretarylTreasurer FAMILY LAW Jane A. Marquardt, Program Chair Helen E. Christian, Chair 532-6996 BUSINESS LAW Frederick N. Green, Vice Chair REAL PROPERTY Thomas E. Nelson, Chair 366-6080 Rex W. Olsen, SecretarylTreasurer David F. Klomp, Chair 535-1132 Gary R. Henrie, Chair-Elect Gregory S. Bell, Vice Chair David G. Angerbauer, SecretarylTreasurer FRANCHISE Victor A. Taylor, Secretary D. Karl Mangum, Chair 277-5858 David K. Broadbent, Treasurer CONSTRUCTION LAW James G. Swensen, Jr., Chair-Elect Steven H. Stewart, Chair 355-5300 Robert W. Thompson, SecretarylTreasurer SECURITIES Lynn B. Larsen, Vice Chair Steven L. Taylor, Chair 521-8900 Randy B. Birch, SecretaryITreasurer GOVERNMENT LAW Constance B. White, Vice Chair Bryce H. Pettey, Chair 533-3200 P. Christian Anderson, Secretary CORPORATE COUNSEL Richard S. Fox, Chair-Elect Wallace T. Boyack, Treasurer Michael E. Tobin, Chair 481-6526 Cheryl D. Luke, SecretarylTreasurer Colleen L. Bell, Vice Chair TAX Chris J. Malan, SecretarylTreasurer INTERNATIONAL LAW Randy M. Grimshaw, Chair 532-1234 Joseph C. Rust, Chair 355-9333 David D. Jeffs, Chair-Elect CRIMINAL LAW Howard C. Young, Vice Chair David K. Armstrong, SecretarylTreasurer Jerome H. Mooney, Chair 364-5635 Lawrence R. Barusch, Program Chair Ronald N. Boyce, Vice Chair LABOR AND EMPLOYMENT LAW G. Fred Metos, Secretary Arthur F. Sandack, Chair 531-0555 YOUNG LAWYERS Charlotte L. Miller, President 363-3300 LITIGATION Keith A. Kelly, President-Elect Debra J. Moore, Chair 363-3300 Mark S. Webber, Secretary Wiliam 8. Bohling, Chair-Elect James C. Hyde, Treasurer W. Cullen Battle, Jr., SecretarylTreasurer

BOX ELDER BAR ASSOCIATION DAVIS COUNTY BAR ASSOCIATION SOUTHERN UTAH BAR ASSOCIATION Quinn D. Hunsaker 723-8569 D. Michael Nielsen 292-1818 LaMar J. Winward 628-3688 102 South 100 West 505 South Main Street 150 North 200 East, #203 P.O. Box 461 Bountiful, UT 84010 St. George, UT 84770-0400 Brigham City, UT 84302 SALT LAKE COUNTY BAR ASSOCIATION TOOELE COUNTY BAR ASSOCIATION CACHE COUNTY BAR ASSOCIATION Patricia M. Leith 532-3333 Douglas F. White 882-2272 Miles P. Jensen 752-1551 50 South Main Street, #1600 185 North Main Street, #B-1 56 West Center Street P.O. Box 45340 Tooele, UT 84074 P.O. Box 525 Salt Lake City, UT 84145 Logan, UT 84321 UINTAH COUNTY BAR ASSOCIATION SOUTHEASTERN UTAH BAR Larry A. Steele 789-1301 CENTRAL UTAH BAR ASSOCIATION ASSOCIATION 319 West 100 South, #A Anthony W. Schofield 226-7210 Keith H. Chiara 637-7011 Vernal, UT 84078 92 North University Avenue 37 East Main Street Suite 210 P.O. Box 955 WEBER COUNTY BAR ASSOCIATION Provo, UT 84601-4420 Price, UT 84501 F. Kim Walpole 627-1870 298 24th Street, #200 Ogden, UT 84401-1431

November 1991 41 Attorney Opening Court of Appeals Quit smoking and improve your circulation. The Utah Court of Appeals is seeking an attorney to join its central staff. The applicant will work with other staff attorneys, under the general guidance and direction of the Court of Ap- a peals judges. Responsibilities include the performance of com- plex legal work, including review and classification of appellate cases and preparation of per curiam opinions, memorandum de- cisions and orders. The applicant should have strong research and writing skils and must be a member of the Utah State Bar at the time of appointment. Four years general legal experience or in-depth background in appellate practice preferred. Salary $34,000-$43,000, de- pending upon prior experience, Application forms available at the Office of the State Court Administrator, 230 South 500 East, Suite 300, Salt Lake City, Utah 84102. Application must in- clude: application form, cover letter, resume, law school tran- scripts, names and phone numbers of three references and a recent writing sample, not heavily edited by others. Submit ap- plication to Personnel Division, Offce of the State Court Ad- ministrator. Closing date, 15 December 1991. It's never too late to quit smoking. Call I-800A-CANCER.

The Law Firm of P ARSONS BEHLE & LATIMER I THE LAW FIRM OF I

Is Pleased to Announce that CAMPBELL MAACK & SESSIONS A PROFESSIONAL CORPORATION GARY B. HANSEN has joined the firm as a Shareholder and will continue to practice IS PLEASED TO ANNOUNCE in the areas of Public Finance and Municipal Bonds

THE RELOCATION OF ITS OFFICES TO: and the following have become shareholders in the firm RICHARD M. MARSH ONE UTAH CENTER Federal, State and Local Tax Matters

201 SOUTH MAl N STREET THIRTEENTH FLOOR RONALD S. POELMAN Corporate and Securities Matters SALT LAKE CITY, UTAH 84111-2215 and the following have become associated with the firm TELEPHONE (8011 537-5555 FACSIMILE (8011 537-5199 MA TTHEW J. HARMER JOHN E. DIAZ

ONE UTAH CENTER NOVEMBER I, 1991 201 South Main Street , P.O. Box 11898' Salt Lake City, Utah 84147-0898 801-532.1234 42 Vol. 4 NO.9 Search ioo,ooo pages of legal text, save your client money and boost your bottom line in the time it takes to read this sentence. r lf. If..... ""'",1. IE l'iQø;..ii\ ~h.~ LegaSearch. The most comprehensive repository

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