In this Issue: Appellate Advocacy Is your family growing? Level Term Life Insurance Individual Own Occupation Disability Insurance IN PERSON, IN YOUR MAILBOX, ONLINE, NIA. NATIONAL INSURANCE AGENCY INC. Professional Association & Affinity Insurance Services WWW.NIAI.COM r PHONE: 502 425-3232 r W R L @ NIAI .COM This issue of the Kentucky Bar CONTENTS Association’s Bench & Bar was published in the month of January. Communications & Appellate Advocacy Publications Committee Frances Catron Cadle, Chair, Lexington 6 Solicitor General Bullitt Paul Alley, Florence Elizabeth M. Bass, Lexington By Judge John G. Heyburn II Sandra A. Bolin, Berea Christopher S. Burnside, Louisville 7 Ten Suggestions for an Effective Appellate Brief James P. Dady, Bellevue Alexander F. Edmondson, Covington By Bradley R. Hume Judith D. Fischer, Louisville Cathy W. Franck, Crestwood 12 Utilization of Staff Attorneys in the William R. Garmer, Lexington Kentucky Court of Appeals P. Franklin Heaberlin, Prestonsburg Judith B. Hoge, Louisville By Ann Swain Bernadette Z. Leveridge, Jamestown Christy J. Love, Corbin 16 Discretionary Review Practice in the Theodore T. Myre, Jr., Louisville Kentucky Supreme Court Eileen M. O’Brien, Lexington Richard M. Rawdon, Jr., Georgetown By C. Theodore Miller Sandra J. Reeves, Corbin E.P. Barlow Ropp, Glasgow 19 Penpoint Citations R. Kelley Rosenbaum, Lexington By Cher Eaves Candace J. Smith, Covington Gerald R. Toner, Louisville Sadhna True, Lexington 20 Secrets of the Kentucky Supreme Court: Katherine Kerns Vesely, Louisville A Memoir Michele M. Whittington, Frankfort By Jim Dady Publisher John D. Meyers 22 Internet Citations in Appellate Court Opinions: Editor Something’s Rotting in the Commonwealth Frances Catron Cadle By Michael Whiteman and Jennifer Frazier Managing Editor Shannon H. Roberts Layout Columns David Kaplan • [email protected] 3 President’s Page By Maggie Keane The Bench & Bar (ISSN-1521-6497) is published bi-monthly by the Kentucky Bar Association, 514 West Main Street, Frankfort, 5 YLS By Rebekkah Bravo Rechter KY 40601-1812. Periodicals Postage paid at Frankfort, KY and additional mailing offices. 26 Effective Legal Writing By Dr. JoAnne Sweeny All manuscripts for publication should be sent to the Managing Editor. Permission is granted for reproduction with credit. Publication of any article or statement is not Items of Interest to be deemed an endorsement of the views expressed therein by the Kentucky Bar 25 February 2012 Kentucky Bar Applicants Association. Subscription Price: $20 per year. Members 27 KBA Task Force on the Provision and Compensation of subscription is included in annual dues and is Conflict Counsel for Indigents not less than 50% of the lowest subscription price paid by subscribers. For more informa- 37 Order Amending Rules of the Supreme Court tion, call 502-564-3795. 49 Kentucky Bar News POSTMASTER Send address changes to: 57 Who, What, When & Where Bench & Bar 514 West Main Street 66 Kentucky Bar Foundation Welcomes New Fellows Frankfort, KY 40601-1812 68 CLE Cover photo by iStockphoto® PRESIDENT’S PAGE LESS THAN A DOLLAR A DAY — IS THE PRIVILEGE TO PRACTICE LAW IN KENTUCKY WORTH THAT? Maggie Keane recommendation from the Kentucky Order requires that $7 of the dues paid attorneys, that is either $350 or $220, A Bar Association (“KBA”) Board of by every practicing attorney and $6 of depending upon the date of the judge’s Governors (the “Board”) to raise bar the dues paid by every judge be allocated admission to practice. dues is a difficult and unpopular to the Clients’ Security Fund. Pursuant to The recommendation asks that the decision. But with our bar facing the SCR 3.820, these funds are to provide dues increase become effective July 1, same financial challenges confronted by “indemnification to clients who may 2012. each of us in the profession–whether in suffer pecuniary losses by reason of If the Court orders a dues increase in private practice, public service, or as in- fraudulent or dishonest acts” by a KBA the amount requested, the cost of being a house counsel–the Board, fulfilling its member. From 2004 through June 30, KBA member will still be a “good deal.” fiscal responsibilities, had the courage 2011, the Fund has paid over $840,000 As KBA members, we enjoy a benefit to recommend a dues increase to the to members of the public. The KBA’s no other mandatory bar does. Our Court Kentucky Supreme Court (the “Court”) total exposure for the fiscal year ending rules require that dues payments cover on Dec. 9, 2011. June 30, 2011, was $563,150, while the the costs of providing each KBA KBA dues are set by the Court based amount collected from dues was only member with sufficient CLE hours to upon a recommendation of the Board $110,283. At its November and comply with education requirements to (Supreme Court Rule 3.040(1)). The last December 2011 meetings, the Fund maintain a high standard of competence. dues increase ordered by the Court made awards of approximately $280,000. In 2011, we had the highest number of occurred on July 1, 2004. That increase Confronted with these financial attendees at the Kentucky Law Updates, was expected to fund the operations of realities, in 2011 the Board appointed a 5,191 attorneys (almost one third of our the KBA only through the 2010-2011 Task Force on Dues Structure members). fiscal year. Your Board members and Evaluation, comprised of Board Also, all the KBA officers and Board the KBA staff, being good stewards of members from various areas of the state. members serve without pay, devoting a KBA funds, have worked diligently to At its Nov. 19, 2011, meeting, the Board significant amount of time preparing for reduce costs, successfully delaying the voted unanimously to accept the Task and attending Board meetings, including need to seek a dues increase. Force’s recommendation to seek a dues hearing and deciding discipline matters. Since 2004, the KBA’s expenses for increase. The Board recommended that its “overhead costs,” including the KBA dues be increased, as detailed President’s Notes: (1) The Board at employee retirement contributions, in a Dec. 9, 2011, letter to the Court: its Nov. 18, 2011, meeting approved a employee health insurance, liability (i) for lawyers admitted to practice Resolution in Support of the Report of insurance, taxes, energy and similar for five (5) years or more, dues would the KBA Task Force on the Provision recurring and non-controllable costs, be increased from $270 to $350 per and Compensation of Conflict Counsel have increased by more than 40 percent. year; for Indigents. Turn to page 27 in this For example, the KBA’s portion of the (ii) sensitive to the financial issue of the Bench & Bar or visit health care insurance cost for our challenges faced by new lawyers, dues www.kybar.org to read the Resolution. employees has increased 91 percent and for new attorneys (those admitted to (2) The American Bar Association the KBA’s contribution to the Kentucky practice for less than five (5) years) recently released a report, “Evaluating Employees Retirement System for our would remain at the current rate of Fairness and Accuracy in State Death employees has increased 400 percent. $220; and Penalty Systems: The Kentucky Death In addition to these operating costs, (iii) the separate dues category for Penalty Assessment Report.” To Court rules require a portion of our KBA judges (who now pay $110 in dues) access the Executive Summary and the dues to fund certain public service would be eliminated and judges’ dues full report, visit www.kybar.org. programs. For example, the 2004 Dues would be set at the same level as other January 2012 Bench & Bar 3 KBA members who serve on the Inquiry We have a great bar but we need substantial and continuing Commission, CLE Commission, Ethics sufficient funding to maintain it and to responsibility for promoting the Committee and Ethics Hotline, as well fulfill our mission under SCR 3.025: to efficiency and improvement of the as the Clients’ Security Fund Trustees, “maintain a proper discipline of the judicial system.” IOLTA Board, Kentucky Bar members of the bar in accordance with For most lawyers and judges, the Foundation Board, Bar Center Trustees, these rules and the principles of the increase would result in our paying less Unauthorized Practice Committee, legal profession as a public calling, to than $1 a day for the privilege of Attorney Advertising Commission, and initiate and supervise, with the approval practicing law in the courts of Kentucky Volunteers For Kentucky Lawyers of the court, appropriate means to – a small price for such an honor. As Assistance Program, devote insure a continuing high standard of commented by one attendee of the 2011 innumerable hours of service to KBA professional competence on the part of KLUs, a dues “increase is justified and members without pay. the members of the bar and to bear a overdue.” 4 Bench & Bar January 2012 By Rebekkah Bravo Rechter, Chair, KBA Young Lawyers Section ou may not be aware of their plight, awareness and understanding about the sympathetic and caring voice. While all Y but chances are that you know domestic violence epidemic, and to attorneys are welcome to place their someone who is the victim of abuse at encourage attorneys to provide pro bono name on our roster, we especially home. Statistics show that one in four assistance to victims and survivors. encourage the KBA’s newest admittees American women is the victim of The Voices Against Violence program to volunteer their time and status as a domestic violence in her lifetime. continues to fulfill this mission. During member of the Bar. By representing a Kentucky women face a higher risk: one the second half of the bar year, the client at a DVO hearing, you will gain in three women in the Bluegrass is, at Young Lawyers Section has a number of valuable courtroom experience while some point in her lifetime, a victim of fundraisers planned throughout the state providing hope and protection to a domestic violence.