Your Partner in the Profession | April 2015 • Vol. 84 • No. 4

Inclusion, Privilege, and Other Uncomfortable Realities P8

Over 1,000 Child Adoptions and No Signs of Slowing Down for Gene Balloun P20

The Law is the True Embodiment: Gilbert and Sullivan for P24

Happy 800th Birthday,

24 | The Law is the True Embodiment: Gilbert and Sullivan for Lawyers By Roger W. Badeker

Cover layout & design by Ryan Purcell, [email protected]

8 | Inclusion, Privilege, and Other Uncomfortable 22 | Over 1,000 Child Adoptions and No Signs of Realities Slowing Down for Gene Balloun By Jennifer M. Hill 23 | 2015 KBA Annual Meeting Keynote Speakers 14 | Progress Rather Than Perfection By Anne McDonald 20 | Happy 800th Birthday, Magna Carta By Michael H. Hoeflich

Regular Features 6 | KBA President 17 | Law Students’ Column By Gerald L. “Jerry” Green By Thomas Hiatt 7 | YLS President 18 | Members in the News By Sarah E. Warner 18 | Obituaries 12 | Substance & Style By Jeffrey D. Jackson 29 | Appellate Decisions 15 | A Nostalgic Touch of Humor 30 | Appellate Practice Reminders By Matthew Keenan 38 | Classified Advertisements 16 | Law Practice Management Tips & Tricks By Larry N. Zimmerman E Let your VOICE be TH 2014-15 Heard! KBA Officers & Board of Governors President JOURNAL Gerald L. Green, [email protected] OF THE KANSAS BAR ASSOCIATION President-Elect Natalie Haag, [email protected] Vice President 2014-15 Stephen N. Six, [email protected] Journal Board of Editors Secretary-Treasurer Gregory P. Goheen, [email protected] Richard D. Ralls, chair, [email protected] Immediate Past President Terri Savely Bezek, BOG liaison, [email protected] Dennis D. Depew, [email protected] Hon. David E. Bruns, [email protected] Young Lawyers Section President Boyd A. Byers, [email protected] Sarah Warner, [email protected] Emily Grant, [email protected] District 1 Connie S. Hamilton, [email protected] Christi L. Bright, [email protected] Katharine J. Jackson, [email protected] Toby J. Crouse, [email protected] Michael T. Jilka, [email protected] Mark A. Dupree, [email protected] Lisa R. Jones, [email protected] Mira Mdivani, [email protected] Hon. Janice Miller Karlin, [email protected] District 2 Casey R. Law, [email protected] Charles E. Branson, [email protected] Hon. Sally D. Pokorny, [email protected] Julene L. Miller, [email protected] Hon. Robert E. Nugent, [email protected] District 3 Eric L. Rosenblad, [email protected] Professor John C. Peck, [email protected] District 4 Rachael K. Pirner, [email protected] Brian L. Williams, [email protected] Karen Renwick, [email protected] District 5 Teresa M. Schreffler, [email protected] Terri S. Bezek, [email protected] Richard H. Seaton Sr., [email protected] Cheryl L. Whelan, [email protected] Sarah B. Shattuck, [email protected] District 6 Richard D. Smith, [email protected] Bruce W. Kent, [email protected] Marty M. Snyder, [email protected] District 7 Matthew A. Spurgin, spurgin@.com Gary Ayers, [email protected] Catherine A. Walter, [email protected] J. Michael Kennalley, [email protected] Beth A. Warrington, staff liaison, [email protected] Calvin D. Rider, [email protected] Issaku Yamaashi, [email protected] District 8 Natalie Yoza, [email protected] John B. Swearer, [email protected] District 9 The Journal Board of Editors is responsible for the selection and editing of David J. Rebein, [email protected] all substantive legal articles that appear in The Journal of the Kansas Bar District 10 Association. The board reviews all article submissions during its quarterly Jeffery A. Mason, [email protected] meetings (January, April, July, and October). If an attorney would like to submit an article for consideration, please send a draft or outline to Beth District 11 Warrington, communication services director, at [email protected]. Nancy Morales Gonzalez, [email protected] District 12 William E. Quick, [email protected] The Journal of the Kansas Bar Association (ISSN 0022-8486) is published monthly with combined issues for July/August and November/December At-Large Governor for a total of 10 issues a year. Periodical Postage Rates paid at Topeka, Kan., Bruce A. Ney, [email protected] and at additional mailing offices. The Journal of the Kansas Bar Association KDJA Representative is published by the Kansas Bar Association, 1200 SW Harrison St., Topeka, Hon. Daniel A. Duncan, [email protected] KS 66612-1806; Phone: (785) 234-5696; Fax: (785) 234-3813. Member subscription is $25 a year, which is included in annual dues. Nonmember KBA Delegate to ABA subscription rate is $45 a year. Linda S. Parks, [email protected] Rachael K. Pirner, [email protected] The Kansas Bar Association and the members of the Board of Editors assume ABA State Delegate no responsibility for any opinion or statement of fact in the substantive Hon. Christel E. Marquardt, [email protected] legal articles published in The Journal of the Kansas Bar Association. Copyright © 2015 Kansas Bar Association, Topeka, Kan. Executive Director Jordan E. Yochim, [email protected] For display advertising information contact Bill Spillman at (877) 878-3260 or email [email protected]. For classified advertising information contact Beth Warrington at (785) 234- Our Mission 5696 or email [email protected]. Publication of advertisements is not to be deemed an endorsement of any The Kansas Bar Association is dedicated to advancing the professionalism product or service advertised unless otherwise indicated. and legal skills of lawyers, providing services to its members, serving the community through advocacy of public policy issues, encouraging public POSTMASTER: Send address changes to The Journal of the Kansas Bar understanding of the law, and promoting the effective administration of Association, 1200 SW Harrison St., Topeka, KS 66612-1806. our system of justice.

4 The Journal of the Kansas Bar Association Sponsored by

Ethics CLE meets humor, for good!

Approved for 2.0 CLE hours, including 2.0 E&P hours in Kansas and Missouri. Where Does the Money Go? How Do We Sign Up for this Amazing, Our designated charities for 2015 are: Funny and Informative Program? • CASA (Johnson/Wyandotte Counties) For a mere $90, you get both the ethics and the good, the • Safehome and Hope House (domestic violence programs) entire Ethics for Good – now in its 16th year! • Metropolitan Organization to Counter Sexual Assault (MOCSA) To register for this program, complete the form below or • Kansas Bar Foundation at: • Midwest Foster Care and Adoption Association register online • In addition, we will fund Ethics for Good Scholarships to www.ksbar.org/event/EthicsforGoodXVI-OP each of the KU, Washburn and UMKC Law Schools and the www.ksbar.org/event/EthicsforGoodXVI-KC Johnson County Community College program.

Who Are these Intrepid Presenters? June 5, 2015, 2:30 – 4:10 p.m.* Polsky Theatre, JCCC Carlsen Center Stan Davis, Legal humorist, consultant and gadfly 12345 College Blvd. (College & Quivira) Jim Griffin, Scharnhorst Ast Kennard Griffin, P.C. Overland Park, Kan. Mark Hinderks, Stinson Leonard Street L.L.P. *Reception afterward sponsored by the JCCC Foundation Todd LaSala, Stinson Leonard Street L.L.P. Hon. Steve Leben, Kansas Court of Appeals June 25, 2015, 2:30 – 4:10 p.m. Jacy Moneymaker, Swope Health Services The Nelson-Atkins Museum of Art, Atkins Auditorium Todd Ruskamp, Shook, Hardy & Bacon L.L.P. 4525 Oak St. Parking: $8 museum non-member Hon. Melissa Standridge, Kansas Court of Appeals Kansas City, Mo. parking fee; carpooling encouraged

Questions? Contact Deana Mead, KBA Associate Executive Director, at [email protected] or at (785) 234-5696.

Please mark the date you will be attending: June 5 June 25

Name ETHICS FOR Address GOOD XVI City ST Zip E-mail Sup. Ct. # $90

Bill to: MasterCard Visa AmEx Discover Check Enclosed Payable to: Account Number CVC Kansas Bar Foundation 1200 SW Harrison St. Exp. Date Signature Topeka, KS 66612-1806 kba president Integrating the Lawyer Referral Service within the KBA and Its New Challenges ast year, the Kansas Bar Assocation took a big step for- launching a new “Ask A-Lawyer” service, and hopefully by the ward and made a substantial and new commitment to time you read this, we will have a new and updated website LLawyer Referral Service. We did so at a time of challeng- for LRS. Considerable time and effort has gone into improv- ing budgetary constraints and plenty of other challenges fac- ing the areas of referral screening and case status reporting ing the Association. But we did so because we believe helping procedures, all with the goal of providing a better service to people find a lawyer when they need one is a vital service the the clients as well as our attorney panelists. The end goal is to KBA can provide to the citizens of Kansas. We also believe it is enable clients to find a qualified attorney to help them, and a valuable service we can provide to our members who choose for the attorneys, not just more referrals, but better referrals. to enroll in the LRS. So far, we could not be more satisfied Efforts are also underway to better market our LRS, not only with the results of our decision to make such an investment to our members, but also to the public at large. in LRS. We have accomplished much, but still have more to accom- LRS, as a part of the KBA, isn’t new. It has been in existence plish. We are preparing to cross-train LRS staff to handle case since about 1974. But until last year, and since 1985, LRS was management tasks and will be conducting a second round of operated in conjunction with Kansas Legal Services. The KBA client surveys. We will soon be recruiting attorneys to assume contracted with KLS to provide the Lawyer Referral Service Ask-A-Lawyer responsibilities and working on a proposed call center. The decision to make a change in the LRS program LRS newsletter for electronic distribution. LRS staff will be was not because KLS wasn’t doing a good job. But the truth making LRS presentations during upcoming CLEs, and will is, with the most important part of the program off-site and be meeting with professional/community groups to identify contracted out, there was a certain level of disconnect between LRS promotional channels, all with the goal of increasing the KBA and one of its major programs. With that in mind, meaningful participation by the public. several years ago the KBA asked the American Bar Associa- One challenge for LRS is to have a sufficient number of tion to do a complete and thorough evaluation of our Lawyer panelists with a broad range of practice areas to be able to Referral Service. The ABA provided the service at no charge. effectively refer potential clients. There are areas in the state As a result, three experienced LRS attorneys spent several days where significant gaps in coverage exist. What that means, in Kansas analyzing our program. The result was a compre- of course, is that we want to encourage more participation hensive report made available to the KBA, which then served among the Bar to increase the number of panel members. If as the foundation upon which we would act and make future you have never signed up for LRS, I encourage you to give it decisions. The ABA’s recommendation was that the Kansas a try. If you have been a panelist in the past, but for whatever LRS should be consolidated with the KBA offices to make reason no longer are, I encourage you to give us another try. it centralized and a wholly KBA offered service. After several The cost is small in comparison to the potential for meaning- years of analysis and consideration under the leadership of ful client referrals. We certainly welcome, encourage and want past presidents Rachael Pirner and Lee Smithyman, the LRS your comments and feedback. Committee, and KBA staff, the decision was made last year by As I have said and written before, there are many ways pro- the KBA Board of Governors to end the with KLS spective clients can find a lawyer. LRS is one of them. And, and bring LRS completely in-house, consolidating its entire I would propose, one of the best ways to find a lawyer. LRS operation in Topeka, with our own employees and staff. receives about 18,000 calls a year from people looking for a The process of doing so moved forward, with the first step lawyer. Obviously, not all of those lead to referrals, or to an being the hiring of Dennis Taylor as our LRS director. Den- attorney-client relationship. But many do. There is a large nis, who has not only a law degree but has also practiced law, pool of potential clients out there, and we expect the number also has a Master of Law, Urban Planning, and a Master of of referrals to continue to increase. The KBA is committed to Public Administration. Dennis was most recently the execu- LRS. I encourage you to join our commitment, and enroll as tive director for the Kansas Lottery, and before that, secretary a panelist. Or if that is not for you, then I encourage you to of the Kansas Department of Administration. Dennis has a tell prospective clients about the service, and to make referrals long and impressive career in a wide array of business and to LRS. If you want or need information to do so, we can governmental pursuits. Dennis started with the KBA on July readily provide you with the materials. I am excited about the 1, 2014, and has been off and running ever since. Dennis opportunities that lie ahead for the KBA and LRS. n brought with him a wealth of experience and knowledge that has proved invaluable to our efforts. The LRS call center is About the President now completely in-house, operating out of the KBA offices in Gerald L. “Jerry” Green is a member of the Topeka, and staff call center training is completed. Compara- Hutchinson law firm Gilliland & Hayes LLC. He tive analysis has been ongoing between what LRS was doing currently serves as president of the Kansas Bar before and since, in order to evaluate and continue to enhance Association. the program. We have surveyed clients of the service and made [email protected] personal calls to most of the LRS panelists. We are working on (620) 662-0537 6 The Journal of the Kansas Bar Association yls president Night at Prairiefire! n the past few issues of the Journal, people have discussed • Drinks with Dinosaurs. No, that’s not a reference the upcoming KBA Annual Meeting (June 17-19 in Over- from a young whippersnapper to our more seasoned Iland Park—go online to http://www.ksbar.org/ for more de- members. I mean dinosaurs! The evening will begin tails) and the fate of the meeting in years to come. In response with an exclusive reception for the KBA members, their to these articles, several newer attorneys have approached me spouses/families and the judges (who will be attending about the meeting, asking what it is, what happens there, why their annual meeting just down the road) at the Muse- younger attorneys should go, whether there’s any reason to go um at Prairiefire (http://museumatpf.org/). Come grab when you have all of your annual CLE credits filled, why meet- a drink and peruse the museum’s unique and fascinat- ings like this exist at all … the list goes on and on. ing exhibits, acquired through a collaboration with the I thought about using this column to address these more sub- American Museum of Natural History. stantive questions. • Food and Flair. Following the reception, members For example, I could discuss the benefit of attending high- will be able to explore all that Prairiefire has to offer, quality educational programming—for personal and profes- with exclusive discounts for all who attend our confer- sional enrichment—regardless of whether you have CLE boxes ence, from high-end dining at The Newport Grill and to check. (I’m reminded of the conversation between Jennifer Wasabi Sushi Bar, to the more relaxed but no less de- Anniston’s character and her boss in the movie “Office Space.” licious fares of CocoBolos, Paradise Diner, Pinstripes, To paraphrase: “Look, we want you to [be a great lawyer], okay? and Rock & Brews. Now if you feel that the bare minimum is enough, then okay. But some people choose to [be better educated] and we encour- And Entertainment! It’s not just about the food and fossils. age that, okay? You do want to [be a great lawyer], don’t you?”) There will be ample opportunities—hosted by my colleagues in Or I could write about how we benefit—both individually the KBA Young Lawyers Section—for fun and a little friendly and as a profession—from being surrounded by lawyers who competition with other lawyers and judges. To give a taste: are enthusiastic about being lawyers. After all, networking with • The KBA has reserved the entire upstairs at Pinstripes people you don’t normally see, in different areas of practice or (http://pinstripes.com/). This indoor/outdoor venue’s from places you don’t normally go, can be enlightening, and tagline is “Bowling. Bocce. Bistro.” On top of great can lead to business opportunities and lifelong friendships. food, drink, and atmosphere, we are going to be run- Talking with more experienced attorneys or younger lawyers ning a bowling and bocce tournament. It’s time to get can give you a fresh perspective on how to approach items that a team and sign up! Maybe the Southwest Kansas Bar come across your desk. It’s interesting. And fun. Despite what wants to call out Douglas County for a bowling match. we’ve been told, lawyers are cool. You should come hang out. Maybe Wichita wants to challenge Topeka on the turf. And I could talk about the specifics of the fantastic program- Trial lawyers versus defense attorneys. ADO versus the ming that Greg Musil and the Annual Meeting Planning Com- DAs. Play alongside (or against) your colleagues or mittee put together this year. About how you’ll be inspired by judges. Want to be crowned the Bar’s bowling or bocce Thursday’s keynote speaker, Darryl Burton, who was wrongly champion? Contact me at [email protected] to convicted of a crime he did not commit and was later exon- throw down the gauntlet. erated—thanks to the help of some dedicated lawyers in our area. About how Friday’s nationally renowned keynote speaker, • Across the development, there also will be a Guitar Daniel Bowling, will help energize you and help you develop Hero competition going on at Rock & Brews (http:// habits to make you happy as well as successful. About the many www.rockandbrews.com/overlandpark/). Bring your other great events, from updates (Thursday) to break- aspiring musical self (or bring in a ringer) to compete. fast with judges (Friday) to the annual KBA Awards Ceremony [Insert mind-blowing guitar riff here.] (Thursday). About how many things there are to do around • Plus, there will be live music, shopping, and hopefully Kansas City, for both you and your family (who we hope you beautiful June weather. And lawyers! Who could say no will bring along), and the transportation that will be provided to that?! from the Doubletree to help facilitate the fun. Yes, I could talk about those things, any of which would be Bottom line—come to the KBA Annual Meeting in June. reason enough to come to Overland Park in June. But instead, There’s something for everyone. I’m excited, and I can’t wait to I want to focus on one aspect of the annual meeting that I am see you there! n ridiculously excited about: bowling. Well, bowling and bocce. And restaurants. And a world-class museum. In short, I want to About the YLS President talk about the KBA Night at Prairiefire on Thursday, June 18. Sarah E. Warner is an attorney at the Lawrence firm In place of the bar show, this year’s planning committee has of Thompson Ramsdell Qualseth & Warner P.A. developed a fantastic night for the attendees and their fami- She serves as an adjunct professor at Washburn lies at one of Kansas City’s newest venues—Prairiefire (http:// University of Law, and is a member of both the KBA visitprairiefire.com/), which features restaurants, shopping, and Appellate Practice Section executive committee and entertainment the likes of which exist nowhere else in Kansas. Board of Publishers. Specifically: [email protected] www.ksbar.org | April 2015 7 the diversity corner Inclusion, Privilege, and Other Uncomfortable Realities rowing up, I identified myself as Mexican. Because I “It’s not my fault I was born a white Protestant male in the am. My freckles and pale skin and red hair are pretty 1950s.” Opposing counsel in a case wickedly teased me with Gsneaky but my maiden name was “Lopez” and I grew these words a month or so ago. And I laughed, heartily. Being up eating from scratch Mexican food and hearing about my a well connected rich white guy has some pretty significant grandfather immigrating to the United States at 12 years of perks. Whether you acknowledge it or not. Heck, the truth age, by himself. He escaped the horrible fate of being forced is that being a poor, working class, poorly dressed white guy to become a child soldier by hiding in the confessional stall in means challenges, sure, but if you can talk the talk and work the local Catholic church while the revolutionaries killed and hard, chances are, no one will slam a door in your face. “recruited” young men in his village in Jalisco, Mexico. And People of color simply do not have that experience. You can somehow, two generations later, his granddaughter is an attor- work hard. You can come from money. You can know how to ney in the United States, living a wonderfully privileged and look and speak the part of a professional. And you still might blessed life. I never knew my grandparents (they died before I get pulled over for driving “too nice of a car.” I attended a big was born) but I knew their story and I am incredibly proud of sports university with pretty rigorous academic standards. My my heritage and their story. African-American friends were routinely (as in daily) asked If I had been born just two generations earlier, just two, I “What sport do you play?” They were asked this question by would have known Jim Crow, likely disenfranchised if I at- other students, teachers, local people in the community. Be- tempted to vote, probably told to jump in a lake when I ap- cause the natural conclusion was that if a black kid attended plied to college and law school and no question, my destiny that school they were an athlete, not an academic. would have been one assigned to me. As luck would have it, Are you tired of hearing these stories? I think most anyone I was born in 1978 and the fact that my last name was Lopez of color is tired of living these stories. But until these stories are had little to do with my ability to get an education and work not the reality for significant portions of our population, it toward a successful career. I have experienced discrimination is the duty of people in leadership roles, people of color and indirectly at times, called a “half-breed” and other lovely ex- most importantly wealthy, influential, well bred white males periences, but I shook it off. (and specifically, yes, attorneys) to keep telling them. Whether The changes in our society, which occurred shortly before you are comfortable with it or not, as an attorney you are a my birth, dramatically opened doors for me, personally. I am leader in the community. Friends, clients, your children look technically an ethnically “diverse” attorney, though my freck- to you for guidance and thoughtful analysis of our society. les would never tell you that. And I just so happened to marry If you ask attorneys if they wish there should be more at- a Caucasian law student and change my name. But, I take torneys of color, more judges of color, more partners of color nothing for granted because I know that many people sacri- they will say “yes.” Because that is what you’re supposed to ficed in ways I will never know, just so people with “ethnic” say. But the reality is that “wish” is as far as many attorneys last names would have the opportunities I’ve been given. go. No matter who you are and where your name falls on In 1976, President Gerald Ford formally adopted February the letterhead, it is important to educate yourself and speak as Black History Month. While Black History Month does about these problems. Talking does not create diversity, but not change the state of affairs, it allows society to take a deep at the very least it creates an environment where people can breath from Ferguson, from protests asking for the president’s speak candidly about the issue. Further, if you educate yourself birth certificate and from Title VII litigation and ask “how are and speak knowledgeably about the lack of diversity in our we doing?” And so I ask each of you to put aside the politics profession, you may find yourself working to right the skewed for a minute and truly, introspectively, ask whether the legal numbers. n world reflects the real world. The obvious answer is “no.” In our busy lives and full, consuming careers, diversity becomes About the Author one of those things we know we should work on but that we Jennifer M. Hill is a partner at the Wichita firm often relegate to the “when I have time” shelf. of McDonald, Tinker, Skaer, Quinn & Herrington Why? Why does diversity in our profession matter? We all P.A. She earned her bachelor’s degree from the know there are not many people of color on the or at University of Notre Dame in 2000 and her juris the partnership table. There are not many people of color in doctorate from Washburn University in 2003. Hill our profession at all. Truthfully, if the legal community does currently serves as president of the Wichita Bar Association and is past president of both the WBA not reflect the makeup of the population, it loses credibil- and Kansas Bar Association Young Lawyers sections. ity. Our system of justice and dispute resolution must look like the people trying to seek justice and resolve disputes. If [email protected] the system looks like a system that is unattainable for average people, then people seek out other ways to extract “justice.” In reality, this can evolve into a dissolution of our society and our culture.

8 The Journal of the Kansas Bar Association IMPORTANT: Check every session/event you wish to attend. These details are needed for food and meeting space provisions. Pricing all inclusive for registrants. Three Ways to Register! 1. Register online at (LOG IN FIRST) http://ww.ksbar.org/event/AM15 2. Fax registration to KBA at (785) 234-3813. 3. Mail this registration with payment or credit card information to: Full registration includes 2 days of CLE, program materials. Foundation Dinner and golf fees are Kansas Bar Association not included. Meg Wickham / Annual Meeting 1200 SW Harrison St. Refund Policy: Full refunds for registration will Topeka, KS 66612-1806 only be issued before Wednesday, June 10. Wednesday, June 17 Please note: the cost of golf is NOT tax deductible KBF Golf Tournament (Ironhorse Club) • 10 a.m. – 4 p.m. $100/person $ • $25 KBF donation with mulligans & strings ($50 at door) $ Driving range & putting greens open for practice • 9 a.m. registration, 10 a.m. start • Boxed lunch with burger or brat/chips/fruit/cookie/bottled water • Prizes awarded! • 2 drink tickets (soda, Gatorade®, or beer • Gary Woodland hole • Cash beverage carts throughout the course Participant Name Handicap or average score/18 Please assign me to a foursome. Please assign me to the following foursome:

KBF Dinner: The Kansas Bar Foundation Fellows invite anyone interested in learning about the Foun- dation to join them for their annual dinner on Wednesday, June 17 at the DoubleTree. Please RSVP by June 3 to Anne Woods at [email protected] or at (785) 861-8838. The dinner is a time to recognize donors and the recipient of the Robert K. Weary Award. The cost is $85 per person. Dress is semi- formal to formal. Thursday, June 18 7:30–8:45 a.m. Breakfast with Champions for a Diverse and Inclusive Bar 9–10 a.m. Opening Session/Welcome/Keynote Speaker Darryl Burton: I Am Not Bitter, But I Am Better: Journey from Convicted Murderer to Free Man OVERLAND PARK 10:10 – 11 a.m. How’s Life in D.C.: Highlights and Our Criminal Justice System: JUNE 17-19, 2015 Updates on U.S. Supreme Court Protecting the Public and the Decisions (1.0 CLE) Defendant (1.0 CLE)

11:10 a.m.– 12 p.m. How’s Life in Topeka? The Latest Get a (Social Media) Life Approved in Kansas for Highlights, Lowlights, Trends and (1.0 CLE, 1.0 LPM) 8.0 CLE, including 3.0 Rumors about Kansas Appellate E&P and 6.0 LPM. Court Decisions (1.0 CLE) Approved in Missouri for 12:15–1:30 p.m. KBA Awards Lunch (included in initial registrant price) 8.0 CLE, including 3.0 # of guests @ $40 / guest • Total $ professionalism hours. 1:40–2:30 p.m. How’s Life in the Legislature? Happy Lawyers: Making a Good Highlights and Updates on the Life in the Law (1.0 CLE, 1.0 LPM) Attendance is de nitely 2015 Legislative Session UMKC Law Prof. Nancy Levit encouraged for the (1.0 CLE) Book signing following. LPM content, but those I plan to preorder “The Happy hours will be capped at Lawyer” book no later than June 5 at 2.0 towards the annual www.rainydaybooks.com/KBA2015 requirement. Thursday, June 18 (continued) 2:40–3:30 p.m. 2x4s Are for Houses, 5x10s Are for Lawyers! Use Limited Scope Representation to Expand Basics of 5 Areas in 10 Minutes Each Your Practice: The Ethics and Application in (1.0 CLE) Kansas (1.0 CLE, 1.0 EP) Night at Prairiefi re 5–6 p.m. Reception/Mixer – Museum at Prairiefi re ...... # of guests 6 p.m. Pinstripes (bocce & bowling) ...... # of guests 6 p.m. Rock & Brew (Guitar Hero) ...... # of guests Friday, June 19 7:30–8:45 a.m. Breakfast with Judges 9–10 a.m. Opening Session/Welcome/Keynote Speaker Daniel Bowling: Well-Being and the Practice of Law: The Choices Happy Lawyers Make 10:10–11 a.m. Millennials and the Evolution of Leadership: De- Trends, Trials and Tribulations in the World of veloping 21st Century Leaders (1.0 CLE, 1.0 LPM) Employment Law (1.0 CLE) 11:10 a.m.–12 p.m. Mental and Behavioral Skills for Lawyer Examining Personal Challenges: Confi dential Happiness (1.0 CLE, 1.0 LPM) Assistance and Cooperation by KALAP and the Kansas Disciplinary Counsel (1.0 CLE, 1.0 EP) 12:15–1:30 p.m Casual Buffet Lunch (included in initial registrant price) # of guests @ $25 / guest • Total $ 1:40–2:30 p.m. Attract and Retain Top Attorney Talent: Law Student to Happy Lawyer: Making Successful Leveraging Flexible or Reduced Schedules Transition to the Real World. Ethical Lessons Im- (and Technology!) to Keep the Best and Brightest parted by Attorneys Under 35 (1.0 CLE, 1.0 EP) (1.0 CLE, 1.0 LPM) 2:40–3:30 p.m. Judges Have a Life, Too: The Good, The Bad, and Solo and Small Practitioners Have Headaches, The Ugly from the Bench (1.0 CLE) Too: Your Daily Dosage of 10 Websites, 10 Apps and 10 Hacks (1.0 CLE, 1.0 LPM)

Going Green Name Most conference materials will be available online Firm/Company Name one week prior to the conference and available on fl ash drives to all registrants attending the conference. Address Questions? Call (785) 234-5696. City State Zip Phone Fax Hotel Reservations KBA Member # Email The KBA has reserved sleeping rooms at the Your name (for name badge): Doubletree by Hilton Kansas City Overland Park Guest(s) name (for name badge): at a standard rate of $99 (plus tax). Reserve by Event Price Total calling (913) 451-6100 and mention you are part Full Conference Registration of KS Bar Association or group code KSB. Full Conference ...... $295. . .$ SUBTOTAL FROM WEDNESDAY...... $ Badges (Check all that apply) SUBTOTAL FROM THURSDAY ...... $ SUBTOTAL FROM FRIDAY ...... $ 2015 Annual (Meeting Speaker) GRAND TOTAL...... $ Meeting Planning First Time Attendee Committee Member Guest Payment Information Author (Journal Check Enclosed (Payable to Kansas Bar Association) or Handbook) Judge Award Recipient KBA Past President Bill to: Board of Governors KBF Fellow MasterCard Visa AmEx Discover Board of Trustees Moderator Account Number Section Offi cer Committee Chair Expiration Date CVC Young Lawyer Faculty Signature substance & style For Effective Persuasion, Don’t Neglect the Narrative “Sing, goddess, the anger of Peleus’ son Achilles A. Two Important Benefits of Legal Storytelling in and its devastation, which put pains thousand-fold Writing and Presentation 1 upon the Achaians . . .” Two of the greatest benefits that can come from the use of storytelling not only in motions and briefs but also in the pre- or as long as there has been humankind, there have been sentation of cases to judges and juries, are that legal storytell- stories.2 Stories are the predominant way in which hu- ing makes for a more persuasive presentation of the case, and, manity has always communicated, and because of this, F independent of its persuasive value, legal storytelling makes for our brains are “evolutionarily hardwired” to think in terms of a more understandable and accessible presentation of the case. stories and to comprehend information given to us in terms of stories.3 1. Storytelling makes a more persuasive presentation of the It is not surprising, therefore, that stories are important to case the practice of law, especially with regard to the art of per- By using the word “persuasion” in this context, I do not mean to suasion. Judges and jurors have one major thing in common: imply that storytelling is a magical tool through which the lawyer they are people. Because they are people, they more easily un- can somehow “trick” the judge or jury into ruling for or finding derstand concepts if those concepts are presented as part of a in favor of his or her client.7 Rather, the use of story can result in story. a more effective presentation of the case for a number of reasons. This is not a new concept. For a long time, lawyers have First, the effort required to construct a narrative presentation forces been taught that part of their job is “telling their client’s story.” the lawyer to understand how all of the parts fit together to make a However, only in the last twenty years have legal professionals coherent whole, and how adequate that story will seem to others.8 devoted serious study to the art of legal storytelling and the That allows the lawyer to understand what facts must be presented reasons that it functions as a persuasive tool. That study has to make the story work and what parts of the case may be particu- led to the creation of an entire field of “applied legal story- larly difficult for judges and juries to accept.9 Similarly, the act of telling” aimed at producing “how-to” scholarship regarding constructing a coherent story helps the lawyer understand not only storytelling that is “relevant to the practice of law.”4 The schol- what must be presented, but the order in which the presentation arship produced by the movement has included both instruc- needs to take place to gain the maximum persuasiveness. Anyone tion on how to incorporate narrative theory into specific legal who has had the experience of attending, or reading transcripts, of situations,5 and also more empirical study regarding the ef- legal proceedings when the presentation of the was not fectiveness of storytelling in such situations.6 connected to the underlying story should appreciate the impor- However, despite the substantial amount of evidence of sto- tance of this insight. Further, presenting a complete story that co- rytelling’s effectiveness, lawyers in practice often neglect that herently explains why the persons in it acted in the way they did useful tool, both in their writing of motions and briefs, and in is inherently more persuasive than simply presenting facts and law their presentation of witnesses and evidence at hearings and divorced from the underlying theme.10 trials. Part of that may come from an unfamiliarity with story- 2. Storytelling makes for a more understandable telling techniques, or from a failure to realize the role that sto- presentation of the case rytelling can play in legal work. While an extensive discussion Apart from its persuasive value, storytelling is useful because of applied legal storytelling and its uses is beyond the scope it makes the presentation of the case more understandable and of this column, I do want to highlight some of the important accessible to judges and juries. Because humans have always benefits of legal storytelling, some of the cautions when using thought in terms of stories, information told in story form is it, and where those interested in learning more about it can more comprehensible than the same information presented in find additional information. other ways. Not only does comprehension increase with the use of stories, but scientific studies have shown that informa-

Footnotes 6. See, e.g., Kenneth D. Chestek, Judging by the Numbers: An Empirical 1. The Iliad of Homer (Richard Lattimore ed. 1967). Study of the Power of Story, 7 J. ALWD 1 (2010). 2. See Kendall Haven, Story Proof: The Science Beyond the Star- 7. Although, wouldn’t that be neat? tling Power of Story 3-4 (2007). According to Haven, the evidence 8. See J. Christopher Rideout, Storytelling, Narrative Rationality, and suggests that “[h]umans have told, used and relied on stories for more than Legal Persuasion, 14 Leg. Writing 54, 64-66 (2008) (discussing the co- 100,000 years.” Id. herence and completeness of the story and its effect on persuasiveness). 3. Id. at 4. 9. See Carolyn Grose, Storytelling Across the Curriculum: From Mar- 4. Ruth Anne Robbins, An Introduction to Applied Storytelling and to gin to Center, from Clinic to the Classroom, 7 J. ALWD 37, 45-46 (2010) This Symposium, 14 Leg. Writing 3, 12 (2008). (discussing storytelling and its role in helping lawyers “figur[e] out what 5. See, e.g., Brian J. Foley & Ruth Anne Robbins, Fiction 101: A Primer matters”). for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive 10. See J. Christopher Rideout, A Twice-Told Tale: Plausibility and Nar- Fact Sections, 32 Rutgers L.J. 459 (2001); Margaret Moore Jackson, Con- rative Coherence in Judicial Storytelling, 10 Leg. Comm. & Rhetoric 67, fronting “Unwelcomeness” From the Outside: Using Case Theory to Tell the 70-71 (discussing the plausibility of the story in persuasion independent Story of Sexually-Harassed Women, 14 Cardozo J.L. & Gender 61 (2007); of the quality of the evidence). Stacy Caplow, Putting the “I” in Wr*t*ng: Drafting an A/Effective Personal Statement to Tell a Winning Refugee Story, 14 Leg. Writing 291 (2008). 12 The Journal of the Kansas Bar Association substance & style tion and experiences that are not framed in story form are not C. Putting Storytelling into Practice remembered as clearly as those that are.11 Through the use of stories, lawyers can present their cases in a format that can be Storytelling, used properly, can be a powerful legal tool. more readily understood by juries and judges alike, and one Fortunately, the explosion in scholarship that has arisen under the applied legal storytelling banner has made it easier than that will make it easier for the intended audience to retain the 16 information that is presented. ever for lawyers to learn more. Those who despair of finding the time to integrate the idea of storytelling into their docu- B. Important Considerations in Legal Storytelling ments should heed the advice of Professor Carolyn Grose, Of course, the fact that storytelling is a very effective way who notes that “the reality is that lawyers do all this anyway; we just don’t know we’re doing it, and we are therefore not to communicate does not mean that it is not subject to some 17 cautionary words regarding its usage. However, for the most doing it as intentionally, and as effectively, as we could be.” part, these cautionary considerations are not unique to sto- A lawyer tells his client’s story whether he or she wants to or rytelling; rather, they are considerations that are inherent in not. The story told should be the right one.n everything that lawyers do. About the Author 1. This isn’t a romance or action-adventure novel Simply put, the use of storytelling isn’t a license to use bad Jeffrey D. Jackson is a professor of law at Washburn prose. As Professor Kenneth Chestek notes, if the “writer uses University School of Law, where he teaches Legal Analyses, Research and Writing, Constitutional highly charged, emotional prose, the reader will see what the Law, Constitutional History, and Comparative 12 writer is up to, will feel manipulated, and will resist.” Re- Constitutional Law. He received his B.B.A. in member that this is a legal document, not a mass-market pa- economics from Washburn University in 1989, his perback. Don’t substitute adjectives for thought. J.D. from Washburn Law in 1992, and his LL.M. in constitutional law from Georgetown University 2. This isn’t a “based on a true story” treatment Law Center in 2003. While at Washburn, Jackson In their rush to tell a compelling story, many lawyers might was assistant editor for the Washburn Law Journal be tempted to leave out inconvenient facts or stretch to attribute and currently serves on the Kansas Judicial Council more-heroic motivations to their clients to make a better story.13 Death Penalty Advisory Committee. However, this defeats one of the greatest strengths of storytell- [email protected] ing, which is its ability to coherently explain in a believable man- ner why people acted as they did. Such license almost inevitably backfires when the audience tries to reconcile it with real life. As Alan Dershowitz notes: “In Chechovian drama, chest pains are followed by heart attacks, coughs by consumption, life insurance policies by murder, telephone rings by dramatic messages. In real life, most chest pains are indigestion, coughs are colds, insurance policies are followed by years of premium payments, and tele- phone calls are from marketing services.”14 3. This isn’t fiction This should be self-evident. Ethical rules still apply to story- telling.15 The story that you tell can’t be false, even if it would be a good one.

11. See Haven, supra note 2, at 4. 12. Chestek, supra note 6, at 34. 13. See Jeanne M. Kaiser, When the Truth and the Story Collide: What Legal Writers can Learn from the Experience of Non-Fiction Writers about the Limits of Legal Storytelling, 16 Leg. Writing 163, 164-65 (2010). 14. Alan M. Dershowitz, Life Is Not a Dramatic Narrative, in Law’s Stories 99, 100-01 (Peter Brooks & Paul Gewirtz eds. 1996). See also Kaiser, supra note 13, at 163 (discussing Dershowitz’s quote). 15. See Steven J. Johansen, Was Colonel Sanders a Terrorist? An Essay on the Ethical Limits of Applied Legal Storytelling, 7 J. ALWD 63 (2010). 16. For a partial bibliography of articles on storytelling, see Kenneth D. Chestek, Competing Stories: A Case Study of the Role of Narrative Reasoning in Judicial Decisions, 9 Leg. Comm. & Rhetoric 99, 135-37 (2012). A new updated and comprehensive biography is forthcoming at J. Christo- pher Rideout, Applied Legal Storytelling: A Bibliography, 12 Leg. Comm. & Rhetoric __ (forthcoming 2015) (accessible online through the Legal Writing Institute’s website at lwionline.org/uploads/FileUpload/rideout storytellingbiblio2014.docx). 17. Grose, supra note 9, at 47.

www.ksbar.org | April 2015 13 kansas lawyers assistance program Progress Rather Than Perfection1 t some point in our marriage when we had become comfortable with making “helpful little suggestions” Procrastination Hacks to each other, my husband would occasionally say, A 1. Work against your mood by using mandatory procras- “Anne, fast forward and get to the point.” Because the unex- tination. Lay out your material, set your timer for a amined life is not worth living, they say, I took a look at my short, weird interval like 4 or 7 minutes, literally do behavior and here’s what I found: it was a symptom of perfec- nothing for those minutes, then get started. tionism. Subsequently I realized two related facts: procrastina- tion is often caused by perfectionism, and the legal profession 2. Plan a nightmare day. List those tasks you have been experiences both at a high rate, often with detrimental effects. avoiding and do them on that day. This strategy is good for folks who like a challenge and a deadline. Going back to the “fast forward” comment, I realized that I was going into great detail about a matter because I was 3. Layer your workday by doing a task you like less for expecting criticism or counter-argument and I wanted to be a while, then a task you love. Repeat this throughout so perfect that the criticism was deflected from the beginning. the day. It’s called building a work sandwich. Not a bad strategy when used properly but not always use- 4. Divide big projects into baby steps or chunks. Set ful in casual conversation, and certainly not useful when it your timer for 15 minutes or 30 minutes and work on took over my mind and added a layer of stress. The criticism the task. When your timer goes off, decide whether part I traced partially to my growing up circumstances. The or not to reset it for another 15- or 30-minute time counter argument part, well, that’s obvious – it’s the way we’re block. Most tasks seem more manageable when bro- trained as lawyers. Anticipating counter arguments and being ken down this way. prepared to refute them is a big part of what we do; and it can 5. Picture your success with the project done on time become part of who we are. and all of the benefits. Imagine yourself literally doing But what about when perfectionism veers out of control, the task, and then get started. and we stay up all day and all night researching every case going back decades that relates to some fairly tangential piece of our argument? What about getting to the point that we Today says “The quest for perfection also leads to dithering 3 can never admit error and grow increasingly rigid because we, . . .” and may even lead us to abandon the project completely. along with our work product, must be perfect at all times? Or we may become “trapped in a miasma of permanent dis- 4 What about seldom to never taking time away from work be- satisfaction.” Recognizing that point at which continued tin- cause we’re sure no one else will do it right? What about when kering in pursuit of perfection reaches the law of diminishing perfectionism leads to procrastination and procrastination returns is a hard skill to learn, but necessary. leads to an ethical violation? Failures in diligence and com- That point is where the concept of “good enough” comes munication are in the top five areas of ethical lapses and they in. Most of the time we think of “good enough” as “settling are often caused, at least in part, by procrastination, which in for” or “less than,” and undesirable – definitely not up to our turn, is an aspect of perfectionism. standards. But what if it meant “The best I can do today, even An aphorism attributed to Voltaire is: “The perfect is the though it may lack something.” Isn’t that a more workable enemy of the good.” The most common explanation of the standard? Not to mention a more realistic one. As in “This phrase (in Wikipedia) is the understanding that the achieve- column isn’t perfect but I tried to make it good enough.” n ment of absolute perfection may be impossible and so, as in- creasing effort results in diminishing returns, further activity About the Author becomes increasingly inefficient. Another site takes it a step Anne McDonald was appointed to the Lawyers further: If you are too ambitious and try to make something Assistance Program Commission at its inception in better than you are capable of, you may ruin it.2 2001 and has served as the Executive Director of Looking at it from another angle, we might go to exces- KALAP since 2009. She graduated from the Univer- sive lengths to make the good become perfect and miss other sity of Kansas School of Law in 1982. opportunities in the meantime. And in any case, Psychology [email protected]

Footnotes 1. In Chapter 5 of “The Big Book of Alcoholics Anonymous,” the au- thors say that members “claim . . . progress rather than . . . perfection.” Alcoholics Anonymous, The Story of How Many Thousands of Men and Women Have Recovered from Alcoholism, ch. 5 (4th ed. 2001), available at http://www.aa.org/assets/en_US/en_bigbook_chapt5. pdf. 2. http://idioms.thefreedictionary.com/best+is+the+enemy+of+the+good. 3. Alex Lickerman, Why Perfect Is The Enemy of Good, Psychology Today (June 26, 2011), https://www.psychologytoday.com/blog/happiness- in-world/201106/why-perfect-is-the-enemy-good. 4. Id. 14 The Journal of the Kansas Bar Association a nostalstic touch of humor Making Time for What’s Important mazon shows 335,568 books under the heading “too I called, he responded. “Sure.” And that’s when I came to busy.” The literary works include a fascinating assort- understand something else about “busy people” – if you want Ament of subjects for which the busy word has apparent something done, ask someone who is really busy to do it. They relevance – ones on “Too busy to pray, eat, exercise,” “Too are skilled at managing, adapting, achieving. busy to budget financial goals,” “Too busy to notice,” “Too My Cubmaster journey lasted four years and helped shape busy thinking about my baby.” There were many more books some of the best experiences I have today with my three sons listed but I was well, you know, too engaged, to read them all. and with a handful of other adults who had the courage to Admittedly, though, “Too busy to die” did pique my interest. pick up the phone. And along the way, I made wonderful Roughly 15 years ago I had my own “too busy” experience friendships that remain today. that might be worthy of its own book. The title would be some- And so with the Kansas Bar meeting approaching, some of thing like “You agreed to do what?” Due to a convergence of these considerations return to my mind. Our Bar Association circumstances that occur with the frequency of Halley’s Comet, represents all of us, but the organizers are fellow professionals I became the Cubmaster for Pack 3096 in Leawood. The Cub- who are unquestionably jammed up, and yet finding time to master is akin to the organizer of a circular firing squad – I organize and orchestrate an event that will entice us to come found one description that said: “Conduct the pack program and contribute for two days in June. And then equally busy according to the policies of the Boy Scouts of America. Plan colleagues make time to attend and contribute in their own and carry out the Cub Scout program in the pack. This includes way. conducting regular monthly pack meetings.” Greg Musil is the chair of the KBA Annual Meeting Plan- The “how-to” packet resembled something put together by ning Committee. Greg is a constant presence in both the NASA for the Apollo Mission. metropolitan bar, and all things Johnson County. Adding to Unofficially, the title is “chaos coordinator.” Or my wife’s Greg’s “to-do” spreadsheet is networking with his new firm – description: “Avoiding the ER and creepy volunteers no one Douthit, Frets, Rouse, Gentile & Rhodes. And while this col- recognizes.” At that time our Pack was the largest of any in umn was still rolling around my head, I was driving through Johnson County – some 125 members – boys between grades my neighborhood and saw a yard sign in my neighbor’s yard. 3-5. And that truism came back to mind – busy people find a way. This moniker was tossed around my shoulders at a time The sign? “Re-elect Greg Musil, Johnson County Commu- when I was a 40-year-old attorney and lots of legal work was nity College Trustee.” n rolling downhill and my office was gravity-friendly. The number one task ahead was to recruit other adult volun- About the Author teers. The moms – who would serve as den leaders – stepped Matthew Keenan has practiced with Shook, Hardy up quickly. I found an abundance of dependable, reliable, cre- & Bacon LLP, Kansas City, Mo., since 1985. ative moms who raised their hands to assist. But it was dads that were in demand; plus an assistant Cubmaster, someone [email protected] to run the Pinewood Derby, and someone to organize and do “dad things.” This was in the days of the land-lines, and caller ID was the rage. The word got out that I was looking for men volunteers and suddenly all my friends became acquaintances. Caller ID gave me away as repeated calls went straight to answering ma- chines. But those I did speak to gave me the all too familiar – “too busy,” “travel a lot,” “gone all the time.” Busy is a relative term, and, for example, the mother of three who takes your order at McDonalds probably has a different appreciation of that term than the rest of us. But that experi- ence of asking for help and finding excuses has stuck with me. I’ve seen it crop its head in many other contexts – sometimes in the legal world, sometimes as a parent, but it’s become the go-to excuse for young and old. So this was September 2000 and I still hadn’t found an As- sistant Cubmaster. In my pursuit for another dad, one name that came to mind was a physician – a neurosurgeon actually. We shared Western Kansas roots and a love of scouting, but he was and remains the top neurosurgeon in the city. He was, without question, truly, actually busy doing things like saving lives.

www.ksbar.org | April 2015 15 law practice management tips & tricks Ransomware – Your Data for Dollars don’t know who you are. I don’t know what you want. Prevention If you are looking for ransom, I can tell you I don’t have money. But what I do have are a very particular Avoiding ransomware infections should be the primary aim “Iset of skills, skills I have acquired over a very long career. Skills of lawyers. The basic steps for avoidance and treatment are rela- that make me a nightmare for people like you. If you let my tively simple. data go now, that’ll be the end of it. I will not look for you, I • Back up religiously. Maintaining thorough backup will not pursue you. But if you don’t, I will look for you, I will habits significantly reduces the leverage ransomware find you, and I will kill you.” can exert on you. Why pay to decrypt data you have Sure, you may mutter that famous phrase from “Taken” if you elsewhere? discover your data held hostage with ransomware. Be honest • Use reputable, updated antivirus software and a though. You have no particular set of skills to aid in tracking firewall. Keep antivirus software running and update down a digital devil. You will not pursue them, you will not catch it daily. Work with an IT provider to tweak firewall set- them, and you most certainly will not kill them. Just as likely, you tings including “blacklists” for known problem sites. will grumble, curse, and maybe pay the ransom for your data. • Use a browser with a pop-up blocker and enhance it Computer as Hostage with a reputable ad blocker. Dangerous ads continue to be the vector for most malware and can even cause The concept of ransomware is simple. You click a hostile pop- problems on otherwise reliable sites. up ad or visit an infected website and the ransomware installs • Think before you click. If something is odd, out-of- on your computer bypassing security holes in the operating sys- place, too good to be true, in your face, etc., then it tem. Bad Guys then demand a ransom. represents a potential vector for dangerous infection. The more interesting variants encrypt the data on your com- Close it out. puter and put a timer on demands. For example, one type of ran- • If infected, disconnect. Remove a computer from the somware threatens to delete select files every 30 minutes that the network the minute it even appears infected. Discon- demand is unpaid. Another version escalates the cash demand nect the Ethernet cable and turn off Wi-Fi. Shut down after 24 hours and ultimately destroys the data if 48 hours pass the computer. without payment. Some newer variations aim to sweeten the deal • Reinstall instead of removing. Often it will be easier and convey good faith (or capability) by offering to decrypt one and safer to completely reinstall everything, including file for free before making a full demand for the rest of your data. the operating system, on an infected computer. Good Unfortunately and disturbingly, ransomware is popping up that backups are critical but you are religious about backing has the ability to spread from the infected machine out to other up, right? computers and drives on the network. • Contact a reliable IT resource. Some of the ransom- Threats from ransomware are not confined to the desktop ware attacks observed in the wild have been flawed computer. Smart phone infection of Android and iOS devices and relatively straight-forward to reverse. Data can be has also been observed in the wild. Investigators in Tennessee recovered sometimes when backups were not made or reported an instance when ransomware downloaded child por- cannot be trusted. nography to a 12-year-old girl’s phone. An official-looking mes- • Notify authorities. It may seem they are uninterested, sage accompanied the pornography with references to criminal but several high-profile cases demonstrate interest and penalties and offered to make the problem go away for a fee. capacity to prosecute. In June 2014, the U.S. Depart- She went to , though experts fear many adults would cave ment of Justice seized the Gameover ZeuS botnet help- in and pay to avoid even the possibility of being linked to child ing to isolate one of the more publicly successful ran- pornography. (One investigation of a ransomware infection somware rings. turned up evidence that the victim was, coincidentally, traffick- ing in child pornography.) Ransomware is an old computer problem and it is not going Response away any time soon. In fact, late 2014 actually saw a resurgence and even regional targeting. Liam Neeson will not come to our Law enforcement and security experts advise against paying aid, chasing our data across three continents, so it is important ransoms to rescue a computer. Paying may rescue data but also for lawyers to pause for a moment to consider – and test – how creates a market for more such exploits. Late last year, the city to avoid and respond to such an attack. n of Detroit was hit with a ransomware attack but the staggering demand for $800,000 was refused. The city relied on backups About the Author and the good luck that affected computers were non-critical. Had the demand been lower, the city might have acted dif- Larry N. Zimmerman is a partner at Zimmerman & Zimmerman P.A. in Topeka and an adjunct professor ferently. By contrast, the Dickson County (Tennessee) Sher- teaching law and technology at Washburn University iff’s Office paid $500 to rescue 72,000 files, including sensitive School of Law. He is one of the founding members of documents, autopsy results, photographs, and criminal reports. the KBA Law Practice Management Section. Sometimes, the stakes are high enough and the price is right to [email protected] deal with the devil. 16 The Journal of the Kansas Bar Association law students’ corner Enjoy the Ride s my 3L year begins to wind down, I cannot help but a good but not great high school experience, law school being reminisce over the past three years of law school. It has like high school is not a bad thing. Even for those who did not Abeen a crazy ride and, while I am not sure I would want like high school, I think that law school takes the good parts to do it over again, it has been an unbelievable time in my life, of high school and gets rid of most of the bad. The most posi- and the opportunities that have been afforded to me at KU Law tive part of law school being like high school is that you see the have put me in a position that makes my future bright. same people every day and, unlike high school, they often share Now I could go on and talk about all of the amazing profes- many of the same interests. This makes we want to hang around sors I have had or the doors KU Law has opened for me, but I the law school a little bit more because it is my last opportunity am not going to. That is not to say that I have not had amazing to have a large friend group that is close largely by virtue of the professors or that KU Law has not opened a ton of doors for me fact that we see each other so often. Sure, for the rest of my life (it has), but I want to focus on a part of law school that I think I will make new friends here and there, but largely those will be gets lost on a lot of people. It is easy to get caught up in the law in settings like work, my kid’s school, or other couple-friends. school rat race and forget to just enjoy the ride. Whether it is going to TGIT, weekly trivia events, late-night What do I mean by “enjoying the ride”? I don’t mean that study groups, or any other group activity you can think of, you should just coast along, treat law school like undergraduate don’t go through law school alone! education, and get your JD after three years with not a whole lot Finally, find something that you enjoy about law school and to show for it. Sure, you would come out with a graduate level do it, whether it is a class or an extracurricular law-related activ- degree from what I believe to be the pinnacle of a liberal arts edu- ity. All of us have classes that we would rather not take again cation, but you would likely have developed few skills and your but there are other classes or teachers that you may have abso- job prospects wouldn’t be hot. On the other hand, “enjoying the lutely loved. Follow the subjects and professors that inspire you. ride” also does not mean that you should treat law school like a The key is that there is not one thing that I am going to say you 100-hour a week job at Goldman Sachs. Outlining, case briefing, have to do or take, but it is imperative that you find something and getting excellent grades are good and all, but if you are put- about law school that you really like and do it! ting in all of the hours to the neglect of your friends, family, and While I could go on and on about other ways that you can classmates, then you are not going to have very happy memories “enjoy the ride” in law school, these three provide a starting of law school when you look back on it. Also, the real world is point and even if you find none of my suggestions helpful, undoubtedly a lot more difficult than law school, so while you hopefully you can think of something to ensure that you enjoy may not have as much free time as you did during undergrad, your remaining semesters in law school. As for me, I’ll being you have more free time now and certainly much greater flexibil- doing a lot of my first and second options this semester, com- ity with your hours than you will for the rest of your life (I hear bined with a healthy dose of Netflix, and trying not to think that most partners don’t allow for midday naps). too much about the Bar Exam that I am going to have to take So, I have said what I don’t mean by “enjoying the ride,” but about three months from now. n I need to further explain what I think it does mean. While there are likely countless others, the following are three ways that I try About the Author to “enjoy the ride” of law school. First, find joy in the ebbs and Thomas Hiatt is a third-year law student at the Uni- flows of daily life in the law school. While it is understandable to versity of Kansas School of Law. He was a summer dislike having to do hours and hours of reading each day, find joy associate at Spencer Fane Britt & Browne, where in the impromptu conversation with a professor you see in the he will return full time upon graduation. During hall or the Burge lunch with one of your best law school friends. law school, Hiatt was president of Phi Alpha Delta, Second, law school is a lot like high school and that does a member of Moot Court Council, and a Shook, not have to be a bad thing! As a self-identifying nerd who had Hardy & Bacon scholar during the spring semester.

www.ksbar.org | April 2015 17 kba news Members in the News Changing Positions Rebecca Mann has been named a share- Miscellaneous holder with Young Bogle McCausland, Joan K. Archer and Nathan E. Oleen have Kenneth L. Cole, Russell, was recently rec- Wells & Blanchard P.A., Wichita. been named partners at Husch Blackwell ognized by the Gorham City Council for David S. Martin has become a shareholder LLP, Kansas City, Missouri. achieving 25 years as the city attorney. with Gilmore & Bell P.C., Kansas City, Christopher L. Arellano, Matthew K. The Wichita Bar Association has announced Missouri. Holcomb, and John E. Rapp have been its officers for 2015-16: Holly A. Dyer Jeffrey A. Pyle has joined Martin- added as members of Hinkle Law Firm, will serve as president; Marcia A. Wood, dell Swearer Shaffer Ridenour LLP, Wichita. president-elect; Kellie E. Hogan, vice Hutchinson. Chad E. Blomerg and Amy M. Brozenic president; Gwynne H. Birzer, secre- Melissa D. Richards has joined Weary have been selected partners at Lathrop & tary-treasurer. Board members include Davis L.C., Manhattan, as an associate. Gage LLP, Kansas City, Missouri. Rebecca Mann, Deborah B. McIlhenny, Jerald W. Rogers has joined Spirit AeroSys- Ross A. Boden has joined Sandberg Phoe- C. Edward Watson, and Hon. William tems Inc., Wichita. nix, Overland Park, as an associate. S. Woolley. Ryan W. Rosauer has been appointed a Matthew P. Clune has been promoted Forker Suter LLC, has changed its name district judge of the 8th Judicial District, partner at Martin Pringle Oliver Wallace to Forker, Suter, Robinson & Bell LLC, Junction City, by Gov. Sam Brownback. & Bauer LLP, Wichita. Hutchinson. Seth L. Rundle has been named a district Douglas C. Cranmer has become the Karen R. Glickstein, Kansas City, Mis- judge of Division 5 in the 18th Judicial managing member of Stinson Laswell & souri, received the Defense Research District, Wichita. Wilson L.C., Wichita. Institute’s Mary Massaron Award for the Timothy A. Shultz joined Goodell, Strat- F. William Cullins has been named chief Advancement of Women in the Legal ton, Edmonds & Palmer LLP, Topeka, as judge of 14th Judicial District, Indepen- Profession. special counsel. dence. Hon. Cheryl R. Kingfisher, Topeka, has Sean D. Ervin has joined Douthit Frets Changing Places been selected to co-chair the National Rouse Gentile & Rhodes LLC, Leawood. Association of Women Judges’ Informed Michael J. Hoelscher has been named DeVaughn James Injury Lawyers has Voters Project committee. district judge of Division 19 in the 18th moved to 3241 N. Toben St., Wichita, Amy J. Mellor, Great Bend, was appointed Judicial District, Wichita. KS 67226. to the Commission on Officers Cole A. Hoffmeister has been made a Lewis Brisbois Bisgaard & Smith LLP has Standards and Training by Gov. Sam member of Emert, Chubb & Gettler opened a new office location, 1605 N. Brownback. LLC, Independence. Waterfront Pkwy, Ste. 150, Wichita, KS Shannon L. Holmberg has joined First 67206. Editor’s note: It is the policy of The Journal National Bank of Hutchinson in the Linda I. Priest has started her own prac- of the Kansas Bar Association to include First Wealth Management Department, tice, Law Office of Linda I. Priest, 1005 only persons who are members of the Kansas Hutchinson. N. Market, Wichita, KS 67214. Bar Association in its Members in the News Mark A. Kanaga has been been named a Edward L. Robinson has formed Robin- section. partner with Kutak Rock LLP, Wichita. son Law LLC, 2313 N. Zoo Park Circle, Rachel E. Lomas has become new part- Wichita, KS 67205. ner at Hite Fanning & Honeyman LLP, Wichita. Obituaries Deborah E. “Debbie” Berkley Carol Llewellyn (Buchele) Bonebrake Deborah E. “Debbie” Berkley, 63, died March 20 at Hos- Carol Llewellyn (Buchele) Bonebrake, 65, of Topeka, died pice House of Reno County, Hutchison. She was born Feb- February 26 at the University of Kansas Medical Center. She ruary 29, 1952, the daughter of Harold Rayfield and Doris was born December 28, 1949, in Arkansas City, Kansas, the Eleanor (Corman) Berkley. daughter of Julian and Vergie (Bryant) Buchele and grew up Berkley was a Great Bend resident and an attorney. She was in Cedar Vale, where she graduated from high school in 1967. a member of Elks, Golden Plains Quilts of Valor, which she Bonebrake received her bachelor’s degree with honors from started, CASA, and American Legion Post 180 Auxiliary. Kansas State University in 1971 and her juris doctorate, cum Survivors include her mother, Doris Berkley, of Great Bend; laude, from DePaul University in 1975, where she was a mem- one daughter, Jennifer Zupfer, of Vancouver, Washington; one ber of the DePaul Law Review from 1973-75. sister, Terri Rous, of San Jose, California; one grandson, Ma- She was a partner with the law firm of Cosgrove, Webb and son Zupfer, of Vancouver, Washington; one niece, Sarah De- Oman since 1987, where her areas of practice included taxa- Witt, of Pearl Harbor, Hawaii; and one nephew, Darren Rous, tion, litigation, wills, probate, and . Bonebrake was a of Fort Worth, Texas. member of the Kansas and Minnesota State bar associations. She had worked for the law firm of Dorsey and Whitney in 18 The Journal of the Kansas Bar Association kba news

Rochester, Minnesota, from 1975-79, as counsel for the Mayo From 1998 to 2004, Fox served as squadron commander of Clinic, and then served as the director of taxation for the state the Civil Air Patrol, Topeka Eagle Composite Squadron, Kan- of Kansas from 1979-87. sas Wing. He received numerous meritorious service awards Bonebrake was a member of the Topeka Lawyer’s Club; and commander’s commendation awards for his service. SOABs; YWCA Board; and CASA of Shawnee County, where Fox is survived by his wife, Claudia Dillon, of the home; she had served on the board and was past board president. his daughters, Jenni Fox and Carissa Robertson; his mother, She is survived by her husband, Dr. Richard Bonebrake; her Marjorie Fox; and his sister, Susan Sparks. children, Dr. Michael Bonebrake, of St. Louis, Ashley Fair- Kari Lynette Gilliland child, of Gardner, Natalie Bonebrake, of Denver, and Mat- thew Bonebrake, of Kansas City, Kansas; and her sisters, Hon. Kari Lynette Gilliland, 44, died March 9 in St. Francis. She Nancy Parrish, of Topeka, Barbara Buchele, of Winter Park, was born September 11, 1970, in St. Francis. Florida, and Phyllis Buchele, of Lawrence. Survivors include her husband, Dustin, of the home; her John C. Eisele children, Joel and Molly, of the home; brother, J.W. Milliken, of St. Francis; sister, Kelly Milliken, of Denver; her parents, John C. Eisele, 84, died on January 22 in Corpus Christi, Jim and Ruth Milliken, of St. Francis; and in-laws, Don and Texas, while residing at the Cimarron Place Nursing Home. Sherri Gilliland, of Bird City. He was born on January 7, 1931, in Bartlesville, Oklahoma, Harland Kenneth Rieger to Ernest and Martha Eisele. He received both his undergrad- uate and law degrees from the University of Kansas. Eisele Harland Kenneth Rieger, 77, of Topeka, died February 4, practiced law in Johnson County for more than three decades. in Albuquerque, New Mexico, at the Raymond G. Murphy Eisele is survived by his wife, Jane; his former wife, Janet; his Veterans Administration Medical Center. He was born August children, John Eisele, of Fort Collins, Colorado, Sarah Moe, 18, 1937, in Clay Center to Opal Leona Heath Rieger and of Albuquerque, William Eisele, of Olathe, and Mary Riley, of Ernest Carl Rieger. He graduated from Topeka High School Nixa, Missouri; and 12 grandchildren. and later from Washburn University in 1961. Rieger gradu- Robert A. Fox ated from Washburn University School of Law in 1964. Rieger served as a member of the Kansas National Guard Robert A. Fox, 61, died February 25 in Topeka after a short and the U.S. Air Force in active and reserve duty with the battle with cancer. He was born April 25, 1953, the son of Judge General Corps for 36 years; he retired as a Robert D. and Marjorie Fox in Grand Island, Nebraska. He lieutenant colonel. He served as an assistant district attorney graduated from Fairview High School in Boulder, Colorado, in Shawnee County and later established a private practice, in 1971 and graduated from Hastings (Nebraska) College practicing for over 40 years. in 1976. He graduated from law school at the University of He is survived by his wife, Barbara "Bobbi" Rieger, of Albu- South Dakota in 1979. querque; his two daughters, Cardinal Rieger, of Albuquerque, Fox lived in Hutchinson from 1979-88, working in private and Tonna Burgos, of Corrales, New Mexico; three grand- practice and later as Reno County juvenile prosecutor. He chilren, Mateo, Mayo, and Salome Burgos, of Corrales, New moved to Topeka in 1988 to work for the Kansas Corporation Mexico; and many nieces and nephews. He was preceded in Commission as deputy general counsel and later for Foulston death by his parents; his sister, Maralene Joan Wallter; and his Siefkin in Topeka until 2009 when he became assistant Jef- brothers, Bill Earnest Rieger and Wayne R. Rieger. n ferson County attorney. In 2011, Fox was appointed Jeffer- son County attorney before finishing his career at the KCC as chief litigation counsel.

www.ksbar.org | April 2015 19 Happy 800th Birthday, Magna Carta

By Mike Hoeflich

Magna Carta, 1215. One of four surviving copies written on sheepskin parchment by a single scribe. Source: The British Library.

wenty miles west of London is a small meadow called Magna Carta has been characterized by A.E. Dick Howard, Runnymede. In this meadow 800 years ago King John of one of its best known interpreters, as an “intensely practical TEngland and his barons met to settle what was threaten- document” created by “practical men.”5 It was, above all, a ing to become a major internecine conflict. John, a member of document firmly grounded in the feudal system then in place the Angevin dynasty, had suffered a stunning defeat in France in England that put the king at the top of a political and legal and lost much of his French territories. At the same time the hierarchy, followed by the great barons. Under feudal law, all king had quarreled with Pope Innocent III, a quarrel which had land belonged ultimately to the king and the barons held their led to his being excommunicated and church services in Eng- rights from the king and owed feudal duties to him.6 The bar- land being suspended on the order of the Pope. John’s French ons, in turn, granted land and prerogatives to lesser men who wars had been expensive, as had the crusade and kidnap ransom owed them feudal duties.7 In the course of the years preceding of his predecessor King Richard. To pay for all of those royal the issuance of Magna Carta, the king had imposed ever in- adventures, the barons of England had been taxed and taxed creasingly onerous financial and other duties upon the barons again. By 1215 the barons had had enough. The king had been and had usurped many of their most profitable feudal privi- weakened by his defeats and his battles with the Pope, and the leges. In Magna Carta, the king was forced to reduce those barons were in revolt. In June the two sides met at Runnymede financial burdens and guarantee the privileges to the barons to find a peaceful means of ending the conflict between them. that they felt had been unjustly taken away from them. On June 15, the barons and the king reached what has been Today it is popular to see Magna Carta as a kind of proto- called a “peace treaty” by some scholars.1 In fact, the barons and bill of rights and to find in it many of the had demanded a series of political, legal, and financial conces- sions from the king, and the king granted them in the form of a royal charter. They were not consciously attempting to draft a constitution in the modern sense, nor is it likely that either side believed that the agreement that they reached on that English summer day would become one of the cornerstones of Eng- lish law. Indeed, John soon asked Pope Innocent to nullify the charter. But the grants made by John that day did indeed last, because the charter that was agreed to by King John on that day would some centuries later come to be called the Great Charter or, in Latin, Magna Carta.2 Magna Carta was first issued in 1215 and was neither a con- stitution nor was it formally created as a a statute at first.3 It was reissued in 1216, 1217,1225, 1297, and 1300. In the course of reissuance the language of the Charter underwent some changes; there are significant differences between the earliest version of 1215 and the version of 1225.4 In spite of those differences, the provisions that are of greatest signifi- cance to us today remained virtually the same in all versions. “King John Signing Magna Carta,” by James Edmund William Doyle, which appeared in Chronicle of England, 1864. Source: Wikimedia Commons. 20 The Journal of the Kansas Bar Association doctrines enshrined in the United States Constitution. That is a somewhat anachronistic view. The truth is that Magna Carta was neither a constitution nor a bill or rights as we under- stand such things. But Magna Carta did introduce certain ba- sic principles into English law and governance, principles that inspired so many of the civil liberties we enjoy today. Even more important, Chapter 39 of Magna Carta quite clearly enunciated the fundamental notion of “due process” of law: No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will we proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.8 It was the last phrase of Chapter 39, the reference to the su- premacy of the “law of the land” which, several centuries later became the basis for Sir Edward Coke’s arguments against royal claims of supremacy.9 Coke, one of the greatest common lawyers of all time was the chief architect of the theory that all men, including the sovereign, were subordinate to the law. Chapter 39 of Magna Carta provided Coke with the historical justification for that claim.10 Coke’s theory of the supremacy of law over men was incorporated by William Blackstone into his Commentaries on the Laws of England, and through the Commentaries became one of the basic principles of American law and government.11 Magna Carta itself was one of the principal texts used by the colonists in North America and continued to inspire American law during at the founding of the new republic. It was then and continues to be today one of the founding documents of the American idea of a government of “laws not men” and, is thus, one of the bases for American democracy. n

About the Author

Michael H. Hoeflich is the Kane Distinguished Professor of Law at the University of Kansas School Magna Carta, 1297, issued as part of Law. He has been on the faculty since 1994. of Edward I’s Confirmation of Hoeflich has degrees from Haverford College, Charters. An issue is on permanent Cambridge University, and Yale Law School. loan to the National Archives in Washington, D.C. Source: U.S. [email protected] National Archives & Records Administration.

Endnotes 7. This was the process known as subinfeudation. 1. See M. Dillon, “Magna Carta and the United States Constitution: An 8. In Howard, supra n.2, at 43. Exercise in Building Fences,” in Magraw, Martinez & Brown, Magna 9. See Dillon, supra n.1, at 99-105. On Coke, see A. Boyer, Sir Edward Carta and the Rule of Law (2014), 82-110, at 85. Coke and the Elizabethan Age (2003). A wonderful popular biography 2. Magna Carta was written in Latin. The best modern translation is found of Coke is C.D. Bowen, The Lion and the Throne (1957). in A.E. Dick Howard, Magna Carta. Text and Commentary (1964). 10. Dillon, supra n.1, at 99-105. 3. Magna Carta did not become part of the English statutes until 1297; 11. Id. at 108-09; and see W. Blackstone, The Great Charter and see Magraw, supra n.1, “Introduction” at 5. Charter of the Forest with Other Authentic Instruments (1759). 4. Dillon, supra n.1, at 85-86. 5. Howard, supra n.2, at 8. Learn more about Magna Carta in the 6. On the feudal system in general, see M. Bloch, Feudal Society, trans. Manyon (rpt. 1964), see also, S.F.C. Milsom, The Legal Frame- March 2015 issue of Law Wise. work of English Feudalism (1976); see also R. Turner, “The Making of View online today at http://www.ksbar.org/lawwise. Magna Carta. The Historical Background,” in Magraw, supra n.1, 17-81.

www.ksbar.org | April 2015 21 Over 1,000 Child Adoptions and No Signs of Slowing Down for Gene Balloun “I just try to work hard and do a good job and help people,” he ex- plained. “It’s just part of my makeup frankly. It’s like people say, ‘Well, when are you going to retire?’ and I say, ‘Well, never.’” Balloun doesn’t practice in adop- tion, in fact, his field of practice is commercial litigation. It’s what he has done for most of his career, and he said his pro bono work in adop- tion has been a nice contrast. “I feel like I do a good job of it and I enjoy trying to solve problems and satisfy clients and work out the is- Attorney J. Eugene Balloun is given a standing ovation by the courtroom audience in the Johnson County District sues so everybody goes away feeling Court following his 1,000th child adoption case. Source: Shook, Hardy & Bacon LLP. as good as they can about it,” he said. Balloun grew up in Depression-era t started back in 1987 when Kansas City attorney J. Eugene Russell with three brothers, one sister, and four cousins on Balloun and his wife, Sheila, made the decision to become the edge of town. Like most kids, he worked, having a paper foster parents. Being a lawyer in a support group for foster I route, working construction, on the farm, or at a flour mill. parents, he was always asked for legal advice and was more Balloun said he did all those things by the time he was ready than happy to oblige. The legal advice was the beginning, and for college. Of course, he got into the cattle business, because then he was handling their adoptions, but at no charge. his family had a “semi-farm.” In fact, Balloun helped pay for “Becoming foster parents changed our lives,” Balloun said. college with three Holsteins that he raised. “If we were given the privilege of being lawyers, it’s such a “You scraped and did whatever you needed to do,” said great opportunity to give back.” Balloun. Throughout the years, he and his wife have taken care of 29 While growing up during that time period, Balloun said, foster children, including two that they adopted. people developed a stronger work ethic, and that becomes a “As I watched my own kids that we’ve adopted, you looked part of your life. and you say, ‘I wonder what their life would’ve been like if we “I think having a purpose in life is important, and frankly I had not come along,’” Balloun said. think it probably keeps you healthier,” he explained. Thirteen years ago his wife had the idea of creating a schol- For Balloun it’s about where he can do the most good, and arship fund from the attorney fees paid by the state. His firm, that’s where he has tried to focus. n Shook, Hardy & Bacon LLP, was more than happy to help. The fund, administered by the Greater Kansas City Commu- nity Foundation, has granted over $625,000 in educational scholarships to nearly 500 students who have been foster chil- dren in Kansas. Balloun and Shook Hardy accept adoptions from across the state of Kansas. As Balloun explained, if an agency calls and says there’s an adoption in Hays, Shook Hardy will au- tomatically say yes and call a lawyer in Hays to partner. The firm will handle the paperwork, the pleadings, and contacts with the client, and the lawyer in Hays will take the family to the courthouse and complete the adoption once it’s set up. “I feel like we are doing a public service, that first of all benefits children and second, kind of secondarily, is improv- ing the image of lawyers,” said Balloun. “The main purpose is to try and help kids. You meet these kids and you know you want to help them and you go away with this great feeling of Lexie Hicks, center, sits with 10- and 12-year-old siblings who have been living satisfaction.” with her as foster children. Hicks made it her mission to get the children living under the same roof for the first time in eight years after discovering they had Balloun is well past 1,000 adoptions and at the age of 85, he been separated from each other for most of their lives. On February 23, 2015, they shows no signs of slowing down. became a legal family with Balloun’s help. Source: Shook, Hardy & Bacon LLP. 22 The Journal of the Kansas Bar Association Keynote Speakers

I'm Bitter, But I Am Better Well-Bring and the Practice of Law: Darryl Burton The Choices Happy Lawyers Make Thursday Keynote Speaker Daniel S. Bowling Friday Keynote Speaker Darryl Burton, a St. Louis native, is June 17 – 19 an innocent man who spent 28 years Daniel S. Bowling is a senior lectur- Overland Park in prison for a crime he ing fellow at the Duke University did not commit. On Au- School of Law whose gust 29, 2008, he was focus is at the intersec- exonerated. Darryl trav- tion of law, work, and els nationally and inter- psychology. He teach- nationally sharing with es labor and employ- the world his message ment law and has also of hope and forgiveness. He is cur- designed and taught rently pursuing his Masters of Divin- courses on lawyers and personal ity degree at the Saint Paul School of well-being. He leads seminar courses Theology and works as a Pastor Intern exploring the connection between at the United Methodist Church of happiness, legal professionalism, and the Resurrection, both in Leawood. work satisfaction. He is also a lectur- er at the University of Pennsylvania where he assists in teaching graduate level courses on positive psychology, positive humanities, and character strengths and virtues. Register online at http://www.ksbar.org/am15.

www.ksbar.org | April 2015 23 The Law is the True Embodiment: Gilbert and Sullivan for Lawyers

By Roger W. Badeker

A scene from “Trial by Jury,“ 1875. First performed at London’s Royalty Theatre on March 25, 1875, “Trial by Jury“ is a one act comic opera by Gilbert and Sullivan, From the Illustrated Sporting and Dramatic News. (Photo by Fine Art Images/Heritage Images/Getty Images) o can be considered complete without a working knowledge of the works of Gilbert and Sullivan and others who produced several mas- Nterpieces of comic opera. For those already acquainted, this will be a review. Newcomers will have the pleasure of meeting legal luminaries, such as the judge in Trial by Jury and the law clerk elevated to “Ruler of the Queen’s Navee” in H.M.S. Pinafore. I first became acquainted with the work of those composers at the age of 14, listening to Pinafore on a 78 r.p.m. record. I have been a fan ever since. First, a little about the two men: Arthur Sullivan was a serious composer. His works were not confined to comic opera. He is probably best known as the compos- er of the hymn “Onward, Christian Soldiers.” W.S. Gilbert was a practicing who wrote comic prose for a magazine titled Fun until he found comic writing more profitable and abandoned the practice of law. The two men collaborated on fourteen comic operas between 1871 and 1896. Their operas are still performed frequently throughout the English-speaking world. Lawyers, judges and people connected with the law in one way or another appear in many of the operas. Trial by Jury is a good place to start. The setting is a “breach of promise” action. The plaintiff, unlike a woman in the judge’s background, had not been forgiving. She sued. It is interesting to note that this was a recognized cause of action in the United Kingdom until 1971. The presiding judge had an interesting personal history. As a young barrister he had agreed to marry the elderly, homely daughter of an established and prosperous barrister and then jilted her. Her father had promised to help the young lawyer and does so despite his conduct. The judge provides some comments about his progress in the profession with this: The rich attorney was as good as his word The briefs came trooping gaily, And every day my voice was heard At the Sessions or Ancient Bailey. All thieves who could my fees afford Relied on my orations, And many a burglar I’ve restored To his friends and his relations.1 After hearing all the evidence (such as it is), the judge resolves the matter by mar- rying the plaintiff himself, explaining his decision: All the legal furies seize you No proposal seems to please you I can’t sit up here all day. I must shortly get away. , and you, attorneys, Set out on your homeward journeys; . . . Put your briefs up on the shelf, I will marry her myself.2 Despite the irony of the learned judge’s conduct as a young lawyer in jilting the daughter of his employer, the jury and public approve of him. In H.M.S. Pinafore, another lawyer plays a prominent role. Sir Joseph Porter, the First Sea Lord, recounts his rise from a humble beginning as “office boy to an attor- neys firm” to his present lofty position as “Ruler of the Queen’s Navee.” In his words: Of legal knowledge, I acquired such a grip That they took me into the partnership And that junior partnership, I ween, Was the only ship that I ever had seen.

Footnotes 1. Gilbert & Sullivan, Trial by Jury, act I, lines 138-45. 2. Id., lines 376-85. www.ksbar.org | April 2015 25 Gilbert and Sullivan for Lawyers But that kind of ship so suited me the opposite. He views himself no worse than contemporary That now I am the Ruler of the Queen’s Navee.3 heads of state as he explains: After exulting in his success and sharing it with those assem- When I sally forth to seek my prey bled on the deck of the Pinafore, Sir Joseph offers this advice: I help myself in a royal way: I sink a few more ships, it’s true, Now, landsmen all, whoever you may be, Than a well-bred monarch ought to do. If you want to rise to the top of the tree, But many a king on a first-class throne, If your soul isn’t fettered to an office stool, If he wants to call his crown his own, Be careful to be guided by this Golden Rule – Must manage somehow to get through Stick close to your desks and never go to sea, More dirty work than ever I do.6 And you all may be Rulers of the Queen’s Navee.4 In the preceding song “I am a Pirate King,” the lyrics today Does it seem strange that one who had no experience at sea generally say: should be running a nation’s navy? If so, look around at our own Department of Defense and see how many senior posi- Away to the wicked world go you, tions are held by those who have never worn a uniform. The Where pirates all are well-to-do. model for Sir Joseph was W.H. Smith, a newspaper man who But I’ll be true to the song I sing, had no knowledge of the sea or ships. Despite that glaring lack And live and die a Pirate King. of knowledge, he was made First Sea Lord and became known as “Pinafore Smith.” There are several versions of the lyrics to this song which There were strict orders against playing music from the are fraught with possibilities. The legal profession is addressed opera when Smith was around. Ignoring the prohibition, a with: Royal Marine band played “When I was a Lad” on one of his visits to Portsmouth. The satire was not directed at Smith Away to the wicked world go you, personally but against the entire system of putting people in Where pirates all are lawyers, too. charge of affairs in which they had no experience. When the police arrive to round up the pirates, the pirates There is a Kansas connection with Gilbert and Sullivan in overcome the police. The sergeant, however, plays his trump the folklore of Dodge City. Legend has it that Wyatt Earp met card invoking the sovereign: “We charge you, yield in Queen his long-time wife Josey when she was in Tomb- Victoria’s name!” The pirates declare their love for the queen, stone with a traveling company of H.M.S. Pinafore. and all ends happily.7 Another opera with a nautical theme takes us to the other TheMikado is one of Gilbert and Sullivan’s best known and side of the law and a look at a pirate ship and crew in The most popular works. It is a favorite with amateur civic and Pirates of Penzance. They, however, are no ordinary pirates. As school performers. Despite its Japanese setting and costumes, the opera opens, the crew is assembled on deck, and the Pirate the opera is clearly a satire of English customs and institu- King is pouring sherry for all hands. Yes, sherry! As the glasses tions. In this topsy-turvy world, flirting is a capital offense are filled, the crew joins in a chorus: punishable by beheading. But, there is a catch: Pour, oh, pour the pirate sherry; And so we straight let out on bail Fill, oh, fill the pirate glass; A convict from the county jail, And, to make us more than merry, 5 Whose head was next Let the pirate bumper pass. On some pretext One of the principal characters in Pirates is Frederic, who Condemned to be mown off, has been apprenticed to this crew through the mistake of a And made him Headsman, for we said, hearing-impaired nursemaid. She had been instructed to ap- “Who’s next to be decapitated Cannot cut off another’s head prentice him to a pilot. Frederic’s apprenticeship is to end 8 on his twenty-first birthday. As he was born on the 29th of Until he’s cut his own off.” February, this raises questions about the intent of the parties. Later in Act I, a letter arrives from the Mikado noting that no Frederic feels honor-bound to stay with the pirates, but any executions have taken place in the city of Titipu for a year. As lawyer can see the contract is seriously flawed. Issue number a result, the city risks being reduced to the rank of village. The one is whether an agreement to engage in piracy is enforce- Mikado decrees that someone must be beheaded within the able. At the next meeting of your bar association, your col- month or the city will suffer the consequences.9 As the Mikado leagues might find it entertaining to identify and analyze the enters Titipu, he breaks into song declaring his aspirations: issues presented by Frederic’s contract. The Pirate King makes no apologies for his activities, quite

3. Gilbert & Sullivan, H.M.S. Pinafore, act I, lines 317-23. 7. Id., act II, line 569. 4. Id., lines 333-39. 8. Gilbert & Sullivan, The Mikado, act I, lines 118-26. 5. Gilbert & Sullivan, The Pirates of Penzance, act I, lines 6-9. 9. Id., lines 545-50. 6. Id., lines 151-58.

26 The Journal of the Kansas Bar Association Gilbert and Sullivan for Lawyers

My object all sublime own wife is alive, and the ward marries another. The opera I shall achieve in time – ends with the peers in the House of Lords marrying fairies, To let the punishment fit the crime sprouting wings and going off to Fairyland. And let each prisoner pent Late in Act I, the Lord Chancellor offers some comments Unwillingly represent on legal ethics. Here, with the parenthetical refrain deleted, A source of innocent merriment! are his ideas of proper conduct: Of innocent merriment!10 When I went to the bar as a very young man, As the Mikado elaborates on the punishments he proposes [Said I to myself – said I] for various offenses, one wonders about his ideas of both in- I’ll work on a new and original plan nocence and merriment. The constitutional lawyer will ob- I’ll never assume that a rogue or a thief serve a glaring combination of powers all held in the hands Is a gentleman worthy of implicit belief of Pooh-Bah as First Lord of the Treasury, Lord Chief Justice, Because his attorney has sent me a brief. Commander-in-Chief, Lord High Admiral and Archbishop Ere I go to court, I will read my brief through, of Titipu, as well as Lord High Executioner. As Pooh-Bah ex- And I’ll never take work I’m unable to do. plains it: My learned profession I’ll never disgrace By taking a fee with a grin on my face Our logical Mikado, seeing no moral difference When I haven’t been there to attend to the case. between the I’ll never throw dust in a juryman’s eye dignified judge who condemns a criminal and the Or hoodwink a judge who is not over-wise industrious Or assume that the witnesses summoned in force mechanic who carries out the sentence, has rolled the In Exchequer, Queen’s Bench, Common Pleas or Divorce two Have perjured themselves as a matter of course.14 offices into one, and now every judge is his own executioner.11 William H. Rehnquist, former chief justice of the U.S. Su- preme Court, is said to have been a great Gilbert and Sullivan When it is discovered that Pooh-Bah has executed the heir fan. He added four gold stripes to his judicial robe after seeing to the throne, who was living incognito in Titipu, the Mikado the costume of the Lord Chancellor in Iolanthe. Chief Jus- commiserates with him but explains that nothing can be done tice John Roberts has not continued the practice. Rehnquist, because the law contains no relief for a mistake. The Mikado while an Associate Justice, quoted the Lord Chancellor’s state- attempts to console Pooh-Bah, saying: ment above (“The Law is the true embodiment / Of every- thing that’s excellent / Without any fault or flaw / And I, my That’s the slovenly way these acts are always drawn. Lords, embody the Law”) in his dissenting opinion in Rich- However, cheer up, it’ll be all right. I’ll have it altered mond Newspapers v. Virginia, 448 U.S. 555 (1980). next session. Now, let’s see about your execution – will 12 The principal characters in another opera are a defense after luncheon suit you? Can you wait till then? counsel’s dream come true – a family of habitual criminals In another opera, Gilbert and Sullivan focused on the Brit- who are wealthy. These are the bad barons of Ruddigore in an ish House of Lords and created what is regarded as a comic opera of the same name – Ruddigore. The first baron persecut- masterpiece. Iolanthe has a fairyland connection, which fits ed witches, and one of his victims cursed him and all future barons to commit a crime every day or suffer terrible ago- well with the House of Lords. The first legal issue we encoun- 15 ter is a conflict of interest involving the Lord Chancellor, who nies. Late in Act I, it is discovered that the real baronet has declares: been living in the village under the name of Robin Oakapple to avoid the title and its curse. The Law is the true embodiment Committing a crime a day is not as easy as it may sound, Of everything that’s excellent especially when the performance is evaluated by the ancestral It has no kind of fault or flaw ghosts. The ghost of Sir Roderick, who has stepped from a And I, my Lords, embody the Law. picture frame to confront the living baronet, explains: The constitutional guardian, I, Of pretty young Wards in Chancery. It is our duty to see that our successors commit their All very agreeable girls – and none daily crimes in a conscientious and workmanlike Are over the age of twenty-one.13 fashion. It is our duty to remind you that you are evading the conditions under which you are permitted Unfortunately, the Lord Chancellor, a widower, has fallen to exist.16 in love with one of his wards and hopes to marry her. After many twists and turns, the Lord Chancellor discovers that his In his defense, the baronet describes the crimes he has com- mitted that week. These include filing a false income tax re- 10. Id., lines 337-44. 14. Id., lines 465-87. 11. Id., lines 138-41. 15. Gilbert & Sullivan, Ruddigore, act I, lines 81-88. 12. Id., act II, lines 550-53. 16. Id., act II, lines 207-10. 13. Gilbert & Sullivan, Iolanthe, act I, lines 263-70.

www.ksbar.org | April 2015 27 Gilbert and Sullivan for Lawyers turn, forging a will and forging a check. They are all rejected on their Majesties’ entering into the usual undertaking to by the ghosts, who propose carrying off (i.e., kidnapping) a indemnify in the event of an adverse decision.18 lady as an acceptable crime. Through a misunderstanding, a retainer carries out the abduction. The whole matter is re- Ultimately, it is determined that neither of the young gon- solved with an interesting argument, to wit: the baronet’s fail- doliers is heir to the throne. In Act I, it appears that the infant ure to carry out a daily crime is tantamount to suicide, which prince has been left with the family of the gondolier. But, is itself a crime. That disposes of the curse.17 instead, near the end of Act II, an elderly nurse reveals that she In this discussion of legal gems, I have not intended to has given away her own son and kept Luiz, explaining: overlook the music in these operas. There is, for example, a delightful waltz at the beginning of The Gondoliers. The legal The Royal Prince was by the King entrusted issue in that opera is the identity of the Prince of Barataria. To my fond care, ere I grew old and crusted The setting is Venice, where an infant prince has been left with When the traitors came to steal his son reputed the family of a gondolier, who has a son the same age. Does My own small boy I deftly substituted! The villains fell into the trap completely. this begin to sound like something set up by Shakespeare in 19 Twelfth Night or The Comedy of Errors? I hid the Prince away – still sleeping sweetly. The two young men travel to Barataria to determine who For those wishing to pursue the study of Gilbert and Sullivan shall become king. Although there are two of them, they re- or further explore any particular opera, I would recommend ceive rations for only one. Upon complaining about this, they The Complete Annotated Gilbert and Sullivan by Ian Bradley. learn they are considered to be one person. Two ex- That book has the libretti for all the operas plus extensive ex- plain it: planatory notes printed on the facing pages of the libretti. Anni: It is a legal fiction, and legal fictions are solemn Wikipedia is a good place to get a quick and convenient look. things. If the reader is inclined to take the plunge by viewing one of Giu: …when you supply us with only one ration, I the operas, Opera World on the Internet is a good source. should describe it In closing, let me caution you to be careful how you sample as a legal fiction carried a little too far … the works of Gilbert and Sullivan. Experimentation can lead Anni: … I don’t like to express an opinion offhand. to addiction, and there is no known cure. If you find yourself Suppose we humming the tunes or using some of the expressions, you are reserve it for argument before the full Court? already hooked. You will simply have to learn to enjoy the n Mar: Yes, but what are we to do in the meantime? experience.

Anni: I think we may make an interim order for double About the Author rations Roger W. Badeker is an attorney based in Alma. He earned his bachelor’s degree from the University of Colorado at Boulder and his juris doctorate from the University of Kansas School of Law.

17. Id., lines 581-86. 18. Id., lines 30-50. 19. Id., lines 840-45.

Bruce Nystrom, PhD Licensed Psychologist

River Park Psychology Consultants, LLC www.riverparkpsych.com 727 N. Waco, Suite 320 Wichita, KS 67203

telephone: (316) 616-0260 • fax: (316) 616-0264

28 The Journal of the Kansas Bar Association Appellate Decisions Appellate Decisions

All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member and market services at [email protected] or at (785) 234-5696. You may go to the courts’ website at www.kscourts.org for the full opinions. Supreme Court the adverse inference rule establishes a method of supporting Civil a claim, not a form of strict liability. The failure to produce a BREACH OF FIDUCIARY DUTY AND CLEAR record under the party’s control does not establish a breach of AND CONVINCING EVIDENCE duty in itself. Knoll introduced substantial, credible evidence BECKER V. KNOLL tending to show that he did not breach his duty. The latter FINNEY DISTRICT COURT – AFFIRMED analysis—which would be based on the quality of the evi- COURT OF APPEALS – REVERSED dence—is also wrong because it requires the appellate court NO. 105,643 – JANUARY 30, 2015 to reweigh the evidence. The testimony regarding the number FACTS: This case involved an action by shareholders in of hours that Morehouse worked was quite explicit, and the a Kansas irrigation corporation against the president of the district court explained why it found that evidence credible. corporation (Knoll), alleging breach of a fiduciary duty and The district court properly carried out the task assigned to it seeking removal of the president as an officer and director. The on remand, and the Court of Appeals applied an incorrect Supreme Court affirmed the Court of Appeals determination standard of review. The opinion of the Court of Appeals was that the plaintiffs had made a prima facie case but reversed on reversed. The decision of the district court was affirmed. the question of whether the facts supported judgment for the STATUTES: No statutes cited defendant. Holding that the courts below had applied incor- rect legal standards, this court remanded the case to the dis- ESTATES, ALLOCATION ORDER, AND JURISDICTION trict court so that it could reapply the law to the facts before IN RE ESTATE OF BUTLER WYANDOTTE DISTRICT COURT – AFFIRMED it on the record. On remand, the district court again ruled COURT OF APPEALS – REVERSED for the defendant. The court held that Knoll engaged in no AND APPEAL REINSTATED self-dealing, no misfeasance, and no malfeasance to the det- NO. 108,747 – FEBRUARY 20, 2015 riment of the corporation. The plaintiffs again appealed to FACTS: This case involved an allocation order and subse- the Court of Appeals. The Court of Appeals reversed, holding quent orders refusing to set it aside, issued in a Wyandotte that Knoll's failure to maintain employment records under- County probate matter in 2007 and 2008, and whether those mined his position to such an extent that, as a matter of law, were final orders appealable within 30 days. The probate allo- he acted in bad faith. The Court of Appeals remanded the case cation order selected a Colgate-Palmolive Co. severance pack- to the district court for determination of damages. age on behalf of Kenneth Lee Butler, who was employed at the ISSUES: (1) Breach of fiduciary duty and (2) clear and con- company’s closing Kansas City plant at the time he died intes- vincing evidence tate in October 2006. The order also divided Colgate-Palmol- HELD: Court held the district court applied the correct ive’s obligations under the selected severance package between standards, which were supported by the evidence, and the Kenneth’s father, Leo, and Kenneth’s estate. After a federal Court of Appeals erroneously reversed the district court. court interpleader proceeding filed by the administrator of Court found that Knoll provided evidence that a rational fact- Leo’s estate, the amounts allocated by the state pro tem dis- finder could apply to overcome the inference that the missing trict judge in the probate matter were left intact: $63,640.50 written data would be adverse to him. The Court of Appeals for Leo’s estate and $176,359.50 for Kenneth’s estate. There rejected or ignored the explicit testimony that Morehouse, the was no state court appeal from the allocation order. Nor did corporation’s ditch rider, worked far more than the required Leo or his estate ever file a demand against Kenneth’s estate 40 hours a week. In so doing, the Court of Appeals may have in the state probate proceeding. Four years after the denial of implied that the adverse inference rule is an absolute rule: Leo’s motion to set aside the allocation order, Kenneth’s son Knoll’s failure to keep hourly records constituted per se proof and only heir, Franklin Burch, successfully sought a partial that Morehouse did not work the required number of hours distribution from Kenneth's estate. Leo’s estate attempted a and that Knoll acted in bad faith detrimental to the corpora- late appeal of the order of partial distribution, arguing excus- tion. Or the Court of Appeals may have reevaluated Knoll’s able neglect from lack of notice. The district court judge disal- and Morehouse’s testimony and concluded that the testimony lowed the late appeal, ruling that Leo’s estate had no interest was inadequate to overcome the inference of bad faith. Either in Kenneth’s estate to pursue. Leo’s estate filed a timely appeal approach is incorrect. The former analysis is wrong because from that order. The Court of Appeals ultimately dismissed www.ksbar.org | April 2015 29 Appellate Decisions the appeal for lack of jurisdiction, although, along the way, ISSUES: (1) Motion to suppress, (2) eyewitness jury in- it addressed the propriety of the district court’s ruling on the struction, (3) sufficiency of evidence, and (4) ineffective as- late appeal from the partial distribution order. In re Estate of sistance of counsel Butler, 49 Kan. App. 2d 335. HELD: Court held that because Betancourt failed to estab- ISSUES: (1) Estates, (2) allocation order, and (3) jurisdiction lish that he requested the assistance of counsel during his inter- HELD: Court held on the facts of this case, an allocation rogation, he failed to establish that he was denied his statutory order issued by a pro tem district court judge in a probate or constitutional right to counsel during the interview. Court matter was final and appealable under K.S.A. 2012 Supp. 59- rejected Betancourt’s argument that the trial court erred in 2401(b) and K.S.A. 60-2102(a)(4), and failure to file a timely admitting hearsay statements under the coconspirator’s state- appeal eliminated any interest the decedent’s father possessed ment exception in K.S.A. 60-460(i)(2) and there was sufficient in the assets of his son’s estate. Under those circumstances, evidence to establish that the statements were made while the the district judge did not abuse his discretion by refusing to conspiracy was in progress. Court held the eyewitness identi- allow a late appeal for excusable neglect by the father’s estate, fication was not crucial to the state’s case because Betancourt which was based on failure of notice of proceedings leading to admitted to being present and therefore the failure to give it was an order of partial distribution of estate assets. Court affirmed not clearly erroneous. Court held there was sufficient evidence the result in the district court that denied relief to the estate of presented to the jury to prove premeditation and the intent to the decedent’s father. kill. Court lastly held that substantial evidence supported the STATUTES: K.S.A. 59-2401; and K.S.A. 60-260, -2102, trial court’s finding that trial counsel was ineffective because -6103 she failed to sufficiently communicate with Betancourt or that counsel was deficient in failing to consult as expert or present Criminal expert testimony regarding the effects of cocaine and alcohol. STATUTES: K.S.A. 22-3414, -4503, -4704; and K.S.A. STATE V. BETANCOURT 60-404, -460(i)(2) SEDGWICK DISTRICT COURT – AFFIRMED NO. 108,944 – FEBRUARY 13, 2015 STATE V. BRAMMER FACTS: Thirteen-year-old Migeul died from gunshot MARSHALL DISTRICT COURT – AFFIRMED wounds suffered as he opened the door of his family’s home. COURT OF APPEALS - AFFIRMED NO. 106,696 – FEBRUARY 20, 2015 The state charged four men with crimes related to Miguel’s FACTS: Brammer was convicted of involuntary manslaugh- death. One of those men, Betancourt, brought this appeal af- ter while driving under the influence (DUI), K.S.A. 21-3442. ter a jury convicted him of premeditated first-degree murder On appeal he a claimed jury was instructed on alternative means and criminal discharge of a firearm at an occupied building. He without sufficient evidence as to each means. Brammer also raised five issues related to (1) the admission of his statements claimed that the district court erred in (a) giving a causation in- to law enforcement officers, (2) the admission of certain hearsay struction different from Brammer’s proposed jury instruction, statements, (3) the trial court’s failure to give an instruction on (b) giving a lesser included offense instruction that created an eyewitness testimony, (4) sufficiency of the evidence, and (5) improper sequencing of jury’s consideration, and (c) not giving allegations of ineffective assistance of trial counsel. a reasonable doubt instruction for lesser included offense. The

Appellate Practice Reminders . . . From the Appellate Court Clerk’s Office Page Limits for Briefs A common source of confusion concerning briefs is the difference between the binding requirement and the total page limit allowed. If a brief exceeds 15 pages in length, at least 10 of the copies must be assembled with full-length spiral bind- ers. See Rule 6.07(c) [2014 Kan. Ct. R. Annot. 51]. This part of the rule counts all pages. The next part of the rule details the page limitations for each type of brief. This part of the rule does not count the table of contents, appendix, or certificate of service towards the page limitation. See Rule 6.07(d). For example, the main brief filed by either an appellant or appellee may not exceed 50 pages. When counting the 50 pages, the litigant would not count the table of contents, appendix, or the certificate of service.

Fax Filing Filing by fax is available for many pleadings as long as the pleading does not exceed 10 pages in length. The fax cover sheet and certificate of service are not included in the 10-page limit. See Rule 1.08(a) [2014 Kan. Ct. R. Annot. 8]. Petitions for review and briefs, however, cannot be fax filed. When filing by fax, litigants only need to fax one copy of the pleading. See Rule 1.08(d). For further information, call the Clerk’s Office at (785) 296-3229 and ask to speak with Heather L. Smith, Clerk of the Appellate Courts, or Jason Oldham, Chief Deputy Clerk of the Appellate Courts.

30 The Journal of the Kansas Bar Association Appellate Decisions Court of Appeals affirmed in an unpublished opinion based on 21-3502(a)(2) and (c). The sentencing judge found substan- verdict form listing only one alleged means, Brammer’s failure tial and compelling reasons to grant Jolly’s departure request to submit written proposed proximate cause instruction in ad- and sentenced him to 300 months’ imprisonment. Jolly ap- vance of trial, and no clear instructional error by district court. pealed his sentence, arguing that the district court, in grant- Brammer’s petition for review was granted. ing his departure request, failed to impose a sentence pursu- ISSUES: (1) No alternative means instructed and (2) jury ant to the sentencing guidelines. The Supreme Court agreed instruction challenges and remanded the case for resentencing. See State v. Jolly, 291 HELD: No merit to Brammer’s alternative means argu- Kan. 842 (2011). Following remand, the district court again ment, and no need to rely on verdict form. Under rationale in granted Jolly’s request for a departure. He was sentenced to State v. Chiffon, 297 Kan. 689 (2013), K.S.A. 21-3442 identi- 165 months’ imprisonment rather than the mandatory mini- fies three factual circumstances in which a material element of mum of 25 years to life pursuant to K.S.A. 21-4643(d), the the crime may be proven. It does not create alternative means statute known as Jessica’s Law. The state appealed, arguing the of committing involuntary manslaughter while DUI. district court abused its discretion in concluding there were Based on K.S.A. 22-3414(3) and State v. Waggoner, 297 Kan. substantial and compelling reasons to depart. Jolly sought re- 94 (2013), an attorney must object on the record to the giv- view of the divided Court of Appeals opinion that concluded ing or omission of an instruction before the jury retires to con- there were no substantial and compelling reasons for grant- sider the verdict, with counsel clearly stating the reason for the ing a departure. Jolly contended: (1) the Court of Appeals objection. The statutory mandate of K.S.A. 22-3414(3) is not erroneously considered aggravating factors when considering satisfied by merely having filed an earlier pretrial request for a the departure under K.S.A. 21-4643(d); and, (2) the Court different jury instruction. No clear error was found in district of Appeals substituted its own findings for those made by the court’s failure to give any of Brammer’s proposed instructions. district court. STATUTES: K.S.A. 8-2504(c); K.S.A. 20-3018(b); K.S.A. ISSUES: (1) Jessica’s Law and (2) departure 21-3109, -3442; K.S.A. 22-3414(3); K.S.A. 60-2101(b); and HELD: Court held that the proper statutory method when K.S.A. 2009 Supp. 8-1567 considering a departure from a Jessica’s Law sentence is for the district court first to review the mitigating circumstances STATE V. JOLLY without any attempt to weigh them against any aggravating SALINE DISTRICT COURT – AFFIRMED circumstances. Then, in considering the facts of the case, the COURT OF APPEALS – REVERSED court determines whether the mitigating circumstances rise to NO. 106,680 – FEBRUARY 20, 2015 the level of substantial and compelling reasons to depart from FACTS: On February 11, 2008, Jolly pleaded guilty to one the otherwise mandatory sentence. Finally, if substantial and count of rape of a child less than 14 years of age under K.S.A. compelling reasons are found for a departure to a sentence

www.ksbar.org | April 2015 31 Appellate Decisions within the appropriate sentencing guidelines, the district CITY OF WICHITA V. MOLITOR court must state on the record those substantial and compel- SEDGWICK DISTRICT COURT – REVERSED ling reasons. Court held the district court applied the correct AND REMANDED analysis, and the Court of Appeals engaged in an inappropri- COURT OF APPEALS – REVERSED ate weighing of the factors. Court held the district court did NO. 104,940 – JANUARY 30, 2015 not err in granting a departure based on Jolly’s lack of criminal FACTS: An officer stopped the vehicle driven by Molitor history, his taking responsibility for the crimes, and a psychol- and conducted DUI investigation. Molitor failed horizontal ogy report which showed that Jolly displayed no signs of men- gaze nystagmus (HGN) test, passed walk-and-turn and one- tal disease or defect, that he had no history of alcohol or drug leg-stand tests, and then consented to officer’s request for a pre- abuse, that he had long employment and a stable relation- liminary breath test (PBT). PBT results led to Molitor’s arrest ship with his wife, that he exhibited no signs of pedophilia or and conviction for DUI. In appeal to district court, Molitor sexual predation, that he was unlikely to reoffend, and that he filed motion to suppress HGN results as inadmissible pursuant might be a good candidate for probation with psychotherapy to State v. Chastain, 265 Kan. 16 (1998), and State v. Witte, and medication. 251 Kan. 313 (1992). District court denied the motion, ruling STATUTE: K.S.A. 21-3502, -3504, -4625, -4626, -4643, HGN results could be admitted to establish officer’s reasonable -4716 suspicion of DUI even though the results were inadmissible at trial. Waggoner appealed. Court of Appeals affirmed that HGN STATE V. LEWIS test could be considered as part of totality of circumstances in JOHNSON DISTRICT COURT – CONVICTIONS determining whether officer had requisite reasonable suspicion AFFIRMED, SENTENCE VACATED IN PART, AND CASE to request a PBT, and held that the officer had enough other ev- REMANDED WITH DIRECTIONS idence to form a reasonable suspicion of DUI even if HGN test NO. 108,310 – FEBRUARY 20, 2015 results were excluded. 46 Kan. App. 2d 958 (2012). Supreme FACTS: After a bench trial, Lewis was found guilty of fel- Court granted Waggoner’s petition for review in which he ar- ony murder and aggravated robbery of Tyler. Lewis received gued that the Frye reliability test had to be met before HGN a hard 20 life sentence for the felony-murder conviction and test results could be used for any purpose, and sought review of a consecutive 61-month prison sentence for the aggravated panel’s determination that reasonable suspicion existed without robbery conviction. The district court also imposed lifetime considering the HGN test results. parole for both convictions. Lewis argued: (1) the state pre- ISSUES: (1) Admissibility of HGN test results and (2) sented insufficient evidence to convict him of either felony harmless error murder or aggravated robbery; (2) he did not knowingly and HELD: The HGN test is based on scientific principles. Be- voluntarily waive his right to a jury trial; (3) the district court fore HGN test results may be considered by a Kansas court for erred in denying his motion to dismiss the charges against any purpose, the state must establish the reliability of such a him based on the alleged destruction of potentially exculpa- test in district court. Here, district court and Court of Appeals tory evidence; (4) the district court erred in imposing lifetime erred in allowing the state to rely on scientifically unproved parole in connection with the aggravated robbery conviction; HGN test results to establish reasonable suspicion that per- and (5) the cumulative effect of the alleged trial errors de- mitted the officer to request that Molitor submit to a PBT prived him of a fair trial. pursuant to K.S.A. 2010 Supp. 8-1012(b). ISSUES: (1) Notice of appeal, (2) sufficiency of the evi- Reviewing facts other than HGN test results in this case, dence, (3) waiver of jury trial, (4) destruction of evidence, (5) the consideration of HGN testing was not harmless error. An lifetime parole, and (6) cumulative error appellate court should not deviate from criteria and scoring HELD: First, Court held that the notice of appeal was suffi- of National Highway Traffic Safety Administration’s standard- cient to confer jurisdiction over all the issues, not just sentenc- ized testing model to glean reasonable suspicion of driving ing. Second, Court held there was sufficient evidence, viewed under the influence from driver’s successful completion of in the light most favorable to the state, that showed a rational standardized field sobriety tests. Determinations by district factfinder could have found that Lewis robbed and shot Tyler court and Court of Appeals, that officer possessed the requi- and was guilty beyond a reasonable doubt. Third, Court held site reasonable suspicion that Molitor was operating a vehicle the transcript of the waiver hearing indicated that Lewis knew while under the influence of alcohol when officer requested and understood that he had a right to a jury trial and that he that Molitor submit to a PBT, are reversed. voluntarily waived that right so his case could be decided by CONCURRENCE AND DISSENT (Biles, J.) (joined by a district court judge. Fourth, Court found that substantial Nuss, C.J. and Rosen, J.): Agrees with majority’s holding that competent evidence supported the district court’s finding that it was error to allow state to rely on HGN test results to es- the state did not act in bad faith by failing to preserve any tablish reasonable suspicion for officer’s request for a PBT be- images that may have been recorded by the security system in cause state has not established the test’s reliability as required the vehicle in which Tyler was shot. Court vacated the lifetime by Witte. Disagrees with majority’s harmless error analysis, parole sentence and remanded for imposition of the correct and would affirm Court of Appeals on this point and affirm term of postrelease. Court also found no errors to establish the conviction. Majority is setting reasonable suspicion stan- cumulative error. dard too high. The officer in this case observed evidence in- STATUTES: K.S.A. 21-3427; and K.S.A. 22-3403, -3504 dicating impaired driving and intoxication, and was justified under the statute to request the PBT.

32 The Journal of the Kansas Bar Association Appellate Decisions STATUTES: K.S.A. 2014 Supp. 60-456(b); K.S.A. 2010 Supp. 8-1012(b), -1567(a)(1), -1567(a)(2), -1567(a)(3); K.S.A. 8-1567(a)(1); K.S.A. 20-3018(b); K.S.A. 60-402, -456, -2101(b); and K.S.A. 8-1012 (Furse)

Court of Appeals U.S. 353 (2008). State v. Belone, 295 Kan. 499 (2012). On Civil retrial, Belone was convicted of second-degree murder and WORKERS COMPENSATION AND DAY-TO-DAY LIVING violation of protective order. He appealed arguing: (1) admis- MOORE V. VENTURE CORPORATION ET AL. WORKERS COMPENSATION BOARD – AFFIRMED sion of Belone’s testimony from first trial violated his right to NO. 110,883 – JANUARY 30, 2015 remain silent, and was procedurally barred by state’s failure FACTS: Moore injured his knee at his road-construction to endorse him as witness in the second trial; (2) his convic- job, either when he stepped off a backhoe or shortly thereaf- tion for unintentional second-degree murder was inconsistent ter when walking around the backhoe. An administrative law with jury’s not-guilty finding on lesser included offense of in- judge denied his request for workers compensation, finding voluntary manslaughter; (3) Brixius’ testimony at second trial that his injury was the result of walking, which she consid- violated Belone’s right to confrontation and was inadmissible ered a normal activity of day-to-day living not covered by the evidence; (4) Begay’s statements to nurses implicating Belone Workers Compensation Act (Act). The Workers Compensa- as her attacker constituted testimonial hearsay and violated tion Board reversed, finding that Moore’s injury arose out of his right to confrontation; (5) district court erred in denying and in the course of his employment because stepping down Belone’s motion for mistrial after state improperly admitted and walking around the backhoe were part of a single job bad character evidence in violation of K.S.A. 60-447; (6) state task—operating a backhoe—that was not a normal activity of failed to disclose exculpatory evidence in violation of Brady v. day-to-day living. Maryland, 373 U.S. 83 (1963), and (7) district court uncon- ISSUES: (1) Workers compensation and (2) day-to-day stitutionally enhanced Belone’s sentence based on criminal living history not proved to jury. HELD: Court held that the case law interpreting the pre- ISSUES: (1) Admission of Belone’s prior trial testimony, (2) 2011 version of the Act remains applicable when determining inconsistent verdicts, (3) inferences from officer’s testimony, whether a worker’s injury arose out of and in the course of em- (4) admissibility of Begay’s statements to nurses, (5) motion ployment or was the result of the normal activities of day-to- for mistrial, (6) disclosing exculpatory evidence, and (7) crim- day living. Under Bryant v. Midwest Staff Solutions Inc., 292 inal history Kan. 585, 596, 257 P.3d 255 (2011), in determining whether HELD: Holding in Harrison v. United States, 392 U.S. 219 an injury arose out of the course of employment, the primary (1968), is construed to preclude the state from introducing a question is whether the activity that resulted in the injury is defendant’s prior testimony in a subsequent trial only when the connected to, or is inherent in, the performance of the job. prior testimony was compelled by the improper admission of Court found that substantial evidence supported the Board’s evidence that was illegally obtained. Here, there was no evi- finding. In this case, operating the backhoe was Moore's job dence that Begay’s statements to police were coerced or other- duty, stepping down from and walking around the backhoe wise obtained in violation of Belone’s statutory or constitutional was part of the work required to operate the backhoe, and rights, thus Belone’s testimony from first trial did not constitute no evidence suggested that Moore’s injury happened outside fruit of poisonous tree subject to suppression at subsequent trial the time frame in which he was operating the backhoe. We under the rule announced in Harrison. Belone’s alternative stat- therefore affirm the Board’s decision that Moore’s injury was utory argument also failed. There was no showing that Belone covered under the Act and not the result of a normal activity was unfairly surprised when state gave notice it intended to read of day-to-day living. his prior testimony into evidence, or that it deprived Belone of STATUTES: K.S.A. 44-508, -556; and K.S.A. 77-621 opportunity to adequately prepare his defense. Belone’s conviction for unintentional second-degree mur- der is not inconsistent with jury’s finding he was not guilty Criminal of involuntary manslaughter, and Belone does not allege in- sufficient evidence supports his unintentional second-degree STATE V. BELONE DOUGLAS DISTRICT COURT – AFFIRMED murder conviction. No merit to Belone’s separate argument NO. 109,742 – FEBRURARY 20, 2015 that jury’s finding of guilt was not truly unanimous. FACTS: Belone’s 2007 conviction for second-degree mur- The confrontation challenge to admission of Brixius’ testi- der and other crimes related to the beating death of his girl- mony was not reached because the issue was not preserved for friend Begay was reversed and remanded for new trial, holding appeal. the admission of Begay’s statements to officer Brixius violated Kansas and United States cases were reviewed and applied. Belone’s right of confrontation under Giles v. California, 554 Under facts in this case, district court correctly found Begay’s www.ksbar.org | April 2015 33 Appellate Decisions statements to nurses were not testimonial. There was no vio- structing the jury and that he was denied a fair trial based on lation of Belone’s right of confrontation by the admission of prosecutorial misconduct and cumulative error. those statements. ISSUES: (1) Jury selection, (2) jury instructions, (3) At trial Belone argued testimony was inadmissible under prosecutorial misconduct, and (4) cumulative error K.S.A. 60-455 as a prior bad act. Challenge to this testimony HELD: Court reversed Crabb’s conviction based on the hot- as improper character evidence under K.S.A. 60-477 was not box jury selection issue. Court held that the hot-box method preserved for appeal, nor did challenged testimony consti- as opposed the method outlined in K.S.A. 22-3411a is erro- tute character evidence tending to prove Belone was untrust- neous because it requires counsel to exercise their peremptory worthy or violent. challenges piecemeal rather than in comparison to the entire Under the facts in the case, the challenged information did panel and after the parties have exercised all peremptory chal- not constitute exculpatory evidence, and no evidence estab- lenges and the final juror is seated in the jury box, that final lished the state ever suppressed the evidence. juror may only be removed for cause. The court also stated the Criminal history claim was defeated by Kansas Supreme state failed to persuade the court that the error was harmless Court . or make an affirmative showing that the jury selection error STATUTES: K.S.A. 213201(c), -3402(b), -3404(a); K.S.A. did not affect Crabb’s substantive rights. Court did not ad- 22-3201(g), -3213(2), -3423(1)(c); and K.S.A. 60-404, -447, dress Crabb’s other issues. -447(b), -447(b)(ii), -455 STATUTES: K.S.A. 22-3411a, -3412; and K.S.A. 60-261

STATE V. CRABB STATE V. EVANS SHAWNEE DISTRICT COURT – REVERSED JOHNSON DISTRICT COURT – REVERSED AND REMANDED AND REMANDED NO. 110,673 – FEBRUARY 6, 2015 NO. 111,143 – FEBRUARY 13, 2014 FACTS: Crabb appealed his conviction of one count of in- FACTS: Prior to trial on various felony charges, Evans terference with law enforcement for running from a police of- filed motion to dismiss charges for criminal possession of ficer while Crabb was outside of the area of his parole without firearm and for possession of marijuana after a prior con- permission. Crabb claims the district court committed revers- viction. Citing State v. Pollard, 273 Kan. 706 (2002), Ev- ible error by using what is commonly known as the “hot-box” ans argued his successful completion of probation on prior method of jury selection over Crabb’s objection instead of us- Missouri offenses in which he had entered guilty pleas and ing the statutory method of jury selection set forth in K.S.A. received suspended sentences did not constitute convictions 22-3411a. He also argues that the district court erred in in- under Missouri law. District court agreed and dismissed

34 The Journal of the Kansas Bar Association Appellate Decisions pending charges for which a predicate offense had not been STATE V. WAGGONER established. State appealed. DOUGLAS DISTRICT COURT – AFFIRMED ISSUE: Prior convictions for predicate offenses NO. 111,548 – JANUARY 30, 2015 HELD: Pollard made clear that Kansas law controls the de- FACTS: Waggoner was convicted of possession of meth- termination of what constitutes a conviction for predicate of- amphetamine and marijuana. On appeal he claimed that the fenses. Kansas statutes clearly define a conviction as including district court erred in classifying an April 1993 Kansas juve- a proceeding where a defendant pleads guilty and is found nile adjudication as a person felony for criminal history pur- guilty by a as a result of the plea even if a sentence poses. Waggoner argued that the holding in State v. Murdock, has not yet been imposed. District court erred in using Mis- 299 Kan. 312 (2014), that out-of-state convictions commit- souri law in determining whether Evans’ crimes in Missouri ted prior to enactment of Kansas Sentencing Guidelines Act constituted convictions in this case. Reversed and remanded. (KSGA) must be classified as nonperson offenses, applies to STATUTES: K.S.A. 2013 Supp. 21-5111(d), -5706, in-state pre-KSGA convictions as well. -5706(b), -5706(b)(4), -5706(c)(2)(A), -5706(c)(2)(B), ISSUE: Criminal history score and pre-KSGA Kansas -5304, -6304(a)(1), -6811(e); K.S.A. 2013 Supp. 65-4105(d) convictions (16); K.S.A. 21-3110(4); K.S.A. 79-5208; and K.S.A. 2001 HELD: Murdock and State v. Williams, 291 Kan. 554 Supp. 21-4204(a)(3) (2010), were discussed. As modified by Supreme Court order of September 19, 2014, Murdock is limited to classification STATE V. RUIZ for criminal history purposes of out-of-state convictions com- SEDGWICK DISTRICT COURT – AFFIRMED IN PART, mitted prior to enactment of KSGA. Under the facts in this VACATED IN PART, AND REMANDED case, the district court did not err in classifying Waggoner’s NO. 111,005 – FEBRUARY 20, 2015 prior Kansas juvenile adjudication of attempted aggravated FACTS: Ruiz entered no contest plea to attempted aggra- battery as a person felony for criminal history purposes. vated sexual battery. Prior to sentencing, Ruiz filed motion STATUTES: K.S.A. 2014 Supp. 21-6804(c), -6809, to withdraw plea. He maintained his innocence and claimed -6810(d)(6), -6811(e), -6811(g); K.S.A. 21-4710 et seq., defense counsel’s failure to prepare and investigate rendered -4710(d)(8), -4711(e); and K.S.A. 21-3301(c)(3), -3414 (En- counsel incompetent to advise Ruiz about entering plea. Ruiz sley 1988) also claimed, defense counsel had assured him that plea hearing would allow him to address court to argue for finding of inno- cence. District court held evidentiary hearing and found Ruiz knowingly and voluntarily entered plea. At sentencing, defense counsel stipulated to Ruiz’s criminal history but objected to use of 1991 California convictions to enhance sentence. Ruiz appealed, claiming in part that district court erred by denying presentence motion to withdraw plea, and by classifying the 1991 California convictions involving child sex offenses as per- son offenses for criminal history purposes. State argued Ruiz invited error in calculation of criminal history by defense coun- sel’s stipulation to criminal history at sentencing hearing. ISSUES: (1) Motion to withdraw plea and (2) criminal his- tory calculation HELD: Considering all evidence, there was no abuse of district court’s discretion in finding no credible evidence that defense counsel’s representation was deficient, or in finding that Ruiz’s plea was knowingly and voluntarily entered. Kansas Supreme Court and inconsistent Court of Appeals decisions addressing stipulations to criminal history were re- viewed. Here, invited error doctrine did not apply to bar Ruiz’ appeal. Ruiz did not personally admit his criminal history in open court, nor was he requested to do so by the judge. And under rationale in State v. Weber, 297 Kan. 805 (2013), and State v. Donaldson, 35 Kan. App. 2d (2006), Ruiz challenged only the legal effect of the classification of his prior out-of- state crimes as person offenses. Applying the holding in State v. Murdock, 299 Kan. 312 (2014) (modified Sept. 19, 2014), Ruiz’s 1991 California convictions must be classified as non- person offenses for criminal history purposes. Sentence is va- cated. Remanded for resentencing. STATUTES: K.S.A. 2014 Supp. 21-6814(a); K.S.A. 2014 Supp. 22-3210(d)(1); K.S.A. 21-4701 et seq., -4711, -4715(a), -4721(e); and K.S.A. 22-3504, -3504(1) www.ksbar.org | April 2015 35 Save the Date

May 5 2015 Health Law Update Hilton Garden Inn, Overland Park Pending credit approval in Kansas and Missouri May 11 Legal Ethics is No Laughing Matter: What Lawyer Jokes Can Teach Us About the Profession Sean Carter Webinar Series Approved for 1.0 CLE credit hour, including 1.0 hour ethics and professionalism credit, in Kansas May 15 2015 Midwest Intellectual Property Institute Sprint Corp., Overland Park Approved for 7.0 CLE credit hours, including 1.0 hour ethics and professionalism credit, in Kansas and Missouri May 20 Nice Lawyers Finish First Sean Carter Webinar Series Approved for 1.0 CLE credit hour, including 1.0 hour ethics and professionalism credit, in Kansas May 29 2015 Criminal Law CLE Kansas Law Center, Topeka Pending credit approval in Kansas and Missouri

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Positions Available Lateral Attorney. McDowell Rice Smith the Kansas Court of Appeals and 15 briefs Buchanan P.C. is actively seeking lateral before the 10th Circuit, both with excellent Concordia Firm Seeking Associate. mid-senior level candidates with established results. If you simply don’t have the time to North Central Kansas law firm of Condray practices who are interested in continuing to help your clients after the final judgment & Thompson LLC, recently voted “Best Law serve their existing clients but also interested comes down, call or email to learn more. Firm of Concordia,” seeks an outgoing asso- in providing depth and experience to the Jennifer Hill, (316) 263-5851 or email ciate attorney with at least three years’ experi- firm in the areas of commercial, business, [email protected]. ence. Candidates must have good academic dispute resolution, tort and professional li- credentials, strong written and oral commu- ability litigation. Minimum requirements Contract Brief Writing. Former federal nication skills, and experience with a general include: law clerk and Court of Appeals staff attor- practice office handling corporations, estate ney available to handle appeals and motions. • Licensed in Missouri and Kansas Attorney has briefed numerous appeals in planning, real estate, title insurance, adminis- • Excellent academic credentials trative law, and tax planning and preparation. both the Kansas and federal appellate courts. • Exceptional verbal and written Contact me if you need a quality brief. They must possess a good work ethic and be communication skills comfortable interacting with the community. Michael Jilka, (785) 218-2999 or email • Strong interpersonal skills [email protected]. They must also be happy living and work- • Capability and continued potential ing long term in a rural community of 5,300 to retain and develop business people. Please send resumes and cover letters Contract Brief Writing. Former research to Condray & Thompson LLC at PO Box Please forward your introductory letter and attorney for Kansas Court of Appeals judge, 407, Concordia, KS 66901, or email them to resume for immediate consideration to: former appellate division assistant district at- [email protected]. All inquiries [email protected]. torney in Sedgwick County. Writing back- will be kept confidential. ground includes journalism degree, Kansas Office Manager Wanted. Medium-sized City Times intern, U.D.K. beat reporter County Counselor Sought. Sedgwick Wichita law firm seeks a dynamic and high- and grant writer. I have written more than County is seeking a county counselor to ly organized office manager to have overall 50 appeals and had approximately 30 oral support and advise the Board of County responsibility for day-to-day operations and arguments in the Kansas Court of Appeals Commissioners, the county manager, the non-attorney personnel. The successful can- and Kansas Supreme Court. I have criminal legal department and others as needed to didate will administer the operations of the and civil litigation experience, in addition to provide legal advice and opinions on a wide office and will be expected to enhance law civil and criminal appellate experience. I wel- variety of municipal laws. The selected At- office management. The ideal candidate will come both civil and criminal appeals. Rach- torney will have the capacity to analyze, have experience in human resources, com- elle Worrall, (913) 397-6333, rwlaw310@ appraise and organize facts, evidence, and puter technology and marketing. Minimum outlook.com. concerned in difficult and com- of a bachelor’s degree from an accredited plex cases and to present such material in university and 2 years’ administrative ex- Estate & Trust Litigation. Available to clear and logical form in oral and written perience. Salary commensurate with expe- assist you in probate and trust litigation in presentations, briefs, opinions, orders, or rience. Send resume to: Selection Process; Kansas, Missouri and other states. www. decisions. The county counselor will have Attn: Linda S. Parks, 100 N. Broadway, nicholsjilka.com. the ability to understand and develop tech- Suite 950, Wichita KS 67202 or parks@ nology standards that comply with the Kan- hitefanning.com. QDRO Drafting. I am a Kansas attorney sas Code of Professional Responsibility. The and former pension plan administrator with county counselor must have knowledge of Attorney Services years of experience in employee benefit county resolution and charter provisions, law. My services are available to draft your particularly as relating to the authority and Appeals. Experienced trial and appellate QDROs, communicate with the retirement functions of county department, agencies attorney available for state and federal ap- plans, and assist with qualification of your and boards. Applications are to be submit- pellate case referrals. Licensed before state DROs or other retirement plan matters. Let ted through www.HRePartners.com. courts of Kansas and Colorado, U.S. Su- me help you and your client through this preme Court, and various circuit courts of technically difficult process. For more in- Go West Young Lawyer. After nearly 39 appeals including the Tenth Circuit Court formation call Curtis G. Barnhill at (785) years of solo law practice in northwest Kan- of Appeals. Listed, Who's Who in Ameri- 856-1628 or email [email protected]. sas, I am ready to sell my practice and move can Law. Work featured in The New York on to other pursuits. My office building Times and The Washington Post. Author of Veterans Services. Do you want to better and tenants, client files, and office equip- numerous legal articles and Am. Jur. Trials serve your veteran clients without going to ment will soon be ready for you to take over. treatise on constitutional tort law. Trial per- the trouble of dealing with the VA? I am a There are nine county courthouses within an spective at the appellate court level. Reason- VA-accredited attorney with extensive expe- hour’s drive. A run for county attorney will able rates, fee arrangements. Contact John rience applying for various VA benefits, in- be available in August 2016. My secretary B. Roesler, Attorney at Law, Post Office Box cluding Improved Pension. I regularly con- might even be persuaded to stay on. This 604, Lawrence, Kansas 66044, (303) 929- sult with attorneys (and their clients) about has been a great place to live and work. In- 2244, [email protected]. the various services attorneys can offer their terested candidates should send resume and clients to help qualify veterans and their cover letter by email or mail to: Stover Law Contract Brief Writing. Experienced families for various VA programs. As soon as Office, PO Box 275, Quinter, KS 67752, or brief writer is willing to take in appellate a client is in position to qualify, I can further [email protected]. All inquires will proceedings for any civil matter. Attorney assist by handling the entire application to be kept confidential. has briefed approximately 40 cases before the VA for you. For more information about my various consultation and application ser- 38 The Journal of the Kansas Bar Association classified advertisements vices, please contact the Law Office of Scott Office Sharing/Office for Lease— The building also includes a beautiful glass W. Sexton P.A. at (785) 409-5228. Country Club Plaza, Kansas City. Of- atrium sitting room used as an art display. fice sharing or office lease opportunity on Provided services include private parking For Sale the Country Club Plaza in a Class A high and receptionist services. Please call Swin- profile corner building with ample free nen & Associates LLC at (785) 272-4878 Kansas Digest Books. Full set of public parking for clients. 200 to 11,000 for more information and to schedule an ap- West’s Kansas Digest books updated square feet available. Window offices avail- pointment to view the space. through July 15, 2014. Asking $900 for able, high-speed DSL, printer, copier, fac- the entire set. If interested please contact simile, scanning, telephone, kitchen facili- Professional Office Building For Sale or Lease Near 28th & Fairlawn in SW Ashley Augustine at (785) 625-8040 or ties, reception area, and multiple conference Topeka. A 10,000 SF, two-story building [email protected]. rooms. Offices are state-of-the-art with award-winning interior finish and design. recently remodeled with new HVAC and Law Office Software Dedicated area available for your assistant lighting systems. Building could be used as if needed. Reasonable rent. No long-term a whole or easily divided into four or more Juris DOC Pro Law Office Software. lease required. Some possibility of business work areas to accommodate numerous pro- Free use of Juris DOC Pro law office soft- referrals depending on your area of practice. fessional organizations. Convenient to the ware for 60 days, to see if it may be useful We are an AV-rated litigation firm with Hwy Loop for quick access to all city, state, in your practice, by saving time and helping full management, accounting, research, and and court buildings, turnpike and the mall to increase billable hours each month. Ap- other support services. We would consider areas. 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www.ksbar.org | April 2015 39