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SeptemberI 993 Volume54, Number5 Pub~ nve n times a year (the sevwnthlaauo II I bQ!dlf9Clory «ht!On) by th& Alabama Si:ato 8DJ, ON THE COVER: P.O. Box •156, Mon,gomory,Al4bam1 sa101 . James R. 'Spud" Seale, the newly-Installed president of the Alabama Stale Bar, is P•one (205}269-1515. shownwit h his familyi n lhe Patrons' Room of the Alabama Shakespeare Festival in Montgomery.First lady Nancy is to the lefi of Spud. Their children, seated left lo Robert A. 1-lJtlaker··----- • Eo,tor Sn,rocl PRESIDENT'SPAGE take this opportunity in th is first "President's state bar associations pressing issues confronting their bars. Page'' to thank you, the members of the Alabama The number of bar associations facing problems with their State Bar, for giving me the privilege to serve as executive director and staff are too numerous to mention and your president. I look forward to an exciting year I cannot tell you how blessedwe are to have the professional Dand, with your help, I am sure it will be successful. staffwe have. ReggieHamner, Bob Norris and Keith Norman, The "President's Page" of The Alabama lawyer has been just to mention a few, are among the finest. if not the finest, used by my predecessorsto comment on matters of interest to in the nation. The entire staff works diligently to serve and the bar in general and the president. I will continue th is meet the needs of our lawyersand , in my opinion, they per precedent, but I also want to use this space to tell you some form in an outstanding manner. I encourageyou to call upon facts and history about our state bar association I hope you the state bar headquartersfor adviceand assistance in matters will find interesting. In subsequent articles I will discuss the relating to bar activities, and more importantly. let them formation or our state bar. its operations and our state con know how much we appreciate what they do for us. Serving vention. the needs and demands of 10,000 lawyers is a prodigious Our state bar associationserves all lawyersin this state. If I undertaking andour state bar staff performs this undertaking could convince the lawyersof our state of this one fact, and exceedinglywell. that was the only thing J accomplished in my year as your The AlabamaState Bar has a most exciting year ahead of it president, then I would consider my and I will highlight a fewof the important term as president to have been success- issues which some of the committeesand ful. I was a member of the bar commis- task forces will be dealing with this year. sion for six years before assuming this One of the task forces that I am most office, and I can unequivocallysay that excitedabo ut is the Long-RangePlanning the lawyers elected to serve as bar com Task Force. In discussing my thoughts missioners.when sitting as bar commis and ideas for the year with Reggie,I was sioners, have uniformally acted in the advised that the Alabama State Bar has best interest of all lawyersi n the state of never had a true long-range planning Alabama. I realize I sound like the committee. The bar has addressedvar ious proverbial broken record, but I want to special needs and areas through task emphasize that this bar associationrep forces dealing with a specific issue and it resents all lawyersin the state of Alaba is a tribute to both our bar associationand ma. The Alabama State Bar must not its leadership that the bar has functioned become embroiled in the policies of any as well as it has without a long-range specia l interest group. Such actio n plan. I felt that it would be both beneficial would be divisive and injurious to our and informative if we had a task force to association. I think our association has take a long, hard look at where we have done an outstanding job of avoiding spe Sp ud Sea le been in the past and where we want to be cial interest politics and we must con in future . This task force will use the tinue to do so. reports generated by other task forcesand I hope there is no issue, irrespective committees, as well as input from current or the magnitude, which you feel ought to be brought to the committees, in formulating a report and possiblerecommen attention or the state bar that you cannot call and discusswith datlons to the Boardof Bar Commissioners.I have not limited me. This is your bar association and I encourage both your the scope of review or this task force and I solicit your input participation and input regarding our activities. Please feel and recommendationsas to matters you think that this task free to call me lo discussyour concerns and make suggestions force should consider. regarding our association. My telephone number in Mont I consider myself, and in particular the bar, most fortunate gomery is 834-7000and if I happen to be out, please ask for to have Camille Wright Cook of Tuscaloosa serving as the my secretary,Wynn Warren , and leaveyo ur messagew ith her. chair of the Long-RangePlanning Task Force. I knew that to I cannot discuss our state bar association without telling chair this task force would be a prodigious undertaking and you how exceedingly fortunate we are to have the staff we that we would need a person known and respectedby the vast have. As your president-elect, I have had the opportunity to majorityof lawyersin the state. Camille Cook is the personifi visit with many of the executive directors and staff members cation of such a person and along with the committee, will of other bar associations and to discuss with officersin other begin the development of a long-range plan which will take 284 / SEPTEMBER1993 THE ALABAMALA\1/YER our bar associationto the next century. I view the work of this task force as being one of the most important matters present ly confronting our bar association. I again encourage you to write either Camille or me in care of state bar headquarters with any recommendationsand suggestions you think should Important! be consideredby the Long-RangePlanning Task Force. Another task force l bring to your attention is my Sole Prac titioner and Small Firm Task Force. Although the sole practi tioner and small firm members (firms of less than five Licensing /Special attorneys) comprise approximately70 percent of our bar asso ciation, the AlabamaStale Bar has never had a committee or Membership Dues task force to specificallyaddress the needsof this group. l have asked this task force, which will be chaired by Commissioner 1993-94 Rick Manley, to look into how the state bar can better serve the needs of this group and determine if a recommendation A// licenses to practice law will be sold should be made to the Board of Bar Commissionersto make 1hroughthe Alabama State Bar headquar the task force a permanent, standing committee of the bar. l ters, as well as payment of special mem have also asked this task force to consider the issue of disci plinary problems facing the sole practitioner and small firm bership dues-the same as last year. members and make a recommendationas to what, if anything, In mid-September, a dual invoice to be can be done to prevent the increasing number of disciplinary used by both annual license holders and infractions among this group. l certainly do not mean these special members will be mailed to every comments to be disparagingof the fine men and women prac ticing as either sole practitionersor in small firms, but it is a lawyer admitted 10 practice law in Alaba documented fact that a disproportionatepercentage of disci· ma. The form will be somewha1 differenl plinary complaints and, in particular, punishment, involve in appearance from lase year, however. members of this group. As a former member of the Disci If you are actively practicing or amici plinary Commissionand past chair of a DisciplinaryPanel, l pate practicing law in Alabama between hope this task force will be able to shed some light on how the slate can assist sole practitioners and small firm members in October I, 1993 and November l, 1994, thi.s regard. please be sure that you have the required I am continuing the Minority Participation Task Force occupational license. Licenses are $250 for which was started several years ago in the presidency or the 1993-94 bar year and must be pur Jud ge Harold Albritton. This most important task force chased bet ween October I and October 3 I has been capably chaired in the past by Judge Charles Price and Gene Verin, with Rodney Max serving as its vice-chair. or be subject to an automatic 15 percent To continue the work of this task force and adviseme regard penalty ($37 .50). Second notices will not ing how the stale bar can better serve the needs of the be sent! minority lawyer, l have asked my friend, Walter McGowan An anomey 1101engaged in the active or Tuskegee. to serve as chair or this task force. Minority lawyers presently comprise 3.3 percent of our slate bar practice of law in Alabama may pay the membership and, although various individuals are highly special membership fee of $ 125 10 be a visible and serve with distinction on several of our com member in good standing. mittees and task forces, it is my goal and commitment Upon receipl of payment, those who pur to encourage and achieve greater participation or minority lawyersin all facetsor this association.I sincerely hope that all chase the license will be mailed a license lawyerswithin the state or Alabamashare my sentiments on and a wallet-size license for identification the importanceof this committee to both our associationand purposes. Those electing special member state. ship will be sent a wallet-size ID card for The final task force that I mention is the Alabama First both identification purposes and as a Task Force which is a continuation of the task forcestarted by ClarenceSmall. The main purpose of this task force is to raise receipt. the level of awarenessof the lawyersthroughout the state to If you do not receive an invoice, please the many problems confronting the state or Alabama, and to notify Alice J o Hendri x, membership ser encourage participationby associationmembers in the groups vices director, at 1-800-354-6154 (in-state and programs which are addressing these problems in an WATS)or (205) 269-1515 immediatel y! effort to improveo ur state. At the initial meeting or the Alaba ma First Task F'orce,i t was unanimously agreed that the most pressing problem facing the citizens or Alabamais our lack of THE AI..ABAMAL4.WYER SEPTEMBER1993 / 285 a quality educational system and the failure of the system to development of this state and your practice. J.f our cities and keep young men and women of our state in school and provide state do not continue to experience growth and prosperity, I them with a quality education with which they can compete in think all of us as practicing attorneys will see our practices the job market. suffer. I am sure that you are as tired as I am or our state's being I believe that the leadership needed to effectuatechange and near the bottom or at the bottom in areas which bring indus bring Alabama from the bottom of the heap to near the top try and jobs to our communities. A few salient statistics vividly can be found among the members of this bar association. As a demonstrate the problems facing our state. These statistics are profession, we have been too cautious, too timid and, sadly, as follows: too uninvolved. We, boU1as individuals and as a profession, must be willing to give something back to our communities In Alabama,19 J percent of our citizens live below the and state. poverty line versus 13.5per«nt for the United States F'ellow lawyers. I urge and challenge you to become as a whole. Thus, Alabama has a poverty line rate D involved in the affairs and activities of your community roughly 40 per«nt higher than the national average. and state and, in particular, in the educational Alabama has the lowest percentage in the nation of reform movement. This is nol something that can wait students completing high school, 63.2 percent in until next year. If there has ever been an issue which D Alabamaversus 76.9 percent for the U.S.as a whole. is lime sensit ive, this is it. If something is not done and done immediately to ensure educational reform in this state Alabama has the lowest percentage of persons so that every citizen is guaranteed a qualit)• pub lic completing college, 11.6 perc.enl for Alabama versus education, then our state will continue to wallow in the D 21.2 per«n t for the U.S. as a whole. mud of mediocrity or, worse, will be unab le to compete with our sister sunb ell sta tes and the progressive Alabamaranks 46th in per capita expenditures per movements alive and well in each of them, pupil with an average expenditure of $3.362 and 43rd It has long been too convenient for us to say we do not D in average teacher salaries, with an average salary of have time for various matters that we readi ly recogn ize $26,954 (not including benefits).The average per are worthy. I suggest to you that we can no longer afford capita expenditure per pupil in the U.S. is $6,070 to say we do not have time. In fact, if we continue to say we and the average teacher's salary in the U.S. do not have time, the reali ty and magnitude of the edu is $34,148. cation crisis and its potential ramifications may give us more Alabama spends an average of approximately$14,000 to time than we ever wanted. incarcerate someone in our penal system and it is It is my fervent hope and prayer that all members of D estimated that 85 percent of the prisoner population th is association will readily recognize the magnitu de of in Alabama does not have a high school degree. the problems facing our state and make a com mitmen t to active ly participa te in the solutions to the same. Let In I 992, Alabamaranked sixth highest in the nation in us work together to make Alabama first in those unemployment with a rate of 7 percent and ranked categor ies which will bring jobs and economic growth D 33rd in population growth between 1980-1990witha to our state, and ensure a brigh t future for our beloved growth rate of 3.8 percent versus 9.8 percent growth state and its residents. rate for the U.S. In my next article, I will discuss the Volunteer Lawyers l am certain that these statistics are as frightening to you Program run by Melinda Waters and the continuing debate as they are to me. It does not take a rocket scientist to over whether pro bono work should be mandatory or volun realize that any chance to change the deplorable situation tary. Again, my thanks for the opportunity to serve as in which we find ourselves , out of necessity, must come your president. • from within as opposed to without. Alabama has. for far too long, relied on the federal government to solve many of our problems. This fact is sad ly, but clear ly, demon strated by the fact that in the fiscal year ending September AWARD W JNNINO SOFTWARE! 30, I 992, the State of Alabama ranked l8th among states in tota l federal spend ing and, more importantly , 14th in TurbOCLDSE " averagespending per person. Real Estate Closing Softwdre With the budget crises facing the federal govern ment and spending cuts an almost certa inty at all levels, Officially it seems abundant ly clear to me that 1ee can no longer Endorsed and Recommendedby look to Washington for help. We must look within the Auomeys' Title Guaranty Fund, Inc. state of Alabama for aggressive, effective leaders who will make the tough and probably unpopular decisions necessary • Actually Oil in HUD,1 on scn:en. • Comp lete closing, In 30 minutes. (Avg) to effectuatethe change from within our state. • Complclc progmmfo r Clocsings. (800 741-6465 Economic growth is absolutely essential for the growth and 286 / SEPTEMBER199 3 THE ALABAMALAWYER POLL FACTS/FAXPOLL: The Annual Meeting With Lhisyear's annual meetingjust completed.we have receivedmany favorablecomments regarding the convention.But, in an effort to serve you belier, we want more information,from those who did not attend the annual meeting, as well as those who did. Thesesuggestions. criticisms and opinionswill help us plan for and improve future meetings. J. The annual meetingin 1994will be held in OrangeBeach al Lhe PerdidoBeach Resort.Do you think il should be held there everyyear from now on or continue to rotate il betweenB irmingham.Mobile and OrangeBea ch? __ Orange Beach __ Rotalcdamong the three cities __ Other (plea.~especify) ______2. ls July the be.stmonth for you to attend the annual meeting? __ Ye.~ _No Cl(no, which summer month is best?) ------3. The 1994annual meeting"~II be Mondaythrough ThursdayInstea d of the usual Thursdaythrough Saturday.Does this make you more likelyo r less likelyto attend. or doesit make no differencein }'Ourdecision to attend? __ Morelikely __ Lesslikely _No difference 4. Pleaserank the followingprograms based on what you preferor wouldprefer to attend at an annual meeting. (Pleaserate them 1-6. with I beinl!the least preferredand 6 as the most preferred.) __ Sociale vents _fam ily-orientedeven ts __ CLEsess ions Anyspecific kind of CLE?______Meadlinekeynote speakers at luncheonsand d inners __ Entertaining programsfor children __ Other (pleaselist) ______5. Didyou attend the 1993annual meeting in Mobile? _Yes __ No If no. why not? __ Tooexpensive to attend __ Nothingoffered or interest to law practice __ Currently in trial or had other businessconflicts __ Other (pleaseexplain) ______6. Do you usually attend the annual meeting? __ Yes _No lfno. why not?------7. If you did attend the 1993annual meeting. what did you enjoy most or benefitfrom most?(P lease rank 1·6.) __ Section Meetings __ GrandeConvocation/Business Meeting __ Updatt·93 __ CommitteeBreakfast __ SocialEvents __ l::xpo·9J 8. Whatsuggestions do you have for improvingfuture annual meetings? (Pleaseattach a separate sheet if necessary.) TH~:ALABAMA LAWYE!l SEPTEMBE!l1993 1287 EXECUTIVEDIRECTOR'S REPORT NEW YORK,NEW YORK he deadlinefor this column immediately precedes that would dilute the current strength of state and local bars. my departure for the 1993Annual Meetingof the It is going to be an interestingdebate, and has the potential of AmericanBar Association in NewYork. A number reshaping ABApolicy an d proceedings. [I This return to New York for an annual meeting prompted of important issues will be discussedin the ABA's governingbo dy, the Houseof Delegates. my friend, RichardT hies, chair of The F'ellowsof the Ameri The House is frequenUy criticized for acting on issues can Bar Foundation, to remind us that it 1vasat the last New whichappear to many lawyersas not germane to the practice YorkAnnua l Meetingin 1986where the StanleyCommission of law. In recent years, the members of the NationalConfer Report on Professionalismwas presented. That report's rec ence of Bar Presidentshave sought to influencethe agenda in ommendationspertaining to the bar generallyprovided that: such a way that "lawyer issues",as opposedto what are often "Allsegments of this Bar should: denominated as "social issues•·. are the matters up Fourteen attorneys wilh Bakb & Judge Elmo B. Hunter of Missouri King, Jr.'s march lo Selma, Judge John Bingham have been named lo the 1993- (1987): Joint recipients United States son ls now recognized as one of the 1994 edition of The Best lawyers in Circuit Judge Elbert Parr Tuttle of Ceor· "most courageous and foremost judges America. llalch & Bingham. currently gia and UnitedStates Circuit Judge John or lhe land.'' the state's largest law firm, has officesin Minor Wisdom of Louisiana (I 988); In addition to the above decisions. Birmingham. Montgomery and United States District Judge Gerhard A. Judge Johnson also decided landmark Huntsville, Alabama and Washington, Gesell of the Distr ict of Columb ia cases setti ng national stan dards for D.C. Attorneys from the Birmingham (J 989); United States Circuit Judg e the treatment of the mentally ill and office include Michael L. Edwards , James R. Browning of California(1990): care of prison inmates, as well as cases James F. Hughey, Jr., William R. Sat United Slates District Judge Hubert L involvingfirst amendment rights of col terfield. John J. Coleman. Ill , S. Eason Willof Illinois (1991):and UnitedStates lege newspaper editors, gender-based Balch, Sr .. Robert A. Buettner. Rodney Circuit Judge Joseph F. Weis,Jr. (1992). discrimination. and rights of the O. Mundy, H. Hampton Boles, Ran Nomination$ are now open for the accustd. dolph H. Lanier. and Harold Williams. 1993award and should be submitted to The award was presented at the Thur In the Montgomery office. attorneys Devitt Distinguished Service to Justice good Marshall Award Dinner Saturday, named include Charles M. Crook, M. Award. P.O. Box 64810. SL Paul. Min· August 7. during lhe ABA Annual Roland Nachman, Jr .. Maury D. Smith, nesota 55164·081 IO by December 31. Meeting in New York City. The ABA and Sterling C. Culpepper, Jr. Attorneys 1993. is dedicating the annual meeting listed in The /Jes/ IAwyers i11America to lhe memoryof Justice Marshall. are selected by their peers in various The Ameri categorieso f expertise. can Bar Asso Jeff Sessions, who has served as Unit cia tion an ed States Attorney for the past 12years, The committee to select the 1993 nounced re has received lhe highest award or Edward J. Devitt Distinguished Service cently that the U.S. Secret Service- The Honor to Justice Award is comprisedof Justice Frank Minis Award- at his recent retirement where Antonin Scalia of the United States Johnson. Jr •. more than 30 local, state and federal Supreme Court, Chief Judge WilliamJ. senior judge, organizations made presentations lo Bauer of the Seventh Circuit Court of United States Sessions. Appeals, and United States District Court of Ap Assistant U.S.Attorney Richard Moore Judge Oliver Casch of the District of peals for the told Sessions. "In this room are Assis Columbia.The award,established lo rec 11lh Circuit tant U.S. Attorneys who would march ognize extraordinary service by mem in Montgo- through Hell for )'Ou." bers of the federal judiciary, is made John •o n mery, has WIiiiam T. Stephens, general counsel available by West Publishing Company been selected for the Retirement Systems of Alabama, in the name of the lnte Edward J. Devil!, lo receive the ABA's 1993 Thurgood was elected president of the National long-lime Chief Judge for lhe District of Marshallaward. Association o( Public Pension attorneys Minnesota. The honor includes an award The award, established in 1992 by the al the association's recent conference in of $15,000 and is symbo lized by an AJ3ASectio n of Individual Rights and Portland, Oregon. Membership of the inscribed crystal obelisk. Responsibilities,recognizes individuals' association consists of both in-house Previous winners are: United States long-term contributions to the advance counsel and private practitioners who Circuit Judge Albert B. Marisof Pennsyl ment of civil rights, civil liberties and represent public pension plans in the vania (1982): United States District human rights in the U.S. l'ormer U.S. United States and its territories. Mem Judge Waller E. Hoffman of Virginia Supreme Court Justice Thurgood Mar bers represent pension plans with assets (1983); Chief Justice Warren E. Burger shall was the first recipient oi the award. in exttSSof SSOObillion . (specialaward, 1983); United States Cir· Judge Johnson was nominated to the cuit Judge Frank M. J ohnson, Jr. of federal bench by President Eisenhower The Birmingham Bar Association Alabama (1984): United States District in I 955. on the eve of the civil rights recently initia led a minority recruit Judge William J. Campbell of Illinois rewlution. Once called "the most hated ment program in an attempt to attract (1985): United Slates Circuit Judge man in the South" because of his land minority lawyers lo the Birmingham Edward A. Tamm or the District of mark civil rights decisions invalidating areas. Nine area law firms participated Columbia (special award, 1985);United the poll tax, desegregating lransporta· In the first program with more than 16 States District Judge EdwardT . Gignoux lion, and permilling non-violent first-year law schools students vying for of Maine ( 1986): United States District demonstrations such as Martin Luther the firms' summer clerkships. THE ALABAMALAWYER s~;P'l'EMBERI 993 I 289 Nick Cnede. chairman or lhr Birmingha m attorney Rodney A. counties or Escambia, Santa Rosa, Increased Minority Partlclpallon Max, a member of the firm or Okaloosa and Walton. Johnson is a Committee for the BBA and one or Najjar Denaburg,was recently honored shareholder in the Pensacola nrm of the architects of the program.said, ''The as the J 993 recipient of the Peggy Smith, Sauer, DeMaria,Pugh & John· bar acted as a matchmakerbetween the Spain McDonald Award for com son, and is a I 986 admittee lo the Alaba participating la\\! firms and Lhe law munity seNice. Maxwas nominated for ma State Bar. school candidates. Based on the firms' the award by the Camp Birmingham hiring criteria, we selected the tandl Ad\lisory Council for his conlinued, Appalachian Ruear ch and Defense dales and set up the interviewarrange active support or Camp Birmingham. Fund or Kentucky. Inc. has recently ments..'" CampBirmingham was createdsix years published the I992 Supplement lo ils ago by the efforts or Max and Peggy earlier publication, "Black l,111lfJClaims Boyd Campbell of Montgomel')' has Sparks. director or Community Educa Before the /)(,partment of labor-a Man bee_nappointed advocacy\liet-chair or tion. The camp prO\lidessummer recre ual of Substantive law.· The supple the ImmigrationLaw Committee in the ational, educational and employment ment is 36 pageslong and cO\ltrsmost General Practice Stclion or the Ameri· activitiesfor c:ity)'Outh who might not of the major case de\ltlopments since can Bar Association. have opportunitiesto attend or work at 1988when the earlier manual was pub· The General Practice Section repre a traditional summer camp away from lished, as well as a section on the pro sents approximately 14,000 lawyers home. cess for reopening and/or modifying throughout the nation. The Immigra This year, Maxhas been instrumental claims. tion Law Committee serves Lhe mem, in establishinga conflictresolution stu The cost or the manual is $25. includ· bers of the section in the area of dent council for Camp Birmingham, ing mailing.A limited number of copiel immigrationlaw. whichwill instruct and advisecamp par of the original manual is available Campbellwas appointedto this posi ticipants on alternative dispute resolu· at S25 each. Orders should be sent to: tion for a period or one year beginning tion mechanisms. Diane F'ish. Administrative Assistant, at the conclusion of the annual meeting AppalachianResearch an d Defensefund or the AmericanBar AssociationIn New Pensacola attorney Carl Johnson was of Kentucky,I nc., 205 front Street, Pre• YorkCi ly In August 1993, and endingal sworn in as First Circuit representative slonsburg, l{entucky 41653. Makeyour the conclusion of the anm,,d meeling or of the Young Lawyers' Division of check to ARDFof ICY, Inc. the American Bar Association in New Lhe Board or Governors or The Florida Wilbur G. Silberman of the 13irming, Orleansin August1994. Bar. The First Circuit inclu des the ham fir m or Cordon , Silberman, Wiggins & Childs is among only 45 attorneys rrom across the United States to earn certification as a bus NEWSAVINGS PROGRAM ON iness bankruptcy law specialist from the Commercial Law League of OFFICES UPPLIESFOR MEMBERS OF America (CLI.A) Academyof Commer THEALABAMA STATE BAR cia.1 and BankruptcyLaw S peclaliats. Silbermanis a graduateof the Univer sity of Alabamawhere he also received his law degree. he AlabamaState Bar has madearrangements with Penny\\~se. a major Founded in 1895. the CLLAis the officesupplier, that wiUgiw law firms an opportunity to savemoney on T nation's oldest commercial litigation omcesupplies. and bankruptcyorganization. Members PennyWiseoffers a larges.!lection or officesupplies in additionto lowprices include 5,000 attorneys and other and fast, rm1deliwry . The statt bar projlamwill enable members to sa,-ean experts in credit and financial activity additional4 to 1J percentoff the PennyWisealready discounted prices. actively engaged in the fields or com, Brandslike 3M.IBM. Rolodex. Bic. and hundredsmore are offeredat a frac merciallaw, bankruptcy and reorganfza. tion oi their regularselling price. If a memberpurchases an item from Pen tion. nyWise, sees it adverliseJfo99 r lessand sendsthe ad to Penn)•Wisewithin 30 days.Penny\Vise will send James R. Pratt. Ill or Birmingham the membera check for the differenceor credit the account. was recently elected treasurer of the PennyWisealso offorsthe largest omce product network in the nation. AlabamaTrial Lawyersiusociatlon and The electronic cataloga llows membersto order 24 hours a day,se-.•en days a a member of the American Board of week.Members can also order by mail, toil-free phoneor fax. Trial Ad,·ocales. A.~a specialintroduction, PennyWise is offeringAlabama State Bar mem Pratt is a graduate of Auburn Univer· bers $10 flff their nrst order. F'or more informationon the programand a sity and Cumberland School or Law, full color cataloa,call 1-800-942-3311. • SamfordUn iversity. He is wllh the nrm or Hogan, Smith, Alspaugh, Samples & Pratt. 290 I SEPTEMBER1993 THEALABAMA LAWY EI~ John D. Saxon, a partner with the been elected to the board of directors of Samford Universityin Birmingham. Its Birmingham firm of Cooper, Mitch, the Public Affairs Research Council or purpose is to provide research, policy Crawford, Kuykendall & Whalley. has Alabama(PARCA). Elyhas ser.oed since rep0rls and recommendations dealing been named by PresidentClinton to the 1986 as vice-chair or the Tax & Fiscal with significantstate and local govern Pruident"s Commission on White Arrairs Committee of lhe Business ment. education, finance, and tax-relal· House Pellowships. Council or Alabamaand hasbeen active ed issues affecting Alabamians. The The White House Fellows Program for a number or years in efforts organization 1s headed by former Gov· was begun in )965 by President Lyndon to update and streamline Alabama's ernor Albert Brewer and is presently Johnson as a means of enabling young patchwork lax laws. He is also involvedin providing research and rec men and women early in their careers past chair or the AlabamaState Bar Tax ommendations on lax and education who showed outstanding leadership Section. reform measures designed to address potential an opportunity to spend a year Founded in 1988,PARCA is a non Montgomery Circuit Judge Eugene in Washington as special assistant to profit organization headquartered at Reese's recent equity funding ruling. • the Vice-president.a senior member or the While House Staff, or a Cabinet Secretary. The President's Comm ission on White House Fellowshipssets p01icyfor Thanks! the White House FellowsProgram and r deeply appreciate the many expressions ol congratulations upon the selects tach incomingclass of Fellows. occasion o( my retirement, through telephone calls, letters and personal Saxon was the first White House Fel conlllct. I especially thank those members of present and past boards of bar low ever selected from Alabama. He examiners and charaaer and fitness committees for their contnbulions to my served as a Fellow in 1978-79as a spe retiremcn1gift, which I can assure you was put to good and greatly cial assistant to Vice-presidentWalter F. use Mondale.I n 1992, he chaired the Clin enjoyed. You are a special group of people. II was my Joy to work for you ton presidentialcampaign in Alabama. and wllh you during these past years. Again, a hear1felt" thank you." Massey Bedsole of Mobile has been Norma Jean Robbins named distinguished alumnus by the NationalAlumni Association o f the Uni versity or Alabama. Bedsole received both his bachelor's and law degreesal Alabama,and he "'as a member of the University's Board of A UNIQUE CPA FIRM Trusteesfor ten yea!'$. Two years ago Bedsole received lhe FOR L ITIGATOR S Distinguished Law School Alumnus Awardfor his serviceto the University's • Exclusively devoted to litigation and msurnnce LawSchool . accouncing mancrs since 1969. Margball'l'lmberlake, a partner in the • Srnffis 100% trained forensic accountants. noL Birmingham office or Balch & Bing ham. was one o( three representatives reassigned audito rs. from Alabama invited LO allend th e • t:lxpcriencc makes for fosr, ileidble and cosL· Southern Regional Conference on State Court Dispute Resolution Pro effective service for litigators. grams recently held in Richmond. Vir • Resources of our international network of30 offices ginia. The conferencewas sponsoredby ,lt your disposal. lhe National Institute for Dispute Reso lution. Timberlake represented the For more informati on . Alabama State Bar and spoke on the please call Mark Gallagher o r Les I lankes progms or AlternativeDispute Resolu tion in Alabama and lhe status of the at 4<>-l·9>"3-0040 or fax 404-953-0170 current slate dispute resolution pro gram. Timberlakeser"es as chair of lhe AlabaimState 13arTask Force on Alter native DisputeResolution. CA M PO S & ST RA ·1 I S Bruce r. Ely, a member of the Tuscaloosa Orm of Tanner & Guin, has THE ALABAMALAWYER SEPTEMBER19931291 ABOUTMEMBERS, AMONG FIRMS Suite 205, Birmingham,A labama 35244. clair Road, Suite 218, Oakmont Build ABOUT MEMBERS Phone(205)987-l223. ing, Birmingham , Alabama 35213. Larry Morgan announces the reloca Phone (205) 592-0234. WiUiamE. Ca.se announces lhe open tion of his office to 200 West Court Donald L. Colee, Jr. announces the ing of his office al One OfficePark , Suite Square, Suite 204, Huntsville, Alabama relocation of his office to 604 38th 413. Mobile, Alabama 36609. Phone 3580I. Phone (205) 534-8076. Street , South, Birmingham, Alabama (205) 304-0468. Patri ck F. Sm ith announces the 35222. Phone(205)592-4332. Robert P. Bynon, Jr., formerlyin part opening of his office al 1736 Oxmoor Robert E. Patterson announces the nership as Baker & Bynon, announces Road, Suite 201, Homewood, Alabama relocation of his office to the Veitch the opening of his office at 2213 Forest 35209. Phone (205) 871-8335. Building, circa 1830, 301-A f'ranklin dale Boulevard, Birmingham, Alabama L. Thomas Ryan, Jr. announces the Street , Huntsv ille. Alabama 35801. 35214. Phone (205) 791-0028. relocation of his office to 221 East Side Phone (205) 539-8686. Jltar.kA. Baker announces the opening Square, Suite 1-A, Huntsville, Alabama Brian W. Moore, formerly commis of his office at Two Professional Plaza, 35801. Phone (205) 533-1103. sioner or the Alabama Medicaid Agency, 1739 Cheshire Bridge Road, N.E., Larry Keith Anderson, formerly an announces the opening or his office Allanta, Georgia 30324. Phone (404) assistant district attorney for the 20th at J.A.M. Execut ive Suites, 4131 876-9181. Judicial Circuit and Fonnercity attorney Carmichae l Road, Suite C-12, Mont Lenora W. Pate announces her new for the City of Dothan, announces the gomery, Alabama 36106. Phone (205) address as director, State of Alabama, opening of his office at 407-8 North 277-8777. Department or Industrial Relations, 649 Oates Street, Dothan, Alabama 36303. Gail Dickinson-Shrum announces the Monroe Street, Montgomery, Alabama Phone (205) 712-0288. relocat ion of her office to 2015 Isl 36131. She was fonnerly with Sirote & Robert E. Clute, Jr., formerly of Sil Avenue,North , Suite 400, Birmingham, Pennutt. ver & Voit, announces the opening of Alabama 35203. Phone (205) 326-3600. John C. Calhoun announces the relo his office at Suite 2004. 150 N. Royal cation or his office to Suite 950, Finan Street, Mobile. Alabama 36602. Phone cial Center, 505 20th Street, North, (205) 432-7800. AMONG FIRMS Birmingham, Alabama 35203. Phone Terry R. Smyly announces his ne.w (205) 251-4300. office address with the Bureau of Legal R. Larry Bradford announces the for Tam era K. Erskin announces the Services, Department of Mental Health mation of Bradford & Associates. J. relocation of her office lo Civic Center and Mental Retardation, P.O. Box 3710, Mark Baggett and Karen M. Ross are Execut ive Sui tes, I I 17 21st Street, Montgomery, Alabama 36109-0710. associates. The office is located at 2100- North. Suite 400, Birmingham, Alabama Kerri John son Riley announces the A Southb r idge Parkway , Suite 585, 35234. Phone (205) 322-5800. open ing or her office at Barr ister's Birmingham. Alabama 35209. Phone Michael J. Gamble announces the Building, 407 Franklin Street , S.E., (205) 871-7733. opening of his firm al 140 N. Poster Huntsville,A labama 35801. Phone (205) Burns , Cunnin gha m & Mackey Street. Suite 104, Dothan, Alabama 535-0800. announces that Max Cassad y has 36303. Phone (205) 677-6171. He was James M. Sizemore, Jr. , formerly become associated with the firm. Offices formerly with Cherry, Givens, Peters, commissioner of the Alabama Depart. are localed at 50 St. Emanuel Street, tockett & Diaz. ment or Revenue and director of the P.O. Box 1583, Mobile, Alabama 36633. Sarah B. Stewart, a former staff attor Alabama Development Office, an Phone (205) 432-0612. ney with the Office of Hearings and nounces the opening of his office at McPbillip s, Sbinbaum & Gi.11 Appeals,Social Security Administration, 3123 Fieldcrest Drive, Montgomery , announces that S. Judson Waites, a in Birmingham, Alabama and Columbia, Alabama 36106-3334. Phone (205) 277- has become associated with the firm. South Carolina, announces Lhe opening 5341. Offices are located at 516 S. Perry of her office at Suile 336, Pavilion Exec Charles Centerfit Hart announces the Street, Montgomery, Alabama 36104. utive Center, 5000 Th urmond Mall relocation of his office to 924 Third The mailing address is P.O. Box 64, Boulevard, Columbia, South Carolina Avenue, Cadsden, Alabama 35901. The Montgomery 36101. Phone (205) 262- 29201. Phone (803) 765-0444. mailing address is P.O. Box26, Gadsden 1911. Phillip Ted Colquett announces the 35902. Phone (205) 543-1701. Yearout, Myers & Traylor announces location of his office at Chase Corporate Elizabeth Roland Beaver announces that Michael Wade Carroll has Joined Center, One Chase Corporate Drive, the relocation of her office to 956 Mont- the firm , with offices at 2700 292 / SEPTEMBER1993 THE Al.ABAMALA WYER SouthTrust Tower, 420 N. 20th Street, Gentle & Grumbles announces Smith, Spires & Peddy announces Birmingham. Alabama 35203. Phone that Carolyn Landon, formerlyan asso that T. Randall Lyons has become an (205)326-6111. ciate or Schoel. Ogle, Benton & associateor the firm. Officesare located Ball, Ball, Matthews & Sovak Centeno. has joined Edgar C. CeoUe, at 650 Financial ~nter, 505 N. 20th announces thal Allison L. Alford has Il l as a partner. Offices are located Strut, Birmingham, Alabama 35203. becomeU50Ciated with the firm. Offices al Suite 1501, Colonial Baok Build Phone (205)251 -5885. are locatedal 1100 Union Bank Tower, ing, 1928First Avenue,North, Birming, The Ford !Aw Finn announces the Montgomery, Alabama. The mailing ham, Alabama35203. Phone (205) 716- association or Tim Case, Alex address is P. O. Drawer 2148, Mont 3000. Yarbroughand Duncan Hamlitoo.J ohn gomery 36102-2148. Phone (205) 834- Jonu & Trousdale announces that B. Cnwley, formerlycircuit judge or lhe 7680. WaylonThompson. formerlyof Boggs& 12th Circuit, has become of counsel lo Mark Boardman announces the for Thompsonin l'anama City, Florida,has the firm. The main office is located al mation or Boardman, Tyra & Goodbee becomea partner in the firm. The firm's 2129 12th Avenue,North . Birmingham, al 104 Inverness Center Place, Suite new name is Jones, Trousdale & Alabama 35234.Phone (205) 326-3444. 325. P.O. Box 59465. Birmingham , Thompson. The malling address is ll5 Clyde E. Ellis announces that he bas Alabama35259-9465. Phone (205) 980- Helton Court, Suite 8, P.O. Box 367, joined the firm of Ellis & Ellis as a 6000. Florence, Alabama35631. Phone (205) shareholder. Officesare located at 901 Lloyd, Bndford, Schreiber & Gray 767-0333. CrawfordStretl, Vicksburg,Mississippi has been changed to Schreihff & Gray. Wallace, Jordan , Ratliff, Byers & 39180. Phone(6011638-0353. The location remains the same at 2 Bnndt announcesthat James E. Fergu Ford & Hunter .tnnounces that H. Perimeter Park South, Suite 100,Birm son has become a partner and J. Edgar Howard has become associated ingham,Alabama 35243. MlchaelCooper. Melissa ~l. Jones, Lily with the firm. Officesare locatedal 645 Bingham O. Edwards announces M. Arnold . and Jay H. Clark have Walnut Street. Suite 5. P.O. Box 388, lhal Phil D. Mitchell, formerly of becomeassociates. Offices are locatedat Gadsden,Alabama 35902. Phone (2051 lhe Tuscaloosa Officeor Legal Services 2000A SouthbridgeParkway, Suile 525, 546-5432. Corporation or Alabama, has become Birmingham. Alabama 35209. Phone Roden & Hayes announces that associated with the firm. The firm is (205)870-0555. James H. Starnes, formerly or Starnes located at 211 LeeStree t, N.e., Suite A. Calhoun, Faulk, Watkins, Clower & & Atchison, has joined the firm. The Decatur, Alabama 35601. Phone (205) Cox announces that Kenneth W. Cox firm's new name will be Rodeo, Hayes, 353-6323. has Joined B & D Plastics, Inc. of Troy Carter & Starnes. Ofncesare locatedal Henslee, Bradley & Robertson as president.The mallingaddress is P.O. 2015 First Avenue, North. Suite 400, announces that Ralph K. Strawn, Jr. Drawer I 048. Troy, Alabama 36081. Birmingham, Alabama 35203. Phone has become a member or the firm. and Phone (205)566-2471. (205)328 -6869. Kimberly H. Skipper has become an Jimmy 8. Pool announces Laureen C. Sil,-er& Voit announcesthat Thomas associate with the firm. Offices are Binns has become associated with lhe G. F'. Landry, formerly law clerk to located at 754 Chestnut Slreet, Gads firm. The malling address is P.O. Box Senior United Stales District Judge den, Alabama3590 I. Phone (205) 543- 1709, Montgomery, Alabama 36102- DanielH. Thomas, has becomeassociat 9790. 1709. Phone(205) 262-2717. ed with the nrm. omces are localed • CIVIL --mBachus & Associates •CRIMINAL •INSURAN CE CASES PROFESSIONA.L INVESTIGA.TIONS ~ SE R VICE OF PROC ESS ATTENTION ATTORNEYS: Our firm provides Investigative se,vices to lhe insurarn:e, legal, and eo 24 -Bour Phone: P.O. Box 180066 FAX Phone: 20S/649 -S984 Mobllo, Alabama 36618-0066 20S/649-S886 TM!::ALABAMA LAWYER SEPTEMBER1993 / 293 4317-A Midmost Drive, Mobile, Alaba Montgomery, Alabama 36104. Phone ma 36609-5589. rhone (205)343-0800. (205)834-3200. Kimberly O. Fehl and Phillip W. Edward B. Raymonand Elaine Lube! Chancey, Jr. announce the opening of Raymon announce the formation o( Fehl & Chancey. Officesare located at Raymon& Raymon.Off ices are located 138 Adams Avenue, Montgomery, at 402 N. Main Street, Tuskegee, Alaba Alabama36104 . Phone (205)269-1529. ma. The ne,o mailing address P.O. Box Prince, McKean, McKenna & 668, Tuskegee36083-0668. Phone (205) Broughton announces that Michael P. 727-6700. Between May 12, Windom has become associated with F. Timothy McAbeeannounces that and the firm. Offices are located al First Tommy NaU,former ly of Parker & Nail, July 30, 1993, Alabama Bank Building, 56 St. Joseph Barry A. Ragsdale, iormerlyof Sirote & the following attorneys made Street, 13th f'loor, Mobile, Alabama Permutt, and Becky A. Blake are now pledges to the Alabama State 36602.The mailing address is P.O. Box associated with the firm. The firm's Bar Building Pund. 2866, Mobile, Alabama 36652. Phone new name is McAbee, Nail & Ragsdale. (205)433-5441. Offices are located al 2100-1\ South Their names will be Bridge Parkway, Suite 377, Birming included on a wall in the Adams & Reese announces that Vic tor H. Lott, Jr. has joined the firm as a ham. Alabama 35209. Phone (205) portion of the building listing partner. Officesare locatedat 4500 One 879-3737. all contributors. St. LouisCenter, P.O. Box1348. Mobile , Frank H. Hawlhome, Jr. announces U1atC. Gibson Vanceis now an associ Their pledges are Alabama36633. P hone (205)433-3234. ate with the firm. Offices are located acknowledged with Miller, Hamilton, Snider & Odom grateful appreciation. announces that Joseph R. Sullivan, 207 MontgomeryStreet, Bell Building, Thomas P. Oldweilerand Susan Russ Suite 1100. Montgomery, Alabama For a list of those Walker have become members of the 36104.Phone (205)269-5010. making pledges prior to firm, and John Guandoloand Scott P. Ban1ett, Noble & Hanes announces May 12, 1993, Crampton have become of counsel in that Janice C. Formato has become a please see previous issues the firm's Washington, D.C.omce . M. member of the firm. Officesare located of The AlabamaLawyer . Stephen Dampier and Anthony ~I. al J 600 City l'ederal Building. Birming Hoffman have become associatedwith ham, Alabama 35203. Phone (205) 322. the firm. The firm has officesin Mobile 0471. Kenneth L. Goodwin and Montgomery.Alabama and W3$h Hardwick, Haus e & Segres t ington, D.C. George8. Gordon announces that KevinWalding, former Lange, Simpson, Robin son & ly staff attorney for Justice Maddox. has Hattie EngelKaufman Somervilleanno unces U1erelocation or become an associate with the firm. EdwardJ osephK ennedy,Ill their officesto 417 20th Street, North. Offices are located al 210 N. Lena Suite 1700, Birmingham, Alabama Street, Dothan, Alabama 36302. Phone Norma Mungen:l.ltl..emlcy 25203-3272. Phone (205)250-5000. (205) 794-4144. Inn BranhamLeo nard Henry E. Lagman announces that Watson & Harrison announces that Gregory L. Case has become an associ Ryan deGraffenried, Jr. has joined the CharlesGary Morrow, J r. ate with the firm. Officesare located at firm. The firm's new name is Watson, Stanley Jay Murphy 200 Cahaba Park South, Suite 102, Harrison & deGraffenried. Officesare Birmingham, Alabama 35242. Phone located at 1651 Mcl'arland Boulevard, Cl•rcnceG lenn Powell (205)980-1199. North , Tuscaloosa, Alabama 35406. Rohen W. Rieder,J r. Michael Gillion, Benjamin H. Phone (205)345-1577. Brooks, UJ and David A. Hamby, Jr. Sirote & Permutt announces that Paul EdwinSkidmore announce the formation of Gillion, John C. Falkenberry has joined the MichaelIvan Spearing Brooks , & Hamby. The firm also firm. Officesare located at 2222 Arling announces that Stewart L. Howardwi ll ton Avenue, South, Birmingham, HaydnM. Trechsel be associatedwith the firm. Officesare Alabama 35255-5727. The malling CindyStone Waid located at 501 Bel Air Boulevard,Su ite address P.O. Box 55727, Birmingham. 240, Mobile. . Alabama 36606. Phone Phone (205) 933-7UJ. John Fred Wood.J r. (205)476-4350. Lynn J\lcCain and William B. Ogle Rohen HenryW oodrow.m Perry O. Hooper, Sr. announces that tree announce the formation o( McCain WiUiamB. Woodward,J r. William Cooper Thompson, formerly & Ogletree. Officesare located al The assistant legal advisor to the Governor, Printup Building, 350 Locust Street . is now associatedw ith the firm. Offices Second Floor, Gadsden, Alabama are located at 456 S. Court Street, 35901. Phone (205) 547-0023. • 294 I SEPTEMBERJ 993 THEALABAMA LA WYER YOUNGLAWYERS' SECTION By A. lester Hayes,Ill, president "STOP AND SMELL THE ROSES" 1993-94 YLS Officers steril ization relating lo criminal sen a simple "fender bender" case. Keeping he annua l meeting of the tencing. Alabamawas well repre~ented abreast of all the changes takes time. Alabama State Bar Young al the YLD assemb ly. Eight young The demands and deadlines placed Lawyers' Section was held lawyers from Alabama served as dele on attorneys by the courts are increas July 15, 1993 at the state gates, reviewing, debatingand voting on ing. Many clients, unknow ledgeable barII's annual meeting in Mobile.Off icers those issues brought before the assem about the legal system , too often for the upcoming term are Hal West, bly. [f you have any questions about the have unrealistic goals, expecting to win president-elect; Barry Ragsdale, secre assembly, give me a call at (205) 263- and to win quickly. The balanc ing tary; and Alfred Smith, treasurer. On 6621. of ethical considerations against mone behalf of our officers, I remind you that tary goals is a constan t struggle. we welcome and encourage your input Many young lawyers are spouses on newer and better ways the section and/or parents with respons ibilities can serve. not only Alabama's young and press ur es separate and apart lawyers,but the entire bar. from those in the office. All of the I take this opportunity lo thank above factors create a situation where immediate past president Sid Jackson by it becomes increas ingly difficult for all his hard work. Sid has been a to "find personal satis faction" in member of the YLSExecutive Commit one's job as an attorney . The task is tee for a number or years , and was not, however,impo ssible. It can be done involvedfor many years in planning and and it should be done. I am sure that organizing our annual YLSSem inar on each of us knows at least one attorney the Gulf at Sandestin.• helping to make whom we feel is not only a good attor it a huge success. Congratulations, Sid, ney but also enjoys what he or she on a job well done. does for a living. Take time out to talk with that attorney about how he or she A. Lester Hayes, Ill 1993 ABA YLD meeting "finds personal satisfaction"as a lawyer, how he or she copes with problems The 1993 annual meeting of the and press ure, and how he or she American Bar Association Young Stop and smell the roses has maintained a zest and enthusiasm Lawyers' Division was August 6-9 in for work. In essence, stop and smell New York City at the New York Shera In the recent edition of the YlD the roses . We are indeed fort unate ton and Towers. The annua l meeting Barrister magazine, Caroline Ahrens, to be members of such a fine profession; assembly was held August 6-7, when chair for the Barrister Editor ial there is no other legal system like ours issues of importance to lawyers Board, talks about "finding persona l in the world . The chances we have throughout the country were discussed. satisfact ion". She ment ions how we to contribute to society and help others Various resolutions were debated and should stop for a moment to consider are endless. Attorneys. more than any voted upon by assembly members. The why we made the decision to pursue other profession, have a major impact results were given to lhe ABAH ouse careers in law and what it is about prac on the making and shaping of laws of Delegates as being representative ticing law that we looked forward to which directly affect our daily lives. Few, of the views expressed by young with such optimism. She suggests that if any, occupations allow such opportu lawyers throughout the U.S. Topics by focusing again on these aspirations nities. debated this year include the develop and putting our hearts into it, we can Ask yourself what you have done ment and implementation or alternate achievepersonal satisfactionfrom being and what you can st i II do. Learn to dispute resolution mechanisms, pro lawyers. enjoy your work, not only for your posed federal legislation which places Young lawyers face greater problems own benefit but the benefit of those limits on the amount of punitive dam and tackle complex issues more than with whom you work and serve. ages awarded in civil actions , and ever before. The law is constantly Don't just "find personal satisfaction"; mandatory efforts for contraception or changing ; there is no such thing as maintain it and improve it • THE ALABAMALAWYER SEPTEMBER 1993/ 295 Law Day Essay Contest Winners Cradu 10-12 DMslon Jeremy Shane Guthrie, Isl place, Nauvoo Martha Earl, 2nd place, CampHill lionorablementions: LAW tDAY ESSAY AntonioJo hnson. Anniston DeanaKay Richardson , Anniston 2.\\ Matthew N. Thomas.M Bay inette CONTE ST WINNERS Grades 1-9 Dlvlalon ~. Lisalvty , Jstplace, Jasper Akhar Gray.2 ,~dplace . Tuskegee ·- Dorian Wesley.3rd place, Oxford Honorablementions: CarterAdams.1\nniston Justin Blair, Ale.xanderCity AngelaBurris, A nniston Veronica Burris, Anniston Ashley Call. BayM inette MelanieFrizzell , Montgomery his year was the first year for the essayist in each category receiving a TAlabama State Bar Law Day Essay $200 savings bond, and the second and StaceyR hodes,Alexander C ity Contest. Wilh the cooperation of eight th ird place essayist in each category local bar associations and their local receiving a $100 and $50 bond, respec Local Bu Auoclatlona school systems, winners were selected tively. Partlclpatlnt In the. in two categories: grades 1-9 and grades This year's two top essayists were Lisa Lawllll)> EllSIIY Conte1t 10-12. Ivey of Jasper and Jeremy Guthrie of Contestants were asked to write an Nauvoo. Baldwin County Bar Association essay us ing this year's Law Day The Law Day Committee hopes other Calhoun County BarAssoc iation theme, "Justice for All-All for Justice." local bar associations will consider CullmanCounty Bar Association Participating local bars selected local making the essay contest one or their Etowah CountyBar Associati on winners and forwarded their essays lo local activities to celebrate Law Day. MaconCounty Bar Association lhe state bar's Law Day Essay Contest The Alabama State Bar Law Day Com MontgomeryCounty Bar Association subcommittee, chaired by Steven Sears mittee will be contacting all local bar TallapoosaCoun ty Ba, Association of Montevallo.T hese essayswe re judged presidents in January to seek their par Walker County.Bar .Association by lhe subcommittee with the winning ticipation for Law Day 1994. • The HUD Form Assistant TELEPHONE FACSIMILE •I-IUD (20S) 328-9111 (205)J26 -lll 6 t-1\ ·EasyToUsoMcrus - • 1099's ·Help Screens • Checkwriling • O~li"lcUso r Guido · ' • I ANN A LEE GlATTlNA •SellerS1a1emen1 • AutomaticCt!Jcul.atklns " , "' " A TTORNl:Y• MEMDEROF N..Af!AMAllAR SINCE 1987 •OooowerS1a1cmon 1 •FrooUrll mlod Technical SuJlll()n • Oiobursement Sheel •P1oloss1000IOUlp ut Ylih AnyP rinlG< A f U'\11L« GUutina, P.C. • UnkTo Quick"'1 ·60 DayM onoyBack Guamnleo The PlamBuilding ~t ~1agnoli.aOffice Park Suit('2 18 • 2112 EleventhA venueSou th Call (7031 665-0800 Toda v For You r Free De m o Ol$ k l Binn,ng:hmn,Alabama 3520) Compuler Services and Consultants ~ 31 Soulh Braddock Street ...... _R.ESEARCH.._.. • ...BKID ..,. , Vl\...... lTIS .,_G • \\'ESTI.AW ....~ ~•-- ASSISTA.~E ...... ·1no1-I .N CASt ...... P REl'ARAT...... ,_ r~ . Wincheste( Virg,_in_ia_ 22_60_ 1__ ~ = -~ 296 / SEPTEMBER 1993 THE ALABAMA LAWYER BUILDINGALABAMA'S COURTHOUSES TALLAPOOSA COUNTY COURTHOUSE By SAMUELA. RUMORE,JR. Tlw following continues a history of Alabama's county courthouses-their origins and some of the people who rontributed to their growth. The Alabama Lawver plans to run one rounty's story in each issue of the mag azine. If you have any photographs of early or present rourthouses, please for ward them to: Samue l A. Rumore, Jr., Miglionico & Rumore, 1230 Brown Marx Towar, Birmingham , Alabama 35203 TALLAPOOSA COUNTY he AlabamaLegislature cre ated Tallapoosa County on December 18, 1832. It is [I another county formed from the Creek Indian land cession of 1832. The county's name comes from the Tallapoosa River, which flows Asearly as l 889 a local act of the Leg attempt to keep an eye on the French at through the county. Also, in earlier islature divided the county into eastern Port Toulouse, 40 miles away in pre limes, an Upper Creek Indian village in and western Jurisdictions based on Lhe sent-day Elmore County, and to estab the vicinity was named Tallapoosa. The TallapoosaRiver. The act was amended lish trnde with the Indians. The venture name is derived from two Indian In 1897, 1900. 1923. 1945. 1949, and was not a commercial success, bul it words-"tali" meani ng rock, and 1966; however, lo this day, Tallapoosa marked the beginning orI ndian contact "pushi" meaningpulver ized. remains one or a handfu l or counties with English-speaking pioneers in this Besides being an important physical with two court sites , Dadeville and area. A massacre of British traders took reature in the county, the Tallapoosa AlexanderCity . placearound 1760. River is also a significantjurisdictional TallapoosaCounty was home to many Prench inOuencein the area came to boundary. It enters the county at its Indians. particularly along the banks of an end followingthe French and Indian northwest corner, creates Horseshoe the TallapoosaRiver. The largest Creek war. British innuence came to an end Bend, the site of a famous Indian battle. Indian town was Okfuskee.This popula following the American Revolution. and then flowingdue south servesas the tion center had seven branch villages. American interests increased after the western boundary of the southwest por Its probable site is now localed under Creek Indian War, which effectively tion of the county. It divides the county Lake Martin. the impounded waters of ended at the Battle of Horseshoe Bend into two distinct sections. each with its the TallapoosaRiver above Martin Dam. in l 814. Once Alabamagai ned statehood own dominant popu lation center. As early as 1735.Brilish traders from in 1819, setllers arrived in the Tal Dadevilleis east of the river and Alexan Charleston. South Carolina built a fort lapoosaterritory. der City is west. and trading post at Okfuskee in an When Tallapoosa County was formed THEALABAMA LA1 NY ER SEPTEMBER 1993/ 297 in 1832, Okfuskee was named the first county seat. In later years an early pio neer was asked why Okfuskeewas cho sen. He replied,with a touch of humor, that in 1832 it was U1ecen ter of popula tion. regardless of the fact that most of the residents were Indians. The first courthouse was a hotel built in 1832 by Willis Whatley near a spring on the east side of the river. Whatleyserved as hotel keeperand juslice of the peace. The first county officers were elected in August 1833, and the first official courl took place November 4, 1833. Courts continued to convene periodical ly al Okfuskee until a permanent county seat location could be selected. The AlabamaLegislature appointed a site selection commission on January 14, 1834.Its duty was to select a seat of justice within ten miles of the center of the county. The commissioners were paid $4 per day for each day they served. On October 3, 1836, they chose Dadev ille over Okfuskee as the permanen t TallapoosaCountv Courthouse 1qi/h east wmgaddition , c. l!J4/I county seat. Dadeville had been sur veyed less than six months earlier. In their survey the town promoters had set aside one block in the center of the busi ness district for a courthouse. The choice of Dadevillewas approvedby the state Legislatureon December1 4, 1837. The county seat commissioners hired WilliamSente ll to build a temporary log courthouse. The date it was built is not known. It was localed on the southeast corner of Broadnax and Columb us streets rath er than on the designated court square. ll had one room and was 20' x 20' in dimensions. The courthouse had a dirt noor and there were large TallapoosaCou11/g Courthouse . c. /8$6 Pre-WorldWar II Tallapoo.,aCountv Courthouse crac ks between the round oak logs. beforeeast wing addition Spectators could view the court pro ceedings from the outside through the in Florida. On December 28, 1835. his cracks. Sentell was paid $50 for the tem men were ambushed by the Seminole tur e was identica l to the Chambers porary structure which served the coun ChiefOsceola and only one soldier of the County Courthouse, and was patterned ty until a permanent courU1ousecould 108-man American force survived. The after the Troup County Courthouse in be built on the designated block. massacre took place near present-day LaGrange, Georgia. The cost for th is The commun ity at Dadeville had Bushnell, Florida and Major Dade and permanent courthouse and jail was grown up around an early trading post.. his men are buried in the Federal Ceme $18,000. The establishment was located at the tery at St. Augustine. Dade County , The building was 60 feet long by 40 junction of the old Tennessee Road Florida, site of Miami, is also named for feel wide. It was made of brick and con which brought settlers from Tennessee, MajorDade. structed in the Greek Revival style. The and the Georgia Road which carried pio The first permanent courthouse build lower story contained four rooms, one neers from the east. The town was ing in Tallapoosa County was completed each for the County Commission, the named for Major Francis Langhorne at Dadevillein 1839. It was constructed sheriff, the county clerk and the grand Dade. by th e same build ers, Mitchell and jury. The second noor consisted of a Dadewas born in Virginiain 1793and Cameron, who bui lt the Chambers courtroom and two jury rooms that he fought in the Second Seminole War County Courthouse in 1837. The struc- were separated by a stairway. The con- 298 / SEPTEMBER 1993 THE ALABAMALAWYER courthouse and a became presidentof the Savannahand small lower was Memphis Railroad.In later lifeAlexan built on the south der served as a commissioner for the west corner. Fur UnitedStites Commissionor Railroads ther additionswere and Canals.and as an arbitrator or the made to the court· boundary dispute between Costa Rica house in 1929, and and Nicaragua.In 1902 he became the an east wing was first formerConfederate Army officer to added in 1947. be a featuredspeaker al West Point. He Thus. the 1861 died in 1910in Savannah,Ceorgia, one courlhouse. with month shy of his 75th birthday. its numerousal ter 13ylh e J 880s, Alexander City had ations, served the grown tremendously. Whenever legal county for nearly business was lo be transacted, Alex 100 years. Cilianshad lo Irave l 15 milesand cross Meanwhile. on the TallapoosaRive.r lo reach the coun the west side of the ty seat at Dadeville.A group of citizens C,,,,rtlio TMEALABAMA LAWYER SEPTEMBER1993/ 299 could be erected in the downtown busi By 1960. TallapaosaCo unty needed a Additional sourc es: ness area. new principal courthouse and ii com A History of Tallapoosa County, A second Aleunder City courthouse pleted its present courthouse al Dadev- Wflliam Pressley Ingram, 1951; Tal was built following the fire. It was a 1lie. The building is a three -story lopooso CQu11ty-;I History, The Tal IM'O·Storybrick building that would be structure with a basemenL ii was built lapoosa Bicentennial Committee, 1976; used for almost 40 years. of red brick and contains wings extend andSome Pioneersof TallapoosaCoun ty Alobamo, Sandra S. Wilson, 1991. In the years 1938 lo 1939, Alexander ing from each side. The building was City erected a new city hall. One of under construction from 1958 to 1960. lhe objectives for the new building It cost approximately $600.000.Lynn S•muel A. ,vas to house th e circui t court and Blair Construction Company of Ale.wi Rumore. Jr. der City served as contractor, and Mar SamuelA Rumore,..k circuit clerk. T.C. Russell was mayor. ta a graduateof ;ho Robert and Company, Inc. served tin J. Lide of Birm ing ham was Univer11tycl Notte as architects and engineers. Andrew architect. The dedication of the new Oomelll> I. CommunicationsLlw A. Developmenls ConC4'mlng OpenM eeUn111and Open Records B. Cable Television 2. Workers· CompennUon A. Recent Developmentsin Workers' Compensation B. 1992 Workers· Compensation Act C.The On\budsman Program 3. He.Ith Llw/Rul Properly, Probate and TruatLlw A. QualifiedMedica id Trust B. Adapting the Legal Opinion Aecordln~ to R 300 I SEPTEMllER 1993 Tm: ALABAMALAWY ER Essential References ForThe AlabamaPractitioner AlabamaRules AlabamaTorts ofCriminal CaseFinder Procedure by Allen Wi11dsurH(!We[I uyHu gh Maddox AlabamaTorts Case Finderwill direct youto the Writtenfor defense attor· casesiliatwill help you win neys,prosecutors ,and the incourt Thisportable judiciary,JusticeMaddox's desktopreferencecontains Alabama Rules of Crimi citationsto all leading nal Procedureguides Alabamacases involving lawyersfrom th e initial tort issuesarranged under complaintU1roughpost· 395t opich eadings. Follow conviction remedies. The ingeach ci te, the book bookis thefirst rt eferencetoo l o weave paraphrases,summarizes,and togetherthe comp leteR ulesof Criminal Proce occasionallyquot est he decision.This dure, Uiecommenlsfrom the Advi soryCommiJteethot handybook also includ es summariesofrelevan t proposedthem, and thea uthor's practicaladvice for under Alabamarourt rulesand statutes,including the "tort standing the Rules. Eachchaptercondudes with "Practice reform"l egislationof 1987. Pointers"to helplegal professionals understand and apply each Rule. The appendixrontains a Tableof Ruleswith their Designed,arranged, and indexed with the busy applicablefonnsandprovidesaninvaluablecase •cheddist" practitionerin mind, AlabamaTorts CaseFinder is forboth pro:;ecu torsand defenseattorneys,descnoingin an excellent toolfor pretrialpreparation as wellas a chronologicalorder essential procedural stei,sand theRules quid D YESJr lcaSc54:nd_ cop,~o( Alabam.i 1"ortsCaseFind er11t~ (62989) O YES!l'loaso..,,..i _ a,p1 .. o( Al•b•m• Rules of Criminal Pro AND THE WINNER IS ... The Alabama Lawyer again sponsored its legal writing contest for students attending law school within Alabama. The winner was Gary Howard, who is a student at the University of Alabama Scnool of Law. for his paper entitled. "Improper lrifluences in the Jury Room-Atta cking Verdicts with Juror Testimony." 308 / SEPTEMBER 1993 THE ALABAMALA WYE R STATE OF THE JUDICIARY The followin_gis a rondensedwrsfon of the addressbu ChiefJustice Sonny Hornsby on the State of the Judiciarvto those a/lending the armua{meeting of the AlabamaState &r on Julg 17. 1993. overnor l'olsom, President today seeking to diminish and even Rights of our federal Constitution.The ClarenceSma ll, bar commission eliminatethe role civiljuries play in the ChiefJustice or the U.S.Supreme Court, Gers, fellow lawyers: I bring you jurisprudenceof America.Th e civilj ury WilliamH. Rehnquist,offers the follow greetings from the Supreme Court of is al risk. I believe.because it is an insti ing remark about the importanceof the Alabama. tution that cannot be bought by greed civiljury: or bribery.fl maybe the last institution "Tht right of trial by jury in civilcases Lawyers . ,.. better educated, in our nation al common law is fundamenlal to our better qu•llfled ~ which is im· historyand jurisprudence. I am firmlyconvinced today that most mune to the "ITJhosewho opposethe use of juries lawyersof this stale and this nation live innuence of in civil trials seem to ignore [lhatJ ltJhe up to the faith that their cLienlsput in wealth. In Al· founders of our nation considered the Lhem.There was never a time when the abama each right of trial by jury in civil cases an lawyersand judges serving the Ameri year we call important bulwarknga inst tyranny and c;m people were better qualified from an nearly 200,000 corruption, a safeguardtoo preciousto educationalviewpoint, worked harder lo citizensto jury be left lo the whim of Lhe sovereign,or, keep up with the changes In the law, or service. If you it might be added,to that of the judicia had a higher standardof deliveringlegal have a driver's ry. servciesto the public. Hom• bi, li-cense or a "The guarantees of the Seventh non-driver lD Amendmentwill prove burdensome in Our clvll Justice system Is not you are subject to random selection. some instances... But. as with other pro out of control There.are no automaticexemptions. The visionsof the Billof Rights,the onerous I want to take this time today and civiljury is indeedthe conscienceof our nature of the protectionis no licensefor report to you about the civil justice sys communities and these jurors, mainly contTacting the rights secured by the tem in our state. It is not a systemspin conservative and thoughtful Alabami AmendmenL" ning out of coni-rol, as former Vice ans, stand as our watchdogsagainst cor One way 10 chip awayat the constitu president Quaylehas characterized the ruption and tyranny. tional right citizens have to a civil trial nation's civil courts and civil jury sys This form of citizen servicewas found by an impartiallyse lectedjury is to cre tem. lo be Indispensable by our founding ate a perceivedprob lem with juries and There are forcesat workin our nation fathers and is enshrined in the Bill of initiate a debate to remedy that prob- THE ALABAMALAWYER SEPTEMBER1993 / 309 lem. Throughout the nation over the article was both incomplete and punitive damage awards by state court past decade lhe creation of "the" prob misleading,yet the article was reprinted juries. lem with civil juries has spawned an in nearly every major Alabamanewspa The AOC.in its inve.stigation. found indusll)' or half-truths and misrepresen per. l think it is interesting that Forbes, that much o( the data Forbes used tations about the result of civil jury one o( the nation's leading business was inaccurate because many awards decisions that has been passed from magazines, never once contacted were counted twice. once al the state lo state. The same lack or informa the Alabama Judicial department trial leveland then at the appellatelevel, tion about the mulls o( civil jury deci to determine if what it reported and some awards were duplicated from sions that permitted this h)-perbolehas was true and accurate. Obviously, the year to year. The data included federal also thwarted any attempt al a truthful magazinedid not want the let the facts court awards which are not reviewable discussionof the facts. • keep It from trashing Alabama and by the Alabama Supreme Court and also attempting to inOict harm on her peo inc luded awards under Alabama's The Forbes article was ple. unique wrongful death statute. Incomplete, misleading I admit I was appalledwhen l read the In Februaryof this year.Forbes Maga Forbes article. I asked the Administra The rest of the story ~inepublished an article about civiljury tive omce or Courts to investigate the was not Included awards in Alabamawhichhas caused our claims made In it and lo determine for Forbes further misled the reader stile great harm. The informationin lhe me a true picture o( compensatoryand because it failed to go past the naked jury award and report lhe final disposi tion of the cases It cited. What, for example,dfd lhe trial court judge do al the Hammond stage? Did he or she order remittltur. a new trial or JNOV? Was there a post-trial settlement? What did the supreme court do on appeal? In short, the rest o( the story wasn't told. The magazine used three examples to portray "runaway" punitive damage awards in Alabama. Had the writer investigated he would have found that his SS million examplewas remitted by the trial judge to $500,000and affirmed by the supreme court; his $2 million example\\'as set aside b>•lhe trial court and is now on appeal; and his SlO mil lion eXllmplewas settled for an amount underS2 million. Had Forbesbothered to complete the story it would have alsoinvestigated lhe individualfacts in these casesand deter mined what so outraged 12conservative AlabamaJurors to unanimously impose these civillines. Forbes then made the claim that in Alabama In 1992 juries "gave away a tota l of more than $123 million in punitivedamages." Had the magazine investigated and told the whole truth it would have found the fol lowing: (I) One of the 22 cases (a S2 million award) cannot be found. although the (aru seem to fit a case alsolisted for 1991. Two other cases,one award for $300,000 and the other for $250,000. were not 1992 jury awards. (2) Of the $123 million. $56.l million came from federal courtroo ms 310 I SEPTEMBER1.993 THE ALABAMALAWYER whichoperate under differentproce "Twoterms ago, this court. in ma's regime against constitutional dures and where appeal lies. not to Haslip upheld Alabama's punitive challenge._.• the Supreme Court or Alabama.but damage regime against constitu If Forbeswas incomplete and mislead to the federalappeals courts and to tional challenge•. .lt was reassured ing, what then is the true picture of the Supreme Court or the United by the fact that the Alabamacourts punitivedamages in Alabama? States. subject punili\'everdicts to exacting (3) Of the Sl23 million, $47.2 million post-verdict reviewat two different The f•cts in Alabama '• were wrongful death awards under levels. l'irst, Alabama trial courts trial courts Alabama'suniq ue statute and would must indicate on the record their The Administrative Officeo/ Courts not be construed as punitive dam reasons for interfering with a jury collects statistical data for the entire ages in other states. verdict, or refusing to do so. on trial court system. The data is reported grounds of excessiveness.Second , by the clerk o( the each court. F'ollowing Ala bama post -verdict the AlabamaSupreme Court itself the article which appeared ,.view a model provides an additional check by in Forbes, AOC looked at its data The article also left the impression conducting a comparativeanalysis and statisticslo determine if the Forbes that the U.S. Supreme Court reversed and applying detailed substantive numbers were accurate. In orde r the AlabamaSupreme Court in Pacific standards, seven in all, thereby to comport with the r"or/Jes data, Mutual life Insurance Co. 11.Haslip, 111 ensuring that the award does not AOC captured its data for calendar S. Ct. 1032()991). exceedan amount that will a.ccom ye.1r1992. A summary of that data fol To the contrary, the Alabamasystem plish society'sgoals for punishment lows: of post-verdict review or punilive and deterrence.... •The AOCdata identifieda total of only damage awards was held out as a "In Haslipthis court concluded 54 o/ the 730.000dispositions in state model for other states to adopt. Our that the (AlabamaSupreme Court's) trial courts during calendaryear 1992 standards as set out in Hammond v. standardsimpose a sufficienUydefi in which punitive damages were Citv of Gadsden, 493 So.2d 1374 nite and meaningfulconstraint on awarded in cases not involving (Ala. 1986)and Green Oil v. Hornsby, fact.finderdiscretion. a wrongful death. Twenty-eight of 539 So.2d 218 (Ala. 1989) have been "Because the standards had a the cases involvedawards by juries. fully endorsed by the nation's highest 'real effect'this court upheldAlaba· The amountof punitiveawards totaled court. In Haslip the U.S. Supreme Court said: "Proceduralsafeguards. indud· WHERE ing instructions to the juty on the THERE 'S A WILL nature and purpose or punitive THERE 'S A WAY damage awards, post-trial reviewof punitivedamage awards by the trial As a lawyer I knowthe trad111onalreasons forurging court consideringenumerated fac. clients to draw up a win- tors, and subsequent comparative ensure that theirw ishes are am1lysisby the Alabama Supreme carried oul, protect survivors Court applying substantive stan from unnecessary headaches dards developed for evaluating and reduce OI ehm1nate lax punitivedamage awards, imposed a burdens sufficienUydefinite and meaningful But as a personw~h a constrain t on the discrd ion of neuromusculardisease, I Alabama fact-finders in awarding knOw a w,U,s also an effectrve way to leave a las~nglegacy l punitive damages to ensure that of hope lor those ,n need of •L !W II.L...... ua•-~ ~w,;l..._;:;:;:~""'~ awardswere not grosslydispropor · special help A bequest 10 r"""' tlonnte to the severityof the offense MDAcou ld help provide the g,lt of !tie 10 Iha more than 1 million and were adequate to protect due Amencansa lfected by neuromuscular diseases process rights of the insurer whose If you or a client, s looking lor a way lo help others through a agent defraudedthe insured." bequest OI g1f1.please contact In the recent caseof TXOProduction Dav,d Schaeffer.Director of PlannedGiving Corp.u. Alliance R=urces Corp. 1993 WL 220266(U .S. W.VA.)where the U.S. I.IDA .. Supreme Court upheld a punitivedam· MuscularDystrophy A$sooa11on age award 526 times the compensatory NabonalHeadqllaners award, the court again cited Alabama's 3300 EastSunrise DrrvoI Tuc;so,,. AZ. 85718 post-verdictreview standards as n model, (602) 629·2000 JusticeO'Co nnor, in dissent. said: Jerry Lewis.Nar lOnolCha,rman THE ALABAMALAWYER SEPTEMBER1993 / 311 $27.2 million with the median award uct liabilitycases where fhere was not 92 court year (October I, 1991-Septem being $39,000. AOCfound five mone a wrongfuldeath claim. ber 30, 1992) resulted in the identifica tary awardsin wrongful death cases. •Torl dispositions in circuit court tion of 21 non-wrongfuldeath cases in •The compensatory awards in these 54 totaled 9,178. This amounted to 21 which judgments of punitive damages non-wrongful death cases totaled percent of all civil casesd isposed of in were awarded in the trial courts. The $17.9 million which means the ratio circuit court, 5 percent of all cases court affirmed 66.66 percent of the of punitiveawards t o the compensato disposed of in circuit court, and I per awards, reversed 28.57 percent and ry awardswas 1.51to 1. cent of the total state court caseload. ordered a remitt itur of a portion of •The punitive damage awards were •The 54 tort cases in non-wrongful the punitive damage award in one, or primarily in cases involving insur death cases where punitive damages 4. 76 percent or the cases. The ance and business fraud, or conver were awardedwere one-half of one l affimancera te among this class of cases sion. These cases constituted 60 per percent of the tort dispositionsin cir is no higher than the court's record as a cent of the punitiveawards in Alabama cuit court and only one-tenth of I per whole. in 1992. Of the 11 cases in which cent of all circu it court civil In caseswhere punitive damageswere punitiveawards at the trial court level dispositions. at issue, the court affirmed a total of exceededa half-million dollars, eight $10.9 million in damage awards and involved fraud or conversionin busi The facts in the Alabama reversed a total of $4.7 million. The nesso r insurancedealings. Supreme Court court ordered a remittitur of another $2 • There were only two punitive damage A search of all decisions released million.On ly three casesover $1 million awardsfoun d in personalinjury/prod- by the supreme court during U1e1991- were affirmed in non-wrongful death appeals.Th e medianaward was $75,000. The court issued decisions in four wrongful death awards during the peri od. The court affirmed one, reversed one, ordered a remittit ur or half the punitive damage award in one and one Credible. was a mixeddec ision, The facts and not unsubstantiated opinion should dictate action I urge you to decide whether or not we have a civiljust ice and civil jury sys Medical Experts tem out of control and without adequate safeguards. Our physi cians have jury credibility I suggestt hat if Forbesor others want to criticize our civiljuries, our courts or because th ey are Ill:edical professionals, our judges, that is fine.I wouldonly ask not prof essional witnesses. We ·have that they do it based on accurate data and based on cases that are decided by more than 5,000 phy sicians who have the judges and juries in Alabama trial agreed to review your malpr actice case, courts which are reviewable by the Alabama Supreme Court. The outra and if it has merit, testify for you. geous cases from which anecdotes are Plaintiff or defense. derived are not occurring in Alabama courts. We have searched the data base and cannot find any "haricu t" THE ALTERNATIVE to typical ref erral or "football helmet" casesthat haveeven services: we make full disclosure of our been addressedby an Alabama appellate recruiting methods! court. Alabamahas the finest court sys tem in this nation and I do Satisfaction guaranteed or your money back! not believe you would trade it for that of any other state. I believe we con tinue to be in the mainstream ofAmerican jur isprudence. Physicians for Quality In closing, I submit that Alabama ought not to be givena dose of medicine 1-800-284-3627 for a diseasein NewYork , Californiaor WestV irginia. • 312/ SEPTEMBER 1993 THEALABAMA LAWYER OPINIONSOF THE GENERALCOUNSEL By ROBERT W.NORR IS, general counsel uestion: or depositedw ith a court. Documents falling into categories 2 "l am seekingan clhic.sopin ion from the Alaba· and 3 should be retained for a reasonableperiod or lime at the ma State Bar Associationregard ing the retention, end of which reasonableattempts should be made to contact storageand disposingof closedlegal files. the client and deliver the documents to him or her. Docu m"My law firm is quicklydepleting its in-housestorage capaci ments which fall into category 4 could be appropriately ty. I ha,-e been asked t.o review methods of data storage and destl'O}'td. retrieval such as microfilm. off-site storage and electronic With regard lo lime, there is no specificperiod that consll· scanning. Beforeexploring these options, I am requestingyaur lutes ·reasonable"time. It dependson the nature of the docu assistancein formulatinga reasonablep lan that complieswilh ments in the file and the attendant circumstances.Since the all applicablerules and statutes. me is the properly of the client, theoreticallyi t may be imme "l am awareof the requirement to retain a client's lile for six diatelyr eturned lo the client when the legal matter for which years after lhe case has reached its conclusion.H ow may the the client is being represented is concluded. For a variety of mebe stored?Must the file remain in 'hard copy' form or may reasons, lawyersand law lirms usuallymaintain client files for It be transcribed to another medium? Please identify all some period or time, ranging from a few years to permanent statutes and rules of conduct relating to this process.and any retention. The length or time is more a matter or the lawyer's other ethics opinions. or lirm's policy than any txlemally generated requirement. "Once a file is closed, may certain portions of the file be In establishing this polic)•, it would not be unreasonable returned lO the client?Whal is an attorney'sobligation regard· for the lawyer or law firm lo consider that the statute of Ing Lheportion of the file returned lo Lheclient? Mer the six limitations under the AlabamaLegal Services LiabilityAct is year interval,what is the appropriate method of disposing of n two years, and six years for the filing of formal charges in bar client's file?" discipline matters. ( In some cases the time period may be lscussion: cxlended.) A lawyerdoes not have a generald uty lo preserve At the expiration of the period of time established by the all his files permanently.However, clients and for, lawyeror law firm for file retention, the followingminimum mer clients reasonably expect from their lawyer proc:edures should be followed for file disposition. First, m the client should be informed of lhe disposal plans and that valuableand useful information in the client's file. and not otherwisereadily a,'ililable to the client, will not be prema given the opportunityof being providedthe me or consenting turely and carelesslydestroyed. ABA Commilleeon Ethics and to its destruction. If the client's current address or telephone ProfessionalRl!S])Onsibi/ity. in Formal Opinion 13384(March number is knownto the attorney, the client should be contact /4, 1977). ed directly. If this information is not available or cannot While there are no specific rules in the Alabama Rules of be obtained without undue burden, then a notice should be Professional Conduct regarding the length of lime a lawyerIs publishedin a local newspaperof general circulation announc required to retain a closed file or the disposition or that Ille ing the attorney's intention to destroy all files generated dur alter a lapse of time. the DisciplinaryCommission established ing a given chronologicalperiod. l l is not necessaryto put the the followingguidelines in FormalOpinion 84-91. name of each c:Uentwhose /ile is to be destroyedin lhe notic:e; The answers to the above questions depend on the specific It is sufficient to indicate generally the lirm's intention to nature of the instruments containedin the filesand the partic destroythe filesof all clients who v.-ererepresented by the firm ular circumstances in a given factual situation. F'or that rea prior to the date specified. The files oi clients who do not son, Lhefiles sho uld be examinedand the contents segregated respond then may be destroyed with the exception of those In the followingcategories: (I) documents that are clearly the documents classifiedabove as category 1. Prior to destroying property of the client and may be of some intrinsic value, any client file. the me should be screened to insure that per whether delivered to the lawyer by the client or prepared by manent type (category I) documents and records are not the lawyerfor the client, such as wills. deeds. etc.; (2) docu destroyed. Finally, an idex should be maintained of files ments which have been deliveredto the lawyerby the client destroyed. and which the client would normallyexpect to be returned Lo \\rith regard lo storage, flies may be stored in any facilityin him; (3) documents from any source which may be of some which their confidentialintegrity is maintained.This may be future value to the client becall$t of some future development in the lawyer'sor law firm's office or al some sec:ureoff,site thal may or may not materialize;and, (4) documentswhich fall location.Any medium that preservesthis integrityor the docu in none of the abovecategories. ments in the file,whether microfilmor by electronicscanning, Documents which fall into category 1 should be retainedfor is appropriate. • an indefinite period of time or, preferably, should be recorded (R0-93- 10) TMEALABAMA LAWYER SEPTEMBER1993 / 313 I OPPORTUNITIES Thefollowing programs haue been approoed bg /he AlabamaMandalorg Ccntinuing Legal Education Ccmmissionfor Cl£ credit.For information regarding other available approoed programs, con/act DianeWeldon , administrativeassistant for programs,at (205)269-1515, and a completeCLE calendar will bemailed to gou. 15 Wednesd•y Credits:6.0 Cost:S 128 Sept e mb e r SUCCESSFULJ UDGMENT (715) 835,8525 COLLECTIONS 1 Wedne•d•y IN ALABAMA INJURIESIN THE Huntsville, Holiday Inn 23-24 WORKPLACE Research Park MEDIATORTRAINING IN ALABAMA NoiionalBusiness Institute Huntsville,UA H Binningham. Credits: 6.0 Cost S 128 Con(cn:nocCenter RamadaInn Airpon (71 S) 835-8525 Mnerican Arbiuntion NationalBusiness ln$1itutc Association Credits: 6.0 Cost: S128 Credits: 12.0 Cost: S400 (715) 835-852.5 17 Friday (404) 325.0101 DEPOSITIONS Binningham 24 Friday 2 Thur•d•11 AlabamaBar lnstitu1efor CLE INJURIESIN nre Credits:6.0 REAL ESTATELAW WORKPLACE (800) 627-6514 Binningh:un IN ALABAMA AlnbnmaBnr lnsti1u1c ForCLE Humsvllle, M11rrio11 Crcdils:6.0 NotionnlBu,inc ss lnstJtutc ERISA (800) 627-6514 Credits:6.0 Cos1:S128 Bim1inghnm (7 IS) 83S-8S25 CumberlandIn stitute for CLE Credits: 6.0 BENCH& BAR CONFERENCE (800) 888-74S4 Auburn.Auburn ConferenceCenter 10 Frlda11 Auburn UniversityBar SMALLESTA TES 22-23 AssociationlCumbcrland Binningllam Institute ror CLE PERSONNELLAW UPDATE AlabamaBar Institute (or CLE Credits: 4.0 Binninghnm.Radi sson Hotel Credits:6.0 (800) 888-74S4 (800) 627-6514 Councilon Education In Management Credits: 11.0 (415) 934-8333 DEPOSITIONS: DAMAGES TECHNIQUE.STRA TEGY Binninghr\m &CONTROL Cumberlnnd lnstllute (or CLE Binninghum Credits: 6.0 23 Thurada11 CumberlandInstitute ror CLE (800) 888-7454 REALEST A TE LAW Credits: 6.0 Montgomery (800) 888-7454 AlabamaBar Institute for CLE 14 Tue•day Credits: 6.0 SUCCESSFULJUDGMENT (800) 627-6514 PERSONNELLAW UPDATE COLLECTIONS Binningham IN ALABAMA Council on Education Binningham,Rnd isson Hotel BADFAITH UTIOATION In Mnnogcment NnrionnlBusiness ln siitutc IN ALABAMA Credits: 5.S Cost: S292 Credits:6.0 Cost: S 128 Birminghru:n {415) 934-8333 (715) 835-8525 NnilonnlBu siness lnstitu1e 314 / SEPTEMBER1993 THE ALABAMALAWYER 29 Wednesday 7 Thursday Credits: 6.0 STATE AND LOCAL TAX AUTOMOBILE (800) 627-6514 ISSUES AFFECTING COWS ION CASES ALABAMA BUSINESSES Hunisville Binningham Alabama Bnr lns1it.u1e for CLE RECENTDEVELOPMENTS Nolional Business lns1i1u1e Crediis: 6.0 IN CRIMINAi. LAW & Credi1s: 6.5 Cosi: $ 128 (800) 627-65 14 PROCEDURE (715) 835-8525 Binningharn Cumberland lnstltu1efor CLE 8 Friday Credits: 6.0 30 Thursday AlITOMOBILE (800) 888-7454 AUTOMOBILE COLLISION CASES COLLISION CASES Birmingham Mobile Alabama Bar lns1hu1efor CLE 28 Thursday Alabama Bnr lns1hu1efor CLE Crediis: 6.0 TRIAL ISSUES Crecliis:6.0 (800)627-6514 (800) 627-6514 Tusealoosa(snrclli 1cto 47 locations in Alabama) Alabama Bar lns1ilu1cfor CLE PROFESSIONAL CrcdilS:3.0 October RESPONSIBILITY: (800) 627-6514 ADVERTISINGAND SPECIALIZATION 1 Friday Birmingham 29 Friday AUTOMOBILE Cumberland lns1i1u1cfor CLE INSURANCE I.AW COLLISION CASES Crediis: 3.0 Birmingham (800) 888-7454 Montgomery Alal>amaBar lns1irn1cfo r CLE Alabama Bar lns1i1u1efor CLE Crediis: 6.0 Credi1s: 6.0 (800) 627-6514 (800) 627-6514 15 Friday CRl.t"1lNALI.AW Birmingham ALTERNATIVE Alabama Bar lnsUIUlefor CLE BANKRUPTCY LAW DISPUTE RESOLUTION CredilS:6.0 Birmingham (800) 627-6514 Binningham Cumberland lns1ilu1efor CLE Cumberland ln~titu1cfor CLE Credits: 6.0 Credits: 6.0 (800) 888-7454 (800) 888-7454 REPRESENTINGSMALL BUSINESSES IN ALABAMA 5 Tuesday BiTITiingham Cumberland lns1itu1efor CLE TRIAL ISSUES EMPLOYMENT& LABOR LAW Tuscaloosa (w1cllhc 10 Crediis: 6.0 Binningham (800) 888-7454 47 locations in Alabama) Lorman Business Ccn1cr, Inc. Alabama Bar Ins1ilute for CLE Crcdi1s: 6.0 Cos1: $149 Credits: 3.0 (715) 833-3940 (800) 627-65 14 22 Friday FRAUD A!l.'DBAO FAI1lt LITIGATION Binningham Alabama Bar lns1hu1efor CLE THEAIABAMA LAWYER SEPTEMBER1993 / 315 From an Appellate Judge ' s Viewpoint By JUSTICEHUGH MADDOX hen the Supreme Courl of U nquestionably , discriminated against because of their the United States decided race. Batson . therefore , com pletely Batson u. Kentucky, 476 Batson has caused changed the law relating to the exercise of U.S. 79, 106 S.Ct. 1712, 90 peremptorystrikes. However,because Bat W judges , prosecutors , L.Ed.2d69 (1986), the law relating to the son was a criminal case, involving a black use of peremptory challenges of prospec defense lawyers , and defendant who had challenged the State's tive jurors was completely changed, and use of a peremptory challenge to remove a compliancewith the requirements of Bat parties in civil cases to black juror, many lawyers and judges may son and exparte Branch, 526 So.2d 609 not, at the time Batson was written, have (Ala. 1987), the Alabama decision that completely re-evaluate fully appreciated its scope. But, there can adopted the Batson rule in Alabama, is the use of peremptory be little doubt now that the principle set one of the most frequently raised issues out in Batson is applicable in many other on appeal in both criminal and civil cases. strikes . settings. For example, it is applicable to Unquestionably, Batson has caused civil cases, edmonson u. Leesville Con- judges, prosecutors, defense lawyers, and crete Co., _ U.S._, 111 S.Ct. 2077, parties in civil cases to completely re-eval- 114 L.Ed.2d 660 (1991); to peremptory uate the use of peremptorystrikes . challenges by defendants in criminal cases, Georgiau. McC 318 I SEPTEMBER199 3 THEALABAMA LA WYER lieu/or case lo be tried. Properly designed questionna.ire.s 806 So 2d 156 (A!a_C,vApp. 1992) Notice of and opportunity for comment on proposed amendments to the Rules of the United States Court of Appeals for the Eleventh Circuit Pursuant to 28 U.S.C. §2071(b), no1ice is hercb) gl\•cn of proposed amendments to the Rules of the U.S. Coun of Appeals for the Eleventh CircuiL A proposedomcndmcnt 10 11th Cir. R. 46-1 (a) would require attorneys to pay a "readmission fee" ofSI O every five years in order to mnintain Eleventh Circuit bar membership. Other proposed amendmcn1, highlight the commcncc111cn1 of operations of u new Minmi s01elli1e clerk's ollicc: specify Ihm govcrnmcnr counsel are required 10 lite Ceninca res of Interested l'ersons: clarify cenain rules regarding the content and form of briefs. including limiting single-spaced text in briefs to only direct quoies: increase the requirement for filing of "Record E,ccrpis " from four to live copies; and provide 1hn1in cases involv ing mulliple panics the Coun mny decide the appeals of one or more p:,rtie:swithout orul orgumcncwhile directing 1h01oral argument be heard from the remaining parties. Additional proposed amendments make other minor changes 10 the circuit rules or confom1 10changes in the Federal Rules of Appcllntc Procedure which 100.kcffcc1 in December 1991 and which are scheduled 10 cake effect in December 1993. A copy or1 he proposed amendments may be obcninedwitho ut charge on or ofter September 10, 1993 from the Office of the Clerk. U.S. Coun of Appculs for the Eleventh Circuit. 56 Forsyth S1rec1.NW. Atlanw. Georgia 30303.Phone ( 40,l) 331-6187. Comments on the PfOl)()«'damcndmffl!S may be submiutd in writing 10 the Cler\. 111the above address by October 11, 1993. THE ALABAMALAWYER SEPTEMBER 19931319 Challenges from the Perspectiveof a TrialJud ge - Some PracticalCons iderations By HON.JOSEPH D. PHELPS rial judges are constantly faced with very practi· cal applicationsof Batson (Batsonv. Kentucky,476 U.S. 79 (1986)1. Although the principles of Batson apply to both civil and criminal cases, this discussion T courthouse or generally circu· will primarily focus on the application of Balsonto criminal wes. Georgiau. Mc:Ccllum,112 S.Ct. 2348 (1992). lated because of the personal and Some specificcategories of concern for practitioners Include: sensitive nature of elicited informa pre-selectionconsiderations; de terminations of whether prlma tion. The jurors should be told thM facicv iolations are shown; the validityof explanations for exclu· the quest ionnaires will be handled sionary strikes: and remedial measures. with care and destroyedupon the conclu· sion of the trial and all post-lrlal proceedings. Pre-selectionconsiderations Al the appellate level. courts have addressed the problems lHterminationof whetht!r a that can arise 1vhen lawyersdo not conduct meaningful jury prima facieBalson violation is shown voir dire examination. Williamsv. Slate, 601 So.2d 1062 (Ala. When a Batson motion attlcking the constitutionalityof the Crim. App. 199l ). Since appellate courts place emphasis in exercise of peremptory strikes is llled. the judge must first dcterrmning Batsonissues on the thoroughness of voir dire as determine whether a prima fade violation is presented. U the well as on the nature of responses from particular Jurors. judge determines that there is no prima fade Batsonviolation, including facial expressions,mannerisms, body language, etc.. the issue stops there and no explanation of strikes would be It is logical to permit lawyersthemselves to ask questions. The required. Merriweatheru. Stale, (Ms. Ct. of Crim. App. No. 91· C<>urlshould advisecounsel that voir dire Is not a time for jury 1928, May 28, 1993), __ So.2d __ , (Ala. Crim. App. argument or making statements, but a time to question poten 1993). tial Jurors. to listen to their answers and to evaluate responses. £.~Porte Branch, 526 So.2d 609 (/\la. 1987). is still the lead Some judges require the specific questions to be written out ing post-Batsonauthori ty on the consideration as to whether a and submitted to the Court for approval before the lawyer asks prima faciecase of discrimination has been shown. Branch sets the questions. l..awyerssho uld also be permitted to elicit rele forth nine considerations relevant lo establishing a prima facie vant follow-up information. caseof discrimination: The use of written questionnaires presented to the jury I. that race was the only common factor among the black prior lo Jury selection, as is done in lhe 15th Judicial jurors struck; Circuit. can also be useful in allowing counsel to obtain 2. the pattern of strikes againsl blackjurors • for example, relevant information sufficient to justify juror exclusion. •4 of 6 strikes were used lo strike blackjurors"; Thm questionnaires are completed by the Jurors themselves 3. the prosecutor's strike history; and can go Into various aspects of the potential juror 's 4. the quality of volr dire • a searching and thorough background, predispositions, experiences, education. etc. examinationis less likelythan a pro forma or "desulto Thesequestionnaires can be done on an anonymous basis. i.e. ry one" to support an inferenceof discrimination. by juror number rather than juror name. These numbers are 5. the quality of questionsaddressed to the jurors struck; tied into a strike list and can be made availableonly at certain 6. disparate treatment of black and while jurors with simi designated places in the courthouse. Experienceha.~ shown in lar backgroundsor characteristics: circuits where such written questionnaires are used. lhal It is 7. that questions seeking disqualification were only asked not wise to permil lhe questionnaires to be removed from the of black jurors; 320 I SEPTEMBER1993 THE ALABAMA LAWYER 8.disparate impact;and 5. not all of the non-whitejurors were removed;or 9. that a disproportionatenumber or strikes were of black 6. strikes were basedon juror specificreasons and not on jurors. group or class characteristics. Ex ParleBranch. 526 So.2dat 622,623. £x PorteBranch. 526 So.2dat 624 (Ala. 1987). Oncea prima fociecase is shown"the state then has the bur Factorsto co11sld1tr/11 determining den or articu lating a clear. specific and legitimate reason wbtlher o prima faciesbowi11g is mod• for the challenge whkh relates to the particular case lo The Supreme Court of Alabamahas held that when the ratio be tried, and which is nondiscriminatory .... However. this of non-white to white on the juJY is substantiallythe sami!a.s showing need not rise to the le--elof a challengefor cause.... " the ratio on the entire ,-enireor the total group or prospective £x Parle Branch. 526 So.2d 623 (Ala. 1987).' The state jurors from which a particularjlll)' is selected, then no prirna can show. for example, that while jurors were struck for faciecase is shownwhen LheiaWYers have dividedtheir strikes the same reasons given for striking non-white juro rs, and between the racial groups. For example, ir the group of poten that the number or strikes for non-while and white jurors tial Jurors had a ratio or 60 percent while lo 40 percent non were proportionate. white. and the actual jury, after the exercisingor peremptives, It is important to note that general denials or discriminatory had four or five blacks, this would serve a.san indicator that intent or general objectionswhich are not juror sped/ic ha,-e there wa.sno Batson problem-See £.x PorteMclVilliams, Jan betn held to be "pretextual".Nt!M11an u. State. (Ms. Ct. Crim. uary 1993. 27 ABR 1475• statistical evidence to show the App. No. 961. Nov.25, 19921, __ So.2d ~ (Ala.1993). absence or a discriminatory purpose. See also long v. Stare, In addition,the stllte may also specificaUyshow that: 615 So.2d 114 (1993). cert. denied (Ala. 1993). and Scott u. l. the reasons given are specifically related to the case Slate, 599 So.2d 1222 al page 1227. earl. denied, 599 So.2d being tried: 1229(Ala. 1992). 2. voir dire examination or the struck jury was in fact If attorneyshad dividedtheir slnkes in some degreebetween sufficient; the races, and the r.icialcomposition of the actual jury is close 3. similarjurors were all treated the sa= way: to the r.icial composition of the venire. in all probabilitythe 4. no more questionswere addressedto non-whitejurors judge would not determine a prirna fade case or unconslitu· than lo whitejurors; lionai peremptorychallenges. In such circumstances,no expla- TAX AND ASSET PROTECTION SEMINAR LUCERNE, SVVITZERLAND Theme: Tax efficient , creditor free, risk saving trust/portfolios Depart Birmingham Friday , November 19 and return on Sunday, November 28 TWO FULL DAYS - FINANCIAL BENEFIT SEMINARS TOURS AND SIGHTSEEING Man y histo rical sites, fa nta stic scenery and p lanned a ctivites * Castles * Ski Resorts * Unique Art Collections * Mounta ins * Block Forest * Centuries of Wood Carvings * Swiss Dinners and Enterta inment * much much mo rel FOR MORE DETAILS, CALL OR WRITE DOUGLAS R. MASSEY, U.S_ Representative /Originator ARGENT Telephone : 205 -655 -4935 ~ INTERNATIONAL ~ Fax/ Voice Mail: 205 -655 -3749 I InternationalFinan cial Advisers 7642 Cottonridge Rood, Suite 1, Trussville, Alobomo 35173 Tl IE ALABAMALAWYER SEPTEMBER1993 / 321 nation would be required on a juror byjuror basis. 1989);Hyter u. State, 545 So.2d 194 (Ala.Cr. App. 1988); The Court could well determine that a prima racie case or Avery v. Slate, 545 So.2d 123 (Ala.Cr. App. 1988),cert. racial selection of lhe jury is present if there wer, less thlln denied,545 So.2d 123 {Ala. 1989); McGeeu. State, 594 three non-whitrs on the jury and the original jury panel con So.2d 219 (Ala.Cr. App. 1991), cert. dmied. February 21, sisted or 40 percent to 50 perttnl non-whites - al lwt a "red 1992. flag" would have been raised. In such a case, if the judge deter 3. KnewDefendant 's Family mined that a prima facieshowing of racial strikes wasmade , the Jackson u. Stale, 549 So.2d 616 (Ala.Cr. App.1989) (knew judge would proceed lo require the offending party t.o Justify mother, school with family); Gilderu. Stale, 542 So.2d each individualstrike; that is to explain non-racial reasons for 1306 (Ala. Cr. App.), cert. denied, 542 So.2d 1306 (Ala. removingeach juror. Ex ParleBird, 594 So.2d 676 (Ala. 1991). 1989);Powell o. State, 548 So.2d 590 (Ala.Cr. App. 1988), affd, 548 So.2d 605 (Ala. 1989):Ex parte Lynn, 543 So.2d Explanatlo11sfor ucluslonarg strikes 709 (Ala.1988). As previously noted, upon a showing of a prima facie viola 4. Live NearDefendant/Fa mily tion, the party must show specificand legitimate non-discrimi Ex parle Lynn, 543 So.2d 709 (Ala. 1988);Avery v. State, natory reasons for the challenge which relates to the particular 545 So.2d 123 (Ala. 1988), cert. denied, 545 So.2d 123 case. The party must clearly articulate a nonracial basis for (Ala.1989); each strike. 5. KnewVictim The followingare cases which cite sufficientreasons for jus• Yel.dero. Stale, 596 So.2d 596 (Ala.Cr . App. 1991), cert. tifyingjuror strikes.: denied.May 1. 1992. A. RebUonahlpwith Defendant/Family B. Coobd with Prosfflltot>'CrimimlJustl« S)'Sl~m 1. Relatedto DefendantJl'amily 1. Prior Conviction/Prosecution Jackson v. Stale, 549 So.2d 616, 618-619 (Ala. Cr. App. &ker u. Stale, 555 So.2d 273 (Ala.Cr. App.), cert. denied, 1989) (cousin to defendant's stepfather); Ex porle l.vnn. 555 So.2d 273 (Ala. 1989) (DUIand assault); Jadcsono. 543 So.2d 709 (Ala.1988). (husband related to defendant), State, 549 So.2d 616 (Ala.Cr . App. 1989);Pollard u. Slate, 2. KnewDefendant 549 So.2d 593 (Ala.Cr. App.).wt. denied,549 So.2d 593 Careyu . Slate, 560 So.2d 1103 (Ala.Cr. App. 1989), cert. (Ala.1989) (in a vehicular homicide case.traffic offenses): denied, 560 So.2d 1103 (Ala. 1990); Baker u. Stale, 555 Hyler v. State, 545 So.2d 194 (Ala. Cr. App. 1988) (DUI So.2d 273 (Ala. Cr. App.), cert. denied, 555 So.2d 273 (Ala. where defendant claimed substance abuse during crime); Wardv. Stale, 539 So.2d 407 (Aln.Cr. App. 1988), cert. denied, 539 So.2d 407 (Ala. l 989); Strong u. Stale, 538 So.2d 815 (Ala.Cr. App. 1988);Ex parte Lynn, 543 So.2d 709 (Ala. 1988);Avery u. Slate, 545 So.2d 123 (Ala. Cr. LITIGATION MODELS App. 1988), wt. denied,545 So.2d 123 (Ala.1989); Ke/leg 11.State, 622 So.2d 473 (Ala.1992), cert. denied . August21, • Accident reconstructionwith scale models ror 1992. Plannin g • Study 2. RtlaU\>-eArrested!Prostcuted/Convicted Court Room Trial s Pre se utali on Careyu. State. 560 So.2d 1103(Ala. Cr. App. 1989), cert. • Disciplines include denied, 560 So.2d 1003 (Ala. 1990)(nephew prosecutfd); Riggs u. Stale, 558 So.2d 980 (Ala. Cr. App. 1989),cert. Aut om otives • Airplane s • Marin e denied, 558 So.2d 981 (Ala. 1990) (son awaiting trial, Domestic • Machin ery brother-in-law charged with burglary);Baker u. Stale, 555 Consumer • Homicide So.2d 273 (Ala. Cr. App.),wt. dC!llied,555 So.2d 273 (Ala. • We also do 1989);S mith u. State, 531 So.2d 1245(A la. Cr. App.),ce rt. denied, 531 So.2d 1245 (Ala. 1987): Fearn o. City of Studi es • Survey/Measu .rement s Huntsville,568 So.2d 349 (Ala.Cr. App.),cert. denied,568 Pic:lur es (Photo graph y) • Field Sketch es So.2d 349 (Ala. 1990) (in a DUIwe, DUlarrests); Green • Will work projects/cases anywhere in USA u. State, 571 So.2d 356 (Ala. Cr. App. 1990): Powellv. and possiblyoverseas. Slate, 548 So.2d 590 (Ala.Cr. App. 1988).a(f'd , 548So.2d 605 (Ala.1989); Moss v. City of Montgomery,CR-89-1063 • 30 years experience, excellent references (Ala. Cr. App. March 29, 1991);O'Noo/ u. Stale, 602 So.2d 462 (Ala.Cr. App. 1992), cert.denied , August 21, 1992; SO UTIIERN l\10 0EL BUI LDERS Childersu. Stole. 607 So.2<1350(Ala. Cr. App. 1992), cert. denied,Nov. 25. 1992,( vtnirc member and daughter were Vista Dr h•e 104 Buena being prosecuttd for bad checkcases). Onpl111e, AL 36 526 3. Juvenile Court Contact 205 -626-04 12 Baker u. Stale, 555 So.2d 273 (Ala.Cr. App.),cert. denied, UOU SOUTU F:RN 555 So.2d 273 (Ala. 1989), (brother had juvenile "problems"). 4. Prior Arrest 322 I SEPTEMBF:R1993 THEALABAMA LAWYE R Bakeru. State, 555 So.2d273 (Ala.Cr. App.),cert. denied, 1130 (Ala.1990); Hendorson u. Slate. 549 So.2d 105 (Ala. 555 So.2d273 (Ala. 1989), (Harassment.menacing. disor Cr. App.), cert.denied. 549 So.2d 105 (Ala.1989 ). To have derly conduct); Scales v. Stale. 539 So.2d 1074 (Ala. the strike standyou must state the reason lawenforcement 1988):Moss"· c;1y of Montgomery, CR-89-1063(Ala. Cr. recommends strike and that reason must be a good App. March 29, 1991), (ttaflic citation whert defendant one.The deputysheriff told the prosecutorthat just about allegedpolice harassment ). the wholefamlly had beenprosecuted b)' the DA held lo be acceptablein Nev..rman11.Sta te, (Ms.Cl Crim.App. No.91- C. 01.ssaUsfutionwith Pollcell..awEnfottement 961.Nov. 25. 1992(, __ So.2d~ (Ala.1993). Powellu. Stale. 548 So.2d590 (Ala.Cr. App. 1988). afi'd, Pollard u. Stale, 549 So.2d 593 (Ala. Cr. App.), cert. 548So.2d 605 ( Ala.1989 ). denied, 549 So.2d 593 (Ala. 1989): Currin u. State, 535 So.2d221 (Ala.Cr. App.),cert. denied,535 So.2d225 (Ala. Helatlnnshlpwith DefenseCounsel o. 1988); Wilson u. Stale, 571 So.2d 1237 (Ala. Cr. App. Ward Stale, 539 So.2d 407 (Ala. Cr. App. 1988), u. 1989).rev 'd on other ground. 571 So.2d 1251 (Ala. 1990). cert. denied,539 So.2d 407 (Ala.1989) , (defensecounsel had represented); Strang u. State, 538 So.2d 815 (Ala. Cr. App. 1988). (knew defense counsel): Le1uis v. Ju "9e Jotepl, o. Phelps State, 535 So.2d 228 (Ala. Cr. App.), cert. denied, 535 Judge~ O Plietpe•-hlo ...-graduaul So.2d228 (Ala.1988 ), (defensecounsel had repre.~nted). ond llw ·~- i,o,n ine Ul"Mltslly of - He hu-u-~ 15cnJudoc:,al°""'1, E. PrlorJury Sm>!« s.nce197$ In ICXlito\ 10lll'Y'IOt on nin,,en:,us pn>- Watkins v. State, 551 So.2d 421 (Ala. Cr. App.), cert. JNIO'lllll'ICI CMC COT'ffi!!ON . he currer«tyCh&"fS denied, 551 So.2d421 (Ala.1989 ), prior not guiltyverdict ine- IWS -6 Bir -ec,,,m,;,,e Mge Phol?o·-.,...... Slale -· and prior hung jury); Smith v. State. 531 So.2d 1245(Ala. - AWWOofMorlC ,n 1990 Cr. App.).cert . denied. 531 So.2d 1245 (Ala.1987 ), (prior not guiltyverdict). F'. Demeanor/PersonalCharacteristics NOTE:Subjective reasons like this one are viewedsuspi ciouslyand generallyallowed on ly if U1etrial judges finds that the Juror's attitude was in fact unfavorableor If the prosecutorputs a sufficientexplanation of how the Juror acted Into the record. I. UnfavorableAttitude Toward Prosecution Voir DireQuestions CHAP7..13 Currinu. State, 535 So.2d221 (Ala.Cr . App.). cert. dmied, 535 So.2d225 (Ala.1988); Baker o. Stale, 555 So.2d 273 (Ala.Cr. App.), cert. denied.555 So.24273 (Ala. 1989). BANKRUPTCY 2. Ph}'Sical/MentalDisability Riggs u. State, 558 So.2d 980 (Ala. Cr. App. 1989), cert. sorrwARE denied, 558 So.2d981 (Ala. 1990), (probablehearing dim culty, found as fact b)' trial judge): Scales u. Stale, 539 New Offidal Forms So.2d 1074 (Ala. 1988), (slow to respond to questions. found as a fact by trial judge); Currinu. Slate, 535 So.2d plus 221 (Ala. Cr. App.), cert. denied, 535 So.2d 225 (Ala. 1988),(apparent lack of intelligence):E.r parle lynn, 543 New TypeSetOption So.2d709 (Ala.1 988), (feebleand hard of hearing);Avery u. State, 545 So.2d123 (Ala.Cr. App. 1988).cert. denied. CourtApproval Guarantee 545 So.2d 123 (Ala. 1989), (hard or hearing): Crideru . • Computer Counsel Seal awarded by Law Office Stale, 600 So.2d 401 (Ala.Cr. App. 1992), cert. denied, Automation Cenler , Independent !esters ol l&gal software . 600 So.2d404 (1992). (mentallydisabled). 3. Hostile Call (313) 398-9930 Riggs u. State, 558 So.2d 980 (Ala. Cr. App. 1989),cert. for test report , denied, 558 So.2d 981 (Ala. 1990); Currin v. Stale, 535 So.2d221 (Ala. Cr. App.), cert.denied, 535 So.2d225 (Ala. references and demo disk 1988), SPECIALTY SOFTWARE Box 7026 • Huntingto n Woods, Ml 48070 C. LawEnforcement Recommendations NOTE:The simple statement "recommended by law enforcement''will not be enough. See, Robinsonu. Stale, 560 So.2dl 130(Ala . Cr. App.1989), Ci!rt. denied , 560 So.2d THEALABAMA LAWYER SEPTEMBER1993 / 323 (black investigatorrecommended strike). Avery v. State, 545 So.2d 123 (Ala.Cr. App. 1988). cert. denied,545 So.2d 123 (Ala. 1989). H. Bias/Prejudice Short of ChallengeFor Cause 4. Livingin a Community Hostile to the Police Wdson v. State, 5TI So.2d 1237 (Ala.Cr. App. 1989).rev'd Madisonv. State, 545 So.2d 94 (Ala. Cr. App. 1987), cert. oo other ground, 571 So.2d 1251 (Ala.1990). denied,545 So.2d 94 (Ala.1989 ). 5. Unexplored Relationship to Another Defendant I. Favorable Attitude/Responseto DefenseVoi r Dire Floydv. State, 539 So.2d 357 (Ala. Cr. App. 1987). cert. Strong v. State, 538 So.2d 815 (Ala. Cr. App. 1988); Smith denied,539 So.2d 357 (Ala. 1989). v. State, 531 So.2d 1245 (Ala.Cr. App.), cert. denied, 531 6. ''Cut Reaction" So.2d 1245 (Ala. 1987). Hendersonv . State, 549 So.2d I 05 (Ala. Cr. App.), cert. denied, 549 So.2d 105 (Ala. 1989);Lemley v. Stale, 599 J. AppearingBafned or Confused So.2d 64 (Ala.Cr. App.1992 ). McC/ownv. State, 598 So.2d 1027 (Ala.Cr . App. 1992), 7. Unexplored Affiliationwith a Political Croup cert. denied.May 29, 1992. Parker v. Stale, 568 So.2d 335 (Ala. Cr. App.). cert. denied, So.2d (Ala. 1990). The followingcases cite reasons 568 335 which are insufflcient loj ustifyjuror strikes: ln addition, the appellate courts look "very unfavorably" on A. Age the articulation of reasons such as "an unexplainable gut Powellv . Stale, 548 So.2d 590 (Ala. Cr. App. 1988). aff'd, reaction that the veniremember was 'bad'", although they are 548 So.2d 605 (Ala.1989), (youth); Williamsv. Stale, 548 not per se prohibited. Ex parfe Bankhead,April 16, 1993, 27 So.2d 501 (Ala. Cr. App. 1988), cert.denied, 548 So.2d 501 ABR2571. (Ala. 1989), (youth);Avery v. State, 545 So.2d 123 (Ala. Cr. App. 1988), cert. denied, 545 So.2d 123 (Ala. 1989); Remedial Measures Acresv. State, 548 So.2d 459 (Ala.Cr. App. 1987), cert. If during jury selection, the court is informed by either side denied, 548 So.2d 459 (Ala. 1989), (youth and elderly); that they have exercisedall strikes for which they have reasons, Floyd v. Stale, 539 So.2d 357 (Ala.Cr. App. 1988), cert. either side could choose to relinquish their remaining strikes denied,539 So.3d 357 (Ala. 1989). to the court. If the court agrees to make the remaining strikes on behalf of either side, such should be done by a court B. Unmarried reporter or some other neutral official, possibly from the Thomasv. State, 555 So.2d 320 (Ala.Cr. App. 1989):The clerk's office,and extreme caution should be used to insure the court points out that although ..sing le" is a highly suspect process is random and not a subjectivedecision by anyone con reason for striking a veniremember, such strikes may be nected with the trial court. Pettway v. State, [Ms . CL Crim. upheld where all single venire members are struck. App. No. 91-842, March 5, 19931, __ So.2d __ , (Ala. J ByREUBEN W. COOK he AlabamaDisabilities Advoca look a massive publicity campaign techniques was also included in the cy Program (ADAP) is the throughout the project's seven counties training packets. Staff also distributed statewideprogram set up under in an effort to notify residents of this information about the Zebley decision Tfederallaw lo protect the rights new entitlement. to parents of tvery child enrolled in spe of peoplewith developmentaldisabilities Localres idents respondedenthusiasti cial education and programs for the or mental illness. With funding from cally to the SSI outreach effort. A total elderly went to clients requesting this AlabamaLaw Foundation's IOLTApro of 223 clients with disabilitiesreceived material. gram, ADAPwas able to provide infor assistance. Of that number, 177 clients Manyor the project's clients neededa mation, training and assistance to participated in the SSI clinics held in variety of services warranting extensive people with dis.1bilitiesand their fami each of the seven counties.The remain caseworkfollow -up. Por example, ADAP lies residing in seven rural Alabama ing 46 cllents received assistance by staff coordinatedmulti-agency efforts to counties (Creene,H ale. Marengo. Perry, telephone and mail. The assistancepro secure housing,education and legal ser Sumter, Choctaw, and Clarke). The vided took various forms including vices. Despite the obvious human grant's goal was to provide assistance hands-on assistance with claims prepa resource ltmitations, AOAPadvocates and information regarding numerous ration, legal referrals for claiman ts and attorneys providedd irect casework services nnd benefits available to indi already in the appeals process, informa assistance and legal advice to many of viduals with disnbillties with special tion and supervisedreferrals for health the clients. emphasis placed on the identification care and social services.extensive case It is evident that the outreach pro and notification or parents of disabled work follow-up, and individualized gram assistedonly a fraction or the indi children who may be eligiblefor Social training regarding SSApolicies and pro viduals needing assistance. However, Security SupplementalSecurity Income cedures, as well as basic self-advocacy ADAP's continued \\'Ork in this area has (SSI) bendits. techniques. resulted in greater awareness of the In the 1990Sullioon u. Zebley case, Program staff provided direct assis IOLTApr ogram and the services avail the United States Supreme Court ruled tance with the completion of 13 SSI able to peoplein the seven-countyarea. that the regulations employed by the claims in the seven-county target area, ADAPis grateful lo the AlabamaLaw Social SecurityAdministration (SSA) t o 43 of which were filed on behalfof chil Foundationfor Its assistanceand finan determine a child's eligibility for SSI dren. The outreach staff also helped cial support in providing information benefits were too restrictive and direct clients whose initial applicationfor SSI and legal services lo Alabama citizens ed SSA to reviewa ll such claims denied appeals were assisted, including 30 with disabilities. • betweenJ anuary 1980and February20. clients referred lo attorneys throughout 1990. As a result. many former the target area who had been identified claimants became entit led to current by ADAPas willing to acceptsuch cases. benefits as well as payment of retroac Many of these clients had received tive benefitsdating back lo the effective denial notices from SSA before they RichardWilson dale or the original claim. ADAPunder- receivedADAP"s services. & Associates ADAPstaff complied and disseminated ReubenW . Cool< training packets.The packets contained Registered Ret.lbenW Cook'" lht •Jt.Kut.ve ~tor of the materials regarding SSA policies and Al..\ba,naOa0i111 •• Advoc:acyProg THEALABAMA LAWYER SEPTEMBER1993 I 325 DISCIPLINARYREPORT Disbarment [Rule 20(a) Pet. #93-05) • The license to practice law of Mobileattorney John s. • EffectiveJune 25. 1993,attorney WllJlam Roberu Wilson, Conas, Jr. was cancelled and annulled effectiveMay 12. 1993 Jr .. living in Jackson, Mississippi. was suspended from the by order oi the Supreme Court of Alabama. Conas, as part of a practice of law for noncompliancewith the ManadatoryCon plea bargain in federal criminal court, executed a consent to tinuing LegalEducation Rules. [CLENo. 93-331 disbarment and surrender of license. [Rule23 (a) Pet.#93-0I) • EffectiveJuly 16. 1993, ~mer attorney John Howard Mc.Enny, ID was suspended from the practice of la"' for non· Surrender of license compliance with the Mandatory Continuing Ltgal Education • J en')' DeWitt Bake., . a Huntsville lawyer. surrendered Rules. [CLENo. 93-23) his license to practice law on June 29, 1993. The Alabama Supreme Court ordered Baker'sname to sLTickenfrom the roll Publi c Reprimand s of attorneys by order dated July 7. 1993. Norman Bradley.a • Millry altorney Daniel C. Ware received a public Huntsville lawyer, has been appointed trustee to inventory reprimand with general publication on May 21, 1993 for Baker's client's files and Loprotect the rights or those clients. violating Rule 1.3 and 1.16(d) of the Rules of Professional [Rule23 (a) Pel 1193-02) Conduct. A Mobile client paid Ware a retainer to represent her in a civil action which had been filed against her in Su spension s Mobile. Ware sent her some interrogatories to answer, but • On May25, 1993,the Supreme Court of Alabamainterimly had no (urther contacl after that When the client received suspended Tuscaloosa attorney Brenda Ann Dixon from the a notice of the trial date she attempted to contact Ware. only practice of law. On April22. 1993.Dixon had been convicted of to learn that he had closed his Mobile office and moved the crimin al attempt of murder in the Circuit Court of his practice to Millry. Apparently, Ware had made an Tuscaloosa County. Under Ride 20(a) of the Rules of Disci· oral motion to withdraw from the case without communical· plinary Procedure,a lawyerconvicted of a ''serious crime" (any ing this to his client. The court directed him lo file a felony) may be temporarily suspended. When and If the convic written motion, which Ware failed to do before abandoning tion becomes final, mandatory suspension or disbarment fol his Mobile practice. [ASl3No . 92-461l lows under Rule 22 of the Rules of Disciplinary Procedure. • On May 21, 1993, Huntsville lawyer Barban C. MIiier [ASBNo. 93-0041 received a public reprimand with general publication in con • By order of the Supreme Court of Alabama,dated April 20, nection with a legal advertising complaint. Mlller's 1990-91 1993. Dothan attorney Cada MIiis Carter= temporarily sus and 1991-92 YellowPage ads did not contain the disclaimer pended from the practke of law in the State of Alabama.effec· required by the ethica l rules. even though her areas of tive April 19, 1993. Said suspensionwas based upon an order of practice were prominent in the ads. Miller had previously the DisciplinaryCommission of the AlabamaState Bar tem requested permission to remove the disclaimer from her ads porarily suspending Carter from the practice of law. [Rule because she resented "paying for the space it takes,believes it 20(a) PeL#93-03J misleads the public and servesno useful purpose.· The Disd · • Decatur attorney J. NorrnilnRoby was suspended from the plinary Boardfound that Miller's failurelo complywith the dis practice of law for a period of three years, effective July 1. claimer rule was an intenlional and knowing violation. In 1993, by order of the Supreme Court of Alabama.After a full addition to the reprimand, Miller was ordered to attend six hearing on March 12. 1993. the DisciplinaryBoard found that classroom hours of instruction on the Rules of Professional Robyhad wrongfullywithheld funds given to him by the son Conduct. [ASBNo. 90-0581 • of a long-time client, recently deceased. Roby took the funds (Sl,049) and did nothing further from that point. Overa period of two years,he gave continual assurances Lhathe was going to return the money to the son and only heir. The Disciplinary Correction Boardfound that aggra,'lltlngcircumstances justified the disci tn the aI1icleon African-Americanlawyers publishedI n the pline imposed.Those circumstances included Roby's prior dis May 1993 Issue of The Alabama Lawyer, Selma attomey cipline. his failure to cooperate in the investigation of the J .L Chestnlllis quoted as stating that Judge Blantonof the complaint and his failure to produce trust account records County Cour1of Common Pleas chastised Ches1nu1lor both requestedand subpoenaedby the bar. [ASBNo. 91-4731 making an evidentiaryobjec1lon and relered 10 him as a • Phenix City attorney Richard C. Hamilton has been tem "glorifiedno1ary public.• Judge Blantonw as lncorree1tyIden porarilysuspended from the practice of law for the violationof tifiedas the jurist making these commenis. Instead, these the Rules of ProfessionalConduct of LheAlabama State Bar. remarks were made by another Judicialofficer wh o Is now Hamilton entered into an agreement with the Officeof General deceased. Both the author and Mr. Chestnu\ apologize for Counsel in resolution of formal charges pending against him. ihe erroneousrele rence to Judge Blanton. Hamilton failed to comply with Lhe terms of the agreement. 326 / SEPTEMBER199 3 THE ALABAMALAWYER LEGISLATIVEWRAP-UP By ROBERT l. McCURLEY,JR. Annu al Meeti ng Senator Frank Ellis Business Corporation Revision: This The annua l meeting of the Alabama RepresentativeJ im Campbell revision of the Business Corporat-ioR Law Institute was held concurrently law followsthe most recent American with the Alabama State Bar Annual Probate Proce dure Bar Association revisions. Our current Meeting in Mobile. Newofficers for the Senator MichaelFigures Business Corporation Act, although Senator Don Hale following year are: passed in 1980, reflec ted the 1974 Senator DougG hee Model draft. See May 1993 Alabama President: James M. Campbell RepresentativeMarcel B lack Lawyer. Vice-president:Yetta Sa mford Representative Jim Campbell Secretary: Robert L. McCurley, Jr. Commission on Uniform Sta te Laws: Executive Committee: Limite d Liabilicy Compan.,v The 1993 Legislature amended Alaba GeorgeMaynard Senator Steve Windom Richard Manley RepresentativeHugh Holladay ma's act on the composition of Alaba Oakley Melton ma's representatives to the Commission RyandeG raffenried on Uniform Laws, adding to the E.C. Hornsby thr ee members appoin ted by the Frank Ellis Governor a member of the House of Representat ives and the state Since the 1992 annual meeting, five Senate. Current Alabama members LawInsti tute-prepared bills were passed are: ProfessorThomas L. Jones, Univer by the Alabama Legislature.Legislators sity of Alabama Schoo l of Law; who sponsored these bills were recog John Andrews,attorney, Montgomery; nized and presented with plaques. Richard L.Jones, retired justice of Thesewere : the Supreme Court of Alabama; Senator Article 2A UCC "Leases" Steve Windom; Representa tive Senator Jack Floyd Mark Gaines; Bob McCurley, director Senator SteveWindom of the Alabama Law Inst itute; and RepresentativeJ im Campbell Jerry Bassett,director of the Legislative RepresentativeMary Z.oghby Reference Service. The commission RepresentativeMichael Box at the 1993 annual meeting approved a "Uniform Healthcare Decisions Act'', Article 4A UCC "Funds Transfer" It is anticipa ted U1at there will be a "Uniform Statutory Construction Act", Senator SteveWindom severa l specia l sessions prior to amendments to the "Uniform Partner Representative MaryZoghby the 1994 regular session. These special ship Act", "Uniform Correction or Clari Representative Jim Campbell sessions are rumored to include a fication of Defamation Act", and session on ethics and campa ign Article 8 of the Uniform Commercial Admin istrative Proce dure spending limits, gamblin g casinos Code "investment Secu rit ies". The Act Amendments and education reform. Other matters Commiss ion is also studyi ng a Senator John Amari may be bro ught up in the special Uniform Adoption Act (similar to Alaba Senator Walter Owens session but matters not included in ma's new act) and a Limited Senator RyandeCraffenried, Jr. the call require a two-thirds majority LiabilityCompany Act (similar to Alaba vote of each house. ma's new Limited Liability Company Act). Rev ision s comp leted Rol>ert L. Gover nor's leg al a dvisor McCut'ley, Jr . The Proposed Rules of Alabama Aobett L McCurley.Jr . Evidence have been completed and GovernorFo lsom has appointed Pro Is thed11ecl0f of the are prese ntly before the Alabama fessor Brad Bishopo f Cumberland Law Alabama law lnslilute School as his legal advisor, replacing at the tJnivCl'&!y o, Supreme Court. A copy of these Alabama..He received rules with commentary may be found Judge John Karrh who returned to law his undorgradua1eand at 615 So.2d, No. 2 in the May 13, practice in Tuscaloosa. l THE ALABAMALAV/Y ER SEPTEMBER1993 / 327 00 ------~ ------Al A B A M A STATE BA R H G H L G I I T S ~ Bench & Bar L.uncheon speaker Sheryll Cashin of M Judge Sam C. Pointer, Jr . lright) of Binning, t;::.:tWashington, D.C. with her parents , Dr. and Mrs. John ~ ham, recipient of the Jud icial Award of Cashin of Huntsv ille Merit, with President Small ~~ '92~'93 YLS President Sid Jackson of Mobile ® President Small with daughte .r Laura and wif e tt;B with newly-elected '93- 194 YLS Presid ent Le s ~ Jean at the "'Bayou Backwater tt membership Hayes of Montgomery re ception at the Grand Hotel , Point Clear ~~ Melb a and Oakley Melton and Alvin Prest• ~'l George and Jane Hlgg lnb oth ~ Michae l Seibert of Huntsville ~ wood, all of Mont gomery, enjoying the Cajun ® am of Bessemer havi ng fun at t...,_,-w also en,jo yed the Membership cuisine Thur sday night Point Clear Thursday night Reception. 328 / SEPTEMBER199 3 THE ALABAMALAWYER ------w~ Al AB AM A $TATE------B A R H Ci H L G H T S t"41 Ginger Tomlin of Birmingham and Frank Thlemonge of '"JPast Pres idents E.d Thomlon and £,.T. Brown share t.....JM obile reco ive LEXIS.NEXIS train ing. C.. memories before the P•s t Pre aldents 9 Breakla st Friday. ri At ·tendeos at the breakf••t were, t.....1 laft to right, Ed Thornton of Mobile , Drew Redden of Birmingham, O•kley Melton of Montgomery , SIU Scrvggs of Ft . P•yn e, ~.T. Brown o'I Birmingham, Tommy Greaves of Mob ile, Phil Adams of Opellluo, Jim North of Bi:rmingham , Alva Caine of Blrm in9ham, Notbome Stone of Bay Minette, 8111Ha irston of Birmingham, and Ben Harris of Mob lie. , c:-, Nat Hana-ford , clean , Un lversl t·y of '-" Alabama School of Law with Camille Wright Cook, who la ret iring H proles r":;1"!)M embers of the Chr t1·t1an Legal Socloty gathe r for breakfaat Friday. aor with tho Univer1lty ·11 School of Law I.J •nd honored at the Unfv•r1 lty 1s Alumnl Luncheon Tl lE ALABAMALAWYER SEPTEMBER1993 1329 H G H L G H T S em Governo ·r Jim Folsom , 00 Chartes Vere , Eart of Burford , enter . oo After his pr e s,entation , Earl Burford signed ® Jr. addresses atten ~ talned attendees of Friday n ight 's ® autographs and answer e d questions . dees of the 1993 Annual Dinner with the que stion , Grande Convocation "Who was WIi i iam Shakespeare?" Saturday morning. ~ Laurie Sm ith of Cullman, a rep • W President Small accepts a $3 ,000 donation to ~O.Aon Waldrop of Vestavia ~~ resentative with We.st Publish t..-:-.;,,the Building Fund from Joe Spransy , chair , t*.u HIiis , w i nner of the Expo ing Company , one of many Labor & Employment Law Section. •93 lap top computer exhibitors at EXPO '93 t: r:~President Small presents Commi ss ioners ' t;.-"~ Medallion to Gorman Jones of Sheffield . 330 I SEPTEMBER1993 THEALABAMA LAWYER _____oo ____ _ AMA STATE BAR H G II G H T S (;""a Broox t.,;.;.;tH olm es o f M ob il e, pr es• lden t -elect f or '93-'94, congra tul at ed by Pr esident Small rt.'"'l&..lt to rlghtl Ch•rlH R-•r of Mobile , Fr•nk .J Hawthoma . Sr. of Montgomery and At Byrne of Dothan take a break . 0 Pre11dent Small accepts hi s Mred ribbon " from r"''1 ••• and tum s ove r I.he reaponalbllltlea and lha Past Pr e1fdont Adam ., ••• t...J gavel to l93- ' 94 Pr&s 1dent Spud Seale . r,;'.l Judge WIiiiam Robertson visits AIM booth •t r-, (Left to right) Broox Holme s, Sr ., pre11dent ..e lect; Spud Seale ·, t.,J Expo'93 ~ pr e aldentj a nd Clarence Sma ll , p a at p resident THI~ALABAMA LAWYE R SEPTEMBER 1993/ 331 A1ahnnalawOnDisc ™from Th eMichieComimiyandMeadTotaCentral . NowmakinglegalresearchworkonyourtellllSistheFrrstCommandment. AlabamaLa w On Disc Form ore informationand ro schedule a no-ob~gationdemon contains these up-to-date,full-text stration in youroffice, ca ll yourMichie representative today. legaldatabases : JamesA. Shroyer • Codeof AlabamaAnnotated • AlabamaR ules Annomced 800/543-7618 • Alal:amaSupn,n'l'"''Tl'_._ Publisher.;a theCode a Alabama 332 I SEP'l'EMBER1993 THE ALABAMALAWYER RECENTDECISIONS By DAVlDB. BYRNE,JR ., TERRYA SIDES and WILBUR C. SILBERMAN ( 1979), a deficient reasonable-doubt UNITED STATES determine if lhe suspect is armed, it is instruction vitiates all the jury's factual no longer a valid Terry search, and its SUPREME COURT findings, leaving a reviewing court to iruits will be suppressed.Sib ron v. New speculate as to what a reasonable jury York,392 U.S. 40 (1968).I n Michiganv. Erroneou s reasonable would have done. When il does that, long, 463 U.S. 1032 (1983). lhe seizure doubt Instruction Justice Scalia wrote, the wrong entity or contraband other than weapons dur cannot be harmless error judges the defendant guilty. ing a lawrut Tarty search wasJustified by Sullivan u. Louisiana.61 USLW4518 reference to the Court's casesu nder the (June l, 1993).The jury inslructions in Plaln feel exception "plain view"doctrine. Thus, if an officer Sullivan's murder !rial includeda defini Minnesota 11. Dickerson, 61 USLW lawfully pats down a suspect 's outer lion of "reasonable doubt" esse-ntially 4544 (June 7, 1993). Basedupon Dicker clothing and feelsan object whose con identicalto lhe one held unconstitution son's seamingly evasive actions when tour or massmakes its identity as con al in Cage u. Louisiana, 498 U.S. 39 approached by police officers and the traband immediatelyapparent, there has (]990 ). Sullivan was found guilty and fact that he had just left a building been no invasiono( the suspect's privacy sentenced to dtalh . On appeal, Lhe known for cocaine traffic, the officers beyond lhat already authorized by the LouisianaSupreme Court held lhat the decided to investigate further and officer'ssearch for a weapon. erroneous reasonable-doubtinstruction ordered Dickerson lo submit to a pat However,the Supreme Court affirmed washarm less error. down search. The search revealed no the Minnesota Court's ruling, holding In a unanimous decision, the United weapons. but the officer conducting it that application of these principles to States Supreme Court disagreed. hold testified that he fell a small lump in the facts or this case demonstrates that ing that Sullivan's Sixth Amendment respondent's jacket pocket and believed the officer who conducted the search right to a trial by jury was denied by the it to be a lump of crack cocaine. The giving of the constitutionally deficient officerthen reached into lhe pocketand instruction. Justice Scalia, writing for retrieved a small bag or cocaine. The the Court, held that lhe Fifth Amend Minnesota Supreme Court held that ment requirementof proofbeyond area both the stop and frisk of Dickerson ALABAMA sonable doubt and the Sixlh were valid under Terryv. Ohio, 392 U.S. Amendment requirement thal the jury, I (1968), but found the seizure of lhe DOC, ENT rather than the judge, reach the re.qui cocaine to be unconslitulional.Refusing site finding o( · guilty", are interrelated: to enlarge upon the "plain view" excep ASS BLY The instTUctionor the sort given in this tion lo the Pourlh Amendment's war SOF . ARE case did not produce the required jury rant requirement , the state court verdict or guilt beyond a reasonable appearedlo adopt a categoricalrule bar $200 each doubt. ring the seizure of any contraband The Court further held that the giving detected by an officerthroug h the sense of a constitutionally deficient reason of touch during a patdownsea rch. 30 Day Money-Back able-doubt instruction is among those The UnitedSta tes Supreme Court dis Guarantee constitutional errors that require rever agreed,h olding U1alt he police may seize sal or a conviction, rather than those nonthreatening contraband detected Produces draflS in l 0-15 minutes that are subject to the harmless-error through lhe sense or touch during a pro usingn ~implc question-and-answer analysis. Consistent with the jury-trial tective patdown seard1 of the sort per format. Edit these documentswith guarantee, Chapman v. Colifomio.386 mitted by Terry. so long as the search your word-processing software. U.S. 18 (1967). instructs a reviewing stays within the bounds marked by court to consider the actual effectof the Terrg.This protecm-esearch-permitted Wills, Trusts, Real ESlate.Limited error on the guilty verdict in the caseat without a warrant and on lhe basis of Pannerships.Busilless sales and 11 hand. However, because there was no reasonablesuspicion less than probable Olhcts. jury verdict within the meaning of the cause--is not meant to discoverevidence For lnfomuuioo caU Sixth Amendmentin Sullivan's case, the of crime, but must be strictly limited to (800) 221-2972 ext. 565 or 503. premise for harmless-error analysis is lhat which is necessaryfor lhe discovery 9'"'hlor ·lcgaJ, Inc. absent. Unlike an erroneous presump of weaponswhich might be used to harm 1 62 White S11cc1, 1£'*"])'..!rHj! tion regardingan element of the offense, the officer or others. However, if the NYC 10013 see Sandstrom v. Montana. 4425 U.S. 10 search goes beyondwhat ls necessaryto THE ALABAMALAWYER SEPTEMBER1993 / 333 was nol acting within the lawful bounds 48ll (June 28, 1993). After a South agreed, holding that forfeiture under 21 marked by Terry at the time he gained Dakota state court sentenced Austin on U.S.C. § 881(a)(4) and (a)(7) is a mone probable cause to believe that the lump his guilty plea to one count of posses tary punishment and, as such, is subject in Dickerson's jacket was contraband. sion with intent to distribute cocaine, to Lhelim itations of the Excessive Fines Based on the Minnesota Court's inter the United States filed an in rem action Clause contained in the Eighth Amend pretation of the record, the officer never in federa l district court against his ment. Justice Blackmun, writing for the lhought that lhe lump was a weapon, mobile home and body shop under 21 Court. held that the determinative ques· but did not immediately recognize it as U.S.C. §881(a)(4) and (a)(7), which pro tion was not, as the Government con cocaine. Rather, he determined that it vide for the forfeiture of vehicles and tended, whether forfeiture was civiI or was contraband, i.e., cocaine, only after real property used or intended to be criminal, but rather whether the forfei he squeezed, slid and otherwise manipu used to facilitate the commission of cer ture was a monetary punishment. The lated the pocket's conte nts. Justice tain drug-related crimes. The District Court held that because sanctions fre White noted that while Terry entitled Court granted the Government's motion quently serve more than one purpose, the officer to place his hands on Dicker for summary judgment on the basis of the fact that forfeiture serves remedial son's jacket and to feel the lump in the an officer's affidavit that Austin had goals will not exclude it from the EighU, pocket. his continued exploration of the brought two ounces of cocaine from the Amendment's purview. so long as it can pocket after he concluded lhat it con mobile home to the body shop in order only be explained as serv ing in part to tained no weapon was unrelated to the to consummate a prearranged sale, and punish. sole just ification for the search under rejected Austin's argument that forfei However, while holding that civil in Terry. Because this further search was ture of his properties would violate lhe rem forfeiture was subject to the limita constitutionally invalid, the seizure of Eighth Amendmen t's prohibition tions imposed by the Eighth Amend the cocaine that followed was likewise against excessive fines. The Court of ment's Excessive Fines Clause, the unconstitutional. Appeals for the Eighth Circuit affirmed, Court declined to estab lish a test for agreeing with the Government that the determining whether a forfeiture is con Forfeitur-Pun ishment a nd Eighth Amendment was inapplicable to stitutional ly "excessive", stating that the Eighth Am endme nt in rem civil forfeitures. "prudence dictates that lhe lower courts Austin v. Unit ed Stoles, 61 USLW The United States Supreme Court dis- be allowed to consider U1atquestion in the first instance." Grady v. Corbin overruled UnitedStates v. Dfron, 61 USLW4835 (June 28, 1993). In unrelated incidents, HCAl:HEALTHCAR E AUDITORS, INC. Dixonand ~·osterwere trieclfor criminal MEDICAL EXPERTTESTIMONY SERVICES ONISlON contempt of court for violating court orders that pro hibited the m from engaging in conduct that was later the MEDICAL/DENTALMALPRACTICE EXPERTS subject of a criminal prosecution. Based STATSTAT AFFIDAV IT SERVICE· ALI. SPECIAl:l'Jr:S on Dixon's arrest and indictment for possession with intent to distribute · GRATISMEDICA L1 'EMI PREVIEWO F YOUR CASE:An i11-0eplhevaluation 10 cocaine, he was c.onvicted of criminal ascertain'1Jld defin e c:iusatiun, liability and bread1esin st'1Jldardsof c:irc. contempt for violating a condition of his · GRATIS CLINICAi, CONFERENCES:Weshal l e:trefully takeyo u step by step release on an unrelated offense forbid through eachcase to insureth at yourclinical kn owledgeis commensumte wilhours. ding him to commit "any crimina l Wes hallhe hrurnllv candidif ,-:iseevide ncesno meri~ or if causation is poor. offense."The trial court later dismissed · GRATIS CLINICALREPRESENTATIVES TO YO UR OFFICE:ln-0ep1h rev iews. the cocaine indictment on double-jeop · GRATIS, DETAILED, WRllTF.!'I'REPOR TS:Shou ld a casehe unwonl1y of pursui~ ardy grounds. Conversely,the trial court :indU J>Onyo ur direclives,we sh all be pleased10 forward a derniled report in Foster's case ruled that double jeop ardy did not require dismissal of a five · OUR Basic FEEi s $275: YouIncur n o cost.1until you drnosc t0 1>urs11cdie expert's work-up for his affidavit Nor etired, no foreign, '1Ildno court-worn experts. count indictmen t charging him with Nounivers ity physicianswho can s abotageyour p l:tintllfscase In favoro r defense. simple assault. threatening to injure We:ire not :1 simple referral service aswe haveprovided litigation su pport to over another on three separate occasion s. 750 flm1s~iroughout the U.S. We have earned our repuiatlon pmdcn~y. for bolh and assau lt with intent to kill, even plaintilT& defense. though the events under lying the charges had previous ly prompted his IICAI: Health Care Auditors , Inc. Telephone (813) 579·8054 trial for criminal contempt for violating 2 CorporateDriv e, Pen~1ouse 690 Telecopicr (813) 573·1333 a civil protection order requiring him Clearwaier, Florida 34622 \Vt :are.plea .sedco r mh 1e )'OUrcalls . not to ·'assault. .. or in any man ner threaten ... " his estranged wife. The Court of Appeals for the District of 334 / SEPTEMBER1993 THE ALABAMALAWYER ColumbiaCircu it consolidatedthe cases to passing the 8/ockburger test, a sub whose subsequent prosection is barred on appeal and ruled that both subse sequent prosecution must satisfy a by the prohibition against double jeop quent prosecutions were barred by the "same-conduct" test to avoid the double ardy. The Court appliedthe same analy DoubleJeopardy Clause under Gradyu. jeopardybar. That test providedthat, "If sis to Poster's indictment for simple Corbin, 495 U.S. 508 (1990). to establish an essential element of an assault, and held that it was likewise The Supreme Court affirmed in part offensecharged in that prosecution, the barred by the prohibition against dou and reversed in part the judgment of government will prove conduct that ble jeopardy. the Circuit Court. In so doing, the constitutes an offense for which the However,the Court determined that Court concluded that the Fifth Amend defendant has alreadybeen prosecuted," the remaining four counts of Poster's ment's prohibition against double jeop a second prosecution may not be had. indictment were not barred by the ardy attaches nonsummary criminal Cradyv. Corbin,495 U.S. at 510. Blockburgertest. Poster's first prosecu contempt prosecutions just as it does in Based on the 8/ockburger analysis, tion for violating the civil protection other criminal prosecutions. In the the Court held that because Dixon's order forbiddinghim to assault his wife contexts of both multiple punishments drug offense did not include any ele does not bar his later prosecutionunder and successiveprosecution, the double ment not contained in his previouscon assault with intent to kill, since that jeopardy bar applies if the two offenses t em pl offense, his subsequenl offense requires proof of the specific for which the defendant is punished or prosecution failed the 8/ockburgertest. intent to kill, which the contempt tried cannot survive the "B/ockburger" Dixon'scon tempt sanction was imposed offense did not. Similarly, prosecution tesL See 8/ockburger u. United Stales. for violating the order through com of the contempt offenserequired knowl 384 U.S. 299 (1932). This test inquires mission of the incorpo rat ed drug edgeof the civil protectionorder, an ele whether each offense contains an ele offense. His ·'crime" of violating a con ment not required for the charge of ment not contained in the other; if not, dition of his release cannot be abstract assault with intent to kill. Justice Scalia they are the "same offense"within the ed from the "element" of the violated likewise held that the remaining three DoubleJeopardy Clause's meaning. and condition. Here, as in Harris u. Okla charges did not violate the 8/ockburger thus, doublejeopardy bars a subsequent homa, 433 U.S. 682 (1977), the under rule in that differentelements had to be punishment or prosecution. However, lying substantive criminal offense is a establishedin order to obtain a convic Crady v. Corbin holds that in addition species of a lesser-included offense, tion. r------, AD DRESS CHANGES Completethe form belowONLY if there are changes to your listing in the current AlabamaBar Directory.Due to changes in the statute governingelection of bar commissioners,we now are required to use members' officeaddresses, unless none is available or a member is prohibited from receiving state bar mail at the office.Additionally, the AlabamaBar Directoryis compiled from our mailing list and it is important to use businessaddresses for that reason. NOTE:If we do not knowof an addresschange , we cannot make the necessarychanges on our records,so please notify us when your addresschanges. Mail form to: AliceJo Hendrix, P.O. Box 671, Montgomery,AL 36101. ______MemberldentificatiOll (Soc ialSecu rity)Number Chooseone: O Mr. D Mrs. u Hon. D Miss [.J Ms. 0 Other ---- PullName ______ BusinessPhone Number ______Race______Sex_ __ Birthdate______ Year of Admission______ ~rm------OrficeMailingAddress______City______$(.)te__ ZIPCode______County------OfficeStreet Address (if differentrrom mail ing address)______ City______$(.)te__ ZIPCode------County------L------~ Tl-IEALABAMA LAWYER SEPTEMBER1993 / 335 Justice Scalia then announced that tative after the plaintiffd ies, allegedly as Code §6-5-410 (1975). The trial court although prosecutionunder four counts the result of the personal injury, even grantedtha t motion to strike. of Foster's indictment would be barred though more than two years has expired On appeal, relying upon its recent by the Cradg "same-conduct" test , after the death of the plaintiff.The basic holding in King v. National Spa & Pool Cradg must be overruled becauseit con factswere as follows: Institute, 607 So.2d 1241 (Ala. 1992), tradicted an unbroken line of decisions, The plaintiff filed a claim againstvar i the supreme court reversed lhe tr ial contained less than accurate historical ous fictitiously named parties, alleging court's summa ry judgment for the analysis, and has produced confusion. that he had suffered personal injuries defendant.In King, the court overruled Justice Scalia went on to state that from having been exposed to asbestos. Elam and held that personal injury unlike the Blockburger analysis, the The plaintiff alleged that asbestos-con actions do nol abate when a plaintiff Cralf.q test lacked constitutional roots taining products had caused him to con dies as a result of the alleged wrongful and was wholly inconsistent with the tr act an illness diagnose d as act of the defendant. Court's precedents and with the clear., mesothe lioma. The plainliff died of Justice Houston dissentedfor the rea common law understanding of double mesotheliomaon November10 , 1985. sons set forth in his dissentingo pinion jeopardy. On December 6, 1989, one of the in King. Moreover, he made the follow defendantsfiled a suggestionor death of ing observation: the plaintiff. On June 4, 1990, the plain I .. . note that the !instant ) Supreme Court of tifrs executrix filed a motion to revive wrongful death claim was not filed Alabama-Civil the action as a personal representative, until five years after Hogland's and to amend the complaint to include death. I do not see how the majority an action alleging wrongful death. The can rely on King u. National Spa for Pe rsonal injury actions do not trial court granted her motion. its holding in this case. In King, the abate when plaintiff dies a s On April 2, 1991, one of the defen wrongful death action was filed a result of alleged wrongful act dants moved to strike the amendment, few weeks after !the plaintiff's I of defendant - but what alleging that the personal action had death, wellwithin the two-year lim about statute of limitations? been extinguished upon the plaintiff's itations period provided for in Ala. In Hogland u. The Celotex Corpora death, pursuant to the holding in Elam Code 1975,§6-5-410(d) .. . . This is tion, IMs. 1910077, April 30, 1993), v. Illinois Central Railroad, 496 So.2d a molar movement by this Court __ So.2d __ (Ala. 1993), the issue 740 (Ala. 1986), and that a wrongful and by implicat ion overru les was whether a personal injury action death action was barred by the two-year numerous cases: [citations omit may be amendedby a personal represen- statute of limitat ions set out in Ala. ted!. Doctrine of "piercing corporate veil " alive and well In re Birmingham Asbestos litigalion, [Ms. 1911617-CRE, April 16, 19931, _ So.2d_ (Ala.1993) . pre LANDTECH86 sented the supreme court with the fol lowingquestion of law certified from the Real Estate Settlement System United States Court of Appeals for the For Lnseror Mt1trixP1·i11lers Eleventh Circuit: Whether under Alabama law • HUD 1 Au tomatic Calculatio ns the tort doctrine of "duty to con· • Checks & F.scrowAccmmting trol" could be applied to hold a par • Word Processor- Spell Check ent corporation liable for the acts of Policies& Commitments its subsidiary. Deeds & Mortgages This question arose in regard to those • Data Base Reporting actions encompassed by a January 8, • On site Training Available 1991 order issued from the United States District Court for the Northern • 10995 Reportin g Districtof Alabama, in which the court $1,495.00 =------consolidated, for pre-trial purposes, all ------cases in that district "asserting claims for personali njury, illnessor death from LANDTECH exposure to asbestos products or O ATA C ORPORA T I O N (800) 937-2938 asbestos-containing products". In these 303 Guaran ty Building • 120 SouthOlive Aven ue • WestPalm Beach, FL 33401 consolidatedactions, the plaintiffsgen erally alleged that they had been 336 / SEPTEMBER 1993 THEA LABAMALAWVER exposed to asbestos in the workplace of misuse and harm or loss resulting was whether the trial court erred in and had suffered serious injury as a fromlhe misuse. determining that, as a matter of law. ruulL The derendanlswere parent cor the defendantcould not be held liable porationsthat the plaintiffsalleged held Landlord llablllty for for the attacko n the plaintiff. voting interests in subsidiaries that cri mi nal acts of third persons A majority of the supreme court manufactured,installed or soldasbestos agreed that the trial courl properly In l.M.S . v. Angeles Corporation, or asbestos-containing products, and determined that the defendantowed no [Ms. 1911413, March 12. 1993). _ lhea placed these products into the So.2d __ (Ala. I 993), the plaintiff, a statutory duty lo the plaintiffunder the stream or commerce, where they ulti I 985 StandardHousing Code. since the resident of Gadsden, Alabama, was mately became part or the buildings plaintiffs apartment complexwas con a rapedby an intruder who came through where lhe plaintiffsworked. T he plain slruct ed before the effective date of the living room windowo f her apart tiffssought to hold lhe parent corpora Gadsden's adoption or the Code. ment. She sued her landlord. alleging tiom liable for the activities of the Accordingly, "[Albsenl such statutory lhat it negligently failed to maintain a asbestos-relateds ubsidiaries. duty, landlordmay not be held liable her apartment windowin a safe condi a The supreme court answered the for the criminal acts of third persons tion and that this negligenceresulted in certified question by holding that, unless such acts were reasonablyfore the attack on her. The trial court under Alabamal aw, the "duty to con seeable." Brock u. Wolfs Reaftv Co.. 582 entered a summary judgment for the trol" doctrine may not be applied to So.2d438 !Ala.1991 l. A majorityof the defendnnt. The primaryissue on appeal hold a parent corporationliable for the acts or its subsidiary. The plaintiffshad advocated a departure from the well established doctrine of "piercing the corporate\'eil" . Theyargued that a par ent corporationshould be liablefor the acts or Its subsidiary ir (I) the parent controls the subsidiaryand (2) the par ent can foreseethe harm that the sub s id I ar y' s activi ties may have. The plaintiffs based their "duty to control" theory on lfostat emenf (Second) of Torts. §315 (1965).The plaintiffs con tended that the association betweena parent company and its subsidiary should be deemed a ·special relation" ror purposeso f §315, much like thoseor parent and child, master and servant, and the relation of a possessorof land or chattels to a licensee.The plaintiffs' theory or liability rested upon the premise that the §315 duty to control shou ld apply in onv circumstance You where one individual cont rols the actions of another and the other's actions result in foreseeable ham,. ln rejectingall of the plaintiffs' argu a True ments. the supreme court reaffirmed Foro ver halla century, with our parentcompany, Old that the law in Alabamais that a plain MississippiValley T itle has been in RepublicNational Otle Insurance tiffmust first "piercethe corporateveil " the spotlight,providing the direction Company,ranked among the J before the parent COf])Oralion's liability andleadership tha t canonly come nabon's SOlargest publicly held I may be established. A parent corpora !roman lndusuyleader. InsuranceOf1iilnlZllUOns. B«ause at !• tion. eveno ne that ownsall or the stock With MVTvou're not getting MississippiVi!lcy TiUr, we know f or a subsidiaryc orporation, is not sub the expeniseo/ one tnsurer,but two. that matnwiungleidership Is w an. ject to liability for the acls of its sub Our utlepolicy Is a Jointpolicy issued not an ICL '~ sidiaryunless the parent so cont:rolsthe operationof the subsidiaryas to makeit MISSISSIPPI VALLEY TITLE a mere adjunct, instrumentality or alter .• INSURANCE COMPANY ego or lhe parent corporation. More over. there must be the addedelements J1ck,on,Mt THE ALABAMALAWYER SEPTEMBER1993 / 337 court concluded that even though the was foreseeablebecause of similar inci Weoffer the followingcawit to plaintiff failed to comply with the provi dents or for any other reason beyond the Bar: The notice of appeal from sion of her lease which requ ired she the ordinances." the district court to the circu it give the defendant written notice of any court in this case is trea ted as a defects in her apartment, a jury ques Do facsimile transmissions proper and timely filing. Likewise, tion was created on the issue of foresee constitute ''fillngs" under other filings attempted by facsimile ability, given the defendant's failure to Alabama Rules of Court? trans mission in reliance on the dispute the plaintiff's statement that In Ex parte Jan Tuck dl/J/a Colony opinion of the Court of Civil Appeals she gave oral notice to the defendant's Pools, (Ms. 1920134, May 14, 19931, will be taken as proper on the same agent who would have been required to _ So.2d _ (Ala.1993), the supreme basis th rough the period ending repair the defect in the window. court was presented with the following July 31, 1993. After that date we will In separate dissents, Justices Almon, issue or first impression: not recognize facsimile transmis Shores and Houston opined that given Whether sending, by facsimile, sions as filing, within the meaning the majority's holding that the Gadsden a copy of a notice of appeal from of our rules of court or the statutes ordinances were not applicable to this district court to circuit court satis of this state, except as statutes or case, such should end the matter and fies lhe Rule S(e), A.R.Civ .P., rules may specificaUy authori~e "fil resu.lt in an affirmance. Justice Almon requirement of "filing with the ing" by facsimile transmission. The went further and recognized that even if clerk or register of the court". Alabama rul es of court do not this case could not be disposedof solely The plaintiff sued the defendant in presently specificallyauthorize any on the basis of no statutory duty, the dist rict court on March 4, 1991. On "filings•· either of notices of appeal proper question was whether the rape of December 19, 1991, the district court or any other documents, by facsimi the plaintiff was foreseeable , not entered a judgment in favor of the le transmissions. whether" the defendan ts knew or plaintiff and against the defendant. On Accordingly, it appears that until the should have known of the condition of January 2, 1992, the defendant sent a standing committees act on U1isissue, [the plaintiffs) window", as the majority facsimlletrans mittal sheet to the office the court, as of July 31, 1993, will not sa,d. "The judgment should be affirmed of the circuit clerk; that transmittal recognize facsimiletransmissions as fit. on this quest ion also, because (the included a copy of a notice of appeal ings under Rule 5. plaintif~ does not contend that the rape from the district court to the circuit Editor's Note: The federal courts do court. The defendant also advised the allow papers to be filed by facsimile circuit clerk's office that the original of transmission "if permitted by rules of the notice of appeal was being placed in the district court . . Rule 5(e), the mail the same day. The clerk's office F.R.Civ.P. Moreover, a facsimile trans WOULDYOU receivedthe original notice of appeal on mittal as a form or fi Iing has recently January 3. The plaintiff filed a motion to been authorized by the state courts in IJKESOME dismiss, arguing that the defendant's Arkansas, Florida, Maineand NewYork. HELPIN YOUR notice of appeal was untimely - specif ically that it was not filed within the 14· Settlement agreements under PAPERCHASE? day period prescr ibed by Alo. Code Rule 47, Ala .R.App.P. and § 12-12-70(a) (l 975). Alabama Code §34-3-21 With it's ability to reduce The circuit court granted the plain In Ex parte Wilma O. Simms, IMs. paper usage by up to 93%, tiffs motion to dismiss. The court of 1911395, May 28, 19921,_So .2d _ BOOK-IT! would most civil appeals reversed the trial court's (Ala. 1992),the supreme court granted certainly help reduce you judgment of dismissal. The supreme a writ of certiorari to review a holding court granted the defendant's petition by the court of civil appeals that settle paper chase! ®oo -,~ for a writ certiorari, and unanimously ment agreements entered into in the BOOK.m llkfUCti f'OVt t., held that, "F'or purposes or this appeal", trial court are controlled by the provi c:ompu ltH't lot•t p,il'IIH ;Ii , ~ th e facsimile copy of the not ice of poPff t,1.M)ge br prlnti"'V ~I sions of Rule 47,Ala.R.App.P. fmM I to 16 pci,y:Hol t•.11 ~ appeal transmitted on January 2 was a The plaintiff filed a negligence action o ,lftOI• ,hff1 of pop.tr. 61,. ~ ~ timely filing under Rule 5. The court against the defendan t for injuries If', 36 •f)iM •nob le you to prim then went on to sayas follows: received in an autom obile accident. Iii.. In mo"" &ffe,.111 lci)'Ol.lh, Including o bookl.r 1lyle 'Mlh This Court has referred the The plaintiff's attorneys negotiated ov1omolicpos,'nolto l'I, "'•" t,YI" whole subject of facsimile filing, a proposed settlement agree ment Gte g,.o , for lorg• do«1mN1h Of fOf lo...... - 'wOrtingwith ~tlot1 t . including notic.es of appeal. to its with the defen dant's at torn ey. The Standing Committee on the Rules plaintifrs attorneys reduced the agree So ttop choUng poptt 1odoy, Coll I ,800.·'29,018 4 to o«l• r SOOK• of Civil Procedure and its Standing ment to writing, and the plaintiff and ITI, fo,,-onfr $39 .9S ~v, U.H, orf°' Committee on the Rules of Appel his attorneys signed it. The trial court Gddi!ioncd lnfom'IO'rion, late Procedure. As of now, we have subsequently enforced the written set MiCtOMeltic, 98 Ou-ckA ..,.,, Sottitoto, Aorido 3-4232 not received a report from these tlement agreement, and the defendant ca1:i.311.2s1s F AX ca13t311,209 1 committees. appealed to the court of civil appeals. 338 / SEPTEMBER 1993 THE ALABAMALAWYER Notwilhslandlngthe fact that the settle second trial. However.Wright request lion. l'urther. when we consider ment agreement,~as entered into in the ed that Seals's testimony from the first the substanceof Seals's testimony trial court. the court of civil appeals trial be read to the jury. The trial court in the first trial, compared with applied the provisions of Rule 47 and refusedthis request. The court of crimi the evidencepresented in the .s«· concluded that the requirements of a nal appeals, by an unpublished memo ond trial. and the fact that in the valid settlement agreement had not randum opinion, affirmed Wright's fi~ trial the jury could not reach been meL conviction. a decisionas to Wright'sguilt. we The supreme court recognized Citing Mc£lrogs AlabamaEvidence, must further conclude that the that some confusion exists among the supreme court held lhat although trial court 's error prejudiced the bench and bar regarding whether former testimonyis hearsay,it is admis Wright'sdefense. Rule 47 applies to settlement agree sible 1vhenthe personal attendance of a Accordingly , the supreme court ments reached at the trial level. witness Is not procurable and when the reversed Wright's conviction, holding After noting several cases in which former testimony meets certain criteria. that the trlal court abused its discretion it has reviewed the validity of settle Chief Justice Hornsby, writing for the in refusing to allow defense counsel to ment agreements reached in the trial court, stated as follows: present testimony established Seals's court and has on those occas ions Without hearing Jones's tesUmo unavailability as a predicate for the applied the provisions of §34-3-21, ny, the trial court could not have introductionof his prior testimony. without mentioning Rule 47, the court determined whether her testimo agreed with Judge Ira ln.Menl's inter ny would have established either Use of dep ositio ns pretation that, "It would seem that Rule that Seals was permanently or in cri minal ca se s 47 would governsetllement agreements indefinitelyabstnt from the state, Ex parle Rober/son. 27 ABR 34 71 reached while the matter is on appeal, or that Wright's attorney used (June 4. 1993).Robertson was indicttd while section 34-3-21 would govern set due diligence in attempting lo for first degree burglary, first degree tlement agreements reached while the secure Seals's presence at trial. rape and first degree robbery. The case ls still at the trial level."Spurlock Thus, we conclude that by refus indictments were based on the State's u. />ionl!{!rPinanc:ial Seruices, I nc., 808 ing to consider Jones's testimony. evidence that Robertson had entered F.Supp. 782, 783 (M.D.Ala. 1992). the trial court abused its discre- the homes of l\vO elderly women lthen Accordingly, It is now clear that Rule 47 governs settlement agreements on appeal, while §34-3-21 controls settle ments In the trial court. Supreme Court of Alabama-Criminal WhenDo You Prior te sti mony and t he Sixth Ame ndment Thanl~A Jury Ex parle Ii/right, 27 ABR3079 (May 21, 1993).Wright was charged with first degree assau lt In the shooting of For Booing You l'acemire. At his rirst trial, the jury was unable to reach a verdict and the trial court declared a mistrial. His second Out Of Court? trial resulted in a conviction.I n both of Focus Groups. Discover whether a his trials. Wright 's defense lo the assault charge was that another per· jury will find your opening statement, son-E.M .. nnd not Wright-had shot the testimony of your witnesses, or l'.lcemire. At Wright's first trial, defense any aspect of your case convincing. If \\~lness Seals testifiedthat he had seen you're not sure, it's sure better to test E.~l in the Possessionof a .25 caliber gun. The bullet lhat il1)uredFacemire now than pay later. also came from a .25 caliber gun. Seals also stated that E.M.later told him that he It:.M. I had shot Pacemire.This testi New South IB~Jhl .L,_c. mony was the only testimony directly Formore lnfcrmatlon or a brocl1\lre, callLculs Wilhite at 205-322·9988 supportingW right's theory of defense. Seals was not present to testify at the THEALABAMA LAWYER SEPTEMBER1993 / 339 aged 72 and 88 J and had raped and and unsecured for the deficiency, as rights orw creditors ith only security robbedthem. prov ided for unde r §506(a) of the on the principal res idence of the The State moved to take the deposi BankruptcyCode. T he plan also provid· debtor. The Court called attention to tions of the elderly victims pursuant to ed for the same treatment of the unse §1322(b)(5)as to cure of the deficiency § 12-21-261, Code of Alabama (1975); cured as that of the other unsecured stating that it should be read in con Robertson objecte d to the State 's creditors, and to resume payment on junct ion with §506(b), and that in so request. At a hearing on the State 's the mortgage until the secured portion doing, it is evident that the secured motion, the State argued that the por was paid. The lower courts held that leader is entitled to present value of the tiol) of§ l2-21-261,w hich providest hat this violated§ l322(b){2). arrearage. "Presenl value or tl1earrear the State may preservea witness' testi Justice Thomas, in speaking for the age" means interest must be paid. The mony in a criminal case only with the court, stated that although 506(a) does debtor had argued that §1325(a)(5), consent of a defendant, violated the divide the claim into secured and unse which requires payment of interest on Equal Protection Clause of the Four cured according to the value of the col the claim. was not applicablebecause it teenth Amendment. The trial court latera l, §1322(b)(2) proh ibits mod applies only to modifications , and agreed, holding that the consent ification of rights of the holder of a §1322(b)(2) does not allow modification requirement had no rational relation claimsecured on ly by the debtor'sprin to a mortgage on a res idence . The ship to a legitimate state interes t or cipal residence.The court distinguished Supreme Court refused to accept this protected right, and entered an order rights as contrasted with a claim under argument; it held that §J325(a)(5) gov holding that portion of§ 12-21-261 §1322(b)(2). The court resolvedthe ten erns all allowed secured claims provided unconstitutional. sion between the statutes in favor of for by the plan. Robertson petitioned the supre me §1322(b)(2) in holding there can be no court for writ of mandamus. which was modification of the rights of the home Limitation of incarceration granted. ln a per curiam opinion. the mortgage holder. The court ruled that period for civil contempt in court. held that the trial court erred in there can be no bifurcation of the mort· bankruptcy case holding§ 12-21-261 unconstitutional gage, but it will remafo as security In the Maller of Younger, 986 F.2d becausethe limited interrogatoryproce for the entire claim. Thus, the Dewsnup 1376, (11th Cir. March 5, 1993). The dure set out in § 12-21-261 did not rule which created such a stir as to its involuntarydebtor was arrested in order allow adequate protection or the defen reasoning now also applies to lien strip· dant's Sixth Amendment right of con ping under a Chapter 13. There is frontation. For that reason. the consent not much left on the subject unless Da vid a. re([uirement bears a rational relation Congress wishes to act. It will be Byme , Jt. ship to the purposes of protecting the interesting to observewhat occurs when oav.oa. Byrne. Jr ,s a graduate of 1he Unlvar right of confrontati on. However. the a lender obtains a junior residentialreal si1yo f Alabama, where supreme court agreed with the trial estate mortgage in which it is obvious he received bothhis court that this problem regarding the that there is no equity at any time. Also, unde,g,aduate andla w dogtOOS "8 iS a l'l'letTt right or confrontat ion needed to be will it be held that the reasonjng of ber or theM ontgomery firmol RObtSOn& Bet&e, eliminated and referred the matter to Noblemanapp lies in Chapter 11cases ? and cO'v't!fsthe criminal the Standing Committee on the Rules of clecis!~ Criminal Procedureto consider whether In Chapter 13, U.S . Supreme the supreme court should adopt a rule Court holds that in curing Terry Alan allowingboth the State and a defendant, default, debtor must pay Sides in the limited circumstances specified interest on arrearage TerryAlan Sides . who COY.... tho CMlporuon by § 12-21-261, to take depositions or Rake v. Wade, June 7, 1993. 113 S.Ct. of the decisions,Is a wadualeof ltleUniv« • witnesses to preserve their testimony, 2187 (1993) . In a followup to No Mtyo f Alabamaand referencing Rule lS(d) or the Federal bleman, decided June l, the Supreme CIJmbO!land Schoolot Rulesof Criminal Procedure. Lawol SamfordUnlver · Court affirmed tl1e 10th Circuit's hold sity._Ho Is a momboto l ing that even if the mortgage instru ine Montgomeryfirm of ment fails to requ ire interest on HIii. HIii, C&rtar. Franco, Cole& Black. BANKRUPTCY arrearage, and, moreover. under state law would not be payable, to cure the WDburO. default, in bankruptcy, interest must be Sllbennan WilburG. S.llJelman.ol Bifurcation of residential paid. In this unanimous decision, also lhe Birriigham lion ot mortagage not allowed in authored by Justice Thomas, the opin Goroon.Silbe rman, Chapter 13 ion first mentioned §506(b) as provid· Wiggins & Chids. at tondod Sam(OfdUnlver • Nobleman v. American Savings ing that an over-collateralized creditor sit)'and the U niversity Bank, June 1, 1993, 113 S.Ct. 2106 is entitled to interest post-petition until ot Alabamaan d oarnecs (1993).The debtor sought to bifurcate a confirma tio n. He then followed by hislaw degtee from lhe University's Schoolol residential mortgage into a secured referring to §l322(b)(2),and, in partic Law. He covers ine claim for the value of the real estate, ular, the prohibition against modifying bankruptcy decisions. 340 I SEPTEMBER1993 THEALABAMA LAWYER to compel attendance at a 2004 exami pay off a real estate mortgagefrom the Priority of federal tax lien nation. He still refusedto testify, plead purchase funds. The state court found over judgment lien ing the Fifth Amendmentas an excuse. St. Laurent liable for fraud, awarding U.S. (IRS) o. McDermott, 61 USLW He was gi"en immunity under §344 of S48, 705 compensatory and SS0,000 4282 (1993). This case discussed the BankruptcyCode, and wasordered pun itive damages. St. Laurent, in a the "first in time" rule. holding to t.estifyby a fflal!istratejudge. He still Chapter 7 case, tried to obtain dis that it applies only when perfected as refused, and then was held in contempt charge on the judgement debt. The a state lien when there have been and jailed indefinitelyuntil complying. Bankruptcy Court applied collateral established the following: (1) identity On appeal to the Eleventh Circuit. lhe estoppel to hold the debt non-dis of lienor. (2) property subject to debtor con-tendedthat under 28 U.S.C. chargeable under §523(a)(2)(A) and the lien. and (3) amount of lien. Justice §1826, no incarceration can exceed 18 §523(a)(4):the District Court affirmed. Scalia. writing for the major ity, months. The question was the applica On appeal. the debtor claimed tha t determined Lhat a federa l tax bl lity Lo the cited Code section to a punitive damages for fraud aredis lien primed a state court judgme nt bankruptcy civil contempt. The Court chargeableas a matter of law under the lien earlier recorded, but upon which held that taking the wordsof the statute cited Code sections. The EleventhC ir the lien did not attach on the after literally, it does apply,and that the con cuit first held that collateral estoppel acquired property until the property finementorder by the District Court on was applicable. It then, as a matter of was acquired, and that the time of November 20, 1992 is limited to the first impression in the circuit, deter acquisitionis when the debtor acquires length of the bankruptcy case or 18 mined that although most Bankruptcy rights in the property. To summarize months from the order, whichever is Courts (includingthe Northern District the fa.els: the creditor recordeda judg. less. of Alabama) hold suchdamages as dis ment lien, the IRS then recorded its chargeable,the contraryview is correct. federal tax lien, and then the debtor Eleventh Circu it holds that 1n holding the punitive damages as acquired rights in the property. The punitive damages arising non-dischargeable, it wrote that the creditor agreed that it had no rights in from fraudulent conduct are languageof the statute is clear that the the property until the debtor obtained non-dlschargeable term "debl"encompasses punitive dam the property.which was after the ffiing In re St. l..aurent,99 1 F'.2d672, (11th age awards. It rejected the argument of the federaltax lien. Thus, the majori Cir. May 20. 1993). The creditor had that the 1984 amendment of ty or the Courl held the federal tax lien obtained a Florida judgment against a 523(a)(2)(A)limited the definition of lo be superior. Juslices Thomas, debtor (Sl. Laurent) who had failed to "debt"to compensatorydamages. Stevensand O'Connordissented. • By JAMESF. HAMPTON ver lhe past nine years, my participallonin the Alaba took us on an extensive ma State Bar LawyerReferral Service has led me to a tour of the island, showing us points of Ovariety of interesting and profitable clients. While interest. He then drove us to a popular Barbadosrestaurant manyo( these referralsresulted in no fee and no representa beforedropping us off to continueour trip. tion on my part, many have resultedin the establishmentof Obviously, we cannot count on such benefits simply an attorney-client relationship with an occasional client by participatingin the bar's LawyerReferral Service. HO\\~ returning for subsequentrepresentation in other matters. ever. I can say with certainty that had I not participated I recently had the unusual but most pleasantopportunity I neverwould have had such an opportunityto see Barbados to gain additionalbtnefits from this referralservice. A$ luck as thoroughlyas I did or lo participateas fullyin the culture would have it, I was referreda client who had contacts on of ill the Caribbeanisland of Barbados,where I wasabout to visit. The benefits to the practitioner participant are obvious, Aner my initial meetingwith my client, in which I casually and occasionallythere are e\len some hiddenbenefits , such informedhim of my impendingtravel, he arrangedlo have a as this. I strongly encourage other attorneys to participate driverand car meet my wifeand me in Barbados.The driver In this program. • THE ALABAMALAWYER SEPTEMBER1993 / 341 First Kids' Chance ScholarshipsAwarded SPONSORS Ae1naLife & Casualty AlabamaPower Foundallon AlabamaRehabilitat ion Management, Inc Myron K. Allenste,n Balch & Bingham Burr& Forman CarllSle& Associates Carpenter Re/lab1htauon Consultants JohnJ Coleman.Jr Cooper, Mitch,Crawford, (L·Al Alcherd L. Cha mbers, Hea lth South, Melissa A. Kuykendall& Whatley Parker, Chuck D. Byrd, Joe EUia, Jr. G RickDigiorgio OrvmrnondCompany Inc lhe 1992 annal meeting of lhe foundation and Aetna each awarded Engel, Walsh& Zoghby abama State Bar. Charles Carr. SS,000to Kids' Chance. Over S40.000 Floyd. Keener. Cusimano& Afen chair of the Workers· Com· was raised in Kids' Chance's first six Robetts pensation Section, challenged section months of operation. RobertL Gonce members to work with him to establish The Kids' Chance Scholarship Com· BertM Guy the Kids' Chance Scholarship Fund. The mittee was comprisedof non-lawyersas HEALTHSOVTH purpose of the fund is to provide high well as lawyers.with Charles Carr serv PatrickP Hughes school, trade school and college scholar ing as chair. Its members put in many RandallB James ships to children who have had a parent hours evaluating applicationsa nd help MaryH . Kessle1 lee, Sullivan& Mathis killed or permanently and totally dis ing pub licize the program in their Maynard,Cooper & Gale respectivecommunities. abled in a work-relatedaccidenL MoElvy& Ford The Kids' Chance Organizational Committee members include: Rick Parker & Lundy Committee. chaired by John Coleman, Chambers of HEALTHSOUTH;Richard LenoraW Pate Ill, a Birminghamattorney. and Richard Davisof the United Steel Workers Asso John F POiter Browning, a Mobile attorney , began ciation; Richard Duren of Birmingham Rehabd1ta1K>o& Employment working lo establish the program In Steel; Steve F'ord, a Tuscaloosaattorney; lnsbtute of Alabama Alabama. Committee members pledged Mary Kessler,a Birminghamrehabilita Rhea. Boyd & Rhea between $750 and $1,500 each to the tion specialist; and Joe Pierson of Aetna. Rives& Peterson fund as well as a substantial amount of Lenora Pate, director of the Alabama James H. Saxon,Jr. their Lime.The committee put a great Departmentof Industrial Relallons.and Sherling.Browning & York deal of effort into developinga fundrais Jimmy Dill, insurance commissioner of EugueneP . Stuns ing plan, appropriate procedures and the State of Alabama, have served as Roger C Sultie application forms. (The program is honorarycommittee membe.rs. SystmedlO,Inc administeredby the AlabamaLaw Foun • Ten applicationswere receivedfor the Rodney L Ward John F Whitaker dation.) Contributions were also sought first scholarships.The scholarshipcom mittee reviewed the applications and WolfeJones & Boswell outside the legal community. HEALTfi . HubertH. Wright SOUTHbecame a major corporate spon chose three recipients for scholarships sor, giving $15,000.T he Alabama POl 342 / SEPTEMBER 1993 THE ALABAMALAWYER ton will be a freshman at Bishop State schoo l, work hard and make good or make a pledge, do so on the pledge Community College in Mobile. Chuck grades." form that follows. Please spread the plans to study drafting and design. Joe Kids' Chance has made tremendous word about Kids' Chance in your com Ellis of Bessemer is a rising junior at progressin one year thanks to the car munity. Por more information contact AlabamaA & M, majoring in forestry. ing and hard work of all who helped CharlesCar r at Rives& Peterson, (205) Melissa Parker of Eight Mile will be a with its organization.W e wouldappreci 328-8141 or Tracy Daniel at state bar freshman at the University of South ate your help, too. If you can contribute headquarters (800)354 -6154. • Alabama. Melissa plans to major in edu cation and pursue a teaching career. r------~ Receiving the scholarship enabled one KI DS' CHAN CE SCHOLARSHIP FUND student to attend school full time, rather than work full time and be a part Yes. I will make a cont1ibution to the Kids' Chance Scholarship Fund. My time student. Anotherstudent was kept check for $ is enclosed , or please bill me on January 1 for from having to take out substantial the following amount: loans to help pay the cost of attending school. ( ) $50 ( ) $ 100 ( ) $250 ( ) $,_ _ _ 'fhe scholarships were awarded at the 1993 annual meeting of the Alabama Name ------State Bar in Mobile. The recipients and Address ______their parents joined the scholarship committee for breakfast prior to the City ______State _____ Zip------Grande Convocation. The three young people were truly grateful to be chosen Signed this ______day ___ 19 __ _ winners of the first Kids' ChanceScho l arships and for the opportunity being Signature------provided. Charles Carr expressed the 'TheC Kids' hance Scholarship lund ,s a program ol the Alabama Law Foundation, Inc., which Js a qualified charitable organization under lhe lntetnal Revenue Code Section feelings of those involvedwith the pro I I 501(c)(3) and cherelore. all cootnbutionsa re tax deductible. gram when he stated, ''You were in a sit· I I uation where an unfortunate circum 1 Ploasemail all contributions to : I stance developed,and we are happy that • Kids' ChanceSc holarship Pund I we were there to provide some help for 1 AlabamaLaw Fo undation, P.O. Box 671, Mootgomery, AL 36101 you.All we ask in return is to do good in IL------~I r------, ADDRESS CHANGES Completet he form below ONLYi f there are changesto your listing in the current AlabamaBa r Directory. Dueto changes in the statute governing election of bar commissioners, we now are required to use members'office addresses, un less none is availableo r a member is prohibited from receivingstate bar mail at the office.Add itionally, the AlabamaBar Directory is compiled from our mailing list and it is important to use businessaddresses for that reason. NOTE: If we do not know of an addresschange, we cannot make the necessarychanges on our records, so pleasenotify us when your addresscha nges. Mail form to: AliceJo Hendrix, P.O. Box 671, Montgomery,AL 36101. ______Member Identification (SocialSec urity) Number Chooseon e: D Mr. D Mrs. D Mon. D Miss D Ms. D Other _ __ _ Full Name______ BusinessPh one Number ______R.'lce ------Sex ___ Birlhdate______Year orAdmiss ion ______Firm ______ Office Mailing Address ------City ______State__ ZIP Code ______County------Office Street Address(if different from mailing address) ------ City ______State _ _ ZIP Code______County ------L------~ THEALABAMA LAWYER SEPTEMBER1993 I 343 In the Interestof Justice: A Tribute to Judge James Edwin Horton, Jr. and ClarenceLee Watts On April JO. /993 tlje H'l.ntsville-MadisQnCounty Bar.As.,ociation and the J,imestone CounttrBar Associali he fourth prosecution of Haywood Patterson-one of nine defendants in the infamous Scottsboro Cases''-began in a Decatur courtroom on January 20, 1936. By contem porary standards, the events which unfolded there amounted to little more than a By JAMESR. ACCARDI pale, scandalous imitation of Justice; from the jury selection to the court 's oral charge, the proceedings brimmed with fundamental unfairness. Although it is diffi cult to imagine in this era of complexprocedural rules and stringent appellate scruti· ny, Patterson's fourth trial was as much a mockery a.s his third and much more so than his second. Yet, out of the dark shadow cast by the Scottsboro debacle, t;"o members of the Alabama bar emerged as courageous-a lmost heroic-figures: Judge James Edwin Horton. Jr. of Athens and Clarence Lee Watts of Huntsville. Neither man sought par ticipation in the proceedings. Each had followedhis conscience and sense of ethical duty and "'as rewarded. in differing amounts, with the harsh sting oi public reproba tion. James Edwin Horton, Jr. was a native of north Alabama, the "descendant of pio neers, planters, politicians and Confederates." Educated at Vanderbilt and Cumber· land universities. he was classically trained and well versed in literature, history, Creek and Latin. After engaging in a successful law practice and serving with distinc· lion in the state Legislature. Horton was appointed to fill the unexpired term or Judge WilliamSimpson. chancellor of the northern chancery division. He returned to Judge James Edwin his practice after his seal on the bench was abolished in the 1915 judicial reorganiza Horton, Jr. tion which created the circuit court system. Horton ran for the circuit judgeship in 1922 and was elected; he was reelected in 1928 without opposition. A soft-spoken, even-tempered man, he was held in high regard by the citizens of Limestone County and the attorneys who practiced before him. In March 1933, Judge Horton received the call that would alter the course oi his public life. The Scottsboro defendants' first convictions had been overturned by the United States Supreme Court; Horton was informed that he had been selected to pre side over the second trial in Decatur. The Judge accepted his assignment matter-of-factly, acutely aware of the public scrutiny and prejudice which had attended the Scottsboro trial, yet determined that the Morgan County proceedingwou ld be fair. Described by historian Dan T. Carter as generally"ca lm and unruffled",he ruled with an even-handednessthat impressedeven HaywoodPatterson's Ne1"York attorney, Samuel Leibowil2.The judge, according to his son, Ed Horton, began the trial feeling "as did most Alabamians, that the defen Clarence Lee Watts dants were probably guilty." Before the proceedings had concluded, however, he had completely changed his mind. After Patterson was again convicted and sentenced to 344 I SEPTEMBERJ993 THE ALABAMALAWYER death. Horton. in the faceof expressand in his political attitudes, he believed the possibilitythat local hostilitywould implied threats. granted a defense passionatelyin the equalityof all people outlast that year's pay... lwle found such motion and ordereda new trial. Says Ed in l he eyes of Ihe law. A graduate of a man in C.L.Walts ... ." Horton, '·He had neither a politicalnor the Georgetown University School Watts was immediately facedwith a social agenda Iin granting the new of Law, he was a family-oriented troubling ethical, moral and personal triall, It was purelya matter o( law and individual-he had rive children and dilemma. Accepting a position on the conscience."T he followingyear, he was 13 grandch ildren- and served as defense team was sure lo result in unseated in the Democratic primary a church elder for most of his adult social and professionalostracism: there after having been removed from the life. According to his son. William were many in the community who case. He left law entirely, first working Park Watts,he liveda "long and execm· would ha\'e been delightedlo have Pat· with 1VAdoing land acquisition.s, then plary life" and was an intellectual, terson and severaloi his co-defendants settling in as a collon and cattle farmer admiredand lo,•edby many. He was,in whisked off immediotely to die. More· In LimestoneCounty. Accord ing to Hor· summary, preciselywhat the SOC was over, the SOC had clear lies with the ton's son, he livedthe remainderof his looking for. As Dr. Chalmers noted, Communistparty and other groups not long lifewith no regrets concerninghis • ...[the I lawyerthat,~ were seekinghad particularly popular in the country al Scottsboro ruling. "He said once." Ed to be a localman of unquestionedpublic the lime. On the other hand, Walts Horton says, "that if he hadn 't ruled the reputation, a believerin the boys' inno believedHaywood Patterson Lobe inno way he did, he wouldn't have lived so cence. and willingto risk for a }'ear'spay cent In the end, this imperative out· long. He was comfortablewith his deci· sion land his politicalfnte l to the end." The removal of Judge Horton from Cumberland Schoolof Law Presents the Patterson case had not completely snuffedout his innuence in the matter, however. After the defendant's third Deposition s: Technique , Strategy and Control convictionwas reversedby the supreme with Paul M. Lisnek, J.D., Ph.D. court for systematicex clusion of blacks from the jury venire, a fourth trial was docketed in Decatur. By this lime, the Scottsboro Defense Committee, an Depositions are more than just incarnation of the socialist·oriented, pretrial information gathering devices. New York organization devoted to the They are a crucial opportunity to develop defenseof the nine )'OUOgmen charged case theory, test opposing stories, and in the cases.had deviseda new stratell)' establish credibility. regarding the defense team for Patter· This seminar will teach the son's next trial. It had becomeo bvious that, as talenteda n advocateas Samuel strategies, techniques, and communicative Leibowitz might have been, the fact dynamics necessary to control depositions that he was an outsider was provingto and strengthen your case structure for be more of a liability than an asset. trial. Indeed. a major theme of the prosecu• Dr. Lisnek steps inside the mind of the dep onent and Lion team throughout the second and third trials had been, in essence,"us· v. lawyers by explaining how people process information. With "them." Leibowitzwns obviously from this knowledge, lawyers can create the most effective Brooklynan d a NewY ork physicianh ad questions possible. No one leaveswith unanswered questions been revealedlo be a benefactorof sur· on strategyand approach. prise defense witness Ruby Bates (one Lawyers across the country agree that Dr. Lisnek's of the allegedrape victims). As Dr.Allan approach is refreshing, his style unique. This will be the only KnightChalmers. chairman of the SOC. Alabama seminar conducted by Dr. Lisnek this year. Don't observed, • ...la) Southern lawyermust be given the primary position with miss the opportunity to hear this popular lecturer! regard to strategy and appearance before the court" Judge Horton, when Friday, September 24, 1993 6 CLE Credit Hours asked, recommendedClarence L. Watts Hoover Public Library Auditorium • Hoover of HuntMlle. Waltswas a highly respectedattorney To register call Cumberland CLE at (205)870-2865o r with a reputationas a "lawyer'slaW),-er ." Althoughcharacterist lcally conservative 1-800-888-7454outside the Birmingham area THEALABAMA LAWYER SEPTEMBER1993 / 345 weighed all the other considerations. struggled with the court's rulings and, son, Robinson& Somerville). He was an He asked for, and was guaranteed , a at one juncture, moved for a mistrial on active member of the state and local bar sum of SS,000;Watts clearly regarded the grounds lhat the court's open and associations, and served a term as a lhis as more the professionalinsurance flagrant hostility had effectivelydenied slate bar commissionerand as president policydescribed by Or. Chalmers than a his client a fair trial. The motion was or lhe Huntsville Bar Association. He legal fee. With Leibowitz reluctantly denied by the Judge and the trial con died In 1963 afler a long life and pro settled into an unfamiliar supporting tinued. ductive legal career. role, the trial began. In his dosing argument, Watts intro History, wilh much justification. has It did not take long for Watts to learn duced himself as a "friend and neighbor lookedupon the Scottsboro caseswith a that things were not going to change from Madison County." Speaking in a disapproving eye. Obviously, the fact much because of his presence. During calm voice, he appealed to the jury's that the various defendants were denied jury selection, the trial judge made sev sense of logic and fair play. He attacked due process for so long certainly is a sad eral prejudicial remarks that seemed to Mrs. Price's testimony and countered commentaryon the system. In addition, indicate his Impati ence with th e the prosecution's plea for the "protec the cases reflect very poorly on the defense. When Victoria Price, Patter tion of womanhood" with an urgent quality of Justice available to black son's accuser, look lhe stand. the court appeal for the "protection of the inno defendants in Alabamad uring the peri refused to allow the defense lo cross cenL" od. More than one historian has used examine her on facts now deemed to be HaywoodPatterson , once again. was the le.rm·tragic" to describe the prose highly relevanL As the trial wore on, found guilty. However, this lime lhe cutions and their aflermath. the judge entered his own objections to jury nxed his sentence at 75 years Out or tragedies. however. emerge evidence from the bench and, as Dan instead or death. heroic figum; the ScollSborocases are Carter noles, •made no attempt to con Watts \\.'Ouldlater participate in the not exceptions. Among the individuals ceal from the jury either his disgust defense o( Clarence Norris, another of who took courageous stands for justice with the defense attorneys or his con lhe Scottsboro defendants. Despite lhe and fair play, al great personal risk, tempt for their contentions .... • Walls efforts of Watts and Leibowitz, Norris were Judge James Horton, Jr. and was found guilty Clarence Watts. Watts stated it well in and sentenced to his closing argument in the Patterson death. At the con- trial, "Jt takes courage to do the right WE SAVE YOUR c I us ion of the thing In the face of public clamor for tri al, obvio usly the 1\/rong thing.... " TIME ... beaten down by These two men serve as shining lhe stress and exemplars for all members of the bar. ~arn ell Now legal researchassistance pressure, Walls Each ignored the "public clamor" and is available when you need it. rose from his faithfully and courageously executed L E G A L withoutthe neceS.'1lYof chair and an their respective duties. Moreover, they oddmg• full-umcnssoc,atc or nounced that he did so without any expectationof being R esearch clerk. was too ill to con- rewardedby history. tinue. Compro It 1s precisely for these reasons that Wl1haccess to the S1a1eLaw Library and We,1law.we mises were event we should remember them. • provide fusi und effic.-,cnt service.For dcadhne work,we ually arranged The author relied upon materials can deliver informauonto you via commoncurrier. with respect to a researched and prepared by Or. William FcdemlExprc<5. or FAX. number or the P. Watts; a conversation with Ed Hor Scottsboro cases; ton . ill ; Jarnas Edwin Horton, Jr., Fumcll Legal Research examines the issues thoroughly Watts remained Scoll sboro Judge (a thesis by Gillian throughquali ty research. brief writingand mrnlysb. disillusioned and White Coodrichl19741):Scol/sboro: A disheartene d by Tragedyof the AmericanSou th, by Dan Our mies ore S35.00 per hour. wi th a three hour what he felt had n,in1mu1n. T. Carter (LSUPress, 1969);and "A Rea been a complete scnobleDoub/" by Dan T. Carter (1968). For Research Assistance contac t: failure of justice. Footn otes have been omitted, but Clarence Watts Sa rah Kathryn Fame.LI quotes used are allributable to these co-founded the sources. 112 Moore Building firm that eve.ntu Montgomery, AL 36104 all y was to be come Watts, Sal- J•,,....fl. Accardi Call (205) 277-7937 mon, Roberts , J-R AcClro,_hls __ Manning & Noo dOQt.. 111,mN Un-lYol Nor1hAlolloma and t,,s law 346 / SEPTEM.BER199 3 Tl IE ALABAMALAWYER • M·E·M·O·R·l·A·L·S • he served in the United States Army Stale Bar on Lwooccasions, and he Signal Corps. being separated as a was a member of the board of bar captain. In 1946, he married June commissionersfor 18years. Crowell.In 1949, he obtained his law Uponhis deaU1,h e was a partner in degree from the Universityof Alaba thefirm of Johnston. Wilkins, Druhan ma School of Law and commenced & Holtz. One of his partners, upon his his career in the law. serving as an pa$5ing.commented, ·He wasone of assistant circuit solicitor. In January the most positive and happy people 1950. he jointd his father, Sam John I've e\'er meL Ht appreciated ever)'· ston, and his brother, Bill Johnston, body he's been around. He was just in the private practice o( law, special remarkable in that sense. He never izing in corporatelaw and utility reg had anything bad to say about any, ulation. one.'' He distinguished himself by serving Sam Johnston was a devoted hus SamuelM cCoy his professionand his community in band and father whose loss is felt Johnston, Jr. many admirable ways. lie was a life keenly by all who knew him. He is long member of DauphinWay United survived by his sister. Annie Ruth MethodistChurch. Ile was one of the Foshee of llouslon, and three SQns, Whereas, the Mobile Bar Associa founding members oi the Mobile James C. Johnston. Carter U. John lion notes wilh regret lhe dealh in Chapter of the Uni,-ersityo( Alabama ston and Joseph S. Johnston. of Mobileon April 18. 1993 ormember Red Elephant Club. He was a member Mobile.Both Jim and Rusty are prac SamuelMcCoy Johnston. Jr. of the board of directors of several ticing lawyerswith Johnston. Wilkins. Now, therefore, be il resolved that Mobile companies,serv ing also as sec He also left six grandchildren and Sam, as he was affettionately known, retary and general counsel for Mobile otlier rel~live.s. was born in Mobile and educated in Gas Service Corporation.He servedas ThomasE. Bryan/. Jr. Mobilepublic schools. From 1942-46. second vice-presidcnlof the Alabama Pri!sidmt.MobileJJar Association Franklin James Allen. II Luther Lister Hill John HowardP erdue, Jr. &az .lfontgomery VestaviaHills Admitted: 1971 Admilled: 1961 tldmilled: 1936 Died:J une 14, 1993 Died:Ju ly 15.1993 Died:March 10, 1993 Charles B. Arendall, JI'. Samuel McCoyJ ohnston, Jr. Edward Harris Reynolds, Jr Mobile Mobila Notasulga Admilled: 1938 A.dmilled: 1949 .-ldmitted:1 943 Died:June 24, 1993 Died:April 18, 1993 Died:Ma>· 6. 1993 Gordon Davis Ja1nesMac J ones Marshall Herbert Sims Tuscaloosa Mont_qomery Bim1ingham Admitted: 1930 Admi//ed: 1934 Admitted:1961 Died: FebruaryJI, 1993 Died:April 8, 1993 Died:M ay 3. 1993 Lawrence Dumas, Jr. Olen Hill Pate Christopher Michael West Binningham Gordo Huntsville Admitted: 1932 Adm,itled:1936 Admitted:1988 Died:June 11. 1993 Dled:February 20. 1993 Died: May30, 1993 GeorgeM ortimer Harrison Douglas Percy Wingo Dolhon Bim1ingham Admitted: 1934 Admitted:1924 Died:M ay 23, 1993 Died:J une 20. 1993 THE:AL.A13AMA LAWYER SEPTEMBER1993 / 347 CLASSIFIED NOTICES RATES: Me mbers: 2 free listings of 50 words or less per bar member per calenda r year EXCEPT for · position want ed" or "po sition ottered" listings - $35 per insertion of 50 words or less, $.50 per additiona l word ; Nonmembers: $35 per insertion of 50 words or less, $.50 per additional word. Classified copy and payment must be received according to the following publishing schedu le: September '93 issue - dead line July 30, 1993; November '93 issue - dead line September 30. 1993; no dead line extensions will be made. Send classified copy and payment, payable to The Alabama Lawyer, to: Alabama Lawyer Classifieds, c/o Margaret Murphy, P.O. Box 4156, Montgomery, Alabama 36 101. made; refinished June 1993. Perfect • TAX ATT ORNEY : Natio nal law firm WANTED condition. Seats 14· 16. Call (205) 344· seeks associate with lax LL.M. or CPA 3300. and substantial experience counseling • LAWBOOKS : Wants to purchase vol on pensions , ERISA, corporate laxes • LAWBOOKS: Various treatises and law ume 1886, 1896 and both volumes of and estate planning . Exper ience in books, including Textbook of Medicine 1876 of the Code of Alabama. Please negotiations. 11ansactlons, mergers and { 17 volumes), Attorney's Dictionary of write lo Attorney. P.O. Box 707, Brew acquisitions. and corporate bankruptcy Medicine (4 volumes). Larson's Work ton, Alabama 36427. helpful. Applicant must be aggressive, me n's Compensation Law { 11 vol hard -work ing, highly motivate d self umes), Alabama Code. and other desk starte r with exce llent credentia ls. FOR SALE reference books for sale at reasonable speaking and writing skills, and ability prices. For more information, price list, to expand existin g business . Send • LAWBOOKS: The Lawbook Exchange, etc .• please contact Collee n Aust in, resume and writing sample to: Coordi Lid. buys and sells all major lawbooks, P.O. Box 998. Foley. Alabama 36536. nator. P.O. Box 198246, Nashville, Ten state and federal. nationwide. For all Phone (205) 943·4040 or lax (205) 943· nessee 37219. your lawbooks needs, phone 1· 800· 614-0. All of the books are in excellent 422 -6686 . Maste rCard , VISA and condition. • LITIGATOR AND TRANSACTIONAL American Express accepted. 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Excellen t FOR RENT quality. Satisfaction guaranteed. Call us to sell your unneeded books. Need POSITIONS OFFERED • OFFICE SPACE : Located on sec,ond shelving? We sell new, brand name. floor of the Birmingham Green Postal steel and wood shelv ing at discount • ATTORNEY JOBS: National a.nd Feder· facili ty, approximately 1,800 square prices. Free quotes. t-800-279-7799. al Employment Report. Highly regarded feel . Four oflices . conference room, National Law Resource. monthly detailed lislfng of attorney and reception area, newly decorated. Tele • LAWBOOKS : William S. Hein & Co., law-related jobs with the U.S. Govern phone, lax machine and copier ail avail Inc., servi ng the legal community for ment. other publielprivaJe employers In able. Rep ly 10 P .o. Box 370004, over 60 years. We buy, sell, appraise Washington, D.C.. throughout the U.S. Birmingham. Alabama 35237 or (205) all lawbooks. Send want lists 10: Fax and abroad . 500·600 new Jobs each 328-7240. (716) 883-8100 or phone 1-800-828- issue. $34 for three months; $58 for six 7571. months. Federal Reports . 1010 Ver mont Avenue, NW, #408·AB, Washing SERVICES • FURNITURE: Conference !able. 14' 8" x ton . O.C. 20005 . Phone (202) 66"; solid mahogany with satin wood 393·3311 . VISA and MasterCard , DOCUMENT EXAMINER: Examination cross banding; double pedestal; custom accepted. ol Questioned Documents . Certified 348 / SEPTEMBER1993 THE ALABAMALAWYER Forensic Handwrillng and Document ument authentk:,ty examinations. Crim~ Ingham. Alabama 35216 . Phone (205) Examiner . Twenty-six year 's experi· nal and norw:nminal manfJfS. American 94(>-1536. ence in all lorensic document prob· Academyol Forens,cSciences. Ameri • SERVICE OF PROCESS : locate wit · lems . Formerly. Chlel Questioned can Board of Forensic Document neS$9s, respondents for process ser· Oocumenl Analyst. USA Criminal Examiners. American Society of Ques vice . Nauonwide, minimum identify ing lnvesllga!lon Laboratories . Diplomata tioned Document Examiners. Lamar inlo rmalion necessary. Fast resu lts. (cettlhed)-B rilish FSS. Diplomate (cer Miller, 3325 Lorna Road. #2-316, P.O. Low cost, contingent fee. Four years tified)-ABFOE . Member: ASQDE; lAI; Box 360999, Birmingham, Alabama problem-tree experience. Full range of SAFDE; NA COL . Resume and lee 35236·0999. Phone (205) 988·4158. other investigative servioes available in sched ule upon request Hans Mayer Alabama , Mississi pp i and Flo rida. Gidlon, 2 18 Merrymont Drive. Augusta, • EXPERT WITNESS: Protessional engl· Alabama Special Investigations, a CCI Georgia 30907. Phone (706) 860·4267 . nee r and anorney with a practice of expert testimony In construction, sa.fety, Network atfllle1e. Phone 1· 800·562· • PARALEGALS : Allention auorneys and highway and structural design. Thirt y 1782 and ask for Tom Terrey. personnel directors . The National years' experience In highway, rallroa , RESEARCH : legal research help . Exper ienced attorney , member ot Alabama State Bar since 19n . Access to state law library . WESTLAW avail· able. Prompt deadline searches. Sarah BAR DIRECTORIES Kathryn Farnell, t 12 Moore Building, Monigomery, Alabama 36 t 04. Phone (205) 277-7937 . No represantarlon Is 1992-93 EDITION made that the qual/ty ol the legal ser vices to be performed Is greater than AlabamaState Bar Members: the quallty of legal seNlces performed by othfJf lawyers. $25.00 each • DOCUMENT EXAMINER: Certified Non-Members: Forensic Document Examiner . Chief document examiner. Alabama Depart· $40.00 eacb men! of Forensic Sciences, retired. B.S., M.S. Graduate, university -based Send checlc or moneyorder to: resident schOol In document exarnina· tion. Published nationally and interna· AlabamaState Bar Directory tlonal ly . Eightee n years' trial P.O.Box 4156 experience, state/federal courts of Montgomery, Alabama36101 Alabama, Forgery, alleralions and doc· THE ALABAMAI..AWYER SEPTEMBER1993 / 349 REPORTER CD--ROM WITHWEST' S EXCLUSIVEKEY NUMBER SYSTEM. !ow finding the case law you • Cite to Southen1 Reporte~ 2d need is as easy as typing the citation. or state reports. With Alabama Reporter on • Jump to cited casesand back wiU1 CD-ROM you can: the touch of a key. • Immedia tely pinpoint rclevam Call now to learn more about Wes1 cases with West Key Numbers. Publishing's newest way to win: • Quickly review cases by reading West CD-ROMLib raries:· the exclusive West hcadnotes and synopses. 1-800-255-2549Ex t. 260 ~~------::::--...... _~w~ estMorePubliw·~ toshingwin IP. • ALABAMAREPORTER Watchfor We st's AlabamaCode1 ..