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ALABAMASTATE BAR HEADQUARTERS STAFF 4 IS Oo:ttt A\·fflUC',i\'1 on1S()1ncry, Al. 36104 LAV,f DAY 2006: (334) 269-1515, (800) 35'1~ 154 • FAX (33~) 26 1-63 10 E-m11il:111/o ft.nlnbar.org• \\~ t;hc:wwn~al ,tbflr.org 250 Special Event Celebrates 50th Anniversary of

Ex«uti,.._.Olm:tor ·-·-···-··"·"'"·-·-····--·····""'Kctth l:l.Nornun Historic Case that Ended Bus Segregation In Alabama ~ uh-e A"id.an1···---- ..··--- ·-·--Diam-l,ock S)"'letn( Adminh 1.nu01_, ______,, \\'1ynr J lujllti 251 Hundreds of Law Day Posters, Essays Show Comp1.n« Progr4fflmtt...... 001.u, L Trout \\lcobAdminucri'llor .... ,----·-·--·-·-···--· ··-Amy S:bc:ll Students' Views of American Legal System Ou«cot of ftrosn!m,, ______,f.dw.ardM.. J•J.ucn()n Ad1nlnlnr.ill\Y AJsisi..an1(or Progr.um ...... _, ...... Rii, Cr.ry ~ Rdnnl s«rccn1,-,,.,_ ...... Sh,1nnnn M1gh1 252 Disaster Preparedness: Ready, Set, Go! ~111nd.i1oryCon1inuit15 LtsaJ l!duuhon Dlrtt1or·· -·----·-·-·-····-----·--····-·.An,1.11K. H1mktt (What to Do When the Next Hurricane Hits ) CLEAdmlnl,. ,r,uiwAu 11t1n1·-···- ...... c.a~TI1nm1oi1 B)' Allison Alford Ingram CLE S«::rn1Lff-·----·-·--·-·-·--·-··· ...Osri11 in.t 81't'Wtr Oi.r("(Coro( Cocomunk,11lon.1& Pubbc ln!orm.11mn------·------­ 254 Preparing for the Unexpected: Pubbau,ona Di:r«1or ·---·-·--J.1~,pn:t L Murphy Cocnniw,ictitJan, and P\lbflc.atlo.ru. Anticipate and Plan for Law Office Disasters k.,ilS-lnl------·---Mll.Mll .N.O.U,ld By Laura A. C, lloway "kmbcr!J1jp Sffl,,icn: Dir«IOI -·--- ..• .. --·· - ..... ,j.i,iry Cocbitl ~lttnbcnhlp Adm:inktr;,1th'\'~htm:it ___ Jn1il)' F.irnor Pm I-la( Vice AswS&.ml-----·-- .. CaJby ~ut McCurr1 THE ALABAMA LAW FOUNDATION: Volururcr~ti Prosr.lmDimtor---·-·- ...-Linda Lund VLP Nsimot----·--K.llbcr~ L Ol1Jrd1 257 Awards 2006 JOLTA and Endowment Grants t>in:«or o( Admi~iion,_____ ....1Jom1hy D. Johnmrt t\dmiu iou, Ad.m..inlftr.ihvt~s.iuanu ·----Hcidi A~ receives ADDY Sonia°""II" 258 Atticus Finch Brochure Boold,«!'C:r.. , .. __ --·-·-·---·--·--- ...~le Skin1K'r ASHl ~und,uinn Aui~t.1nt-,... __ ,,_,.,,_, __ ,,.,_, ..... Ann Rl:trnour GraphKt Ari, Oh«ll)r ______l\~c S.tulk, 260 Making The Plaintiff-Property Owner Whole: Ctuphid Artt Aui,WU-----·· ..-- ..Rodctid Pahnt'r The Recovery of Stigma Damages R«q14jonJn ---·-···- ..., ...... St<'phamir ()gle"Sbr PnlCIM;cMaiugc~nt ~nlu.ntt By StephenT. Etheredge ~m Dlr«ror ...-·-·· ..-·--- ..LauraA. CAllow:iy Al.lb.uniiJlwyn Mlllmcr l'rogmn Ou,:ctQr..• ,.._ ...... ,--,--k&nfK" ,\bnc t.nhc fllJ.4•7S701 LOMAP ~nd Al.AP AdmlnittrJ liff Au.1~un1...... -·-··-···-·-,S..nctn Oml<"Rh ,\ubarru l,..iw F011.1Mhoon, Int. Dir« 1ur __ ,... Tr11cy 1>a ,1id Alf AdmlninfllliV(Assist.llll-,-·-"· ---·-·- Ttra AJUIOLl Al.tbamaCmter (c,rD~rute Rc-tol111ion 01r«tl)r ----111d 11hr,..t. ~" f2M-<»091 ADR A»imnL--, ...____ ·--PalSY Shrop~hlrt

ALABAMASTATE BAR C..'fTER FOR PROFESSIONALRESPONSLBILITT STAFF Gc'Q(l'NCou1ml-, ...·----·---.J. Anthony ~kl.am Sem11lt)'to Cmmal Cou.rud- ..--- ...V'rvbn fr'ttfflllll Misl:icsl Gtritt ..l Counsd--·-·-·-·-· ....- ...Rtlbal E. Lusk.Jr ,WiJ.iiatlt Gcoe:n.1Coo:nstl.-·-·---·-i;...nu!IC I $. l'ilrt11dgc: ,hsl~#.11l Gcncnl('.ou~'lcL___ ,__ Jcrr:my\i./, Mt lndn Conipb.inu lna:IM'CoordiD1tor -·- ..-·-·-·-·····-, ...... Kim fJli, Oi,ciJ~i.n.uyOctk ···-·-·· ..---·-·--···--Bon nk lohmor P.. ~t,:.ihl)m>t1tlpt.On.-- ..---- ·Oittyt L k.attkin Carol M. \~righl CIK'llt s«utity Fund Coo,dln4.10,"--·----.1.411.tit 81.utr R«Cf!Cionbt...... _,,_,,,.,,,_, ... ,- ...., ..... _,_,,.,,_,,_,-5!1(,rry 1..1.n,gley Table of Contents>> comi1111ed011 page 226

I II I \ I A B , \ \ f :\ I :\ H )' I R 225 Table of Contents >> from page225 ThoAlnll00111 Stlllll Biw. P .O.Box m . Momgormry.Al 36101. Phone t334•26'9-151S.(800) 354-6154 • www.afttbt1t.1N!J flobenA. Hutt...._ Mon\llOffiOJ'( , ..... Chair"" Edi.,. 272 Lmda G Aippo, Birnvnghi)m v.ce-chairand Assoc111t0 Editor Mar;arilt L MutJi;y,Mwlpiery_,, ___ ,__ ..S~ trOllison and PiA>licailon,Oirectot ~,a N Daniel____ _,_.tomnu,ICllllontAsslS \8"11 _-l-f("""'Soard ol Cdii.n_.,...... __ '°'""·--...... ,.,c.,._ ·S-.Mill"'I._, C..,-·-AW°"""_...... a-. -ft:mt ft. '7.1m,·-&--&mftjft • MIChw J 1.m.t. fdey·-(-!Mio, • laTIUlti.-t-Klmll, • ~ • Oavdf' MlrU\,lll9Clloar4 • Olr«-(li L A.tooma\-k, lfmirrjwn • -Wlilm G.01leel..k~ ·-C-~ • ...... Imm1-- 0. l'Ma, Gil!:*I •• l.W..l tJtw, llli;t!Dr\ -R.--Sol.v,TII.G.~·..,E--·-E--• U.O\lirl~'-~·-0--·•-w.•• &tbJ'l\\teb.·­ 272 Is The Alabama Supreme Court Obliged to Follow Precedental Case Law of Boerdti c.-1...,,11: b1C«IM.,_..E ...... GtN:KII 7"10toa1.lla'OIIK.Br:111n*1...... The United States Supreme Court? 311111DmLI.OUIIC,A;-ltlnd,~Sln'9t4!!1Cirwk.f'hl.,HcnrvPifll. Sohll 5tn era. o. rltdiA. ,.,_.. ,1n~,-. taa1 I\ CQO!Jlrhmck By JamesF. Vickrey, Jr. TIIPCIC881h CilcuiC.. Pia tfO.t. AW,MNy ~I. T"**- 1thC'lrl:l.t1. WJ1:.mtt. 11rooma.J.mQ;un flh tcul 1.w. a • o.:.. 9111c....t. "*'1 K.J:wdw\.h~ lOlhOm,!1.Pikl~ ,.~ ... ~ 280 The Contours of Arbitration Discovery ~ lOmCin:lillfwltND.2.S..f"'Oa..o-.Sd~. lOCIIGaal.1'*9 By W. Scott Simpsonand Omer Kesikli NQ.l Glat;tM.,• .i~~ llllhOm,n,,-.Uo. 4. Phl19W ~~ ll»!Cta.1,fla»~ i ~ I' t~ B,nnilp!I 10di0milt.flce~a. MitbttlJ. ftr1B; flirmq.ma 10CIICiml.P!;lC1I No- 1. 287 Practicing Technical Proficiency in Legal Writing: ~Afll'Nfli. llitlfil"*' 10Ch0m!ILl'lalo.l. llcbi,i E Moocllll. lnniighlm l~Diwct.,- No.lc.ed H $liN,wrt.~e..n.OA. Seven Ways to Avoid m.Wlfil,nA. Slot~. ea-. 11111ci.a...,-,J J._..lfbwa. 1tti Cbca.t.Wl'(L a.. Tror1:.~ "9ctHo.1,MICbNIO ~ St. Embarrassing Yourself ,.4d>ol,13th CwoJt. l'lxt tb. t w,111111M. Ci.mrq"lllll ~It 131'1c..a11l P'ilceHo.3.<rC.SedMlll,MCI*!:»Dbl AnMl. .f.r.cioi..J.t.d.-, And Your Client Mcbll:13Ut Cmal. "8e:t Ni,, S.A.I_...... ,.,. &lilN.Mct:i1t. 141h Cttu(. 0.. By ProfessorNeil M. B. Roweand R S1qNiN,St...i.q:. ISIIIC.::..1, flllcl NII I. I.asHa,ts .• M.:mgt:r!-, 15ft Professor Christopher L. Frost Dltlli\.PIICIIMo. 2..-»i It~~ I~ CillCUllPllteNo l. Dc:nddfl JDl"llt.~.. Mc:tl!IP!*Y, 1SchOio111, Plato Ni) 4, ThcJoowJt~n. ~ 15ChC1Wf.PIK.fHa.1.s.-nFP.,D\~ ISJIOn:wt. "-'Nl a.i.n...l Mli.nt. ~ 1e Cicuc.r McNIIHint. a.a.i. t7*0M( Soxl~O..,C.. llthec..t.JIIME.Med11111. Plhrll lW.Olwrt.~l ~.t..o.inn.mc.ttw1.~A ~ ~. 21n Cbtuc1,Ewtt 11tA. P11ct. .It. &twlM. Z7tld Crair. n.:.ma Akfflcr\An:Wuw. 7.lttl c..m,. fib No I. H HIIOld~ tutu.wit1.lli Crcuc..l'btt Ho 4 L ll'll:mlt11,-n. ~. lbrtr.nl, 23ntCecu<, Pia No 3.fldllr'CI J.ft.,w.._ Jt. )lnlrnlt 2.flhCimlil,Jcmll'libJI. Canollan. '5111Cfml WllillmK. ~ ~ltn 26111CirQil. r.tlNlh l 'ltlllia.ll "-x 0,:y.1'lh DEPARTMENTS c:m.t.o.,.i t V....._Q.,w,,,lll.19tll Omin. Pia >e.I S..... tt CIOlbt. OldN 2BthCtwt.PMcl Ni>-1 t.lnnl ~ .i...... __ &II Cilrllll.I\ Elltt~ TIIIIOeOl,llvlCrcuL(HlbOIS. PIIIOM.11111 ClrtJlrtC.W., 228 President's Page .blnM.~ ~32nd0iwt llofW Yi~.k.,Cdkian n,; Om,lt,Atatl H IJroipwl,.Om. 3"1111Oiw11, ~f H Bldonl,.t.. ~ 350! Many Things But Never Cwtl,rt,llrwwST. tt,de. .It,t~ 3611\Drul,n.o~O Utrel, MoLel 31'1 294 Young Lawyers' Ortull..ft:mr'II t.~11.~JBfl Cilwl.Glnil;J I\ l\ltA, ~ Boring 39fiCiro.Iii. .Iott c r*""A11*11. 40ll aac. OM! r ltw.Aod.bd ., 1st~ Section ~~6 51w!9t():wc., M•LIIV- C...lul-.r, 238 Executive Director's The "Tha11k-Yo11"Article Pia Ni,. I. WWllrt MtCowM,1111. Pia No.1. ClilildtL Hint.y, ll tu,~1111. Pia No.3 . Cebaoha. wa., Blfm~ l'IIOtNo ,. McmrioL Report ~Mal*. Plke tia.5, Alatf.a.w.tl, Clllbet. l'l,aNo.f . Ky!,I.. 296 Legislative Wrap-Up .sp.tl. Slltnl fltc:flHo. 7, 1'1111tWH Ekq. T111e1locul'IICO Ho. &, OOWII Do Americans Want an W\Jolli•Hn. MoororwilltPio N) 9. (tl9y t Lio. E\lloi, Really Prod11ctive IndependentJudiciary? DwMDNJ.w,«(USPS700Xll •~Ila 111111• '41• bt'lll Legislature Allbl!!la ~Bat. 41S0e..w MM, MonlOOfflll!)',NallMMJ&U M '*lodc:A postq piid. Mol!lpltM'J,AJ--. endoddltioaal moilinQ 240 Bar Briefs otlas POSlMAS'lEJI•SWd'md*'O'l to Thl~•Z. •~P.0.lloa 300 Opinions of the .fI ~ MCl'llgCNIY,Jit. 38103-4 156. llwA*'-~-hdlltet~dN ....,.._ Bit Y\rlll,~Oltdl,­ 242 Memorials General Counsel IICn ..,...11arldllt... .. c,owollfltMICWl.tlCll~--ciN..., ddm, ... Olm!ld~tllhl.._.S...... ~ UnclaimedClient Tnist ~Sta .. ~ IICeM 11'.ir~ ~tt,-tol a.. nl.tOt.a .... ftM. JlSdlltt91* .._.....,. ii:w,,.Al,lOfllf.....,...~ ...... dOIIOI 248 Disciplinary Notices Frmds-Escheatto State r-.. lhlthcuirrtclllCll'IVlhl IM'IW•jlllloftw ~ ~~-­ bt\llliliNdllfOI ~ AMlliw1IOOWil~---W-iaivt: ~ !lfANIW!bolO....Gc.,INlMJl,ltakrl~O>NnlC ..... lil'tP,..._ ... al rn,~«W'lb~ n.~i....,.. ,...... N"l'l~t..,:"'t 290 CLE Corner 302 About Members, ~O:v,9Mm. t'tlt....,.S.lla.M'9!111-..l Stress-FreeCLE Among Firms

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BobbySegall DougIMJ,y INld8cbby $,Jg.,H st the2005 ASB Annual Meer,ng-AJ/¥·grooming· &,g,/1"" • - McE1,yge:, reldy IO .,.., hJmloostJ • «t chi ,,.,""'mo f}UblicJ Everyyear, The Alabama Lawyer editor,Robert Huffaker, spends some quality time with the presidentof tireAlabama State Bar,looking back Many Things But Never over!tis year i11office, and disC11ssing accomplishme11ts,disappoi11tmet1ts, Boring surprisesand t/1efuture. Forall of you who k11owthe cwre11tpresident, What is the biggestsurprise of R One Alabama licensed lawyer in your presidency? W California wrote me and said I BobbySegall, this is no small under­ was a clown and a disgrace to the bar. taking. By the end of the interview,[ 'lnat 1 got elected. 1 think my wife Sandy still is in shock. She thinks Did you respond and, if so, how? think Rohen had resignedfrom the she's the only one crazy enough to select editorialboard, Bobby had bee11 me for anything, and she's not sure she'd I carefully pondered my response. select me again. I thought anything I said should firedfrom hisfirm and Veronique, reflect the maturity and reserveof the who used to workfor Bobbya11d was t,JAnything e lse? office I hold. I also feltthat as a matter of courtesy and professionalism,I should "hiredaway" by Robert, had just n I've been surprised by how gencr­ promptly respond. So, 1 fitxedhim a note walkedout. w ous la\\')'ersacross this state are. saying,"No, I'm not, but you are." Not on.ly did lawyerscome up big for disaster relief,but the Birmingham Bar r., Have you.had any seriously nega­ Association raised a ton for Legal ~ tive reaction 10 your columns ServicesAlabama. Sam Franklin and Lee from lawyerswho actually practice in Pittman beaded up that campaign for Alabama? LSA,and the re.suitof that effort, although only a beginning, was inspiring. n Not to my face. I think it's possi­ I knew those big firms had more money r:il blc Justice Parker hasn't appreci­ than G-d (i.e., more than Jere Beasleyor ated some of my comments, but he was Bobo Cunningham, depending on your probably too nice to tell me that person• religion), but I didn't know they were so ally-either that, or he thought he would generous with it. get physicallyill if he had to look at me. Some friends disagreed will, some points r., You'vewritten some fairlycontro­ I tried to make, but that was just express­ ~ versial-and sometimes funny­ ing a different view. No one has been "Prcsident's Page"col umns. Have you insulting to my face. Alabama lawyersare had any negative reaction to them? nice that way.Generally, if they have

228 I U LY 2 0 0 6 something bad lo say about you, they 111'11It was a judgment caU.I agonized courage. [f I were writing about the war­ have the courtesy 10 say it behind your W about it, but ultimately decided it time courage of Audie Murphy or SgL back, which is definitely the way I prefer ,,...asn'trelevant to the topic, \\'hich was Yorkor some otlier war hero, I wouldn't it. Judge Nice'sl egislative and judicial necessarilyinclude that years after

(Alabama Republia,n Party Chair) TwinkleA ndress Cavanaugh didn't illw.i)'S treat you so nicely, clids he?

111'111\vinkJc has alwaysbeen nice 10 W me when we've been together. 1 renlly like her. We have a lot in common. A good friend of mine who used 10 work for the ACLUo( Alabama is a close rela­ tive of TwinkJe's. I think Twinkle has ACLU tendencies. She may be getting treatment for that, though.

F'iii'fHas there bun any response from ~ the public to anything you've written?

111'11Ye,,it turns out that in one of the W caseswhere JudgeCharles Nice overrode the jury's recommendation of death, the victim was tl1cdaughter of Miriam Shehane, director of VOCAi... Victimsof Crime and Leniency. Understandably, Ms. Shehaneclid no t think wcll of JudgeNice, or of my oolumn. She got Troy King to write the letter that is printed in this very issueof the I..mvyer (immediatelyfollowing this inter>•iew). Troy didn't think of writing anything on his own, but I don't blame him for trying 10 act tough during an electionyear. As you Th e most: difficultproblems require the can see from his letter,though, he's a pretty goodactor. One thing Troysaid is that my letter upset victims"across Alabama ." I'm m ost innovativ e responses. \\'hmd1C,h;od.. ,ololleproblo1a sorry about that, but Tdo want to oongrat• ulate you on the tremendous circulation loon,.A utUl]uc 11ppn.i.d1 nli\kcs a!I tJlC diffe rence.~ llSSl\'Sippi\ hllq'Jilk 1 tspond.\.\\1th IJ>-drph knowlc:dge growth TheAlabama uiwyer has apparent­ ly experiencedunder your leadership. She to stn-c)'OU:r local needs 111$t1U11l,:. Strength 10 airern;wona l rt.:,0urc~and rtSt'f'\'tl 1mmc:di;.Ud)~ wasp articularlyu pset that the column tailed1 0 mcntion that during the time ; MISSISSIPPI VALLEYTITLE Judge Nicewas on the Domestic Relations •• •••• INSURANCECOMPANY Court he receiveda suspension from the Court of the Judiciary.

i.,ti00-8,t3-J6t\8 1''\l.'W,W\'l,COM F'iii'fWhy did you omit that from your ~ column!

T 1-1F. ,\ I A RA ,\1 A I Al\ . l " f R 229 President's Page Continuedfrom page129

exhibiting such courage, the war hero How have you gone about doing mitted members of the ASBand leaders had failed to pay bis income taxes. I'm 1hat? in 1he Alabama LawyersAssociation. not saying anyone did fail 10 pay his income taxes-it's just a hypothetical. I've tried to set that kind of tone Frankly, that program doesn't seem in what I've written for Tire like it would generatewidespread Speaking of a hypothetical, what Alabama Lawyerand in my talks around interest across the bar. Did it? do you consider your biggest the stat<. More concretely tlian that, accomplishment as president! though, the Alabama Stare Bar, in con­ n Unbelievably so. The folks on the junction with 1he Alabama Lawyers r.J program were tremendous. They No one, at least to my knowledge, Association, put on the best program I've included Fred Gray,Wayne Greenhaw, has yet proposed impeachment. ever attended as a lawyer,and I think that who wrote an acclaimedbook about the That's better than the last two program helped demonstrate 1he kind of boycon. BillOark, Judge Truman Hobbs, presidents of our country. Other than atmosphere our bar ,vants . Sr., Rod Nachman, and Claudette Colvin that, I don'1 know that I have accom­ and Mory Louise Smith Ware, both of plished anything really.I've tried 10 help What was the program? whom refused to give up their seats on a create a tone or atmosphere for our bar Montgomery ciry bus before RosaPnrks in which all Alabama lawyers, no matter It was a celebration of the 50th did, and both of whom were plaintiffs in their race, sex, religion or national origin. Anniversary of Browderv. Gayle, the lawsuit It nlso included Judge U.W. could, and would, feet completely wel­ the case that ended the Montgomery Bus Oerno n, who spoke about E.D. Nixon. come and wanted. Regardlessof those Boycott. It was nlso a celebration of the Syd Puller, who was Judge Pronk birth factors, and regardlessof the area of events that Jed to the case and of the peo­ Johnson's first law clerk.spoke about him. law in which one practices, and regard­ ple involved in the case-the parties, the Judge Ginny Granade, who was the less of whether one represenls plaintiffs boycott participants, the lawyersand the granddaughter of Judge Richard Rives, or defendants, the Alabama Stale Bar judges. It was an all-day program, organ­ spoke about him, and Robert Potts, a for­ should be a place where aU Alabama ized under the primary leadership of mer law clerk for Judge Seybourn Lynne Jn\"}'erscan share their common con· Carol Ann Smith of Birmingham, but and now the chanccllor of the North ecrus and work 1ogcthcrfor our profes­ also with the help of Janet Akers and Dakorn UniversitySystem, came in Ii-om sion and for justice. Kendall Dunson, both of whom are com- North Dakorato speak about Judge Lynne.

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230 JULY 2006 Dean Charlie Gamble swnmed up the tbc commission more rcpr=ntative of grant reciprocity to lawym of good char­ day.All of these folkswere great. bar membership. The idea for at-large acter and fitness who have passed anoth­ members started when Fred Gray was er state's bar exam and who plan to Live What was attendance like? president, but this bar year was the first in Alabama or have their primary office time at-large commissionel'Sactually here. The Board of Bar Commissioners It varied throughout the day with served. Everyat -largecon1missioner has approved the task force's recommenda­ the lunch program having the served exceedinglywell, and one, tion at its meeting on May 19. It will now largest crowd. We had planned for a Merceria Ludgood, has served on the go to the Alabama Supreme Court for its maximum of 350 people, but after we ExecutiveC'.ouncil of the bar. My hope is approval."fhc commissioners also received450 registrations, we bad 10 stop that this taste of leadership will encour­ approved the recommendation of the taking them. age minorities, including womea, to seek task force for pro line viceadmission pro­ election to the co1nmission and to other • cedures for out-of-state lawyel'Shandling So the program was an unqualified wise increase their participation in bar capital puni>hn1cntcases or post-convic­ success? work. tion cri1ninaJ,natters in AJaban1aon a pro bono basis. The day was summed up best by Are there other things about The JudicialLiaison Task Force,chaired an e-mail l received the next day the year that you consider by Sam Franklin and Jere Beasley,has also from Ernestine Sapp, a fom,er bar com· accomplishn1ents? done excellentwork ft has proposed a new missioner and a partner of Fred Gray's. fl protocol for the bar's responding to unfuir really captures what a lot of other people You beaded up n task force that I criticismsof judges and al.sois undertaking said. It said, "Dear Bobby:Yesterday was a think did a great job. Your task to raise funds to help assure that new rare occasion in our legalcommunity. A force has recommended that Alabama judges get to go to judge school. day of healing. h is days like this that move our whole state forward. THANKS for your sensitivity and honesty. Equally as poignant is your article on "independ­ ence."I am pleased to learn of Judge Charles Nice. Thank you is much too simple but it is straight from the heart."

I'm guessing that made you feel pretty good?

h made me feel good about the effect of the program, but f didn't deserve the credit. The folks I mentioned before did all the work, along with their committee members, and the ASBStaff, especially Eddie Patterson and Susan Andres. Keith Norman, of course, over­ sees everything.

F'ii'1Has the ASB_done anything else to ~ promote actwe partmpatlon by minorities in bar programs and bar lcad­ el'Ship? ll'II The Board of Bar Commissioners W elects nine at-large members with 1-800-888-7454· (205)726-2391 the idea being to increase the diversity of http:// cumberland.samford.edu the bar commission along lines of race, sex, age and even geography, and to make

TIIE r\LARA ,\fA L..t\\ ' Yl:R 23 1 President's Page Continuedfrom page 231

Another accomplishment relates to the development of a Spanish Hotline. Although I've had almost nothing to do with it, sometimes when you appoint good people, you get to claim credit for the great work they do. The bar's Public Relations Committee, which alwaysdoes good work under its chair Scotty Colson, appointed a subcommittee on Spanish outreach chaired by Flynn Mozingo. That subcommittee worked with the Volunteer LawyersProgram and Legal ServicesAlabama to develop a Legal Hotline for Spanish-speaking people. This is an access-to-justicetype program, where folks who speak only Spa11ish can talk to someone in their native tongue SpanishHotline Pr-t,J«t Core l'attnan indixis'J rPpmsootat1K!S fromtM Alab.rmaSrats Bat. t.,,g,I Semces Alabama ard fXJlfllNOOS otmr and hopefully get directed to the legal statew.d,Hispanic apa'UQth. ASSmembers 1tbo ooaded up thefXOSJ(af1l wera fftt,n MoJtngo (bad row.leh r:e11tJ!(JM'l1 Scotty help they need, including to law firms Colson(bad nM>;r,ght ten!erJ .

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232 JULY 2006 that have Spanish-speaking resources. authority to determine what kind of result, despite that the chief justice and Another relates to mentoring. Pam deLiveryprogram is best (in terms of former Justice Gorman Houston urged Bucy and Ted Hosp lead a task force that quality and economy) for eacb jucLidal the bar conunission to endorse the com­ recommended a pilot project that will circuit. There has to be local input into mission bill. it declined to do so for the begin later this year. That task force did a the decision-making, but I believe the second straight year. ton of work, and I think it came up with statewide commission should have a program that has good potential. authority to make the decision. The Would it have passed if the bar The last area I'll mention is disaster problem right now is that appointed had endorsed it? relief. ln my opinion, the Alabama State lawyersare paid an inadequate hourly Bar had a tremendous response to rate, and whether they are entitled to be I don't know. Tbere was no oppo­ Hurricant'Katrina, but ('m even more reimbursed for overhead expense is sition to the lice_nsefee increase impressed by the work of the Volunteer pending in court. Becausethe bill to cre­ biJJ for the two years before this year, and Lawyers Program and Legal Services ate a statewide indigent defense corrunis­ it still cLidn't pass. I fed sort of like Alabama in preparing for future disasters sion did not solve the inadequate pay Tommy Wells,whom I think will be that we pray will not occur. There's an problem, the Alabama Criminal Defense unopposed for the presidency of the article about that in this edition of the LawyersAssociation opposed legislation American Bar Association thi.s coming Lawyer. to create the commission. I think the year,or the year after that. Tommy told ACDLAbeli eves the commission is a me that since he has oo opposition, his f'ii1 Youdidn 't mention the legislatively good idea, but its members don't want to chances are 50-50. ~ enacted increase in ]a\vyerHcense lose leverageby letting that pass without fees as an accomplishment.Wasn't the also solving the compensation issue. A$ a ASBbehind that?

R,I Yes.The Alabama State Bar has W tried to get that passed for three years now. Doug McElvydid a lot of work on it last year. I don't think there had been an increase in the license fee for something like 12 or 15years, and it w~s badly needed. It finally passed this year, but I give full credit to Doug and Keith Norman. I have enough baggagewithout being known as the tax-and-spend presi­ dent. By the way,may I ask you a question? r,JSure. mm ONESTANDARD CUIJSE {Yallle$9.50) 11ocder paced at www.M.mtwp.com. Am 1 boring you with these answers look forUlt compfirtt .-t:IGn OfdallM:$ n ontht outtltonio r torm. W as badly as I'm boring myself? EleganlmohoQony brown 9'11-jl8d1ea B1ac1C-.nnlsll!d. """" o;1ge - "'II, w cac,.- vmyl.,,,,.. ca;, .bioden.!!11 ...,. f'ii1 r don't ,..,antto answer that to v.llltblack YW1)'I SIC> case "" d'.nllie- · bulf,d., omw>, ~ your fucc.in accordance with the gold..,,..label co"""· ccrilllineddust procec1ion. Ef'IUI)' lhelook and"'' ol - . Staci< BlackBea uty' ' 68 namegold - onSll lne. wtJi~ ii>case , Sl.50..,,., preference you expressed earlier, I'll talk ExUbrls , S79'° The Esquire" •81" behind your back tonight at home. What, if any, disappointments have you had as bar president?

R,I J've had at least two. The biggest W relates to indigent criminal defense. We very badly need a statewide Blumberg~ce ltq • 800 LAWMART (529-627 8) Fax:800 ·-­ 561-9018 www.blumberg.com indigenc defense commission with ·--

I I/ l .-1 I A H A Al . \ l . 1 h ' Y f. U 233 President's

Page Continuedfrom page233

How did the chiefjustice take being rejectedby the bar commission?

He told me the commission was so tough, he was happy to escape the imposition of capital punishment

{JJWhat's your other disappointment? n Disappointment may be the W wrong word, but I wish we bad made more progresson the merit selec­ tion of appellate judges. Bill dark mi ­ talizcd tJie push for a saner way to select you can eliminate, or substantially judges when he was bar president,and he diminish, the obscene amounts of money definitely inspired me. that are spent and the terrible, mean-spir­ Yes. ited and un-judgelikeadvertising cam­ paigns that arc conducted. Veryfew peo­ ,.., Do you think that will ever come If you could,would you run again? ~ to pass,given the reaction of the ple in our state believejudges who take a Republican Party? ton of money from one special interest group or another, and hope to get more n No, like my good friend Newt W Gingrich, l believein term limits. I think it will in time. The state funds for future elections,won't be influ­ n enced in their decision•making. [t's c:riti• Besides,just your asking the question is W bar musl rt.n1ainconsistent and cal not only that judges be impartial, but probably causing blood pressuresacross persistent in its efforts. If Justice Houston the state to jump. I can hear bar mem­ reallygets fired up, I think it can happen. that people believethey are inipartial, nnd I don't think we have that now. bers everywheremumbling to them­ I know Boots Gale and the new presi­ selves,c'F'ooJ us once, shameon you. Fool dent-elect will be stro11glysupportive. I us t\vice,shrune on us." think Boots can be an inspiring leader in ,.., Has serving as bar president taken that effort ~ up a lot of time? ,.., We're running out of time. You ,.., Why will the RepublicanParty Yes. ~ have a reputation for being scmi­ ~ ever be persuaded? It has almost witty-a quality you've disgu.isedpretty every appellate judge now. What have you spent the most well in this interview. Do you have any­ time doing? thing witty to say in dosing? n Becausechanging to a system that W includes a judicial nominating Do you mean aside from trying to n I can tell you what my friend commission,appointment by the gover­ get Keith Norman to loosen up? W Von Memory said a few weeks nor, a judicia1evaluation committee, and ago. Von, who's my ogc, has announced a retention election is not intended to, Yes,aside from that? he's retiring from the practice of law, and won't, change the composition of the and he's way too young 10 do that He court. r truly believethe Republican I've spent a good deal of time was in a group oflawyers a few weeks Party,on reflection,will do what's best working on the merit selection of ago when someone asked wby he was for I.heState of Alabama,for the citizens appellate judges. Whenever folks have retiring. Vonsaid, "I told myself ten years of Alabamaand for justice. asked me to speak, unless they've desig­ ago that if I.heyever make Segallpresident, nated a different topic, I've talked about f'm quitring." ,.., '!winkleAndress Cavanaughsays Jneritselection. Even,vhen 1·vegiven ~ you'll never be able to take poli­ ethlcs CLE talks, I've said that I.heway we I guess it's quirting time for this tics out of the selection of judges. Do you selectjudges is criminal, and probably. intervie,Yas well. disagree with that? therefore, unethical. Yes,l hope after this intervie\\.' n Yes,to sorne extent she's right. ,.., Have you enjoyed serving as bar they'll let you remain editor of W Politicswill alwaysplay a role. But ~ president? T/JeAlabama Lawyer. •

234 JVLY 2006 LETTERFROM ATTORNEY GENERALTROY KING

STATE OF AI..ASAMA. OFF ICE OF THE AITORNEY G ENERAL "l.,AltAM .... $TATlt liOIU'$S T.ROY KING l I 900TH \JNION t""CET A'TTOf'l',Tr OCNICIIIA/,. MONT'OOMS:IIIV. AL ~t,O '3S4J 2<1,a,.7,)0() May 17. 2006 WWW,AG0,9TAT5 , AL,U'9

Mr. Bobby Segall President Alabama State Bar Post Office Box 671 Montgomery, Alabama 36101-0671

Dear Mr. Segall:

I just read your News Flash! in the May 2006 edition of "The Alabama Lawyer" in which you declared Judge Charles Nice an "unsung Alabama hero." I share your assessment that judges should be independent and that they should scrupulously obey "their sacred obligation to adhere to, and apply the law of the land ... independent of partisan (or any other) politics, of peer pressure and of public op inion." While I normally respect my grandmother's caution to never speak ill of the dead, because of the disservice that your column does to many dead and the pain it bas inflicted on many survivors that they left behind, I feel compelled to respond on behalf of all of them.

In direct contradiction of your premise that a hero on the bench should "apply the law of the land," you continue on to applaud Judge Nice for, on four occasions, overriding Lhe jury's recommendation that a convicted killer receive the death penalty. You describe this as a "courageous stand." To the victims' fam ilies who bad fought 10 secure the one just punishment, Judge Nice's actions were not the independence that you purport to celebrate, but a denial of the justice they sought. Take, for example, the case of Eddie Bernard Neal, who killed Quinette Shehane. Her case was one of ihose where justice was denied by Judge Nice as he commuted Neal's death sentence. Certain ly, all of us expect judges to craft sentences that are commensurate with the crimes committed. We do oot, however, expect judges to accept a job that inc ludes ihe responsibility of imposing the death penally in appropriate circumstances and then refusing to do so based upon thei r own moral convictions. In fact, to do so, is not "independent" but is a deception of the worst kind. What you fail to note in your article was that Judge Nice

(Co111i1111edon 11ext page)

T II l A I :\ R ,\ .\I ,--\ I .\ \\ ' \ [ R 235 Co111i11uedfrom page235

Letter to Mr. Bobby Segall May J 7, 2006 Page Two

never imposed the death sentence a single time during the entire time be sat on the bench. Instead, he brought a bias to the bench and then abdicated his responsibility to do justice as be advanced his own agenda. You also fail to mention that Judge Nice's misconduct was much more egregious th.an his refusal to apply state law in capital cases. In fact, eventually, he was found guilty of four charges of misconduct by the Court of the Judiciary.

Your column and your designation of Judge Charles Nice as an "unsung hero" unnecessarily inflicted new pain on victims across Alabama. Por many of us who stand at the side of the victims and seek to do justice for them each day, the heroes in Alabama, whether sung or not, are those who go into courtrooms across our land seeking nothing more than that justice be equa lly applied using scales that are proper ly balanced, not judges who place their thumb on the scales.

Sincerely,

. ~' eneral TK:oi

cc: Mrs. Miriam Shehane Mr. Keith Norman, Executive Director, Alabama State Bar Mr. Robert Huffaker, Editor, The Alabama Lawyer

236 J U LY 2 0 0 6 where good people become exceptionalla wyers

Cumber land School of Low is indebted to the many Alabama attor neys and judges who contributed their time and expert ise to plann ing and speaking at our Cont inuing Legal Educat ion seminars during the 2005 - 06 academ ic yea r. We gratefully acknowledge the cont ributions of the following individua ls lo the sem inars' success.

Scot! E. Adorns Michoel L. Hall Steve O len '79 Jeffrey H. Wertheim Jomes G. Adams, Jr. '86 Hon. Arthur J. Hones, Jr. Thomas L. Ol iver II '89 Jere F. White, Jr. '80 Jomes P. Alexander Hon. Don L. Hardemon '79 Hon. John E. Ott '82 John P. Whittington '72 David R. Arenda ll '75 Jeffery J. Hartley Jomes W. Parkman Ill '79 Ann K. Wiggins Prof. J. Mork Baggett Alicia K. Haynes '87 Samue l S. Partridge Cynthia Forman Wilkinson Henry Cloy Barnett, Jr. Kenneth D. Haynes '91 Lenora W. Pote '85 Jomes S. Williams '91 Katherine N. Barr '85 Stephen D. Heninger '77 James T. Potterson '01 Hon. Dwight H. Mary Lynn Bates '78 Joy M. Haward '02 Will G. Phillips, Sr. Williams, Jr. Jonathan L. Berryhill Nancy C. Hughes '91 William E. Pipkin, Jr. Beverly S. Williamson Prof. T. Brad Bishop '71 Dovid M. Hunt Mork B. Polson '7 4 Kelly Collins Woodfo rd Prof. Robert Boliek Elizabet h H. Hutchins '81 Lindo W. Pope '89 Hon. Jomes W. Woodroof Jolee H. Bollinger '95 Wyndo ll A. Ivey Andrew J. Potts Joshua J. Wright Hon. Koren 0. Bowdre '81 Gregory R. Jones '81 Patricio J. Pritchett '90 Tomula R. Yelling '99 Christine C. Brandt Anthony A. Joseph '80 Hon. Caryl P. Privett Han . Houston L. Brown '73 Victor Kelley '81 Hon. R. Dovid Proctor Hon . Jock Caddell Lawrence T. King '88 Hon. T. Michael Putnam Louro A. Calloway Kyle L. Kinney '92 Barry A. Ragsdale Hon. John L. Carroll '7 4 John T. Kirk Kelly D. Reese Charles H. Clark, Jr. '83 Donald B. Kirkpatrick II '93 Todd P. Resavage Prof. Donald Q. Cochron Con ley W. Knott •94 Jomes A. Rives G ino D. Coggin '93 Alvo M. Lomberi George W. Royer, Jr. Hon. Benjamin G. Cohen John T. Lanier '00 John D. Saxon '76 Alon B. Lasseter '93 Kirk C. Show Hon. L. Scott Coogler Roberi W. Lee, Jr. '78 Hon. Greg Show '82 Deane K. Corliss '89 Hon. David N. R. Wendell Sheffield '87 C. Taylor Crocket! '93 Lichtenstein '78 Perry G. Shuttlesworth, Jr. J. Patrick Dorby Colin H. Luke Susan J. Silvernail '90 Chris topher E. Dorough Robert E. Lusk, Jr. W. Scott Simpson •93 '99 Robert P. MacKenzie Ill '84 Hon. James S. Sledge (rat.) Susan D. Doughton Dovid H. Marsh '81 Daniel D. Sparks '86 Hon. Joe l F. Dubino '73 Prof. Marcia L. McCormick Thomas J. Spino 78 J. William Eshe lman '69 Doug las McElvy W. Stancil Starnes '72 Down Stith Evans '98 James H. Mcferr in '87 William B. Stewori '90 Gregg B. Everett Rebekoh K. McKinney Prof. Belle H. Stoddard '78 Mory Hayes Finch J. Anthony Mclain '77 Jomes R. Sturdivant Prof. Michael D. Floyd Fronk McRight Janel Teer Frede rick L. Fohrell Hon. Tamaro 0. Mitchell Wendy N. Thornton '96 Slaven W. Ford P. Russel Myles '86 Lynne Riddle Thrower '82 Richard M. Gaol ·97 Poul D. Myrick Earl P. Underwood, Jr. Robert T. Gordner '93 Chief Justice Drayton Hon. J. Scott Vowell Coria C. Gilmore Nabers, Jr. Albe rt L. Vreeland II Mac B. Greaves Patrick K. Na kamura Charlie D. Waldrep '7 6 Years following names W. McCollum Holcomb Prof. Leonard J. Nelson Ill Carol J. Wallace '79 denote Cumberland School '82 Pot Nelson A. Wilson Webb '84 of Low alumni. Executive Director's Report

Keith B. NornJan

Do AmericansWant an IndependentJudiciary?

be theme of this year'sLaw Day, this virtue does not make for exciting "Liberty Under Law-Separate campaigns or memorable candidates. T Branches,Balanced Powers," made Perhaps, judicial candidates and their me think, what kind of judiciary do handlers are telling the electorate what Americanswant? As I write Lhis''E.xecutive they think the electorate wants to hear. Director'sReport:' \"e arein Lhemidst of Indeed, as long as judges are required to the primary campaignand the acrompa­ seek office in the crucible of electivepoli­ nying barrage of politicalmessages from tics, we can hope for something different, candidatesfo r all electiveoffices, including but we should not expect iL judicial office.Sadly, the majorityof state­ Do citizens desire impartial, fair-mind­ ments or paid politicalads emanating ed jurists? Have they have grown cynical, from the camps of judicial candidateslook no longer believing there is such a thing or sound like the messagesof candidates as a fuir and impartial third-party seekingexecutive or legislativeoffice. arbiter? Have we lost our appreciation l have alwaysbelieved that judges can for an independent judiciary? l don't render no higher duty than simply 10 do know the answer to these questions, but J justice. Black'sLnw Dictio11arydefines sure hope the behavior expressedby '(just.ice" as, uTheconstan1 andperpetual some fons and players toward umpires disposition 10 render every man his due:• and officials is not bow citizens feel The America11Heritage Dictionary defines about judges and the role the judiciary. it as '(fair handling; due re,vardor treat­ The field of competitive sports is ment." We should never require more replete with examples where fans, play­ from our judges than their dedication to ers, coaches or managers are quick to this virtue demands. Apparently, though. accuse the official or umpire of being

23 8 J U LY 1 0 0 6 incompetent or biased when their team is unwilling to accept decisions of a fair and fuith attempts to perform the duties of uot getting the benefit of tne "calls~Let disinterested party who judges or offici­ office."This so-called"j udicial accounta­ me state that disagreeingwith an offi­ ates at a contesLThese people seem to bility" is, 10 my wayof thinking, no differ­ cial's cnJJat a baUgame is a ritunl that prefer someone who only sees the contest ent from an adult tee baJJcoach threaten­ has long been a part of sports. What I am or dispute from their point of view. ing a 12-year-oldumpire just becausehe referringto, however,i s the as.swnption Ours is a competitive society and we disagreedwith the call. that the umpire or officialis making a generallyhate to lose. When we do, it is a The featureof our systemof government call based on something other than his or lot easier 10 blame someone else than that has most impressedother countries her best judgrnenL Many funs and players accept the fucts or possiblyour own around the world for many yearsis our no longer believethat an umpire or offi­ shortcomings. Certainly,competition i.s adherenceto the Ruleofl..aw. The institu­ cial is merely calling it as he sees it. A fme for athletic events. Judicialproceed­ tion which has made this possibleis an recent episode has made me realize this ings, ho,'lever.are not competitive independentjudicial branch of govern­ attitude is fur-reaching. endeavors.They arc for resolvingthe dis­ ment. 'Thosewho support thesejudicial For those who might not be familiar,tee putes of parties by discerning the truth accountabilityinitiatives are essentiallysay­ ball is baseballfor youngstersfive to six and followingthe law.Very often I ing that they no longerwant an independ­ yearsokl The game is designedto famil­ receivecalls and letters from parties who ent judicial branch of governmenLTh= iarize th= young playerswith the rudi­ have had a rourl rule against them in a "initiatives"should frighteneveryone who mentary asp«ts of hitting and fielding. legal proceeding.They routinely rail that understandsthe importance of checksand The playershit a ball that has been plaet-d the •'judge,vas bought"or in "cahoots" balancesin our tri-partite form of govern­ on a stationary tee and the opposing team with the other party. For these parties, me111.Witb a number of AmeriC30snow attempts to 6eld the ball.Teams play six this is the only way they can explain why eschewingjudicial independenceor deviat­ inningsand jnnings change,vhen the tean1 the court failed to rule in their favor. ing from the Ruleof Law,it is doubtful that batting makesthree outs, which is usually Sadly,they refuse 10 believeanything else. we will Jongcontinue as a worthy model by having their runners raggedout, or An even n1oretroubling 111anifestation for other nationsto emu.late. scoring six runs. A finalscore is not kept. of this attitude has recently taken place in This attitude seriouslycompromises an The game officialis usuallya teenager South Dakotaand Montana.A constitu· independentjudiciary. Requiring more standing behind home plate that cnJJsthe tional amendment has been proposed in civicscourses in our schools might help outs and keepsup with the number of both states,and possibly others, to provide ameliorateth is growingproblem by runs so that the innings can change. for the recnJJof judges for any reason.The emphasizingthe importanceof co-equal Severalweeks ago, my 12-year-oldson, initiativeis called"JAlL"-Judicial branches of governmentand the impor­ who has played baseball since he was five, AccountabilityInitiative Law-and is lead tance of judicial independence.As a pro­ was umpiring a tee ball game. He made a by a Californialawyec Neve r mind that fussion,we should all recognizethe seri­ c:iUthat allowedone of the playersfrom states call removejudges from officeeither ousnessof this problem and do our best to the team at bat to score n run. The adult by impeachmentor the ballot box. Under counselour clientsabout the importance coach from the opposing team, on which the proposals in South Dakota and of an independentjudiciary. Final ly,judi­ his son played,vehemently disagreed Montana, a recallpetition can be filed for cialcandidates should be mindful that with the call. He berated my son for any reason, without regard to a judge's campaignsmimicking the campaigns of malting the call and pointed a bat in his good-fuithefforts to perform the duties of legislativeand e.'

1 II I:. ,\ l 1\ II,\ ,\/ .\ I ,\ l\ ' l I: J.l 239 Bar Briefs

Maynard, Cooper & Gale PC Association'sTaxations Section Meeting announces that Stephen W. Still has in May.He currentlyserves as chair of been appointed to the 2006 Lawyers the S Corporation Committee of the Council of The Financial Services American BarAssociation Section of Roundtablt. The Financial Services Taxation, has been listed in &st Lawyers Roundtable is the premier forum in in Taxationsi nce 1995and is a Pellowin which leaders of the United States the American CollegeofTa.x Counsel. financial industry determine and influ­ He bas served as chairman of the ence public policy issues. AlabamaState Bar'sTux Section, presi­ dent of the FederalTax Clinic, Inc. and Holland & Knight of the BirminghamTax Forum and as announces that Tampa H an adjunct professoroflaw for both the partner William R. Lane, _ Universityof AlabamaSchool of Law's Jr. has been named a LLMin Taxationprogram and Fellowby the American Cumberland School of Law,teaching College of Trust and t.nt partnership taxation. Estate Counsel (ACTEC) at the associ.,tion'srecent annuaJ meet­ J. Mark White, a founding ing. member ofWhice Arnold ACTECis a professionalassociation Andrews& Dowd PC, was consisting of approximately 2,700 recentlyinducted into the lawyers from throughout the United InternationalAcademy of States. Fellowsof the College are nomi• Trial Lawyers(IATL). ...,.,. nated by other Fellowsin their geo­ White, president of the graphic area and are elected by the Birmingham Bar Associationin 2004, membership at large. Fellowsarc joins 12 other Birmingham lawyers in selected on the basis of professional this national organization, including reputation and ability in the 6elds of other former BBApresidents Clarence trusts and estates and on the basis of M. Small, Jr., Fournier J. Gale, JTI, having made substantial contributions Thomas W. Christian and Stephen to these fields through lecturing, writ­ Samples. ing, teachingand bar activities. The International Academyof Trial Lane earned a Bachelor of Arts, cum Lawyerswas chartered in 1954.Its pur­ /aude,in 1977,a master's of public pose is to cultivate the science of administration and Juris Doctorate in jurisprudent(:, promote reforms in the 1980,from the Universityof Alabama, law, facilitate the administration of jus­ and a master's of laws (taxation) in tice and elevate the standards of 1981 from the University of Florida. integrity, honor and courtesy in the legal profession. laUJ'11Calloway, director of the White graduated from Auburn in Alabama State Bar's Practice 1969 and received his law degree from Management AssistanceProgram, has Cumberland Law School in 1974. • been appointed lo a three-year term as a member of the governing council of the ABA Law Practice Management Section. In addition, she has been appointed to serve as secretary of the ABATechshow 2007 Planning Board.

Ronald Levitt,a shareholder with Sirote & Permutt PC, participatedin a pancl presentation of"Redemptions lnvolving S Corporations"at the American Bar

24 0 JULY 2006

Memorials

]OHN A . CADDELL On February 7, 2006, death came to John A. Caddell of Decatur. He was 95 yea.rs old. Widely, if not universally,John Caddell was recognized througho ut the state as dean of the Alabama legal profession. His name ,,;assyno nymous,,;ith honor, integrity, unsurpassed excellenceat the practice of law and derucated service to his community and to bis fellow ma.n. For over 70 years Johnny practiced law in Decatur and Morgan County, continu­ ing in active and effectivepractice until a few days before his death. His age notwith­ standing, Johnny was more often than not the first in tlie officeand the last to leave even until the week before his dealh. While he lived in and loved Decatur and Morgan County, he was well-known Johnny was called to serve briclly as the and admired by most of the lawyers interim university president. throughout the state. His reputation as While serving on the university board, both a lawyer and a dedicated public ser­ Johnn)' chaired the search comm.illeethat vant was the standard to which all lawyers led to the engagement of Dr. Frank Rose in Alabama aspired but few achieved. as the university president and he also wns John Caddell was born in Tuscwnbia directly engaged in the efforts that on April 23, 1910. His family soon brought Coach Paul "Bear" Bryant to the moved to Decatur. Educated in the pub­ university.Prom the time tl1atuniversity lic schools of Decatur, he attended the identification by automobile tags became University of Alabama, graduating with a available, until his death, Johnny's car B.A.degree in l 93 L. Thus began a life­ proudly bore the universitytag number long love affair between John Caddell AA16 ~ It would be impossible to find any and the University of Alabama. In 1933 citizen of this state who has made a he received his law degree from the uni­ greater contribution to the Universityof versity,and in 1992, he was honored by Alabama or, indeed, to the cause of educa­ the university ,vith a honorary doctorate tion in Alabama than did John Caddell. of laws of degree. Upon graduation from Jawschool and Active in affairsof the student con1mu· admission to the state bar in 1933,Johnny nity even while attending the university, immediately began his practice in Johnny became a member of the "A Club," Decatur. At the time of his death, 73 years "Pi Kappa Alpha"social fraternity nnd later, he was the senior partner of Harris, "ODK and JASON$" honorary fraterni­ Caddell & Shanks PC. His skill and ties, and Phi Kappa Phi legal fraternity. knowledge of the law have been constant· In 1954, Johnny was appointed to the ly recognized and applauded by the bench University of Alabama Board of Trustees. and bar throughout the state and beyond. He continued actively in that office until Perhaps tl1emost eloquent testimony to 1979 when he became a trustee emeritus. his surpassing skills was the fuct that, at In 1975, while Johnny ,vas serving as 95, he was still the attorney of choice for chairman of the university's board of many individual, corporate 811dgovern­ trustees, then-President Dr. David mental clients who recognized his unique Mathews was called LO national service as abilities and unequaled understanding of a member of President Ford's cabinet. complex legal issues.His mastery of the

242 JULY 2006 lawwas a constant work in progressas he Founding member, Universityof Barrett C. Shelton, Sr. Freedom Award, alwaysstayed abreast of new and evolving Alabania LawSchool Foundation, and 2005. legalconcepts and practi~. fur more member of faecutivc Committee of Morgan County Minority faithfuUythan lawyershalf his age. Board of Directors from 1961 until DevelopmentAssociation, Community While Johnny's talents and energy were death. InvolvementAward, 2005. alwaysfocused on the practice oflaw, he Founding member, Farrah Law Society, also played a central and effectiverole in Honored by Decatur City Board of and Trustee from 1965 until death. \\'ide·rangingpublic service in Decatur, Education with naming of a school Morgan County, and throughout the Member,Alabama State Bar, Morgan complex for him and another Local state. For more than a half-century,John County Bar Association,American Bar civic leader as the Banks-Caddell Caddell was the chief spokesman, organ­ Associationand American Judicamre Elementary School. izer and leader of virtually every worth­ Society. Pcrcru1ialE.xecutive:, d1airperson or while community enterprise in Decatur Fellow,American Collegeof Trial principal fundraiser of Morgan County and Morgan County. He worked tirelessly Lawyers,1961 until death. United Way or its predecessors, for and gave generouslyto improve and Hospice of Morgan County, and virtu• strengthen programs of the Universityof Director and chairman, Board of ally every other charitable organization Alabama,particu larly its medical school. Diretors, First National Bank of that has e,cistedin Decatur for the past Whether a task was a needed e.,pansion Decatur, 1966-1981: director emeritus, half century. of community health f'aciutiesor services, AmSouth Bank, 1975-1981. stronger support for education, hospice Rarely,there comes upon the stage of Brotherhood Awardof National programs,support for charitablework of hunian experience a person whose life is aUki .nds, efforts to improve and strength­ Conferenceof Christians and Jews, a complete fulfillment of the divine com­ 1979. en racial and community relations,or per­ mand that we do justice, love mercy and suadingsome ne\v industrythat Decatur, HumanitarianA\oJard) Decatur walk humbly with our creator. Johnny Morgan County or north Alabamawere Chamber of Commerce, 1985. Caddell was such a man. To the extent the only sensiblechoices, John Caddell that mere words can describe and define Member,Decatur Chamber of was the "Go-To Guy."He alwaysknew the noble life, those words would be Commerce, 1938 until death; president, how to make good things happen. integrity,humiLity, honor, dedication, 1943-1944. While anending the Universityof selflessness.love, compassion, and excel­ Alabama,Johnny met Lucy BowenHarris Member,Decatur KiwanisClub; presi­ lence in all things. These words remind and they married in 1935. Sadly,Lucy dent, 1939. us of the qualities that are alwaystaught, became a victim of A11.heimerand died in Member,Decatur General Hospital rarcly learned and even more rarely prac­ ticed. However,for almost 96 years, these 2002. JohJlJly and Lucyhad fom children, Foundation, 1983-2003; chairman, three sons, Tom, Jackand Hank, and one words have defoied and described the Life 1983-1985. daughter, Lucinda Bel)of Mobile. of John Caddell. His Lifereminds us that Fittingly,the three sons are lawyers.one Counsel to Committee of the House of we, LikeUlysses, are created to strive for being a federalbankruptcy judge. Johnny Representativesof the United States, mankiJld's iuost noble virtues; to coo­ was also survivedby eight grandchildren. 1944-1945. stantJyseek nc,v avenues of servicet to Alwaysmindful that spiritual life and The Golden TrowelAward , Decatur find through faith the assurance of a growth are essentialcornrrstones of all KiwanisQub , 1987. bright today and even brighter tomor­ lasting human virtues and values, John row; and never to yield to a view that the Caddell was a faithful member, elder and Elected to AlabamaAcademy of life of man is defined or limited by years supporter of the First Presbytccian Honor, 1977. or fears. Time was not his master, only au Church of Decatur. He not only spoke Member,State Democratic Executive opportunity for service to be rendered. He ,vas, in Lhetruest SCn$e,a renais.s;t.nc;e the languageof Christian faitl>,he Jived it Committeeof Alabama,1938 - 1950. everyday. n,an. A complete catalogof John Caddell's Decatur Rotary Club. Paul Marris The bench and bar of Alabama may well-deservedhonors would require far FellowAward, 1990. take justifiablepride in the example that more space than all the pages of this George F. Hixson Fellow,1998. John Caddellset for all of us. He under­ journal. Some, however,must be listed to stood and acceptedthat the honor and display the remarkablescope and impact Tutwiler Award, 1980. privilegeof practicinglaw carries the obli­ of this man's life. DistinctiveImage Award, 1982 gations of honesty,dedication and service; and that the practiceof law is a wayof life, National president, Universityof AlgernonSidney SullivanAward, 1984. not just a way to make a living. Alabama Alumni Association,I 953. DistinguishedUniversity Alumnus In the life and service of John Caddell Member,Board of Commissioners, Award, I 986. we have seen and experienced the unmis­ Alabama State Bar, 1939-1954; Board takable proof that man need not be a United Wayof Morgan County, lra Lay of Bar Examiners.1950-1951; prcsi· slave to his mortality,and that God did Award,2003. denc,Alabania State Bar, 1951-52. indeed creat.en,an in His ovvnimage.

T II [ r\ l ,\ fJ ,\ ,\I A LA I\ r l:. U. 243 Memorials Continuedfrom page 243

EVAN AUSTILL

EvanAustill, a member of the Mobile civic and businessorga ni1.ntionsand \\13S He left surviving him his wife of 41 Bar Association,died in Mobile October also a member of the Country Club and years, Ruth Sullivan Austill;his daughter, 16, 2005 at the age of 70. Austill was a the Athclstan Club of Mobile. Elizabeth Harris of Mobile, and his son, native and lifetime resident of Mobile, Austill served with the U. S. Military Nashville attorney £van Austill, Jr.; his and an avid hunter and fuherman with a Reserveand ,vas retiredfrom lhc reserves brother, Mobile attorney Jere Austill,Jr.; great reputation as an outdoorsman. He with the rank of major. and his sister, Mary Samford of Opelika, was a Phi Beta Kappa at the Universityof During the lifetime of his father, his Alabama, together with two grandchil­ Alabama, from which hereceived a bach­ firm was known as Austill,Austill & dren, Austill Harris and Caroline Harris, elor's of sciencedegree, and from which Austill,which developed an outstanding and nwncrous othu family members. be later was awarded his law degree. reputation in the field of real property -Ben Rowe,president, He wasan active member of various and mineral rights litigation. MobileBnr Associario11

A . STEWART O)BANNON, ]R .

A. Stewart O'Bannon, Jr.,a distinguished sponsor for the AlabamaJudicial Article, and longtime member of the Lauderdale which created the current system for County Bar Association,passed away on courts in Alabama and which served as a February IS, 2006at the age of 75. model for courts in many other states. He He ,.,asa nativeof Bre\rton, and served also authored the legislationcreating Joe in the United States Army, stationed in WheelerState Park in LauderdaleCounty. the Panama Canal Zone. He graduated He served on the Alabama Boardof Bar from the Universityof Alabama Law Commissionersand as counsel for or a School with an LLBin 1956. member of many boards and commis­ He began practicing law with the firm sions, locallyand statewide.He was also of Bradshaw& Barnett in Florence, and active in local and state politicsand a loyal then founded the firm of O'Bannon & member of the AlabamaDemocratic Party. O'Bannon. He practiced law for nearly 50 He was a longtime member of Trinity years. EpiscopalChurch in Florence. He served as the Alabamasenator for He is survived by his wife, Martha G. the Old SenateDistrict I (Colbert and O'Bannon, and three children, including Lauderdalecounties) from 1966until A. Stewart O'Bannon, ill, an attorney in l 974. During his terms, he served on the Florence, three step-children, nine grand­ first Alabania ConstitutionalRevision children, a sister and brother, nieces and Commission (1969-73)and was the senate nephews.

244 JULY 2006 CLARENCE F. RHEA Often on these pages we read about in l 943 and law degree from the someone being called a 4(la,vyer'sla,ryer., • University of Virginia in 1948, and It goes without saying that those who passed the bar of both Alabama and knew Clarence F.Rhea would call him a Vuginia. la,vyer,sla,vyer) but Mr. Rhea was so He served as a member of the much more than thaL A better descrip­ Association of Trial Lawyersof America, tion and one that he would probably pre­ the Alabama State Bar and the American fer would be a "client's lawyer."General JudicatureAssociation> and ,-vasad n1itted Rhea, as many called him, MIS complete­ to practice before numerous federal cir­ ly dedicated to his clients. His philosophy cuit courts and the United States MIS that if someone sought his services Supreme Court. and Feltthat they had been wronged or He continued to serve his clients as a mistreated, a lawyer worth his or her salt "client's lawyer" in Gadsden for 53 years should strive 10 help, 10 serve. His philos­ until only days before his death on the ophy concerning service\'J3S not lilnited December 27, 2005. 10 law practice, but encompassed his Oarence was mo.rried to the former entire life. General Rhea's life was one of Marie Cannon for 58 years. He met service. He served in Europe traveling Marie \\.'hen she was an Am1y nurse in with 15,000troops on the Queen Mary EagleScout Project and Board of Review, Karisruhe, Germany. The)' have three without escort. He served in acrive mili­ as well as the Etowah County and sonsand a daughter. Bill, Donald and tary service for five years, including com .. Alabama Society of the Sons of American Richard all practiced law with their bat iJ1Germany in World War IJ. Revolution. He served as district and father. Bill is now a circuit judge in Following the war he attended several conference lay leader of the United Etowah County, and Donald and Richard sessions of the Nuremberg trials. He Methodist Church, as Sunday School co ntinue to practice law in Gadsden served the armed forces in Holland and teacher and as delegate to the under the firm name Rhea, Boyd, Rhea & later with tbe 31st Infantry "Dixie" Conferences of the United Methodist Coggins.T heir daughter, Marie Division during the Korean Conflict. He Church. He also served as judge advocate Singleton, practices dentistry in Eufaula. served as brigadier general in the for 25 years for the Civitan Intemarional The life, spirit and effect that Clarence Alabama Army National Guard and was Alabama District, ultimately being F.Rhea had and continues to have are commander for five years of the 31st named "lnternational Fellow• the highest too large to place on a printed page. A Armored "Dixie" Brigade. He served as honor a civitan club can bestow on one few years ago he was asked if he planned national presidem of the 84th Infantry of its members. He served on the board to retire any time soon. His response, "It's Division "Railsplitter"Society and the of the Salvation Army for 30 years, the a pleasure to be in the law practice, and first national president of tl,c 31st Choccolocco Council of Boy Scouts and as long as I feel good, I'll be in the prac­ lnfanrry "Dixie" Division Society. the Boysand Girls O ubs of Northeast tice."Clarence F. Rhea did just that. He He served as a 33rd DegreeScottish Alabama. left us all much the better on the 27th Rite Mason and past master of the Clarence F.Rhea received his B.S. day of December 2005. Gadsden Masonic Lodge. He served the Degree from the Universityof Alabama -GregoryS. Cusimano

1 IJ L \ L \Ii ,\ j\J .\ L .\ \t } LU 245 Memo ri a Is eo111in11edfrom png, 245

CURTIS HOWE SPRINGER Curtis Howe Springer,a distinguished ,ould sing religiousand Broadwaysongs member of the Alabama State Bor,died and would often sing to total strangers in a May 7, 2006 at the age of 83. restaurant or to groups of people anytime Curtis was born in Wheeling,West and anyplace.He would sing whilehe was Virginia on November J2, 1922.When he in the hospillllor in his home when people was just a smaUchild, he moved with his would come to visithim. Curtis loved to family to Mentone, Alabama and then to playgolf and tennis and support the Birmingham.Curtis attended the public Universityof Alabama,especially the scl>oolsin Birminghamand graduated Crimson Tide footballteam. Everyone from the historic Ramsey High School. who ever knew Curtis has a humorous On his 13th birthday, Curtis enlisted in "Springer" story that they can tell and that the United States ArmyAir Corps, and willlive with us forever. became part of what Tom Brokawcalls Curtis served as chairman of the "the Greatest Generation."He served our administrative board of his church. He nation faithfullyduring WWII. When the taught Sunday School. He wa, a lay \'I.trcame to an end, Curtis came back speaker. He led the singing for the home and enrolled al the Universityof Christmas service al the Tutwiler Prison Alabama and became an active member for Women each December.He served o( the SAE fraternity and the National served 27 years unt;I his retirement in behind the scenes in many anonymous LeadershipFraternity, ODK. He served as 2000.Judge Springer's tenure as a munici­ ways helping people who were struggling business manager of The CrimsonWhite pal judge is believedto have been the with personal problems. student oewspaper.Curtis graduated longest in Montgomeryhistory. He mixed Curtis Springerwas devoted to his wife from Lhe Universityof Alabama in 1949. humor with dignity and sternness during and children, having been married to Thereafter,he worked in the office of his 27 years on the bench. The honesty, Mary Haden for 56 years and being CongressmanGeorge Andrews in integrity and fairnessthat he maintained blessedwith three children: a daughter, Washington,DC and then came back to as a judge spoke volumesof his devotion Dru, and her husband,Harris; hvo sonsJ the Univmity of Alabama School of Law to the Rule of Lnwand to the city and citi­ John, and his wife,Glenn, and Rocky,and where he graduated in 1952. zens of Montgomery.He lovedand his wife, Margie;and nine grandchildren. While Curtis was a student at the respectedthe staff at the Montgomery Curtis's stated philosophy of life was, Universityof Alabama,he met and fell in MunicipalCourt and the police offietrS "'A'hat you do for someone else is what lovewith Mary Haden Whatleyfrom who put their liveson t.hcline everyday. lives after you." In Curtis's case, much Opelika.They were married July 30, 1949 Curtis was a lovableguy. He had a large will live after him because he did so and celebratedover 56 years of married circleof friends.One of bis dear friends much for so many.The world is richer lifeat the time of bis death. Io 1952, said,"\%en Curtis walkedinto your room, because Curtis Springer lived and loved O,rtis began his legalcareer as a practic­ you feltas though Santa Claushad arrived. and worked and sang and left his foot­ ing attorney in Montgomc.ry. He served He was alwaysso jolly and brought so prints. He was a true credit 10 the bench from 1967 until 1971as a member of the much laughter to any group. Curtis was and bar of Alabama,as well as an inspira­ AlabamaHouse of Representatives.In alwaysthe lifeof the party."He lovedto tfon for all who lmew him and who seek 1973,Curtis becamea municipalcourt sing. He sang in the choir of the l'irst to also honor the legal profession. judge in Montgomeryand faithfully United MethodistChurch for 27 years.He -Onkley Me/1011,Jr., Montgomery

246 I U LY 2 0 0 6 GEORGE F. WOOTEN GeorgeF. Wooten, a former member of not seek re-dection in order to return to fessional life of George F. Wooten will the TalladegaCounty Bar and Nabama his practice which he dearly enjoyed. He serve os an inspirational guide. His best State Bar,died peacefullyJanuary 11,2006, served as a member of the Nabama State expression of what a lawyer should be at his retirement home in Charlottesville, Bar Commission for 16 years. He was a was not just a theory-it was exemplified Virginiaal lheage of 91. He retired after 50 dedicated member at the First Baptist by his life's work as a iruc professional in yearsof practicinglaw at Dixon,Wooten, Church in Talladegawhere he served on every sense of the word. He was known 11,omton, uirpenler, O'Brien, Lazenby& !he board of deacons for more than 50 by all as a person of the utmost integrity. Lawrence.He waspreceded in death by bis years and he taught Sunday School for He was also a Christhui lawyer and bis wifeof 64 years,Jane Wooten. manyyears as \'lell. fuith was part of his everyday life. He was a proud graduate of the ru long as lawyers practice their pro­ - 0. Stanley 'f'homto11 University of N,1bama School of Law. He fession i.n the geographical area of served one term as a circuit judge but did TaUadegaCounty, the personal and pro-

Massey, Curtis Aaron Dadeville Bahakel, Cy Nesibe Admitted: 1975 Self, John Wilford Charlotte, North Carolina Died: March 26, 2006 Decatur Admitted: 1947 Admitted: 1966 Died: April 20, 2006 Poellnitz, Richard Hooker Died: April 13, 2006 Greensboro Barton, James Clifton Admitted: 1949 Shaw, John Mark Birmingham Died: October 31, 2005 Childersburg Admitted: 1950 Admitted: 1990 Died: April 17, 2006 Powell, Charles Arthur III Died: March 14, 2006 Birnunghan1 Harrison, Steven Franklin Admitted: 1964 Young, Edward Michael Tuscaloosa Died: March 15, 2006 Columbus, Georgia Admitted: 1978 Admitted.: 1984 , Died: March 17, 2006 Rockefeller, Calvin Seely III Died: April 14, 2006 Tuscaloosa Admitted: 1996 Died: April 11, 2006

I H I A L .-\ RA ,\I A I A \\ ) I R 247 Disciplinary Notices

Notice Roger Dale Centers, whose whereabouts arc w1known, must ans,ver the Alabama State Bar's formal disciplinary charges within 28 days of July 15, 2006 or, thereafter, the allegations contained therein shall be deemed admitted and appropriate discipline shall be imposed against him in ASB No. 04-309(A) by the Disciplinary Board of the Alabama Staie Bar. Dimplinary Bar,Alabama State Bar

Petition for Reinstatement

The Supreme Court of Alabama entered an order based upon the decision of Disciplinary Board, Panel JU, reinstating fom1er Cullman attorney Edwin Charles Glover 10 the practice of law in the State of Alabama effective Macch 27, 2006. (Pel. for Rein. No. 05-04]

The AlabamaMandatory CLE Commission continually evaluates and approvesin-state, as wellas nationwide,programs which are maintainedin a computer database.All are identifiedby sponsor, location, date and specialtyarea. For a listingof current CLE opportunities,visit the ASBWeb site, www.alabar.org/cle.

248 JULY 2006 PublicationsOrder Form The Alabama State Bar is pleased to make available ..... to individual attorneys, firms and bar associations, ALABAMASTATE BAR at cost only, a series of brochures on a variety of legal topics of interest to the general public. Below is a current listing of public information brochures available for distribution by bar members and local bar associations. BROCHURES To Serve the Public $10.00 per 100 Qty __ $ __ ... Highlights and details of bar public service programs from the TO SERVE THE PUBLIC video presentati on. !Aw As A Career $10.00 per 100 Qty __ $ _ _ ... Information on the opportunities and challenges of a law career today. IAwyers a11dLegal Fees $10.00 per 100 Qty __ $ __ ... A summar y of basic legal procedures and common legal questions of the general public. Last Will & Testament $10.00 per 100 Qty __ $ __ ... Aspects of estate planning and the importance of having a will. Legal Aspects of Divorce $10.00 per 100 Qty __ $ __ _ ... Offers options and choices involved in divorce. Consumer Fi11ancel"B11yi11gOn Time" $10.00 per 100 Qty __ $ __ _ ... Outlines important considerations and provides advice on financial matters. Mediatio11/Reso/11ingDisputes $10.00 per 100 Qty __ $ __ _ ... An overview of the mediation process in question-and-answer form. Arbitration Agreements $10.00 per 100 Qty __ $ __ _ ... Answers questions a bout arbitration from the consumer's perspective. Adva11ceHealth Care Directi1•es $10.00 per 100 Qty __ $ __ _ ... Complete, easy to understa nd information about health directives in Alabama.

ACRYLIC BROCHURE STAND $ 5.00 EACH Qty_$ __ ... [ndividual stand imprinted with at torney, firm or bar association name for use at brochw·e distribution points. One stan d per brochure is recommended. Name to imprint on stand: ------l\1ailiugAddress: ______

Shipping & Handling $ 5.00 TOTAL $ ___ _

Please remit CHECK OR MONEY ORDER MADE PAYABLE TO THE ALABAMA STATE BAR for the amount listed on the TOTAL line and forward it with this orde r form to: Marcia N. Daniel, publications assistant, Alabama State Bar. P.O. Box 671, Montgome ry, AL 36101 LAW DAY 2006

Special Event Celebrates50th Anniversaryof Historic Case That Ended Bus Segregation In Alabama

c«ol 6'1t c«olAm Sm,r/\ J/IJfJf Akin .-.d.A.dtlo "'°'>' n,n/, Jr INft 16wO.,. l/X/6 by m"'1irl// lhlJCOffVIMl'noraM /Y'09fi)(lt he Alabama State Bar and !he Alabama Lawyers Associationpr=nted a special Law Day T Commemoration program and luncheon to celebrate the 50th anniversary of Browderv. Gayle,!he case !hat ended bus segregationin Alabama and recognizedalmost 60 of 1heunsung heroes of that momentous 1jmein history. The event, entitled THE TRIUMPH OF THE RULE OF LAW: Behind EveryAct is a Human Being,drew over 300 lawyersand special guests from across the state. Two of lhe original plaintiffs in the case, Claudelle Colvin and Mary LouiseSmith, were also honored. The program began a11hc EmbassyS uites in Montgomery on Thursday, May 4, and included a luncheon honoring participants in that historic even!.The day's activities concluded with a reception al the Rosa Parks Museum. A copy of the original transcript from Browderv. Gayleis fea- tured on the AlabamaState Bar Web site at www.alabar.org. •

250 I U LY 2 0 0 6 LAW DAY 2006

Hundreds of Law Day Posters, Essays Show Students ' Views of American Legal System

s the nation celebra1esLaw Weck, Alabama s1udents shared their 1houghts on this year's theme of Liberty A under Law:Separate Brandies,Balanced Powers through creative expressionsof art or the imagery of the written word. With • record number of 3oo+entries, judges of the Alabama State Bar's LmvDay 2006 annual competition came away with a vivid impression of what our legnlsystem meansto Alabama's youth. Visitors to the bar's Web ,ite can view aU the winning entries at www.alabar.org/lawday. Over 150 posters and 157 essays were entered by students across the state in this year's LowDay come.-is.In addition to members of the Alabama State Bar staff and Law Day Committee. celebrityjudges this year included Eileen Jones, WSFA-TV;Alvin Benn, Mo111gomcryAdvertiJer; and WAKA's Stefanie Hicks. Capt. Allan Brock and Capt. Laura Hanson, both with the office of Judge Advocate General, Max,veUAFB, also helped with the judging. Montgomery allorneys Tommy Klinner and Tim Lewis are co-chairs of the state bar's Law Day 2006 Comminee. Winners This year's winners include: were recognized Wednesday,May 3 at a special ceremony at the Supreme Court of Alabama. FoUowingthe presentation of Essays Grades7 -9 Grades10-12 awards by Honorable Tommy Bryan, the students and their 1stPlace ElaiIla Ploil NiePowell guest> had a special luncheon at the Alabama State Bar,foUowed TuscaloosaAcademy FalkvilleHigh School by a tour of the supreme court. HeatherlyWhiteside Mr MarshallMoon ey There were two classifications-grades K-3 and 4-6 for posters 2ndPlace WesleyWalker GarrettHenderson and grades 7-9 and 10-12 for essays.Winners in the essay con­ TuscaloosaAcademy LakesideSchool test receiveda U. S. Savings Bond in the amou111of $20-0,$150 Mrs. AndreaShelton Mis. FrankieSpeake or SI 0-0respectively; 3flfPlace ParkerLeonard NickGivens winners in the poster TuscaloosaAcademy WilsonHigh Sshool contest receiveda bond HeatherlyWhiteside Mrs KendaAusev lyan in the amount or $125, SIOOor S75.AU win­ Posters GradesK-3 Grades4-6 ners receivedengraved 1st Place DakotaColeman BobbyHannah gold medals and aw.trd EvergreenElementary Thelakeside School certificates.Schools of Mrs.Duke KarenJohnston all winners received 2ndPlace AmberVarner CasieHe1ber1 certificates and teachers G. W Cacver,Tuskegee DalraidaElementary of the \V-innersreceived Mrs.Bynum Teri Gisi a S25 contribution per 3rdPlace MeganCummings MaryBeth Mulkey aw.trd for use in their ArcadiaElementary llearExploration Center classrooms. • Mrs.Nemme1s Mrs.Kns White WinningSchools 1. FalkvilleHigh School 6. GeorgeWashington Catver Elementary 2. TuscaloosaAcademy 7 ArcadiaElementary 3. lakesideSchool 8. DalraidaElementary .Alt1gitTammy Brfilfl pl.!Q!f I medJ/hooon JtWeflr Ni= lw'ftl '""°\Wl'J fitsi fN'CfMf Ihahlfl, ldrx>Imay coo­ 4. WilsonHigh School 9. BearExploration Center rest , PM ol tN !IW (k/y~ 1'titit r/lesixlh ~ 5.Evergreen Elementary lh.ttNie. hi.$ IJ(ttfN'Od,r,d won

I II F .\ I A HA ,\I ,\ l .\ \\ l f R 251 Rea (What to Do When the Next Hurricane Hits)

s a resultof several recent natural disasters,like hurricanes /l\ ' .\LL/SU!\! M f()UJ> / ,\'CRAM Ivanand Katrina,we have all seen the devastationand A destruction that has affectedfellow Alabamians. The losses sufferedfrom the hurricanesare truly tragic. For those who man• aged to survivethe initialdisasters themselves, the lossesand pain havecontinued even after the storm subsidedand the sunny sky returned.And ona, the storm did subside,many federaland state agenciesshifted into higb gear to provideassistance in numerous ways-fromemergency food and shelter 10 legalassistance. SeveralAlabama organizations have \\IOrkedin conjunction with the Federal Emergc,icyManagc,ncntAgency (" FEMA") in the past to provide emergencyassistance and legaladvice to those in need. Most recently,the MobileVolunteer Lawyers' Program, the AlabamaSta te Bar YoungLawyers' Section and LegalServices Alabamadid an outstandingjob coordinatingvolunteers and dis­ pensing valuableinformation to those affectedby Hurricane Katrina.

252 I U LY 2 0 0 6 Disaster Relief Contact Information I. Information for the General Public A. FE.MALegal Assistance Line: l-800-354-61S4, 8 am.-5 p.m., M-F PEMAwill be using I.he Alabama State Bar number for emergency relief. It will be staffed by the Alabama State Bar VolunteerLawyers Program. B. LegalServices Alabama: I •877-393-2333,8 a.m.-8 p.m., M-f; 8 a.m.-11000,SaL Bilingual-English/Spanish Maimains a statewide hotline for disas1errelief II. How You Can Volunteer A. At Disaster RecoveryCenters Providing On-Site Advice: (800} 354-6154. Contact LindaLund, executive director of the AlabamaStale BarVolunteer Lawyers Program. at (334) 269-1515,ext. 118. B. Handling ReferralTelephone Calls about Disaster Assistancefor the YoungLawyers' Hotline. Contact Young Lawyers'FEMA Disaster Relief Co-Chair Charles Flemingal cjfo.Phfsllp.comor co-chair Brem lrby at [email protected]. C. Handling Casesofa Brief Nature: (800) 354-6154. Contact Linda Lund, executivedirector of the Alabama State Bar Voluntur LawyersProgram The AlabamaState Bar Disas1erLegal Assistance Line was the D. Handling ExtendedLitigation or FEMA Issues: (334) first disaster assistanceline in the country to open after the 264-1739.Contact MelissaPershing, executivedirector of stom,. 1 ll began operation on August30, 2005-the morning LegalServices Alabama Inc. after Hurricane Katrina bit the Gulf Coast.' Approxima1ely,668 Stay Informed through the AlabamaBar Web site: www.alabar.org. disaster-relatedcalls were received.'The Mobile Bar Association The ASBWeb s ite willhave links to all necessarydisaster relief VolunteerLawyers' Program receivedover 456 clisaster-related information,inducting where to make financialcontnbutions. • calls and handled over 140 disasler-relntcdcases.' LSAalso helped over l,000 individuals and opened more lhan 500 Endnotes Katrina-relatedcases.> Over 135,000Alabama applicants "Re!Jolldmglives· Alabama's legal flesPonse10 0l$8S1e<. • A RePon to the ABA reques1edFEMA assistance. • Hooseof Delegates.February tJ. 2006. comp,lcdby legal ServicesAlabama. Inc . From these past experiences,members of the Alabama State 2. Id Bar have learned that getting information 10those who need it 3 Id. in a timdy manner is critical. As would be expected, there is 4 Id. often utter chaos followinga disaster.The chaos is compound­ S. Id. ed by the fact that traditional forms of communication, like a Id. telephones and e-mail, often are nonexistent. As we approach the next hurricane season, our hope is to provide helpful information to you in advance. Whether the disaster that you face is a hurricane, tornado, flood or fire, ii is AJlisonA lfordIng Nim Alli1onAllo1111ngr.,, roce"9<1 he< """'i,1Ciua11 deOt-. m,gn, -- ., t9891"'"' important to know bow to get assistanceto those who need ii. thelkllversity al Alabaira.and her 11w degree in 1992from the Uruwnity's Scooof al l.a-N Wealso want you 10 be able to contact cl1osewho may be able Shescwved as lawcletk to tileHoncwable W. Harold Albr,ttOI\ Ill Uru1ad Staw 01sm to use your volunteerservices. (See names and numbers in nm Judge,Mldcfle Cmtrict d Alabama, arclas anedJ'-'1Ct imfessor at thel.lnlYl!l'sity af AlilblmaSd,)ol of i.w She,olr«I u-., r1m1 ol S.11.S.11 Mathew$ & NoYllkPA lo 1993 column.) And, it will also be on the ASBWeb site. No matter n nowserves ol coooseito 1hefirm Sha ls dlll11or the Alabama State 8a(1 Volu,teer what your area of practice or expertise, there is a place for you la'N)'OrtPrtqtm ond on die tll*d ol director, of theMont;ornerv Coumv a.- Associauon. and your support staff, and we hope you will consider giving 1$ wellas on ntm!ffl.lS 0118bomds.. She rec8Mld 1h11 ASS Pro Imo AwardIn 20IM your time and resources.Consider pulling out these two pages and keeping them for future reference.

I II f r\ I ,\ R ,\ ,\I \ I ,\ \\ \ f U 253 Preparing for the Unexpected: Antici ate and Plan or Law Office Disasters

vcr the last severalyears, the overcoming the long-term effects of what evaluate this list in light of what you know nightlynews seems to have been could otherwise be a catastrophe. about your physicalsetling, your equ.ip­ 0 full of stories of natural and man­ Any disaster preparedness plan should ment, your dients and your community made disasters.Flooding wiped out or have two goals. First, it should be and the surroundingenvirons. caused U,erelocation of entire towns nloog designed to protect the people in your Natural Disasters-Do you practice in an the MississippiRiver. Drought conditions office, both staff and clients, and your area that is subject to hurricanes, tomados. causedbroken ,vater mains in Texas, vital business records. Second, it should floods. drought, lighteningstrikes. forest resulling in widespreadflooding. There also protect your clients and your future fire or wildfire,landslides, or earthquakes! have been stories about ga• line explosions. livelihood by providing a framework Technological Disasters-Are you sub­ the derailment of trains carrying volatile within which to replicate your office and ject to fire; power failure; water line, gas gassesand the unexpeetcddiscovery of have you up and running, in a new loca­ line or sewer break; pipcline explosion; toxic chemicalsin the soil. Tornadoes. tion if necessary,as quickly as possible. industrial explosion; hazardous materials which we here in the South thought we In order lo devise a successfuldisaster accident; hard drive crashes? were accustomed to and knew how to plan recoveryplan, you need to first think AntisocialActivities-Can you imagine a for, have cut a swath through many inhab­ about what sort of potential disastersitua­ situation involvingarson, bomb or bomb ited areas, leavinga trail of incomprehensi• tions you willbe most likelyto face,and threat, theft or vandalism,a violent ble destruction in their wake.No lawyer then assesswhether there is anything intruder (former client, opposing attorney now livingwiU ever forget the events of abolll ~,c way in which you currently or party or terminated employee), com­ September 11, 200I and their effectson operate that could make a potential disas­ puter hacker,or civil disturbance? our coUeagucswho practiced from the ter worse.As with any program to be car­ Health Disasters-Could your commu­ iwin towers of the World 'Ihde Center. ried out in a group situation, if your disas­ nity ever be subject to pollution-related And all this was before hurricanes Katrina ter recoveryplan is to be successful,one problems or epidemics? and Rita arrived, reminding us that even in person needs to be assigned overall Personal Problems (yourself and your the 21st Century, nature is stiUcapable of respomibility for its development and c.mployces)-Thereis alwaysthe possibility rendering an entire city uninhabitable in implementation.That person then needs of accident, long-term illnessor disability, the blink of a eye. to be given the authority, time and suspension or disbarment, and deatl1. These events tell us that we lawyersare resources necessaryto accomplish the task. not immune from the forces of nature or the whims of the demented. Likewise,as AnalyzeYour our communitiescontinue to gro\','and AnalyzeYour age, we are subject to the increased likeli­ hood of infrastructure failure. Advanee PresentSituation planning cannot entirely prevent the PotentialRisk Onee you have evaluated and ranked unexpected, or the unimaginable, but it The followingis a list of potential prob­ your potential risks, you should conduct can give you and your firm an edge in lems to anticipate and plan for.Carefully an analysis of your physical facilities and

25 4 JULY 2006 curre:nt office procedures to detennine if dures and coordinate your emergency Peuy cash in case banks and ATMs are tliey will help or harm you in tbe event plans with those of adjoining tenams. not operational of a disaster.The following are some Post vital safety information where .Freshspare batteries for all your battery tlungs to consider: everyone can find it, including fire exit ope.rateditems How do your building size,type and locations, fire exringuisher locations and ho\V to use thetn) escape routes and In addition to preparation for natural or age affect security con.side.rations? emergency phone numbers, first-aid kit n1an-made disasters.every l awyershould How do the number and use of doors loc.11ions,and basic first-aid procedures. make plans for bis or her own unfore,;cen and windo,\ISaffect security con.sidera­ Take time and make the effort to edu­ disabilityor demise.Planni ng steps include: lions? cate rour personnel. ln particular, send Arrangingin advance for one or more Is free accessduring business hours your safe[)•coordinator to appropriate lawyersto cover your pmctice and draft­ really necess,,ry,or could rnstricted classes or sen1inars. Preparea safety sec.­ ing an .1greerncntto covc.-rthe process. access work? Lioufor your otlice manual and make Getting advance authority from clients sure your employeesa.re fomiliar with it. ( in foe agreement or addendum) to Would postinga secwity guard be app.ro· Train personnel regularly and issue peri­ prune or uscftdduring certain times? aUowfor associ:ltccounsel in case of odic n1cmos about crncrge:ncyproce­ emergency. Is your electrical, co111putcror phone dures. CoJ\duct unannounced fire drills Getting your files organized and up to syste111exposed to sabotage? and other safety preparation drills, and 1 datel and including a "to do • list of [s your compucer syscemexposed to critique the results.Train one person to be responsible for escorting clients out of uncompleted tasks in each file. hackers (either physicallyor through the building during an emergency. Preparing a letter of instruction for connection to the fntcrnct)1 You should also develop a written your spouse, your partner, your staff Do you duplicate important materials intra-officeemerg_ency ..:01nn1.unicati.on a.nd any attorneys who will be covering and backup all computer programs? plan. Here .ire the basic elements any or, in Lheeven t of the \'t'Orsl,Laking Do vou carry one copy of backup pl,rn should follow: over and dosing out your practice. materials otTsite every day? C.oDectand store all employee'shome Is your off-site backup storage !OCtuion ,mdceUphone numbers ll\asecure off­ subject to the same potential aisasters site location. Check this list l)ll a regular SafeguardYour as your office? schedule in addition to relyingon mem· Oryt o make changesas they octur. Recordsand Do you periodically restore from your backup medium to make sure your I( your officestaff is large, develop a Equipment backup system is working properly? phone tree to facilitate spreading infor­ mation witlun the firm in the event of Once you're sure all personnel and Will your filestorage/retention policies a disaster. clients are safe, your thoughts will imme­ cause additional problems in a disaster? Determine and publish an alternative diately turn to your files and other client When it comes to building security,an phone number or a series of num6ers and practice data. If you ta~e tbese steps important part of any securitysystems is its employeescan call for instructions in now, you'll be in much better shape if dtterrent value.ff securitymeasures are case of destruction of the officeor disaster strikes. First, make a complete sufficientlyvisib le. many potential intrud­ office phone system. This should office inventory including: ers wiUsimply go elsewhere. include numbers for parents, adult chil­ All computer hardware and peripher­ dren, close friends, etc., in the event als, including serial number, purd,ase that phone service is severelydisrupted. date, purchase price and vendor. Planfor Develop a plan for letting your cLients Update your inventory immediately as know what has happened to your office equipment is replaced. PersonalSafety and what you are doing to establish a All sofu~are,including version number, There are many Steps that can be taken 11cwoffice. serial number, purchase date, purchase price, and vendor. to ensure the safetyof your personnel and Everyoffice s hould have a minimum your clients, and they will differ depending store of emergencysupplies, which sbould All library contents, including both on your physical setting and the type of be inspectedand replacedon a regular books and active subscriptions. potential disastersyou fnce.If you practice schedule.Some things to include are: All office furnishings. including pur­ in a small freestandingbuilding, develop First-aid kit chase date and price. appropriate_!'merge ncy escape routes and Flashlights Alloffice equip ment, includingse rial procedures,and appropriate placesto shel­ number, purchase date, price and vendor. ter if the officemust be abandoned during Battery ope.rated or wind-up radio or AUother equipment, such as coffee the work day.Make sure all exits are mini-TV unblocked and accessible.For those who machines.TVs, tape recorders,still cam· Cell phones or walkie-talkies practice in large buildings.make time to eras,video cameras, and Dictaphones. reviewyour building'semergency proce- Emergencyfood and water AUoffice supplies you regularly stock.

fill 1\l ARA,\11\ I A\\ )'IR 255 I

THE ALABAMA LAW F OUNDATION'S Atticus Finch Brochure Receives ADDY

ALABAMAIAW FOUNDATION

n February LS,the Alabama Law Foundation's brochure for the Atticus Finch Society was honored with an ADDY award 0 by the Momgomery Advertising Federation.The brochure explains the purpose, activities and goals of the Anicus Finch Society. The ADDYAwards are the largest and most comprehensivecreative competition in the advertising industry. They honor creative excellence in nearly every area of advertising, and offer three levelsof ;udging- local. regional and national. The Atticus Finch Society's mission is to form a solid financial future for the Alabama I.aw Foundation, a charitable, tax-exempt organization wltich provides access to the civil justjce system to under­ privilegctl residents of Alabama. The society's initial goal is to build the Alabama law Foundation'sendowmeni to secure the foundation', financial longevity. 1110Atticus Finch Society hroc.hurcwas created for the Alahamal aw !TTIUUSFINUH Foundation hy Cunninghnm Group /\d\'ertising & Public Relations SOCIETY agency. • i 258 ll!LY 10U6 SPANISH LEGAL HOTLINE AVAILABLE AlabamaState Bar and LegalServices Alabama launch Spanish Legal Hotlineto helpmeet needsof Alabama's Spanish-speakingpopulation

In partnershipw ith the AlabamaState ServicesAlabama. the Vo lunteerLawyers Bar'sSpanish Outreach Project. Lega l Programof theAlabama State Bar or the ServicesAlabama has launched a dedicat­ statebar's Lawyer Referra l Servicefor legal ed statewidetoll-free l egalhotline for assistance. Spanish-speakingpersons in Alabama.The Othercore partners in thisproject include SpanishLega l Hotlinehas its ownsepa­ theAuburn Cooperative Extension ratetol l-freenumber (888-835-3505) and System;Hispanic Interest Coalition of calls are answeredand routed by Spanish­ Alabama(HICA); Alabama Latin speakingstaff membersat call centers AmericanAssociation; Cumberland acrossthe state . Schoolof Law;and KPI Latino. RegularSpanish Legal Hot linenetwork SpanishLegal Hotline information is hoursare 8:00 a.m. to 8:00p.m. Monday available at the statebar 's Website throughFriday and 9 a.m.to noono n www.alabar.org.as well at the Legal Saturdays.If a bilingual staffmember is not ServicesA labamaWeb site www.alsp.org. availableor is on anothercall. a messagein Brochuresare ava ilable uponrequest from Spanishwill tell thecaller the bestt imeto the AlabamaState Bar or maybe picked call back.Based on specific legal needsand up at anycou nty Auburn Cooperative guidelines.ca llerswi ll be referredto legal Extension Systemoffice. (888) 835-3505

I 1-1I A I A RA .\I A I A 1\' \ ' l R 259 itigationarising from damage to homesand bu5incss Theconcept of stigmadamages is oftenover lookedas a fac­ properties, \vhetber arising from subterranean t~nnites, tor in the proper measurement of damages to real property. Are L mold or chemical contamination, is increasing. The argu­ such damages recoverable and, if so, how do you prove them? ments and/or possible explanations for the increases are varied These are questions which will be addressed. and often depend upon the position being advocated. Whatever The starting point for such an analysisis a reviewof the measure the reason, la1")'ers and clients have come to the realization that of damagesto property as recognizedby Alabamalaw. ln Fullerv. simply recovering the costs of repairing dan1ageoften is not Fair, 202 Ala. 430, 80 So. 814 (1919) the court set forth the follow­ sufficient to make the client whole. A negative market percep­ ing methods of measurement which remain applicabletoday: tion exists to o,use a diminution in the market value of proper­ ty even after repairs have been made. Who among us would not "From the cases,a statement of the measure of damages choose the undamaged automobile rather than one that has to real estate may be said to be: ( I) If the land is taken, or been severelydamaged and repaired? Just as clearly,who would its value totally destroyed, the owner is entitled to recover not choose to avoid problems with termites, mold or chemical the market value thereof at the time of the taking or contamination even when we are told that the problems have destruction, with legal interest thereon to the time of the been repaired or remecliated? trial. (2) If the land is permanently injured, but not totally

260 I V LY ! 0 0 6 e eee ABA Pleasevisit Michael Moniz at lheABA Retirement Funds ' • • • • Retirement Boothat theupcoming Alabama Stale Bar Annual Meeting July12-15 • HiltonSandeshn Beach • • • Funds" • GollResort & Spa- Destin,Florida GROW YOUR FUTURE WI SELY \X'hcu you'r,, rl·ady for retin•mc11Lplanning. t'hoosc the program creuLed b) la\\}''I'; for lawyer, , and run IJ~ e:-.pt 1io. \.8.\ HeLircnwnL Fumls offers full scr"icc solutions including plan administration. inveMment nexibility und a

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1 Hf. ;\ I ,\ RA .\f A I .\ l\ \ f R 261 If judges rely on it, shouldn't you?

McElroy's Alabama Evidence by Charles W. Gamble

To order, call ABICLE at 1-800-627-6514 or write to us at ABICLE, Box 870384, Tuscaloosa, AL 35487

THE UN I VERS I TY OF ALABAMA SCHOO L OF LAW destroyed, the owner wiUbe entitled to recover the differ• eoce between the markei value of the land at the time Typical Property immediately preceding the injury and the market value of the land in its immediate condition afrer the injury, with Damage Scenarios legal interest thereon to Uietime of the trial. (3) If the land The following fuctual statements were selected from actual is ten,porarily, but not permanently,injured, the O\\IOCr is cases. Where the names of one or 111oreof the parties are men­ entitled to recover the amount necessaryto repair the injury or to put the land in the condition it was at the time tioned the fuctual statements were taken either from actual immediately preceding the injury, with legal interest there­ cases or appellate decisions. on to the time of the trial!' ( I) Buyersexecute a "Real Estate PurchaseAgreement" where­ by they agree to buy the sellers' home. As part of the conrract, the Thus, the proper measure of damages for injury to real seUersagree to p;iy for a termite inspection conducted by a property varies witb the type of injury, but the underly­ licensed or bonded pest control operator for the purpose of ing principle of such damages was succinctly stated in establishing that the property is free and clear of any active Rickt11baugl,a. Asbury,28 Ala.App.375, l85 So. l8l infestation or damage by wood-destroyinginsects or (Ala.App.1938):"the measure of damages is such sum as fungus. SeUersalso agree that, if possible, they will wiUcompensate the person injured for the loss sustained, transfer the existing termite bond on the house with the least burden to the wrongdoer consistent with to buyers at closing. Termini.,, seUers' the idea of fuir compensation, m,d with the duty 11po11the existing termite company, performs person injured to exercise reasonable care to n1itjgatethe the inspection and renders a wood injury, according to the opportunities that may fuirly be infcst11lioninspection report or appear to be within his reach, and the same rule (WIIR). The WIIR, delivered at obtains whether the loss is claimed for injury to property, closing, represents the ho1ne to personal injury, or breach of contract." be free of any evidence of an active infestation of the five Placing the tempornr)' injury/permanent injury concept into specified wood destroying context may be assisted by reviewing some all too common sce­ organisms identified in the narios of property damage involving both temporary and per· report, including subterranean manent injuries to property. termites; it fu11her identifies a

T II F. A I A R A 1\I A I. A \\/ Y E R 263 previousinftstation of subterranean lermiu,s in the garage,but states it has ~en re-treated and "proper measureswere taken care of' In addition, the WHRindicates that Terminixbad treat­ ed the residencein January 1992and that there is a contract pro• viding treatment warrantieswhich can be transferredto subse­ quent owners upon proper payment. The purchase and sale are completedand the Termite Protection Plan is transferred lo the buyers.Within days after the dosing buyersdiscover an active infestationof termites.Terminbc is called upon to re-treat In the months followingthe closing,buyers continue 10 discoveraddi­ tional areas of tcrmlte infestationand damage to their house and additional claimsfor re-treatment are made. In less than ten months the buyers' home is treated four times and live infest•· tions continue to be found. Investigationreveals that three days prior to closingand prior to deliveryof the WllR at dosing, Terminix,with knowledgeof and al the direction of sellers,re­ required 17 treatmenlS,all unsuccessful,and Orkin paid in treated due to an active infestationof subterranean termites 10 an excessof $78,000dollars for repairs. Under Florida law,should area of the house which was 1101disclosed in the WllR. Everyone DelGuidicedesire to scll his home, be is affirmativelyrt"

264 J U LY 2 0 0 6 market value of the land at the time immediately preceding the Status of Alabama Law injury and the market value of the land in its immediate condi­ tion after the injury, with legal interest thereon to the time of The status of the law in Alabama can best be described as in the trial." I.heembryonic stage. Circumstances under which stigma,as a 1'hus, the finder of fact would be called upon to apply two part of diminution damages, may be recovered, have not been different, but arguably appropriate, standards in the decem1ina· directly addressed by Alabama appcllate courts, although the Alabama Supreme Court, in the case of Carson v. City of tion of the amount of drunagesn ecessaryto "compensate the person injured for tbe loss sustained, witli the least burden to Prichard,709 So.2d 1199 (Ala.1998), refused to reverse the jury verdict oa the damage award saying,"We canno t say that I.he the wrongdoer consistent with the idea of fair compensation." verdict wasplainly and palpably wrong and unjust:' after it Rickenbaughv. Asbury, supra. acknowledged that the verdict was based, in part, upon the tes• tirnony of a real estate agent/appraiser as to the diminution in value of the property arising from the "stig111a"of having been Directions from Other flooded by sewage from the municipality's sewer lines. Ocar ly, economic feasibility aside, known troni te damage to Jurisdictions a structure can be repaired and sud1 injuries are therefore It is enlightening to examine how other jurisdictions have argued by the pest control industry to be temporary in nature. addressed l11eissue of stigma damages. The second factual sce­ Applying Fullerv. Fair,supra, the measure of damages is "tbc nario set forth above was !llken from the case of Orkin amount necessary to repair the injury or to put the land in the Exten11innti11gCompany. Inc., v. De/Guidice,790 So.2d L158, (5th condition it was at the time immediately preceding the injury, DCA,2001). Orkin appealed from a jury verdict rendered in a with legal interest thereoa to the time of tbe trial:' The stig111a breach of contract action which included stigmaor diminution anached 10 a structure witb a significant past history of termite in value damages of $300,000.T he court reversed and remand· problems often results in a diminution in its marketability and ed, determining that the contractual remedy of repair or therefore its V111uc and is a form of permanent injury to proper­ replacement was the exclusive remedy for a breJch of the con­ ty tha t does not destroy tbe property. Therefore, again utilizing tract. The court stated further that "diminution in value dam­ the measures of damage to property as enunciated by the ages, or stigma damages, not otherwise provided for in a con­ Alabama Supreme Cour1 in Fuller v. Fnir,supra, the proper tract can be awarded in Florida on a breach of contract theory measure of damages for stigma is "the difference between the only in limited circumsta nces. Diminution in V11luc damages is

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I II J A I ,\ H .\ ,\1 A I A \\ )' L U. 265 din1inution of the unit's value. alleging that market value of the unit had decreased because of the association's inability to prevent water drainage backup problems and spillovers. The trial judge excluded f'•idence of din1jnution of value, and subsequently entered judgment on the jury verdict awarding damages to owner only for costs of repairs. The appellate court acknowledged that und er general principles of tort law, (I) where the injury to real property is merely temporary, or where the property can be restored to its original condition at reasonable e.xpcnsc, the measure of damages sho uld include the cost of repairs or restoration; and (2) where the cost of repair exceeds the value of the property in its origi· appropr iate when the remedy of repair or replacement is nal condition, or where restorationis impracticable,the meas­ impracticablt:' The court also no ted that Orkin had admitted at ure of damages is djmjnuuon of value. Finding that the deter­ trial that it had made "some mistakes" in the treatment of the m ination of permanent or temporary injury to real property is DelGuid ice home. One is left lo specu late as to how the court a question of fact to be presented to the jury rather than a mat· would have add ressed the "app ropriateness" of diminution in ter of law to be resolved by the trial judge, the court reversed value, or stigma damages, on a negligence theory. the tria l court's exclusion of proffered evidence ti-om a realtor The District Court of Appeal of Florida, Thi rd District, in the relating to diminution in value. case of DisqueAssocintes of Florida,Jue., v. Towersof Quayside 1n ~\fes1111ius1erAssoc;ntes, Ltd., v. Orkin Exter11,inatiugCo., No. 2 Cot1do111it1iu111Association, Inc., 639 So.2d 997 (1994), 19 Jue.,.285 B.R. 38 (2002) lbe Bankruptcy Cou rt for the Middle Fla. L. WeeklyD708, was presented with a case in which a con• District of Florida, citing BisqueAssoc. of Fla.,Jue. v. Jowersof dorniniumunit O\Yne.r sued the condominiumassociation on QuaysideNo. 2 Condo.Assoc., Inc., supra, interpr eting and apply­ tort theories, seeking damages for loss of rental income, and ing Florida law, held that in real property cases, the measure of

Alabama State Bar Labor and Employment Law Section

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266 JULY 2006 damagesOowing from a breach of coniraa arc the greater of the Hamn,ond v. City ofWamer Robins,224 Ga.App.684,690,482 diminution in value of the real property or the repair costs, or a S.E.2d422 (1997) that "[s]rigma to realty,in and of itself,is too combination of both. remote and speculativeto be a damage."The speculativenature Ultimately,due to a conllict in the Florida appellate districts of the damageswere attributed by the court 10 the fact that resulling from the decisions in BisqueAssoc. and De/Guidice,the under Georgia law,in a "sale•by•owner"situation, the Daleys florida Supreme Court will be presented the opportunity to would not be forced to disclose the construction problems 10 establish1he law in Florida. If the Westminsterdecision is a cor­ potential buyers.Thereby reasoning it spec,dativeand a future rect interpretation of Florida la\...-.a combination of repair costs loss that may or may not be sustained depending upon whether and diminution in value would be availablein cases involving !he repaired defeas are disclosed10 a future buyer. stigmn dnmnges. In Ti,dorCllnren11 Creole Apnrtmems Partuership, v. D.A. In Dnleyet nl v. Ryland Grortp245 Ga.App.496,537 S.E.2d732 Extermi11ati11gCo., Inc. 691 So.2d 1259( La App I Cir.,1997),after (2000), litigation arose between new homeownersand their con­ havingmaintained a termite control contract with the pest con­ tractor relating to unremedied construcrfondefects. The jury trol company for many years,the apartment complexfound awardedthe Daleysboth (a) the cost to repair their home so as to severetermite damage the true extent of which could not be bring it up to the value as it should have been when finishedand determined without destructiveinvestigation. The trial court after the defectswere repaired,and (b) an additional ten percent awardedboth costsof repairs,as estimated,and diminution in the din1inution in value of the contract price <>fthe house, i.e., excess va.lue of the property.C iting Roma11Cntholic Owrd, of the of the fuirmarket value to the Daleys.The trial court reduced the An:hdioceseof New Orleansv. LouisianaGas Service Co., 618 So.2d award,deciding that it was not a proper measure of damagesfor 874 (La.1993),as support for the proposition that property dam­ a contraCIbreach, i.e., in the contemplationof the parties.The age principlesrequ ire the compensation of the victim to the full GeorgiaCourt of Appealsaffirmed the trial court stating that extent of the loss and restoration to as good a position as held cost to repairand dinunution in value are allowedas !he measure prior to !he damage, the court acknowledgedthal there is no for­ of damagesonly in tangibleproperty casesand nol in improved mula which can be applied with exactitudein the assessmentof realtycases, except where there existsdefects that cannot be property damagesand further acknowledgedthat it was plausible repaired.The court noted the absenceof evidencethat, after that Cbateau Creole had suffereda "stigma"to the prope,ty aris­ proper and reasonablerepairs, permanent defectswould contin­ ing from the unknown characterof the total struCluraldamage to ue to exist.The court reassertedits holding in the earlier case of the property which must, by Louisiana law,be passedo n to any

l II E ,\ LA BA Al A l A \\ ' YER 267 ALABAMALAW FOUNDATION IUUSFINUH SOCl~~y

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In se1Ving the legal needs of the poor and those no one else would represe nt, Atticus Finch epitomizes the type of professional , and person, lawyers strive to be . The Atticus Finch Society's mission is to build an endowment in order to secure the future of the Alabama Law Foundation's work to make access to justice a reality for all Alabama citizens. The Atticus Finch Society recognizes the need and acknowledges those whose courage,honor and sense of duty compe ls them to act.

WE ARE MAKING A DIFFERENCE For ( harkr Alembcrsliiplnfornu1t1011 Co11tact Tracy Daniel, ExecutiveDirector I ALABAMA LAwFOUNDATION J.800.354.6154 or 269.1515 I tdaniel@a/Ji11c.org www.ALFINC.org purchaser.The court held that awardingdiminution in value, in injury persists,plus consequential damages.The court recognized addition to cost of repair.places the victim closer 10 the position that stigma damagesare a fae

J 11 f :\ I 4 n A \I ,\ I .-1.H r i fl. 269 discoun~ and (d) make base projectionsof future rent and/or t.he diminution. Realtorsare often more intimately aware of income potential and expenseson reasonablyclear and appropri­ necessary reductions in sales prices to offset stigma and should, ate evidence.2005 USPAPStandards 1-4. at present, be in a bener position to offer expert opinions relat­ Although not specificaUydefioed in the USPAP,the stigma ing to diminution. which attaches to properties with current infestationsofter­ The AlabamaSupreme Court in the case o( Carsonv. City of mites or mold may be likened 10 those suffering an "environ­ Prichard,supra, tacitly approved the qualification of Realtors to mental stigma• which is defined by the USPAPas "an adverse offer such testimony. effecton property value produced by the market's perception of increasedenvironmenta l risk due to contamination:· Analysis "Environmental risk" is defined by the USPAPas follows: Diminution in value (stigma) damages should be recoverable "The additional or incremental risk of investing in, where the same result from the tortuous conduct of the defen­ financing, buying and/or owning property attributable to dant and are sought within the framework of a tort claim. The its environmental condition. This risk is derived from basic rule of tort compensation is that the plaintiff should be perceived uncertainties concerning, among other factors, placed in the position that he would have occupied absent the the nature and extent of the contamination, estimates of defendant's negligence.Keel v. Banacl,,624 So.Zd 1022(Ala., future remediation costs and their timing. liability for 1993). It is a fundamental tenet of tort law that a negligenttort­ cleanup and such other factors as may be relevant." feasor is liable for all damages tl1a13J'e the proximate result of USPAPStandards l-4(e) directs that when addressing the bis negligence. Therefore,recoverable damages in a tori action are generallybroad enough to include those damages necessary diminution in va)ue of a contaminated property and/or its imp:tired value,the appraiser must recog,tizethat the value of to compensate the plaintiff for injuries to property,both tempo­ r3J'yand permanent, proximatelycaused by the defendant's neg­ an interest in impacted or contaminated real estate may 1101be measurablesimply by deducting the remediation or compliance ligenceor other wrongful conduCLRecovering such damages in cost estimate from the opinion of the value as if unaffected but a breach of contract action is more doubtful because Cromthat must measure cost, use and risk effectswhich can potentially prospectivecourts are more inclined to enforce the Hmitationof impact the value. O,st effectsare generallydefined as deductions damage provisionsof contracts, whicl1are often drafted solely by and for the benefit of the wrongdoer, and excludeany recov­ for costs to remediatc and arc usuallyestimated by someone other than the appraiser. Useeffects are intended to reflect ery for stigma damageson the basis that such damages"were impacts on the utility of the site as a result of the contamina­ not in the conten1plation of the parties" at the time the contract tion which could impact value. Risk effectsare derived from the wass igned.See Orki11Extemri11atfrig Ccmpa11y. Inc., v. market's perception of increasedetivirorunental risk and uncer­ DclG11idiu,supra, and Pritchettv. StareFarm MIii. Auto. [IIS. Co. tainty and must be based on market data, rather than unsup­ 834 So.2d 785 Ala.Civ.App.,2002 (although personal property, ported opinion or judgment. the contract languagewas applied to preclude recoveryof stigma Unfortunately,many appraisersfeel ill equipped or arc unwill­ damages).A practicalview would indicate that if any contract­ ing to devote the time to incorporate all of these criteria into ing party contC01platedthat by contracting with the opposing determination of value of impacted properties. Many relate the party he or she would expose their property to injury resulting absence of readilyavailable market data to determine risk in stigma. few.if any. would enter inco the contract effects.The multiple listing service (MLS)data as maintained by Therefore, there must be a recognition that while repairs to Realtorsand readilyavailable to appraisersin most metropolitan improven1ents 1nay return the improvements to the condition which existed prior to the injury, public perception of the prop­ areas does 1101 identify the amounts by which the ultimate sales price was depressedfor a particular property due to the impact erty is of a more permanent nature which cannot be resolved of lingering negativepublic perception. Too often, due to the by simply repairing the improvements. Damageswhich com­ antiquated caveatemptor rule in place in Alaban1aand the obvi­ pensate one or the other, but not botli the temporary injury ous desire to close the sale and earn a commission, Realtorstake and permanent injury, do not fully compensate the injul'ed a "don't ask-don't tell" approach to the less obvious (latent} party. The current trend, from the majority of states, is toward problems which may impact the desirabilityof a particular the recognition that tl1esctwo types of damages are distinct, property,opti11g to activelypursue a sales approach that keeps not mutunUyexclusive and both must be availableto aUo,ethe the seUerand buyer apart, thereby lesseningthe opportunity for opportunity for proper compensation. Evidenceexists to estab­ questions which may require the disclosureof matters deemed lish not only the costs of repair but also the diminution res,ut­ negative.That th.is attitude prevailsin Georgia as well was ing from the stigma, however,you must fmd not only your best reflectedby the Georgia AppellateCourt in the case of availableexpert testimony,you also have to be in a position to Hammond v. City o[Wamer Robi,u, supra,in which the court, present that testimony in a manner that is not speculative. • aclcoowledgingthe possibilitythat the seller would be able lo pass the problem to the buyer without the buyer's knowledge, held the dan1agesresulting from stigma "too speculative." StephenT. Etheredge Until such time as there is a source from which appraisers StephenT El11ere6Joii a pfirtrlerin &Jntin. E1heredg1t & Oowhog lit inOoll\all He "'"''IdhlsurdergractJa11 de!JII '""'.., Uo...,l,v of Aori,li l19nJrd hislow degree can easily identify the amounts by which the value of property from1h11 Univtnity of AlabarraSchool ot Law 119751. He was ad1111111d tort. Alabama is diminished by negativefactors, it is unlikely that many StarGBa, In 1975troTho fbida Sarin191'6 appraisers will be wiUingto undertake the processesof valuing

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Is the Alabama Supreme Court Obliged to Follow Precedental Case Law of The United States Supreme Court?

II\' JA,\1/ S /·, I l

"Acceptingthe risk of obscuring the A. Does Alabama law,express ly or obvious by discussing it," UnitedSrntes v. impliedly, require the state supreme ReadiugCo., 253 U.S. 26, 61 (1920), is one court 10 follow precedent of the U.S. of the challengesof essayingthe issue Supreme Court? There is no state statute constituting the title of this article. To the requiring it. There is, however,ample vast majority of members of the Alabama authority otherwise for the requirement State Bar as well as legal analysts, the in de<:isionsof Alabama'scourt of last answer to the query may now be self-evi­ resort. At least since 1866,members of dently obvious; 10 a small minority, how­ the state supreme court have recognized ever, it appears that that is not the case.• and applied rulings of the U.S.Supreme Regardless,perhaps too many readers of Court as precedent-for example, in this journal may have difficulty answering cases purportedly involving the impair· completely the "why?"of it when con· ment of conuacts by the state under fronted with the issue dire<:tlyby another Article l, section 10, clause I, of the U.S. lawyeror layperson,or by a judge. So, let Constitution. Ex pnrte Pollard,40 Ala. 77 us consider the matter here, being mind· ( 1866), aud the prior cases cited therein.' ful of Sir Edward Coke's observation: See also Nelson v. McCrary,60 Ala. 301 "Reason is the life of the law; nay, the (1877) ("obedience is due from all srate common law iiself is nothing else but rca· tribunals, on this (impairment of con­ son." Edwardstt al. ( eds.), TireNew tracts) and kindred questions" to "de<:i· DictionaryofTl,ought 345 ( 1969). sions of the Supreme Coun of the United The answer to the question-ls the States;· id. at 311). A more recent case to Alabama Supreme Court obliged to foJ. the same effect,involving the separation "Bind oath" low precedential case law of the United of powers doctrine and the Fourteenth by States Supreme Court?-implicates the Amendment to the U.S.Constitution in answers to three separate but related the context of a legislativeredistricting was the sense queries. First, does Alabamn law,' dispute, is Ricev. English,835 So.2d I 57 expresslyor implieclly,require the state (Ala. 2002). It is admitted that, in light of suprcrnc coun to do so? Se<:ond,does the answer to the second question, irrfra, found for federal law,express ly or impliedly. require such cases are also "federal" authority; the stale supreme court to do so? Third, indeed, they are arguably the basis of the do auy considerations of p11blicpolicy Alabama decisional law! But, such is not obligein early require the Alabama Supreme Court to neces.sariJyso, be<:auseof the following. follow U.S.Supreme Court precedent? There is one Alabamaco11stit11rio11al pro­ One citation will be enough, if it is in vision that impliedlysuggests an affirma· examples .... point. tive answer to the question: Anide XVI, -Mr. Justice Oliver Wendell Holmes, section 279 of the 1901Constitution. It ~HANTRELL (ed.), The Oxford quoted in Novick,Honorabk J11s1ice 194 provides,in pertinent pan, that "[alU Dictiounryof Word HistoriBS349 (2002) (1989). members of the legislature.and all officers,

1 JI f. .1\ I A BA Al A I A ~\' )' I: R 273 executiveand judicial ..." must affirm or bound to exercise it in a proper case? See U.S. 1090, 154 L.Ed. 2d 635, l23 S.Ct. 695 swear to "'support the Coostitution of the Waldenv. State, 426 So.2d 515 (2002); State FarmMw. Alita ltts. Co. v. United Statesand the Constitution of the (Ala.Crim.App. 1962), on the solemnity Carl1011,867 So.2d 320, rehearittgdc11ied, State of Alabama ... and (to J fuithfullyand (in a search warrant context) of the oath affirmed Ex parte Car/toll,867 So.2d 332 honestlydischarge the duties of the office in section 279 of the Alabama constitu· (Ala. 2003), re/tearingdenied. Sec also 21 ... to the best of ... ftheir] ability."'A similar tion. Since states' highest courts are still C.f.S., Courts, sec. 151.That has been the provision may be found in the Alabama the final expositors of the meaning and case since the establishment of the state's constitutionsof 1875 (Art. vn.sec. 6), application of state law,M11rdock v. intermediate appellate courts. There is 1865(Art. XV,sec.l), and 1819(Art. Vl, Memphis, 87 U.S.(20 Wall.) 590 ( 1875), even a stnte statute on the matter. Section sec. l).1'he related provision (Art. VI, sec. honoring the oath in regard to state con­ 12-3-16, Code of Alabama ( 1975), states: I) in the constitution of 1861makes no stitutional issues is just as importalll as it "The decisions of the Supreme Court (of referenceto the federalConstitution for reasonstoo sad to re<:all.(The wiadoptcd constitution of 1868includes a provision (Art. >..'V,se<:. l) similar to that in the cur• rent state constitution.) The relevanceof the oalh, which has been a part of Alabamaorganic law from the beginning of statehood 187 yearsago, is that all legis­ lators and allof the denominated state officers,including justices of the state's highest court, are obligated to support both the federaland state constitutions. (There is no such thing in Alabamans an oath ONLY10 lhc state constitution.) And, since it is the justiceswbo say and apply what the constitutionsmean as applied in a given fuctualsituation,• they must follow the dictates of such reasoning.As today,so throughout the history of the state, most statesupreme cou rt majoritieshave accepted ~lis and gone about the business o( appeUateadjudication. See, e.g., Ex pnnc is in regard to following precedent of the Alabama] shall govern the holding and Selma &C11lfRni/roadCo., 45 Ala.696 U.S.Supreme Court on maners within its decisions of the courts of appeals, and[, (1871), 1871WL 986 ("No power of this purview. Neither the oath nor any other moreover, I the decisions and proceedings nature is expresslygiven. Considering its requiremem mandates that the Alabama of such courts of appeals shall be subject importance, it is n little strange that it has Supreme Court followprecedent of any to the general superintendence and con­ been whoUyomitted. But gra11r1/rat it federal court other than the nation's trol of the Supreme Court as provided by exists"(emphasis supplied), id. at '22). The coun of last resort. As the state court Constitutional Amendment No. 323;• U.S.Supreme Court, o( course, is the tina.1 puts it in Weems v.Jeffcrsott·Pilot life Ttts. L.J.K.v. Stare,_ So.2d ~ WL 3506374 arbiter of what federal ln\Vis to be applied Co.,ill<., 663 So.2d 905 (Ala 1995), (Ala.Crim.App. 2005), noting both the and ho\V,begiru1ing with its declaration to relrcarittgdenied, an. denied, 516 U.S. case law and the statutory requirement to that effect in Marburyv., Madiso11,5 U.S. 971 133 L.Ed.2d 348, I 16 S.Ct. 434, tbe follow precedent of the state's highest ( I Cranch) 137(1803), 2 L.Ed.60 ( 1803),' court may rely on a decision of any feder· court. It has been said that "the 'decisions the single most famousand important al court, if it chooses to do so, but it is of uic supreme court' referred to in said case in Americanconstitutional history . bound only by decisions of the Supreme Cede Section (12-3-16] ca.nonly mean CHEMERINSKY,Co11stitutio11al Law: Court of the United States. the 'decisions of the majority'of the Principlesa11d Practices, sec. 2.2.1, 36-37 One other aspect of state judicial activi­ Supreme Court." Willisv. Buc/1ma11,30 (1997). ties is relevant: the requirement that the Ala.App.33, 199So. 886 ( 1941), opinion So, if one is an Alabama Supreme Alabama Court of Civil Appealsand the after remtmd and dismissal.The case of Court justice with the "inherited," com­ Court of Criminal Appeals follow pre<:e· majorities in U.S.Supreme Court deci­ mon law authority and duty to exercise dent of the state supreme court. Irwin v. sions is noted in section B. infra. Q.: If review of the constitutionality of acts of State, 23 Ala.App.284, 124 So. 408 (1929), Alabama courts of appeal are required to other branches o( government and bas art . dt1tied,220 Ala. 160, 124 So. 410 follow the precedent of the Alabama taken an oath to "support" the state and (Ala. 1929);Smi th v. Stnte, 838 So.2d 413 Supreme Coun, to which they are subor­ federal constitutions, is one not thereby (Ala.Crim.App.,2002), cert. del!ied,537 dinate, why should not the state supreme

274 I UL Y 2 0 0 6 court l>cobliged 10 foUowthe U.S. Court is no different; il is obliged to within the constitutional scope of their Supreme Court, to which it is subordi­ accept the majority view of the nation's authority.• But, it includes more; it nate-at least by implication in regard to highest court, when deciding matters that includes authoritative decisionsof the U.S. ''federal questions"? ALthe very least, it is fnJJwithin the three categories delineated Supreme Court and of other courts of last incongruous,if not unseen1ly,for a rnern­ in the Supremacy Clause. D,mca11v. resol't of the states. That is so for at least ber of the state supreme court to argue State, 278 Ala. 145, 176 So.2d 840 (1965). three reasons. First, the courts have so that the court is not bound by holdings of (If that were not so, the U.S.Supreme held! Second, law,since the beginnings of the U.S.Supreme Court, while simultane­ Court's decisions in, say,Batson v. English common Jaw,bas never meant ously demanding that the state courts of Kenwcky,476 U.S. 79, 90 L.Ed.2d, 106 merely acts of legislativebodies, as some appeal honor the holdings of his/her tri­ S.CL 1712 (1986), and its progeny, might Englishjudges concluded as long ago as bunal. That leads to the second, and not have played the role they have the the 17th century. Third, in the course of foundational, question. p,sl two decades in Alabama criminal interpreting and applying constitutional 8. Does federal law,expressly or trials. Smit/, " Seate,838 So.2d 413 and statutory la,v, courts necessarily impliedly, require the stntc supreme (Ala.Crim.App.,er1.de11ied, 537 U.S. "make law,"for all of the reasous so bril­ court to follow precedent of the U.S. 1090, 154 L.Ed.2d 635, 123 S. Ct. 695 liantly described by Mr. Justice Benjamin Supreme Court? No U.S.Code or any 2002).) "[WI here a suit in ... state court Cardozo in TlteNature of 1/reJudicial other statutory provision generally involvesa question arising under the Process( 1921): The rule that fits [a given] expresslyprovides such a result, although Constitution, laws, or treaties of the case may be supplied by the constitution section 25 of the Judiciary Act of I i89, 1 United States ..., a decision of the United or by statute. If. .. so, the judge looks no Stat. 73, impliedly does so in its laying States Supreme Court upon the point at further. The correspondence ascertained, out of the basis of supreme court revie,., issue is to be regarded as absolutely bind­ his(her) duty is to obey. The constitution of state rulings on federal Constitutional ing and authoritative... ," 14 Am.Jur., overrides a statute, but a statute, if consis· issues.(The language thereof has been Courts, sec.117, 336, eitillg So1111t Lent with the constitution, overrides the amended over the years.) There is, never· Cnroli11nv. Bailey.289 U.S.4 J 2, 77 L.Ed. law of judges.••· [But,I codes and thcless, ample authority for the require­ 1292,53 S.CL 667 ( 1933), and State statutes do not render the judge superflu­ ment in decisious of the U.S.Supreme Fireman's Fw1dIns. Co., 223 Ala. 134, ous, nor his[hcr]work... mcchanicaL Court and concomitant ones of the 134 So. 858 ( 1931), imer alia. Moreover, The.re are gaps 10be 6Jled... doubts and Alabama Supreme Court, interpreting '"The laws of the United States are as ambiguities to be cleared... hardships and and applying Article VI, clause 2, of the much a part of the law of Alabama as is wrongs 10 be mitigated. if not avoided.'' federal Constitution. That often-cited its own local Jnws.Blytht Y. Hinckley,180 Id. At 14. The great jurist adds: provision reads, in pertinent part: "This U.S. 333, 21 S.Ct. 390, 45 L.Ed. 557:'' "(And) ... when constitution and statute Co11stit11tio11,and the lAws of the United quoted in Walkerv. Jones,34 Ala.App. are silent,.. . the judge must look to the States ... madt i11Pursuance thereof. and 348, 34 So.2d 608 ( 1947), cert. denied 250 common law for the rule that fits the all Treatiesmade ... under the Authority Ala. 396, 34 So.2d 614 (1948). And yet, case:·Id. at 18·l9. If that were not so, of the United States, shall be the supreme states have from the beginning of the how would a judge apply, say,an amend­ law of the Land; and the Judges in every nation sought to evade their rcspo11Sibili­ ment to the Alabama constitution State shall be bound thereby, any Thing ties in this regard. For an early summary restricting "vehicles"to road,,.dysin a case in the Constitution or Lawsof any slate of the problem, see generallyWarren, in which a ridingJa,\fn ·mo\\•er\'/US to the Contrary notwithstanding" "Legislativeand Judicial Auncks on the claimed 10 full within its ambit, the (emphasis supplied). The Supremacy Supreme Court ... A History of the amendment lackingadequate defmitions? Clause so-caUedthus establishes three Twenty-FifthSection of the Judiciary (One day, should not we lawyerseducate things as the supreme Jawof the land: the Act."47 Am.l.Rev. l (1913). the public about this aspect of the com­ U.S.Cons1;1u1;on, laws made pursuant to But, what is a "Jaw" for the purpose of mon law so that its members will better il and treaties made under the authority constitutional adjudication; for examplet understand argumenls such as the ones of the national go,•emment. a "low of the United States"?(The tteaty being advanced here?) When considering matters under the portion of the Supremacy Clause is being In one of the few dictionaries available nation'sConstitution, state courtSa .rt> omitted here as irrelevant to present pur­ to the Framers of the U.S.Constitution, bound by decisions made on the same poses.) l.s it merely a statute or other law is defined, first, as "[a] rule of action" issuesby the nation's highest court. 20 enactment of Congress or of a state leg­ and, alternatively,as "(a] deace, edict, Am.)ur. 2d, Courts, sec.147, (530) ("A islative body, as in: "The Legislature otatute, or custom publickly (sic] estab­ United States Supreme Court decision makes the law; the courts only interpret lished as a rule of justice:• LYNCH(ed.), regarding a question of the construction it in the act of applying it to specific fac­ SamuelJolmson 's Dictio11ary... Se1ec1io11s or application of the Federal l'ualsituations"?-.'! dich~ uttered O\'er­ 290 (original publication date: 1755). One Constitution binds aU state courts in oftcn during campaign seasons. L.1w recent writer captured this understanding interpreting and applying federal consti• indeed includes, of cou1se,enactments of with his view that "Jawis 1101a tlti11g.Law tutional law"). The Alabama Supreme Congressionuland legislativebodies, acting is 11otsimply this or that particular rule of

I II I \ I \ IJ .\ ,\I A I -\ \\ ) I fl 275 law. Lawis more than this. Lawis princi• that state>within the meaning of the con• Defining ii properly,i.e,, as the word is pally an act. In particular, law is an act of stitution of the United States ...." Bier v. actually used (dictionaries are descriptive judgment."Cascarclli, "ls Judicial Review McGehee,148 U.S. 137,37 L.Ed.397, 13 more than they are prescriptivetools}. to Grounded in and Limited by Natural S.Ct. 580, 581 ( 1893). The Alabama include judicial opinions us well as acts, L1w?"30 CumberlandLaw Review416- Supreme Court frequently uses "law" in constitutio11s,and even such other things 417 (1999-2000) (emphasis in the origi­ d1isgenera l sense when it revises old or as lawfullyadopted rules and regulations nal). The authoritative Black'sLaw adopts new rules of procedure, as do of state agencies(see, e.g.ValJ:is v. Perry Dictionarybas featured the most com­ commen1111orson I.be" law of evidence," Drug Srores,inc., 204 Mich.App.481,516 plttc set of definitions, beginning with for example.The court itself sometimes N.W.2d 102 (1994)), eliminates needless the 4th ed. in 195I : Lawis "l1Jha1which speaks thus: The holding in case X debate on definitions from the on-going is laid down, ordained, or established "changed the law in Alabama;•but it is debate regarding what is included in the ( this is closest to the erymologicallybased not to be applied retroactively.See,for phrase "supreme law of the land." (11may history of the word].••• That which cxnmple,Osborn v. Roe/re,813 so.2d 811 ber ecalled that the definition of Jawwas must be obeyed and followed by citizens (Ala. 2001). There arc cases, typicallyo ld one of the issues in Gllllirot/J v.Moore, 229 ...... >1 'Theearliest notion of la," wasnot ones, which say that judicial opinions "do F.Supp.2d 1290 (M.D.Ala. 2002} [the an enumeration of a principle, but a not make the law": they simply "declare complicated procedural history eventually judgment in a particularcase."' Id. at the law as it existed before."Bloodgood v. resulted in affirmanceby I.he 11th Circuit 1028.Of course, it also includes legislative Gmsey,31 Ala. 575 (1858). But, such Court of Appeals,335 F.3d 1282, and cert. acts. constitutions,the common lav.•,and statements are mere circun1locutionsand, denied by the U.S. Supreme Court, 540 "judicial decisions,judgments or decrees," regardless,do not square with the way Lhe U.S. 1000, 154 LEd.2d 404, 124S.Ct. 497). as wcll as ordinances."Id. The most word is generallyused today: nor does it The district court held that placen1entof a recent edition of Black'sbegins the defini­ square with the implications of section large granite monument in the State tional list thus:" I. The regime that orders 12-2-13, Codeof Alabama ( 1975): "The Judicial BuildingRotunda, engraved with human activities and relations through (state) Supreme Court, in deciding e.ich Ll1e Ten Commandments, by the Chief systematic application of the force of case when there is a conflict between its Justice of the Alabama Supreme Court politically organized society ...; the legal existing opinion and any former ruling in constituted "law" for the purposes of system .... 2. The aggregation of legisla­ the case, must be govemed by what, in its Establishment Onuse analysis.}The only tion, judicial precedents, and accepted opinion, at that 1i111eis la~v,\\f ithout any limitation placed on laws in the legal principles ...." Black'sLaw Dictionary regard to such former ruling on the.law Supremacy Clause is that they be made 900 (8th ed. 1999;2004). by it ....(emphasis supplied]." (Q.: Does pursuant to the U.S.Constitution. Thus, it A non-specialized dictionary defines that la11guagcabrogate the "law of the is that treatises include such statements as Jaw to be "a binding custom or practice ca$e doctrine,"\'Vhich continues to pop up this one: "State courts are bound 10g ive of n co mmunity: a role or mode of con· in case law?Papnstefa11 v. B&L Consrr.Co., effect to federal law when it is applicable duct or action ... prescribed or fom1ally 385 So.2d 966 (Ala. 1980),says it does.) and to disregard state law when there is a recognized as binding by a supreme con· What differencedoes it make how "law" conflict; federal low includes, of course, trolling au.thority ...." Webster's11,ird New is defined, particularly herd Simply this: not only the Constitutional a!ld rongrcs- Int'/. Die1io11ary1279 (2002). 111cEnglish authority on definitions defines it over the course of four pages, in part, as "la) rule of conduct imposed by authority. ••• The body of rules, whether proceed­ ing from formal enactment or from cus­ tom, ,vhich a particular state or commu­ nity recognizesas binding on its mem· bers .... The action of the courts of law .•.." Oxford E11g/i$l1Dictionary "L," 113- 117 (compact ed.1971). Courts that have addressed the matter directly have concluded that "laws" include more than statutes. A California court concluded, for example, that "(i]he term 'Jaw' includes decisions of courts, as well as legislative acts."Miller v. D111m,72 Cal.462, 14 P.27, 29 (1887). The same is so of the constitution of a state, which the U.S.Supreme Court has said "is a 'law' of

276 I U LY 2 o O 6 sionolenactments and treaties but as weU the Constitution, and that principle has the interpretationsof their meanings by eversince been respectedby the Court the UnitedStates SupremeCourt;' citing and the cow1tryas a permanent and the seminolcase of Cooperv. Aaron, 358 indispensablefeature of our constitutional U.S. l, 3 LEd.2d 5, 78 S.Ct. 1401(1958); system.It followsthat the interpretation see infra.Jayso11 et al. (eds.), Thi, of the Pouneentb Amendmentenunciated Constit11tionof the UnitedStates of by this Court in the Browncase is the America871 (Libraryof Congress1973 ). supreme lawof the land, and Art. VJ ... Seca/so, Hoke, "Transcending makesit of binding effecton the states ConventionolSupremacy: A 'any Thing in the Constitution or Lawsof Reconstructionof the SupremacyOause;" any State to the Contrary notwilhstand­ 24 Con11.LR.829, 848-849 (Spring 1992) ing.' Everystate legislatorand executive (the Court now recognizes,not only acts and judicial officeris solemnly committed ' of Congress,b ut actions of federolagen• by oath taken pursuant to Art. Vl, (clause cies, the Presidentand "the federaljudici­ 31'to support the Constitution.'·•• No e e Ser.vi ary, which pronouncesfederol common state legislatoror executiveor judicial offi­ ~~.rstll~B~f!Ntll lawof both the constitutional and non­ cer can \varagainst the constitutionv1ith • ~can~you111ith11t~ constitutionalgenre"). out vioLuinghis undertaking to support ii,ea~of..liing a living.si:, It lshanl 1D Given that the SupremacyClause it."Cooperv.Anro11at1409-1410. It mat­ ,believeihat linJyihree peiunt ofAlalJail,;J 1attorneys j>ankipate inthll.Sffiicel requiresstate court judges (and other state ters no1 whether one agrees with• partic­ UIS wantsyou to conlid<', joining. officials)to "support" the federolconstitu­ ular ruling, be one governor,legislator or TheL;,wyer Referral Seivice is oot a pro tion. treatjesand laws.not\~thstnnding justiceof the state supreme court. booolegal seNice. Att to earninga fee for yoor ser,­ to keep from fulling.. . ft)o keep from Supreme Court, on Federal questions;' k~ thegrea11!r reward isthat \IOU Vlll be weakeningor failing;strengthen." The 147ALR. 857 (n.d.) (the Alabama ~ ~ felowcilizens. Most relenal dimtshave ne,,,r ronlac!Ed a iawyl'< beloll.'. America,, HeritageDictio11ary of 1/,e Supreme Court has answered the implicit Yourwunselilg may be all that is needed. or Eng/isl,La11g11age 1804 (3d ed. 1992)."1 11e query both ways,but the general federal youmay offer funher services. Nomane, opinion in Cooper,,Aaron (sicJ ... pro­ rule is that state courts are not obligated ~ theouttorne ol lhe initial

I H f ,\ l ,\ R ,\ .\f .\ I .\ l\ r I R 27 7 the severalStates, shaObe bound by Oath follow U.S. Supreme Court precedent? purview of the (U.S. C]onstitution. Judges or Affirmation, 10 support this The U.S. Constitution itself embodies the of equal learning and integrity,in different Constitution ...." The nation's highest public policy reasons. Thomas Healy in states, might different.ly interpret a statute, court hos held since nt leost 1858that the "Stare Decisis asa Constitutional or a treaty of the United States,or even tht desire of the people of the coun!Iy to pre­ Requirement," 104 IV.Va.L.Rev.43, 108- !Cl onstitution it.l. marily on precedent, they have Jess room Qmstitutio11a/I.mv T(2000), Laurence Justice Joseph Story likewisestated in his to exercisediscretion or bias." Tribe opines: "However dcbar,,ble one Co1111ne.nt11rieson rlre Constitution of 1l1e Such values hnv,:special relevanceto fiads the conclusion of Marbury v. U111uulStates thal officers sworn to sup­ oppeUatecourl reviewand the adherence Madison,the holding of Marun v. port the Constitution are 'conscientiously of one court to the rulingsof its"s uperiorlt Hunter1s Lesseewas quite plainly com .. bound to abstain from all nets inconsistent court or coum. Jerome Hoffinan pclled by the structure of the federal sys­ with it,"and thnt in cases of doubt they ,iescribed the fuctors in these words: tem." See, e.g., Oliver Wendell Holmes, must "decide each for himself, whether, "Appellate.. . review is thought to I 11foster CollededLegal Papers 293 [1920) fcited as consistently with the Constitution, the act uniformity in the decision of similar cases, indicated! ("l do not think the United can be done.' But taking the oatl1does not 121the maintellllnceof judicial discipline, States would come to an end if Ithe relievea judge from obedience to higher 131some relief from arbitrariness and Courtf lost lits! power to declart an act judicial authority, even if he thinks the caprice at the local Ii.e., lower court! level, of Congrrss void. l do think tl,at the higher court wa, acting contrary to the 141some compensation for the une,·en Union would be imperiled if we could Constitution. Glassrot/1v. Moore(2003).'' quality of trial-leveljudicial skills,and (5I not make that declaratfon as 10 the laM Meeseer al (eds.), 11ieHeritage an appearance that the judiciary is striving of the several Slates"). Tribe al 25, foot­ Fo1111dntio11G111de to tlic Conslitution195 for fuirncss."''AlobamaAppellate Courts," note 8. So, there are policy reasons for the (2005). In Exparte Selma 6- Gulf Railroad 46 Ala.L.Re1<843,843 (spring I 995). The requirement that the Alabama Supren1e Co., supra.this state's supre1necourt 6rst factor enumerated by Hollinan is of Court follow the precedents of the U.S. affirmed the importance of the oath in a special significancein the context of the Supreme Court-the same reasons nppli· separation of powers casethat reminds its precedential case law at issue here. In fact, cable within the state to prevent local cir­ readers that both the legislatureand the it was used as a part of the rationale for cuit, district, juvenile and probate judges court "acts under ... sanction of an oatl1, the U.S.Supreme Court's holding in and judges of the two courts of appeal and fealtlyto the best interests of the peo· Marriu v. H1mrer'suss«, I WheaL304, 4 from generating different law within and pie, whose agents they are." lei.at ·22. L.Ed.97 (1816), that the federal court in among ils 67 counties. Othenvise, how can others be held to civil caS

278 I I.IL Y 2 0 0 6 thepc)Wet . notmeiely to interpretthe stata ·s lhen­ curreotconsUtlltlon. bot to strikedawn en actof the legislaturefound 10 be repugnant101he staw consti­ tution.Oy,,r • Tuskaloosa(sic/ 8nd/ie Co .. 2 l'cn. 296 tAla 183S)(lhe coun in 111,stmlnenl domain we didnot choose to exercisethe f> Ala.439 (18561 The same pow8f is affirmedin st/Ch recerucasos a, Oryol Daphnev. Ory ol Sf)611ish Fo,t.faornote 4 svpraSee also Rir:, v Engl/shin lhe ""' (conc!ucf,ng,in l)a/1. lhat ·me a111horityol rhls Coonto mvlewchallenge$ to actsof the legisla1ura onconsbtuuonal gratmS js a bedrodcpnnciple of ourSta1e·s legal tenrage. - id at 162) 6. Rliet0<1ta1and legal Sludies maka clear !he harards of definrtions.for tJ,eultimate meaniTQS of \VOrds an,no, in lhebooks peop4e read. but Inpeople them­ ls the AlabamaSupreme Court obliged Endnotes selves.Morecr.v, 1t ts weUkrown that '"peril lurks to foUowprecedcntial case law or the Seethe specialconwrence of Jus11caTom Partor ,n in definillOOS... C.rr!OlO, SelJJCted Wnt1119$ I6 United States Supreme Court? Om there Birmingham.JeffersonCivic Cllllt8f Authanty v City ll947l quotedin Thomlon,-p,ed~1abld "unconsuM.ional dot· (July1972) Tt,;s fascinaring e"8y includesminer· it-both the casel aw of past and present ~ineol judielalsup,emacy" end lamo111s lhe ·turning ovsdelirtitiom of ·tav,• AAexcellent recent article In this publication majoritiesof the state's highest court and &\VBVfrom oor national compact by federaJcourts( , abouttl'e moregeneral pn,blem 01.,,e,p,eM(I legal the state constitutionallymandated oath whichlnO\Y threatens our country with a cons.1i1u· tionalct1s:cs." kl. at 223·24 languageis Ayers, "Unpaclong Alabama's Plain­ of officewhich all justices have sworn to MeaningRul!l : 67 AJ/lb.imll/.tlivye, 31 (January or affirmed.Moreover, Alabama's own 1- Thomeanmg of Illewo,d ·1aw · haJspecial signifi­ 2(0;1,"'11Ch wall reminds Judges and pacUUOOOls cancein 1hi.s context. for reasons to be seen aJilethat "all t~ms require inierpreuuion on some appeUatecourt system,which requires that AccOW1!1· AlabamaCoosuwuon of 1901 judges have sworn to or affirmed. Third, less before·wrong" or 8\'Bnoopoputar decisK>ns ot lhe nation'sh~ eounl publicpolicy considerations dictat e that 5 Thepower to dosuch ii. of course.what ,s usually refem!dto as -Jt.dicialreview: If the promlseo! thJ.S the state's highestcour t followU.S . prerr.1sewete eve, broken. then the argumentot this Supreme Court precedent,particularly the en11raessay lh'1IUld titely faJI.aJong with theunified overridingvalue in the federalsystem cre­ federallegal system. After 200-plus re,~ that is 001 likelyfor most law,,,B.,., laypersoos"""'lor tao ated by the U.S.Co nstitution of unifom1i­ lotQectepted lhe premise That as 00110 say. l>ow· James F.Vickrey eve,, A.fatbury /..-fandison to ty of resolutionof the "federalissues" that v does no1con1 inoo A fonnerm11 unM111il'f,Prtttl implicatedby Artie.le VI,clause 2 of the bearlhe bruntof cnucismas the fir$1$11th Jud~lal dentpe:,en,ly profeswrrA opinionin Americanhisury. See gllffllfBl/yfornega, nation's organic laiv, spocchCOnm.llicttJ(rl II. T1oy ti"1reviews. OmtM, Mqlbury V MadiSMAl>d u~ r, 111dac:tiYo member ol Emphasison the obvious is often more JudicialRe1'i•wl1989l ard meohen-c,1ed theAIMllml Sta11 S.t auu important than eluddation of the VanAJ,,.,,....-A Crirical Guide 10 MsdJ1\ and the blP,1 aut He live,,and -Mr. Justice Oliver WendellH olmes, Soinm•Coun's Superviso,y Powers: IOI woRs InMail90mlrt ini hold, llit PhQ deoiN ln,n quoted in Rosen," The Art of uadfog Co/umLllev 1515(2001( and looise Weinberg . ·our FloridbSune Urwerlllv $I'd the J D. fromThnmas Martuy; 89 Va.LRov1235!200'.l) GoodeJan& S

T II f. \ l :l B :\ Af A l .\ \\.' Y I U 279 fl\ ' II'. .,corr q.11/'SO :\' ,\ ,\ '{) 0 .111R Kl·,,IKI I

under Section 7 of the FederalArbitration Act ("FAA"),and the Introduction controversialissue of nonpany discoveryin arbitration. This arti­ rbitration is now generallyacetpted in the legalcommuni­ cle wiUthen discuss the scope of discoverypermitted under main­ ty as a mainstream method of alternat.ive dispute resolu- stream institutionalarbitration rules-the CommercialRules of the A 1ion,Arbitration is widelyused in a varietyof contexts, AmericanArbitration Association ( "AM"), as weUas issuesinvolv­ lndud.ingdisputes involving con1mercial transactions, conswner ing the enforcementof arbitration discoveryorders. transactionsand employment relationships.Some of the primary Ideally,a dispute that parries have agreed to arbitrate should benefits of arbitration are speed, efficiencyand cost savings. be handled within the confines of arbitration, without resorting However,these benefitscome wi~, significanttrade -offs as weU­ to litigation either before or after the bearing. Unfortunately, the primary one being limited discovery,Unlike litigation under this docs not alwayshappen. It is common for parties to litigate the FedernlRules of Civil Procedure,discovery in arbitration can be the arbitrability of thcir dispute in court before submitting 10 very limited.Discovery devices such as interrogatories,requests arbitration. Similarly, after an arbitrator issues an award, parties for admissionsand mental eJC1minationsarc generallynot son1etimeschoose to attack the avrordin court under one or employed in arbitration. Depositionsof parties are common in more of tbe statutory and common law grounds for vacating an arbitration,bul depositionsof nonpartiesare rareand some,.,hat award. 9 U.S.C.§ JO (statutory grounds for vacating arbitration controversial.These discoverydevices although usuaUyhelpful in award); Binning/ramNews Co. v. Hom, 90 I So. 2d 39, 65 (Ala. developinga case,can be very expensive.John C. Koski,From 2004)(adopting "manifest disregard of the law" as a common Hide-Aud-Seekto Sl,ow-And· Tell:Evidentiary Disclosure Rules, I 7 law ground for vacating arbitration award). Am.}. TrialAdvoc. 497 ( I993 } (Noting that attorney's feesgener­ Fortunately,the policy of limited discovery in arbitration ated from discoveryaccount for 40 to 60 percent of a law firm's bleeds-over into "arbitration-related proceedings'"in court, profits}. That's why many potential litigantsare opting for arbitra• whlcb this article defines as litigation leading up to arbitration tion of their disputes.Arbitration is a streamlined processthat (a motion to compel arbitration under Section 3 of the FM, or limits discoveryand savespeople money in the process. an original petition to compel arbitration under Section 4 of the This begsthe question: How much discoveryis permitted in FM. }, and litigation instituted to challenge an arbitration award arbitration?The answer 10 that question is it depends on a variety (an appLicationto vacate an arbitration award under Section 10 of fuctors,in duding the institution chosenby the parties to admin­ of the PAA). State and federal courts bave crafted special rules to ister the arbitration,and the person against whom the discoveryis limit discoveryin arbitration-related proceedings because par­ directed.· Ibis artidc willexplore these issues,beginning firstwith ties frequently try to drcwnvent the discovery limitations of the public policyof arbitration and its applicationto discovery arbitration through broad-based discovery in court. This article issues.Thi$ article will explore the scopeof discoveryavailable will discuss tl1ccontours of those rules.

280 JULY 2 006 ln Gilmer v. lmersrate/John$0nLaue Corp.,the United States The Public Policy of Supreme Court affinned the policy of limited discoveryin arbitra­ tion. There, the Court rejected the argument of a plruntiff,who Arbitration and Its made an age discrimination claim, that the limitationsof discovery in arbitration precluded hin1from effectivelyproving his case. Application to Gilmer also complains that the discovery allowed in arbitration is more limited than in the federal courts, Discovery Issues which he contends will make it difficult to prove discrimi­ The primary goalsof arbitration aJ'espeed, efficiencyand nation. It is unlikely,however, that age discrimination reduction of litigation e~nse. Bunon v. Busl,,614 F.2d389,391 claims require more extensive discovery than other claims (4th Cir. 1980).Potential Litigantsopt for arbitration, as opposed that we have found to be arbitrable, such as RICO and to litigation,because arbitTation is a faster and less formal method antitrust claims. Moreover, there has been no showing io of dispute resolution. Forsytlielmcmat'I., S.A. v. Gibbs Oil Co.of this case that the NYSBdiscovery provisions, which allow Texas,915 F.2d 1017,1022 (5th Cir. 1990).A primary reason for for document production,information requestsldeposi .. this is that fo,·maldiscovery under the Rulesof Civil Procedure tions and subpoenas ... will prove insufficient to allow generallyis not allowed in an arbitral proceeding.Commercial ADEA claimants such as Gilmer a fair opportunity to S,,lventsCorp. v. Louisianaliquid FertilizerCo .• 20 F.R.D.359,362 present their claims. Although those procedures might not (S.D. N.Y.1957); Sc/Jnclu v. HartfordFire Ins. Co., No. 91 C 2228, be as extensiveas in the federal courts. by agreeing to arbi­ 1991U.S. Dist LEX1S16430,'12 ·' 13 (N.D. IU.November 6, trate, a party "trades the procedures and opportunity for 1991). The court in In re TeclmostToyexportunderscored the dif­ review of the courtroom for the simplicity, informality ferencesben,ecn discoveryin arbi1rntionand Litigation: and expedition of arbitration." 500 U.S.20, 31 (1991)(c:itationsomitted). It appears to be generallyaccepted that the rules and pro­ ceduresin arbitration are intended 10 be radicallydifferem Becausediscovery is limited in arbitration, a court should stay from the rules and proceduresin the courts. Arbitratorsgov­ discoverywhen ordering a case to arbitration pursuant to Section em their own proceedings,generally without assistanceor 3 of the FAA.9 U.S.C.§ 3; Bender v. A.G. Edwards& Som, foe., interventionby a court. Whether or not there is to be pre­ 971 F.2d698,699 ( II th Cir. 1992);Owens v. CoosaValley Health hearing discoveryis a matter governedby the applicablearbi­ Care,Inc., 890 So. 2d 983, 989 (Ala. 2004). Similarly,courts should tration rules (as distinct from court rules) and by what the not permit discoveryto be undertaken simultaneously in court arbitrators decide. It ha., beenexpressly held that a Federal and arbitration because of conflictswith the arbitration process. District Court has no power to order discoveryunder court In MississippiPower Co. v. PeabodyCoal Co.,the court discussed rules where the matter is being Litigatedin an arbitration. the rule precluding dun! or "double-barreled"discovery. 853 F.Supp. 695, 697-98 (S.D. N.Y. 1994)(citations fTJhe parties should be held to their agreement and to omitted). the availabilityof Rule 30 of the Rules of rhe Americnlf

1 II I 1\ I \ 1' A ,\J t\ l ,\ \\ ) l ll. 281 Arbicmtio11Aw,cintion. Backed up by the federal statute. under what has been referred to as the "exceptional circum­ this rule allows the arbitrator. in his discretion, to permit stances• exception. Petm Ta11kerCo. of Delawarev. C.H.Z. any discovery necessary to the perforrnante of his func­ Rolimpex,Wnrsznwa, 199 F.Supp. 716 (S.D. N.Y. 1961).The tion. There should be no necessity for double-barreled dis­ court in Koci,Fuel lmcmat'L /11c.v. MN Sout/1Star applied this covery,proceeding simultaneously under the supervision exception to permit a partyto an arbitration to depose a ere\'/ of the court, on one hand, and under the supervision of member of an internationa.l vessel that was aboul to leaveport the arbitrator, on the other, a situation fraught with the in order to perpetuate testimony. likelihood of confiicts, duplications, hindrances and Although discovery on the subject mutter of a dispute to delays,nil basicallyin conflict with the arbitration process, be arbitrated generally has been denied, courts have recog­ as demonstrated by the mai,y cases hcreinabove cited. This nized that discovery may be appropriate in exceptional course avoids anything inimical to the obligation to arbi­ circumstances. One of the "exceptional circumstantes" in trate, yet it will not deprive the plaintiff of the benefits of which discovery has been deemed proper is where a vessel discovery,,vhich can be had, if needed, al the hands of the with crew members possessing particular knowledge of arbitrator and under his direction. the dispute is about to leave port. 69 F.R.D.558,567 (S.D. Miss. 1976). 118 F.R.D.318,320 (E.D. N.Y. 1987)(citations omitted). FederalRule of Civil Procedure81 (a)(3) specificallylimits the This exception is very narrow, and should be applied only in application of the FederalRules to proceedings in court "relating cases when a party faces the prospect of losing the ability to to arbitration."The discovery rules applicable in court have no obtain relevant and material evident< based on delay.Therefore, field of operation in an arbitral proceeding. GreatScott unless a party proves that the discovery sought is "vital," and Supennnrket.s,Inc. v. Locnl Union No. 337,363 F.Supp. 1351 that the inforn1ation n1aybecome "unavailable,"'courts generally (E.D. Mich 1973);lmtmat'I Brothul,ood ofTenmsters, will not permit a party to engage in discovery initiated in court Chnuffe11rs.nnd Ware/1011seme11of North America,363 F.Supp. when a case is ordered to arbitration . 1351 (E.D. Mich. 1973);Foremost Yam Mil/$,lnc. v. RoseMills. /11c.,25 F.R.D.9 (E.D. Pa. 1960); Co111111e,rcialSolve11ts O!rp." Louisiana liq11idFertilizer 0,., 20 F.R.D.359 (S.D.N.Y.1959). The SevenLhCircuit Court of Appeals explained this rule in Discovery under Section Champ •. SiegelTrndi11g Co., lnc.: Rule8 L(a)(J) only applies to judicial proceedings w,der 7 of the Federal the FAA.These include: a stay of a suit in which an issue involved is referable to arbitration (9 U.S.C.§3); o petition Arbitration Act for an order compelling arbitration ( 9 U.S.C.§ 4 ); an Section 7 of the FAAempowers a.rbitrators to compel witness­ application for the appointment of arbitrator1

282 I U LY 2 o o 6 their punishment for neglect or refusal to attend in the material as evidence in the case."The phrase "any person" has courts of the United States. been uniformly interpreted to include nonparties to a proceed­ 9 u.s.c.§ 7. ing..However, there is some disagrecn1entam<>ng federal circuit courts of appeals over the scope of an arbitrator's power to com­ As a Uiresboldmancr, it is important to point out U1atparties do pel a nonparty 10 respond 10 a discovery request beforean arbi­ not technicallyconduct discoveryin arbitration; instead,the arbi­ u:ation bearing. _Four dilfcrent rules have emerged among the tratorsconduct all discovery.Burton v. Bush,614 E2d 389 (4th Cir. 1 htrd, Fourth. Sixth and Eighth Circuit courts of appeal,. 1980)( arbitrator-not the parties-has the power of subpoena); The Sixth Circuit Court of Appeals interpreted an arbitrator's Stn11to11v. Pauie WebberJack,011 & Curis,Inc., 685 F.Supp. 1241 (S.D.!-la . l 988)(arbitrntormay conduct discovi,ryas he 6nds neces­ powers lih

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T II I A I A R ,\ .l\f \ I A \\ ) f. R 283 The Fourth Circuit Court or Appeals adopted a narrower view www.ndr.org/Ovcrview).The CommercialRules set forth a variety or Section 7. In COMSA1'Corp. v. NationnlScience Fou11d'11, 190 of ru les that establish the contours of dis,;overy among the par­ F.3d 269 {4th Cir. 1999) the court remarked, in what was ties. Nonparties are not strictly bo,u1d by these rules because the arguably dicta, that Section 7 or the FAAdoes not empower an rules arca matter of contract arising out of an arbitration agree­ arbitrator 10 subpoena a nonparty to a pre-hearing deposition n1ent that incorporates the rules. Under the Co1n1nercialRul~ or produce records before the arbitration hearing without a an arbitrator has broad powers to order discovery between the showing of special need or hardship by the party seeking discov­ parties. Although arbitrators technically conduct discovery in ery. The court did not define the requirements or a showing of arbitration, it is common for the parties to handle discovery special need or hardship, but stated that, at a minimum, the themselves as a practical matter. information sought must be unavailable otherwise. One of the most important rules is Rule 30, which vests the The most conservativeinterpretation of Section 7 comes from arbitratorwith the power to conduct the proceedings as he secs the Third Circuit Court of Appeals. In Hay Group,/11c. v. E.B.S. necessary.The power 10 direct the proceedings includes the AcquisitionCorp ., 360 F.3d404 (3rd Cir. 2004) the court held that power to control discovery as well. Under Rule 31, an arbitrator Section 7 or the FAA vestsan arbitrator with the power to require has the ability to decide what evidence is material, relevant and nonparties only to anend the arbitration hearing, produce records necessary.Th is rule also gives a.n arbitrator the power to subpoe­ and testifyduring the hearing. Pre-hearing discoveryis foreclosed. na witnesses and documents. Rule 33 gives an arbitra tor the l.111erestingly.Circuit JudgeTchertoff, in a concurring opinion, power to conduct an inspection or investigation. It does not remarked that an arbitrator has the power to convene a special expressly permit an arbitrator 10 order the physicalor mental hearing for the purpose of receiving documents from a nonparty, examination or a party, which is permitted in court under and then may adjourn the hearing.The ultimate hearing on the Federal Rule of Civil Procedure 35. However, there is legal merits would be convened sometime later under this approach. authority for the proposition that an arbitrator has this power The Eleventh Circuit Court of Appeals has not decided the nonetheless. SunshineMining Co. v. U11itedStates Ste,,lworkers of issue or an arbitrator's power to require discovery from nonpar­ America,AFL-CIO, CLC amf Local5089, UnitedSteelworkers of ties. However, in Stanron v. PaineWebber Jacksou & Curtis,Tnc., America,823 F.2d 1289, l295-96 (9th Cir. 1987). 685 F.Supp. 1241 (S.D. Fla. 1988) the Federal District Court for The Commcrcia/Rules do not expressly provide for deposi­ the Southern District or Florida held that an order from an arbi­ tions in a typical case. However, Rule 22 states that in a prelimi­ trator directing the production of documents before the hearing nary hearing, an arbitrator may establish "the extent of and was permissible. According to the court, the FAA gives arbitra· s,;hedulc for the production of relevant documents and other tors the power to order and conduct such discovery as they find information." Some arbitrators interpret the "other infom1ation" necessary.This decision, although somewhat dated, expresses the language to include the power to order depositioas. See A Guide most liberal reading of Section 7 in decisional law. for Commercial Arbitrators, www.adr.org/sp.asp?id'220J6.In any Recentcases seem to dra,..,a distinction btt\v~n requiring event, full-blown litigation-like dfacovery is not contemplated nonpartics to produce records before an arbitration hearing as under lhe AM CommercialR11les. opposed to requiring nonparties 10 testify in deposition on a pre-hearing basis. The former practice appears permissible, whereas the latter practice has been condemned as being beyond Enforcement of the scope of Section 7. See HawaiianElectric /11d11srries, Inc. v. Hei PowerCorp., No . M-82, 2004 U.S. Dist. LEXIS12716 Arbitrator Discovery (S.D.N.Y. May 25. 2004);J11tegrity Ins. Co. v. A111crica11 Ceme,mialIns. Co., 885 F. Supp. 69 (S.D.N.Y. 1995); D011gla.s Orders Brazellv . AmericanColor Graphics, No. M-82 (AGS), 2000 U.S. Dist. LEXJS4482 (S.D.N.Y.Ap ril 6, 2000). An arbitrator's power Sometimes,arbitrators are called upon to enforce discovery to order nonparty discovery under Section 7 is far from settled. orders. An arbitrator has a limited array of tools to enforce dis­ The United States Supreme Court will likely be called upon to covery orders as between the parties to the proceeding. An arbi­ resolve this important issue in the near future. trator may draw a negative inference against a party who refuses to produce records ( www.ndr.org/sp.asp?id'22026).In an extreme case, an arbitrator has the power to strike a party's claims or Discovery under the defenses.There is some authority that an arbitrator may award monetary sanctions for discovery abuses. Philip D. O'Neill, The Powerof Arbitmtorsto AwardMonetary Sanct ionsfor Discovery Commercial Rules of the Abuse,Dispute Resolution Journal, pp. 60-69, 75 {Nov.200!;..Jan. 2006). A party also can apply to a court for an order enforcing an American Arbitration arbitrator's discoveryo rder. W,,,-temEmployers Ins. Co. v.Merit Ins. Co.,492 F. Supp. 53 {N. D. lll. 1979)(court that orders a case Association to arbitration retains jurisdiction to enforce discoveryorders of The CommercialArbitration Rules of the AAA are among the the arbitrator); \Wkcs-BarrePublishing Co. v. NewspaperGuild of most widely used arbitra tion rules in the country. (The AAA Wilkes-Barre,Local 120, 559 F.Supp. 875 (M.D. Pa. 1982)(subpoe­ administered more than 230,255 cases i,12002. See nas in labor arbitrations are to be enforced by the courts).

284 JU LY 1006 Because arbitrators lack the power to enforce discovery orders court case,a party may move to stay the court proceeding and against nonparties to a proceeding, a party seeking to enforce an have the case ordered to arbitra tion pursuant to Section 3 of the arbitration subpoena against a nonparty should app ly to a court Federal Arbitration Act. 9 U.S.C. § 3. Similarly, a party wishing for relief. Sec Co111111ercialMeta/$ Co. v. l11temario11alUnion Marine to invokean arbitration agreementmay file an original petition Corp.,318 F.S upp. 1334 (S.D. N.Y. 1970)(coun may hear motion in court, and move to have the agreemen t specifically enforced. to quash arbitrator subpoena ); Amgen Inc. v. Kid11eyCenter of 9 U.S.C. § 4. ln either case, parties opposing arbitration have the DelawareCount )\ Ltd., 879 F. Supp. 878 (N.D. Ul. 1995)(discussing right 10 raise defenses to the arbitration agreement; in which enforcement of subpoena in another jurisdiction ). case, discovery may be neCCSS8ry. Federal case law generally permits a party to undertake limired discovery on the issue of arb itrab ility. /,r rlie Marrerof rhe Discovery in Applicatio11of Deiulemnr Compagnia Di NavigazioneS.P.A. For tire PerpelllationofCerrai11 Evidence v. A.llegm,198 F.3d 473 (4th Arbitration -Related Cir. 1999} (Rule 81 of the Fed.R.Civ.P. authorizes a district court, in enforcinga n arbitration agreement, to order discovery Proceedings purs uant to Fed.R.Civ.P. 26 on matters relevant to the existence of an arbi trat ion agreement); Champ v. Siegel Tradi11gCo ., 55 Courts are frequently called upon to decide whether a dispute F.3d 269 (7th Cir. 1995) (same); Penn Tanker Co. v. C.H.Z. is subject to arbitrat ion. In these instances, parties may challenge Rolimpex, Wamawa, l99 F. Supp. 7 16, 718 (S.D.N.Y. 1961) the scope of an arbitration agrtt ment, or test its enfo rceability (same). Broad·based fact discovery is not allowed. A party based on any number of state contract law defenses, such as undertaking broad-based discovery before moving lo compel unconscionability, for example. Discoveryis sometimes neces· arbitratio n runs the risk of waiving the right to compel arbitra­ sary to develop facts relative to the issues raised. Similnrly, after tion. Stone v. E.F.Hurron 6- Co., lrlc.,F 898 .2d 1542, 1543 (11th an arbitrator issues an award, parties are permincd to challenge Cir. 1990); Jones-Williams ConstrucrionCo. 1•. Town & Cormrry the award in court, pursuant to Section 10 of the FM, which Proper,y.L.L .C., No. 2040451, 2005 Ala. Civ. App. LEXJS470 sets forth the statutory grounds for vacatur. 9 U.S.C. § 10. (Ala. Civ. App. August 19, 2005); Jan1es W. Davis, "When Does a Motions to vacate arbitration awards are relatively rare. Party Waive It.$Rig ht to Enforce AJ'bitratio n?: Commo n Law However, there are some cases that may requi re the development Defense Limi t," 63 Ala. Law. 42, 46-47 (2002). Howev.r, as long of facts beyond those presented in the arbitratio n hearing itself. as a discovery request is narrowly tailored to the issue of arbitra­ For examp le, a court may vacate an arbitration award if the bility, a federal court shou ld grant the requesL cour t finds that the arbitrator acted with "evident partiality" or Case lnw in Alabama is fuidy well-developed on this issue, corrupt ion. 9 U.S.C. § 10(a)(2 ); see a/$0 WaverleeHomes, Inc. v. partly because Alabama appeUate courts decide more cases on McMichnel,855 So. 2d 493,508 (Ala. 2003)(adopting evident the enforceability of arbitration agreements than any appellate partiality standard in Alabama ). This is a difficult standard to court in the country. W. Scon Simpson, Stephen J. Ware & Vicki meet, and may require the develop ment of facts establishing that Willard, "The Sou rce of Alabama 's Abundance of Arbitration the arbitrator had an undisclosed conflict of interest, for c.um ­ Cases: Alabama's Bizarre Law of Damages for Mental Anguish;" ple. From a practical standpoin t, post -award discovery may be 28 A. J. Trial Advoc. 135, 160 (2004). ln Alabama, a party oppos ­ necessary to discover such mets. ing a motion to compel arbitration has a limited right to con ­ Of course, broad-based discovery in court is inimical to arbi ­ duct discovery relative 10 the arbitra tion issue if such party tration. Couns are understandably reluctant to grant parties establishes that it is unable or virtually unab le to obtain relevant unrestr icted leave to undertake discovery when the underlying evidence. Ex parte Greenstreet,Inc., 806 So. 2d 1203, 1208-09 con troversy has been (or will be) decided in arbit ration. (Ala. 200 l ); Ex parte Horto11Family Housing,Inc., 882 So. 2d Through decisional law, rules have emerged that st rike a balance 838, 840 (Ala. 2003 ). 1n that circumsta nce, the opposing pany between the need for some discovery in an arbitration-rela ted must present a factuaUy-bascd pred icate to the court establish ­ proceeding, and the protection of the integrity of the arbitral ing what the party knows, what it expects to discover and why process, which demands limited discovery. The following discus­ that information mailers. Alabama has no analog to Federal sion summarizes the leading rules in this regard. Rule of Civil Proced ure 81 (a)(3), which per mits a federal court to apply the Rules of Civil Procedureto arbitration-re lated pro ­ ceedings in court. Nevertheless, Alabama courts address motions Discovery in to compel arb itrat ion like motio ns for sum mary judgment under Alabama Rule of Civil Procedure 56. Thus, the rule Connection with requiring a "factually-based pred icate" is grounded in Alabama Rule of Civil Procedure 56(f), which permits a party opposi ng a Proceedings to Compel summary judgment to delay a hearing on the mo tion in order to obtain add itional discovery. Ex partc WalkerRegional Center v. Arbitration Potts,825 So. 2d 741, 744 (Ala. 2001 ). A party urging a motion to compel arbitration also has the right to cond uct limited arb i­ Procedurally speaking, there are two ways that a court may be rration discovery 10 gather evidence necessary to support the called upon to decide the arbitrabil.ity of a dispute . [n a pending

l I I I A I ,\ H ,\ ,\J ,\ I ,\ \\ )' I U 285 motion and to rebut contrnct defenses raised in opposition to defenses. Moreover, in the context of a claim of arbitral the motion. H 6-S Homes,l.LC. v. McD011ald,823 So. 2d 627, bias, the court may insist that the chaUcnging parry proffer 630 (Ala. 2001 ). some evidence of arguable misconduct before permitting discovery, particularly if it is addressed to the arbitrator. National HockeyLeague Players'Assoc. v. Bettman, No. Discovery in 93 Civ. 5769 (KMW), 1994 U.S.DisL LEXISJ 160, •20-21 (S.0. N. Y. February 4, 1994)(citat ions om itted). Connection with Relying on Andros,the Ninth Circuit adopted a similar rule in Woodsv. Sorum Dist. Cqrp.,78 F.3d 424 (9th Cir. 1996) where Proceedings to Vacate Lhecourt held that the FederalRules of Civil Proceduredo not apply to posthoc questioning of arbitrators in Title 9 proceed ­ Arbitration Awards ings, and questioning of arb itrators should be han dled pursuant After an arbitrator renders an award, parties to the proceeding to judicial supervision and limited to situations where dear evi­ have the right to cooftrm, vacate or seek a modification of the dence of impropr iety has been presen ted. See also O.R. award in court. 9 U.S.C. §§ 9, IO and 11. The FAAsets forth four Securiries,Inc. v. Professio11alPlarmi11g Assoc., 857 F.2d 742 (1 1th grounds to vacate an arbitration award: (1) where the award was Cir. 1988) ("courts have repeatedly condemned efforts to depose members of an arbitration panel to impeach or clarify their procured by corruption, fraud, or undue mea ns; (2) where there 1 av,ards'). was evident partiality or corrup tion in the arb itrators; (3) where the arb itrntors were guilty of misconduct in refusing to post­ Trial courts are given great deference when determining pone the hearing , or in refusing to hear evidence perti nent and whether to permit post-arbitration discovery in court. In Lyetlr n1aterialto the controversy,or of any other misbehavior by v. C/,rysltrCorp., 929 F.2d 891, 898 (2nd Cir. 1991) the court which the rights of any party have been prejudiced; and (4) held that a trial court's decision to preclude discovery in court where the arbitrators ex=dcd their powers, or so imperfectly following arbitration should be reversed only on a clear showing executed them that a mutu al, final and definite award upon the of abuse of discret ion. subj ect mailer was not made. 9 U.S.C. § 10; see alsoMomes v. Shearso11Lehma11 Bros., 128 F. 3d 1456, 1458-59 and 1462-63 (I It h Cir. l997)(mentio ning two add itional common law Conclusion grounds for vacatur and adopting a third, manifest disregard of The coutours of discovery in arbitration ,vill contuiue to the law); Bitmi11ghamNews Co. v. Hom, 901 So. 2d 27, 65 (Ala. receive considerable judicial attention as arbitration grows in 2004)(adopti ng "man ifest disregard of the law• as a common popularity. Arbitratfon has many advantages over litigation, law gro und for vacating arbit ration award in Alabama). including substantia l cost-savings. However, these advantages The question sometimes aris.:s in vacatur proceedings come with a signi.6cant trade-off: parties are limited in terms of whet her the coun will allow post-arbitration discovery to devel­ the breadth of available discovery before, during and after an op facts in suppo rt of a motion to vacate. To protect the integri­ arbitratio n hearing. • ty of the arbitration proceeding, courts have developed discov­ ery lin1itations in post-award proceedings that balance the movant's need for add itional facts, with the policy that courts should protect the finality of an arbitration award. The leading decision on this issue is Andros Compania Maritima v. Marc Ric/J6- Co., 579 F.2d 691 (2nd Cir. 1978). Jn W. Scott Simpson Andros, the Second Circuit Court of Appeals cons idered the 'VI.Scott Simpson II a ~ WISa!Chelor & Sin~n PCand issue of whether a party to a.n arbitration pl'oceeding could 1bitasslstam oen°'a.t counsel ol SouthernEnergy Hotres:. Inc. He undertake discovery in court to develop facts to attack an award rece,,odhit 8A ..,;, hooorsltom ..., 1)11,er,;ryol ~ootlo(1999! endhie JO ., m;,gtld a.mlafJde. from Samford UniV'l!f$1ry's based on a claim of arbitrator bins. The cou rt hcld that any °"1bedandSchool ot LWN(1993~ HI ttaches 1llt11T1Dtivu ClllfllJII questioning of arb itrators "should be handled pursuant to judi­ resolutionond arbiwtion as anacljtttt professor of Jaw111 cial supervision and limited to situations\t/here c lear evidence of Cl.lflbsW11t.Ht has m.rnl!fous recx,ru!CI doclsil)U ll'M)lvll'IO 111bttr.1 1ic.rlissues impropriety has been presented." Id. at 702. A Federal District Court in the Southern District of New York explained the analy­ sis a court must undertake when app lying the A11drosrule: [J]n actions addressing the results of an arbitration-­ OmerKesikli whether it be a proceeding to enforce or to set aside an arbi­ Omer(tsikli it e C1110ida1eforemas1efs of comparatne1a.v degree trator's award-the court is to exercise close supervision frtrnSan.tord lkllYerslty's Cl.Wilber lardSchool of I.aw 300 1 &41'dl­ over the extent and nature of discovery, alrl1ough Lhe dis­ dlie forf masto(sof lawWI business law from Istanbul 8Jgi Umveraty. Hereceived his badlelor o, lnw(klgtee (2004) ln:rn covery rules are, at least in principle, applicable to such a Mif1'f'l3rtlUtwersity faetil'(of Law. lst.anbul. Tt.riey He iscu nen11y proceeding . In assessing requests for discovery, the court practianglawWJ Twkey ~nd tS otnOO'lbei oflhe lstaobul Sa! should examine the relationsh ip of the discovery requests to As,ocia1ion. the speci6c factual issues raised by the parties' claims and

286 JULY 2006 I Rl' PROFESSOR NF.TLM. R. RO\VE AN{) PROFESSO/l CHRISTOPHF.R L. /·ROST

s attorneys today we pride ourselves on the "style" of our legal briefs."Always begin with a catchy first line.""Make A your heading$punchy, and invoke parallelism.""Educate the judge about the merits of the overall case in every brief."All are good advice. Lndeed,in a profession so dominated by the po,verof the \Yritten\YOrd. a nd ,..,htre oral argumentis being rapidly replaced by determinations "on the papers," the impor­ tance of persuasive legal style cannot be underestimatecl However,in our quest to presenta persuasiveor wcatd1y.. brief, we tend to overlook another basic concept-teclmical proficiency. Persuasivelega l arguments lose their flavor because of the mis• spelled words in the brief. Grammatical errors distract the judi­ cial clerk from the merits of the argument. Judges ridicule, or even question the credibility of, advocatesbecause of ineffectual or even misleading citations to authority. All of these embarrass­ ing results could be avoided if attorneys would remember seven simple writing tips:

I II I: A I A U A ,\l A l A 1\' )' E R 287 CLE Corner

A11itnHamlett MCLE director, Alabama State Bar

Stress-Free CLE ranted, there are a fe\'I genuine, hund reds of sponsors just chomping at major stressors in life. We have the bit to get your business. Think about G all been stripped of our shoes it ... is there one work day that goes by and forced to walk through the hot coals that you are not inundated with mnrkcting that fate scatters in our paths-an (snail and e-mail) wooing you to drink untimely death of a friend or family from the abundan t stream of CLE? member, a failed marriage, major health So, I am urg ing you-this July 4th, as problems or a job change that uproots you slice watermelon, grill the burgers your family from their circle of support. and wave the flag-try to pry your sweaty These events shake us up, get us off our palm from the spatula (okay, from tl1e routine and, justifiab ly so.change the television remote) and determine to set course of our lives forever. yourse lf free from worrying about CLE But, it does not take a psychologist to compliance for 2006 by creating a plan recogniu that your CLE compliance for "stress-free CLE." As you create this should never be placed on this list of plan for independence (l know I am major lff.,.stressors-nol with the thousands overreaching a bit here), you might need of CLE courses oITercd annually and o few helpful hints to get you started.

290 I V LY 2 0 0 6 Jovt'lnga program,h o\veve.r,if you notlce August2007). You may carry over to 2007 ResearchWhat Is that a course has not been posted within any credits earned this year,if )'OU earo that timeframe, notify us as soonas possi­ them after you are admitted to the bar and Requiredfor 2006 ble so that we can correct your transcript report them prior to January 31, 2007. If you are practicingwith a regular Exemptions due to age: Under the cur­ Exemptions due to occupation: As a licensein Alabama,the genera[rule is that rent MCLE rules and regulations,a few member of the Alabama State Bar. you you have until December31, 2006 to get individuals are exempt from the MCLE should know whether you hold a regular 12 generalh ours of MCLE credit.Of those requirements and are not expected to or special license. If you do not know, 12,at least one hour must be designatedas report aoy hours of CLE to the MCLE you may contact membership services to an hour of ethics. Pleaserecognize tha t commission for 2006. If you are 65 or determine your currentsta tus. ethics hours are included in the total count older, or if you are 62 and already receiv­ Under MCLE Ruic 2.C. I, regardlessof of general MCLEhours. For example, if ing Social Security retirement benefits, the type oflicense you hold, if you are you auend a program that offers"six you are exempt from CLE in Alabama. strictly prohibited from the private prac· MCLEhours, includingone hour of New odm.iuee cxeo1ption:One of the Lice of law by virtrieof yo11rocc11patiorr ethics,"you may claim a total of six, not most misunderstoodMCLE regulations is ( unless you fall under MCLE Rule seven,hours. 2.3. If you are newlyadmitted to the prac· 2.C.2-see details below), you are exempt Don't forget to check your transcript tice in Alabama,yo u arc exempt until the for the full calendar year during which periodicallyat www.alabar.org/clt.Use end of the calendar year in which you are they held such office. For example, if a yow· AlabamaState Bar number (ASB#) admitted. Therefore,if you wereadmitted judicial law clerk leaves his clerkship in and e-mailaddress to log-in. Sponsors in August 2006, you willbe exempt May 2006, he may claim an exemption should post attendance within 30 days fol- through December 31. 2006on ly (not until from CLE for all of 2006.

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1 JI I 1 I ,\ JI A \I A L .\ I\ l I R 2 91 CLE Corner Omtinued from page 29J

Qualified special members: In addition for the full calendar year in which they to members exempt strictly by their held that position. Special members Develop a Plan occupation)some attorneysneed a break (holding a "special" restricted license), on from the practice of law at certain points the other hand, arc only exempt if they for Completing in their career. We often sec anorneys opt bold a "special" license the entire calen­ to purchase special memberships when dar year. Your Hours children are born, sickness strikes a fami­ lf an attorney holds a "regular mem• ly member or they move into a career bersbip" during any part of the year, they Find courses from our that does not require a law degree. cannot clain1 the "special membership" Web site During theseu breaksn in practice,an (MCLE Regulation 2.4) exemption, even attorney may purchase a "special" license if they switch to special membership The best way to guarantee that a to remain in "good standing" until they before December 31. For example. a course will be approved and that your return to practice. member returning to the active practice attendance will be reported timely is to Under MCLE Regulation 2.4, all special oflaw from maternity leave this locate the course from our course listing members, other than the list of govern­ November, will be required to obtain 12 at www.alnbar.org/cle.Courses on that list mental attorneys listed in MCLE Rule MCLE hours (including one hour of have been submitted and approved in 2.C.2 (includes assistant or deputy attor­ ethics) for 2006. advance. As long as these courses, by ney generals and district attorneys, assis­ Qualified out-of-state attorneys: Many their presentation, meet Alabama's stan­ tant or deputy district attorneys and pub­ Alabama attorneys reside in other dards, then the course will be granted the lic defenders) arc exempt from CLE mandatory CLEstates and primarily con­ credit inclicatedon our Web site. requirements if they hold a special mem­ duct their practice there. Now under Avoid self -study bership the entire calendar year. MCLE Regulation 2.7, attorneys may courses Therefore, a ]a-, professor with a "special" request a waiver from Alabama's MCLE license in Alabama for all of 2006 would requirements by demonstrating compli­ If your "certificate of attendance"indj.. be exempt for 2006, but a district attorney ance with their home state's Mandatory cates that you completed a "self-study'' " ith a "special" licensewould not. CLE requirements. The applicant must cow·seonline, or if you completed a video Note the difference here. Exempt file an updated request annually. or audio rebroadcast presentation without members (prohibited from private prac­ Instructions for filing this request will be an instructor present to answer questions. tice under MCI.E Rule2.C. l) are exempt available on-line this fall. then Alabama will not recognize that course for credit. Many people submitted "self-study''on-demand courses for credit last year and were not allowed to count those courses for compliance. Under MCLE Regulation 4.1.8, Mold or Water approval may be given for video replayed activities if a qualifiedinstructor is avail­ Da age? able to comment and answer questions. Additionally. all online courses must be Servicesoffered: interactive and pre-approved. Therefore, • Determinationof extentof damage Trainingguides for AdvancedMold if you have a doubt about a course that • Remediationprotocol deve lopment Investigationand Remediation,see appears to be self-study, find the course • Technicalsupport for complexlhlgatlon M!bsite to order. Trainingmater ials on our approved course listing or call our • Expertwitness & casereviews develope • FLALie. Building Contractor c\\\\ ' our Website, you n,aysubmit the course • Ph.D. BiochemistryUCLA 1 yourself.However, it is important that you Free ,.. -·-=-- familiarizeyourself with the criteria that TEL 954-614-7100 • [email protected] • www.mold-free.org are considered \\*henapproving a cours~.

292 I U LY 2 0 o 6 Limit your online Communicate with circumstances. It is best for those to be submitted as soon a.

Robert E. Perry Mechanical Engineer

Expert -Witness • BSME Norwich University •MSME Lehigh University • Adjunct Professor al UAB •Owner of 2 patents

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I II I: •\ I t\ R -\ \1 ,\ I ,\ \\ l I R 293 Young Lawyers' Section

The ''Thank-You''Article Cl,risty Crow Jinks,Daniel & Crow PC hat a great adventure it has been serving as the Young Lawyers'Section presi­ Union Springs dent this year.This is my last article and it feels like the year has just Oown W by. With the hclp or great volunteers on the various comminees and won­ derful sponsors, we have accomplished some amazing things. And, in the tradition of all of the great YLSpresidents before me, this is the "thank you" article because there is no way anyone can do this job alone.

I begin by tha11kingthe various sponsors of our events. The foUowingfirms sponsored all of our activities: Jinks, Druucl& Crow PC Freedom Court Reporting White, Arnold, Andrews & Dowd PC Baxley,Dillard, Dauphin, McKnight & Barclift Penn & Seaborn LLC Taylor,Martino & Kuykendall PC Cwmingham, Bounds, Crowder, Brown & Breedlove UC Beasley,AUen, Crow, Methvin, Portis & Miles Maynard, Cooper & Gale PC Legalink, a Merrill Company

Hand ArendaUtLC sponsored both the Sandestin seminar and the Minority Pre-Law Conference.

We held our Sandestin seminar May 19-20.We had a great turnout and everyone there had a great time. These finns sponsored our Sandestin seminar: Watson, Jimmerson, Martin, McKinney,Graffeo & Helms PC Haislip, Ragan, Green, Starkie & Watson PC Luther, Oldenburg & Rainey PC Vickers,Riis, Murray & Curran LLC Bradley Arant Rose White Hare, Wynn, Newell & Newton Lightfoot, Franklin & White Tyler, Eaton Court Reporters Parsons, Lee & Juliano PC Lloyd,Gray & Whitehead PC Armbrecht Jackson LLP

FinaUy,these firms sponsored our Minority Pre-LawConference that was held April 7 in Birminghan1at BirminghamSouthern CoUegeand April 10 in Montgomeryal Alabama State University: McCaUum, Methvin & TerreUPC Balch & Bingham LLP Battle Fleenor Green Winn & Clemmer LLP

2 94 J U LY 2 0 0 6 Many thanks go to all of these fin11s for sponsoring our activi­ by supporting the Yl.S through the years.•Being YLSpresident ties throughout the year. With your help, we had a very success­ has given me a better appreciation for the staff and the hard ful year, including hosting the first ever Birmingham Minority work that they put in to making sure we have an easier time Pre-LawConference. Between Montgomery and Birmingham, practicing our profession. we sponsored over 350 students from nine different schools and Finally, I truly appreciate my law partners, Lynn Jin.ks,Terry provided these high school students an opportu 11ityto meet Daniel and Nathan Dickson, and my husband, Van Wadswortl,, legal professionals from across the state and learn more at>out for their continued support of this and all of my endeavors and, our profession. more importantly, for their friendship and love. In addition, thanks go to the other YLSofficers and the mem­ And for those of you who actually made it through this insuf­ bers of the ExecutiveCommittee, all of whom have really ferablylong article, thanks to you, too. I hope through the worked hard this year to help expand the programs of the YLS. course of the last year, you have learned more al>outth e YLSand With the help of thcsc lawyerswho have given so freelyof their hove become inspired to get more involvedu1 yo ur community time, we bad our first ever "LawyersDay of Service"oo June I 0, and in your local or state bar association) no matter ,vhat your 2006. I hope we can make this an annual event so that everyone age. Together, we will make a difference. • remembers that serviceto the community is essential to the suc­ cessful practice of law. Endnotes Thanks, too, to the hundreds of young lawyersfrom across the In1h• liMllJOII ol ourpresident, Bobby Segall . I am addinga loomoll!hero to explain state that volunteered for the various committees. I hope you !hat 11\ad0111J1nanv li>led tile folksat Ihabarwlio ha.,. been so grm a, wellas all have all been put to work by the committee chairs already but, if of themembers of lM YLSExecuuve Committee Thin 1,ec1ti2od I was st.arting ID not, don't worry, you will be soon. looklik:e that 0Stat winner VIM wouldn't sit downaod that the music ,s starting 10 playwith the cul-a"\-'tay to a commen:ial.Please don't take the fajlum to Includethe While J'm thanking people, I would t>cremiss if I did not names of all of thegreat poople on staff et th<,Alabama Stau, Ba, and th<, membe,s thank everyone on staff at the AlabamaS tate Bar.There is oo of theExL!MMl Coouruuoc asa slightin any wav because they am wonder1ul and way I can list everyone at the bar who has made this jot>easier dMerveto be lhankede1,11ry time you we them.

DON'T 111-INYINT TIii Wlllll!

tAYIMANllltlATll.tOM - ---

J JJ L :\ L ..\ n \ ,\f ,\ I ,\ \\ r l R 29 5 Legislative Wrap-Up

Ro/iertL. McCurley,Jr.

Reali Productive Legisature

o the May 2006 "LegislativeWrap­ General Interest Up" arride, it was mentioned that HB. I I (Act 2006-529):Amends the the legislature was two-thirds o( the I guardianship law to provide that when an 1oayover and that 68 bills had already estate does not have sufficient assets to been signed into law. If the legislarure provide reasonablecompl.'llsat ion t~ the had stopped that day, it would have been guardian ad /item, court representative or called productive. Now that the legisla­ physician,or to cover court costs, the ture has completed its work of consider­ court may tax the costs to the petitioner. ing the 1,431 bills, 365 o( them found HB. 31 (Act 2006- I 14): Amends vari­ their way into law or 25 percent of the ous sections of Title 40 of the Code of bills introduced passed.This is compared Alabama to conform Alabama law to fed­ to the 2005 legislativesession when only eral income tax rules for the taxation of six bills of statewide concern. trusts, estares and their beneficiaries. This There was something passed for every­ applies also to entities taxed as a financial one. For the more affluent there ,.,as the institution and business tmst. It further Trust Code. For the less aflluent there allows the Alabama Department of was the raising of state income tax Revenue1 0 promulgate rules interpreting exemptions and for everyone there was the act. This is effectivefor all taxable the Residtntial Laodlordffcnanl Act and years after January I, 2005. Election Law Revision. HB. 49 (Act 2006-216-the Uniform Copies of all acts discussed may be Dust Code): This act is a default provi­ obtained from alisdb.legislat11re.srate.al. sion for trusts '"here the trust instrument us/acas/ACASLogi11.asp. is silent or incomplete. Alabama, as most A few of the acts that are of most states, has not had a statutory rrust code interest to lawyersare as follows:

296 J U LY 2 O O 6 and has relied on case law to interprel the trust powers. This act SB.5 3 (Act 2006-291); Approves the acts of 1he 2003 Second will become effeciiveJa nuary I , 2007. Specia.l Session, 2004 and 2005 regular sessions and the 2005 HB. 59 (Act 2006-525): Raisesanorneys ' annual business First SpecialSession to be codified in the Olde of Alabama. license feesfrom S250 to S300. EffectiveOc1ober 2006. SB.61 (Act 2006-227): Amends Section 11-24-2 and Section HB. 68 ( Act 2006-104):Amends Section 6-5-332, the Good I I - 24-3 to require the owner or developer to receive approval Samaritan Act, to add protection for a licensed engineer, archi­ from the county commission for a proposed plot and obtain a le<:t,surveyor, contractor, subcomractor, or those working under pem1it ro develop from the city engineer at 1he time of approval. the direct supervision of them in connection with a commun ity The developer also has to furnish lhe city engineer with the emergency response team or FEMA. names of adjoining landowners. J-IB. 73 (Act 2006-533);Amends Section 12-15-10 to provide SB. 83 (Act 2006-J85 ); Authorizes two or more munidpalities that a municipality is responsible for the expenses of mainte­ to establish a regional jail authority and to operate a regional jail nance for the care of juveniles placed in a facility used by the authority. counry for housing juveniles as a result of a violation of a city Sil 373 (Act 2006-414): Amends sections 32- 13-3, 4 and 6 to ordinance. allow towed, abandoned vehicles owned by governmental enti­ HB. 77 (Act 2006-238): Amends Code Section 5-19-33 to pro­ ties to be sold at public auction. It further provides for the sale vide that on additional account mainlenance fee of S3 may be of abandoned vehicles. charged each month for credit transactions, loons or credit sales and will not be considered as a finance charge. HB. 95 (Act 2006-611): Prohibits a state agency from placing or otherwise revealinga person's Social Security number in a document available for public inspection. HB. 152(Ac t 2006-213);Prov ides the designation of"flood vehi­ cle'' to be on the motor vcll.icle'sti tle for disclosureto a prospective purchaser when the motor vehicleh as been submerged in waler. H.B.1 84 (Act 2006-577): Amends Section 40-2A-10 to clarify that cities and counties must provide confidentiality of informa­ (1-fish ' nt) a.qj. 1. Acting or tion in a taxpayer's tax records. HB. 201 (Act 2006-200): Regulates the practice of court producing effectively with a m.l.nl· reporting and provides for the creation of LhcAlabama Board of mum waste or unnecessary effort. Coun Repor1ingwhich will have authority over licensing and imposing penalties for violation of the aCI. H.B.287 (Act 2006-316 Uniform Residential Landlord/Tenant That's how we defineo ur readers. Act): Defines the relationship of landlords and tenants regarding LawyersUS A is their one-stop residential property. (See highlights al the end of this article.) Shop,wlUl oollne and newspape r resourcesinc ludlng: H.B. 288 (Act 2006-626): Requires an injured party who receivesthe structured settlement in a workers' compensation Hard-to fiM verdicts aruf settlements. case and wishes to assign or transfer the agreement in exchange • New legaltheories an d hot newliti gation for a lump sum seulemenl to foUow a certain procedure. The practiceniches. transfer must be approved by the court to be effective. • CutlillQ·edgestra tegiesand t echniques. HB. 292 (Act 2006-352): The new standard deductions for the 2007 tax year for married ta.~paym filingjointly with an adjust­ Call 1-800-451-9998or visit ed gross income tax of S20,000or less has been amended as well www.lawyersusaonline.com. for single taxpayers. HB. 369 (Act 2006-521);Amends the uaemployment compensa­ tion benefitsby increasingthem $10 a weekbeginning July4. 2006. La~ersUSA HB. 380 (ACI2006 -564): Amends Section 10·28-l.40 of the Howdo youdefine success? Alabama BusinessCorporation Act to allow shareholders to appoint proxies electronically through the Internet. It would ' FREEOFFER ! GETSIX WEEKSOF LAWYERSUSA RISK FREE. also allow corporations to accept votes electronically.

I II L ., L ,\ fl \,\I :\ I :\ \\ r £: n 297 Legislative Wrap-Up Comi,medfrom page297

SB.293 (Act 2006-413): Provides for the filing of" living wills" HB. 260 (Act 2006-554):An initial driver's Licenseor learner's with the probate judge's office where the person resides and for license must be issued by the Department of Public Safety,how­ confidentialityof Lhisliving will. ever. they may be renewed at the probate office or liunse com­ n1issioner'soffice. HB. 371 (Act 2006-561): Provides that the~ of property in the Criminal Acts first degree includes property resulting from a common plan or scheme by one or more persons where the object of the scheme Hil. 19 (Act 2006-419): Amends Section l 3A-6-l concerning is to sell or transfer property to another person who knows the criminal homicide and assaults to broaden the law to define a property is Stolen and the cumulative value taken within a 180· person to include an unborn child. day period is $1,000 or more. This amends Section I 3A-8-3. HB. 37 (Act 2006-572):Al lows alleged victims of rope, HB. 824 (Act 2006-622): Provides that a person possessing a sodomy or sexual misconduct to request testing of the person commercinl driver·s license \Yho is charged ,vith a violation of a charged for sexuallytrans mitted disease and HIV. traffic law in this state will not be eligible for a deferred prosecu­ HB. 47 (Act 2006-531):Amends Section 26-15-3 to increase tion program, diversion program or any deferred imposition of the penalty for child abuse 10 a Class C Felony. srnte.nces. HB. 118 (Act 2006-197):A mends Section 13A-5·1 land SB. 38 (Act 2006-623):Amends Section 32-5-22 relating to the Section J3A-5-J2 to increase the fines for felonies as follows: use of child passenger restraints for children under the age of Class A Pelony- $60,000 six. Increases the fine for failure to use child scats to $25 and Class B Felony- $30,000 provides point violations to be added to the driver's record. Class C Felony- S 15,000 SB.68 (Act 2006-148): Amends Section 13A-8-J92 to make aU Misdemeanorsa re increasedt o: "identity theft" a felony. ClassA Misdemeanor - S6,000 SB.128 (Act 2006-311):Amends Section 35-SA-154for passing Qass B Misdemeanor • $3,000 or overtakinga school or chw-chbus is a violationand punishable Class C Misdemeanor • $1,500 by a fine of not less than $1SO or more lhan $300 for a first offense. SB. 133 (Act 2006-204):Makes it a crime to expose a child to HB. 120 (Act 2006-198):Amends Section 13A-7-5a nd Section a met lab. 13A-7-6 relating 10 burglary in the first or second degree to add SB. 229 (Act 2006-297):Amends Section 13A-8-4to correct a provision to the law relating to a burglar being armed with a the monetary range of values relating 10 theft in the second deadly weapon or threatening the use of a deadly weapon degree to be between $500 and $2,500. against another person. It no longer makes a difference when the SB. 230 (Act 2006-298) (HB. 117 (Act 2006-654):Amends burglar obtained the weapon. Section 32-SA-191to provide that a prior conviction in another HB. 122 (Act 2006-218):Amends Section l3A-5·S to provide state for a DUl will be considered for enhancement of an that a pre-sentence investigation report is to be completed and Alabama sentence. filed on everydefendant convicted of• felony and it ,sill be in SB. 231 (Act 2006-312}:The legislature created the Alabama an electronic formal. Sentmcing Commission which has adopted voluntary sentenc­ HB. 125(Ac t 2006-539):Makes it a crime to shoot into a school ing guidelines for 26 felony offenses.The commission was bus or school building irrespectiveof whether it is occupied or directed to develop voluntary sentencing standards and submit unoccupied. them to the legislature for approval before they become effec­ HB. 142(Act 2006-546):Requires moto rists approaching a sta• tive.This bas been delayed from 2006 to 2009. tiona.ry emergencyvehicle to yield the right-of-wayby making a SB.283 (Act 2006-303}:Amends Section 13A-3-20and Jane change imo a lane not adjacent to the emergencyvehicle. Section 13A-3-22relating to the justifiable use of defensive force H.B.145 (A ct 2006-547}:Amends Section 15·10-10 to aUowa and defense deadly force against an aggressor. lt further provides search warrant from one county to be executed by any law for the justified use of deadly force against a person intruding in enforcement officer in this state and repeals Section 15-10-13 a dwelling, residence or vehicle.The act removes the duty to which required judges or magistrates in the other county to retreat for a person using force or a deadly force under certain endorse the warrant. circumstances. It further makes legal presumptions concerning HB.146 (Act 2006-579):Allows for an electronic traffic ticket persons justified to use force against intruders an immuni ty for traffic violations and amends sections 12-12-53, 12-12-54, from civil and criminal actions. 12-14-51and 32-1-4 to allow for the use of e-tickets. H.B.160 (Act 2006-580):Establishes the crime of home repair fraud. Elections Acts HB. 214 (Act 2006-551):Sheriffs must conduct criminal back­ HB. SI (Act 2006-634):Moves the presidential preference pri· ground checks prior to the issuance of pistol permits. rnary date from June to the first Tuesday in February.

298 JULY 2006 HB. 8 1 (Act 2006-537): Amends Section 17-4-129 to provide Tenant's obligation to pay rent before enforcing rights. 35-9A-164 that the voter regismtion list may be published as an insert in Right of landlord and tenant to enter into a separate agree­ the newspaper. ment for tenant to assume so111erepair responsibilities. 35-9A· HB. 100 (Act 2006-570): Revises the entire Election Code, title 201 (c)(d) 17 to clear up inconsistencies, duplication and otherwise reor­ Landlord's right 10 recover actual damages and injunctjve ganize Alabama's election law. It takes the current 24 chapters relief for tenant's breach of lease. 35-9/\-301 and reduces them to 17. It will not become effective until Tenant-No right to repair and deduct. (Was 35·9A-403) January I, 2007. Security deposits forfeited by tenant if not claimed within 180 HB. 141 (Act 2006-545): Each employer in the state must per­ days. 35-9A-201(d) mit their employees to take the necessary time off to vote in any Responsibility of tenant maintaining dwelling . 35·9A-301 election. Landlord's right of entry to rental unit with advance notice, or HB. •179(Act 2006-281 ): When the Help America Vote Act in an emergcllcy, without consent. 35-9A-303 passed, it related only to state and county elections. This act Landlord not responsible for tenant 's property abandoned on changes the procedure for challenged ballots in municipal elec­ premises. 35-9/\-423 tions to that of"provisional ballots." DefiJ1cslandlord's liability for breaches. 35-9A-401(b) SB. 18 (Act 2006-327): Amends Section 17-6-13 to increase Shortens eviction notice to seven days for non-payment of the compensation paid to each clection clerk, returning officer rent. 35-9A-42 I [7·7·7) and election inspector to pay them an additional S25 for attend­ Shortens court action by landlord to seven days. 35-9A-461 ing an election school. Shortens appeal time to seven days. Section 2 amends 6-6-350 SB. 529 (Act 2006-354): Due to u lawsuit being filed by the U. Provides attorney fees for landlord. 35-9A-426 S. Justice Department claiming Alobama was violating the Effective Date: January I, 2007 Uniform and Overseas Citizens Absentee Voting Act by not The Annual Meeting of the Alabama Law Institute will be allo,ving enough time for overse3svoters to vote in the primary held at 10:30 aan. Thursday, July 13, 2006 during the Alabama run-off, the primary run-off date has been moved from three State Bar Meeting in Destin. Major legislation passed during the weeks after the initial primary to six weeks after the primary. 2006 Regular Session of the legislature will be reviewed . For more information about the Institute. cont.let Bob McCurley, director, at (205) 348-74 l l or visit ww,v.n/Lsrn1.. nl.us. • Alabama Uniform Residential Landlord and Tenant Act The bill's protections for 1cnn11ts: Warranty of habitability/applicability of building and housing RobtttL MeCu,tey,Jt. codes. 35-9A-204 lidlanl Mcwley,Js .,,,,_ ..... _taw_.,..,...... ,.._ Limits on security deposits and timelines for deposit return. He...... i i..~at,wdog,wofmmu.-,., 35-9A-201 Repairs by landlords, 14 days after notice. 35-9A-401 Tenant's recovery of actual and injunctive damages for land- lord's breach. 35-9A-401 Prohibition against landlord's retaliation. 35-9A-501 Prohibition against exculpatory clauses. 35·9A·l 63 Prohibition against intentionally including prohibited provi- sions in leases. 35-9A-164 Provides attorney fees for successful party. 35-9A-40 I Prohib ition against changing material rules without tenant's We have thousands of prncticlng, approval. 35-9A-302 board certified physician expert witnesses in nil medical specialties. Repeals the Sanderson Act 35·9·80 to 88 li'I Testimony Ii'! Opinion Letters li'I Review for merit The bill also provides strong Fial rat.e referrals; tla.trate reviCY.."S Your satisfaction OUARANTEED protections for landlords : Med-mal EXPERTS , Inc State law preempts local law on landlord tenant matters. 35· '!'P.:l.:'I!' 9A-121

T II I: :\ L ,\ H ,\,\I,\ I A\\ \ f fl 299 Opinions of the General Counsel

Unclaimed Client Trust J. A11tl,011yMcLni11 Funds-Escheatto State

QUESTION : DISCUSSION : A solo practitioner ,vith an i\Ct.ivetrusl "Attorney/\' should first make every account died. "Attorney A"was appointed reasonable effon to ascertain the identity executor and undertook to wind up the and location or the clients entitled to the practice and distribute the funds from funds. This would include publication of the trust account. The solo practitioner a notice in a newspaper of general circu­ maintained an accounts ledger or the lation, not only in the area ,vherethe trust account but the balances did not decedent practiced but also in the last reconcile with the bank account. After known area where the client or clients several years "A"was able 10 determine reside or do business. the cuenu. who owned the various Regarding the funds that cannot be accounts and appropriate disbursements attributed to a client or client;, several ,._.eren1ade. He vvas unable, ho,"ever, to slate ethics committees have held that determine the owners or some of the after reasonable and good faith attempts funds or the whereabouts of certain to ascertain the ownership and after dients. What distribution should "A" holding the flmds long enough to ensure make in order to dose the account? that no unidcmified client could make a claim against the funds within any appli­ cable statute of limitations, they may be ANSWER : distributed to the attorney's personal There are two c.11cgoriesof funds in account or his estate. the accounl. The first category involved Unidentified funds in a trust account those funds that cannot be attributed 10 could properly be funds deposited 10 pay a particular diem. After a reasonable and service charges [DR 9-102(A)( I)I or to good faith effort is made lo determine avoid any possibility of a shortage ,n the the ownership or the foods, and after account or foesearned but not with­ holding the funds as long as necessary to drawn [DR 9-l02(Al(2)1. assure that no unidentified client could The Michigan Bar Committee on make a successfulclaim against the Professional and Judicial Ethics held that accowlt, "A" may distribute the funds to funds that could not be associated with the solo practitioner's estate. The second any particuJarcJient or file, or were pre.. category of funds in the account is that sumed to belong to attorneys formerly which can be attributed to a client but with the firm, or to be interest earned on the location of that client is unknown. m account, after notifying former clients After making a good faith and reasonable of the existence of the funds and provid­ effort to locate the client, "A"must hold ing them an opportunity to substantiate the funds until they are presumed aban• any claim, could be retained by the attor­ doned w1der state law, ut which tin1ehe neys involved (Opinion CJ-947 (1983) should turn them over to the state. and Cl-752 (1982)).

300 J U LY 2 0 0 6 Similarly,in Virginia, it was held that such unidentifiable the option of distributing the funds to the deceased attorney's funds must be placed in an interest-bearing account for a suffi­ estate because the money clearly does not belong to the deceased cient length of time to determine that no successful claim by an attorney. In situations such as this numerous opinions of state unidentified client could be n,nde. If no owners or claims are bar ethics committees, including the Disciplinary Commission found, the lawyer may then ltansfer the funds to his own of the Alabama State Bar, have held that the funds must be account (Virginia Opinion 548 (3/1/84)]. retained until presumed abandoned under state law at which 1n another Virginia opinion, it was held that unidentifiable time the funds must be turned over to the state !Mississippi funds in a trust account could be distributed to a deceased State Bar Ethics Committee Opinion 104 (6/6/85); State Bar of lawyer'sesta te or distribu1ed according to law to meet the New MexicoAdvisory Opinions Commitlee, Opinion 1983-3. deceased lawyer'snon-trust obHgations, provided a good faith (7/25/83); North Carolina State Bar Association Ethics effort to de1ermineowners hip is made and the funds are Comminee Opinion 372 (7/25/85); Michigan Committee on retained n sufficient length of time to assure that a successful Professionaland Judicial Ethics of the State Bar of Michigan, claim could not be made. Opinion Cl-1144 (4/9/86); Committee on Professional Tbe Alabama DisciplinaryCommission addressed a similar Responsibilityof the Vermont Bar Association,Opinion 87-9 question in R0-82-649. In that case there were several thousand (8/87)]. dollars in a deceased anorney's trust account that could not be The Office of General Counsel and the Disciplinary "trnccd to its rightful owner.•The commission held that: Comn1issionhave held, in a numberof opinions, that where funds in a trust account may be attributed to a client but the "Some rype of legal proceeding should be instituted location of the client is not known. some type of legal proceed­ whereby notice by publication could be given to potential ings should be instituted whereby notice by publication could be claimants. Although other proceedings may be available given 10the owner of the deposited funds. Tbe opinions also we suggest tbat the property could be disposed of under hold that although other proceedings may be available the prop­ the Alabama Uniform Disposition of Unclaimed Property erty could be disposed of under the Alabama Uniform Act, S

I II I \ I A II A ,\1 ·1 I ..t \\.' Y l ll 301 About Members, Amon Firms

About M emb ers Nicole Ronlnno Saia announces the opening of Nicole Romono Safo,Attorney The Alaba,naLawyer no L. Brooks Burdette announces the at Law,UC at~ I Weldon Drive,Chelsea change of her firm to The Burdette Law longerpublishes addresses 35043. Phone (205) 678-4660. Firm PC. James Arthur Stanford announces the and telephonenumbers R. Champ Crocker announces the opening of his ftrm in Arab. unlessthe announcement opening of R. Champ Crocker LLCal 207 Second Avenue,Southeast, Cullman Gilbert Monn Sullivan,Jr. announces the relatesto t11eopening of a 35055. Phone (256) 739-5005. formation of Gilbert M. Sullivan,Jr. PC. newfim1 or solopractice. Maston Alonzo Eva.ns, Jr. announces Anita Barnes Westberry announces the the opening of Maston A. llvans, Jr. LLC opening of The LawOffices of Anita Auorncy at Law al 17 Office Park Circle, Barnes Westberry at 297 Huntington Suite 100 Birmingham 35223. Phone Park Road, Homewood 35226. (205) 879-6027 . Stephanie Haley Williams announces Richard L. Fricks announces the for­ the opening of her firm in Texas. mation of Richard L. Fricks LLC at 106 Benjamin Lee Woolf announces the S. Ma.inStreet, Boaz 35957. Phone (256) opening of Benjamin L. Woolf, Altorney 593-4978. at Law al 2703 Seventh Stree1,Tuscaloosa Stephen Willis Guthrie announces the 35401. Phone (205) 464-0020. opening of Law Office of Steve Guthrie John Genaro Zingarelli announces the in Birmingham. opening of John Zingarelli PC in Decatur. Penny Dianne Hays announces the opening of Hayes Cauley PC in Tuscaloosa. Among Firm s Virgil Eric Hunter, 11announces the Deaver Hiatt Collins and Jannea opening of Law Officesof Virgil E. Suzanne Rogers announce 1heirassoda­ Hunter,n in Bessemer. tion with Adams & Reese LLP. Herndon Inge, !TIannounces the Carl Travis Maxwell ITI announces his opening of Herndon Inge Ill, LLC in association with AdvanccMe, Inc. Mobile. Jeffrey Todd Webb,Sr. announces his John David Kimbrough announces the associationwith the Alabama Department opening of his firm at 654 Lawrence of Agriculture and Industries. Street, Mouhon 35650. John Fairley McDonald, m announces Robert Edward Kirby, Jr. announces his association with the Alabama the ope,ling ofTiie l

3 02 I U l Y 10 0 6 La\vrence8. Clark announces he is Joseph N. Hocutt, II has become an James l. Butler announces his associa .. now a shareholder with Baker,Donelson, associate \Vith Brinyark. Lee& Hickman tion with CenturyTel Inc. Bearman, Caldwell & Berkowitz. PC. Joi Charisse Scott announces her asso­ Sara M. Turner, WiWnm L Waudby David Gerald Poston announces his ciation with Christian & Small LLP. and Kelly Louis Worman announce their association with Brock & Stout. Michael Brandon Meadows annowiccs associationwith Baker,Donelson, John William Roberts announces his his association with Compass Bank, Bearman, CaldweU& Berkowitz PC. association with Buerger,Moseley & Legal Department. Balch ScBingham LLP announces that Carson PLC. Tamula ReneeYelling annolmces her fennifer M. Buettner, Aaron L. Dettling, Briana M. Montminy announces her association with Constangy, Brooks & Thomas R. Head m, Erci T. Ray,and association with Burr & Forman LLP. Smith LLC. Christopher T. Terrell have become part­ Brian G. Wilson announces his associ­ Hendrik Searcy Snow announces his ners in the firm, and t.hatThomas Craig ation ,vith Cabaniss, Johnston, Gardner. association with Crosby Saad LLC. WiWamsand Valerie Hose Plante are Dumas & O'Neal LLP. associates. Andrew Hamilton Smith artnounces BelindaElmore Johnson announces her his association \Yith Curtis, Heini, Jason Robert Watkins announces his associationwit.It Capps & Associates,PC. Garrett & O'Keefe PC. association with Bal.I, Ball, Matthews & Regina Ford Cash announces her asso­ Novak PA. Dustin Thomas Brown announces bis ciation with Carr, Allison, Pugh, Oliver & associatio,1with Daughtery, Crawford, Michael Devon Whitt announces his Sisson. Fuller & Brown. association with Beam & Whitt. Amy H. Hazelton announces her asso­ ciation with Benton & Centeno UP. Gregory Scott Berry and Deborah LynnDunsmore annow1ce their associa· ARE YOU PAYING TOO MUCH tion with Berry & Associates LLC. FOR LIFE INSURANCE? TiirooghDrane. Ln.,uran(;c you can purch..1scallordablc life in.mroncefrom highly ml.Cd Tunothy Alton Evans announces his insurnncecomp11nics.. To a\•nid()\ctp.,yin&, ca ll or visi1ow \I.Cb~i •e fo, u free quoteoo policies association with the Bibb County nmgm.gfro m S 100.000up 10 $2S.000.000to c:omparcwith your cur~m life or bu,;incss District Attorney's Office in Centreville. in.utntn~policy. Looket the ~11mplcna,~ below, $2$0.000 l.c,·el TetYnCov1.-ngc Gina Elizabeth DeRosier announces ~1ale.Super Prc(crrod. No,n. iob:tcoo her association with Blank Rome LLP. MonthJyPremium AGE: 30 JS 40 45 50 ss 60 Debra Wtlkinson Botwin announces 10 $9 $9 Sll S-18 S2S $42 S67 her associationwith Brewer Botwin. 15 SIi Sll $13 S24 $.l7 SS3 SS6 20 $13 Sil SIS SJO $47 S70 S118 Darryl Charles Holtz announces his 30 S22 sz.r $.lJ 543 $72 $140 association with BO\Vron,Latta & $500,000 u, ·t".1Tenn Co~mge Wasden PC. ~1:alc,Super Pttfc.rttd, Non .. :'Jbb:t«o ~ionihJyPrt1n1um Boyd, Fernarnbucq & Vincent PC AGE: 30 35 40 45 so 55 60 announces the firm name has changed to LO $ 15 SIS .St9 $JI $45 S8() SIJO Boyd, Pernambucq, Vincent & Dunn PC 15 $ 18 SIS $23 $44 $70 $ 103 Sl68 20 $23 S23 SJ! $56 $90 Sl37 $231 and that Charles H. Dunn has become a 30 S39 $44 $62 S91 $139 $276 shareholder. Drane Insurance Helen Denice Ball announces her asso­ ciation with Bradley Arant Rose & White Carter H. Drane LLP. (800) 203-0365 Jon-Patric.I

I 11 I :1 I \ U A Af .-1 I :\ \\ ' Y I: R 303 About Members, Among Firms Cont11111cdfrom page303

William Morgan Rayborn announces LLC. Jonna Miller Denson is associated Margaret Holladay Alves announces his association with Davis, Rayborn, with the firm. Offices arc located at 2224 her association with T. Leavell & Herrington & Prescott UC. 1st Avenue North, Birmingham 35203. Associates Tnc. Phone (205) 326-3336. KarenS ullivan Dean announces her Gregory Wayne Lee announces his association with Dell. Kathryn Harrington announces her association with Lee& McClelland LLC. association with Hollis & Wright PC. Simeon Sealy Wilbanks Johnson James Wesley Chipley, Hilary Leigh announces bis a,sociation with Dillard & Sidney W. Jockson, 111and Mathew B. Funk and Misty Dawn Sosebee-Ledbetter Associates. Richardson announce Lheirassoc iation annouJ1ce their association with ugal Services Alabama. Anthony Darrell Lehman announces with Jackson, Foster & Graham LLC. his association with DLA Piper Rudnick D,vain Denniston announces his .tsso .. Lehr Middlebrooks Price & Vreeland Gray Cary US LLP. ciaLion with the Jefferson County PC has changed its name to Lehr Rebecca Kiky announces her associa­ Disl rict Attorney's Office. Shnwnte' Middlebrooks & Vreeland PC. Denise McClain announces her associn• tion wilh Equal Justice lnititive. Christina ~tarie Crow announces her Lion with the Jefferson County District associa1ion with Liberty Park Joint Jonathan Kaz Espy announces his asso­ Auorney's office, Bessemer Division. ciation with Espy, Metcalf & Espy PC. Venture l.LP. Francoise Alice Hartley Horn Lightfoot, Franklin & White LLC Aundrea Mann Snyder annow,ces her announces her association with the association with Field & Picld LLC. announces that Lana K. Alcorn, Kevin E­ Jefferson County Family Cour t as senior Clark, Terrence W. McCarthy and J. trial referee,Birmingham division. Murk Edward Gualano announces !tis Cha ndl er Bailey, 11have become mem • association with Pirst Security Title, Inc. Johnston Barton Proctor & Powell bers of the firm. TerryPrice announces his association LLP announces that Heather F. Lindsey, Matthew Jay Avon announces his associ­ with Ford & Harrison LLP. Angie Godwin McEwen and Susan V. ation with Office of Chief Counsel, LMSB. Simpson have become partners and that Scott Hughes announces.his associa­ Justin A. Barkley, Joseph W. Carlisle, W. Laura Ellison Proctor announces her tion with French & Hughes LLC. Lee Elebash, Sonya £. Eubank, Lindon J. association with Louisiana Pacific W.Uacc Wayne Wntkins announces his HW, David R. Kin.nian, Vfocent J. Corporation. Schilleci, Ill, and Richard G. Wheelahan, association with Graves & Watkin., LLC. Rafael Gil, Ill announces his associa ­ W have joined the firm as associates. John David LnWTenceannounces his lion with Ludlwn & Gil LLC. association with Gulas & Stuckey PC. Lucy Westover Jordan announces her Lusk, Lusk, Dowdy & Caldwell PC association with Kee & Selby LLP. Rodney Reed Cate announces his asso"" announces that David L Dean has joined ciation with Hand Arendall LLC. Juan Carlos More no announces his tbc firm as a partnc,. association with Kievit, Odom & Barlow. Horbert Management Corporation Mark Alan Dowdy announces his asso­ announces that R.A. Ferguson, m has Emily K. Niezer announces her associ­ ciation with Luther, Oldenburg & Rainey joined their legal department as assistant ation with Knight & Griffith, McKenzie, PC. genentl counsel and Conrad Morrison has Knight & Mcleroy LLP. Maynard, Cooper & Gale PC joined as assistant director of compliance. Cindy Lorraine Self annow,ces her announces that Robert H. Adams, Rima Michael Bruce Odom and Robert association with Lamar, Miller, Norris, Hartman and Anthony Aaron Joseph Maurice Lichenstein, Jr. announce their Haggard & Christie PC. have joined the firm as shareholders, association with Haskell, Slaughter, Kimberly B. Glass has joined the firm JS Young & Rediker LLC. Dana Dachelet announces her associa­ of co1111seland Christopher Charks Frost tion wi1h The Lamb Firm. has become an associate. Shannon lllizal>etl1Hoff announces her association with Helms, Mulliss & Jeffrey Norman Mykkeltvedt Richard Shields announces his associa­ Wicker PUC. announces his association ,'11thPeter t\ .. tion with McCleave, Denson, Shields LLC. law PC. Steve Heninger, Lewis Garrison, Tim Christopher Max. Mims announces his Davis and Erik Heninger announce lhe Eric Neal Snyder announces his associ­ association with McDowell Knight formation of Heninger Garrison Davis ation ,vith Lawton & Associates. Rocddcr & Sledge.

304 JULY 2006 AMERICAN l•R+i~ifi;li=i

Stephen A. Brandon announces his ~Jiltere Lawyers look for lawyers* association with McGlinchcy Stafford PLLC. Attorney Search Adam Gerard Sowat,:ka announces his assoc.:iationwith McGuireWoods LLP. • Permanent Placement (Associate & Panucr LC\cl) Stephen Lyman Duncan, Jr. and Lorie Elizabeth Melton announce their associa­ • Temporary Placement tion with Melton & Duncan LLC. • Finn Mergers & Acquisitions William Anderson Mudd, James M. Strong and John Francis Whitaker 111,.w.Ameri c11 n /..ega/Searc/J.com annow,ce1hcir association \vith MiUer 1 Birmingham (205) 397-9500 Hamilton, Snider & Odom. Nat ionwide (800) 930-9128 Christopher Paul Haugen announces his association with The Miller Law Firm LLC. Mkhacl Mark Majors annow1ces his hranno1t'a runcricanJcg31.scarch._co1u associationwith Joint Forces Headquarters, Mississippi National Guard. Atlant.:i Birmingham Loa Angeles Loulovlllo Florence Kessler annow,ces that she is 1\1,ami Nashville Nev, York Tampa now chief assis111ntcity anomey for the Cily of Mobile, Legal Department. Jennifer Anne MillweeHowell announcesher association\Vith the Morgan Cow1ty District Attorney's Office. Adrienne Le Aldridge announces her association with James R. Morgaa PC. V. Michelle Obradovic and Stephen J. Bailey announce their association with Moses & Moses PC. Support Search James A. Nadler announces his associ­ ation with Nadler & Associates PC. • Paralegals Najjar Denaburs PC annow,ces that • Legal Secretaries Karen G. Kolacuk bas become a share­ • Legal Assistants holder and that Steven D. Altmann, Jeremy D. Crow and Nathan C. Weinert ,.,,,ry1•.Apexlega/S11pp()rf.co111 have become associated with the firm. Rosalind Greene announces her associ· Bir mingham (205) 397.9555 ation with the National Aeronautics and Natio nwide (800) 930-9128 Space Administration. Amy Elaine Bryant and Edward Jason Peevy, Esq. Brough Holzwanger announce their jason'

Relations Board. Atlanta Birmingham Los Angeles Louisville Michncl Lewis Odom announces his Miami Nashville Ne\•/ York Tan1pa association,vith NavarrePress. - =------=

l 111 ,\l ,\R ,\,\IA I A\\} fU 30 5 About Members, Amon Firms Co11ti1111tdfrom page305

Mary Ellen Wyan announces her asso­ R. Taylor Abbot, Jr. announces his The U.S. Attorney's Office for the ciation \vith Nielson Law Firm in association with the Office of Salem N. Northern District of Alabama announces Metairie. Louisiana. Resha, Jr. that Sandra Stewart has joined the office as First Assistant United St11tesAttorney Megan Claire Kime McCarthy Mark Alan Humphrey announces his and that Scarlett Singleton bas joined the announces her association with Nix, association with Romaguera, Baker, office as an Assist11ntUni ted Sl1ltes Holtsford, Gilliand, Higgins & Hitson Dawson & Bringardner PA. Attorney. PC. Elizabeth Schadt Gordon announces Robin Bobo Redding announces her Ogle. Liles & Upshaw LLP announces her association with Rosen, Cook, Sledge, association with the U.S. Bankruptcy that Chris Miller has become an associ­ Davis, Shattuck & Oldshue PA. ate. Court. Barbara WaUaceWade announces her Laura Isabel Bauer announces her John Thaddeus Moore, James Eric association with the Law Offices of association with the U.S. District Court Coale. Michael 0. Godwin and Lee M. David W. Rousseau. Ons announce the formation of Ons, for the Northern District of AL. Moore, Coale & Godwin Law Offices at Daniel Alexander Feig announces ltis Darren William Kies announces his 401 EvergreenAvenue, Brewton 36426. association with Rumberger, Kirk & association with Vickers & Kies, LLC. Phone (251} 867-7724. Caldwell. Kendall Jones Paloci announces her Gary Edward Sullivan announces his Elizabeth Bromberg Sullivan anr,ounces her association with \ruginia association with Paloci & Jones. association with Sullivan & Gray LLC. CoUegeas Dean of Scllool of Business William Warren Satterfield announces Kaylyn Brooke Shoultz announces her and LegalStud ies in Birmingham. his association with Patterson & association with Smith & Yentzen PUC. Patterson PLLC. James Richard Esdale announces his VanessaBuch announces her association association with Waldrep, Stewart & Jennifer B. Cooley announces her asso­ with Southern O,nter for Human Rights. Kendrick. ciation with Parker & Cooley UC. Melissa Brooke Croxton and Thomas Shayla Rae Fletcher announces her Michael Held announces his associa­ S. Hiley announce their association with association with Waller Lansden Dortch tion with Phelps Dunbar LLP. Spain & Gillon LLC. & Davis LLC. Robert G. Upchurch announces his Catherine Filhiol Golden announces association with Phelps, Jenkins, Gibson Melissa Storey Gowan announces her her association with Sprott & Golden. association with Walter Northcutt & & Fowler LLP. Associates. Edward William Payne announces his Will M. Booker, Jr. announces he has association with Porterfield, Harpe.r, become of coumclwith Steiner, Crum & Brent Gibson Grainger announces his Mills & Matlow. Byars PC. association with Waldrep, Stewart & Kendrick. Erin Leslie O'Kane announces her Michael Bretl Stevens and William as.,ociationwith The Powell Law Firm. Guy Stevens announce their association Scott D. Waldrup announces that Teri with Stevens & Stevens PC. !-!ayesSmith has become a member and J. Hobson Presley,Jr . and Kathleen A. the firm's name is now Waldrup & Smith Patrick O'Neal Gray announces his Collier announce that John H. Burton, LLC. Jr. has become a member of the firm and association with Sullivan and Gray LLC. the firm name is now Presley Burton & Charles Wayne Rutter, Jr. announces Davidson, Wiggins,Jones & Parsons Collier LLC. that he is now associated ,vith Robert B. PC and The Fisher Law Firm PC announce thelr merger. The new fim1 Caron Lee Campannounces her asso­ Tidwell UC. will be Wiggins,Jones, Parsons & Fisher ciation witb Pritchard, McCall & Jones J. William Eshelman announces he is a PC with offices at 2625 8th Street, LLC. member with Tighe Patton Armstrong Tuscaloosa 35401. Phone (205) 759-5771. Nathaniel F. Hansford announces his Teasdale PLLC. The firm also announces that Christine association with The Ramos Law Firm. M. Gates has joined as an associate. Michael John Petersen announces his Hope Dana Mehlman announces her association with the U.S. Federal Joseph KeUarnWarren announces his association with Regions Financial Defenders Office, Middle District of association with Wyrick, Robbins, Yates Corporation. Alabama. & Ponton LLP. •

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