Volume 85 u No. 8 u March 15, 2014

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Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 513 514 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Theme: Business Litigation Editor: Mark Ramsey contents March 15, 2014 • Vol. 85 • No. 8 pg. 588 OBA Day at the Capitol Departments 516 From the President 556 Editorial Calendar 588 From the Executive Director 589 Ethics/Professional Responsibility 591 Oklahoma Bar Foundation News 595 OBA Board of Governors Actions 597 Access to Justice 599 Young Lawyers Division 601 Calendar 603 For Your Information Features 608 Bench and Bar Briefs 519 Concurrent ‘Alter-Ego’ Claims: 610 In Memoriam Oklahoma Leads the Nation in 612 What’s Online Extending Protection to 616 The Back Page Shareholders, Officers and Directors By John D. Stiner 527 But It’s Mine: The Signer Versus Joint Owner Problem with Bank Accounts By Brandee Hancock 531 The Court of Competent Jurisdiction: Is that Your Final Answer? By Spencer C. Pittman 537 Residential Construction Defect Cases in Oklahoma By Douglas J. Shelton and Brianna Tipton pg. 577 547 Mind Your Business… Records: Advising Small Business Clients Solo & Small Firm Conference on Maintaining Thorough Business Records Plus By Jeremy E. Melton 574 Proposed OBA Master Lawyers 553 Doing Business in Indian Country: Section: Potential Services and The Legal Issues That May Arise Benefits When Conducting Business With 577 Solo & Small Firm Conference Indian Tribes and Tribal Business By Jim Calloway Entities By O. Joseph Williams 583 OBA Open: Scramble Golf Tournament 559 The New Administrative Workers’ Compensation System 585 Legislative Update By K. David Roberts By Duchess Bartmess

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 515 FROM THE PRESIDENT

Masters of the Oklahoma Bar Association By Renée DeMoss It happens before you know it. One minute you’re positive one. We must provide a fresh out of law school, and the next, right around your 50th system that capitalizes on the expe- birthday, you are reluctantly pulling that invitation to join the rience and energy of our senior AARP out of your mailbox. Old? Who me? No way! lawyers — and treats them with Aging, however, is an inevitable fact of each of our lives, and respect and dignity. At the same the life of our bar association. Between 1997 time, the OBA has a duty to protect and 2007, the number of American workers 65 the public when older years and older increased by 101 percent. lawyers should step Among the lawyer population, 25 percent were We must down from active prac- age 55 and older in 1980, but by 2005, the per- provide a tice but continue to work. centage had increased to 34 percent. In the next system that Enter the Master Law- 10-15 years, Oklahoma is expected to see a sig- yers Section of the OBA. nificant rise in the number of attorneys over capitalizes on NEW SECTION age 65 who are still engaged in the practice of the experience PROPOSED law. and energy of The proposed Master OBA members, like other American workers, our senior Lawyers Section is de- take a number of different approaches to work signed to explore and and retirement. Some will retire as soon as they lawyers — and develop programs that are financially able. Others, after 40-50 years of treats them will enhance and im- practice, don’t want to stop working complete- with respect prove the working and ly, but also don’t want to continue dealing with retirement lives of senior the details of an active practice, such as track- and dignity. lawyers, maximize ser- ing hours worked. Others are determined to vices to their clients and remain in the work force until death. others, and provide a Getting older — and the accompanying wealth of experi- forum for addressing any particu- ence and knowledge that comes with it — is something to be lar issues that arise. Possibilities proud of and put to its highest use. Many senior lawyers can include mentoring and pro bono continue to practice with ease. Other active senior lawyers work, assisting attorneys who are who want to move toward a more leisurely winding down their practices and practice have a variety of different ways to education on substantive areas of use their accumulated legal knowledge. law as well as issues unique to Some older lawyers, however, will face senior lawyers. issues that could render them unable to con- Thanks to my good friend Ron tinue working and adequately represent Main, a premier master lawyer in their clients. Age-related health problems Tulsa, a petition to create this new can cause legal skills to decline, mental acu- section is currently being circulated ity to deteriorate, and even affect a lawyer’s for signatures, and a working group ability to even recognize that he or she is has been established to explore the impaired. In many cases, colleagues, clients, many opportunities for the master judges and even family members are reluc- lawyers of the OBA. I hope you will tant to intervene. whole-heartedly support this new President DeMoss practices in Tulsa. The increasing number of Oklahoma law- OBA section. [email protected] yers who will work well into their senior Read about the section’s potential 918-595-4800 years will have an impact on our associa- services and benefits on page 574. tion, and we must ensure that impact is a

516 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 OFFIC ERS & BOARD OF GOVERNORS Renée DeMoss, President, Tulsa David A. Poarch Jr., President-Elect, Norman Susan S. Shields, Vice-President, Oklahoma City events Calendar James T. Stuart, Immediate Past President, Shawnee Deirdre O’Neil Dexter, Sand Springs MARCH 2014 Robert D. Gifford II, Oklahoma City Kimberly Hays, Tulsa 17 OBA Litigation Section meeting; 12 p.m.; Oklahoma Bar Center, Douglas L. Jackson, Enid Oklahoma City with OSU Tulsa, Tulsa; Contact David VanMeter 405-228-4949 John W. Kinslow, Lawton James R. Marshall, Shawnee 21 OBA Professional Responsibility Commission meeting; 9:30 a.m.; Nancy S. Parrott, Oklahoma City Oklahoma Bar Center, Oklahoma City; Contact Dieadra Goss 405-416-7063 Kevin T. Sain, Idabel Bret A. Smith, Muskogee OBA Board of Governors meeting; 10 a.m.; Oklahoma Bar Center, Richard D. Stevens, Norman Oklahoma City; Contact John Morris Williams 405-416-7000 Linda S. Thomas, Bartlesville 24 OBA Juvenile Law Section meeting; 4 p.m.; Oklahoma Bar Center, Kaleb Hennigh, Enid Oklahoma City with teleconference; Contact Tsinena Thompson 405-232-4453 Chairperson, OBA/Young Lawyers Division 25 OBA Day at the Capitol; 10 a.m.; Oklahoma Bar Center/Oklahoma State BAR Center Staff Capitol; Contact John Morris Williams 405-416-7000 John Morris Williams, Executive Director; Gina L. Hendryx, General Counsel; Jim Calloway, Ruth Bader Ginsburg Inn of Court; 5 p.m.; Oklahoma Bar Center, Director of Management Assistance Program; Oklahoma City; Contact Donald Lynn Babb 405-235-1611 Craig D. Combs, Director of Administration; Susan Damron Krug, Director of Educational 26 OBA Financial Institutions and Commercial Law Section meeting; Programs; Beverly Petry Lewis, Administrator 12 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa, Tulsa; Contact MCLE Commission; Carol A. Manning, Director Eric Johnson 405-602-3812 of Communications; Travis Pickens, Ethics Counsel; Robbin Watson, Director of Information Technology; OBA Work/Life Balance Committee meeting; 12 p.m.; Oklahoma Bar Jane McConnell, Coordinator Law-related Education; Center, Oklahoma City with teleconference; Contact Sarah Schumacher Loraine Dillinder Farabow, Tommy Humphries, 405-752-5565 Debbie Maddox, Katherine Ogden, Steve Sullins, Assistant General Counsels; Tommy Butler, Tanner 27 OBA Women in Law Committee meeting; 12 p.m.; Oklahoma Condley, Sharon Orth, William Thames and Bar Center, Oklahoma City with TU College of Law, Tulsa; Contact Krystal Willis, Investigators Allison Thompson 918-295-3604 Manni Arzola, Jarrod Houston Beckstrom, Debbie Brink, Emily Buchanan, Susan Carey, 28 Oklahoma Bar Foundation luncheon and meeting; 11:30 a.m.; Nickie Day, Dieadra Florence, Johnny Marie Oklahoma Bar Center, Oklahoma City; Contact Nancy Norsworthy Floyd, Matt Gayle, Brandon Haynie, Suzi 405-416-7070 Hendrix, Misty Hill, Debra Jenkins, Durrel Lattimore, Heidi McComb, Renee Montgomery, 1 OBA Government and Administrative Law Practice Section Larry Quinn, Lori Rasmussen, Wanda F. Reece, meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Tracy Sanders, Mark Schneidewent, Jan Contact Scott Boughton 405-717-8957 Thompson, Laura Willis & Roberta Yarbrough 3 OBA Lawyers Helping Lawyers discussion group meeting; EDITORIAL BOARD 6 p.m.; Office of Tom Cummings, 701 NW 13th St., Oklahoma City; RSVP to Editor in Chief, John Morris Williams; News & Layout Editor, Carol A. Manning; Editor, Kim Reber [email protected] Melissa DeLacerda, Stillwater; Associate Editors: OBA Lawyers Helping Lawyers discussion group meeting; 6 p.m.; Dietmar K. Caudle, Lawton; Emily Duensing, University of Tulsa College of Law, John Rogers Hall, 3120 E. 4th Pl., Rm. Tulsa; Erin Means, Moore; Shannon Lee Prescott, Okmulgee; Mark Ramsey, Claremore; Judge 206, Tulsa; RSVP to Kim Reber [email protected] Megan Simpson, Buffalo; Leslie Taylor, Ada; For more events go to www.okbar.org/calendar Judge Allen J. Welch, Oklahoma City; January Windrix, Poteau The Oklahoma Bar Association’s official website: www.okbar.org NOTICE of change of address (which must be in writing and signed by the OBA member), THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar undeliverable copies, orders for subscriptions Association. All rights reserved. Copyright© 20082014 Oklahoma Bar Association. or ads, news stories, articles and all mail items The design of the scales and the “Oklahoma Bar Association” encircling the should be sent to the Oklahoma Bar Association, scales are trademarks of the Oklahoma Bar Association. Legal articles carried P.O. Box 53036, Oklahoma City, OK 73152-3036. in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. 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Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 517 518 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Business LITIGATION

Concurrent ‘Alter-Ego’ Claims Oklahoma Leads the Nation in Extending Protection to Shareholders, Officers and Directors By John D. Stiner

uring the past several years, practitioners have devoted significant attention to the fate of the Oklahoma Legisla- Dture’s efforts at, and the Oklahoma Supreme Court’s response to, legislative tort reform. However, few noticed the relatively quiet enactment last year of a statute with far-reaching implications for the officers, directors and shareholders of corpo- rations as well as the members and managers of limited liability companies in Oklahoma. This statute — which appears to be the first in the country to effectively circumvent long-standing judi- cial interpretations of the language of a substantially identical statute found not only in Oklahoma’s General Corporation Act, but also in the corporation codes of many other states — offers strong protection to ownership and management of companies against so-called “piercing the veil” lawsuits.

On Nov. 1, 2013, an amendment to Okla. Stat. director or shareholder for their own con- tit. 12, §682 went into effect. In current form, Sec- duct, act or contractual obligation arising tion 682(B) now states: out of or in connection with their direct involvement in the same or related transac- No suit or claim of any nature shall be tion or occurrence. brought against any officer, director or shareholder for the debt or liability of a The provision, which effectively stays the fil- corporation of which he or she is an officer, ing of “alter-ego” or “piercing the corporate director or shareholder, until judgment is veil” claims also applies to the members and obtained therefor against the corporation managers of limited liability companies.1 Corpo- and execution thereon returned unsatis- rate attorneys will likely recognize that the first fied. This provision includes, but is not sentence of Section 682(B) is merely a duplica- limited to, claims based on vicarious liabil- tion of a statute which has existed in Oklahoma’s ity and alter ego. Provided, nothing herein corporation code for almost 30 years. Okla. Stat. prohibits a suit or claim against an officer, tit. 18, §1124(B) states:

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 519 No suit shall be brought against any officer, accordance with statutory procedures,6 or per- director or shareholder for any debt of a cor- haps liability of a shareholder to extent of the poration of which he is an officer, director or unpaid consideration for shares of the corpora- shareholder, until judgment is obtained tion to satisfy the claims of creditors of insolvent therefor against the corporation and execu- companies.7 Interestingly, it would not, accord- tion thereon returned unsatisfied. ing to Fanning, apply to shareholder liability based upon other provisions of Oklahoma law, However, almost a decade ago, in Fanning v. such as management’s liability for application of Brown,2 the Oklahoma Supreme Court, in dicta, amounts to be held in trust under the lien stat- rejected the contention that Section 1124(B) utes8 or as a result of the corporation’s failure to applied to stay “alter-ego” claims, stating: pay franchise tax.9 Subsection (B) of §1124 must be read in In any event, the second sentence of Section relation to subsection (A). Subsection (A) 682(B) goes beyond Section 1124(B) and makes provides that subsection (B) applies only to abundantly clear that its provisions bar the filing claims conferred “by the provisions of the of a lawsuit against the officers, directors or Oklahoma General Corporation Act” which shareholders of a corporation based upon an permits officers, directors, and sharehold- alter-ego or piercing the veil doctrine until a ers to be held liable for the debts of the judgment has been rendered against the corpo- corporation in certain instances. ration and execution returned unsatisfied. And, The Oklahoma Legislature’s rejection of Fan- given its “including but not limited to” lan- ning is reasonable because it is not altogether guage, it would also appear to extend that clear that, as a matter of statutory interpretation, protection to causes of actions or liabilities aris- the Fanning court’s in dicta statement was cor- ing in other provisions of the Oklahoma Stat- rect. While Section 1124(A) certainly makes clear utes beyond those found in the corporation that creditors have a cause of action against offi- laws. This statute appears to be the first of its cers, directors and shareholders when they are kind and affords broad protections to not only otherwise liable under other provisions of the officers, directors and shareholders of domestic corporation statutes, these liabilities were already corporations but also those of foreign corpora- effectuated and made clear by those other provi- tions in suits brought in Oklahoma courts. Sec- sions.3 Subsection (A) does not, in fact, provide tion 682(B) still allows for suits based upon the that subsection (B) applies only to liabilities con- personal torts or contractual obligations of ferred by the corporation statutes. In fact, Sec- shareholders, officers and directors, which is in tion 1124(B) goes further, and outlines when accord with an existing 10th Circuit interpreta- suits may be brought “for any debt” (as opposed, tion of Section 1124(B).10 for example, to specified statutory liabilities) of UNCERTAIN CASE LAW the corporation. Given that Section 1124(B) uses the phrase “any debt” and Section 1124(A) mere- Given the paucity of any particularized statu- ly restates obligations already existing under tory or judicial guidelines for alter-ego claims in other provisions of the corporation laws, it Oklahoma beyond factors involving a corpora- would seem that a better rule of statutory inter- tion’s liability for the debts of a subsidiary, the pretation would be that the courts should pre- Legislature’s willingness to effectuate a statutory sume that the Legislature has not done a vain stay of such actions is understandable. For and useless thing.4 example, trial courts may be hesitant to dispose of the issue on summary judgment given the Section 1124(B) is the Oklahoma analog of Sec- Supreme Court of Oklahoma’s indication that tion 325(b) of Delaware’s Corporation Code. veil-piercing issues “doubtless gives rise to a fact Like the Fanning court, courts in other jurisdic- question.”11 Yet, Oklahoma’s Uniform Jury tions interpreting Delaware’s version have held Instructions do not contain a standard jury that subsection (b) must be read in conjunction instruction for determinations of such liability. with subsection (a) and only applies to stay the In fact, the courts across the country are split filing of lawsuits alleging liability based upon 5 (despite various judicial observations concern- the provisions of the corporation statutes. These ing the “weight of authority”) whether a party situations would appear to be extremely limited, has a right to a jury on such a claim in the first including, for example, instances in which share- place.12 Even more perplexing for the trial court holders of a dissolved corporation are liable for is that while equitable claims should ordinarily the company’s debt following dissolution not in be tried by the court, the court may in its discre-

520 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 tion submit the issue to a jury when the case These factors, which pertain to the corpora- involves both legal and equitable claims,13 or tion-subsidiary relationship (and, if taken liter- may consider the jury’s findings advisory only.14 ally, effectively eviscerate it as a reliable method To make matters worse, to the extent these issues of insulation from liability), stand a significant are submitted to a jury, in the absence of uniform chance of misinterpretation when applied to instructions, Oklahoma courts may be persuad- closely-held corporations with individual or ed to utilize jury instructions based on rather single-member LLC shareholders. Most notably, vague and often inapposite standards. the notion of “gross undercapitalization” can be

15 particularly threatening to a relatively new For example, in Sautbine v. Keller, the Supreme enterprise, which may not have yet realized any- Court of Oklahoma recognized that the com- thing other than losses and could serve to defeat mon-law alter-ego theory in Oklahoma has the entire purpose of a corporation — limiting “been amplified to allow application not only liability in order to promote the infusion of risk for fraud or wrong, but also in cases where the capital for commercial enterprise. However, facts require the court to disregard separate exis- defendants’ attempts to obtain clarifying instruc- tence of the corporation and shareholders in tions relating to undercapitalization have been order to protect rights of third persons and refused.20 Similarly, case law is scant with regard accomplish justice.” Other courts have held that to officer and director liability, with only a brief it may be utilized “when it is essential in the recitation of the standard set forth in Preston- interest of justice to do so, or where the corpo- Thomas Const. v. Central Leasing21 in 1973. On top rate shield is used to defeat an overriding public 16 of all this, the issue may be raised for the first policy.” For example, courts have disregarded time in post-judgment execution proceedings22 the corporate form of a company that failed to and the statute of limitations has never served as satisfy a Workers’ Compensation Court award an effective bar for such claims.23 Section 682(B), based on public policy without any finding of which reduces the alter-ego claim in Oklahoma 17 the usual alter-ego factors. Indeed, jury instruc- to what amounts to a purely stand-alone equi- tions may simply recite the non-exhaustive list table declaration by the court of liability for a of factors cited in Frazier v. Bryan Mem. Hosp. previously adjudicated and liquidated debt of 18 Auth, which were whether: the corporation, would seem to make clear that 1) the parent corporation owns all or most such alter-ego claims are equitable and not tri- of the subsidiary’s stock, able to a jury as a matter of right. 2) the corporations have common directors UNANSWERED QUESTIONS or officers, Section 682 does leave some questions unan- 3) the parent provides financing to its sub- swered. Perhaps most importantly, it is not sidiary, inconceivable that the corporation would, prior to judgment and execution, file a voluntary peti- 4) the dominant corporation subscribes to tion under Chapter 7 or Chapter 11 of the United all the other’s stock, States Bankruptcy Code. Would, for example, a 5) the subordinate corporation is grossly claim against the corporation addressed in a undercapitalized, confirmed Chapter 11 plan, render the possibili- ty of an actual judgment, let alone one that 6) the parent pays the salaries, expenses or remained unsatisfied, a virtual impossibility and losses of the subsidiary, thus allow the officers, directors and sharehold- 7) almost all of the subsidiary’s business is ers to avoid a veil-piercing claim altogether? Would this violate Oklahoma’s constitutional with the parent or the assets of the former 24 were conveyed from the latter, right of access to the courts or might it consti- tute a special law regulating the courts’ treat- 8) the parent refers to its subsidiary as a ment of a special class of plaintiffs — contract or division or department, tort creditors of an alter-ego company?25 Might this encourage requests for abstention by the 9) the subsidiary’s officers or directors fol- bankruptcy court or motions to lift the auto- low directions from the parent corporation matic stay to allow claimants to adjudicate their and claim in state court during the pendency of the 10) legal formalities for keeping the entities bankruptcy case, thus slowing the administra- separate and independent are observed.19 tion of the Chapter 11 case while judgments

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 521 against the corporation were pursued not for against the company for the same liability when purposes of establishing and liquidating a claim subsection (B) already makes clear that no such but rather simply in order to establish the statu- claim may be brought until judgment has been tory predicate for a subsequent alter-ego law- obtained against the corporation. Perhaps the suit? Additionally, would the doctrine apply to only reasonable construction of subsections (B) bar declaratory judgments by insurers under and (C) is that subsection (C) merely clarifies fidelity bonds in which the insurer seeks a dec- that claims against officers, directors and share- laration that the corporate insured was an alter- holders for their independent liabilities may ego of a malfeasant officer, director or share- indeed be tried in the same proceeding. holder, thus precluding liability because the Perhaps the most interesting aspects of Section bond did not cover loss resulting from the 682 concern the scope of its application. Section insured’s own wrongdoing? Would the statute 682(D), which extends the statute’s protection serve to preclude judicial determinations of afforded officers, directors and shareholders of alter-ego allegations in determining whether a corporations to members and managers of lim- party is bound by an arbitration agreement ited liability companies, states: “Members and when that determination might be used later in managers of limited liability companies shall be the proceedings for liability purposes?26 How afforded the same substantive and procedural pro- will the corporation’s own indemnification obli- tection from suits and claims as the protections gations to officers and directors be affected provided to officers, directors and shareholders given that by the time any suit is brought against of a corporation as set forth in subsections B and those individuals, by definition, corporate C of this section.” The use of the phrase “sub- resources will be exhausted? These are all mat- stantive and procedural” may be critical in the ters that may bear judicial interpretation or sub- interpretation of the law’s scope. To the extent sequent amendment. the statute is considered procedural in nature, then it may also apply to suits in Oklahoma courts brought against the officers, directors and shareholders of not only Oklahoma but also for- eign corporations. Moreover, if the statute is Perhaps the most interesting considered procedural, would it apply retroac- aspects of Section 682 concern the tively to lawsuits pending as of its effective date of Nov. 1, 2013?27 Finally, if considered a substan- scope of its application. tive matter of corporation law, then it should apply, at least with respect to Oklahoma corpo- rations, in federal court.28 Section 682 represents an important step by There are also unanswered questions regard- the Oklahoma Legislature in effectuating the ing the language of the statute. Section 682(C) centuries-old policy underlying the corporate states: entity — limited liability. Potential plaintiffs Subject to the exceptions provided for in will, with the benefit of the tolling provisions of subsection B of this section, any claim Section 682(E), have to first obtain a judgment against an officer, director or shareholder against the corporation itself and determine asserting liability against such officer, direc- whether it may be satisfied before exposing tor or shareholder for the liabilities of a ownership and management to what could be corporation shall not be tried during the needless litigation expense. same phase of the proceeding in which the issues of liability with respect to the corpo- 1. Okla. Stat. tit. 12, §682(D)(Supp. 2013). 2. 2004 OK 7 at n.8, 85 P.3d 841, citing Lone Star Indus., Inc. v. Red- ration are tried unless there also exists a wine, 757 F.2d 1544, 1553 (5th Cir. 1985). claim based upon the conduct or act of the 3. See infra at n.5 and n.6. 4. State ex rel. Okla. Dept. of Public Safety v. Gurich, 2010 OK 56, officer, director or shareholder of the cor- ¶25. poration arising out of the same or related 5. Pinellas County v. Great Amer. Indus. Group, Inc., No. 90 C 5254, 1991 WL 259020 at *3 (N.D. Ill. Dec. 2, 1991); Shirley v. E & E Trucking Co., No. transaction or occurrence. Civ. A 0014-0686, 1987 WL 860828 at *1 (Del. Com. Pl. May 6, 1987); 6. Okla. Stat. tit. 18, §1100.3 (2011). This subsection appears superfluous. It is dif- 7. Id. at §1043(A). It should be noted, however, that Section 1043(B) ficult to conceive of a scenario in which a claim seems to contain its own analog to Section 1124(B) with regard to when a suit for such liability may be brought. against the protected class for the company’s 8. Okla. Stat. tit. 42, §153(2) (2011). debt could be tried simultaneously with a claim 9. Okla. Stat. tit. 68, §1212(B) (2011).

522 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 10. Okla. Federated Gold & Numismatics, Inc., 24 F.3d 136, 141 (10th 20. Gilbert, 2006 OK 58 at ¶25. Cir. 1994). 21. 1973 OK CIV APP 10, ¶¶8-9. 11. Frazier v. Bryan Mem. Hosp. Auth., 1989 OK 73, ¶16, 775 P.2d 281. 22. Sproles v. Gulfcor, Inc., 1999 OK CIV APP 81, ¶¶2-3, 987 P.2d 12. See e.g., Iantosca v. Benistar Admin. Services, Inc., 843 F. Supp. 2d 454. 148, 153 (D. Mass. 2012)(holding right to jury trial on alter-ego theory 23. Boulden v. Colbert Nursing Home, Inc., 2011 OK CIV APP 21, ¶17, where money judgment, as opposed to declaration, sought); U.S. v. 249 P.3d 105 (“[S]hareholder liability for a corporation’s judgment may Vacante, No. 1:08cv1349 OWW DLB, 2010 WL 2219405 at **3-4 (E.D. be litigated — on a corporate veil or alter-ego theory of recovery — Cal. June 2, 2010)(collecting cases and holding that right to jury trial after the statute of limitations on the underlying claim has expired”). applied where money judgment sought); but see International Financial 24. Okla. Const. Art. II, §6. Services Corp. v. Chromas Technologies Canada, Inc., 356 F.3d 731 (7th Cir. 25. Okla. Const. Art V, §46. 2004)(finding no right to jury trial on alter-ego claim); Advanced Tele- 26. Carter v. Schuster, 2009 OK 94, ¶14, 227 P.3d 149. phone Sys., Inc. v. Com-Net Professional Mobile Radio, LLC, 846 A.2d 1264 27. Walls v. Amer. Tobacco Co., 2000 OK 66, ¶24, 11 P.3d 626. (Pa. Super. Ct. 2004)(finding no state constitutional right to jury trial on 28. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 alter-ego claim); In re Thorn, 788 So.2d 140 (Ala. 2000)(finding no right (1938). to jury trial on alter-ego claim). It should be noted that in Maxxum Constr., Inc. v. First Comm. Bank, 2011 OK CIV APP 84, ¶9, 256 P.3d 1058, the court indicated both that a piercing the veil claim was “purely About The Author equitable” and then, in the next sentence, stated that it was “predomi- nantly equitable.” In Puckett v. Cornelson, 1995 OK CIV APP 72, ¶11, 897 P.2d 1154, the court held that “an action against a corporate officer or John D. Stiner is a shareholder shareholder to recover on a corporate debt stands purely in equity.” with McAfee & Taft in its Okla- 13. I.C. Gas Amcana, Inc. v. J.R. Hood, 1992 OK 119, ¶8, 855 P.2d 597. On the other hand, if the equitable claims are paramount, there is no homa City office. He practices right to a jury. Butcher v. McGinn, 1985 OK 58, ¶8, 706 P.2d 878. primarily in the areas of business 14. Ray v. Masters, 1967 OK 159, ¶0, 429 P.2d 991. law; litigation; banking and finan- 15. 1966 OK 29, ¶15, 423 P.2d 447. 16. King v. Modern Music Co., 2001 OK CIV APP 126, ¶17. cial institutions; and business 17. Thomas v. Vertigo, Inc., 1995 OK CIV APP 45, ¶¶7-10, 900 P.2d restructuring, workouts and bank- 458. Thomas is interesting in that the court seemed to agree to that Section 1124(B) of the corporation statutes indeed barred a claim ruptcy. He has experience litigat- against an officer, director or shareholder until judgment against the ing a variety of matters in state company was returned unsatisfied. Id. at ¶12. 18. 1989 OK 73, ¶17, 775 P.2d 281; see also Gilbert v. Sec. Fin. Corp. of and federal courts across the country. He is a 1993 Okla., 2006 OK 58, ¶23, 152 P.3d 165. graduate of the Edmond A. Walsh School of Foreign 19. Even factors as vague as “commonality of purpose” have been Service at Georgetown University and a 1998 graduate recognized as applicable. Pennmark Resources Co. v. State ex rel. Okla. Corp. Comm’n., 2000 OK CIV APP 63, ¶16, citing Oliver v. Farmers Ins. of the OU College of Law. Group of Cos., 1997 OK 71, ¶8, 941 P.2d 985.

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Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 523 WITH FIRST LIBERTY &

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524 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 EXPERTISE

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Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 525 526 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Business LITIGATION

But It’s Mine The Signer Versus Joint Owner Problem with Bank Accounts By Brandee Hancock magine this scenario: mom walks into the bank and tells the customer service representative, “I would like to add my son Ito my bank account so he can help me pay my bills.” Without any further conversation, the representative hands the client a new signature card with son on the account. Mom signs it with- out further examination. It happens all the time.

But what many customers do not know is decides to keep it. The result? Daughter is livid, there are different ways of accomplishing add- and rightfully so — her mother’s wishes were ing son to the account. Suppose mom intended not met and daughter doesn’t get her share of son only to sign checks occasionally to help her the money. But does she have any rights to pur- out, but the representative misunderstood or sue half of the account mom intended her to didn’t understand the available options and the receive? new signature card she signed changed the own- Joint tenancies are defined in Oklahoma Stat- ership to joint with rights of survivorship with utes as an interest “owned by several persons in son, rather than simply adding him as an autho- either real or personal property in equal shares, rized signer. Now we have a problem. being a joint title created by a single instrument, Mom dies a few years later with a will leaving will or transfer when expressly declared in the everything to daughter and son equally. So instrument.”1 Four unities are required for joint mom’s assets get divied up between daughter tenancies: time, title, interest and possession.2 and son and everyone lives happily ever after, When a joint tenant dies, title to the whole prop- right? Not so fast. erty vests in the surviving joint tenant and the property is not included in the probate estate of When a joint owner with rights of survivor- the deceased joint tenant.3 In Oklahoma, there ship is added to an account, the account becomes are two ways to create a joint tenancy: by express exactly that — a joint account with rights of sur- language in a written instrument or by “inten- vivorship. A will has no effect on the account tionally and intelligently” creating the “essential until the surviving owner dies, so mom’s will elements of joint ownership and survivorship.”4 doesn’t apply because the account is a non- probate asset at her death. By operation of law, In Peyton v. McCaslin, the Oklahoma Supreme son now gets the money because he’s the surviv- Court found that a constructive trust existed in ing joint owner. Maybe son is an honest guy and favor of the decedent’s heirs for a bank account gives his sister her half as mom intended. Or clearly designated as a joint tenancy account.5 maybe he really needs or wants the money and Mr. Peyton had a will which divided his estate

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 527 between his niece and neph- probate estate and the beneficia- ews.6 Mr. Peyton met Mr. Mc- Beyond the ries of decedent’s will objected Caslin, the husband of one of to the accounting, alleging the Mr. Peyton’s nieces, at the banks practical impact joint tenancy account should be where his money was kept.7 Mr. of a beneficiary included.21 Peyton destroyed his will, leav- The district court agreed and ing only the list of names and losing his or her imposed a constructive trust.22 addresses of his heirs, and estab- But the Oklahoma Supreme lished joint tenancy accounts share of an Court disagreed, finding that with Mr. McCaslin.8 incorrectly designated that the record clearly indicated During his life, Mr. Peyton gen- decedent’s intent to create a joint erally managed his own finances, account, the tenancy with nephew.23 The but Mr. McCaslin occasionally emotional impact court based its decision on the wrote checks on the joint account express language of the signa- and indicated in the signature he is huge. ture card, holding that this cre- was signing on behalf of Mr. Pey- ated an express joint tenancy ton.9 Mr. McCaslin never used the and contract law controlled.24 money in the joint accounts for himself while Because the parties’ intent was clear from the Mr. Peyton was alive.10 After Mr. Peyton’s death, four corners of the contract, the trial court erred Mr. McCaslin used the money to pay Mr. Pey- by considering evidence of the parties’ intent.25 ton’s funeral expenses, inheritance tax and bills Three justices disagreed, and in a written dis- and transferred the balance to Mr. McCaslin’s sent noted that the court’s decision to ignore own account.11 parol evidence would “eviscerate” the estab- After buying a truck for himself and determin- lished rulings on the issue.26 The dissent noted ing the value of the services he provided to dece- that the district court found decedent intended dent’s estate, Mr. McCaslin then offered to the money to be used for his expenses during life divide the remainder among the remaining and to be divided among his will beneficiaries at heirs.12 The heirs filed suit, alleging the evidence his death.27 Because the district court was in the established a constructive trust for their benefit best position to evaluate the evidence, the dis- with Mr. McCaslin having only a legal interest.13 sent found clear and convincing evidence exist- In deposition, Mr. McCaslin stated that Mr. Pey- ed to establish a constructive trust.28 ton wanted him to divide the money if any was Given the current law, daughter doesn’t have left, but later denied making the statement.14 much chance of succeeding in a suit to establish The Oklahoma Supreme Court agreed with a constructive trust and recover her share of the the heirs, finding that the clear weight of the money from the account, particularly if the sig- evidence established a constructive trust for the nature card expressly indicated joint ownership. benefit of the heirs, despite the creation of the This scenario could have been avoided entirely joint tenancy account between Mr. Peyton and if mom’s account had been designated correctly. Mr. McCaslin.15 The court acknowledged that the Beyond the practical impact of a beneficiary burden of establishing a constructive trust falls losing his or her share of an incorrectly desig- upon the party alleging such trust existed and nated account, the emotional impact is huge. the evidence must be “clear, unequivocal and The wronged children are likely to be bitter and decisive.”16 angry at the child who kept the money. In one But in 2011, the Oklahoma Supreme Court case we litigated, the excluded children brought appeared to change course.17 Decedent estab- it up every time any decision about the remain- lished a bank account with his nephew, desig- ing estate needed to be made and they are now nating the nephew as a joint tenant with rights barely speaking to the child who received the of survivorship, which was clearly indicated on money. Keep in mind this case had substantial the signature card.18 Decedent and his nephew assets and, in the overall scheme, the amount verbally agreed that, during decedent’s life, kept by the sibling wasn’t significant. But the nephew would exercise no control over the decision to keep the money created a rift with account.19 In accordance with this agreement, the siblings that may never be repaired. It was nephew made no deposits or withdrawals to the the principle of what was done, not the amount account.20 The account was not included in the — the siblings simply felt wronged.

528 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Carrying out the client’s intent is the key. As gardless of what the customer’s will says. At the practitioners, we should advise estate-planning end of the day, everyone will be happier. clients to check the ownership of their bank accounts and make sure it is in line with what 1. 60 Okla. Stat. Ann. §74. 2. Shackelton v. Sherrard, 1963 OK 193, ¶12, 385 P.2d 898, 901. they really want. Joint ownership and payable- 3. Toma v. Toma, 2007 OK 52, ¶11, 163 P.3d 540, 544. on-death designations can be an effective estate- 4. Raney v. Diehl, 1971 OK 28, ¶18, 482 P.2d 585, 590. 5. Peyton v. McCaslin, 1966 OK 4, 417 P.2d 316. planning tool when used properly. Make sure 6. Id. at ¶2, 417 P.2d at 318. clients understand that a will does not control a 7. Id. at ¶3, 417 P.2d at 318. 8. Id. quarrel over joint accounts or accounts con- 9. Id. at ¶4, 417 P.2d at 319. trolled by payable-on-death designations. Advise 10. Id. the client that adding one child as a co-owner 11. Id. 12. Id. because the client is confident the child will “do 13. Id. at ¶8. the right thing” upon the client’s death places 14. Id. at ¶16. 15. Id. at ¶14. that child in a difficult position and is a bad idea. 16. Id. at ¶18. Doing so means the child has complete control 17. Estate of Metz, 2011 OK 26, 256 P.3d 45. 18. Id. at ¶2, 256 P.3d at 46. over the account and might be tempted to “do 19. Id. the wrong thing.” Help the client fully under- 20. Id. 21. Id. at ¶4, 256 P.3d at 47. stand the available options and choose the best 22. Id. alternative to accomplish the client’s intent. 23. Id. 24. Id. at ¶10, 256 P.3d at 49. Customers will often make changes to the 25. Id. at ¶14, 256 P.3d at 50. 26. Id. at ¶1, 256 P.3d at 51. account without consulting an attorney, so the 27. Id. duty to inform falls (or should fall) to the bank. 28. Id. at ¶5, 256 P.3d at 52. We should also advise bank clients to make sure customer service representatives are properly About The Author trained to understand the ramifications of joint ownership, payable-on-death designations, and Brandee R. Hancock received a adding authorized signers. It keeps the bank out B.A. from Oklahoma State Uni- of later litigation and, more importantly, assists versity and her J.D. with honors their customers with accomplishing what the from the University of Oklahoma, customer needs. Have a fact sheet available where she was a member of the comparing the features of joint ownership, pay- Oklahoma Law Review. She is an able-on-death designations, and authorized associate with Ellis & Ellis in Still- signers. Inform customers of the consequences water, with a practice focused pri- of changing ownership. Make sure they under- marily on estate planning, probate stand that joint ownership of the account or a and estate administration, business and tax planning, payable-on-death designation will control, re- and fiduciary litigation. She is the treasurer for the Payne County Bar Association.

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 529 530 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Business LITIGATION The Court of Competent Jurisdiction: Is That Your Final Answer? By Spencer C. Pittman

his article provides a brief historical context and recent developments in tort-claim jurisdictional issues for feder- Tally recognized Oklahoma Indian tribes operating under the Oklahoma Model Tribal-State Gaming Compact. This article specifically explores federal and Oklahoma state court statutory interpretations defining “court of competent jurisdiction” under Okla. Stat. tit. 3A §281 and implications for future litigation.

With 33 Indian tribes operating a total of 115 uniform and a conclusive answer. This article gaming facilities, Oklahoma has been officially serves to inform practitioners of these develop- named as the number two gaming state in the ments and the final answer as to where to file country. In 2011, Oklahoma Indian casino rev- suit should a client wish to pursue a tort or enues totaled $3.48 billion, an increase of 7.7 prize claim against a gaming tribe within the percent since 2010.1 The gaming sector has state. been, and will be, a growing industry for Indi- Under the doctrine of sovereign immunity, ans. Accordingly, Indian gaming law is con- federally recognized Indian tribes are protected stantly in development and has become a from state suit, have the authority to enact sub- popular topic of discussion for both the media stantive internal law and may enforce their law and for lawyers who are either defending a in their own forums.3 Unless abrogated by Con- tribal gaming client or looking to bring a tort or gress or expressly and unequivocally waived by prize claim against a casino. the tribe, sovereign immunity will prohibit suit The proper jurisdiction for tort claims and against the tribe both on and off the tribe’s res- prize-related claims arising out of tribal enti- ervation.4 ties and casinos has fluctuated between the Prior to 1988, gaming in the U.S. was heavily tribal courts and state courts over the past two unregulated and Indian gaming operations decades, creating ambiguity and confusion.2 drastically expanded in size and number. Tribal Oklahoma has recently been the center of a nations across the country joined in the surge substantial transformation in regards to this to build and operate bingo halls to reap the jurisdictional issue. The fundamental question benefits from their substantial revenue. In presenting itself to practitioners is, “when will response, states sought exclusive gaming regu- we receive a final answer?” After nearly a latory authority, e.g., taxation of bingo hall decade of continuous statewide litigation, law- revenue, and multiple lawsuits ensued. The yers can rest assured, for there appears to be a

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 531 abundance of litigation prompted Congress to Subsequent to the enactment of the Oklaho- take action giving rise to the formulation of the ma Model Tribal-State Gaming Compact, Indian Gaming Regulatory Act (IGRA).5 extensive litigation has ensued in the attempt to define “court of competent jurisdiction.”12 Congress justified the enactment of IGRA by The genesis of this litigious battle began with citing the sheer number of Indian tribes operat- Bittle v. Bahe,13 where the state court found con- ing gaming facilities as a source of revenue, the gressional abrogation for dram shop liability lack of standards for approval of management claims against Indian tribes and permitted contracts involving Indian gaming and vague liquor-based tort claims against the tribes to be federal regulation of gaming on Indian lands. brought in state court. In 2004 while driving on Furthermore, IGRA expounds on the necessity State Highway 9 in Pottawatomie County, the to adhere to tribal self-sufficiency and sovereign- defendants crossed over the centerline of the ty. 6 This legislation provides the regulatory and highway and collided head-on with the plain- jurisdictional framework for Indian gaming tiff resulting in substantial injury and the death while giving states a limited ability to control the of Bahe. In addition to a personal injury suit scope and extent of Class III gaming. Class III against Bahe and Tsosie, Bittle also alleged lia- gaming includes all other forms of gaming that bility against the Absentee Shawnee Tribe Inc., are not included in the scope of Class I gaming under a theory of dram shop liability for know- (social games for minimal value) or Class II ingly and excessively serving alcohol to an gaming (e.g., bingo or pull-tabs).7 obviously intoxicated casino patron.14 Early The primary effect of IGRA is to authorize into the litigation, the tribe filed a motion to compact negotiations between a tribe and a quash service of process. The district court state for gaming purposes. Tribal-state gaming found tribal sovereign immunity barred suit compacts are contractual in nature and must against the tribe in state court and dismissed adhere to the procedural requirements of the the cause of action against the tribe.15 After IGRA under 25 U.S.C. §2710(d). On Nov. 2, affirmation by the Court of Civil Appeals, Divi- 2004, Oklahoma voters approved a referendum sion 3, the Supreme Court of Oklahoma grant- enacting a Model Tribal-State Gaming Com- ed certiorari review on the issue of tribal sover- pact, which served as a pre-approved offer to eign immunity and found: all federally recognized Oklahoma Indian The Tribe acknowledged that [18 U.S.C.] tribes.8 Since the adoption of Oklahoma’s §1161 might allow the state to bring an Model Tribal-State Gaming Compact, 34 indi- action in state court against the Tribe to vidual federally recognized tribes located in enforce the state liquor laws, even though Oklahoma have successfully negotiated and it urged a private party cannot. With this ratified this compact.9 acknowledgment, the Tribe tacitly con- Virtually all tribal-state gaming compacts cedes that Congress intended the Tribe to across the nation contain a provision for limit- be subject to state court jurisdiction when it ing tribes’ rights to waive sovereign immunity enacted §1161.16 for tort or prize claims. Part 6 of Oklahoma’s Under this assumption, the Supreme Court Model Tribal-State Gaming Compact requires of Oklahoma ruled that the Absentee Shawnee patrons of enterprise facilities to be given due Tribe’s casino acted essentially as a corporation process when seeking and receiving just and when the tribe applied for and obtained a state reasonable compensation for torts claims license to serve alcoholic beverages for on- against the tribal gaming facility, resulting in premises consumption by casino patrons. personal or property injury. To ensure compli- Accordingly, the court found this liquor license ance with this provision, tribes are required to waived any tribal sovereign immunity to be maintain minimal public liability insurance.10 sued in state court based on alleged violations In addition, Part 6, subsection C of the Okla- of liquor-related torts.17 This result posited a homa Model Tribal-State Gaming Compact fundamental issue for tribal sovereign immu- requires tribal consent “to suit against the nity. If Oklahoma found congressional abroga- enterprise in a court of competent jurisdiction tion for dram shop liability under Bittle v. Bahe, with respect to a tort claim or prize claim.”11 should other tort-based claims subject tribes to Oklahoma’s Model Tribal-State Gaming Com- state court as well? pact fails to define “court of competent juris- diction,” which became the determinative issue Shortly after Bittle v. Bahe, three separate tort- of cases thereafter. based claims were brought in state court against

532 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Oklahoma federally recognized tribes. Griffith a federal district court… The parties con- v. Choctaw Casino of Pocola18 and Dye v. Choctaw sent to the jurisdiction of such arbitration Casino of Pocola19 involved tort-based claims forum and court for such limited purposes filed in LeFlore County against the Choctaw and no other...” Casino of Pocola, a gaming facility owned and operated by the Choctaw Nation of Oklahoma. This provision provides a binding dispute Respectively, the cases involved a casino patron resolution clause on the tribe and the state if tripping on a flowerbed resulting in injury, and issues in compact language interpretation arise. a casino patron being struck by an employee On July 20, 2009, the same year as the holdings driving a casino shuttle cart in the casino park- in Griffith, Dye and Cossey, the Choctaw Nation ing lot. Cossey v. Cherokee Nation Enterprises20 and the Chickasaw Nation invoked this arbi- involved a tort-based claim in Rogers County tration tool against the state of Oklahoma seek- against the Cherokee Nation after a casino ing a declaratory ruling on the jurisdictional issue of tort claims and prize claims arising patron fell backwards in a chair resulting in 23 injury. The district courts for Griffith, Dye and from Class III gaming facilities. Cossey ruled that the state court was a “court of On Aug. 25, 2009, the arbitrator between the competent jurisdiction” and was a proper nations and the state of Oklahoma issued the venue for tort-based claims asserted against arbitration award in favor of the Choctaw and the tribes. Chickasaw nations. The award explained the Griffith, Dye and Cossey reached the Supreme Oklahoma Model Tribal-State Gaming Com- Court of Oklahoma, where the tribes argued pact did not waive tribal sovereign immunity that sovereign immunity vested exclusive civil- and state courts did not retain any civil-adjudi- adjudicatory rights to the tribal courts. The catory jurisdiction over non-Indians’ tort or Supreme Court of Oklahoma disagreed and prize claims arising out of Indian casinos. interpreted the language of Okla. Stat. tit. 3A While tribal governments have generally been §281, Pt. 6(C)(1) to vest civil-adjudicatory juris- known to have the right to waive sovereign diction with the state. This holding established immunity, the waivers must be unequivocally proper jurisdiction for tort claims and prize expressed or abrogated by the federal Con- claims against the tribes in any court of compe- gress.24 The Model Tribal-state gaming Com- tent jurisdiction, including state district courts. pact was found to contain no congressional For example, the court in Griffith found that abrogation of the tribes’ sovereign immunities. “[n]othing in the compact provides that patron The arbitration award was subsequently certi- tort claims are to be adjudicated only in tribal fied in the Western District of Oklahoma. The court. Had that been the intent of the tribes and certification also permitted a permanent injunc- the state, the simple words ‘in tribal court only’ tion against the state of Oklahoma and all could have been included in the compact.”21 appropriate state agents/officials from assert- With the exception of New Mexico22, Oklahoma ing any civil-adjudicatory jurisdiction over tort has been the only state with a Tribal-State or prize claims against the compacted tribes.25 Gaming Compact (out of 24 other states) to Various other state gaming tribes have fol- permit civil-adjudicatory jurisdiction in the lowed the lead of the Chickasaw and Choctaw state court. nations in obtaining similar arbitration awards to keep their tort and prize claim cases out of The tribes sought an alternative avenue to state court. seek relief. Okla. Stat. tit. 31 §281, Pt. 12(2) provides: The arbitration award and subsequent fed- eral court affirmation should have resulted in “In the event that either party to this Com- the conclusion of the “court of competent juris- pact believes that the other party has failed diction” issue. However, practitioners are still to comply with any requirement of this attempting to bring tort and prize claims Compact, or in the event of any dispute against the both the Choctaw and Chickasaw hereunder, including, but not limited to, a nations in Oklahoma state courts. These cases dispute over the proper interpretation of have been correctly dismissed due to lack of the terms and conditions of this Compact… jurisdiction in compliance with the federal either party may refer a dispute arising enjoinment.26 under this Compact to arbitration … sub- ject to enforcement or pursuant to review To address this recurring issue of where to as provided by paragraph 3 of this Part by file tort and prize claims against compacted

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 533 Oklahoman tribes, the Supreme Court of Okla- ciate professor of law at the University of Tulsa homa decided to rehear the issue in light of College of Law, for his ongoing support throughout their previous holdings in Griffith, Dye and the drafting of this article. Cossey. In September of 2013, Sheffer v. Buffalo Run Casino, PTE, Inc. was presented to the 1. Alan Meister, Nathan associates Inc., Casino City’s Indian Gam- ing Industry Report 41-44 (2013). 27 court on appeal from Ottawa County. Sheffer 2. D. Michael McBride III, “Indian Gaming Compacts in Oklaho- involved a personal injury suit following a car ma: Respecting Tribal Jurisdiction and Enforcing Understanding — A Continuing Role for Class II Gaming,” Indian Gaming 14 (May 2010). accident. Two employees of Carolina Forge 3. Kiowa Tribe of Oklahoma v. Mfg. Technologies, Inc., 523 U.S. 751; had been drinking at the Peoria Tribe of Okla- Williams v. Lee, 358 U.S. 217, 223 (1959). 4. Romanella v. Hayward, 933 F.Supp. 163 (D. Conn. 1996). homa’s Buffalo Run Casino on a business trip 5. 25 U.S.C §§2701-21. and collided with the plaintiff’s vehicle in their 6. To regulate gaming on Indian lands, Pub. L. no. 100-497, 102 Stat. 2467, Sec. 2(3) (1988). leased rental vehicle. The plaintiffs brought 7. 25 U.S.C. §2703(7)(A)(i)-(ii)). suit against Carolina Forge on the tortious 8. State Question No. 712, Legis. Ref. No. 335, approved at the theories of respondeat superior and negligent general election held Nov. 2, 2004. 9. Compacted Tribes, oklahoma.gov, available at: http://goo.gl/ entrustment. They also brought suit against SUxOoC. Buffalo Run Casino, the Peoria Tribe of Indians 10. Okla. Stat. tit. 3A §281, Pt. 6. 11. Id. at (C)(1). and PTE Inc., under a dram-shop liability the- 12. Griffith v. Choctaw Casino of Pocola, Okla., 230 P.3d 488 (Okla. ory. The trial court dismissed Buffalo Run 2009); Dye v. Choctaw Casino of Pocola, Okla., 230 P.3d 507 (Okla. 2009); Cossey v. Cherokee Nation Enterprises, LLC, 230 P.3d 488 (Okla. 2009). Casino, the Peoria Tribe of Indians of Oklaho- 13. 230 P.3d 488, 490. ma, and PTE Inc. based upon tribal sovereign 14. Bittle v. Bahe, 2008 OK 10, 192 P.3d 810 (Okla. 2008). immunity and the aforementioned develop- 15. See generally Okla. Stat. tit. 37 §537(A)(2)(“No person shall… Sell, deliver or knowingly furnish alcoholic beverages to an intoxicated ments in Oklahoma Indian jurisdictional law. person…”). 16. Id. at ¶¶4-5. The Supreme Court of Oklahoma provided 17. Id. at ¶35; 18 U.S.C. §1161 prohibits the furnishing of intoxicat- ing liquor in Indian country unless the furnishing conforms to both an extensive analytical and procedural history state law where the furnishing occurs and “with an ordinance duly on the issue of defining “court of competent adopted by the tribe having jurisdiction over such area of Indian coun- jurisdiction” and ultimately held that Oklaho- try, certified by the Secretary of the Interior, and published in the Federal Register.” ma’s Model Tribal-State Gaming Compact is 18. 2008 OK 10, at ¶55. not to be construed as giving the state court 19. Griffith v. Choctaw Casino of Pocola, Okla., 2009 OK 51, 230 P.3d 488 (Okla. 2009). civil-adjudicatory jurisdiction. Concurring 20. Dye v. Choctaw Casino of Pocola, Okla., 2009 OK 52, 230 P.3d 507 with the Choctaw Nation of Oklahoma and Chicka- (Okla. 2009). 21. Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 6, 230 P.3d saw Nation arbitrator, the court found neither 488 (Okla. 2009). congressional abrogation nor tribal waiver of 22. Doe v. Santa Clara Pueblo, 141 N.M. 269, 280, 154 P.3d 644 (N.M. sovereign immunity. In conformity with this 2007). 23. Class III Gaming Compact Jurisdiction-Related Disputes Jointly holding, the precedential issues presented in Referred to Binding Arbitration by the Choctaw Nation of Oklahoma, The Dye, Cossey and Griffith were overruled.28 Fur- Chickasaw Nation, and the State of Oklahoma, Arbitration Award (Aug. 25, 2009)(Phillips, Arb.). thermore, the Supreme Court of Oklahoma 24. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). overruled its holding of Bittle v. Bahe and found 25. Choctaw Nation of Oklahoma and Chickasaw Nation v. State of Okla- homa, No. CIV-10-50-W, 724 F.Supp.2d 1182, 1186 (W.D. Okla. 2010). that the application and receipt of a state liquor 26. Santana v. Muscogee (Creek) Nation, ex rel. River Spirit Casino, 508 license “is nothing more than a promise to F.App’x 821 (10th Cir. 2013), cert. denied, 133 S.Ct. 2038 (2013). 27. 2013 OK 77, 315 P.3d 359. comply with state liquor laws, not a voluntary 28. Id. waiver of sovereign immunity for private party 29. Id. at ¶45 (quoting Bittle v. Bahe, 2008 OK 10, 192 P.3d 810 (Okla. lawsuits.”29 2008)). 30. Okla. Stat. tit. 3A §281, Pt. 15(B). With affirmations by both federal and state courts, the tribal court is now the exclusive About The Author “court of competent jurisdiction” for tort and prize claims under the Oklahoma Model Tribal- Spencer C. Pittman is an asso- State Gaming Compact. The uniformity in the ciate attorney with The Robin- state and federal court rulings appear to be the son Law Firm in Tulsa. His pri- final answer to the jurisdictional question, at mary focus is insurance defense, least for the near future. Practitioners should corporate, nonprofit and business not expect to see a material change until Jan. 1, litigation. He graduated from OU 2020, the date of expiration of Oklahoma’s in 2010 and obtained his J.D. Model Tribal-State Gaming Compacts.30 from the TU College of Law in Author’s note: The author would like to person- 2013. ally express his gratitude to G. William Rice, asso-

534 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 535 536 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Business LITIGATION

Residential Construction Defect Cases in Oklahoma By Douglas J. Shelton and Brianna Tipton t’s moving day. You and your family are moving into a newly built home designed and constructed just for you. This home Ihas been a dream of yours for years. You love that it smells so fresh and new. You can already imagine the family gatherings, barbeques and quiet nights watching the sunset on the porch.

But shortly after moving in, the roof begins to now entered the realm of residential construc- leak. You notice cracks developing in your walls; tion defect litigation. water has gotten into the air ducts; the windows POTENTIAL PARTIES drip when it rains and howl in the wind. You can’t believe this is happening. This is a brand There are several potential parties in a case new home. You realize that your dream home regarding construction defect. Most commonly, has turned into your worst nightmare. the buyer is the plaintiff. The builder/general contractor is generally the primary defendant. Because it is new, you know that the problem Because most contractors use several different has to be the construction of the home so you subcontractors, there may be multiple defen- contact your builder. He sympathizes with dants depending on the specific defects. Indi- you, tells you that he is sure the problem is vidual subcontractors may be solely responsi- superficial and he sends over his subcontrac- ble for the defects, but a general contractor has tors. They caulk a few areas, a “band-aid” the obligation to oversee the work and there- repair. The problems persist. After multiple fore, they are almost always included in the calls to the builder and the continuation of the suit. “band-aid” repairs, you realize you are on your own. You hire a structural engineer and he tells THEORIES OF LIABILITY you there are numerous building code viola- There are several theories of liability in which tions. In the meantime, the builder will no a residential construction defect claim can be longer return your calls, letters or emails. With brought. These include: breach of contract; every rain, the family is up in the middle of the breach of express warranty; breach of implied night putting buckets in the attic and towels warranty; and negligence, which may encom- around windows. It’s beyond stressful. Your pass common law negligence, negligence per spouse continues pressuring you to get some- se, and accepted work doctrine. thing done, but what? It appears the only recourse you have is to hire an attorney to Breach of Contract determine who are the responsible parties and The purchase contract, as daunting as it is, get the problems properly repaired. You have must be read. Most, if not all, construction con- tracts are prepared by a builder or his counsel,

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 537 to completely protect and discharge a builder’s contractor to perform the contract as a reason- liability, and often include asking the buyer to able contractor would, the homeowner can waive numerous rights they may otherwise seek recovery in tort alongside the contractual have. Several Oklahoma cases have comment- claim,5 see discussion of negligence theories of ed on how important it is for people to read the liability, infra. This gives homeowners two contracts they sign. “Generally, if a party to a theories of liability under which to hold the contract can read and has the opportunity to builder/general contractor liable for damages read the contract but fails to do so, he cannot to the home or injury to the individual. escape its liability.”1 “Regardless of whether [a Breach of Express Warranty party] remembers reading the [contract] prior to signing it, [he] cannot escape the conditions of Generally, building contracts contain a writ- the contract by claiming [he] failed to read it.”2 ten limited warranty that states the material and workmanship will conform to certain per- What case law stresses is the importance of formance standards set out within the contract knowing what rights and obligations a contract for a specified amount of time. This is the confers on the parties. Understanding the con- express warranty. The performance standards tract before it is signed can save everyone a lot set a contractual bar for the workmanship and of time, effort, money and undue suffering. material and set out the repairs the builder/ Parameters of the Suit with Regard to the Contract general contractor will be responsible for. In the Flint Ridge case, the Oklahoma Supreme Okla. Stat. tit. 12A, §2-313 addresses the Court held “the purchaser of a home can seek creation of an express warranty. to recover in contract for defects in the struc- (1) Express warranties by the seller are cre- ture itself as such defects render the home less ated as follows: than the purchaser bargained for.”3 The court went on to state: (a) Any affirmation of fact or promise made by the seller to the buyer which …where the plaintiff seeks to receive what relates to the goods and becomes part of the builder promised to deliver, or damag- the basis of the bargain creates an express es to compensate him for structural defi- warranty that the goods shall conform to ciencies in the final product, the action the affirmation or promise. arises from the contract of sale between the parties and is basically contractual in (b) Any description of the goods which is nature. The purchaser can also seek to made part of the basis of the bargain cre- recover in tort for injuries sustained due to ates an express warranty that the goods the contractor’s failure to construct the shall conform to the description. home as a reasonable contractor would.4 (c) Any sample or model which is made What Flint Ridge tells us is that a homeowner part of the basis of the bargain creates an can sue under breach of contract theory for express warranty that the whole of the defects in the structure that render the home goods shall conform to the sample or less than what was bargained for. A recent exam- model. ple of this came about during a case that our firm successfully tried. In part, the plaintiff (2) It is not necessary to the creation of an alleged that he bought the new home expecting express warranty that the seller use formal it to be in a new and properly working condi- words such as “warrant” or “guarantee” or tion. When the home was found to have multiple that he have a specific intention to make a water intrusions from the sub-floor, windows, warranty, but an affirmation merely of the roof and walls, the claim was made that this was value of the goods or a statement purport- not what the homeowner believed he was pur- ing to be merely the seller’s opinion or chasing. During the damages phase of the trial, commendation of the goods does not cre- the plaintiff argued he was entitled to what he ate a warranty. had paid for and was expecting — a new, prop- The question of the existence of an express erly functioning home. The jury agreed, finding warranty is one for the trier of fact.6 for the plaintiff. “In order for an express warranty to exist, Flint Ridge also tells us that if a homeowner is there must be an absolute assertion understood injured due to failure of the builder/general by the parties pertaining to the merchandise

538 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 sold.”7 “Comment 4 to section 2-313 of the A person who is in the business of building UCC notes that “the whole purpose of the law or assembling homes designed for dwell- of warranty is to determine what it is that the ing purposes upon land owned by him, seller has in essence agreed to sell.”8 And and who then sells the houses, either after “recovery under warranty provisions .... applies they are completed or during the course of to losses flowing from the sales contract.”9 their construction, together with the tracts of land upon which they are situated, to To prove a breach of express warranty, a members of the buying public.13 buyer must prove: 1) existence of the express warranty; 2) the home did not comply with the The Jeanguneat line of thinking regarding the express warranty; and 3) failure to comply implied warranties was expanded in Elden v. with the express warranty caused damages. A Simmons.14 The Elden court held: buyer will need to begin by proving the exis- (1) the duration of the implied warranties tence of the express warranty. This will often of habitability and construction in a work- be titled something like “Builder’s One Year manlike manner does not necessarily termi- Limited Home Warranty” in a home purchase nate upon transfer of title to the home, and contract. Once the existence of the express war- (2) that present owners of a home are not ranty is established, the next element is proof required to have privity of contract with the that the home did not comply with the terms home builder or manufacturer of a particu- set out in the express warranty. Failure of the lar component involved, in order to main- builder/general contractor to satisfy the stan- tain an action for breach of warranty.15 dards or make repairs set forth in the warranty fulfills this element. “It is sufficient if... the evi- The court noted “that requirement of vertical dence shows, either directly or by permissible privity as a prerequisite to suit on an implied inference, that the goods were defective in their or express warranty, both under the Uniform performance or function or that they otherwise Commercial Code and outside the code, is, failed to conform to the warranty.”10 The final given today’s market structure, an antiquated element is to prove the failure to meet the stan- notion.”16 Essentially, the court held that a sub- dards set out in the warranty caused damage. sequent purchaser need not be in privity with Like any contract, a warranty is negotiable, the builder-vendor to maintain an action for depending on the willingness of the builder to breach of implied warranties. negotiate off his “usual warranty.” However, implied warranties may be dis- Breach of Implied Warranty claimed. Oklahoma courts have held that “to relieve a builder-vendor of its obligation under Purchase contracts have implied warranties an implied warranty of habitability, there must that operate as a theory of liability if the build- be clear and conspicuous language evidencing er/general contractor fails to construct the builder’s disclaimer of its obligations arising home properly. These warranties are not in under an implied warranty of habitability.”17 writing and are above and beyond any written (emphasis added). Many builders now routinely warranty; they are warranties implied by law. have disclaimers of any implied warranties in In Jeanguneat v. Jackie Hames Constr.,11 the Okla- their form contracts. By these disclaimers, they homa Supreme Court found: attempt to limit any warranty to their already When a builder-vendor sells a new home, very limited express warranty. he or she impliedly warrants that the new In Cox v. Curnutt,18 the Oklahoma Supreme home is or will be completed in a workman- Court held that privity of contract with the like manner and is or will be reasonably fit homeowner is required before a subcontractor for occupancy as a place of abode, in the (as compared to the builder) will be held liable absence of an agreement to the contrary, and for breach of implied warranties. Cox is the cur- that such an implied warranty exists as a rent law in Oklahoma and controls when a matter of law, both when the new home party will be liable under the theory of breach being sold is completely constructed, and of implied warranties. So pursuant to Cox, when, at the time of sale the house is being there must be some privity of contract for the constructed or is to be constructed.12 subcontractor to be liable under the breach of This is often referred to as the implied war- implied warranties theory of liability. But pur- ranty of habitability. The court goes on to suant to Elden, the subcontractor may be held define “builder-vendor” as: liable under implied warranties if it is shown

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 539 they are a manufacturer of certain components owner, may and usually will, sell the home at involved in building of the house. In Elden, the some time. eventual homeowners brought a cause of action In the area of negligence, the privity of con- against the builder/general contractor and the tract requirement was abolished early in the manufacturer of the bricks used in the con- 20th century in the landmark case of MacPher- struction of the home. The bricks were crum- son v. Buick Motor Co.24 and is clearly followed bling and falling apart. The court found, as the in Oklahoma.25 In MacPherson, the court held manufacturer of a component involved in the that a manufacturer has a duty to those who construction of the home, the brick manufac- may foreseeably be expected to use his prod- turer was in the chain of distribution. Under ucts or to be in the vicinity of such usage to the rationale used by the court in Old Albany exercise reasonable care in the design and Estates v. Highland Carpet Mills19 the court in manufacture of those products26 (emphasis Elden found that since the manufacturer is in added). In adopting the MacPherson approach, the chain of distribution, privity of contract the Oklahoma Supreme Court has found that between the ultimate purchaser of the home the absence of privity of contract will not bar and the manufacturer of certain components an injured third party from recovering damag- used in construction of the home was not es for injuries received as a result of negligent required. work.27 In a nutshell, some warranties are implied in Industry customs exist in the construction a purchase contract as a matter of law. Since industry and it may be appropriate to argue these warranties are implied as a matter of law, that deviation from such customs may be if a builder/general contractor does not wish grounds for a negligence claim. The Oklahoma be to be held liable for breach of such warran- Supreme Court, in Sanders v. C.P. Carter Constr. ties, the disclaimer must be stated in clear and Co.,28 wrote: concise language. Also, the implied warranties do not necessarily terminate upon transfer of The omission of usual and customary pre- title to a subsequent purchaser. Manufacturers cautions may be a matter proper for con- of particular components involved in the con- sideration in determining whether or not struction of the home are also liable under the conduct was negligent, for, while ordinary implied warranties of the contract. Therefore, if prudence may require more precaution a subcontractor qualifies as a manufacturer of than is customary under similar circum- certain components used they too will be liable stances or in a similar business or occupa- under implied warranties. tion, it can hardly require less, and hence a lack of such precaution may fairly be Negligence regarded as negligence. The mere fact that General Negligence — To establish a claim a particular thing is done in a manner dif- of negligence, a plaintiff must show that: 1) the ferent from that in which it is customarily defendant had a duty to protect the plaintiff done does not show negligence in the from injury, 2) the defendant failed to properly absence of any fact showing that the man- exercise or perform that duty, and 3) the defen- ner in which the act is done is dangerous, dant’s failure to properly exercise or perform although it may be a matter for consider- that duty caused the plaintiff’s injury.20 ation in determining whether due care has been exercised.29 The cause of action for negligence does not arise out of any contractual relationship be- In determining negligence, the standard is tween the parties, therefore the breach of any due care and such standard is not fixed by cus- “duty” is to be defined by common law. The tom. Although failure to observe custom may general rule of duty is “a defendant owes a be evidence of negligence, adhering to a custom duty of care to all persons who are foreseeably is never a substitution for due care.30 A party endangered by his conduct with respect to all cannot establish the existence of a custom sim- risks which make the conduct unreasonably ply by proving that the act is frequently done.31 dangerous.”21 Debrel v. Doenges Bros. Ford Inc.22 The custom must be “certain, general, uniform holds that the most important consideration in and recognized.”32 It must also be notorious and the question of duty is foreseeability.23 Clearly, known to all persons involved in the trade or it is “foreseeable” that a builder, or any home- occupation at issue.33 “It is important to note that in order for a breach of custom to be considered,

540 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 the plaintiff must plead and prove that the party to be charged had knowledge of the custom or that the custom is ‘notorious, universal and well Often, city or county adopted established.’”34 building codes will have been Negligence Per Se — “When courts adopt violated when you have a defective the statutory standard for a cause of action for negligence, the violation of the statute is said to home and if such a violation be negligence per se.”35 “To establish negligence per se on the basis of a statutory violation the causes damages, it may be party must establish that: 1) the injury was considered negligence per se. caused by the violation; 2) the injury was of a type intended to be prevented by the statute; and 3) the injured party was of the class meant to be protected by the statute.”36 the construction industry for injuries aris- ing from design or construction defects. In Often, city or county adopted building codes its original form, the accepted work doc- will have been violated when you have a trine relieved an independent contractor of defective home and if such a violation causes liability for injuries to third parties after the damages, it may be considered negligence per contractor had completed the work, and se. “It is a well-settled principle of law in this the owner or employer had accepted the state that the violation of a statute or city ordi- work, regardless of the contractor’s negli- nance is negligence per se if the other elements gence in completing the project.43 of actionable negligence exist.”37 Oklahoma courts have stated in referring to municipal Pickens goes on to state: “In the area of negli- building codes, that a “violation...may, there- gence, the privity of contract requirement was fore, be negligence per se, but only if the viola- abolished early in the twentieth century in the tion proximately caused or contributed to the landmark case of MacPherson v. Buick Motor 44 damages at issue.”38 In Jones, the court was con- Co.,” However, this case was a products lia- sidering negligence per se in the context of the bility case and the standard applied to manu- Underground Facilities Damage Prevention facturers and was not immediately applied to Act. The court explained that the act “set stan- negligence claims against builders and archi- dards dealing with the operation, maintenance, tects. As a response to the criticism that it or repair of property in much the same way as should be applied to builders and architects, the rules of the road in the Oklahoma Motor courts began to recognize exceptions to the rule Vehicle Code, 47 O.S.1991, §§11-101, set stan- and create modified accepted work doctrines.45 dards relating to the operation of motor 39 Several exceptions to the accepted work doc- vehicles.” The court then compared the negli- trine have been established around the country. gence per se doctrine to building codes, stating, One exception to the general rule is: if a con- “Municipal building codes perform the same 40 tractor “willfully creates a condition which he purpose.” Therefore, a violation of the build- knows to be immediately and certainly danger- ing codes may be negligence per se. The court ous to third persons, who will necessarily be continued by stating “the determination of exposed to the danger.”46 Another “firmly what causal connection, if any, existed...and established exception to the accepted work whether those violations were negligence per 41 doctrine” is that: “liability is imposed after the se, is for the jury.” work has been accepted where a defect is latent Accepted Work Doctrine — The accepted or hidden....”47 For most buyers, the defects, work doctrine may limit a builder’s responsi- which will cause them the greatest problems, bility and is relevant in the analysis of liability will be hidden, as new homes are usually cos- under the theory of negligence and was dis- metically beautiful upon sale. cussed by the Supreme Court of Oklahoma in Oklahoma is one of the states that still adhere Pickens v. Tulsa Metro. Ministry.42 The court to a modified accepted work doctrine and the stated: abovementioned exceptions are recognized in The “accepted work doctrine” historically this state. Therefore, the general rule in Okla- limit[ed] the liability of architects, engi- homa is that once a job is accepted by the neers, contractors, and other members of owner, the contractor is not subject to liability

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 541 for injuries to a third party injured by a defec- for contract rescission are found in title 15 of tive condition, unless the contractor willfully the Oklahoma statutes. Okla. Stat. tit. 15, §233 creates a condition he knows to be immediately states the reasons rescission may be sought. and certainly dangerous to third persons who And Okla. Stat. tit 15, §233A states: “Where the will be exposed to the danger, or the defect is action....is timely brought for relief based on latent or hidden. The modified accepted work the theory of rescission....service of a pleading doctrine may operate to shield some subcon- on the adverse party shall be deemed suffi- tractors from liability under a negligence theo- cient notice of rescission and of an offer to ry of liability. restore the benefits received under the con- tract” (emphasis added). And, Okla. Stat. tit. DEFENSES 15, §235 states that rescission, when not effect- There are a number of defenses the builder/ ed by consent, can be accomplished only by the general contractor and subcontractors may use of reasonable diligence on the part of the assert in this type of case. Several defenses party rescinding to rescind promptly, upon come from common law while others come discovering the facts which entitle him to from statutes, or arise from the specific facts of rescind and he must restore to the other party each case. They include but are not limited to: everything of value he has received under the general and specific denials of breaches of con- contract or offer to restore the same. tract, warranty or negligence; comparative/ Actual Damages — Property: contributory negligence on the part of the Cost of Repair/Diminished Value buyer; damages resulted from the responsibil- ity of a third party over whom they had no By far the most common damages awarded direction or control; failure to mitigate damag- in a construction defect case are actual dam- es; the accepted work doctrine; the right to ages. If the damages are repairable, actual repair act; and the express terms and provi- damages awarded usually equal the reason- sions of the written warranty agreement bar able cost of repairs. This allows the buyer to the claim. hire someone else to satisfactorily complete the work the builder/general contractor may have The Right to Repair Act been negligent in executing. The Notice of Opportunity to Repair Act is Any damages specifically excluded by found in Okla. Stat. tit.15, §765.5-765.6. This act express limited warranties or the purchase allows, but does not mandate, the inclusion of contract are not available under the theories of a contractual provision that requires home- breach of express warranty and breach of con- owners to notify a contractor about construc- tract. If the purchase contract contains a section tion defects before filing a lawsuit. If such a that specifically excludes a specific damage, provision is included in the contract the hom- the buyer waives their right to those damages eowner is required to: 1) provide the contractor when they sign the contract. a “written notice of construction defects” and 2) allow the contractor to inspect the defects Diminished value is another form of damag- and present a written response with an offer to es available to the buyer. “Diminished value” repair or compensate for the defects within 30 means the difference between the market value days after receipt of the notice of defects. The of the property immediately before being dam- homeowner shall not file suit until the condi- aged and its market value after repairs have tions have been met. If the conditions have been or would be made.48 been satisfied the homeowner may then “seek A determination of the proper measure of remedies against the contractor as provided by damages is a question of law for the court. law.” This may serve as a defense for a build- However, the amount of damages is a question er/general contractor if the contract contains of fact, usually for the jury or judge to deter- the clause and a buyer does not comply. mine. If the damages are repairable, the court DAMAGES should determine as a matter of law that the proper measure of damages is the reasonable Rescission costs of repair. Smith v. Torr49 states that the Rescission of contract restores the contract- measure of damages for the breach of an obli- ing parties to the positions they would have gation arising from contract is the amount occupied if no contract had ever been formed. which will compensate the party aggrieved for The process and reasons available for asking all the detriment proximately caused thereby,

542 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 which, in the ordinary course of things, would General contractors are not licensed at the likely result therefrom. In the cases of Weibener state level in Oklahoma. This further perpetu- v. Peoples50 and Stewart v. Riddle,51 the court has ates the construction defect claims. In addition, clearly announced the ruling to be applied more and more, contractors are becoming under this statute as to the measure of damages legally savvy. They know the loopholes which for defects in the construction of a building. It can reduce or release them from liability and is clear that where the evidence supports a they rely on the fact that their buyer will usu- finding that the defects could be remedied by ally not read the fine print or even if they do, repair the measure of damages is the reason- will not be willing to walk away from their able cost thereof. dream home in order to initiate a change in contract. What contractors can’t do, however, That the measure of damages is a matter of is slip by all the various laws set in place to law is well established by the courts.52 Should protect homebuyers. Standardized building the court make this determination prior to trial, codes have gone a long way in giving consum- it will streamline the trial, and save a substan- ers a foundation upon which to build their tial amount of court time, as well as attorney cases. time for all parties. Because of all the noted issues, these cases Attorney Fees will continue to appear on court dockets. The In a construction defect involving a breach of more the legal field familiarizes themselves with this type of litigation and in turn, success- express warranty the prevailing party is statu- fully argues them, the safer our friends and torily entitled to attorney’s fees pursuant to neighbors will be. Okla. Stat. tit.12, §939: 1. First Nat’l Bank & Trust Co. of El Reno v. Stinchomb, 1987 OK CIV In any civil action brought to recover dam- APP 1, ¶9, 734 P.2d 852, 854 (Okl. App. 1987). ages for breach of an express warranty or 2. Thompson v. Peters, 1994 OK CIV APP 97, ¶4, 885 P.2d 686, 688 to enforce the terms of an express warranty (Okl. App. 1994). 3. Flint Ridge Dev. Co., v. Benham-Blair and Affiliates, Inc., 1989 OK made under Section 2-313 of Title 12A of 48, ¶11, 775 P.2d 797, 801 (Okla. 1989). the Oklahoma Statutes, against the seller, 4. Id. at 797. 5. Id. at 800-801. retailer, manufacturer, manufacturer’s rep- 6. Scheirman v. Coulter, 1980 OK 156, 624 P.2d 70 (Okla. 1980). resentative or distributor, the prevailing 7. Id. at 72. 8. Waggoner v. Town 1990 OK 139, ¶7, 808 P.2d 649, 652 (Okla. party shall be allowed a reasonable attor- 1990). ney fee to be set by the court, which shall 9. Id. at 652, quoting Moss v. Polyco, Inc., 1974 OK 53, 522 P.2d 622 at 625-26 (Okla. 1974). be taxed and collected as costs. 10. Osburn v. Bendix Home Sys., 1980 OK 86, ¶7 613 P.2d 445, 448 (Okla. 1980). The Legislature’s use of the word “‘shall’ is a 11. 1978 OK 31, 576 P.2d 761 (Okla. 1978). word of command or mandate, with a compul- 12. Id. at 764. 13. Id. at 762 n.1. sory and peremptory meaning. It denotes 14. 1981 OK 81, 631 P.2d 739 (Okla. 1981). exclusion of discretion and signifies an enforce- 15. Id. at 742. 53 16. Id. able duty.” 17. Bridges v. Ferrell, 1984 OK CIV APP 19, 685 P.2d 409 (Okl. App. 1984). CONCLUSION 18. 1954 OK 150, 271 P.2d 342 (Okla. 1954). 19. 1979 OK 144, 604 P.2d 849 (Okla. 1979). A construction defect case is one that is so 20. Jones v. Mercy Health Ctr., Inc., 2006 OK 83, 155 P.3d 9, (Okla. 2006); Akin v. Missouri Pac. R. Co., 1998 OK 102, 977 P.2d 1040, (Okla. multifaceted it could actually be considered 1998). and tried as several different cases. To the jury, 21. Baine v. Oklahoma Gas & Elec. Co., 1992 OK CIV APP 140, ¶9, 850 these cases are important, as most members P.2d 346, 348 (Okl. App. 1992). 22. 1996 OK 36, 913 P.2d 1318 (Okla. 1996). have at one time bought or considered buying 23. Id. at 1321. a home. Also, because it is often the most 24. 11 N.E. 1050 (Ct. App. 1916). 25. See: Pickens v. Tulsa Metro. Ministry, 1997 OK 152, 951 P.2d 1079 expensive purchase they will ever make, it is (Okla. 1997). one of those issues they hope to never have to 26. Id. 27. Id. at 1088. encounter. These cases, although in-depth and 28. 1952 OK 153, 244 P.2d 822 (Okla. 1952). time consuming, are interesting and viable. 29. Sanders 244 P.2d at 825, quoting, 65 C.J.S., Negligence § 16(b) and (c). While our state’s population and therefore the 30. Sanders at 825, quoting, Owen v. Rheem Mfg. Co., 83 Cal. App. 2d need for new housing, has been growing, we 42, 187 P.2d 785 (4th Dist. 1947). 31. Sanders at 825-26. are seeing more and more “builders” come on 32. Id. at 826. the scene. 33. Id.

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 543 34. Id. citing, Long v. Rudd, 1939 OK 338, 94 P.2d 249 (Okla. 1939), Neal Gin Co. of Marietta v. Tradesmen’s Nat. Bank of Oklahoma City, 1925 About The AuthorS OK 564, 239 P. 615 (Okla. 1925), Talbot v. Mattox, Dawson & Posey Realty Co., 1910 OK 163, 109 P. 128 (Okla. 1910). 35. Busby v. Quail Creek Golf and Country Club, 1994 OK 63, 885 P.2d Douglas J. Shelton is a partner 1326 (Okla. 1994). in Shelton Voorhees Law Group. 36. Id. at 1326. 37. Spencer v. Holt, 1921 OK 300, 200 P. 187 (Okla 1921). His practice concentrates in 38. Jones v. Oklahoma Natural Gas Co., 1994 OK 89, ¶18, 894 P.2d 415, civil litigation including con- 420 (Okla. 1994). 39. Id. at 415. struction, real estate, nursing 40. Id. home, insurance and personal 41. Id. injury. He is admitted to prac- 42. 1997 OK 152, 951 P.2d 1079 (Okla. 1997). 43. Id. at 1087 tice in all Oklahoma state and 44. Id. federal courts, and the U.S. 45. Id. 1088. 46. Id. at 1088 n.47. Court of Appeals for the 10th Circuit. He is a mem- 47. Id. at 1088. ber of the Cleveland County Bar Association as well 48. See Brennen v. Aston, 2003 OK 91, 84 P.3d 99 (Okla. 2003); OUJI Instruction No. 4.14; Ellison v. Walker, 1955 OK 86, 281 P.2d 931 (Okla. as the Oklahoma and American Associations for 1955); and Keck v.Bruster, 1962 OK 35, 368 P.2d 1003 (Okla. 1962). Justice. He received his J.D. in 1981 from the OU 49. 1957 OK 73, 310 P.2d 378 (Okla. 1957), interpreting Okla. Stat. tit.23, §21. College of Law. 50. 1914 OK 397, 142 P. 1036 (Okla. 1914). 51. 1919 OK 279, 184 P. 443 (Okla. 1919). 52. See, Winemiller v. Lorton, 1926 OK 600, 249 P. 406 (Okla. 1926), Bowles v. Brown, 1940 OK 255, 102 P.2d 837 (Okla. 1940), and Commercial Brianna K. Tipton is currently Drilling Co. v. Kennedy, 1935 OK 232, 45 P.2d 534 (Okla. 1935). a student at OCU School of 53. Shadoan v. Liberty Mut. Fire Ins. Co., 1994 OK CIV APP 182, ¶14, 849 P.2d 1140, 1144 (Okl. App. 1994). Law and will graduate with her J.D. in May 2014. She is origi- nally from Bristow, and she obtained her undergraduate degree from Oklahoma State University in 2011. She is cur- rently the intern for the OBA Office of General Counsel.

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544 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Le t ’s Ke e p Ju d g e Ba lk m a n

Luke Abel Michael G. Coker Racheal Stoddard Josh Solberg Ed Abel David Cole Morris Blake Sonne Dacia Abel Candace Conrad Richard Morrissette Jordan Southerland Mariano Acuna Kim Conyers Glen Mullins Allie Spears Ellen Adams Tenal S. Cooley III Steve Mullins Mark Spencer Courtney Ainsworth Aaron Corbett Rick Mullins Tyson Stanek Jake Aldridge Stephen Cortes James V. Murray Alexandra Stankos Hilary S. Allen Dan Couch Robert A. Nance Alexander Stankus Raymond Allred Todd Court Keith Nedwick Geren Steiner Everette Altdoerffer Billy Coyle Corey A. Neller Leasa Stewart Michael Amend Dixie Craven Kim N. Nguyen Aaron Stiles Darian Andersen Craig Crimmins John B. Norman John Stiner Shawn Arnold Joe Crosthwait Steven Norton David Stockwell Thomas Askew Kirk Cullimore Marc Nuttle Gail Stricklin H. Leo Austin Ryan Cunningham John S. Oldfield Heather Strohmeyer J. Kyle Babbit Jeffrey Curran Nick D. Pantalone James Stuart Trent Bagget Wesley Cusher Sharon Parker Bill Sullivan Angela Ailles Bahm Robert Dace H. Grady Parker, Jr. Walter Suttle Laurence Balcerak Michael Darrah Revell Parrish David Swank Steve Barghols Jeff Dasovich Alicia Parry Ami Swank Greg Barnard Teresa Davis Jon Parsley Kurt Sweeney Cathy Barnum Dan Davis Michael Patlan Lorna Swinney Elizabeth Base Jerry Day Wes Pebsworth A. Kyle Swisher Gabe Bass Ryan Deligans Jessica Perry John Synowicki Charles Battle Renee DeMoss David Petermann Sam Talley Randy Grau Eric R. King Bert Belanger James Devinney John Pevehouse Cesar Tavares Matt Grave Cynthia Klee Richard Bell Jodi Dishman Nathan Phillips Jeffrey Taylor Charles Greenough Micah Knight James Belote David Donchin Terri J. Phillips Madeline Taylor Edward Grimes Laurie Koller David Bernstein Brad Donnell H. Craig Pitts Rebekah Taylor Lauren Guhl Terry Kordeliski Brent Berry Stephen Dotter Eli Plant Chad C. Taylor Graham Guhl Jessica Kudryk Eugene Bertman Preston Draper Patricia Podolec David Teasdale Kristi Gundy Tim Kuykendall Mark Bialick Jim Drummond Hillari Pool Mary Ellen Ternes Andy Gunn Wes Lane Joe Biscone Jim Dunn Rick Powell Guy Thiessen David Hale Nick Larby Kelly Bishop Judy A. Dunn Bill Price John Thompson Melvin C. Hall James K. Larimore Marcus Bivens Jerry Durbin Gary G. Prochaska Jeremy Thurman Judy Hamilton Morse Shonda LaRock Robert Black Mark Duvall David Proctor Mike Tinney J. Kord Hammert Mike Lauderdale Timothy Bomhoff Jon Echols Lori Puckett Jeff Todd Denise M. Hand Joe Lawter Ann L. Bosley David Echols Gregory Quinlan Greg Tontz Joe Harroz Bill Leach Barrett Bowers Eileen Echols Tony Rahhal Dane Towery Amy Hart Megan Lee John Branum Matt Eckstein Todd Ralstin Jack Tracy James D. Harvey Jr. Han Otto Lehr James Branum Drew Edmondson Natalie Ramsey Rex Travis Greg Haubrich Ryan Leonard Scott Brockman Randy D. Edmonson Jason Reese Gloria Trout Preston Scott Hawkins Tom Leonard Michael Brooks-Jimenez Dylan Charles Edwards Randa Reeves Phil Tucker Ted Haxel Ben Lepak Betsy Brown Gregory Eldridge Peter J. Regan Noel Tucker Daniel C. Hays Mark Litton George H. Brown George Emerson Jonathan D. Reiff Joshua Turner Timothy A. Heefner Jim Loftis Charles Brown Todd Estes Kelsey Q. Renegar Mike Turpen Harold Heiple Laura Long Stephen Bruce Michelle Evans W. Devin Resides Mia Vahlberg Seth Hendrick David Looby Jennifer Bruner Hal Ezzell Laure M. Resides Thomas Ventura Anthony J. Hendricks Matthew Love Sandra Bryant Stephen Fabian Dale Rex Diana Vermeire Brad Henry Kathy Loy Carl Buckholts Amir Farzaneh Andy Richardson Mike Vorhees Robert Henry Dean Luthey Randy Bumgarner Hossein Farzaneh Ron Ricketts Sharon Vorhees John Hermes Leslie Lynch Larry Bunting Paul Faulk Rob F. Robertson Joe Vorndran Mary Hinkle Sarah MacNiven Bob Burke Arlen Fielden Bruce A. Robertson Matthew Wade My My Hoang Cale Maddy Michael Burrage Larry Finn Rick Robinson Bryan Walkely William A. Hoch Robert Manchester IV Daniel Burstein Craig Fitzgerald Brett Robinson Marc Walls Brad Hollar Thomas Manning Scott Butcher Glenn Floyd Reid Robison Joe Walters Mike Hoover Jeff Marr Benjamin Butts Kay Floyd DeAngelo Rogers Stan Ward Henry Hoss Christopher Marrow Sharon Byers Amelia A. Fogleman Armando Rosell Courtney K. Warmington Ben Houston Perry Marrs Jr. Andre’ B. Caldwell Alex Forbes Paul Ross Rick Warren Alison Howard Tim Martin Chris Caldwell Jerry Foshee Robert Ross Daniel G. Webber Jr. Tylor Huddleston Greg Mashburn M. Dan Caldwell April Frago Dustin Rowe Charles C. Weddle III Rodney Hunsinger Will Mattoon Robert Carlson Ron Frangione Patrick M. Ryan William Wells Andrew Hutter Patrick Maupin Tim Carney Hugh Fudge Jason A. Ryan Jeremy West Holly Iker Ginger Maxted Susan Carns-Curtis Sam Fulkerson Elizabeth Scott Phillip G. Whaley Garvin Isaacs John McCaleb Laura M. Carpenter Simone Fulmer Mary Scott Nathan Whatley Tina Izadi Michael McClintock Pat Carr Michael Furlong Paul Scott Joe E. White Justin Jack Kevin McCray Michael D. Carter John Gagnon Vic Seagle Weston H. White Steve Jaussi Ben McElroy Eric Cavett Tim Gallegly Donald K. Shandy Reggie Whitten Elton Jenkins Noble McIntyre Jay T. Chaney Terry Garrett Douglas Shelton Randy Widdison Chris Johnsen Terry McKeever Christi Chesley D. Sharon Gentry Ron Shinn Jeff Wise Michael Johnson Shanda McKenney Adam Childers James Gibbs Trent Shores Chris Wood Kristi Johnson Jim McMillin Bridget Childers Don Gifford Zack Simmons Elizabeth Wood Logan Johnson Marcus Mears Michael Chitwood Kayce Gisinger Charles Simons Gary W. Wood Jay Jones Jaye Mendros James Choate Woodrow Glass Kirstin Simpsen Alan Woodland Chris Kannady Richard Mildren Paul Choate Amber Godfrey Allen Smallwood Andrea L. Worden Perry Kaufman Brad Miller Cathy Christensen Robert Goolsby Greg Smart Blake Yaffe Lauren Lembo Kelliher James C. Milton Adam Christensen Bryan Gordon Tye Smith Eliot Yaffe Brandon Kemp Greg Mitchell Clay Christensen Kevin Gordon Chris Smith Alex Yaffe Tom Kendall Jay Mitchell Jennifer Christian Will Gosney Donnie Smitherman Robert Ylla John Kenney Matthew Morgan Lyle Clemens Tony Gould Thomas Snyder Ryan Kiesel Josh Cline Jan Grant- Johnson Thad Balkman for Cleveland County District Judge 2014 Stan Ward, Chairman • Robert Castleberry, Treasurer Laura McConnell-Corbyn and Tim Bomhoff, Co-Treasurers • 1821 E. Imhoff Rd, Ste. 102 • Norman OK 73071

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 545 546 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Business LITIGATION Mind Your Business… Records: Advising Small Business Clients on Maintaining Thorough Business Records By Jeremy E. Melton

klahoma small businesses “represent 97.2 percent of all employers and employ 54.3 percent of the private-sector labor force. Small businesses are crucial to the fiscal condi- O 1 tion of the state and numbered 332,998 in 2010.” From 2007 to 2010, Oklahoma small businesses — businesses with 500 or fewer employees — represented all of the state’s net new jobs, despite Oklahoma’s then overall weak employment situation.2

“Most of Oklahoma’s small businesses are discuss shareholder inspection, challenges to very small as 78.5 percent of all businesses corporate action and evidentiary issues with have no employees, and most employers have clients before they enter the business fray. fewer than 20 employees.”3 According to the RECORDS YOUR CLIENT SHOULD KEEP United States Census Bureau’s statistics of U.S. businesses annual data, as of 2010 there were There are many records that should be gener- 62,205 Oklahoma businesses with fewer than ated during the lifetime of a business entity if a 20 employees per firm.4 Given the significance client is properly operating the same. Although of small businesses in the Oklahoma economy, the specific records required to be kept will it is likely that a large percentage of Oklahoma vary depending on the business form utilized attorneys will someday advise a small business by a client, as used herein “business records” client, regardless of the attorneys’ areas of and “corporate records” generally refer to, but practice. are not limited to, those records that reflect the creation, ownership, control, management and This article is intended for general practitio- operation of the entity.6 Business records that ners who encounter small business clients. should be stored in corporate books include: Particularly, this article is meant for attorneys who render business formation services to cli- • File-stamped copies of organizational certifi- ents, only to watch the clients venture into the cates, such as certificates of incorporation, business world without so much as an after- articles of organization, certificates of limited thought for proper and thorough recordkeep- partnership and statements of qualification; ing. Because small businesses are vital to the • Executed governance documents such as by- state’s economy,5 it is imperative that attorneys laws, partnership agreements and operating counsel small business owners to maintain agreements; thorough business records. It is important to

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 547 of the corporation, and that breach of duty Another instance in which could give rise to the shareholder’s petition for a writ of mandamus.9 Further, if records are the client will need to produce poorly maintained, it is conceivable that share- accurate business records is holders may bring additional claims, including fraud, based on the theory that poor record- in the event of a challenge to keeping amounts to the fraudulent conceal- ment of information. corporate action,… In the event a client obtains capital through bonds or loans, then the client’s bondholders or debenture holders may claim a similar right • Stock certificates, share certificates or other of inspection by virtue of the company’s cer- ownership certificates as well as current and tificate of incorporation, loan instruments or past transfer or membership ledgers; other issued obligations.10 Also, the bondhold- • Minutes of annual and special meetings; ers and debenture holders may receive the same inspection rights as client’s shareholders • Consent approvals; under the General Corporation Act.11 Failure to • Cross-purchase and redemption agreements produce business records in this context can and other restrictions on transfers of inter- lead to litigation and possible default under ests, if applicable; the terms of the various instruments. • Authorizations of director, member or part- CHALLENGED CORPORATE ACTION ner actions; AND PIERCING THE CORPORATE VEIL • Borrowing resolutions and debt restrictions, Another instance in which the client will if applicable; need to produce accurate business records is in the event of a challenge to corporate action, • Proof of annual filings and payment of annu- particularly if the challenge seeks to pierce the al fees; corporate veil of the client’s company. If a • Miscellaneous business forms and permits; plaintiff seeks to hold a director or officer per- and sonally liable for a corporate action, then the plaintiff will need to “demonstrate[e] that some • If relevant, employment contracts. injustice or inequity will result from recognition 12 In addition to the foregoing, important busi- of the corporate entity.” Factors considered by ness records that the client should maintain courts in deciding whether to disregard the cor- include such items as balance sheets, general porate form include: ledgers, disclosures, tax filings, other financial (1) whether a corporation is operated as a documents, bank statements and check regis- separate entity; (2) commingling of funds ters. All records maintained by clients should and other assets; (3) failure to maintain be kept current and reflect when any changes adequate corporate records or minutes; (4) are made to the entity, including changes in the nature of the corporation’s ownership ownership, management and operation. and control; (5) absence of corporate assets SHAREHOLDER AND BONDHOLDER and undercapitalization; (6) use of a corpo- DEMANDS OF INSPECTION ration as a mere shell, instrumentality or conduit of an individual or another corpo- Should a small corporate client determine to ration; (7) disregard of legal formalities raise capital through the issuance of stock, then and the failure to maintain an arms-length the client’s stockholders will have a right to relationship among related entities; and (8) inspect the company’s corporate records under diversion of the corporation’s funds or the Oklahoma General Corporation Act.7 The assets to noncorporate uses”13 stockholders will have the right to inspect the company’s “stock ledger, a list of shareholders, While the issue of corporate records is only and its other books and records . . . .”8 Improp- one part of the veil-piercing analysis, it is a erly stored corporate records could give rise to relevant factor because of the overlap between shareholder claims that the failure to maintain it and the other factors. For example, keeping records amounts to a breach of duty on the part records such as minutes of director and officer meetings demonstrates observance of corpo-

548 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 rate formalities. Given the intertwined nature ity of the directors or by those directors of these factors, the negative analysis of one designated by the board, factor will likely include a negative result as to c. if it appears from the instrument that another factor and therefore increase the likeli- there are no such officers or directors, then hood of disregarding the corporate form. by the holders of record, or those desig- EVIDENCE nated by the holders of record, of a major- ity of all outstanding shares of stock, or Properly kept business records will be a valuable evidentiary tool in rebutting share- d. by the holders of record of all outstand- holder actions, challenges to corporate acts and ing shares of stock.19 litigation against directors and officers of a cli- The executed instruments will be properly ent’s corporation. Assume, for example, that a acknowledged if the acknowledgment is done shareholder has challenged a client’s corporate by the signatory before a notary or where sig- action and the only sources of evidence for this nature “constitute[s] the affirmation or ac- challenge are the shareholder’s testimony and knowledgment of the signatory, under penalty the client’s business records. If the business of perjury, that the instrument is his or her act records are offered to rebut the shareholder’s and deed or the act and deed of the corpora- testimony, they would be offered to prove the tion, as the case may be, and that the facts truth of the matters asserted in the same; and stated therein are true.”20 If the foregoing crite- absent an exception, admission would be pro- 14 ria are met, the records will be self-authenticat- hibited by the hearsay rule. Fortunately, the ed pursuant to OKLA. STAT. tit. 12 §2902.21 As Oklahoma Evidence Code provides the busi- 15 soon as the business records exception is satis- ness records exception to the hearsay rule. fied, the records may be presented and the So long as the client’s business records were court will not be limited to only testimony of “made at or near the time by or from informa- the parties in resolving the dispute. tion transmitted by a person with knowledge, Finally, if the foregoing is insufficient to catch if kept in the course of a regularly conducted a client’s attention, consider issues of divorce business activity, and if it was the regular prac- and bankruptcy. In complex divorce actions tice of that business activity to make the record, where a business interest held by one spouse all as shown by the testimony of the custodian represents the bulk of the potential marital or other qualified witness or by certification,” estate, in order to claim the interest as separate then the client will be permitted to offer its property and therefore not subject to division, business records in its defense.16 In order for a the client must prove that the business was cre- client’s records to fall within the business ated prior to the marriage or it was created records exception to the hearsay rule, the cli- with capital that was owned by that spouse ents should keep regular records of regular prior to the marriage.22 But even then, the business activities as the activities occur.17 enhanced value of the business during the In addition to meeting the exception to the course of the marriage may be subject to divi- hearsay rule, the records will be self-authenti- sion, and it is necessary to determine if the cating if they are properly executed and spouse’s efforts or market factors led to the 18 increase in value and what portion thereof acknowledged. Pursuant to OKLA. STAT. tit. 23 18 §1007, an instrument is properly executed if might be marital property. Examination of done: business records is highly important in deter- mining what role, if any, a spouse had in the a. by the chair or vice-chair of the board of increase in value, as well as identifying the directors, or by the president, or by a vice- actual decision makers within the business. president, and attested by the secretary or an assistant secretary; or by officers as Regarding bankruptcy, a court may deny the may be duly authorized to exercise the discharge of a Chapter 7 debtor if “the debtor duties, respectively, ordinarily exercised has concealed, destroyed, mutilated, falsified, by the president or vice-president and by or failed to keep or preserve any recorded the secretary or an assistant secretary of a information, including books, documents, records, and papers, from which the debtor’s corporation, financial condition or business transactions b. if it appears from the instrument that might be ascertained, unless such act or failure there are no such officers, then by a major- to act was justified under all of the circum-

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 549 stances of the case . . . .”24 In the matter of In re 5. Copies of any effective written operating agreements and all amendments thereto and copies of any written operating agree- Hoblitzell, the court found that the defendant ments no longer in effect; and completely failed in his disclosure obligations.25 6. Unless provided in writing in an operating agreement, a writ- ing setting out: Relevant to the court’s determination was the a. the amount of cash and a statement of the agreed value of complete lack of records: other property or services contributed by each member and the times at which or events upon the happening of which any addi- When challenged regarding [defendant’s tional contributions agreed to be made by each member are to be made, and lack of records] on cross examination, he b. the events upon the happening of which the limited liabil- stated that he was not a ‘detail’ person. The ity company is to be dissolved and its affairs wound up, and c. any other information prepared pursuant to a requirement defendant’s failure to keep records goes in an operating agreement. beyond mere inattention to detail. His fail- 7. OKLA STAT. tit. 18 §§1001-1144, 1065(B)(1). 8. Id. ure to keep and preserve basic records such 9. For a discussion of the applicability of mandamus, see Fears v. as bank statements, as well as his failure to Cattlemen’s Inv. Co., 1971 OK 22 ¶¶ 31-32, 483 P.2d 724. make complete and accurate disclosure in 10. OKLA STAT. tit. 18 §1066. 11. Id. his schedules and the statement of finan- 12. U.S. v. Van Diviner, 822 F.2d 960, 965 (10th Cir. 1987) (citing Cun- cial affairs, was not only unreasonable, it ningham v. Rendezvous, Inc., 699 F.2d 676, 680 (4th Cir.1983); Audit Ser- vices, Inc. v. Rolfson, 641 F.2d 757, 764 (9th Cir.1981); Capital Telephone Co. betrays a deliberate attempt to hinder and v. FCC, 498 F.2d 734, 738 (D.C.Cir.1974). delay the trustee in his efforts to investi- 13. U.S v. Van Diviner, 822 F.2d at 965 (internal citations omitted) 26 (emphasis added). gate the defendant’s financial affairs. 14. OKLA STAT. tit. 12 §2801-2802. 15. OKLA STAT. tit. 12 §2803. The court’s decision suggests that while busi- 16. Id. ness owners need not be meticulous in main- 17. Id. 18. OKLA STAT. tit. 18 §1007(A)(2)-(B), 12 OS 2902, (8)-(9), (11)(a). taining corporate records, some basic level of 19. OKLA STAT. tit. 18 §1007(A)(2). active recordkeeping is required. 20. OKLA STAT. tit. 18 §1007 (B). 21. OKLA STAT. tit. 12 §2902, (8)-(9), (11)(a) (“8. Records accompa- CONCLUSION nied by a certificate of acknowledgment under the hand and the seal of a notary public or other officer authorized by law to take acknowl- While the foregoing is not an exhaustive list edgments; 9. Commercial paper, signatures thereon, and related records to the extent provided by general commercial law; . . . 11. The of the benefits of maintaining thorough busi- original or a duplicate of a domestic record of acts, events, conditions, ness records, it should be enough information opinions, or diagnoses if: a. the document is accompanied by a written declaration under oath of the custodian of the record, or other quali- for the general practitioner to begin a dialogue fied individual that the record was made, at or near the time of the and ensure that clients are aware of their obli- occurrence of the matters set forth by or from information transmitted by a person having knowledge of those matters; was kept in the course gations. If such conversations take place, attor- of the regularly conducted business activity; and was made pursuant neys may mitigate potential issues later in the to the regularly conducted activity . . . .”). life of the business entities they help create. 22. OKLA STAT. tit. 43 §121(B), Spencer v. Spencer, 1947 OK 243 ¶8, 184 P.2d 761 23. Thielenhaus v. Thielenhaus, 1995 OK 5 ¶ 9, 890 P.2d 925. 1. Small Business Profile: Oklahoma, U.S. Small Business Administra- 24. 11 U.S.C. §727(a)(3). tion, Office of Advocacy (February 2013), available at www.sba.gov/ 25. In re Hoblitzell, 223 B.R. 211, 216 (Bankr. E.D. Cal. 1998). sites/default/files/ok12.pdf. 26. Id. 2. Id. 3. Id. 4. Number of Firms, Number of Establishments, Employment, and Annual Payroll by Enterprise Employment Size for the United States and About The Author States, Totals: 2010, United States Census Bureau, Statistics of U.S. Busi- nesses (October 2012), available at www2.census.gov/econ/susb/ data/2010/us_state_totals_2010.xls. Jeremy E. Melton is an associ- 5. Id. ate in the Oklahoma City office 6. Compare OKLA STAT. tit. 54 §1-403(a), which requires that a partnership “keep its books and records, if any,” (emphasis added) of Gungoll, Jackson, Box & and OKLA STAT. tit. 18 §2021(A), which states that limited liability Devoll PC. He is a 2006 gradu- companies must keep: 1. A current and a past list of the full name and last-known mail- ate of Oklahoma State Univer- ing address of each member and manager; sity and a 2009 graduate of the 2. Copies of records that would enable a member to determine the relative voting rights of the members; University of Tulsa College of 3. A copy of the articles of organization, together with any Law. He practices in the areas of amendments thereto; oil and gas law, civil litigation, 4. Copies of the limited liability company’s federal, state and local income tax returns and financial statements, if any, for the commercial law and real estate law. three most recent years . . . ;

550 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 We support the re-election of District Judge Barbara Swinton in the 2014 election to the 7th Judicial District of Oklahoma County.

CO-CHAIRMEN Logan Johnson Hank Bradley Lisa D. Giles-Caison James Prince William O. Johnstone Charles G. Braun W. Chris Glenman Edd Pritchett, Jr. Gerald Durbin Ronald Kelly Amber Brock DeArman Godinez David Rainbolt Larry Derryberry John Kenney Micahel Brooks Maria Gonzalez Gene Rainbolt James K. Larimore Glenda Brown Kevin Gordon Natalie Ramsey Michael F. Lauderdale Janice Brown Sara Lee Gossett Parrish John Mathew Randall TREASURERS David W. Lee Matt Brown Andy Gunn Kevin B. Ratliff Drew Neville William E. Liebel Daniel E. Bryan Alex Haley Brenda Reed Laura McConnell-Corbyn Katherine Loy Sandra Bryant John Heatly Doug Rice Mike Deeba Luke Martin Brian A. Burgett John B. Heatly Stephen M. Rice Robert G. McCampbell Michael Burrage Conner Helms Reid Robison Laura McConnell-Corbyn Randall Calvert John Hermes Patricia A. Rogers CAMPAIGN Kent McGuire Allen Campbell Lee M. Holmes Kurt Rupert COMMITTEE MEMBERS Henry A. Meyer, III James A. Campbell Mark C. Holmes Megan Sampson Richard Mildren Stephanie Carel Glory Hoover Christopher Scaperlanda Ed Abel Erin Morgan Moore John Chistopher Carey Richard E. Hornbeek Cindy Schaus Luke T. Abel Judy Hamilton Morse Carol Carrier Henry Hoss Stephen Schaus Jo Angela Ables Glen Mullins Kymala B. Carrier Cheryl Hunter Darryl Schmidt Mariano Acuna Michael Mullins Donna Cecrle Mike Hunter Jerome S. Sepkowitz Hilary Allen Brook S. Murphy James M. Chaney Garvin A. Isaacs Barry Shadid Rupert J. Anton Tracy Neisent Wade Christensen Jake Jones Dana Shadid Lynn Babb John W. Norman Jennifer K. Christian Laurie D. Judy Dorene Shadid Mark Bialick Richard C. Ogden Mark Christiansen James D. Kallstrom Jerome S. Shadid Kelly Bishop Edd Pritchett, Jr. Mark D. Christiansen Tom Kendrick Randel Shadid Mark L. Bonner David Proctor Benjamin Taylor Clark John Kenney Jimmie Shadid Brown Vance Brown David E. Rainbolt Lance Claussen Jim Kirk C. Eric Shephard LeAnne Burnett H.E. Rainbolt DeAnne M. Cole Cynthia Klee Adrienne D. Sherman Michael Burrage Jim Roth Jodi Cole Barrett J. Knudson Susan Shields Randall K. Calvert Michael Rubenstein Steve Cole Jim Larimore Ronald T. Shinn, Jr. Joey Chiaf Ann Simank Candice Conrad Mike Lauderdale Ellen Smith Andy Coats Terry Tippens George S. Corbyn, Jr. Ken Lawton Spencer Smith Darren R. Cook Gary R. Underwood Stephen Cortes David W. Lee Larry M. Spears George S. Corbyn, Jr. John Vitali Angie Cox Chris Leigh John Sprowls Michael L. Darrah Sharon Voorhees Richard Craig Katherine Loy Patrick Stein James W. Dawson L. Mark Walker Richard D. Craig Brad A. Madore Matt Standard Ryan Deligans Joe White Dan Davis Jared Mashaney Sheila Stinson Larry Derryberry Pete White Kenny Davis Steve McCaleb Martin Stringer David Donchin Reggie N. Whitten Lonnie Davis Robert McCampbell Kelsie Sullivan Gerald E. Durbin Lee Anne Wilson Jack Dawson Laura McConnell-Corbyn Lendsey Thomson Jacque Dean Cheryl McDaniel Jeff Todd Marc Edwards SUPPORTERS Nikki Edwards Ryan Deligans Henry A. “Hank” Meyer Victor Trautmann P.K. Floyd Hilary Allen Cheryl Denney Becky Miller Rex Travis James Gibbs Ann E. Atkinson Darren Derryberry Brad Miller Kaci Trojan Clif Gooding Michael Avery Larry Derryberry Christopher Morrow Heather Turner Robert Todd Goolsby Dena Bagwell James Dickson Glen Mullins J. Eric Turner Kevin Gordon Nikol Bailey Madeline Dobson Robert N. Naifeh, Jr. Elzabeth O. Tyrrell Gerald P. Green Marianne Ballard David Donchin Robert A. Nance Erin VanLaanen Williams D. Greenwood Russell Ballard Stefan Doughty Tracy Neisent John Vitali Andy Gunn Mark Bialick Kelly Dragoo Drew Neville Kimberly Warren Pat Hall Joe Biscone Judy Dunn Richard Nix Clyde Watkins Terry L. Hawkins Jeremy Black Teena Dunn J. Michael Nordin Melinda Wehba John Heatly Denise Block Jerry Drubin Richard Ogden William H. Whitehill, Jr. Tim Heefner Bob Bloyd George M. Emerson Diana Pate Reggie Whitten Conner Helms Joe Bocock Rees J. Evans Janice Ponder Ryan Wilson Russell L. Hendrickson Timothy J. Bomhoff James Ferguson Kathryn Ponder C. Russell Woody Lee M. Holmes Ann L. Bosley Roberta B. Fields Hillari Pool J. Tyler Worten Michael S. Homsey Robert Bowman S. Gregory Frogge Ashley Powell Daniel E. Zorn Henry Hoss David Box Simone Fulmer Beth Price Garvin A. Isaacs Dennis Box Charles E. Geister, III Paid for by Committee to Re-Elect Judge Barbara Swinton 2014

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 551 552 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Business LITIGATION Doing Business in Indian Country The Legal Issues That May Arise When Conducting Business With Indian Tribes and Tribal Business Entities By O. Joseph Williams

recent analysis addressing the economic impact of Okla- homa’s 38 federally-recognized Indian tribes revealed that tribal businesses and enterprises contributed $10.8 billion A 1 to the state’s economy in many direct and indirect ways. Tribes are regularly engaging in various business activities for the pur- pose of raising revenue to help fund tribal governmental pro- grams and services for the benefit of tribal members and the local community. These commercial-like activities may be in the form of casinos, hotels, retail stores, gas stations, smoke shops, grocery stores and convenience stores. Further, the growth and develop- ment of tribal traditional governmental functions such as tag offices, hospitals, clinics, courts, housing, elder care, food distri- bution and other similar governmental functions help create jobs and spur economic growth in many areas of the state.

Not surprisingly, these activities attract many The intent of this article is to provide the customers and patrons to tribal businesses and legal practitioner with certain basic principles enterprises and, just like in the non-Indian involving the body of law termed “federal world, disputes can arise that may result in Indian law” and how those principles apply in litigation with the tribal government or tribal the business litigation context. These principles business enterprise. Litigation involving an will be applicable whether your client seeks to Indian tribe or involving business activities do business with an Indian tribe, is seeking to that occur in Indian country can bring about a conduct business activities in a tribe’s Indian myriad of legal twists and turns. The lawyer country (whether conducting such activity who seeks to represent a client in this type of with a tribe or not), wants to sue a tribe or situation will have to turn to tribal law, federal tribal entity, or is being sued by a tribe or tribal law and, in some cases, state law2 to compe- entity. tently represent the client in such matters.

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 553 One important question that three branch government simi- must first be addressed is “what Generally, states lar to the United States and state is an Indian tribe?” In the busi- government; however, other ness context, this question is do not possess tribes’ constitutions may recog- significant since an individual jurisdiction, and state nize the entire tribal member- or entity seeking to conduct ship as constituting the supreme business with an Indian tribe law will not have governing body of the tribe with should want to know what sort effect, in Indian day-to-day activities under the of legal entity is an Indian tribe, authority of an elected business and what is a tribe’s source of country except committee. A tribal constitution power and authority to conduct should be reviewed by the law- business? As governments that through a specific yer representing a business cli- pre-exist the United States gov- grant of jurisdiction ent since it may contain critical ernment, Indian tribes retain provisions governing the tribe’s inherent powers of sovereignty under federal sovereign immunity, the powers that have not been extinguished.3 of certain tribal officials to Generally, Indian tribes retain law. engage in business on behalf of all “aspects of sovereignty not a tribe and general powers of withdrawn by treaty or statute, the tribal government. or by implication as a necessary result of their A tribe’s governing body may enact tribal dependent status.”4 Tribes are capable of es- codes over a variety of subject matters includ- tablishing their own laws and regulations ing business matters and dispute resolution governing their tribal members, territory and options in tribal courts or other forums. Many governmental operations.5 In exercising these tribes have adopted business-related codes sovereign powers of self-government, the similar to state codes in an effort to provide tribes are fully able to engage in business consistency and familiarity for those non- affairs with non-Indian individuals or entities, Indians who seek to conduct business with both in and outside of tribal territories. tribes yet are unfamiliar with laws applicable INDIAN COUNTRY AND TRIBAL LAWS to tribes. For example, the Muscogee (Creek) Nation, a tribe headquartered in Okmulgee, In the field of Indian law, the term “Indian has enacted a corporation code for anyone country” has significant implications and is a seeking to establish a corporation or limited legal term of art used to describe the geograph- liability company under tribal law. The Creek ical territory where the laws of an Indian tribe, Nation also has a Uniform Commercial Code plus federal law related to Indian affairs, are with provisions similar to the state version. applicable.6 Generally, states do not possess Many tribes have begun to put their tribal con- jurisdiction, and state law will not have effect, in stitutions, code of laws and other legislative Indian country except through a specific grant of enactments on tribal websites for easy access jurisdiction under federal law. Indian country is by anyone.8 There are also other sources on the defined in 18 U.S.C. §1151 and includes: 1) all Internet that make research into tribal laws land within the limits of any Indian reservation easier and very accessible.9 under the jurisdiction of the United States Gov- ernment; 2) dependent Indian communities; and TRIBAL SOVEREIGN IMMUNITY 3) all Indian allotments, the Indian titles to Probably the most common issue in the which have not been extinguished. Indian coun- realm of business litigation involving an Indian try also includes land for which the title is held tribe is the principle of tribal sovereign immu- in trust by the United States for an individual nity. As a matter of federal law, an Indian tribe Indian or Indian tribe.7 is not subject to suit in any forum unless Con- Tribal laws will vary from tribe to tribe and gress has unequivocally authorized the suit or may be based on a tribe’s constitution, code of the tribe has clearly and expressly waived its laws, resolutions and ordinances. Like the rela- immunity.10 Tribal sovereign immunity gener- tionship between the United States Constitu- ally extends to tribal officials in their official tion and federal and state law, many tribes capacities and applies both in commercial and have their own constitutions as the supreme noncommercial contexts. Further, tribal sover- governing law from which all other tribal law eign immunity will protect the tribe from suit must flow. Some tribal constitutions establish a

554 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 even if the activity in question occurs off of ness litigation over contractual disputes will tribal land. not be considered a federal question. With no other bases for federal jurisdiction, such busi- For anyone seeking to conduct business with ness disputes will have to be litigated in anoth- an Indian tribe or tribal business entity, there er forum (if any other forum is available). If a will be a need to determine what rights and party has obtained a waiver of tribal sovereign remedies exist in case the business or activity immunity for only federal court,12 then the non- results in a dispute between the parties. Choice of law provisions or general venue selection Indian party is likely out of options if that clauses will be meaningless if the party is seek- party is seeking to litigate the dispute. ing to assert a claim in any forum against a TRIBAL COURT EXHAUSTION RULE tribe or tribal entity without a clear and express waiver of tribal sovereign immunity. Usually, a In both business contexts and nonbusiness review of the tribe’s constitution and laws will contexts, federal law and policy recognize and determine the proper method and process for apply the role of comity to require disputes securing a waiver of tribal sovereign immunity. arising in Indian country to first be heard, and Some tribal laws will require waivers of tribal with remedies exhausted, in the tribal courts. sovereign immunity to be approved by a cer- This is referred to as the “tribal court exhaus- tain governmental authority in every instance. tion rule.” The U.S. Supreme Court first con- Some tribal laws will delegate an entity of the sidered this issue and required the exhaustion tribe (most often, the business arm of the tribe) of tribal remedies in the case of National Farm- 13 with the authority to enter into contracts waiv- ers Union Insurance Co. v. Crow Tribe of Indians. ing tribal sovereign immunity without formal The exhaustion principle outlined in the Nation- approval by the tribe’s governing body. In such al Farmers case and a subsequent decision by instances, the waiver of sovereign immunity the U.S. Supreme Court in Iowa Mutual Insur- 14 may be limited to assets of the business entity ance Co. v. LaPlante stressed that exhaustion of of the tribe and not the assets of the tribe itself. tribal court remedies would be consistent with The critical role for the attorney in these the federal policy and commitment to tribal instances is to understand the limits of a waiv- self-government. If litigation is initiated in the er of immunity. Since the tribe is cloaked with tribal lower court, the tribal court exhaustion sovereign immunity, its ability to “open the rule would require all appeals in the tribal door” and waive its immunity is a powerful courts to be exhausted as well before any fed- thing. The waiver of immunity may be limited eral action may commence. to only arbitration, mediation or tribal court Even in those business situations where the resolution. If the parties are able to negotiate parties have negotiated a contract that requires the terms of the waiver to adjudicating a dis- litigation in a state or federal court, any chal- pute in a forum and under a law satisfactory to lenge by the tribe or tribal entity may result in both parties (and assuming such a waiver is having to first adjudicate the challenge (not not inconsistent with tribal law or the authority necessarily the merits of the parties’ dispute) in of the non-Indian party), then that is the waiver the tribal courts. For example, a business con- of immunity language that should be reflected tract with a tribe or tribal business entity that in the parties’ contract. Again, refer to the law includes a waiver of immunity for state court of the tribe to understand these parameters. adjudication may be subject to challenge in the A party seeking to bring suit in a federal tribal court, first, if it is later determined that court against an Indian tribe, even if there is a the contract was not validly approved or the valid waiver of tribal sovereign immunity in waiver approval was deficient under tribal place, must still comport with the legal princi- law. When a dispute arises with a tribe or is ples of federal jurisdiction. Generally, the bases based on business activity occurring in Indian for federal jurisdiction are federal question country, principles of tribal self-government jurisdiction (28 U.S.C. §1331) and diversity would dictate that the tribal court be given the jurisdiction (28 U.S.C. §1332). However, an first opportunity to examine and interpret its Indian tribe is not considered a citizen of any laws as to the validly of the parties’ agreement. state for purposes of diversity jurisdiction,11 so There are some exceptions to the tribal court federal court jurisdiction will not be available exhaustion rule,15 and there are conflicting fed- to litigate a business contract with an Indian eral court decisions from various circuits when tribe on the basis of diversity, and general busi- applying the exhaustion rule, so additional

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 555 legal research for any particular situation or set 8. For example, the following tribal laws are available on tribal websites: Muscogee (Creek) Nation: http://tinyurl.com/lnx2l5k; of facts will be necessary. Cherokee Nation: https://cherokee.legistar.com/Legislation.aspx; Seminole Nation: http://sno-nsn.gov/government/codeoflaws; CONCLUSION Chickasaw Nation: www.chickasaw.net/Our-Nation/Government/ Chickasaw-Code.aspx; Choctaw Nation: www.choctawnation.com/ The issues outlined in this brief article cer- government/tribal-court. 9. A very good source for researching tribal codes and constitutions tainly do not cover all the many nuances that around the country can be found at the website for the Tribal Court may arise when conducting business in Indian Clearinghouse at: www.tribal-institute.org. country. The contours of federal Indian law are 10. Kiowa Tribe v. Manufacturing Technologies, 523 U.S. 757 (1998). 11. See Gaines v. Ski Apache, 8 F.3d 726, 729 (10th Cir. 1993); how- constantly evolving and shifting based on rul- ever, there may be a different outcome if the tribal business entity is ings and interpretations of existing law from incorporated under state law and conducts its business outside of Indian country. the federal courts. Since many principles of 12. This can happen in those situations where the non-Indian party federal Indian law are based on the federal is unfamiliar with the law recognizing that Indian tribes are not consid- ered citizens of any state and relies on diversity as the basis of federal common law, the landscape may change often, jurisdiction in a dispute resolution clause used with other non-Indian especially as the development and growth of entities. 13. 471 U.S. 845, 855-57 (1985). tribal business interests expand beyond tribal 14. 480 U.S. 9 (1987). The LaPlante decision was an expansion by the borders. Thus, it becomes very important for U.S. Supreme Court of the tribal exhaustion rule to cases brought lawyers representing both tribal and nontribal under the federal diversity statute. 15. The exceptions to tribal court exhaustion includes when the interests to recognize the significance of this assertion of tribal jurisdiction is motivated by a desire to harass or is in area of law in the business world, both now bad faith, when the action “patently” violates “express jurisdictional prohibitions, or where exhaustion would be futile because of the lack and in the future. of an adequate opportunity to challenge the court’s jurisdiction.” Nat’l Farmers Union, 471 U.S. at 856 n.21. 1. A copy of the economic impact analysis released by Oklahoma City University’s Steven C. Agee Economic Research & Policy Institute can be found at http://tinyurl.com/mb6xwj2. About The Author 2. Generally, the laws of the state are not applicable to tribes and activity occurring in Indian country; however, some tribal codes per- mit the use of state law provisions in tribal court when there are no Joseph Williams is the founding tribal or federal laws applicable to a situation. member of O. Joseph Williams 3. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978) (describ- Law Office PLLC located in Ok- ing Indian tribes as “separate sovereigns pre-existing the Constitution” and “retaining their original natural rights in matters of local self- mulgee. He is a 2001 graduate of government”). the Oklahoma City University 4. United States v. Wheeler, 435 U.S. 313, 323 (1978). 5. Williams v. Lee, 358 U.S. 217 (1959). School of Law and also earned a 6. The legal history behind the development and codification of the Masters of Business Administra- term “Indian country” is beyond the scope of this article; however, suffice it to say, there is a great deal of case law on the subject matter tion degree at OCU in 1998. He is that provides greater depth and insight into the legal contours of the a proud member of the Mississippi territorial jurisdiction of Indian tribes. See, e.g., Indian Country, U.S.A. v. Oklahoma Tax Com’n, 829 F.2d 967 (10th Cir. 1987). Band of Choctaw Indians and has been practicing in 7. Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 the area of federal Indian law since graduating from law U.S. 505 (1991). school in 2001.

OKLAHOMA BAR JOURNAL EDITORIAL CALENDAR

n May n October 2014 Diversity in the Law Health Care Editor: January Windrix Editor: Emily Duensing n April [email protected] Law Day [email protected] Deadline: Jan. 1, 2014 Deadline: May 1, 2014 Editor: Carol Manning n August n November Children and the Law President’s Topic Editor: Judge Megan Simpson Editor: Melissa DeLacerda [email protected] [email protected] If you would like Deadline: May 1, 2014 Deadline: Aug. 1, 2014 to write an article n September n December Bar Convention Ethics & Professional on these topics, Editor: Carol Manning Responsibility Editor: Judge Allen Welch contact the editor. [email protected] Deadline: Aug. 1, 2014

556 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Oklahoma County Associate District Judge

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 557 558 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Business LITIGATION

The New Administrative Workers’ Compensation System By K. David Roberts ntroduction. On May 6, 2013, Gov. Fallin signed one of the most historic pieces of legislation ever passed in Oklahoma. A Inew administrative system was created for the handling of workers’ compensation claims. The new administrative system is as a result of four different acts found in Senate Bill 1062 (2013): The Administrative Workers’ Compensation Act,1 Workers’ Com- pensation Court of Existing Claims,2 Oklahoma Employee Injury Benefit Act,3 and the Workers’ Compensation Arbitration Act.4 These four acts are now found in newly created Title 85 A. Title 85 had previously governed all Oklaho- Immunity retained. As was the case under ma workers’ compensation claims. Now it only the old law, once an employer complies with governs claims that arise before Feb. 1, 2014. the act and provides the required coverage7 to its employees, the employer will be immune Effective date of the act. The new legislation from any suit or claim that the employee might will apply to all injuries and occupational dis- have made in district court for a job-related eases that occur on and after Feb. 1, 2014.5 The injury. The only remedy available to the time delay is necessary because time is needed employee will be under the act.8 The law re- in order to set up a new administrative system garding the immunity of the employer will to deal with workers’ compensation claims essentially be the same as it has been since that arise on and after Feb. 1, 2014. workers’ compensation was introduced in After Feb. 1, 2014, there will be dual systems Oklahoma. to govern workers’ compensation claims. The There is a new provision regarding any old Workers’ Compensation Court system will operator or owner of an oil or gas well or other be retained to administer claims that arise operation for exploring for, drilling for or pro- before Feb. 1, 2014.6 The new system will be ducing oil and gas. The owner or operator will governed and administered by the Oklahoma be deemed to be the intermediate or principal Workers’ Compensation Commission for all employer and therefore immune from any dis- claims that arise on and after Feb. 1, 2014. trict court action or any claim of any employee The new system will be an administrative of any employer providing services.9 This system. The old court-of-record system will be immunity is extended to the operator if it has governed by the Workers’ Compensation Court complied with the provisions requiring cover- of Existing Claims, the new name given to the age under the act.10 This provision is very simi- old Workers’ Compensation Court.

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 559 lar to a provision of the Texas Workers’ Com- The commissioners will serve six-year terms pensation Act. with the terms initially staggered so the chang- es of commissioners will be limited to one Vertical immunity will be retained.11 The act every two years. They will be paid the same as specifically provides that the act does not abro- a district judge.28 The governor will appoint gate the loaned servant doctrine.12 one of the commissioners to be the chairman of The old Workers’ Compensation Court is the commission.29 renamed the Workers’ Compensation Court Duties of the commission will be to: of Existing Claims.13 This renamed court will hear all claims that arise before Feb. 1, 2014.14 • Adopt rules of procedure for administra- The date of the employee’s injury will be tive hearings.30 deemed as the date the claim arose.15 The act • Hear appeals from decisions of the admin- specifically provides that benefits for a single- istrative law judges31 event injury will be determined by the law in effect at the time of the injury. Cumulative • Conduct hearings.32 trauma injuries will be determined by the law • Appoint administrative law judges who in effect at the time the employee knew or rea- 33 sonably should have known that the change of will conduct administrative hearings. physical condition was related to work activity • Prescribe rules governing the legal and (also called date of awareness).16 Benefits for non-legal representation of employees, death will be determined by the date of death.17 employers, and carriers.34 Non-lawyers The Court of Existing Claims will handle old will be allowed to represent parties before claims that pre-date Feb. 1, 2014 under the “old the commission. law” that applies to those claims. • Hire employees and incur necessary The current judges of the Court of Existing expenses to administratively run the com- Claims will serve out the remainder of their mission.35 This will include examiners, terms.18 As the terms expire, their judicial posi- investigators, medical examiners, clerks, tions will be eliminated.19 Four of the current court reporters and other necessary judicial terms expire on July 1, 2014. These employees.36 judges will not be replaced. The court will have • Hear and approve compromise settle- six judges until July 1, 2016, at which time two 37 more judicial terms will expire. This will leave ments. four judges who will serve until their terms • Hear and determine claims concerning expire July 1, 2020.20 disputed medical bills.38 If necessary, the new Workers’ Compensa- • Require the employee to submit to exami- tion Commission may assign administrative nation by an independent medical exam- law judges to handle the dockets of the Court iner chosen by the commission if they of Existing Claims.21 This provision is designed think it to be appropriate.39 to address the handling of “old claims” that • Exercise exclusive jurisdiction to hear will be subject to being handled by fewer 40 judges. retaliatory discharge claims. It can award up to $100,00041 for such claims in addition The new Workers’ Compensation Commis- to costs and attorney fees.42 sion.22 The governor, subject to confirmation of 23 • To hear court en banc appeals from the the Senate, will appoint three commissioners 43 who will have the exclusive responsibility and Court of Existing Claims. duty to carry out all of the provisions of the Duties of the chairman of the commission will act.24 There is no requirement that they be attor- be to: neys. The only requirement is that they must have been involved in the workers’ compensa- • Supervise the administrative work of the 44 tion field for at least three years.25 The commis- administrative law judges. sion will be vested with total subject matter • Employ an administrative staff for the jurisdiction over all claims filed in accordance commission.45 with the new act26 and will have full power and authority to determine all questions in relation to claims for compensation under the act.27

560 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 • Along with the rest of the commission The commission must give notice to the members, monitor own-risk, self-insurer, employer of the filing of a claim for compensa- and group self-insurance programs.46 tion benefits by the employee.60 Once either party applies for a hearing, the parties will be Duties of the administrative law judges47 will given 10 days’ notice of a hearing to be held in be to: Oklahoma City or Tulsa.61 • Hear and determine claims for compensa- The administrative law judge then must con- tion.48 duct an administrative hearing. The judge will • Conduct hearings and undertake investi- not be bound by technical or statutory rules of gations.49 evidence.62 The act anticipates that medical evi- • Make judgments, decisions, and determi- dence will be presented by written reports although there is a provision that medical testi- nations as required by the rules or judg- 63 ments of the commission.50 Their decisions mony can be taken by deposition. Both parties must be issued within 30 days of the sub- are allowed to take the deposition of any wit- mission of a case before them.51 ness in a manner to be determined by the com- mission with its new rules.64 • Hear challenges to arbitration agreements. 52 The administrative law judge is required to • Assume duties of the Court of Existing issue an award or order resolving all issues.65 Claims if it becomes necessary as that The standard for the judge’s decision is that the court winds down.53 party having the burden of proof on any issue Hearings before the commission. must establish proof by a preponderance of The 66 employer is required to provide workers’ com- evidence. pensation benefits for “clean claims” (as defined Appeals may be taken from an order of the by the act) within 30 days of the receipt of the administrative law judge directly to the com- employer of the claim. A “clean claim” is mission.67 The commission may reverse or defined by the act as a claim that has no defect modify the decision if it determines that the or impropriety, including a lack of any required decision was against the clear weight of the substantiating documentation, or any particu- evidence or contrary to law.68 lar circumstance requiring special treatment that might impede prompt payment.54 If an award or order of the commission has not been paid by the employer, there is a proce- If the employer desires to contest an employ- dure for the commission to certify the award or ee’s right to compensation benefits, it must order to the district court for enforcement.69 give notice to contest the claim to the employee within 15 days following their receipt of notice Appeals from the commission may be taken of the claim.55 If the employer is unable to to the Supreme Court.70 The Supreme Court obtain the necessary information to accept or may reverse the finding of the commission in deny the claim within 15 days, it may request accordance with a laundry list of standards of an extension of time from the commission review contained in the new act.71 These con- before filing a response.56 siderations are an attempt by the Legislature to dictate the standard of review to the Oklahoma The commission is directed to conduct a pre- Supreme Court. Appeals to the Supreme Court liminary conference designed to provide the must be filed within 20 days of the date of the employee a chance to confer with a legal advi- order of the commission.72 sor on staff with the commission. This is designed to facilitate the resolution of all issues All hearings, including any hearing involv- without the expense of litigation and the need ing the commission, must be stenographically for payment of attorney fees by either party.57 reported.73 The act provides that the commis- Under certain circumstances, the preliminary sion will be responsible for the preparation of a conference can be held in the county where the record of all hearings and other proceedings injury occurred.58 before it.74 Once the employee files a claim for compen- Neither party to the administrative hearing sation with the commission, an administrative must be represented by an attorney. Evidence law judge will be assigned the claim upon may be presented by any party authorized in application for hearing filed by either party.59 writing to act on behalf of either party.75

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 561 The commission and the administrative law tem.92 Compliance with this notice provision judges operating under the supervision of the may be made by posting such notice at con- commission may issue subpoenas and require spicuous locations at the qualified employer’s third parties such as medical providers, the places of business in the form, content and parties to the case, and others to produce docu- manner of delivery required by the insurance ments, and allow depositions to be taken.76 commissioner.93 Methods for the employer to secure cover- The benefit plan must provide for payment age for its employees.77 Compliance and the of the same forms of benefits included in the act securing coverage for employees is required of for most benefits under the act.94 This includes employers under the act. The employer may: temporary total disability, temporary partial dis- ability, permanent partial disability, vocational • Purchase a workers’ compensation insur- rehabilitation, permanent total disability, disfig- ance policy from a licensed carrier.78 urement, amputations, death benefits, and med- • Provide guaranty insurance as defined by ical benefits.95 Medical management, dispute the act.79 resolution and other provisions of the act do not apply to opt-out benefit plans.96 • Become an own-risk employer by comply- ing with rules of the commission.80 Settlements are allowed under the plans.97 But many of the provisions of the act such as • Become a member of a group self-insur- suspension and termination of benefits, medi- ance association that has complied with 81 cal management, and dispute resolution are the rules of the commission. not applicable to opt-out plans.98 The opt-out • Comply with the opt-out provisions employer will have extraordinary discretion in described in the following section. designing benefits and managing claims. The employee cannot waive his or her right These plans were initially designed for large to compensation under the act.82 Nor can the employers who desired to self-insure and opt- employee be required to pay any of the premi- out of the system, but the act also allows for the ums for coverage under the act.83 Failure to employer to contract with a licensed insurance secure workers’ compensation coverage for carrier to opt-out of the system.99 For those employees will result in onerous penalties to employers who desire to self-insure, the act the employer.84 provides for onerous provisions relating to fur-

85 nishing satisfactory proof to the insurance Opt-Out provisions. The opt-out provi- commissioner of the ability to pay benefits.100 sions of the new legislation are contained in the “Oklahoma Employee Injury Benefit Act.”86 It In the event that the opt-out plans are held to allows “qualified employers”87 to have an alter- be unconstitutional by the Oklahoma Supreme native method of complying with the act and Court, the act provides that the employer providing benefits under a brand-new sys- retains immunity and has 90 days from any tem.88 If the employer desires to be exempt final decision to secure other compliance with from the Administrative Workers’ Compensa- the act.101 89 tion Act, it must establish a “benefit plan,” How a claim works under the opt-out sys- pay the insurance commissioner $1,500, notify tem.102 If an employee makes a claim against its employees that it does not carry workers’ the employer under the plan, the employer has compensation insurance and give notice to the 15 days to accept or deny the claim.103 If denied, Insurance commissioner of its desire to elect to 90 the employer must explain why the claim was become a qualified employer. denied and advise the employee how to appeal The insurance commissioner is given the the decision.104 If the claim is denied, the power and responsibility of regulating quali- employee may then appeal to a three-person fied employers and the duty to ensure that committee composed of employer representa- such employers have complied with the opt- tives. The committee may request any addi- out provisions of the act.91 tional information it deems necessary to make a decision, including have the employee sub- Qualified employers must give notice to its mit to a medical exam. The committee has 45 employees that it does not carry workers’ com- days to make its decision.105 pensation insurance coverage, that it is a quali- fied employer and has opted out of the sys-

562 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 If the committee has continued to deny any part of the employee’s claim, the employee may, within one year of the decision of the Under Oklahoma law, the committee, petition the commission sitting en injured employee is entitled to banc to review the employer’s decisions.106 It should be noted that the employee does not receive weekly income benefits have access to the commission for up to 60 days from the date a claim was made. If an payments… appeal is made to the commission, the commis- sion is required to give the parties 10-day notice of the hearing that it must schedule. The commission must issue its ruling within 20 receive up to 104 weeks of temporary total dis- days of the submission of the case before it. ability and up to an additional 52 weeks if proper proof was shown.119 If the decision is unfavorable to either party, Under the new act, the employee can receive an appeal may be filed with the Supreme Court 120 in 20 days.107 The act provides for a laundry list 70 percent of his average weekly wage, but is of standards of review that may be used by the limited to a maximum of 70 percent of the Supreme Court in considering any appeal.108 state’s average weekly wage. This would result in a new maximum benefit of $515 per week. The ultimate legal question concerning the This will be a reduction of 30 percent of the tem- opt-out system is how much discretion will be porary total disability benefits that the employ- given to the employer in defining what injuries ee could have recovered under the old act. are covered and what kind of medical manage- ment program the employer might institute. If an employer wishes to terminate tempo- rary total disability payments that are being Use of independent medical examiners.109 made to the employee and the employee has The commission is mandated to create and not returned to work, the employer must give maintain a list of independent medical examin- notice to the employee. If the employee files an ers.110 It may use them as it thinks necessary in objection within 10 days, the commission must any medical situation, such as surgery, that set the matter for hearing within 20 days for a might come before the court.111 All of the previ- determination to see if temporary total disabil- ous rules and procedures under the old law ity will be reinstated.121 have been retained. As was the case under the old law, no tem- Medical case management.112 Medical case porary total disability may be payable while management is encouraged under the act. the employee is receiving unemployment 113 “Case managers,” as defined by the act, may benefits.122 be ordered by the commission to either the employee or employer in situations where the Official Disability Guidelines (ODG).123 employee is not subject to a certified workplace The ODG, published by the Work Loss Data medical plan or where the employer has not Institute, will be recognized as the primary already hired a case manager.114 standard of reference for determining the fre- quency and extent of medical services, includ- 115 Temporary total disability. Under Oklaho- ing prescription medication,124 to be rendered ma law, the injured employee is entitled to to the employee under the act.125 The ODG receive weekly income benefits payments guidelines will not act as a requirement or (termed temporary total disability or TTD) mandate, but it is anticipated that they will be while undergoing medical treatment and is not 116 used in nearly all situations. Under the old law, able to work. Under the old law, the employ- the ODG guidelines are mandatory for all parts ee was entitled to recover 70 percent of his of the body except the spine. The length of average weekly wage with a limitation that the medical treatment will, as was the case under weekly payments could not exceed 100 percent 117 the old act, determine the length of temporary of the state’s average weekly wage. For exam- total disability. ple, if the employee was injured before Oct. 31, 2012, the employee could receive up to $735 Choice of treating physician. Under the new per week provided his average weekly wage act, the employer has the right to choose the was over $1,000 per week. These benefits could treating physician and the corresponding last up to 156 weeks.118 The employee could responsibility to provide the employee with

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 563 appropriate medical treatment.126 If the employ- ed from the act’s definition of “soft tissue er fails to provide medical treatment within injuries.”139 five days of notice of the injury, the employee Hernias.140 The employee is entitled to six may choose the treating physician.127 weeks of temporary total disability benefits for If the employee is dissatisfied with the treat- a hernia injury. If the employee refuses a rec- ing physician chosen by the employer, the ommended hernia operation, the total benefits commission has the power to grant one change payable are 13 weeks.141 The act provides for of the treating physician. The employer will new proof requirements in order to make submit three physicians. The employee must recovery for a hernia injury.142 then choose the replacement treating physician Mental injuries.143 The act does change the from the list provided by the employer.128 This law relative to compensability of mental inju- is a big change from the old act. ries. A mental injury is not a compensable Medical treatment. The act provides that the injury unless it was caused by a physical injury commission will have sole and exclusive sub- arising out of the employment. This provision ject matter jurisdiction over claims and charges does not apply to any victim of a crime of vio- for medical treatment provided under the act.129 lence.144 Any claim for mental injury must con- As was the case under the old act, the district form to the Diagnostic and Statistical Manual of court will not have jurisdiction over any bill for Mental Disorders.145 medical treatment incident to a job-related The act provides that the employee is limited injury. The employer as well as any medical to 26 weeks of disability benefits for mental provider may submit any dispute regarding injuries unless it can be shown by clear and medical charges to the commission.130 The med- convincing evidence that benefits should con- ical provider may not pursue payment of its tinue for a total of 52 weeks.146 medical bill until there is a final determination made by the commission regarding compens- Heart attacks and strokes.147 The act provides ability.131 If the claim is found to be compens- for the standard of evidence necessary to able, the commission will have sole and exclu- recover in heart attack and stroke claims. A sive jurisdiction over the medical bill. If the heart attack, stroke or similar incident is only claim is not found to be compensable, the dis- compensable if the employment was the major trict court will have jurisdiction. cause of the incident.148 The employer, as was the case under the old In order to recover benefits for these inci- law, is required to pay 100 percent of the dents, the employee must show that the inci- employee’s medical expenses, subject to the fee dent was precipitated by extraordinary and schedule, with no maximum limits on the unusual circumstances in comparison to the amounts payable.132 As noted above, the ODG employee’s usual work or was caused by an will be recognized as the primary standard for unusual and unpredicted event.149 Mental or the rendition of medical treatment.133 physical stress may not be considered under the new act in determining whether the employee The act provides for various circumstances has met the necessary burden of proof.150 The where the employer is not responsible for writer is unaware whether there is stress other medical treatment or temporary total disability than mental stress or physical stress. for missed appointments by the employee.134 Permanent partial disability.151 The determi- Soft tissue injuries.135 Compensation for nation of permanent partial disability will be nonsurgical soft tissue injuries will not exceed the sole responsibility of the commission eight weeks of temporary total disability.136 If the through its administrative law judges.152 As employee is treated with an injection or injec- was the case under the old law, each party may tions, such employee can be entitled to an addi- submit a report of an evaluating physician tional eight weeks of temporary total disability.137 regarding the issue of permanent partial dis- If surgery is recommended, the commission may ability.153 Any award for permanent partial dis- order an additional 16 weeks of temporary total ability must be in accordance with the current disability with certain restrictions.138 edition of Guides for the Evaluation of Permanent Brain disorders, spinal cord disorders, and Impairment promulgated by the American other such conditions are specifically exclud- Medical Association (now the 6th Edition).154

564 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 There are new limitations on the nature of Vocational rehabilitation benefits.166 The permanent partial disability that may be new act encourages vocational rehabilitation. awarded. First, the maximum number of weeks Any employee eligible for permanent partial that can be awarded is 350 weeks rather than disability will be entitled to vocational reha- the old law that provided for 500 weeks. This is bilitation benefits.167 The act mandates that the a reduction of 30 percent as compared to the commission hire or contract with a vocational old law.155 For example, an award of 10 percent rehabilitation director to oversee the rehabilita- to the body under the old law would allow up tion program of the commission.168 The director 50 weeks of permanent disability ($16,150). will oversee all employee rehabilitation efforts Under the new act, 10 percent to the body and may assign work out to private vocational would amount to 35 weeks of permanent dis- counselors.169 ability ($11,305). The maximum rate that can be The act provides a list of situations where awarded for permanent partial disability is there will be a presumption in favor of order- capped at $323 per week.156 ing vocational rehabilitation services.170 Second, unless the employee and employer The act provides for a much needed change come to a settlement agreement regarding per- in connection with vocational benefits. Now manent partial disability, the payment of any the administrative law judge can order voca- award for permanent partial disability is de- tional changes even though the employee is ferred and under some circumstances is temporarily totally disabled and under active reduced if the employee has returned to work medical care.171 The employee does not have to for the employer or has returned to an equiva- wait to be vocationally rehabilitated until med- lent job.157 ical treatment has been completed.172 Permanent partial disability cannot be award- As was the case under the old act, vocational ed to a body part for which no medical treat- rehabilitation benefits may be awarded for up to ment was rendered.158 52 weeks and may be extended an additional 52 The amount of permanent disability awarded weeks under certain circumstances.173 As was the is then reduced by 70 percent of the employee’s case under the old act, the employee may receive average weekly wage for each week he works weekly benefits at the previously established in his pre-injury or equivalent job.159 If the temporarily total disability rate while undergo- employer terminates the employee or the posi- ing vocational rehabilitation.174 tion offered is not the pre-injury or equivalent There is a new provision that allows the job, the remaining permanent partial disability employer, under certain circumstances, to award will be paid to the employee in a lump deduct the tuition it has paid from a later per- sum.160 If the employee refuses an offer to manent disability award.175 return to his pre-injury or equivalent job, the award of permanent partial disability is Permanent total disability benefits.176 The deferred and reduced as outlined above.161 Set- new act retains the old statutory definition of tlement agreements will not be subject to the permanent total disability. Permanent total dis- deferral provisions.162 ability must be based on objective findings. It is defined as the inability to earn wages in any If the employee was represented by an attor- employment, for which the employee may ney at a contested permanent partial disability become physically suited and reasonably fitted hearing, the attorney fees are calculated on the by education, training, experience or vocation- permanent partial disability at the time of the al rehabilitation.177 The statute also defines per- award, not in accordance with any deferral.163 manent total disability as the loss of both As was the case before the new act, any hands, both feet, both legs, and both eyes or award of permanent partial disability must be any two thereof.178 over and above any pre-existing disability.164 An employee found to be permanently and The physician advisory committee is directed totally disabled will be entitled to receive up to to recommend changes to the evaluation of 70 percent of the employee’s average weekly permanent disability. If such changes are wage, not to exceed the state’s average weekly adopted by the commission, they must be sub- wage.179 Unlike permanent partial disability, mitted to the governor and the Legislature for there will be no cap on the state’s average approval.165 weekly wage. The state’s average weekly wage

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 565 will be determined by the original accident or ing separate handbooks that will show the new injury date. benefits as compared to the old benefits. Permanent total disability may be awarded Unemployment benefits. As was the case in situations where temporary total disability under the old law, the employee cannot recover has been exhausted even though the employee temporary total disability while receiving has not reached maximum medical improve- unemployment insurance benefits.194 ment.180 The weekly benefits are in addition to Statute of limitations.195 The time in which to the requirement that the employer provide file some claims has been shortened. Unless the maintenance medical benefits to the claimant employee has received temporary total disabil- as well as a lifetime requirement for prosthetic ity payments or medical attention provided by devices. the employer, the employee must file the claim Amputations and permanent loss. The act within one year of the date of injury rather retains the provisions of the old law relating to than the old two-year period.196 If temporary amputations and loss of vision181 in a laundry- total disability is paid, the claim must be filed list fashion.182 For example, the employee will within one year of the last payment or two receive 275 weeks of permanent partial disabil- years from the date of the injury, whichever is ity payments for a leg amputated at the knee or greater.197 between the knee and the hip.183 Occupational disease claims must be filed The new act provides that the weekly calcu- within two years of the last injurious exposure lation is based on 70 percent of the employee’s to the hazards of the disease.198 average weekly wage, not to exceed $323 per Once a claim is filed, a request for hearing week.184 In the leg amputation cited above, the must be filed within six months or the claim employee would be entitled to $88,825. Had will be dismissed with prejudice.199 This provi- the accident occurred between Nov. 1, 2009, sion was rarely, if ever, used under the old law. and Aug. 26, 2010, the maximum recovery It is hoped that this provision will not be used would have been $98,725.185 This would repre- under the new act in situations where the sent a reduction in benefits of 10 percent. employer and employee are having no dis- Restrictions on medical maintenance. No putes and benefits are being provided. continuing medical maintenance will be Death claims must be filed within one year of awarded under the new act once the employee the date of death rather than the two-year has reached the full benefit of conservative period allowed under the old law.200 medical management unless such treatment is recommended by the treating physician or an Final settlements.201 The new act allows for independent medical examiner chosen by the joint petition settlements (final settlements).202 commission.186 A record of the joint petition must be made by an official commission reporter.203 Disfigurement. The employee may receive up to $50,000 in benefits for disfigurement.187 Re-opening of claims.204 The effects of aging Such benefits cannot be awarded until 12 cannot be considered in determining whether months after the original injury date and can- there has been a change of physical condi- not be awarded to any body part that was tion.205 A request for change in benefits based awarded permanent partial disability.188 upon a change of condition must be made within 6 months of an award, rather than the Death benefits.189 Lump sum benefits pay- old law that provided for a three-year statute able to spouses, children, and others payable as of limitations.206 a result of the employees’ death arising out of and in the course and scope of employment are Changes in provisions regarding attor- changed from the old law.190 Funeral expenses neys.207 The act specifically allows anyone to have been raised to $10,000 from the previous appear on behalf of either the employee or $8,000.191 The distribution and calculation of employer.208 The only requirement for represen- weekly income benefits changed from the old tation is that proof of representation is in writ- law.192 Lump sum benefits are slightly changed.193 ing and filed with the commission.209 The act Within a few weeks, the Court of Existing specifically provides that fees for legal services Claims and the commission will both be issu- rendered in a claim shall not be valid unless approved by the commission.210 This writer

566 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 assumes that this provision applies to both the the employer is not experience-rated when it employee and employer. participates in a certified workplace medical plan, its workers’ compensation insurer must Fees for the attorney representing the employ- 221 ee cannot exceed 10 percent of temporary total grant a 10-percent premium deduction. disability, 10 percent of the value of any voca- Certified workplace medical plans will con- tional rehabilitation services recovered,211 and tinue to be regulated by the state commissioner 20 percent of any permanent partial disability of health in the same manner as under the old recovered.212 In the event that the employer has law.222 made a written offer of settlement, the attorney can only recover 30 percent of the difference New alternative dispute resolution and between the offer and the award of the court.213 mediation provisions.223 The commission is There is no provision that allows the attorney directed to develop an alternative dispute reso- for the employee to recover expenses incurred lution program224 and to appoint a commission in connection with the prosecution of the claim, mediator to conduct informal sessions to including the expense of obtaining a medical attempt to resolve assigned disputes.225 In situa- report or other similar expenses in support of tions where the employee does not have an the claim for benefits. The recovery of such attorney, the commission mediator is directed expenses was allowed under the old law. within 30 days to have an informal mediation between the parties regarding issues such as closed-end periods of temporary total disability where the employee has returned to work, Certified workplace medical medical benefits, reimbursement of travel and medical treatment.226 plans will continue to be regulated While mediation remains voluntary, informal, by the state commissioner of and nonbinding, it is encouraged by the act.227 As health in the same manner as before, mediations remain confidential.228 The commission is directed to certify private under the old law. attorneys and non-attorneys as mediators. The private certified mediator must have five years of experience in the area of workers’ compen- The commission may award attorney fees to sation.229 the employee’s attorney only on “controvert- New subrogation provisions.230 The act pro- ed” claims214 defined by the act. A “controvert- vides for a new schematic for the subrogation ed claim” is defined as a contested hearing recovery by the employer and insurance carrier over whether there has been a compensable injury or whether the employee is entitled to against third-parties who have caused the temporary total disability, temporary partial injury to the employee. Although not specifi- disability, permanent partial disability, perma- cally addressed in the act, all entities such as nent total disability or death benefits.215 A self-insureds, group associations, opt-out enti- request for a change of physician will not trig- ties and all who have been authorized to ger the definition of “controverted” claim.216 In underwrite workers’ compensation claims and the event that such a request is made, the attor- have paid such claims will be given the benefit ney fee for the successful change of physician of the new subrogation provisions. 217 will be $200. Under the old law, the employer was subject Certified workplace medical plans.218 The to the distribution of benefits by the trial judge rules and provisions regarding certified work- if a settlement against a third party was less place medical plans are much the same as the than the amount of benefits paid by the employ- old law.219 The employer may directly contract er until the date of the settlement. If the third- with a CWMP after giving its carrier 60-day party settlement was for more than the amount notice of its intention to directly contract with of benefits paid, the employer was limited to a CWMP.220 the formula pronounced by the Supreme Court in the case of Prettyman v. Halliburton. The As was the case under the old law, there is an employer was then allowed to offset any future incentive for the employer to use a CWMP. If benefits payable to the employee against the

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 567 net recovery by the employee in the third party related by blood or marriage to the employ- settlement. er, if the employer is a natural person or a general or limited partnership or an incor- The new scheme provides that the employer porator of a corporation if the corporation is entitled to two-thirds of the recovery from a is the employer. third party after a deduction for reasonable fees and costs of the litigation whether the set- • Certain employees employed in a youth tlement was for more or less than the subroga- sports league and certain people perform- tion claim of the employer/insurance carrier.231 ing voluntary services. The recovery by the employer not only includes • The employee is a licensed real estate the money paid by the employer to the date of agent paid on a commission basis the settlement, but also includes the amount to be paid (reserved) on an open claim that has • Certain owner-operators who own or lease not been settled.232 The act does not address a truck-tractor or truck for hire. whether the district court where a third party • Certain operators of drive-away opera- case is filed or the commission has jurisdiction tions regarding a tow vehicle. to determine whether the reserve on a case claimed by the employer or insurance carrier is • domestic workers in a private home or reasonable. household who had an annual payroll of less than $50,000 in the preceding calendar The employer is allowed to file suit against year. the third party in its own name.233 But the act addresses the normal situation where the Any employer may waive these exceptions employee first files suit. In that event, notice and provide coverage to its employees.240 must be given the employer. The employer The immediate employer is required to pro- then must be allowed to intervene in the vide coverage to its employees under the act.241 234 employee’s lawsuit. If the immediate employer fails to secure com- Once the employer recovers all it has paid or pensation required by the act, the prime or prin- to be paid, the employee will be entitled to the cipal contractor that contracted with the imme- remainder of the recovery.235 diate employer will be liable for providing cov- erage to the employee unless there is an interme- Under the old law, the employer was not diate employer who has coverage. In that case, entitled to make any recovery against an unin- the intermediate employer will be responsible to sured motorist or underinsured motorist poli- provide coverage to the employee.242 cy. The act provides that the employer is enti- tled to maintain a third party action against the If the intermediate or prime contractor is employer’s uninsured motorist coverage or forced to provide coverage because the imme- under insured motorist coverage.236 No such diate employer failed to provide coverage, it recovery was allowed under the old act. will have a lien against any monies due or to become due to the immediate employer.243 This Prime contractor and subcontractor liabili- would be in addition to any remedy it might ty. 237 An immediate employer of an employee is have against the immediate employer in dis- required by the act to provide coverage under trict court for damages not associated with the act to all its direct employees238 unless:239 workers’ compensation obligations. • The employer is subject to a federal work- Additional provisions address the liability of ers’ compensation act. the prime contractor when the principal employer has presented a certificate of non- • The employer is in the business of agricul- 244 ture or horticulture and had a payroll of coverage. The commission will be vested with the power to issue certificates of non- less than $100,000 in the preceding calen- 245 dar year. coverage. Workers’ compensation counselor or om- • The employee is a participant in a work or budsman program.246 training program administered by the The new act provides for an expansion of the worker compensation/ Department of Human Services. ombudsman program. The act specifically • The employee is employed by an employ- states that the purpose of the expanded pro- er who has five or fewer, all of whom are gram is to assist injured workers through the

568 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 system without the necessity of retaining legal the degree of disability that would have result- representation.247 The ombudsman is directed ed from the last injury as if there had been no to provide information to injured workers, pre-existing impairment. The Multiple Injury investigate complaints, and communicate with Trust Fund will be responsible for total perma- employers, insurance carriers, self-insureds nent disability only when the permanent par- and health providers. The ombudsman pro- tial disability awarded to the employee when gram will be required to provide workshops added to any pre-existing disability of the for employers and medical providers.248 employee results in the employee being totally and permanently disabled.261 New retaliatory discharge provisions.249 The act vests the commission, rather than district Claims against the Multiple Injury Trust Fund court as was the case under the old law, with must be filed within two years of the date of the the exclusive subject matter jurisdiction to hear last order for permanent partial disability.262 claims from employees who claim that the employer has discriminated or retaliated The act provides for assessment of carriers, against them because the employee filed a self-insurers, group associations and Comp- claim under the act or hired a lawyer for repre- Source Oklahoma for the funding of the Mul- 263 sentation under the act.250 tiple Injury Trust Fund. The commission will administer the fund.264 The commission may award up to $100,000.251 265 The prevailing party will be entitled to recover Physicians advisory committee. The act costs and a reasonable attorney fee.252 retains the nine-person physicians advisory committee appointed by the governor, speaker The act also provides that the employer may of the House, and president pro tempore of the not discharge the employee for the sole reason Senate.266 The committee is given the responsi- that the employee was absent from work while bilities to: temporarily disabled or for any purpose to avoid payment of temporary total disability to • Review treatment inappropriate and the injured employee.253 The employer is not unnecessary treatment, procedures, and required to rehire or retain an employee who, any abuse practice or inappropriate meth- after temporarily total disability has been od or billings.267 exhausted, is determined by a physician to be • Make recommendations regarding any physically unable to perform his or her assigned abusive practice by health providers.268 duties or situations where the position is no longer available.254 • Make recommendations regarding accept- able deviations from the American Medi- Medical fee schedule. The new act provides cal Association’s “Guides to the Evalua- that the commission must conduct a review of tion of Permanent Impairment.”269 the medical fee schedule at least every two years and consider whether it will recommend • Address and make recommendations changes to the Legislature.255 Any change to the regarding any protocols not addressed by fee schedule must be approved by the Legisla- the ODG.270 256 ture. The commission is given various bench- • Make recommendations regarding all marks to use in recommending adjustments to 257 manner and means of medical issues, the fee schedule. Various limits on medical including injury causation and apportion- procedures, medical equipment, and prescrip- ment.271 tions as well as stop-loss provisions are pro- vided for in the act.258 Advisory council on workers’ compensa- tion.272 The advisory council will have nine The commission retains exclusive jurisdic- members — three appointed by the governor, tion to resolve fee schedule disputes.259 three appointed by the speaker and three Multiple Injury Trust Fund provisions.260 appointed by the president pro tempore.273 The The act provides that the employee will receive governor’s appointments will include both the compensation for permanent total disability if chairman and vice chairman of the council.274 the injury received in his most recent accident Among other duties, the advisory council is if combined with any previous disability ren- directed to review Oklahoma treatment guide- ders the employee permanently and totally lines,275 provide oversight of the independent disabled. The employer will only be liable for medical examiners276 and review and analyze

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 569 all aspects of the system, the work done by the an agreement to arbitrate.289 An aggrieved party commissioners and study trends in the field of may appeal such decision to the commission.290 workers’ compensation.277 The arbitrator may hold a pre-hearing confer- The advisory council is to meet at least quar- ence, decide cases on a summary disposition, terly278 and submit its findings on an annual subpoena witnesses, and permit discovery, basis to the governor, speaker, president pro including depositions.291 The arbitrator may tempore and the chief justice of the Supreme award all benefits allowable under the act.292 Court.279 Final decisions of an arbitrator may only be Recovery of fees for services by medical appealed to the district court.293 providers.280 The commission retains subject Other provisions. The new legislation pro- matter jurisdiction regarding medical expenses vides for: incurred by the employee for any work related injury. Just like the old law, the district court • Fees and costs under the new system,294 has no jurisdiction regarding such expenses if • The Self-Insurance Guaranty Fund,295 the commission finds the medical treatment to be as a result of an on-the-job injury.281 • The Oklahoma Option (Opt-Out) Insured Guarantee Fund,296 Medical providers will be allowed to volun- tarily contract with the attorney for the employ- • Insurance policies with deductibles paid er to recover disputed medical charges.282 This by the employer,297 writer assumes that the commission will allow • Funding of the new system,298 medical providers to contract with whomever they want to contract, not just the attorney for • The formation of group self-insurance the employer. associations,299 Disclosure of medical records. Medical pro- • Own risk employers,300 viders who render treatment to employees • Fraud provisions,301 covered by the act must permit the copying of their medical records and furnish full written • Occupation diseases,302 information to the commission.283 This writer • New provisions regarding asbestosis and recommends that the party requesting such silicosis,303 records obtain a release from the employee that complies with HIPPA. • Reporting requirements of employers who have claims submitted against them,304 The Workers’ Compensation Arbitration Act (WCAA).284 The WCAA applies to arbitra- • Methods for public entities to comply with tion agreements made on and after Feb. 1, the act,305 2014.285 The WCAA only applies to employees • New provisions for compensation payable covered by the act.286 to alien non-residents,306 The paramount issue regarding the WCAA is • An employee who is incarcerated is not whether the employer may force the employee eligible to receive medical or disability to arbitrate the employee’s claim when the benefits under the act,307 and employee does not desire to arbitrate her claim. If so, it would deny the employee access to the • Advance payments and payment of full judicial system. Moreover, most employees do wages with a method of recoupment of not have the expertise to fight with an employ- such payments.308 er in an arbitration proceeding. Very few The act also gives the employer the capability employees have the money to pay for an attor- of off-set or reduction in an amount equal to, ney and incur the associated costs of an arbitra- dollar-for-dollar, the amount of benefits the tion proceeding. Such costs and attorney fees injured employee has previously received for are not generally recoverable under the the same medical services or period of disabil- WCAA,287 although the employer must pay the ity, whether those benefits were paid under a fees and expenses of the arbitrator.288 group health care service plan, a group disabil- The WCAA provides that an administrative ity policy, a group loss of income policy, a law judge may hear and determine challenges to group accident, health, or accident and health

570 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 policy or a group hospital or medical services 51. 85A O.S. §27 A. 52. 85A O.S. §27. contract. The reduction will not apply if the 53. 85A O.S. §27 B.3. injured employee has paid for the policy.309 54. 85A O.S. §85. 55. 85A O.S. §86 A.B. It is assumed that Medicare and Medicaid 56. 85A O.S. §86 B. 57. 85A O.S. §70. will have to be paid back for any medical ben- 58. 85A O.S. §70 1. efits they have provided in situations where 59. 85A O.S. §71 B. 60. 85A O.S. §71. the medical treatment was in connection with a 61. 85A O.S. §71 B.4. job-related injury. 62. 85A O.S. §71 C.; 85A O.S. §72 A.1.; §75. 63. 85A O.S.§72 C.2.a.; §72 A.1. The new legislation also provides that by July 64. 85A O.S. §75. 65. 85A O.S. §71 D.; 85A O.S. §72A.4.;§72 B.5. 1, 2014, the commission, with the assistance of 66. 85A O.S. §72 A.3. the insurance commissioner, will implement an 67. 85A O.S. §78 A.; Old law see 85 O.S. §340. 68. 85A O.S. §78 A. electronic data interchange system that provides 69. 85A O.S. §79; Old law see 85 O.S.§346 A. relevant data concerning the Oklahoma Work- 70. 85A O.S. §78. 71. 85A O.S. §78 C.1-8. ers’ Compensation System and the delivery of 72. 85A O.S. §78 C. 310 benefits to injured workers. Within 30 days of 73. 85A O.S. §72 B.1.a.and C.1. the effective date of the act, the governor must 74. 85A. O.S.§72 B.1.b. 75. 85A O.S. §71 C.1. name five people to serve as the Oklahoma 76. 85A O.S. §71, 72,73,75. workers’ compensation electronic data inter- 77. 85A O.S. §38 A. 1.; Old law see 85 O.S. §351. 311 78. 85A O.S. §38 A.2.; §42; Old law see 85 O.S. §356. change advisory committee. 79. 85A O.S. §36 A. 2. 80. 85A O.S. §36 A.3. 1. 85A O.S. §1-167; See 85A O.S. §3. 81. 85A O.S. §36 A.4. 2. 85A O.S. §400; Old law see 85 O.S. §303. 82. 85A O.S. §8 A.; Old law see 85 O.S. §413 B. 3. 85A O.S. §107-120. 83. 85A O.S. §9; Old law see 85 O.S. §349 A. 4. 85A O.S.§121-149. 84. 85A O.S. §40; Old law see 85 O.S. §352-354. 5. 85A O.S. §172; See §400; §3.B.1.; See also 85A O.S. §45; Old law see 85. 85A O.S. § 200-213. 85 O.S §315. 86. 85A O.S. §200. 6. 85A O.S. §400. 87. 85A O.S. §201 A.8. 7. 85A O.S. §35. 88. 85A O.S. §202, 209. 8. 85A O.S. §5. 89. 85A O.S. §201 A.1. 9. 85A O.S. §5 A. 90. 85A O.S. §202 C.D.E.F.G.I. 10. 85A O.S. §5; §33. 91. 85A O.S. §202-203. 11. 85A O.S. §5 E. F. 92. 85A O.S. §202 H. 12. 85A O.S. §5 G. 93. 85A O.S. §203 I. 13. 85A O.S. §400 A. 94. 85A O.S. §203 B.; 85A O.S. §45-47. 14. 85A O.S. §400 A. 95. 85A O.S. §203B. 15. 85A O.S. §400 L. 96. 85A O.S. §203 B. . 16. 85A O.S. §45 G.; See §400. 97. 85A O.S. §203 C. 17. 85A O.S. §45 G. 98. 85A O.S. §203 C.; §203 B. 18. 85A O.S. §400 A.. 99. 85A O.S. §204 A.B. 19. 85A O.S. §400 A. 100. 85A O.S. §204 B. 3. 20. 85A O.S. §400 A. 101. 85A O.S. §219 B.;85A O.S. §213 (B) §204 B.2.;C-I. 21. 85A O.S. §400 A. 102. 85A O.S. §211 (I). 22. 85A O.S. §19. 103. 85A O.S. §211 A. 23. 85A O.S. §19 B. 104. 85A O.S. §211 A. 24. 85A O.S. §19 C. 105. 85A O.S. §211 B. 4. 25. 85A O.S. §19 B. 106. 85A O.S. §211 B. 5. 6. 7. 26. 85A O.S. §27; See 85A O.S. §19 C.; 85A O.S. §326. 107. 85A O.S. §211 B. 7. 27. 85A O.S. §27 A.B.C. 108. 85A O.S. §211 b. 7. 28. 85A O.S. §19 B. 109. 85A O.S. §112. 29. 85A O.S. §19 C. 110. 85A O.S. §112. 30. 85A O.S. §19 C.; See 85A O.S. §70 and §111 . 111. 85A O.S. §112 . 31. 85A O.S. §78. 112. 85A O.S. §113; Old Law see 85 O.S. §330. 32. 85A O.S. §27 A.B.: See 85A O.S. §73 and §75. 113. 85A O.S.§2. 3.; §113. 33. 85A O.S. §20 A.1.; see §21 D. and §22 B. and §71. 114. 85A O.S. §113. 34. 85A O.S. §20 A.4.; 85A O.S. §22 A.1. 115. 85A O.S. §45; 85A O.S. §113; Old law see 85 O.S. §332. 35. 85A O.S. §22. 116. 85A O.S. §45 A.1.2. 36. 85A O.S. §22 A.1.b.; 85A O.S. §2.a. 117. 85A O.S. §59; Old law see 85 O.S. §331. 37. 85A O.S. §22 C.1. 118. Old Law 85 O.S. §332. 38. 85A O.S. §22 B. 6. 119. 85A O.S. §5 A.1. 39. 85A O.S. §53. 120. 85A O.S. §59. 40. 85A O.S. §7 A.B. 121. 85A O.S. §45 A.2. 41. 85A O.S. §7 C. 122. 85A O.S. §49; Old law see 85 O.S. §332 (P) . 42. 85A O.S. §7 D. 123. 85A O.S. §16; See 85A O.S. §17 C. 43. 85A O.S. §400 J. 124. 85A O.S. §16 B. 44. 85A O.S. §19 E.1. 125. 85A O.S. §16 A. 45. 85A O.S. §19 E.2. 126. 85A O.S. §16; See §50; 85A O.S. §56.; Old Law See 85 O.S. §326. 46. 85A O.S. §22 B. 2. 3. 127. 85A O.S. §50 B. 47. 85A O.S. §72; 85A O.S. §27. 128. 85A O.S. §56 B. 48. 85A O.S. §22 D.; §72 A. 129. 85A O.S. §50 H.4.;85A O.S. §18; See §16. 49. 85A O.S. §22 D.; and §71 B.C.; §72 A. 130. 85A O.S. §55; See §16. 50. 85A O.S. §22 D.; §72 A. 131. 85A O.S. §18.

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 571 132. 85A O.S. §51; See §16; Old law see 85 O.S. §326-327. 211. 85A O.S. §82 A.1.b.(4); Old law 85 O.S. §343 (F) does not allow 133. 85A O.S. §51. recovery of attorney fees. 134. 85A O.S. §57; §45; Old law see 85 O.S. §327. 212. 85A O.S. §82 A.1.a.; see 85A O.S. §210 A. 3. 135. 85A. O.S. §62; Old law see 85 O.S. §332 (K) (L) (M). 213. 85A O.S. §82 A.1.b. 136. 85A O.S. §62 A. 214. 85A O.S. §82 O.S. §A.1.b.c. 137. 85A O.S. §62 A. 215. 85A O.S. §82 O.S. §A.1.c. 138. 85A O.S. §62 A. 216. 85A O.S. §82 A.1.c. 139. 85A O.S. §62 B.1.2. 217. 85A O.S. §82 A.1.b.(3). 140. 85A O.S. §61: Old law 85 O.S. §333 (E). 218. 85A O.S. §64. 141. 85A O.S. §61; §54. 219. 85A O.S. §56; 85A O.S.§64. 142. 85A O.S. §61. 220. 85A O.S. §64 D. 143. 85A O.S. §13; Old law see 85 O.S. §308 (10) (f). 221. 85A O.S. §64 E. 144. 85A O.S. §13 A. 222. 85A O.S. §64. 145. 85A O.S. §13 A. 2; See 85A O.S. §17 C. 223. 85A O.S. §110; Old law see 85 O.S. §321. 146. 85A O.S. §13 B. 224. 85S O.S. §110 A. 147. 85A O.S. §14; Old law see 85 O.S. §308 (10) (b). 225. 85A O.S. §22 C.9. 148. 85A O.S. §14 A. 226. 85A O.S. §110 D. 149. 85A O.S. §14 B. 227. 85A O.S. §110. 150. 85A O.S. §14 B.2. 228. 85A O.S. §110 F. 151. 85A O.S. §45 C.; Old law see 85 O.S. §308 (35); 85 O.S. §333. 229. 85A O.S. §110 G. 152. 85A O.S. §45 C.1. 230. 85A O.S. §43; Old law see 85 O.S. §348. 153. 85A O.S. §45 C.1. 231. 85A O.S. §43 A.2.; Old law see 85 O.S. §348 and cases interpret- 154. 85A O.S. §45 C.1. ing same . 155. 85A O.S. §45 C. 8.; Old law see 85 O.S. §333 (B). 232. 85A O.S. §43 A.1.c. 156. 85A O.S. §45 C.4. 233. 85A O.S. §43 B. 157. 85A O.S. §43 C. 5. 234. 85A O.S. §43. 158. 85A O.S. §45 C.2. 235. 85A O.S. §43 B.3. 159. 85A O.S. §45 C.5. 236. 85A O.S. §43 B.4. 160. 85A O.S. §45 C.5. 237. 85A O.S. §5; 85A O.S. §36 E; Old law see 85 O.S. §348. 161. 85A O.S. §45 C. 5. 238. 85A O.S. §3. 162. 85A O.S. §45 C. 5. 239. 85A O.S. §2.18.b. 163. 85A O.S. §45 C. 5. d. 240. 85A O.S. §37. 164. 85A O.S. §45 6.B.1. 241. 85A O.S. §35-37; §40. 165. 85A O.S. §60 B. 242. 85A O.S. §36-37. 166. 85A O.S. §45; Old law see 85 O.S. §328. 243. 85A O.S. §33. 167. 85A O.S. §45 C.10. 244. 85A O.S. §33; See 85A. O.S. §36 C. 168. 85A O.S. §45 E.1. 245. 85A O.S. §36 C. D. 169. 85A O.S. §45 E.2. 246. 85A O.S. §109; Old law see 85 O.S. §320. 170. 85A O.S. §45 E.3. 247. 85A O.S. §109 A. 171. 85A O.S. §45 E.4.5. 248. 85A O.S. §109 B.D. 172. 85A O.S. §45 E.5. 249. 85A O.S. §7. 173. 85A O.S. §45 E.6. 250. 85A O.S. §7 B.; Old law see 85 O.S. §341. 174. 85A O.S. §45 E.8. 251. 85A O.S. §7 C. 175. 85A O.S. §45 E.8. 252. 85A O.S. §7 D. 176. 85A O.S. §45; Old law see 85 O.S. §336. 253. 85A O.S. §7 E. 177. 85A O.S. §2. 35. 254. 85A O.S §7 F. 178. 85A O.S. §2. 35. 255. 85A O.S. §50 H.1. 179. 85A O.S. §45 D. 256. 85A O.S. §50 H.1. 180. 85A O.S. §45 D.1. 257. 85A O.S. §50 H.3. 181. 85A O.S. §46 E.1.2. 258. 85A O.S. §50 H.3. 182. 85A O.S. §46 A.C.D.E. 259. 85A O.S. §55 A.; Old law see 85 O.S. §327. 183. 85A O.S. §46 A.3. 260. 85A.O.S. §30-34; Old law see 85 O.S. §402-403, §406. 184. 85A O.S. §6 B. 261. 85A O.S. §32 A. 185. See old law 85 O.S. §333 F,1. 262. 85A O.S. §33 A. 186. 85A O.S. 50 D.; Old law see 85 O.S. §326. 263. 85A O.S. §31, §29; Old law see 85 O.S. §403. 187. 85A O.S. §45 F.1.; Old law see 85 O.S. §334. 264. 85A O.S. §31-32. 188. 85A O.S. §45 F.2.3. 265. 85A O.S. §17; Old law see 85 O.S. §373. 189. 85A O.S §47; 85A. O.S. §11; Old law see 85 O.W. §337. 266. 85A O.S. §17 A. 1.2.3. 190. 85A.O.S. §47; Old law see 85 O.S. §337 (A) (13); (A) (3); (A) (5) 267. 85A O.S. §17 B.1. (6) (E). 268. 85A O.S. §17 B.2. 191. 85A O.S. §47 C.5. 269. 85A O.S. §17 B.3.; See also 85A O.S. §60. 192. 85A O.S. §47 2.3.4.; 85 O.S. §337 (C). 270. 85A O.S. §17 B.4. 193. 85A O.S. §47 C.3. 271. 85A O.S. §17 B.6. 194. 85A O.S. §49; Old law see 85 O.S. §332 (P). 272. 85A O.S. §121. 195. 85A O.S. §69; Old law see 85 O.S. §318. 273. 85A O.S. §121 B.1.2.3. 196. 85A O.S. §69 A.1. 274. 85A O.S. §121 F. 197. 85A O.S. §69 B.1. 275. 85A O.S. §121 L. 198. 85A O.S. §69 A.2.a. 276. 85A O.S. §121 K. 199. 85A O.S. §69 D. 277. 85A O.S. §121 J. 200. 85A.O.S. §69; Old law see 85 O.S. §318. 278. 85A O.S. §63 H. 201. 85A O.S. §87; 85A O.S. §115 A.; Old law see 85 O.S. §337, 279. 85A O.S. §121 J. §339. 280. 85A O.S. §18 A. 202. 85A O.S. §87; 85A O.S. §115; Old law see O.S. §337 (K), §339. 281. 85A O.S. §18. 203. 85A O.S. §115. 282. 85A O.S. §82 A.4.; See 85A O.S. §64; Old law see 85 O.S. §328. 204. 85A O.S. §69 B.C., §80; Old law see 85 O.S. §318 (F). 283. 85A O.S. §58. 205. 85A O.S. §80 D. 284. 85A O.S. §300-328. 206. 85A O.S. §80; Old law see 85 O.S. §318 (F). 285. 85A O.S. §303. 207. 85A O.S. §82; Old law see 85 O.S. §343. 286. 85A O.S. §301. 208. 85A O.S. §71 C.1. 287. 85A O.S. §316, §321, §325 . 209. 85A O.S. §83; §71. 288. 85A O.S. §321. 210. 85A O.S. §82 A.1.a. 289. 85A O.S. §326.

572 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 290. 85A O.S. §327. 291. 85A O.S. §315, §317. About The Author 292. 85A O.S. §321. 293. 85A O.S. §327-328. 294. 85A O.S. §58; Old law see 85 O.S §308, §370. Kenneth David “Dave” Roberts 295. 85A O.S. §96 §28; §100, §205; Old law see 85 O.S. §407, §361-364. practiced in Oklahoma City and 296. 85A O.S. §205. 297. 85A O.S. §91; §95. focused his practice on workers’ 298. 85A O.S. §260,§264,§28,§207,§260,§266, §29; See §129 of House compensation. He passed away on bill 301 (2013). 299. 85A O.S. §103; §123. Jan. 6, 2014. This article was pub- 300. 85A O.S. §111; §204; §206-207. lished posthumously. 301. 85A O.S. §6; Old law see 85 O.S. §410 and 21 O.S. §1663. 302. 85A O.S. §65, §67-68; Old law see 85 O.S. §316, §318 (F), §323 (A), §323 (B). 303. 85A O.S. §66; Old law see 85 O.S. §316, See 85A O.S. §69. 304. 85A O.S. §63. 305. 85A O.S. §107. 306. 85A O.S. §11. 307. 85A O.S. §9; Old law see 85 O.S. §332 (I); §336 (B). 308. 85A O.S. §89; Old law see 85 O.S. §345 (E). 309. 85A O.S. §44 A. 310. 85A O.S §101 B.; See 85A O.S. §25. 311. 85A O.S.§101 C.

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Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 573 BAR NEWS

Proposed OBA Master Lawyers Section: Services and Benefits

A petition to create the OBA Master Lawyers Provide a forum for senior lawyers to discuss Section for senior lawyers is currently being cir- 6 common issues, problems and solutions in culated. Be sure to read the Message from the their practices and daily lives. President from Renée DeMoss in this issue to learn more about the need and purpose of this Provide courts with assistance to pro se liti- proposed section. Below are proposed services 7 gants. and benefits. Provide assistance to Legal Aid and other vol- Provide assistance to lawyers who need tem- 8 untary legal clinics, such as research, client and 1 porary help due to sickness, injury or other witness interviews and case preparation. emergency. Serve as arbitrators or mediators for local dis- Provide assistance to help close practices and 9 putes or attorney fee disputes. 2 serve clients of disabled or deceased lawyers. Provide assistance for nonprofit organiza- Provide assistance to monitor compliance of 10 tions needing help with tax or other legal 3 disciplined lawyers. matters.

Provide mentorship to law students and new Serve as speakers on legal topics for commu- 4 practitioners on an individual or group basis. 11 nity groups, such as schools and churches.

Provide programs for successful retirement Serve as speakers at bar association, com- 5 planning and CLE programs specifically 12 mittee and section events. designed for lawyers of retirement age. Write articles for and assist with the Okla- 13 homa Bar Journal.

Provide assistance for bar association legal 14 service programs such as Ask A Lawyer and lawyer referral services and programs such as Law Day.

Create and staff a Citizens Law School, where 15 community members can attend classes taught by lawyers on subjects such as wills, family law and consumer law.

574 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 LITIGATION Section Officers: David VanMeter, Co-Chairperson Whitney Eschenheimer, Co-Chairperson Jake Krattiger, Budget Officer Invite you to join the Litigation Section

Section member benefits: • $25 dues • Monthly meetings • Opportunities to To join: earn CLE credit Go to www.okbar.org/members/sections and download the section members registration form. Complete the form and send in the annual dues.

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 575 576 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 OBA EVENT

Rocking on Tulsa Time! 2014 OBA Solo & Small Firm Conference and YLD Midyear Meeting By Jim Calloway

The 2014 OBA Solo & Small session on remote access to Firm Conference will be com- the law office. ing to the Hard Rock Casino Our Saturday morning ses- Resort Tulsa June 19-21, 2014. sion on legal ethics will be It all begins with the OBA taught by Oklahoma Supreme Open Golf Tournament at the Court Vice Chief Justice John beautiful Cherokee Hills Golf F. Reif and OBA General Club on June 19. And by Counsel Gina Hendryx. This “open,” we mean open to all program promises to include a lawyers, regardless of practice is sending its trainer Josh lively discussion with lots of setting or whether you are Auriemma to teach us about give and take. attending the Solo & Small “Getting the Most out of Fast- Firm Conference. Review Oklahoma City lawyer Jef- case for Your Legal Research.” the golf information accompa- frey Taylor has gained a lot of This training session will nying this article and fame blogging as The Droid be presented on both Friday sign up now. Lawyer™ and is one of our and Saturday. three Solo & Small Firm Con- Bryan M. Simms is our fea- “Lying, Cheating and Steal- ference presenters who will tured conference guest this ing in Automobile Dealing” also be speaking at ABA year. He is a founder of Simms is the provocative title of a TECHSHOW™ 2014. He Law Firm Ltd. of Naperville, presentation by lawyers David will be teaching about “The Ill. where he concentrates his Humphreys and Luke Wallace. Google-Powered Law Office” practice in the areas of com- Many lawyers receive inqui- and giving tips on our “60 mercial litigation and civil ries about car deals gone bad, Tips in 60 Minutes” panel. appeals. Mr. Simms contributes and this will be a great chance regularly to TechnoLawyer1 and This year I will be talking to learn which type of these was recognized as the 2005 about a topic that I view as problems has a legal remedy. TechnoLawyer of the Year. He critical for the legal profession The OBA Young Lawyers blogs regularly about the inter- and particularly solo and Division Midyear Meeting will section of law practice and small firm lawyers, “Docu- be held in conjunction with technology at www.thecon- ment Assembly for Everyone – the conference. While we nectedlawyer.com. His plenary Incorporating it Into Your believe all of the conference session will be “How I Lever- Work Flow” as well as giving programming is great for age Technology to Improve tips on the 60 tips panel. My Solo Practice.” He will also young lawyers, we especially be on our “60 Tips in 60 Min- Fastcase, the legal research want to encourage them to utes” panel and will teach a service free to OBA members, attend my program on “The JUNE 19-21 2014 • HARD ROCK HOTEL & CASINO • TULSA, OK

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 577 Act” will be taught by David Cheek. Get more Staying current on changes in the law is always a chal- information on the lenge and this year we offer a program to do just that: “Leg- OBA Solo & Small Firm islative Update – What’s New This Year?” with a panel mod- Conference website at erated by Noel Tucker. www.okbar.net/solo. In addition, Dale L. Astle will give us “Oklahoma Real Estate Law Update.” Dale is Conference president of American Eagle Initial Client Interview” and a Title and Abstract and General program that was requested Counsel of American Eagle Sponsors last year, “Working with DHS Title Insurance Company. on Family Law Matters” with DHS/Child Support Services There is much, much more. o p r o d u c e r lawyer Amy Page. “Juvenile Delinquency Law: C The Latest and Greatest • Oklahoma Attorneys Several years ago, the pro- Things Every Kid Defender gram “Social Media, Internet Should Know” will be present- Mutual Insurance Co. and Email Evidence at Trial: ed by Adam Barnett, Tulsa Admissibility of Electronic County assistant public Evidence” with OBA Family defender. “Expungement Law: Go l d Law Section Chair Shane It’s As If It Never Happened… Henry might have sounded or IS IT?” will be taught by • Currington Mortgage like a program just for family Jimmy Bunn, chief legal coun- Company law practitioners, but now it sel at Oklahoma State Bureau seems that this type of evi- of Investigation. “Stress and • GableGotwals dence is involved in all sorts the Solo/Small Firm Lawyer” of litigation matters in addi- will be covered by OBA Ethics tion to its increasing frequency Counsel Travis Pickens and Si l v e r in family law cases. Rebecca Williams. • Beale Professional Services Worried about e-filing in Sometimes it is important to state courts? How will this know what you don’t know. change impact your practice? • Legal Directories Publishing Even the lawyer who intends Company Inc. Get the latest information to never handle an immigra- about the state of state court tion law matter will benefit • OBA Family Law Section e-filing from Debra Charles, from “Immigration Law for general counsel of the Admin- the General Practitioner,” • OBA General Practice/Solo istrative Office of the Courts. taught by Lorena Rivas and Small Firm Section OBA President-Elect David Tiemann. Poarch will talk about estate- • OBA Law Office Manage- Participation in our chil- ment Technology Section planning needs for the client dren’s activities has declined who says “I Just Want a Will.” over the years, so this year Sending a demand letter to rather than hosting any orga- Br o n z e collect a debt is not nearly as nized children’s activities, we simple as it once was. “Ins and are directing everyone to the • ABA Retirement Outs, Tricks and Traps of the Tulsa Zoo, 12 miles and about • Beyond Square One Fair Debt Collection Practices a 15-minute drive away. The Tulsa Zoo is offering a 40 per- • FindLaw, a Thomson Reuters Business

• Tabs3 – Solutions PLLC

578 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 cent discount on admission for our conference attendees who purchase tickets in advance online. Details will be provided to all who register Golfing Fun at the for the conference. The zoo’s daily activities are online at www.tulsazoo.org/visit/daily. OBA Open Child or family registration for the Solo & Small Firm Conference still allows for Don’t miss this great event. There is limited those guests to have meals with the other conference availability, so sign up now using the attendees. registration form on page 583. The Hard Rock Casino Attendees do not need to be registered Resort features rock memo- for the Solo & Small Firm Conference. rabilia, beautiful rooms and suites and several varied When: June 19, 2014 Shotgun start entertainment venues, as at 1:30 p.m. well as gaming. As always, there will be a Where: Cherokee Hills Golf Club at goodie bag with interesting Hard Rock Casino Resort Tulsa gifts for attendees and infor- mation from our sponsors. Who: Open to all OBA members and their There will lots of door prizes. guests. You may sign up as a foursome We hope to see you at the or sign up individually and we will pair you. OBA Solo & Small Firm Con- Prizes, fun and more ference. Use the form accom- What: panying this article to register Cost: $55 or register online at www. okbar.net/solo and the sepa- Questions? Contact OBA Director of rate form to register for the Administration Craig Combs 405-416-7040 golf tournament. [email protected]. Reserve your room by call- ing 1-800-760-6700 and using the Block Code OKBAR2014. The conference rate is $122 for a standard room.

1. www.technolawyer.com Mr. Calloway is OBA Manage- ment Assistance Program direc- tor. Need a quick answer to a tech problem or help resolving a man- agement dilemma? Contact him at 405-416-7008, 800-522-8065 or [email protected]. It’s a free member benefit!

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 579 580 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 OBA SOLO & SMALL FIRM CONFERENCE JUNE 19-21 2014 • HARD ROCK HOTEL & CASINO • TULSA, OK DAY 1 • Thursday June 19

3 - Conference Registration (Sequoyah Foyer North) 6:30 p.m.

6:30 p.m. Dinner (Sky Room, 18th Floor)

DAY 2 • Friday June 20

8:25 a.m. Welcome OBA President Renée DeMoss

8:30 – 60 Tips in 60 Minutes 9:30 a.m. Bryan Simms, Jeffrey Taylor and Jim Calloway 9:30 a.m. Break 9:40 – How I Leverage Technology to Improve My Solo Practice 10:35 a.m. Bryan Simms

10:35 a.m. Break 10:45 - Estate Planning: “I Just The Initial Client Interview Juvenile Delinquency Law: The 11:50 a.m. Want a Will” Jim Calloway Latest and Greatest Things David Poarch, Every Kid Defender OBA President-Elect Should Know Adam Barnett, Tulsa County Assistant Public Defender 11:50 a.m. - 12:45 p.m. LUNCH (Included in Seminar Registration Fee) 12:45 - E-Filing in Oklahoma Ins and Outs, Tricks and Traps Getting the Most Out of 1:45 p.m. State Courts of the Fair Debt Collection Fastcase for Your Legal Debra Charles, General Counsel Practices Act Research Administrative Office of the Courts David Cheek Josh Auriemma – Fastcase (Will be repeated Saturday) 1:45 p.m. Break 2 - Legislative Update – What’s Immigration Law for the Working with DHS on 3 p.m. New This Year? General Practitioner Family Law Matters Noel Tucker, Moderator Lorena Rivas Tiemann Amy Page, Managing Attorney Panel TBA Office of Impact Advocacy and Legal Outreach, DHS/Child Support Services Approved for 12 hours MCLE / 1 Ethics

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 581 DAY 3 • Saturday June 21 8:25 a.m. Welcome OBA Executive Director John Morris Williams 8:30 – Legal Ethics for the Solo and Small Firm Lawyer 9:20 a.m. Oklahoma Supreme Court Vice Chief Justice John F. Reif and OBA General Counsel Gina Hendryx 9:20 a.m. Break 9:30 – Document Assembly for Everyone – Incorporating it Into Your Work Flow 10:20 a.m. Jim Calloway 10:20 - 10:45 a.m. Break (Hotel check out) Social Media, Internet and Lying, Cheating and Stealing Expungement Law: It’s as if it 10:45 - Email Evidence at Trial: in Automobile Dealing Never Happened… or IS IT? 11:35 a.m. Admissibility of David Humphreys and Jimmy Bunn, Chief Legal Counsel Electronic Evidence Luke Wallace at Oklahoma State Shane Henry Bureau of Investigation

11:35 a.m. LUNCH (Included in Seminar Registration Fee) 12:30 – Stress and the Solo/Small Remote Communications: Oklahoma Real Estate Law 1:20 p.m. Firm Lawyer Practicing from a Coffee Shop Update Travis Pickens and or other Remote Location Dale L. Astle Rebecca Williams Bryan Simms 1:20 p.m. Break 1:30 - Getting the Most Out of The Google-Powered Top Ten Rules for 2:20 p.m. Fastcase for Your Legal Law Office Oklahoma Appeals Research Jeffrey Taylor Jody Nathan Josh Auriemma – Fastcase (Repeat of Friday’s Program) 2:20 p.m. Break 2:30 - What’s Hot & What’s Not in Management & Technology 3:20 p.m. Bryan Simms, Jeffrey Taylor, Jim Calloway and Jody Nathan

582 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 583 Oklahoma County District Judge

Jodi Dishman "Judge Stuart exem- Michael Joseph Michael Lauderdale plifies the integrity Kent Meyers Gary Fuller Joseph Walters Mike Blake Patrick Stein Richard Mullins and honesty that Don Nicholson Robert Dace Rodney Hunsinger make a great judge. Tsinena Robinson Martin Stringer Valerie Michelle Evans John Hermes Brandon Buchanan Laura McConnell-Corbyn He is fair, impartial, Kevin B. Ratliff Matt Buergler Curtis Thomas Billy M. Croll and knowledgeable Robert Nance Laura Long Ryan S. Wilson Laura McConnell Andy Long about the law. Judge Joe Crosthwait Jodi Cole James D. Kallstrom Michael Brooks Stuart has a work Jack Dawson Jack Sargent Glenn Huff Jeremiah Buettner Bill A. Johnson ethic that is second Steven C. Davis Charise Hall Chris Scaperlanda to none. Oklahoma Chad Taylor Todd Woolery Rick L. Warren C. Russell Woody George Emerson Joe Lewallen County is exception- Jesse Chapel Bob Dace Charles E. Geister Drew Neville ally well-served by Jesse Kordeliski Michael Avery Richard Mildren Beau Patterson John D. Robertson Judge Stuart." Amy Alden Elizabeth Wood Matt W. Brockman Patrick Lane Mike LaBrie Brad A. Madore Andrea Rust Elizabeth Bowersox Laura McConnell-Corbyn Dakota Low Zach Oubre Kieran Maye Frank Plater John Hermes Phil Hart Susan Hermes Steve Johnson Rodney Hunsinger Brandon Buchanan Richard Mullins Todd Court Joseph Walters Michael Joseph Michael Lauderdale Gary Fuller Jodi Dishman Patrick Stein Spencer Smith Bob Dace John Kenney Martin Stringer Jeff Todd Frank Hill Nathan Whatley Elizabeth Tyrrell Mark Christiansen James McMillin John Stiner Tim Bomhoff Mark Folger Henry Hoss Ron Shinn Ross Plourde Joseph Bocock Lauren Hanna Kym Carrier Joseph Bocock Reid Robison Ron Shinn Lauren Hanna Mark Folger Ross Plourde John Stiner Henry Hoss Mark Christiansen Tim Bomhoff Nathan Whatley Jim McMillin Jeff Todd Elizabeth Tyrrell John Kenney Frank Hill Spencer Smith Todd Court

"Judge Stuart is the epitome of good tem- perament and scholarly work. He should be retained in office." – Kent Myers

584 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 LEGISLATIVE NEWS

Legislative Update By Duchess Bartmess

The first significant dead- provide information on sig- line for legislative measures nificant issues which the bar to survive and to be consid- and the committee believe ered still “alive” has passed. should be of interest to every The OBA’s original list of OBA member. Also, to make nearly 500 legislative mea- it easier for readers who are sures of significance to watch not familiar with words and was developed as a result of terms unique to the legisla- the work of the Legislative tive process, definitions are Monitoring Committee Sat- provided here. urday reading group, and DEFINITIONS this first deadline reduced that number considerably. Committee substitute — Revised version of legislation In addition, as reported proposed for consideration earlier, only 10 of the more or adopted by a committee. significant bills of interest for OBA members will be Engrossment — The prep- discussed here. The purpose aration of the official copy of this change in procedure of a measure passed by the is to encourage each bar house of origin containing member to take the abbreviated information the proper endorsement of that house and in- reported here and look at the bill or joint reso- cluding all adopted committee and floor amend- lution that may have an impact on your prac- ments, the measure is then forwarded to the tice and clients. opposite house for its consideration. Any amendments made in the opposite house are As a reminder to those bar members familiar likewise engrossed and returned to the house with the work and reporting of the committee, of origin for consideration. general appropriation measures, measures with no significant legal application such as First reading — The measure is introduced naming roads, bridges and buildings, and sun- and its title is read for the first time. set measures are not considered for review. An General order — An order of legislative busi- OBA member who has a significant practice ness in which the house considers bills and before various state agencies, boards or com- joint resolutions that have been reported out of missions is encouraged to check the Oklahoma committee. Under general order, measures are State Legislature website at www.oklegisla- subject to debate and amendment. ture.gov for the status of the sunset measures of interest making their way through the legis- Introduction — The filing of a measure for lative process. consideration by the Legislature. A measure is considered introduced upon first reading and The following 10 legislative measures include is assigned a number in the house of origin at both amendatory provisions and completely that time. new provisions. They are presented here to

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 585 Strike the title — To change the title of a bill HB 3368 Adds five new sections of law creat- to a few words that are briefly descriptive but ing the “Vehicle Condition Disclosure Act;” constitutionally unacceptable. The major intent provides methods by which seller can limit of this action is to ensure that the bill will go to recovery for defect by purchaser of a vehicle; a conference committee. Any legislation being authorizes the option for a seller to provide a reported out of a house committee with the disclaimer statement meeting specific statutory exception of the Appropriations and Budget requirements; mandates Department of Public Committee, must have a full title. Safety to provide statement form; sets limits on civil actions to recover and type of recovery BILLS WORTH YOUR ATTENTION allowed; and specifies conditions relating to HB 2405 Amends definition of “tort” in the liability of seller if disclosure statement pro- Governmental Tort Claims Act by specifying vided. As of Feb. 26, the bill is on general order laws which constitute a “legal wrong;” and in the House. specifically limits liability of the state or politi- SB 1475 Changes the responsibilities of court- cal subdivision. As of Feb. 18, the Committee appointed fiduciary reporting requirements; Substitute Engrossed bill was sent to the Senate alters termination provisions and makes notice and was introduced in the Senate. It should of revocation requirements. As of March 6, the also be noted that SB 1503 amends the same engrossed bill was sent to the House for intro- section of the Governmental Tort Claims Act. duction and first reading. Both bills alter the definition of “tort.” The Sen- SB 1600 Adds to the locations where an offi- ate bill adds to the list of exemptions from lia- cer with probable cause may, without a war- bility. This bill has a stricken title. As of Feb. 18, rant, arrest a person involved in an accident it is on general order in the Senate. who is under the influence of alcohol, intoxi- HB 2536 Adds two new sections of law cating liquor or a controlled dangerous sub- regarding legal custody of a child; authorizes stance. As of Feb. 27, the engrossed bill was limited delegation of custody through power sent to the House for introduction and first reading. of attorney to delegate custody with specified limitations; adds additional exemption to the SB 1897 A new statutory provision mandat- Oklahoma Child Care Facilities Licensing Act; ing automatic retirement of all justices and makes exception to responsibilities of person judges on the state when the total of years of receiving custody of a child; and provides service and age equals 80; the title has been exception to limits on placement in foster care. stricken. As of Feb. 24, the bill is on general As of March 10, this bill was referred to en- order in the Senate. grossment for sending to the Senate. SB 1993 Creates a new statutory responsibil- HB 2731 Adds a new assault and battery pro- ity for support and education by the mother of vision and penalty to Title 21 to include condi- a child born out of wedlock; modifies proce- tions of the victim for the law to be applicable dures relating to establishment of paternity of and the capturing image of such acts as being the child; includes new language to make each also prohibited; also adds definition of signifi- parent responsible for support of child; modi- fying provisions relating to responsibilities of cant injury; and adds the same provision to the parent whose rights have been terminated and Youthful Offender Act to be included in the list as to child if adopted. As of Feb. 18, the bill is of offenses that mandate youthful offender sta- on general order in the Senate. tus. As of Feb. 26, the committee substitute is on general order in the House. SB 2089 This bill was introduced as a shell bill; the committee substitute adds requirement HB 2790 Amends probate procedure by add- that a landlord of a multifamily dwelling of ing a new requirement to the elements for peti- more than four families shall maintain public tion for summary administration; authorizing safety and protection from habitual gang or court without a hearing to issue letters of spe- drug activity; defines “habitual gang or drug cial administration; alters requirements for activity;” adds authority of tenant to bring suit notice to creditors and notice of hearing; and for failure to provide such safety and protection; alters publishing time frames. As of Feb. 27, the grants district attorney authority to prosecute committee substitute engrossed bill was sent to landlord; district attorney given discretionary the Senate and was introduced in the Senate. authority to distribute funds recovered among

586 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 tenants and district attorney gang and drug- You’ll find the agenda in OBA Executive Direc- related task force. As of Feb. 27, the engrossed tor John Morris Williams’ article on page 588 or committee substitute was sent to the House for look for the story on www.okbar.org. The introduction and first reading. information on how to RSVP is also there. The next report will contain a quick status About The Author update on these measures, and discussion of 10 different measures...so stay tuned. Ms. Bartmess practices in Okla- OBA DAY AT THE CAPITOL homa City and chairs the Legisla- tive Monitoring Committee. She Remember, Tuesday, March 25, is the day all can be reached at duchessb@ bar members are encouraged to come to Okla- swbell.net. homa City and speak to their legislators. Pre- sentations will take place that morning at the Oklahoma Bar Center, and a free barbeque lunch will be served — but you need to RSVP.

Ro b e r t D. De n n i s Re t i r e m e n t Ce r e m o n y March 31 • 2 p.m. United States Courthouse Ceremonial Courtroom #301 200 NW 4th Street • Oklahoma City, OK

United States District Court Clerk Robert D. (Bob) Dennis is retiring on April 1, 2014 after 41 years of federal service, 28 of which were spent as Clerk of the United States District Court for the Western District of Oklahoma. Mr. Dennis served as the local chapter president of the Federal Bar Association, served on the Judiciary’s District Clerks Advisory Group and participated with the USAID judicial reform project in Jakarta, Indonesia. In 1996, Mr. Dennis received the Director’s Award for outstanding leadership for his role in the aftermath of the bombing of the Alfred P. Murrah Federal Building in Oklahoma City.

Mr. Dennis received his B.S. in forestry from OSU in 1967 and his J.D. from OCU School of Law in 1973. Prior to becoming the court clerk in 1985, Mr. Dennis served as an Assistant United States Attorney for the Western District of Oklahoma, District Counsel for the United States Small Business Admini-stration and Assistant General Counsel at the Oklahoma Department of Public Safety. He also had a distinguished military career concurrently with his full-time civilian jobs. He retired in 1995 from the military reserves as a lieutenant colonel.

Mr. Dennis is a recipient of several prestigious awards. In his retirement, he is looking forward to traveling, strumming his guitar, mountain hiking, reading and spending time with friends and family, especially his two grandchildren. He also plans to continue public service as evidenced by his working this summer at Roosevelt Lodge in Yellowstone National Park.

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 587 FROM THE EXECUTIVE DIRECTOR

Day at the Capitol is Almost Upon Us By John Morris Williams

March 25 is our slated Day is pending a full vote of the OBA DAY AT THE CAPITOL at the Capitol. We have some Senate. Tuesday, March 25, 2014 great speakers, free lunch and Although there were several an opportunity to go to the Oklahoma Bar Center bills introduced in the House Capitol and visit with mem- that would have affected the 10 a.m. Registration bers of the Oklahoma Legisla- selection and tenure of the ture. We will assemble at the 10:30 a.m. Welcome and Town Hall Meeting judiciary, none of them were Oklahoma Bar Center at Update heard in committee before the 10 a.m. and will have a few Renée DeMoss deadline for them to be heard. presentations and lunch. OBA President The new speaker of the As of now, only a couple of 10:45 a.m. Bills of Interest to Trial Courts House of Representatives has bills relating to the tenure and Judge James Croy named Rep. Aaron Stiles to selection of judges are active. Oklahoma Judicial Conference chair the House Judiciary Also, there are three proposed 11 a.m. Civil Procedure & Evidence Bills Committee. Rep. Stiles is constitutional amendments Jim Milton an OBA member practicing in that are carryovers from last OBA Civil Procedure and Evidence Norman and is the immediate year that remain alive. Committee past vice chair of the commit- If passed, SB 1897 would tee. Rep. Terry O’Donnell has 11:15 a.m. Criminal Law & Procedure Bills require all judges to retire been named the new commit- Trent Baggett when their age and years of tee vice chair. Rep. O’Donnell District Attorneys Council service added together equal is also an OBA member and 11:30 a.m. Family Law Bills 80. This bill at the time of this practices in Tulsa. Congratula- Phil Tucker writing has passed out of tions to both of them! OBA Family Law Section committee in the Senate. There are still many days 11:45 a.m. Bills of Interest to the Judiciary SB 1988 would change the left in the session and many Mike Evans way lawyer members of the bills that relate to the practice Administrative Office Judicial Nominating Commis- of law and the clients you of the Courts sion are selected. If this bill serve. Please mark your calen- Noon Lunch becomes law, the JNC lawyer dar and come be with us at members would be appointed our Day at the Capitol. 12:45 p.m. Talking to Legislators and by the speaker of the House Instructions for the Day and the president pro tem John Morris Williams of the Senate. This would OBA Executive Director eliminate the election of six 1 p.m. Adjourn and Meet with members of the Oklahoma Bar Legislators at the State Capitol Association by members of To contact Executive Director the association. This bill has Williams, email him at johnw@ Please RSVP if attending lunch to: passed out of committee and okbar.org. [email protected] or call 405-416-7014; 800-522-8065

588 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 ETHICS & PROFESSIONAL RESPONSIBILITY

Bar Complaints Decrease in 2013 By Gina Hendryx

During 2013, the Office of the attorney to receive multiple The primary complaint General Counsel received 230 grievances in a single year. This lodged against attorneys formal grievances involving can be due to a myriad of fac- continues to be a lack of dili- 163 attorneys and 1,055 infor- tors including illness, substance gence in representing the client. mal grievances involving abuse, depression or stress. These issues are reflected as 797 attorneys. In total, 1,285 “neglect” and include failure to return phone calls, emails, texts, etc.; failure to keep the client informed of the status of the representation, delay in bringing the matter to a conclu- sion, and missing court dates and deadlines. This allegation of attorney misconduct accounted for 43 percent of the formal grievances received in 2013, 44 percent in 2012 and 43 percent in 2011. The 2013 Annual Report of the Professional Responsibility Commission can be viewed at www.okbar.org/members/ grievances were received GeneralCounsel/annualreport. against 890 attorneys. In com- parison, the previous year a Ms. Hendryx is the OBA total of 1,428 grievances were general counsel. received involving 979 attor- neys. After holding steady for the past three years, grievances were down approximately 6 percent in 2013 over the previous year. This trend is reflected nation- ally with a majority of juris- dictions reporting similar decreases. However, discipline complaints tend to be cyclic and spikes are not uncommon when you receive multiple complaints against one attor- ney. It is not unusual for an

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 589 Ke e p Oklahoma County District Judge

Abel, Ed Daniel, Daneille Henderson, Robert W. Metheny, Steve Shears, John Abel, Luke Daniel, Thomas J. Hermes, John N. Miles, Erica Sheilds, Susan Able, Dacia Dansby, Janice Higginbotham, Bobby Miles, Jon Sherman, J. T. Acuna, Mariano Dauphin, Lisa Hill, Frank D. Miles, Suzanne Short, Susan A. Adams, Ellen Davies, Shannon Hiltgen, Cary E. Mitchell, Heather Shuler, Shalene Ahrend, Jennifer Davis, Jackie Hitt, Brion Mitchell, Jeffrey Spencer, Mark Ailles, Angel Davis, Kenny Hoisington, Robert Mitchell, Kara Standard,Matt Albert, Victor Davis, Steven C. Holkum, Laura Molsbee, Lisa M. Stanford II, A. Ainslie Armstrong, Harold Dawson, Jack Holland, Chance Monarty, Stephen J. Stewart, Leasa M. Austin, Jon Day, Jerry Holmes, Laura L. Moore, Jody Stinson, Sheila Autrey, Joni DeGiusti, Anthony Holtz, Gina Mullen, John E. Stipe, Amy Bailey, Sharon Delijans, Ryan Homsey, Gary B. Mullins, Glen Stockwell, Debi Baker, Brandon H. Denney, Cheryl Hopkins, Tyler Munda, Benjamin Stonecipher, Mark K. Barghols, Steve Denton, Penny L. Houston, Mary Murphy, Brooke S. Stringer, N. Martin Beech, Johnny Derryberry, Darren Howell, James F. Murray, Todd A. Strong, Roger A. Beeler, Jeff R. Derryberry, Larry Howell, T. P. Naifeh, Robert Sublett, Scott C. Bernhardt, Patti Dishman, Jodi Huff, Glen Nevard, Donald B. Sullivan, David Bialick, Mark Diver, Heidi Huff, Lon Nguyen, Angela Sullivan, Kelsie M. Bishop, Kelly Donchin, David Hunter, Cheryl Nice, R. Blaine Sweet, Kyle Blacklee, Charlotte G. Dougtry, Stefan Irish, Jennifer Nicklas, Cara S. Swinney, Lorna Blankenship, J. W. Dragos, Kelly Jamshidi, Shane Ogletree, L. Earl Tait, Jr., Albert L Block, Denise Dunagan, Sidney G. Jett, Travis O’Rear, Michael Taylor, Martha H. Bosley, Ann L. Dunn, Judy Johnson, Jennifer Ottoway, Larry Thach, Sophia Bottom, Monty Durbin, Jerry Johnson, Steve Oubre, Zach Thom, Michael W. Bowers, Brock Edem, Emmanuel Jones, Cody B. Parke, Lindsey Thompson, Carol A. Bowersox, Elizabeth Ellis, Ronnie Jones, Jake Patton, Blake Thompson, John M. Bowman, Andrew M. Ensinger, Derek Jones, William M. Paysinse, Megan Thompson, R. Scott Branesky, Joanne Evans, Tristin Jordan, Courtney Pearson, Jackie Timberlake, Sarah J. Branscum, David A. Evans, Valerie Michelle Kalsu, J. Robert Perry, Jessica Tinney, Mike Brewer, Mike Fagala, Lauren Kay, Lauren Peterson, Brenda Tolbert, Mary Bromer, Thomas Fennell, Angie Kearney, David L. Pierce, Amy J. Tran, Kelly Brooks, Michael Fiebiger, Karissa Kelley, Gerald E. Pignato, Jerry Tran, Kim Brown, Carey Fields, Roberta Kelley, Jo A. Plourde, Ross Trautmann, Victor Brown, Glenda Fischer, Amy Sherry King, Eric R. Pool, Hillari Travis, Rex Bruening, Brandee Folger, Mark King, Jim Portmen, John Trudgeon, Jon H. Buchanan, Brandon Ford, Michael R. Kolker, Paul Powell, Ashley Turner, J. Eric Buergler, Whitney E. Fortune, Diana S. Krathigo, Jake Powell, Courtney D. Turner, Jacqueline Burnett, LeAnne Fraley, Jerry Larby, Nick Powell, Robert P. Van Meter, David W. Burstein, Daniel R Freedman, George LaRean, J. Leslie Price, Beth Van Meter, Kelly, non-attorney Butler, David Fugilt, F. Andrew Larimore, James K. Pritchett, Jr., E. Edd Vanhooser, Lindsey Butler, Staci Gaither, Lynn Lawrence, James K. Puckett, Tony G. Vaughn, Carrie Butts, Ben Gardner, Lawn B Leffel, Lance E. Ramblin, Kathaleen Vincent, Evan Caldwell, Kim Gayer, Cody Neil Leigh, Chris Ratliff, Kevin Walding, Andrew L. Campbell, James A. Geister III, Charles E. Leonard, Ryan Redman, Caleb Walker, L. Mark Carpenter, Laura Giles-Caison, Lisa LePoint, Janelle Reed, Brenda Walker, M. Kevin Carson, Joe Gilley, Sandy Lester, Andy Remillard, Carri Walsh, Micky Caruso, Toni Gleim, Kristi Lindsey, Lauren Reneau, Dale Walters, Joseph Cheney, James M. Glover, Samuel J. Lopez, Fernando Renegar, Erin Ward, C. Todd Childres, Anthony T. Godinez, Dearra Loving, Susan Rice, Douglas A. Warner, Kimberly K. Christensen, Adam Goeres, Dawn M. Lynch, Leslie L. Roberson, Brad Watts, Charles J. Christensen, B. Gail Goldman, Edward Madock, Steve Robert D. Baron Watts, Ellen Martin Christensen, Cathy Goodman, Jimmy Maloan, Michael T. Roberts, John Weathers, Sabre Christensen, Clay Gorden, Cara Manning, Ashley S. Robertson, Rob Webb, Drew D. Christensen, Wade Gordon, Kevin Margo, Robert Roduner, Kathleen Weller, Julie Clark, Curtis Gossett Parrish, Sarah L. Marrs, Pete Rogers, Jason Whatley, Nathan Clark, Steven Gravitt, Nancy Martin III, Matthew D. Rogers, Patricia A. White, Amy D. Clemens, R. Lyle Gray, Elizabeth Masters, Paige Rooney, Erin J. Wiggins, John Clutts, Sarah Gridley McAlester, J. Mark Rowland, Geremy Willett, David Coldwell, Pam Grotta, Jeff McAlister, Karla Rupert, Kurt Williams, Kimberly Coleman, W. Chris Gruber, Tom McAlister, Lloyd G. Rush, Sherry Williams, Robert Combs, Eric Gunn, Andy McCabb, Stephen Sampson, Megan Willis, Brett Conrad, Candice Guzzy, J. Christin McCampbell, Robert Sanders, Staria Wilson, Ryan Cook, Lance C. Haley, Alex McCullough, Chris Sayder, Thomas B. Winter, Chip Cooper, Tom Hall, Adam McCune Schoenhals, Jonathan Womack, Greg Corbyn, George Hampton, Joe M. McMillin, Michael S. Schwoerke, Nedra Wood, Elizabeth Cox, Angie Hanan, Jason McPhail, David Scott, Elizabeth A. Woody, C. Russell Croll, Billy Hance, Sarah Medley III, William C. Sepkunitz, Jerome S. Wotham, Michelle Crooks, Michael Harris, Karen Merkley, Nick Sewell, Randy Young, Lori Cutaia, Amber Hart, Philip Metcalfe, Greg Shadid, Randel Zelbst, John P. Damnianoska, Trena Heatly, John Meter, Heary A. Sharpe, Anden

COMMITTEE TO KEEP JUDGE THOMAS E. PRINCE - 2014 • DAVID DONCHIN, CHAIRMAN • DAVID VAN METER, CO-CHAIR • LLOYD McALISTER, TREASURER • P.O. BOX 1569, EDMOND OK 73083

590 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 BAR FOUNDATION NEWS How the OBF Operates and Who Makes the Decisions By Dietmar K. Caudle

The Oklahoma Bar Founda- Periodically the OBF will become Community Fellows. tion has operated as a success- receive charitable donations Law firms include the Garrett ful IRS code 501(c)(3) nonprofit from other foundations, testa- Law Center of Tulsa and most corporation for 68 years by rais- mentary bequests from estates recently Bass Law of Oklahoma ing and distributing funds to or simply donations from indi- City and El Reno. Our flagship worthy, vetted organizations viduals who recognize the law- financial institution, Bank of that provide law-related ser- related good deeds achieved Oklahoma, is the newest Com- vices to Oklahoma citizens through the OBF. munity Fellow. Community who otherwise could not afford Fellow participation adds to The newest category of OBF them. The OBF is the third available grant funds. Fellows is the Community Fel- oldest bar foundation in the low Program for non-individu- Both the OBF and the OBA nation, founded in 1946 by a als. The OBF has been ener- select lawyer candidates from group of Oklahoma lawyers. gized by OBA sections such as across the state to serve on Your OBF has awarded more the Family Law Section and the Board of Trustees. This than $11 million to Oklahoma most recently the Litigation 26-member body makes deci- grant programs that fall within Section who have quickly sions which affect the funding, the law-related mission of the OBF. All of Oklahoma’s 77 counties and many of its citi- zens have benefitted from OBF Honors Two OBF grants. Community Fellows HOW DECISIONS Bank of Oklahoma is the first Oklahoma financial institution honored for ARE MADE going above and beyond eligibility requirements to unite with the Oklahoma Grants fall into two types: Bar Foundation and lawyers by taking a leadership role in helping to provide regular OBF grants, for law- much needed law-related services to needy Oklahomans. BOK has continu- related charitable programs ously offered premium services and IOLTA rates to ensure more funding is available for critically needed legal services throughout the state. IOLTA and projects, and the OBF trust accounts with the BOK produce increased revenue through the premi- Court Grant Program, designed um rates offered to attorneys and law firms. The bank has worked with to benefit Oklahoma district Trustees to further develop investment mechanisms throughout the and appellate courts for tech- downturn in nology expenditures not fund- the economy. ed through existing sources. BOK is an hon- Funding for grants is derived ored member from donations from lawyers of the new OBF and other concerned supporters Community Fellows Pro- of the law who are Fellow gram at the members and the Community highest recog- Fellows Program for organiza- nition level of Accepting the Community Fellow Award from tions and groups. Additional Patron. President Dietmar K. Caudle on behalf of the funding comes from statewide continued on Bank of Oklahoma is Senior Vice President of BOK cy pres awards, IOLTA interest next page… Financial Ellen D. Fleming and portfolio managers from lawyer trust accounts and Kris Neuhold and Joe Ray. interest earned on investments.

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 591 OBF offices whenever you are Bass Law, with offices in Oklahoma City and El Reno, focuses on in the building. serving the needs of clients in the areas of litigation, business planning, estates and trusts, real estate, and oil and gas matters. Operations Each year, the president des- Director and attorney Gabe Bass states, “Our firm strives to provide ignates certain committee and legal solutions to help good people solve problems and achieve goals in task force assignments to business and in life, and being an OBF Community Fellow helps our firm ensure the mission of the OBF to better fulfill this philosophy. Bass Law challenges all law firms and is being observed. A discussion community-minded organizations to of current task force committees become active for 2014 is included in this arti- members of the cle, and the standing OBF com- OBF Community mittees will be the subject of an Fellows program so upcoming bar journal article. that more Oklaho- The newly formed OBF Video mans will receive Story Task Force, the IOLTA vital law-related Task Force, the External Rela- services.” Bass tions Task Force and the Long Law is an honored Range Planning Task Force member of the new OBF Community comprise our 2014 OBF task Fellows Program forces. at the highest rec- Accepting the OBF Community Fellow The OBF Video Story Task ognition level of Award from President Dietmar K. Caudle on Force is co-chaired by Jennifer Patron. behalf of Bass Law is A. Gabriel Bass. Castillo and Roy Tucker. The task force is charged with pro- ducing a video which will investment of the funding OBF. The foundation offices are depict OBF grantees and their and, ultimately, awards of the located on the second floor of success stories, as well as inter- meritorious OBF grants. Each the Oklahoma Bar Center and weaving the OBF story with designated Trustee is a volun- members are invited to visit the those we fund. The ultimate teer and a fiduciary for the objective is to educate Oklaho-

2014 Oklahoma Bar Foundation Board of Trustees: (Seated from left) Executive Director Nancy Norsworthy; Past President Susan B. Shields, Oklahoma City; President Dietmar K. Caudle, Lawton; Vice President Millie Otey, Tulsa; and Secretary/Treasurer Kevin R. Donelson, Oklahoma City. Trustees: (standing from left) OBA President Renée DeMoss, Tulsa; OCU School of Law Dean Valerie Couch, Oklahoma City; A. Gabriel Bass, Oklahoma City; Jeffery D. Trevillion, Oklahoma City; Briana J. Ross, Tulsa; OBA President-Elect David A. Poarch Jr., Norman; Alan Souter, Tulsa; Roy D. Tucker, Muskogee; Steven L. Barghols, Oklahoma City; Brandon P. Long, Oklahoma City; Stephen D. Beam, Weatherford; Jennifer M. Castillo, Oklahoma City; Guy P. Clark, Ponca City; Kara I. Smith, Oklahoma City; Amber Peckio Garrett, Tulsa; Brett D. Cable, Mc- Alester; Donna L. Smith, Vinita; G. Patrick O’Hara Jr., Edmond; and Deanna Hartley Kelso, Ada. Not photo- graphed: OBF President-Elect Jack L. Brown, Tulsa; Tanya S. Bryant, Oklahoma City; and OBA Executive Director John Morris Williams, Oklahoma City.

592 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 ma lawyers and the public and the legal community as a the best it can be. With your about what the OBF represents whole. The task force provides assistance as an OBF Fellow and how everyone can become a written report of recommen- and the assistance of groups involved. dation to the Board of Trustees you belong to as Community which includes updates to Fellows, the OBF dream of The newly formed IOLTA action plans and implemen- changing Oklahoma lives will Task Force is co-chaired by tation of those plans. be achieved. Gabe Bass and Alan Souter. Their task is to monitor com- The Long-Range Planning peting IOLTA rates and recom- Task Force chaired by Judge mend ways to increase IOLTA Millie Otey recommends a bank rates to become more three- to-five-year strategic plan favorable to the OBF and the which will guide the OBF in its work we accomplish as a result mission to provide law-related of this funding. The task force charitable funding and to edu- WWW.OKBARFOUNDATION.ORG will visit with banks across the cate the public about the law. state and prepare a report with The task force explores the fore- recommendations to the Board seeable future of the OBF and About The Author of Trustees. lays out yearly plans which the OBF intends to encompass as it Dietmar K. The External Relations Task works towards attainment of the Caudle prac- Force is chaired by former strategic plan. The ultimate tices in Law- OBA President Stephen Beam, objective is to document future ton and serves and the mission is to explore guidelines for the Board of as OBF Presi- enhancement of OBF rela- Trustees. dent. He can tionships with the OBA, law be reached at schools, courts and the banking All of the current OBF task d.caudle@ community to enhance public forces have one special pur- sbcglobal.net. perception of the OBF, lawyers pose, which is to make the OBF

Tributes and Memorials A simple and meaningful way to honor those who have played an important role in your life or whose accomplishments you would like to recognize. The OBF will notify your tribute or memorial recipient that you made a special remembrance gift in their honor or in memory of a loved one. Help the OBF meet its ongoing mission - lawyers transforming lives through the advancement of education, citizenship and justice for all. Make your tribute or memorial gift today at: www.okbarfoundation.org/make-a-contribution Or if you prefer, please make checks payable to: Oklahoma Bar Foundation P. O. Box 53036 Oklahoma City OK 73152-3036 Email: [email protected] • Phone: 405-416-7070

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 593 PROGRAMS April 11 Oklahoma City, OK Oklahoma Bar Center 1901 N. Lincoln Blvd.

Planning for Disability and Special Needs Sponsored by the Heritage Trust Company & a Private Foundation in Honor of Justice Marion Opala Program Planner/Moderator: Donna J. Jackson, Donna J. Jackson, Attorney at Law, PC, Oklahoma City Topics Covered Disability and Special Needs Provisions That Every Estate Planner and Elder Law Attorney 1 Needs to Know: How Trustees Approach the Provisions 2 Case Law Update and Discussion of Attorney Fees 3 Special Needs Planning and the Affordable Care Act: Planning has Changed! 4 Medicare Set Aside Trust 5 Ethical Issues: When Lawyers Become Disabled or Die! 6 Reception following adjournment. The seminar starts at 9:00 a.m. Approved for 6 hours MCLE / 1 Ethics. 5 hours TXMCLE/.75 ethics and adjourns at 3:15 p.m. $150 for early-bird registrations with payment received at For program details, log on to: least four full business days prior to the seminar date; $175 www.okbar.org/members/cle for registrations with payment received within four full busi- ness days of the seminar date. This program will be webcast. For details, Receive a $10 live program discount by visit oba.peachnewmedia.com registering online at www.okbar.org/cle Note: Tuition for webcast varies from live program tuition.

594 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 BOARD OF GOVERNORS ACTIONS Meeting Summary

The Oklahoma Bar Association Southern Conference of Bar of year activities and 2014 plan- Board of Governors met at the Presidents meeting in Oklaho- ning and communicated with Sheraton Hotel in Oklahoma City ma City was the highlight of Women in Law Committee on Saturday, Jan. 11, 2014. his presidential year. leadership for 2014 planning. Governor Jackson reported he REPORT OF THE REPORT OF THE PRESIDENT EXECUTIVE DIRECTOR attended the December board meeting and Garfield County President DeMoss reported Executive Director Williams Bar Association Christmas she attended the December reported he attended an OBA party. Governor Smith report- board meeting, Board of Gov- staff meeting, planning confer- ed he attended the December ernors holiday gathering, new ences with President DeMoss board meeting and holiday board member orientation, and a meeting with OBF offi- party. Governor Stevens OAMIC meeting, swearing- cers and Bank of Oklahoma reported he attended the in ceremony and planning representatives regarding rate December board meeting and meetings for Women in Law changes. Cleveland County Bar Associa- Committee and Law Schools tion Christmas party. Governor BOARD MEMBER REPORTS Committee. She spoke at the Thomas reported she attended OCU law school graduation, Governor Dexter reported the December board meeting, wrote the Oklahoma Bar Jour- she attended the ABA training board Christmas party and nal president’s article, made relating to issues involving the Washington County Bar Asso- additional OBA and commit- judiciary, the December board ciation Christmas party. She tee Board of Governors liaison meeting, orientation for new participated in a planning appointments and worked on board members and the Tulsa meeting for the newly formed planning for 2014 OBA events County Bar Association Bench Young Professional Ladies and projects. She thanked Past and Bar Committee meeting. group in Bartlesville. Its pri- President Stuart for making Governor Gifford reported he mary focus is to provide adult 2013 an outstanding year. attended the Oklahoma Coun- women mentors for young high school women and to REPORT OF THE ty Board of Directors meeting VICE PRESIDENT and was a CLE presenter at guide them to become respon- the “Tenth Circuit Year in sible individuals by teaching Vice President Shields Review” for the Federal Bar positive character traits, career reported she attended the Association. He said his term development, leadership and December board meeting, as Military and Veterans Law life skills so they can make training for new board mem- Section chairperson has ended, ethical choices and achieve bers, Oklahoma County Bar but wanted to remind board their full potential. Association December meeting members the OBA is planning YOUNG LAWYERS and holiday reception. another CLE seminar for DIVISION REPORT REPORT OF THE Heroes Project volunteers PAST PRESIDENT soon. Governor Hays reported Governor Hennigh reported she attended the December the YLD orientation will be Past President Stuart report- board meeting, board Christ- held next Saturday at the ed he attended the December mas party and OBA Family Oklahoma Bar Center. He board meeting, holiday party Law Section monthly meeting reminded board members they and assisted in the transition for which she prepared and are always invited to YLD to a new president. He presented the budget report. activities. He said he is work- received a card from a state She communicated with OBA ing to confirm meeting dates bar president, who said the FLS leadership regarding end for the coming year. He

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 595 attended the December Board CHILD DEATH BOARD OF GOVERNORS of Governors meeting and REVIEW BOARD LIAISONS TO OBA training for new members. COMMITTEES The board approved Presi- COMMITTEE LIAISON dent DeMoss’ recommenda- President DeMoss shared a REPORTS tion to nominate Gail Stricklin, list of committees and the Oklahoma City, M. Courtney board members assigned to Governor Hays reported the Briggs, Oklahoma City, and serve as liaisons. She encour- Tulsa County Bar Foundation Judge Deborah C. Shallcross, aged board members to stay participated in a community Tulsa, to the Child Death on top of committee activities. service project, Santa Brings a Review Board for its selection Lawsuit, which is a profes- LEGAL ETHICS ADVISORY of one board member. It was sional clothing drive designed PANEL (OKC PANEL) noted the board is set to expire to help people have the proper July 1, 2014, and pending leg- President DeMoss appointed attire as they try to establish islative re-enactment the term Leasa M. Stewart, Oklahoma themselves in a professional will expire in 2017. City, to the Oklahoma City career. They also teamed up panel. The term will expire with Lawyers Fighting Hun- PROFESSIONAL Dec. 31, 2016. The panel will ger to raise money for the less RESPONSIBILITY be losing Governor Drum- fortunate for the holiday sea- TRIBUNAL mond, who is moving to son. Turkeys and other food The board approved Presi- Texas. He explained how items for a traditional Thanks- dent DeMoss’ recommenda- the panel operates. giving dinner were handed tion to appoint Gerald L. out. A total of $4,700 was UNIFORM LAW Hilsher, Tulsa, to replace Gov- donated for the food drive. COMMISSION ernor Dexter on the PRT. The She also said the OBA Family term will expire June 30, 2015. President DeMoss will sub- Law Section held its first meet- mit the names of Ryan Timo- ing of the year yesterday and BOARD OF EDITORS thy Leonard, Oklahoma City, will be donating $2,000 to the and Don Gardner Holladay, Lawyers Helping Lawyers The board approved Presi- Oklahoma City, to the gover- Foundation and $675 to the dent DeMoss’ recommenda- nor for consideration of one YLD to help fund the items for tion to appoint Shannon Lee appointment to the commis- the bar examination survival Prescott, Okmulgee, as an sion (formerly known as the kit the division puts together associate editor to represent National Conference of Com- and distributes to students District 7 on the Board of Edi- missioners on Uniform State taking the exam. tors. The term will expire Dec. 31, 2016. Laws). The term will expire REPORT OF THE June 1, 2017. GENERAL COUNSEL CLIENTS’ SECURITY FUND COMMITTEE NEXT MEETING General Counsel Hendryx passed out a handout giving The board approved Presi- The Board of Governors met the board an update on litiga- dent DeMoss’ recommenda- on Feb. 28, 2014, at the Okla- tion against the OBA. She tion to appoint P. Luke Adams, homa Bar Center in Oklahoma reported all cases are a result Clinton, to the Clients’ Securi- City. A summary of those of disciplinary actions and ty Fund Committee. actions will be published after nothing is active at this time. the minutes are approved. The next board meeting will be at 10 a.m. Friday, March 21, at the Oklahoma Bar Center.

596 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 ACCESS TO JUSTICE

Rethinking Delivery of Legal Services: Medical-Legal Partnership Model By Teresa Rendon

When physicians think grams in the Sooner state, the about attorneys, the first thing Every year newest one being a project that may come to mind is linking Legal Aid and Variety medical malpractice. When throughout the nation, Care. Variety Care is a non- attorneys think about doctors, medical-legal profit community health cen- they may envision them as ter consisting of four rural and witnesses in a tort or social partnerships impact six metro-area clinics whose security case. The medical- mission is to provide quality legal partnership approach the lives of an affordable healthcare to indi- views both these profession- estimated 54,000 viduals having difficulty. This als as partners improving fledgling project commenced patient/client well-being. Dr. children, elderly, in April 2013 and has already Barry Zuckerman, Boston veterans and patients made a difference in the lives medical school professor and of its patient/clients. creator of the medical-legal with chronic Lorena was referred by Vari- partnership model, saw the ety Care doctors. She and her need for cures to patient ills illnesses. husband, Gerardo, took their that exceeded the gloved three children to Variety Care grasp of the medical world. to be treated for severe flea Children living in apart- thinking is the basis for the bites which peppered their ments squirming with roaches medical-legal partnership arms and legs causing itching needed both medical and legal design which coordinates the and fever. During the physi- assistance. Immigrant women efforts of attorneys and medi- cian’s interview, Lorena and cowering in a chaotic and cal professionals working with Gerardo told their story of stressful atmosphere where the same populations. having put down a deposit on domestic violence raged, Every year throughout the a rental home and then return- needed more than treatment nation, medical-legal partner- ing to move in. As they, chil- for their injuries. Disappoint- ships impact the lives of an dren in tow, began by putting ed applicants being denied estimated 54,000 children, some of their belongings in Social Security benefits based elderly, veterans and patients the garage, the children start- on disability longed for legal with chronic illnesses. Prolif- ed to complain of being bitten representation in addition to a erating around the U.S., the by something. Lorena and doctor’s well-written report. medical-legal model dots the Gerardo soon realized that the The legal profession has its national map in 125 hospitals, garage was jumping with own cures for remedying 123 government health cen- fleas. The first thing they tried uninhabitable rental housing, ters, 99 health centers, 26 to do was get their security protecting victims of domestic medical schools, 36 Legal Aid deposit returned to them, a violence and representing cli- offices and 34 law schools. gesture that was met with ents in government agency Legal Aid Services of Oklaho- derision by the landlord. Their hearings. This manner of ma Inc. boasts four such pro- second action was to run to

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 597 Variety Care. The clinic’s Latonda, a Variety Care link arms and strive to onsite Legal Aid attorney was patient with hypertension and improve the lives of needy able to speak to them in their diabetes, was worried about Oklahomans. own language and get the her debt situation. She had Sources: deposit returned. Gerardo and one creditor call her and speak Lorena were then able to rent extremely disrespectfully to www.medical-legal a flea-free dwelling. her demanding that she pay partnership.org/movement up or they would take her Alice was a stressed grand- house. Latonda, after her Tobin Tyler, Elizabeth et al., ma with a seemingly insur- check-up with the Variety editors, Poverty, Health and mountable problem. She had Care doctor, was channeled to Law: Readings and Cases for four of her 10 grandchildren the Legal Aid attorney who Medical-Legal Partnership, with her because the chil- told her she was collection- Carolina Academic Press, Dur- dren’s parents were living in proof because she had no ham, North Carolina, 2011. chaotic, drug-filled lifestyles. property and no income. The She understood through talk- attorney also got Latonda’s ing to DHS workers that if she credit history corrected to did not take the children, the remove one debt that wasn’t state would. Summer was even hers. About The Author waning, and the children were as eager to start school as I am the Legal Aid attorney Teresa Alice was to have a break. The responsible for the medical- Rendon, local school, however, had legal partnership between third genera- other ideas. The principal Legal Aid Services of Oklaho- tion Oklaho- flatly turned them away, ada- ma and Variety Care. As a man and mant that the parents would 20-year veteran of Legal Aid. enrolled have to enroll their own kids I believe that one key to this member of or that Alice would have to project’s success is the close the Chero- get a guardianship of the four- relationship being developed kee Nation, some. During the children’s with the medical profession- has been an attorney at Legal routine physicals, Alice als. Another key is the fact Aid Services of Oklahoma Inc. learned that legal help was that patients at Variety Care for more than 20 years. The available to her at Variety are made to feel at home and Oklahoma City University Care. There she not only got trust and respect their doctors School of Law graduate is also the kids ready for school with and other healthcare profes- an adjunct professor in OCU´s their required shots, but she sionals. Patients are more like- Justice Studies Department and also obtained guardianship of ly to listen to their doctors has lived, worked and studied in her grandchildren so that they when they recommend a visit Spain, Mexico, Brazil, Singapore could all return to school. with the embedded attorney. and Nicaragua. Legal Aid to the rescue again. Thus, doctors and lawyers

598 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 YOUNG LAWYERS DIVISION

Lessons Learned from Scandal By Kaleb Hennigh

“Those who fail to learn edge or historical perspective tion and why our judicial and from history are doomed to to completely understand and legislative predecessors sought repeat it,” Sir Winston appreciate the incorporation of a method to ensure it never Churchill’s timeless words the JNC to the Oklahoma judi- happened again. The Oklaho- over the years have been used, cial selection process. So I fol- ma Supreme Court scandal of perhaps overused, by politi- lowed the advice of a fellow the 1960s wasn’t that long ago cians, teachers, businessmen governor on our board and in our history. The change to and others encouraging people went to the source, the late Oklahoma’s Constitution in to learn from past mistakes to Judge William A. Berry, retired 1967, the ultimate implementa- ensure former transgressions justice and former chief justice tion of the JNC in 1969, and are not repeated. These words of the Oklahoma Supreme incorporation of merit reten- have been spoken numerous Court via his book Justice for tion ballots are all a direct times throughout my life Sale, The Shocking Scandal of result of the scandal and Okla- whether in school, profession- the Oklahoma Supreme Court. homa’s answer to finding and al workshops, by opposing maintaining qualified judges counsel, to opposing counsel, to help ensure our justice sys- and now I’ve managed to tem maintains the integrity incorporate it into this seg- and stability that is required. ment of the Oklahoma Bar Jour- I think we have a It is not necessary for all nal designed to provide responsibility to help of you to jump on Amazon, updates and insight as to the search for Justice Berry’s book ongoing activity of the OBA educate those in our and dive into his story to learn Young Lawyers Division. It is about the scandals and corrup- relevant to so many things in community about our tion outlining the disgrace of life, as it is here, and certainly judiciary and the three Supreme Court judges no lecture needs be given to and the fall of a legal family this audience. After all, our manner in which they (although I recommend it), but profession requires us through it is important as practitioners jurisprudence to know the are appointed and to understand how our judi- theory and history of the elected. cial nominating process works. laws which we navigate We are all stewards of our our clients through on a profession and need to have daily basis. answers when friends, col- When President DeMoss My eyes were opened to the leagues and community and tasked the OBA Board of Gov- story of the sordid events of a civic leaders come to us with ernors and sought the assis- few corrupt judges who failed questions about upcoming tance of the YLD to educate to follow judicial canons and Oklahoma House or Senate the public about Oklahoma’s allowed political pressures, bills calling for changes to our process of selecting judges and influences and flat out cash judicial selection process. the Judicial Nominating Com- bribes to corrupt Oklahoma’s Oklahoma attorneys must mission, I believe this quote in judicial process at its highest have perspective and a work- fact was incorporated again. level. I learned about how ing knowledge of merit reten- However, this time I wasn’t these bad actions were tion and the JNC to provide sure I had either the knowl- brought to the public’s atten- answers to those who might

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 599 be looking to vote one way or TO LEARN MORE another or who have questions About The Author To learn more about how for their senator or congress- judges are selected in Okla- Kaleb man. I think we have a respon- homa or to obtain some facts Hennigh sibility to help educate those about judicial selection, practices in in our community about our I encourage you to visit Enid and judiciary and the manner in www.courtfacts.org and also serves as which they are appointed and check to see if the Oklahoma the YLD elected. Now I’m not advocat- Bar Association has scheduled chairperson. ing for one bill or another, nor a judicial town hall in your He can be do I believe our current judi- county. contacted at cial selection process couldn’t [email protected]. use some improvement, I’m simply encouraging you to learn more and publicly share this process.

John R. Justice (JRJ) Student Loan NOTICE OF Repayment Program for Public BANKRUPTCY JUDGE VACANCY WESTERN DISTRICT OF OKLAHOMA Defenders and Prosecutors The U.S. Court of Appeals for the The Oklahoma District Attorneys Council Tenth Circuit is seeking applications (DAC) is pleased to announce that DAC has been designated by the U.S. Department of for a bankruptcy judgeship in the Justice to award and disburse loan repayment Western District of Oklahoma. assistance through the John R. Justice (JRJ) Bankruptcy judges are appointed to Loan Repayment Program. The State of Okla- 14-year terms pursuant to 28 U.S.C. §152. homa has received a total of $52,286.40 to be The position is located in divided among eligible full-time public de- Oklahoma City. fenders and prosecutors who have outstand- ing qualifying federal student loans. A copy of the full public notice and For more information about the JRJ Student application can be obtained from the Loan Repayment Program and how to apply Tenth Circuit website at go to http://www.ok.gov/dac/. Scroll down www.ca10.uscourts.gov under “Jobs” or to “Newsroom and Links” and click on the by calling the Office of the Circuit “John R. Justice Student Loan Repayment Pro- Executive at 303.844.2067 and asking to gram” link. Applications will be available speak with Judicial Resources. online on March 5, 2014. Completed applica- tion packets must be submitted to the DAC and Applications must be received on or postmarked no later than April 11, 2014. before March 28, 2014.

600 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 CALENDAR OF EVENTS March 17 OBA Litigation Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with OSU Tulsa, Tulsa; Contact David VanMeter 405-228-4949

21 OBA Professional Responsibility Commission meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Dieadra Goss 405-416-7063

OBA Board of Governors meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact John Morris Williams 405-416-7000

24 OBA Juvenile Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Tsinena Thompson 405-232-4453

25 OBA Day at the Capitol; 10 a.m.; Oklahoma Bar Center/Oklahoma State Capitol; Contact John Morris Williams 405-416-7000 3 OBA Lawyers Helping Lawyers discussion group Ruth Bader Ginsburg Inn of Court; 5 p.m.; meeting; 6 p.m.; Office of Tom Cummings, 701 NW Oklahoma Bar Center, Oklahoma City; Contact 13th St., Oklahoma City; RSVP to Kim Reber kimreber@ Donald Lynn Babb 405-235-1611 cabainc.com

26 OBA Financial Institutions and Commercial Law OBA Lawyers Helping Lawyers discussion group Section meeting; 12 p.m.; Oklahoma Bar Center, meeting; 6 p.m.; University of Tulsa College of Law, Oklahoma City and OSU Tulsa, Tulsa; Contact John Rogers Hall, 3120 E. 4th Pl., Rm. 206, Tulsa; RSVP Eric Johnson 405-602-3812 to Kim Reber [email protected]

OBA Work/Life Balance Committee meeting; 4 OBA Board of Bar Examiners meeting; 9 a.m.; 12 p.m.; Oklahoma Bar Center, Oklahoma City with Oklahoma Bar Center, Oklahoma City; Contact Oklahoma teleconference; Contact Sarah Schumacher Board of Bar Examiners 405-416-7075 405-752-5565 OBA Alternative Dispute Resolution Section 27 OBA Women in Law Committee meeting; 12 p.m.; meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma Oklahoma Bar Center, Oklahoma City with TU College of City with OSU Tulsa, Tulsa; Contact Jeffrey Love Law, Tulsa; Contact Allison Thompson 918-295-3604 405-285-9191

28 Oklahoma Bar Foundation luncheon and 8 OBA Diversity Committee meeting; 12 p.m.; meeting; 11:30 a.m.; Oklahoma Bar Center, Oklahoma Oklahoma Bar Center, Oklahoma City with tele- City; Contact Nancy Norsworthy 405-416-7070 conference; Contact Ruth Addison 918-574-3051

April Licensed Legal Intern meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Candace Blalock 405-238-0143 1 OBA Government and Administrative Law Practice Section meeting; 4 p.m.; Oklahoma Bar 11 OBA Law-related Education Committee meeting; Center, Oklahoma City with teleconference; Contact 12 p.m.; Oklahoma Bar Center, Oklahoma City with Scott Boughton 405-717-8957 teleconference; Contact Suzanne Heggy 405-556-9612

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 601 OBA Family Law Section meeting; 3 p.m.; New Admittee Swearing-In Ceremony; Supreme Oklahoma Bar Center, Oklahoma City with OSU Tulsa, 22 Court Courtroom; Contact: Board of Bar Examiners Tulsa; Contact M. Shane Henry 918-585-1107 405-416-7075 OBA Young Lawyers Division meeting; 10 a.m.; 12 OBA Communications Committee meeting; Oklahoma Bar Center, Oklahoma City; Contact Kaleb 12 p.m.; Oklahoma Bar Center, Oklahoma City with Hennigh 580-234-4334 teleconference; Contact Dick Pryor 405-740-2944 Licensed Legal Intern Swearing-In Ceremony; 14 OBA Work/Life Balance Committee; 12 p.m.; 12:45 p.m.; Judicial Center, Oklahoma City; Contact 23 Oklahoma Bar Center, Oklahoma City; Contact Wanda Reece 405-416-7000 Sarah Schumacher 405-752-5565 OBA Bench and Bar Committee meeting; 15 OBA Leadership Academy graduation; 2 p.m.; 12 p.m.; Oklahoma Bar Center, Oklahoma City with 24 Oklahoma Bar Center, Oklahoma City; Contact OSU Tulsa, Tulsa; Contact Judge David B. Lewis Heidi McComb 405-416-7027 405-556-9611 OBA Board of Governors meeting; 3 p.m.; Idabel 25 16 OBA Law-related Education Attorneys in the Chamber of Commerce, 7 SW Texas St., Idabel; 10:30 a.m.; Oklahoma Bar Classroom training; Contact John Morris Williams 405-416-7000 Center, Oklahoma City; Contact Suzanne Heggy 405-556-9612 Lawyer Helping Lawyers Assistance Program Foundation and Committee meeting; 12 p.m;

OBA Clients’ Security Fund Committee Oklahoma Bar Association, Oklahoma City with 2 p.m.; Oklahoma Bar Center, Oklahoma meeting; teleconference; Contact Hugh Hood 918-856-5373 City with OSU Tulsa, Tulsa; Contact Micheal Salem 405-366-1234 OBA Juvenile Law Section meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City with

18 OBA Professional Responsibility Commission teleconference; Contact Tsinena Thompson 9:30 a.m.; Oklahoma Bar Center, Contact meeting; 405-232-4453 Dieadra Goss 405-416-7063 OBA Women in Law Committee meeting; 29 OBA Access to Justice Committee meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with 10 a.m.; Oklahoma Bar Center, Oklahoma City with University of Tulsa College of Law, Tulsa; Contact OSU Tulsa, Tulsa; Contact Laurie Jones 405-208-5354 Allison Thompson 918-295-3604 OBA Rules of Professional Conduct Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with OSU Tulsa, Tulsa; Contact Paul Middleton 405-235-7600

602 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 FOR YOUR INFORMATION

Town Hall Discussion to Increase Public Understanding of Courts Second meeting: Thursday, March 27 Custer County Courthouse, Arapaho • 5:30 p.m. • Public invited The OBA is continuing its public education initiative aimed at directly engaging Okla- homans to promote understanding of the third branch of government as well as the judicial selection process in our state. The next town hall meeting will be cosponsored by the Custer County Bar Association and will take place Thursday, March 27, at the Custer County Courthouse in Arapaho. The event begins at 3:30 p.m. with up to two hours of CLE focused on ethics as well as judicial selection issues. At 5:30 p.m. lawyers are invited to stay as the informal public discussion and reception begin. The event will be attended by bar and The OBA partnered with the Canadian County Bar civic leaders as well as members of Association for its first public town hall meeting. the judiciary. Guests are encouraged. Non- The discussion and CLE took place in El Reno in lawyers are encouraged to RSVP to info@ February and was well attended by both lawyers courtfacts.org, and more information is and laypersons. available at www.courtfacts.org.

Suzanne Heggy of Yukon, OBA President Renée DeMoss of Tulsa and former JNC member Kimberly Fobbs of Tulsa served as speakers during the town hall meeting.

Leadership Academy

The fourth OBA Leadership Academy recently held its last session, which focused on diversity, inclusion and community service. The evening painting activity showcased the diversity and uniqueness of this special group of future bar leaders. The class will graduate April 24.

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 603 Holland Hall Upper School Wins Mock Trial Championship Holland Hall Upper School Red Team defeated Clinton High School Gold Team in the final round of competition to claim the 2014 Oklahoma High School Mock Trial Championship. The final round was held March 4 at the OU Law Center in Norman. The two teams argued a case that focused on a first-degree murder of a high school student by a classmate. Teams are paired with volunteer attorney coaches; Holland Hall’s team is coached by Michon Hughes and Clint Hastings, while Clinton’s attorney coach is Judge Jill Weedon. “Holland Hall hasn’t competed in over a decade,” said Ms. Hughes. “We started in early November and Clint and I realized we had a special group of students who think quickly on their feet, so it was up to us to teach them evi- dence and trial procedure. They wanted to work every chance they could, which kept us very busy in addition to running our private practices. We fielded two teams, and each team worked ridiculously hard. I’m immensely proud of both of them!”

Holland Hall, a private preparatory school in Holland Hall Red Team celebrates its first-place Tulsa, is now preparing to represent the state at win in the Oklahoma High School Mock Trial the national competition to be held in Madison, Championship. Wis., in May. OBA President Renée DeMoss of Tulsa said, “These students were obviously very prepared for this competition and will represent Oklahoma with confidence and poise at nationals. This program is important because it presents these students with an insider’s view of the workings of our legal system and increases public understanding of the functions of the third branch of government.” The Mock Trial Program is sponsored and funded by the OBA Young Lawyers Division and the Oklahoma Bar Foundation. Nearly 400 judges and attorneys volunteered their time to work with mock trial teams as coaches and to conduct the competitions. Melissa Peros of Oklahoma City serves as YLD Mock Trial Committee chairperson.

Free Discussion Groups Available to Connect With the OBA OBA Members Through Social Media “Maintaining a Strong Recovery Program” will be the Have you checked out the OBA topic of the April 3 meetings of the Lawyers Helping Facebook page? It’s a great way Lawyers discussion groups in Oklahoma City and Tulsa. to get updates and information Each meeting, always the first Thursday of each month, about upcoming events and the is facilitated by committee members and a licensed Oklahoma legal community. Like mental health professional. Note that the time for the our page at www.facebook.com/ Tulsa meeting has changed. The new meeting time is OklahomaBarAssociation. And 6 – 7:30 p.m. at the TU College of Law, John Rogers be sure to follow @OklahomaBar Hall, 3120 E. 4th Place, Room 206. In Oklahoma City, on Twitter! the group meets from 6 – 7:30 p.m. at the office of Tom Cummings, 701 N.W. 13th Street. There is no cost to attend and snacks will be provided. RSVPs to Kim Reber, kimreber@ cabainc.com, are encouraged to ensure there is food for all.

LAWYERS HELPING LAWYERS ASSISTANCE PROGRAM

604 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 OBA Members Raise Funds for OETA OBA volunteers staffed the phone banks at the OETA Festival on March 11, when members called in and donated $7,027 to the state’s public television affiliate. President Renée DeMoss of Tulsa presented a check to the station, which partners with the bar association to produce the annual Ask A Lawyer TV show. The amount donated keeps the OBA at the “Underwriting Produc- ers” donor level which ensures the association’s generosity is recog- From left, OBA Executive Director John Morris Williams, nized in OETA’s monthly “Odys- OBA President Renée DeMoss, OBA member and OETA sey” publication. Many thanks to all spokesperson Kimberly Brasher, and OETA on-air host B.J. those who contributed financial con- Wexler helped bar leaders raise more than $7,000 to support tributions as well as to the 19 OBA public television during OETA Festival 2014 pledge drive. members and staff who volunteered: John Claro Greg James Robert Powell Elizabeth Tennery Craig Combs Mark Koss Jennifer Prilliman Ian Tennery Jerrod Geiger Marty Ludlum Charles Rouse Mary Travis Samuel Glover Ernest Nalagan Ricki Sonders Richard Vreeland Annette Jacobi Ed Oliver 2013 OBA President Jim T. Stuart

OBA Member Resignations The following members have resigned as members of the association and notice is hereby given of such resignation: Velma Marie Erin M. Joe Gary Wayne Sleeper Aaron Reed Triplett Andregg OBA No. 17653 OBA No. 8297 OBA No. 21440 OBA No. 10191 P.O. Box 702287 6100 Ohio Dr., 4705 Old Scioto Trail 1421 S. Urbana Ave. Dallas, TX 75370 Apt. 1512 Portsmouth, OH Tulsa, OK 74112 Jonathan Paul Plano, TX 75024-2625 45662 Cindy Louise Baker Morgan Jason Dean Smith Robert Duane Wilson OBA No. 10723 OBA No. 14427 OBA No. 20335 OBA No. 11574 Route 1, Box 509 Morgan Rose LLC 1952 N. East Ridge P.O. Box 896 Cashion, OK 73016 416 Hungerford Dr., Strafford, MO 65757 Arkansas City, KS Ste. 233 67005 Brandy Kearney Rockville, MD 20850 Chambers OBA No. 17536 Eugene S. Peck 1708 Morningside OBA No. 10433 OBA Member Reinstatement Drive 2555 Grand Garland, TX 75042 Kansas City, MO The following OBA member suspended 64108 for nonpayment of dues or noncompliance Ian Ross Fried William H. Penney with the Rules for Mandatory Continuing OBA No. 21911 OBA No. 10167 Legal Education has complied with the 3640 Old Denton 5945 Zinnia Court requirements for reinstatement, and notice Rd., No. 1305 Arvada, CO 80004 is hereby given of such reinstatement: Carrollton, TX 75007 Mark Pennington Roma René Frolich OBA No. 10926 OBA No. 15767 8319 McNeil Street 5301 S.E. 104th Street Vienna, VA 22180 Oklahoma City, OK 73165

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 605 You are not alone. Thursday, April 3 Topic: Maintaining a Strong Recovery Program Oklahoma City Location 6-7:30 p.m. Office of Tom Cummings 701 N.W. 13th St. Oklahoma City, OK Tulsa Location 6-7:30 p.m. University of Tulsa College of Law John Rogers Hall 3120 E. 4th Pl. Rm. 206, Tulsa

Contact Kim Reber @ 405-840-0231 • [email protected] LAWYERS HELPING LAWYERS ASSISTANCE PROGRAM

606 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 607 BENCH & BAR BRIEFS

for Excellence, founded by moted to vice president of David Boren, recognizes and development and real estate encourages academic excel- counsel. Ms. Conard holds a lence in Oklahoma’s public bachelor’s degree from OSU schools. and a J.D. from TU. on Nicholson II and D. he shareholders of Fellers DKent Myers were among TSnider elected Brent M. oliart, Huff, Ottaway & 52 Oklahoma mentors hon- Johnson as the firm’s next FBottom announces that ored during the second annu- president. Mr. Johnson joined Amy Sherry Fischer was al Oklahoma Mentor Day, the firm in 1996, and has elected president of the Foun- sponsored by the Oklahoma served on the firm’s executive dation of the International Foundation for Excellence committee for the past five Association of Defense Coun- and the David and Molly years. sel. The foundation aims to Boren Mentoring Initiative. he U.S. Senate confirmed educate the public on current The Boren Mentoring Initia- former Oklahoma Con- litigation issues and support tive began in 2006 to promote T gressman Brad Carson as the the integrity of legal systems the growth and development undersecretary of the U.S. globally. of youth mentoring programs Army. Mr. Carson previously in Oklahoma. he Baptist Foundation of served as general counsel to TOklahoma has elected ewoka attorney Glenn the Department of the Army Crowe & Dunlevy attorney WJ. Sharpe was recently and Department of Defense. Julie Stanley to serve on its reappointed as Seminole all Corp. promoted Jan board of directors until 2016. Nation Gaming Commission- (Gaddis) Rodriguez to Ms. Stanley will be serving er at the nation’s general B assistant general counsel and on the audit committee and council meeting in March. the estate stewardship and assistant corporate secretary. promotion committee during Ball Corp. is a Fortune 500 her term. company headquartered in Broomfield, Colo. erald Hilsher of McAfee G& Taft was elected chair- art Fite was reappointed man of the Oklahoma Scenic Bas municipal judge for the Rivers Commission. Mr. City of Muskogee and as dis- Hilsher has served as an trict judge for the Cherokee Nation. Mr. Fite practices OSRC commissioner since his ames C. Daniel announces with the Fite Law Firm in appointment by Gov. Frank the formation of Mediation J Muskogee. Keating in 1998, including Services for Northeastern reappointments by Gov. Brad Oklahoma. Mediation Servic- rowe & Dunlevy Henry and Gov. Mary Fallin. es will primarily serve the Cannounces that Mary The OSRC’s mission is to pro- region of Delaware and Ellen Ternes has joined the tect the Illinois River, Barren adjoining counties. Mr. Daniel firm’s environmental, energy Fork Creek and Flint Creek can be contacted at P.O. Box and natural resources group in northeast Oklahoma. 630, Disney, OK, 74340, by and its litigation and trial atheleen Guzman, pro- phone at 918-625-8962 or by practice group. She holds a Kfessor at the OU College email chris_daniel1951@ bachelor’s degree in chemical of Law, has been named a yahoo.com. engineering from Vanderbilt University and a J.D. from the 2014 Medal for Excellence nited States Beef Corpo- University of Arkansas at Lit- winner by the Oklahoma ration announced that U tle Rock where she graduated Foundation for Excellence. Lynn Conard has been pro- The Oklahoma Foundation with high honors in 1995.

608 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Terrill Corley & Associ- students at Arcada University on medical negligence, seri- E.ates announces that Scott in Helsinki, Finland. His pre- ous personal injury, wrongful Allen has joined the firm. His sentations were “International death and financial crimes. practice will focus on medical Trade Regulations,” “Intercul- aul R. Foster of Norman malpractice, personal injury, tural Trade,” “The EU from presented “Legal Bound- wrongful death and general America’s Perspective” and P aries of the Regulatory Appli- negligence. “Establishing a Business in cation of Dodd Frank” to the the USA.” ellers Snider announces Community Bankers Associa- Fthat Philip R. Feist and aul Catalano, of Hum- tion of Oklahoma at its Win- Fred H. Holmes have joined Pphreys Wallace Hum- ter Leadership Conference in the firm’s Tulsa office. Mr. phreys PC, recently present- Lake Tahoe, Nev. Mr. Foster Feist is an estate planning ed “Foreclosure Defense also moderated a panel of attorney who is also licensed and Modifications after bank regulators from the Fed- to practice in California, the Financial Crisis” to the eral Reserve, the FDIC and Florida, Kansas, Texas and Mayes and Rogers county the OCC which discussed the the U.S. Virgin Islands. Mr. bar associations. current status of Oklahoma Holmes rejoins the firm as banks within national indus- evin Kuhn, of Trigg an of counsel attorney after try trends as well as upcom- O’Donnell LLP, presented working as an intellectual K ing issues to be emphasized “(Lead Us Not Into) Tempta- property counsel for a light- in bank exams in the next 12 tions: The Rules of Profession- ing product developer and to 24 months. al Conduct” at the Catholic manufacturer in California. Lawyers Guild of Colorado ric L. Johnson of the ischard Law PC announc- Seminar. He also presented EOklahoma City office of Res that Daniel V. Carsey “How Both Sides of the Bar Hudson Cook LLP, spoke has joined the firm. Mr. Can Be More Cooperative in recently at the 2013 Banking Carsey graduated from the Discovery” to the Colorado and Commercial Law Update TU College of Law with high- Defense Lawyers Association in Oklahoma. His topic was est honors in 2005. Prior to and Colorado Trial Lawyers “CFPB Updates for the Bank- joining the firm he clerked for Association. Additionally, he ing Lawyer.” Mr. Johnson Judge Earl S. Hines at the U.S. presented “Choosing Your also presented “Current Con- District Court for the Eastern Audience: How to Decode, sumer and CFPB Issues for District of Texas, and prac- Decipher and Enlighten Com- the Community Banker” at ticed with Conner & Winters. plete Strangers During Jury the 2014 Community Bankers His practice will focus on Selection” to the American Association of Oklahoma’s business litigation with an College of Trial Lawyers and Winter Leadership Confer- emphasis on employment, the Colorado Bar Associa- ence in Lake Tahoe, Nev. energy, insurance, debt collec- tion’s “Winning Trial Tactics How to place an announce- tion, foreclosure, bankruptcy of 2013.” ment: The Oklahoma Bar Journal and insolvency. mmanuel Edem, partner welcomes short articles or Ein the Oklahoma City law news items about OBA mem- firm of Norman & Edem, pre- bers and upcoming meetings. sented “Direct Examination of If you are an OBA member and you’ve moved, become a part- Expert Witnesses in a Medical ner, hired an associate, taken Negligence Case” at the Mid- on a partner, received a promo- Winter Convention of the tion or an award, or given a American Association for Jus- talk or speech with statewide tice held in New Orleans. Mr. or national stature, we’d like CO professor Marty Lud- Edem focuses his practice on to hear from you. Sections, Ulum recently spoke to civil litigation, with emphasis committees, and county bar

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 609 associations are encouraged (Oklahoma-based publications Jarrod Beckstrom to submit short stories about are the exception.) Information Communications Dept. upcoming or recent activities. selected for publication is Oklahoma Bar Association Honors bestowed by other printed at no cost, subject to 405-416-7084 publications (e.g., Super Law- editing, and printed as space [email protected] yers, Best Lawyers, etc.) will not permits. be accepted as announcements Articles for the April 12 issue Submit news items via email to: must be received by March 24.

IN MEMORIAM

arry Dean Barnett of High School, he joined the Oklahoma Law Review. He was LOklahoma City died Sept. U.S. Navy and attended the a recipient of the Logan Schol- 23, 2013. He was born March Naval School Great Lakes in arship and graduated in 1953. 6, 1949, in Beaver. He received Chicago. He earned master’s He was in private practice his J.D. from OCU in 1974. and J.D. from OU, graduating until 1975 and served as part Memorial contributions may in 1950. He practiced law with time federal magistrate for be made to the Charcot- the late Harry O. Glasser and Bartlesville District for four Marie-Tooth Association, later became a municipal years. He retired in 1983. In P.O. Box 105, Glenolden, judge for Garfield County retirement he enjoyed fishing PA, 19036. where he served for 25 years. and vegetable gardening. He was named Jaycee of the Memorial contributions can arold T. Garvin died Year in 1959 and was active in be made to the Rivercross Feb. 15, 2014. Mr. Garvin H the Enid AMBUCS Club and Hospice, 3723 S.E. Frank was born Feb. 10, 1920, in received two lifetime achieve- Phillips Blvd., Bartlesville, Walters. He earned his bach- ment awards from the Gar- OK, 74006. elor’s degree from OU in field County Bar Association. political science in 1941 and ohn D. Luton died Jan. 30, He enjoyed traveling and received his J.D. from OU in 2014. He was born Oct. 11, was an avid OU Sooner fan. J 1943. He was a first lieuten- 1922, in Miami. He graduated Memorial contributions can ant in the U.S. Army and from Oklahoma A&M and be made to St. Paul’s Luther- during World War II he served in the Army Air an Church and School. served in Gen. Patton’s 3rd Corps during World War II. Army in France. He fought ames Jeffrey “J.J.” Jackson He was an aerial gunner on a in the Battle of Northern Jof Las Vegas, Nev., died Feb. B-17, and served a full com- France, the Battle of the 28, 2014. Born Oct. 31, 1958, in bat tour of duty in the Euro- Bulge, the Battle of the Tulsa, he graduated from the pean Theatre of Action. He Rhineland and the Battle of OU College of Law in 1986. was awarded the Air Medal Central Europe. Upon return- He served as a public defend- with Six Oak Leaf Clusters ing home he served as Ste- er and worked for district and other combat duty phens County judge before attorneys in Texas and Ne- awards. Upon his discharge being elected to the Legisla- vada. He was named juvenile he attended OU where he ture where he served for 14 master and associate munici- earned his J.D. in 1950. He years in the state Senate. He pal court judge for Carson started practicing law in was on the Board of Regents City and also served as Muskogee in 1950 and was for Oklahoma Colleges and Nevada chief public defender. elected Muskogee County was actively involved in the attorney in 1959. He was etired Judge James Duncan community. Memori- elected to the Oklahoma State Laughlin died Feb. 10, al contributions can be made R Senate in 1964 and served 24 2014. He was born Oct. 11, to All Saints’ Episcopal years in the legislature. He 1927. After high school he Church, 809 W. Cedar St., was a member of the First served in the U.S. Navy Duncan, OK, 73533. United Methodist Church, before attending Oklahoma president of the Noon Lions obert “Bob” Lee Gregory Baptist University for his Club and state president of died Feb. 8, 2014. He was undergraduate studies. He R the Oklahoma Jaycees. He born March 15, 1927, in Enid. attended the OU College of was a member of the Masonic After graduating from Enid Law where he wrote for the

610 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 Lodge, York Rite Lodge, weekends at Lake Eufaula, worked to reintroduce wild American Legion, VFW, Dis- spending time with his family turkeys to Turkey Mountain. abled American Veterans, The friends, golfing, playing cards Memorial contributions may Shrine, Jesters and the Odd or simply cooking a big Ital- be made to Saint Simeons Fellows Lodge. Memorial con- ian dinner for loved ones. Episcopal Home in Tulsa. tributions can be made to First Memorial contributions may tephen Paul Sniegiecki of United Methodist Church, 600 be made to Russell-Murray Antlers died Jan. 28, 2014. E. Okmulgee, Muskogee, OK, Hospice, 221 S. Bickford Ave., S He was born on May 12, 1952, 74403 or the American Diabe- El Reno, OK, 73036. Cambridge, Mass. He earned tes Association. rthur E. Rubin died Feb. a B.A. in English literacy from nrico “Rick” J. Romano of A2, 2014. He was born Dec. Bridgewater State University, EOklahoma City died Dec. 5, 1921, in Fairland, but lived science and hotel manage- 18, 2013. He was born Feb. 14, most of his life in Tulsa. He ment degrees from Northeast- 1924, in Longano, Italy. At the served in the Army Air ern Massachusetts State Uni- age of two he was brought to Corps during World War II versity and a J.D. from TU. He the United States and raised in the Philippines and Japan, was a trial attorney, worked in Norristown, Pa. He joined and he left the service as cap- for Legal Aid Services of Okla- the U.S. Army infantry at the tain of the officer’s branch of homa and was a trial advocate age of 19 and then served as the 5th Air Force. After his for the Oklahoma Indigent a radio operator and gunner. service he attended OU and Defense System. Mr. Sni- He earned his J.D. from OCU earned his J.D. in 1950. He egiecki also served as munici- in 1957. After receiving his practiced for many years with pal judge for Wright City, law degree, he worked as a GableGotwals and James R. Clayton and Rattan. He was a corporate general counsel Gotwals Associates. He was Red Sox fan, a golfer, a crib- before entering private prac- a dedicated member of the bage player and he enjoyed tice in the 1960s. After work- Republican Party. He was an culinary arts. Memorial contri- ing as a partner at two firms, avid gardener and bird enthu- butions can be made to the he began his own firm, which siast, and he even bred endan- American Cancer Society. his son, Rick E. Romano, gered trumpeter swans for joined in 1983. He enjoyed release in the wild and www.okbar.org Your source for OBA news.

At Home At Work And on the Go

Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 611 WHAT’S ONLINE

Fourteen Manage Your Time Time management is a challenge. Here are LinkedIn Tips some tips on managing your time from OBA for 2014 MAP Director Jim Calloway. http://tinyurl.com/ TimeManagementBucketsLists LinkedIn is the most popular social media platform for lawyers, but many lawyers have barely scratched the surface of its potential. Fastcase Partnership A recent partnership with Hein- Online now allows Fastcase sub- scribers to also search one of the most comprehensive databases of law review articles in the world. Legal tech blogger Martha Sperry said that the combination is like a Reese’s Peanut Butter Cup. http://www.fastcase.com/ fastcase-law-reviews-with- heinonline/ http://tinyurl.com/ 14LinkedInTips Oklahoma Bar Journal View the current bar journal, access archives and look up advertising information and submission dates.

www.okbar.org/members/ BarJournal

612 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 CLASSIFIED ADS

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614 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 POSITIONS AVAILABLE CLASSIFIED INFORMATION SMALL OKC AV RATED FIRM seeks attorney experi- CLASSIFIED RATES: $1 per word with $35 minimum per in- enced in civil litigation. Applicant must be capable han- sertion. Additional $15 for blind box. Blind box word count dling existing caseload independently. Oil & gas or real must include “Box ___, Oklahoma Bar Association, P.O. Box estate experience preferred, but not required. Submit ré- 53036, Oklahoma City, OK 73152.” Display classified ads with sumé and writing sample to “Box A,” Oklahoma Bar As- bold headline and border are $50 per inch. See www.okbar.org sociation, P.O. Box 53036, Oklahoma city, OK 73152. for issue dates and display rates. DEADLINE: Theme issues 5 p.m. Monday before publication; SEMINAR Court issues 11 a.m. Tuesday before publication. All ads must TAPA SEMINAR - Technology in the Law Office Pre- be prepaid.

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Vol. 85 — No. 8 — 3/15/2014 The Oklahoma Bar Journal 615 THE BACK PAGE Cross Examination By Michael J. Blaschke

Pilate said to him, “So you are a has been lost because a jury sim- At the end he was stuck in a king?” Jesus answered, “You say that ply did not like a lawyer. trap, a trap I had baited only with I am a king. For this I was born, and sincerity. At the end he was taking My moment came in what was, for this I have come into the world, to long, slow looks back at the judge at the time, the trial of my career. bear witness to the truth. Every one as if to say “Help me!” This, as I was representing a tiny, under- who is of the truth hears my voice.” you might guess, does not look funded company against a huge Pilate said to him, “What is truth?” – good. At the end a close observer one represented by one of the larg- John 18: 37-38 could see the beginnings of tears, est law firms in the world. It did tears for which I could not be For lawyers who conduct trials, not help that the trial judge was blamed in any way. it is considered a “Holy Grail” not particularly enamored with moment. I once had an “effective” our theory of the case. Impossible And we won. I will never know cross examination. In the ways odds. A struggle up a legal Ever- for sure if my cross was the reason lawyers talk and act, that word est. Exactly the kind of David because we did have a good story, “effective” speaks volumes. It not versus Goliath battle that makes but it was clearly instrumental. only means we have taken a hos- my heart sing. Lost causes are The whole case turned on that tes- tile witness or someone on the sometimes the most worthy timony. Against those impossible other side and succeeded with ones to fight. odds we had scaled our Everest. them, it means we have gotten David won again. I assure you a from them the “answers” we celebration ensued. want. There was a shadow over my All lawyers will know why celebration, however. On what I put the word “answers” in quo- should have been a very good tation marks, for cross examina- career day, a feeling kept intrud- tion, really, is not about getting ing. You see, I did not like it. I did answers. Perry Mason moments of not like what I had been required breaking down a witness and hav- to do. I had to work pretty hard to ing them confess on the stand ward off my own tears as the wit- never happen. The real “answer” ness struggled with his. I do not we want is one that makes the like hurting someone’s feelings or witness look like he or she is not making them look bad, regardless to be believed. We call it credibili- of the cause. Do these ends really ty. To have the witness lose credi- justify these means? Many will say bility is the hallmark of effective that service to others, service to cross examination. In part. clients, does justify an effective cross and perhaps that is right. The other part is that you have to do it nicely. That may sound All I know is that it hurt to hurt strange to lay people who perceive someone else. I am committed to But we had not lost yet. The courtroom work as legal savagery, my career but I do not relish my cross examination of the defen- but it is true. Juries and jurors are next opportunity to conduct an dant’s key witness, one of the always different of course, except “effective” cross examination. As company’s 22 vice presidents, was they share one common trait: they a result I will never be feared in a left before closing argument and are human. Generally people do courtroom as I lack the “killer the jury’s deliberation. I was cer- not like some shark of a lawyer instinct.” Other lawyers will never tainly prepared and we did have making someone look bad if they speak of me and my technique a little better story, so I had the do it in a nasty or contemptuous with appreciation. I will never be ammunition to make the witness style. It is just human nature to Clarence Darrow. feel that way, and so the careful look a little silly. Instead, I tripped And that’s alright. lawyer tries to conduct himself in him up not with just his inconsis- a positive manner. Many a case tencies but with kindness and Mr. Blaschke practices in Oklahoma humility. City.

616 The Oklahoma Bar Journal Vol. 85 — No. 8 — 3/15/2014 PROGRAMS April 3 Tulsa, OK OSU-Tulsa - Rm 104 700 N. Greenwood Ave. April 4 Oklahoma City, OK Oklahoma Bar Center 1901 N. Lincoln Blvd.

Advanced Cross-Examination Techniques, Law and Ethics: Kill the Body and The Head Will Die - Everything You Always Wanted to Know About Cross Examination But Were Afraid (Or Too Naive) To Ask Program Planners/Moderators: David T. McKenzie, 3OPELSQE'SYRX]4YFPMG(IJIRHIV¸W3JÁGI3/' Joi McClendon,8LI0E[3JÁGISJ.SM)1G'PIRHSR3/' Emilie Kirkpatrick, 1/&EMPI]0E[3JÁGIW3/' Tanya Jones, 3OPELSQE'SYRX]4YFPMG(IJIRHIV¸W3JÁGI3/' Keegan Harroz, 3OPELSQE'SYRX]4YFPMG(IJIRHIV¸W3JÁGI3/'

Topics Covered 1 Preparing for Battle: How to Get Ready to Destroy a Witness! (with ethical discussion) Voir Dire to Opening Statement to Cross-Examination: How Not To Just Throw Objects at The Wall To See What Sticks (with 2 ethical discussion) 3 The Professional Liar - How to Seek and Destroy the Expert Witness 4 Impeachment: The Law and All the Law! And Dealing With a Difficult Judge (with ethical discussion) 5 Do What We Say and Not What We Do - Panel Discussion of Our Biggest Trial Mistakes Approved for 6 hours MCLE / 1 Ethics. 5 hours TXMCLE/.75 ethics The seminar starts at 9:00 a.m. $150 for early-bird registrations with payment received at least four full and adjourns at 2:50 p.m. business days prior to the seminar date; $175 for registrations with pay- For program details, log on to: ment received within four full business days of the seminar date. www.okbar.org/members/cle Receive a $10 live program discount by registering online at www.okbar.org/cle This program will be webcast. For details, visit oba.peachnewmedia.com Note: Tuition for webcast varies from live program tuition.