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OfficialCode, AlabamaCases, And The Only AlabamaAdministrative Code OnCD--ROM.
A Comprehensive,lnregratedSystem. Everything YouNeed For Your Alalxima Research. When II comest o bu1ld111~your procucc, Alabamn l..tnvD~k' is the foundationror ~ucccss. With Al nbamaCales, OfficialSmtutory Cooe, and AJminisrrntiveCode on CD-ROM,Lnwemk brinl!' ~mre-of-the -ar1 rechnologym Alabamaprimary low, crean111t the nn1 compreherl.\l,·c, outhonmmc legalr=c a,'llilablein AL,bama.And "-1ih a simplekeystroke or mousecltclc, dus powerful$Y'l
The CumberlandSchool of I.aw of SamfordUniversity is indebred lO the many Alabamaacwmeys and judges who contributed their time and expertisero planning and speaking at our education semlnais during the 1995-1996 academicyear. We gr.ueiullyacknowledge the contributionsof the followingindividuals lO the success of our CLE programs.
Hon. WllliamM. Acker,Jr. Susan D. Doughton Roben W. Lee,Jr. ElizabethH. Shaw Jimmy E. Alexander Hon. Jot! F. Oubtna John A. l..mtine BaibcrS herling, Jr. Bibb Allen J. RichardDuke DorothyW. Littleton WilburG. Silberman K. RickAlvis Ann Z. Elliott John F. Lyle, UI Kenneth0. Simon LaBellaS. Alvis MJchaelJ. Evans MichaelB. Maddox ThomasD. Simon Orrin K. Ames, Ill GreggB. Evercu ThomasJ. Mahoney.Jr. Gl'lham L Sisson,Jr. HaroldI. Apolinsky T. Roe frazcr 11 Davida Maish Hon.James S. Sledge Lte E. Bains.Jr. BartyV. Frcdcrlck RodneyA. Max ClarcnccM. Small.Jr. LeslieR. Barincau DouglasI. Frltdman O.nlcl L Mcduve Glly C. Smith Millon!G . Bass. Jr. ~ L Fundcburlc Hon. Edward8. Md>ermou Glly G. Stanko RobcnR. Baugh CharlesW. Gambk BruceJ. Mc:Ktt James Ii. Starnes MichaelL BcU W. lcw\s Garrison.Jr. J. AnthonyMclain BryanA. Stevenson StevenA. Benefield Beth H. GtlW!n WilliamT. Mills,Il William B. StcWart T. BradBishop Stephen R. Gl~th Hon. Tamara0. Mitchcl\ R. G. Sullivan AlexanderJ . BollaJr . EdwardC. Gttene Mac M. Moorer SidneyC. Summey Lee W. Borden James H. Greer P. Russel Myles RichardH. Taylor WilliamM. Bowen,Jr . W. Mccollum Halcomb RebeccaA. Narmore Hon. Charles A. Thigpen Gov.Alben P. Brewer James 0. Haley Usa Nmell-Mead W. TerryTravis RichardJ. Brockman Hon. LewisH. Hamrtcr Carol Sue Nelson LannyS. Vines MargaretY , Brown Hon. Anhur). Hanes,Jr . RalphR. Norman, 111 Hon.J. Scott Vowell RichardE. Browning RickE. Hanis VitginlaC. Panerson CharlieD. Waldrtp Hon. Jack.Caddell Jack H. Harrison MichaelR. Pennington HowardP. Walthall Hon.John C. c.Jhoun, Jr. Stephen D. Heninger John C. Pierce Mlchad R. Wamsley AndrewP . Campbell Riclmd L Holmes Ja;tph 0. Phtlps JohnE. Wam:n, l1l dmlcsF . Cm JusnccJ.Gorman Hauswn,Jt Denise] . Pomeroy Gall C. Washingtan Swilcy A. Cash M. Ann Huckstep CharlesJ. Poos WIiiiamw . Waus, m CharlesTykr Clari< Edwin E. Humphreys Scott A. Powdl John F. Whiwcu Hon. Sue BellCobb GarveW. Ivey,Jr . ThomasM. Powell J. MarkWhite Hon. BenjaminG . Cohen G. DouglasJones Hman L Prater, N Jere F. White,Jr. Charles 0. Cole Jasper P. Juliano JamesR. Pratt, l1l John P. Whittington Ted Colquett John M. Karrh PhllllpB. Price J. MichaelWilliams, Sr . Joseph A. Colqulu Victor Kelley R DavidProctor James C. Wilson,Jr. Edward0. Conerly Jusdce MArkKennedy LeslieM. Prall ThomasA. Woodall Hon. Ralph0 . Cook James C. l(!ng T. MichaelPumam Cathy S. Wright DeaneK. Corliss Le_ighAnn Klng BruceA. Rawls RichardA. Wright M. Donald Davis,Jr . JeffreyC. !Giby Thomas E. Reynolds Hon. SharonG. Yates TheresaS . Dean John T. IGrlc JeffreyC. Rick3rd J. Gusty Yearout GreggoryM. Deitsch Forrest S. Laua AlanT. RogetS Jay A. Ymk DavidR. Oona.lcbon Sydnq Lavender l IN THIS ISSUE SPRINGADMIITEES ..•...... •...... •..... 203 LAWYERS IN THE FAMILY...... •.•..•...••.••.....•• .205 STATISTICSOF' INTEREST...... •..• . .•.•.....•.. , .. 207 LE'ITERTO THE EDITOR. . ..••••.•...•...•...••.•..... 210 LAWDAY 1996 ...... , ...... 219 ~BAMIAN SETTO LEADAM ERJCANBAR AssocIA TION BySusan CullenAnderson ...... ••...... , .... 220 ROADSHOW '96 ...... 240 PUNITIVE DAMAGESANO PRE-V ERDICT PROCEDURES LIFE OP GEORGIA:A BOLDNEW FRONTIER By DavisC.,rr and Rachel Sanders Cochran ...... 225 SUPREMEC OURTOF ALABAMA- FEATOF CLAY ByJ. Corman Houston,Jr ...... 236 BAD FAIT!I: DOESI T APPLYTO SURETIESIN A.u\BAMA? ByR. CooperShattuck •.••...... •...... ••..••.. .•. •241 nw•.,.,.,.,,..._ II i'ISIE#IDEFIII Published seven limes a yea, (U,e June issue Is a bar directory edition) by lhe Alabama State Bar. """'"""" ,_,.,,,. ,ss, P.O. BoJt4156. Montgomery.Alabama 36101-'1156 • Phone 1334)269-1515 Robert A Huttokor ...... _ ...... - ..., ...... _ ...... Chalr & Editor SusanShO!OCk Dtl'aola ....._. ,,____ ,,______DEPARTMENTS V,oe,Che,t & As$ooata Editor Rldwtl F Alletl ..__ ,..... - ....-·-· Vc:e-Chalr.Fmance SusanH Andfes . --·--·--····· ....- ...... - ..... Stal1- & Communk:allans OiredD< Matgatel Mu,pl'rf ...... _ ...... Stall Lladon & Managi -....-,0-AI.A.IIA.' IA STATE BAR HEADQUARTERS STAFF LegislativeWrap-Up 415 D'"'1 11FHll'I 51 f,fih lll TlwAlubam11 Lltlr1l(Y Alabama Bar Institute forContinuing LegalE ducation ALABAMALA WYERS SERVINGALABAMA LA WYERS "As a memberof the Mandatory Continuing Legal Education Commission and an Adjunct Professor at the Universitv of AlabamaSchool of Law,l am a 6rm advocateof continuinglegal education. Alabamaprides itself on havingsome of the finestand most competentlawyers in the world. They recognizethe need for renewing their knowledge and keeping current with the trendsand decisionsof the law." ·J. Mason Davis, Jr . Sirote& Pennun,P .C. Birmingham,Alabama Call ABICLEat L,800,627,6514or 205-348-6230for programinfonnation. PRES IDENT'S P AGE By JohnA. OuV!11S ne ye<1rno longer seemsa signifi, were published in the September1995 Ocant length of lime. Yet, by the time issue of The A/abllmalmuger and all of this last article goes lo press lhat will be the task forceswith their memberswere lhe approxim.iteLime I will haveserved publishedIn the November 1995 issue. as presidentof lhe AlabamaState Bar. Yet,this is still scant recognition for all Althoughwe have accomplished much of the work done by the 863 men and this year,there are still many"loose womenwho work on our committees ends"which I hope lo lie together with and lllskforces. When I am asked.as I the last two meetingsof the boardof bar ollen am, ,~hat lhc AlabamaStale Bar commtSS1oners.We ha\oecommittee doesfor the aver.igelawyer, for the trial reports and proposalsfor the ,\lanage. law),'er.for the sole practitioner.etc.. I ment Assistance Programand a fee like to answer by pointing to the work of SpotlightingDispute Resolution mechanism,both of our 39 committeesand task forces,the which I havewritten about and talked work of lhe board of bar commissioners, aboul considerablyduring this year. We lhe work of the bonrd of bar examiners, Committeesare doing wh3l we can lo work with the the work of the sections of the Alabama Judicial Inquiry Commission to try lo Stale l:lar,a nd the work of our outstand improve upon the lone of the upcoming ing bar staff.I nm using this nnal article andTask judiciale lections. Wehave worked hard to spotlight two more of these commit all year to try lo preserveJ.ega l Services tees and la.lk (orces. Corporation.We are hosting a confer Forces ence Ma)'30 al the AlabamaState Bar lo Lawyer Referra l Service discussthis subject and accessfor the The J.a",y~rReferra.l Service consists poor lo legal services-generally. Bar of 13 memberschosen from 13 districts leaders,community leaders. social ser set out in the bylaws.They are each vices agenciesand others art being appointedfor three-)'earterms. This invitedas I write. There are always year the committee is chaired by numerous issues and projectsongoing CregoeyA. RtC\oes of Dec.atur,\\ith \\ithin the AlabamaStale Bar,as \\'ell as DanielC. 11am of Montgomeryserving an opportunity for service. with an eye as vice-choir.Its memberscome from towardimprovii,g the legal profession, Cullman, Florence,~ 'airhope, Dothan, to assist you and your ability to serve Enterprise,Demopolis. Prattville . your clients. Birmingham,A lexander City,Gadsden, I had planned to devoteseve ral of Wetumpka, I lunlsvllle. Tuscaloosa, these articles Lothe work of various Montgomery,C ulf Shores, Daleville. commillees.I n lhe September 1995 Greensboro,Auburn, and Anniston. issue, I wrote nboul the Solo and Small John C. Cullahom of Albertvilleis the Firm PradiUoners Task PoTCe. now a board or bar commissionersliaison. Ed standingcommillee. and the new Task Patterson is the staff liaisonand Po= on Pu Dispute Resolution. In KatherineCreamer is its director. the Novemberissue, I spoUightedthe Kathennt is the employeewho makes Client Security Fund Committee and the serviceworlc. the Citiz4'nshipEducaUon Committee. When I becamepresident-elect, I There wasa separateartide in the same studied the various functionsof the bar issue about the UnauthorizedPractice more closely.I decidedto becomea par John A , Ow en s of Law Committee. Still, this barely ticipating memberor the LRS.so I paid toucheson some of the work of fiveof my $50 and listed the areas in which i our 39 commillees and task forces. All would acceptcases. I have been amazed of the committeeswith their members al the number of referrals.Most have II f:UfJij§ ihQJ. II Tl111A/abomoUllfY'!I' resulted only in telephoneadvice, but a presentlyconsidering the implementa to this entire slate. His goal is lo de-.-el coupleled to a de.~irablebusiness in tion of a fee percentagesystem in the op a better wayof selecting Judges to which I was able to render serviceand ne11rfuture. insure integrity,Impartial ity and conn was paid a reasonablefee. I askedCreg Altomeysinterested in joining the dence with a fulland fair opportunity Reevesto write a summary of what he LRSas a participatingpanel member for minorityrepresentation on the would like to communicateto the bar maywrite to the LawyerRefeml Bench. Despitemany frustrationsand about the UlS. He writes: Service,P.O. Box 671, Montgomery, road blocksBob has continued to chal "The AlabamaLawyer R eferral Service Alabama36101, or contact Katherine lenge our task force lo remain nclive was established in 1978as a serviceto Creamerat 1-800-354-6154for an and pursue reform. Mehas done this the public.The LRSoperates to address applica.tion and a copy of the LRS despite Im fuel that some or our mem the needs or a large segment orsociety rules. The LRSrequires a membership bers ha,,.been readyto disband." who simplydoes not knowhow to find a fre of $50 and proofof malpractice I take this finalopportunity lo lawyer.The participatingattorneys. or insumncecoverage in an amount not expressmy gratitude lo BobDenniston 'panel members,' also benefit from the less than $100.000/300,000. and to all of the 0U1ercommiltet LRSby receivingreferrals in their par In summary,the AlabamaLRS is a chairs, co-chairsand members,lo the ticular area of prac;tice.An incidental "win-win"program. for the individual bo.1rdof bar commissioners,the board benefit lo our bar ilSSOCiation.as a who locatesan attorney through the of bar examiners.the bar staff,and all whole,is the potentiallyenh,mced service and for the participalin~allor the many other peoplewho make our Imagegained by sponsoring the LRSas neyswho gain new clients. 11,000-plusmember association the an organizationdedicated to assisting best bar associationin these United the public locate the 'right' laW)'trfor Judicial Selection States. their particular need." Robert P. Denniston or Mobile, I also thank the entire bar for the The LRSmakes referralsthroughout Alabama has chaired this task force for opportunitylo serve as your presidenL the state. with the exceptionof Madison, six years. CarolS ue Nelson of It is a high honor. It is an experience Jeffersonand Mobilecounties, which Birminghamis its vice-<:hair.Rl ck that Dot and I will cherish fom-er. I have their own local referral service. Manleyof Demopolisis the board of lea\'t the bar m the goodand capable However.attorneys practicingin those bar commissionersliaison. The work hands or WarrenLlghtfool who is well counties with a local referralservice which Boband his task force have supportedby Keith Normanand an may belong to the state I.RSif they accomplishedis astounding. AIU1ough outstanding bar slaff. desire to handle cases in surrounding unfortunatelynone of it hasresulted in Thanksagain. • counties. legislation.Bob Denniston has made Our LRSrecei,'tS a great number or himselfperhaps the most knowledge, calls each day.The LRSreferred 17.957 able person on the subject or judicial prospectiveclients to panel member selection.The tiuk force has presented COLLECTIONS attorneysbetween the months of June 1, manywell-reasoned and well-consid SOFTWARE? 1994and June 30. 1995.The majorityof utd proposalslo the board of bar com these callsare generatedby YellowPage missioners.Although none of them advertising.,'Is nn added benefit,the haveyet made their way into law. Bob LRShas a toll-freenu mber for U,e pub does not gel discouraged and he and lic to use. his task force go forward.They provid The LRS is nol to be confusedwith a ed outstanding researchand resource pro bono refeml program.The panel support for the Third Ciw:ens Onelime Data En try memberallorneys may negotiatethe ir Conferencewhich did ultimately rec lntegral ed fic kler SysIem rceswith the referred prospective ommend non-partisanelection of RulomallcFeeCalculallon clients.As such, lhe LRSgenerally Judges.The board or bar commission WordPerfect&Word ln1errace caters to the middle class segment or ers hasagain endorsedthat prol)05al.I our society.those individuals who can asked for some commentsfrom Bob's COLLECT-MAX"" affordan attorney,but simply do not committeemembers. Typical is the fol DEBTOR MANAQBMBNT SOFTWARE UNIQUBI.Y knowwho to call. lowingf rom Carol Sue Nelson: DESIONED l'OR COLLBCTIONS The monetaryvalue of referralser "First, I cannot tell you what an ATTORNEYS. PRtcas START AT JUST $ 800. vices is being recognizedby bar associ honor. pleasureand privilegeii has ations nationwide,as many reftml betn workingwith BobDenniston dur sen•icesnow recei,-epercentages of the ing the past severnlyears on the task feesgenerated by the referrals.I n this force. He has workedtireless ly lo bring ~ way,the servicesare able to become aboutjudicial reform in Alabamain self-supporting,and, in some the waywe select our judges. Bob is a instances.share fundsgenerated with man who displaysintegrity. leadership, other bar committees,such as pro commitment and energy towarda goal bono services.T he state LRS is thal is notj usl important lo him. but 11wAWamai....,, 11 i'l5114Hiif¥E - I EXECUTIVE DIRECTOR'S REPORT By Keith 8. Norman ne of my responsibilitiesis to review been down the last several years. there Othe applicationsof individualsseek still appear lo be more law school grad ing admissionlo the bar. Applicantsmust uates than jobs. In spite or the tight job discloseall education loans. I have been market for lawyers,we are experienc monitoring the educational debt load of ing record numbers or applicantssit applicants for the last two years,and I Lingfor the bar examination and being am very concernedabout the amount of certified. ln the five-yearperio d of 1991 debt lawschoo l graduatesare accwnulat to 1995.the number of lawschool Educational ing. This level of debt is truly stunning! graduatestaking the bar examination There were 287people who took the increasedby 47 percent. The number Debt- February1996 bar examination for the or examineeswho were certir.ed was 30 first time. One hundred and forty-eight. percent higher in I 995 than in 1991. A Heavy Load or 5 l percent, had borrowedmoney to With increasing competitionand finance their higher education.Their decreasingjob prospects.the education for Law School loan amounts ran from a fewthousand debl load of so many is cause for con dollars to more than $90,000!The debt cern. I am not alone in expressingthis Graduates averagedapproximate ly S35,000per concern. l have seen articles dealing applicant. with this issue in two recent state bar Typically,these educationalloans accrue magazines-The Pennsylvania /.awyer interest at an annual rate of 7.0 percent and the OregonStale Bar Bulletin. My and havea repayment periodof ten years. concerns are primarily twofold.P irsl, a Monthlypayments for S35.000wou ld be high debt load compoundsthe other $400. By comparison.the monthly pay daily pressures of a law practice. ment on $90.000financed for ten years Moreover.this additional pressure at 7.0 percent is more than SJ.0001 comes at a lime when the new lawyer This debt load is significantbecause possesses U1eleast amount o •·j,ff'J$1fFl·IITh~Al"bama /.aVJJ~'T Weknow your r------1 ----- timeis valuable, I EspeciallyFor sowe'll come righ 110 1he point. Did you know your membership : AlabamaState Bar M embers in theAvis Assoc iationProgram ent i1lesyou to a host orspecia l : Avisservices and discounts thal can save you lois of time ! $15Off A vis Weekly Rates! andmoney? I Rei C UIOO""1li\fl.l Co.. In c Avi,l•olultS CM c•i. . L------J Executive Directo r's Report es. In se--eral states a debl forgiveness close watching.Ed ucation costs no programhas workedwell. These pro doubt will continue lo rise as will debt (C4ntmr,cdfrom page 200) grams allowlaw school graduates to leveb. Wemust be concernedthat MW debt. Wecan encouragethem lo consid· havea portion ol theJr la"· school debt laW)·ersentering the ranks ol the pro er wayslo lowerdebt, including delay retired in return for their workingin fessionare not so burdenedwith debt ing law school to earn money to pay for public-interestJobs. This may be an that their ability to practice or lo effec· school or workingpart-tim e during law idea worth considering in Alabama. livelyrepresent their clients Is schoo lo help defrayl aw school expens- Education debt is an issue that bears impaired. • Position Offered United Stales District Court, Middle District of Alabama The United StatesDistrict Court is now accep1ingapplic,wons for the position of Slillf attorney/prose law clerk. )SP CrJde: 9. r 2, annual srart/113s.1 /ory: $29,405 to $42,641, Graciearu; I salarymay be hishcrdoP(!ndin& upon qua/ific,1tlons. App/lcaJiondeadline: July r5 , 1996 Occupalional infom1ation: The staffattorney is a 1>rofessionalstaff position; the law clerk is hired by and reports to the court. A staff attorney exam!~ all prisoner petition~and cornplainlS,including Slillehabeas petitions, motions to vacate federal sentence, and civil rightscomplaints, detennining if they are p sojtw(il,reJo r A L(il,1:'.J(il,Wl,(il, A tto rvie0s SOjtwcuejbr IBMC0 1'111'Gttible computers. , Chiutsu..,port c:alcutatnrvAL95.10 (Ul'AAteGtjb r AOC cltt:t~es qfec:tive10/01/95) . , Fitutn.dt:tLCt:t!ci.c.Lc:ttor (Am.o rtizt:ttio11.scltettu.l.es, etc.). , c1teckin.9 AccoJA-n.tMGtYLGt!3eWt.en.t. , c t:,tSe Mt:ttutgewie11.t. PProfessioni:t.L BiLLin.g S1:1stem . .?'At:Jl'OLYLtmel'Lt Ct:tlenda r. Cru.Lorwrlte orjw SOFl'WA.Bl! SOWIONS NA.DI!SIHPLI! Siml'le Logic,lf1.C . P. 0. Box110, Allgood, AL35013, Ph. 205/62 5-4777 Froc.205/274--01 78 Im AlabamaState Bar Spring 1996Admittees iJ ADAIR. Oooi!!a,sConred EPPERSON. RobertClwlM KEI.SEY, Robei1JeHorv ROUNOmEE. Midlael w ADAMS, OavodWolte< ESTES.Oavod Howard KEMMERLY, Ccl,n Edwl Veronlc.,J. Cherniak(19961 and I David EricB. Funderburkt 19961 and Kenneth Lucius Shllw Gaines!1996), Ralph D Cherniak 119651 L Funderburk(1965) Gaines, Jr (1949).Ralph D Ga,nes,111 admltlee and father Bdmrnooand lather 119831nl Char'esPallotd Gaines 11981) admlttH. facher.blotl>er and blott,qr N'ldlolasPliler Callahan.Ill (1996) and MelissaJ . long (19951.~ 0 I.ling Ten,Leigh Bozeman(1996), Randa" l'lP. Caftahan.Jr. (19661 (1995)and JudgeFrank Long (19851 K Bozeman{19881 and JudgeA Ted adm,rrooand lacher sdmrttee /brothor),adm,ttee (siscer/ and Bozeman (1967) facher adm,ttee, brother and lather 11wAW.wi..,w 1111'151FB/¥·FII Bryan Ke 1n Fo GonaBakor Hantel 119961. Jahn Bal.et Charles E. Robinson, Jc 119961, Charles Pa!nd: M Tuten119961 and Robelt 8 1196nan4 Janoe Baker Clatxe 119851 E Robonson.Sr (19651and Pete O:lbb Tuten119881 «tmmee.farher and aum (1980) adm,aeeand bro1her admrrtee.father and COU$1n John G!8QoryEvans 119961 and Jolln RobenThomas Treese. Ill 119961and R Delet E Ya,brough119961. Chefyle D Dougie$Evans 119691 ThomasTreese Jr 119951 Mot'8)1l1991l andThomas D Mo1'8)1 admirteeand lamer adm,rtee and father 11984) adm,rree.mother andsrepfarher Mon,oaLeonene Amngton (1996) and DamundE. W,11,ams(1996) and Norben AdamW . Hyde0996) and H01aceV . LeonardAr rington ( 1987) H. WIiiiams(19891 O'Neal,Jr (19821 adm,rroeand father adm,rtee and brother Bdmmeeand siepfathe! RobertCharles Eppe rson (1996)and ChristopherAllen Thigpen ( 1996)and RebekahKeith tl996) and Herman Atthur ChatlesEl)person 11949) Hon CharlesA Thigpen119721 WatSOC'I.Jr (19611 adm,noeand faiher admrrroeand father adm,rreeand father February 1996 Bar Exam Statistics of Interest Numbersilting for exam ...... 36 1 Number certified to Supreme Courl of 1\labama . , ...... •.... . 195 Certificationrnte .. . ..•...... •.. . ..••...... •. .. .54 p«rcent Certificationp ercentages: TracyGwyn BirdSong(1996) and Tonya Universityof AlabamaSchoo l of Law ••.•.••.••••.••••••.... 75 percent BudSongHagma,cr (1 986) CumberlandSchool o( Law...... 67 percent admmeeand srsror Birmingham School of Law ...... ••. .. •. . .•••. • . .••. ... 37 percent Jones Schoolof Law ...... 55 percent MilesLaw School ...... 4 percent n."'--u.w,w Ill 1'15MFl4#1'illl ABOUT M EMBERS, AMONG FIRM S Abou Members ing address is P.O. Box 2673.Albertville Amo,g Firms GeorgeC. Day.Jr. announces the 35950. Phone (205) 891-4I 06. CliffordL . Callis,Jr . announces relocationof his officeto 1917Rainb ow BillyJoe Sheffieldannounces the that Jeffrey P. ~lontgomery,Lau n Drive, Gadsden.Alabama 35901 . Phone relocationof his officet o The Sheffield Anne Dickeyand Barl>araLee Ba.melt (205) 543-1660. Building,400 W. AdamsStreet , Dothan, havebecome MSOCiates. Offices are Alabama36303 . Phone (334) 794-3733. locatedin the Church Street Professional J. Michael Fincher the opening of his Centre, 101 Church Street, Rainbow officeal 107SL Francis Street, First Janie Baker Clarke announcesher City, Alnbama35906. Phone (205)442 · National Bank 13uilding,Suite 1502, retirement as assistant 11ltorneygenera l 6102. Mobile, Alabama36602. Phone (334) for the State or Alabama Departmentof 694-1645. Transportationand the reopeningof S. MorkBurr , formerlysen ior staff attorney with ProtectiveLife t•aul E. Burl MICHI E'SR AI,ARAMA CODE In print, on CD-ROM, or 011/ine here'smore than one way10 comprehensive indexyou've ever Youcan alsouse Mlchle's· do lev;ilrcsearth. Fonunatcly, seen And becauseMichie updates AlabamaCode on the L£XIS'online T!here'sstill one way to l1Wl the code lessdun 85 d.tysafter Sl'IVice.For the 010/it ru rrmt case )1lUrresearth. That's brotuse )'00 can receivingans fiom the legislature, law,Michie's exdusi\'t Online researthMichi e's"Alabama Code. )1lUare assuredor the fastestcode Connection· gi"esMichle's " L.twon the essemials mmory publicotlon seMcein Alabama. Disc· users immedinte aocessto a ror lawyers,using the mediumthat Ifyou prefercomputer-assisted spedal LEXISUpdate me for o ne bes1fit.s the net!dsof you and your research,you will findthis same low, flXedsubscription pri(e prnaice- book.C[).ROM. or editorialexpt'ftise built into Onlinesavi«. Michk's Alabamal:lw oo Disc" /11sl1on, 1011 can fi11d s1a 11110,y Ifyou are mostcomfonablc whh This easy-to-learnco.ROM research book rese.uch,you willfind Michie's system, poweredby die industry 11111/1orlt1•i111l1e medium of rorrr l'OLIOm fumousedi torialquality buih into standard searche ngine, clroice.}11.!t be cerw/111·011 are <"·erypage of Mld1ie's" Alabama putsa complete Alabamalaw Code.Mlchle 's editorsare not only libraryliterally at your fingrnips usi11gtlie Alabama SUUIIIOI)' l""')'ffl - !heyare spooalbls in - includingcase law, coun rules. preparingmeaningful annotauons, the entireMichie's " AlabamaCode. a111/1oriryyouClllt rmst. insightfulnatl?$. and the m0lo1 and more. Tupick lllil riglt1 opti,m, ,all Michie'sCUSIOIIIL'I' smiet represenlillit't$ro/1-frre al 800-562-121.5, ~ J\IICI IIE (If 1ui1our um !ill a1l111p: Jl1111mtmi!hie.com.l'llllllwe codl MDD u./im ordnir,g, Mklllt'•IMWoeniw UldOdM~.-~f.lltktrr.1111tlWC....., LC11S'..;""1XIS'•lq\llCllllll ...... d._.u.,,,.n~hw R>UOia.1 uaim!Mltfl ...... fl"'"'"'"f'topnun fllf l'f'Nt,,MM'hk. .ad~ol lltwd""""1ft( Alf fllhtt ~ About Mombor a, Among Firms has b.?comca member.The new name Youngdahl. Sadin & Morgan is Groover.M adison. Cray & Langston. announces I hat Denise V. Hill has (Ca.11/11wdfrom po/IV!2/18/ Officesare located at 617 College joined lhe llrm. Officesare locatedal John Ben Bancroft. fonnerly manag Street. NW., P.O.Box 487. Hartselle, 3603Pine Lane,S.E., Suite A. Bessemer. ing attorney (or Shapiro & Kresiman, Alabama3.564(). Phone (205)773-0241. Alabarn.,35023. Phone (205) 424-0119. announces his employmentas attorney Montedonlco, Hamilton & Altman Laniu Ford Shaver & Payne advisor with the U.S. Small Business announces that John Daniel Rea,u announces th.it Jeffrey T. Kellyand Admfoislr.llion, BirminghamServicing has becomean associate. Officesare Paul /\. Pate have become members of Center,at 2121 6th Avenue,North, Suite locatedal 530 I WisconsinAvenue, the firm, and Cregol')' M. Tuube, Rachel 200, Birmingham,Alaooma 35203. The N.W.. Suile 400. Washington,O.C. SeJf How•rdand Melissa J. Longhave mailinJtaddress is P.O.Box 12247, Phone (202)364 -)434. becomeassociates. Ofnces are located Birmlniihnm35202-2247. Phone 1205) at 200 W.Co url Square, Suite 5000. 731-1728. Pierce, Carr. Alford. u,dyard & Latta Huntsville, Alabama 35801.P hone Robert Crllwford announces that he announces thiil Caroline Wells Hinds, (205) 535-1100. Annette M. Carwle, Prnnk L. Parker, was electedcircuit Judge in Milwaukee Bradley, /\rant. Rose & White Jr. and Robert £, lfo_rlbut. Jr. ha\'e County,Wisconsin . Ilis officeis located announces that T. MichaelBrown , al 5017 N. Palls.idesRood. Whitefish Bay, joined the firm. omces are locatedat Deane Kenworthy Corliss. Ceor]le 8. Wisconsin53217 Phone (414)332-2229. 1110Monllimar Ori,·e. Suite 900. P.O. Harris, Anne R. Yueogert.J . Paul Box 160-IG.Mobile. Alabama 36616. Pamela L Mahl~. formerlywith Compton, Jr .. L. Susan Doss, Warne Phone 13.141344-5151. Thorington & Gregoryin Montgomery, S. Hu th, and S.aan Dono,= Josey Alab;ima, announces her relocationto 4'tlll Etheridge Hare, Stephanie R. ha,oebecome p.1rtnersin the firm. Atlanta. Georgia,and her position as a White. Kori L Cleme.nt and Celeste L. Officesare localed in Birminghamand staffattorney with the United Stales Patton, rom,erlr or Janecky.Newell, 1-lunt.sville,Alabama. Court or Appeals for the Eleventh Potts, Hare & WeiIs. along with Sany Berkowil2, u,llcovils, Isom & Circuit, staff attorney's office.The mail W. Hair, formerclaims attorney for Kushner Mnounces that Thomas J. ing address is f!oom 549. 56 Forsyth NationwideInsurance Company, Mahoney, Jr. has become a member of Street, N.W.,Atlant.n. Georgia 30303. announce the formationo r Hare, Hair the firm. Ofllces are located at 1600 Phone (401) '.!31-5775. & White. ornces are located at 190) SouthTrust Tower.420 N. 20th Street, Cro-0vcr, Madison & Gray announces Sixth /\venue, Norlh, AmSouth-Harbert Birmingham, Alabama 35203-3204. lhat David W. Lnnitston. Connerlyassis Plaza,Suite 2800.Birmingham, Alabama Phone (205)328-0480. 3.5203.Phone (205)322-3040. tant district attorneyfor MorganCounty, Drinkllrd & Hicks announces the addition of J. Donald Banlcsto the finn. The new /inn name is Drinkard, Banks & Hicks. Officesare locatedat 1070Government Street. Mobile. Alabama36604. Phone (334)432-3531. LETTER TO THE EDITOR Wayne L. Williams and Craig L. Williams announce that Randall M. Cheshire has joined the /inn. The new Pleaseaccept this letter as an apologyto bolh you and the entire name is Wlllinn1s, Williams & Cheshire. membershipof the AlabamaState Bar for lhe negativepublicity my Officesare loc11tedat 26 l 7-8th Street, actions have brought upon the bar arisingout of my failure to lime T~scaloosa, Alabama 35401. Phone Jy fileState of Alabama incometax returns. (205) 345-7600. Asyou are aware, my indictmentwas published in our local news Bond, Dotes, Sykslus, Larsen & Ledloll'announces U,eassociatio n or C. paper. I was ashamedand ernbarrdSsed,not only for myself,my fam Michele Anders. former law clerk to the ilyand friends,but also for the membersof my profession. HonorableSally Greenhaw and the I shall be punished for my actions, however,there is no way to HonorableJoseph 0. Phelps.Offices are make restitution to my profession,and for this I truly apologize. locatedat 102 S. Court Street. Florence. You have my permissionto publish this letter in The Alabama Alabama35630. Phone (205) 740-8220. lawyer so that other membersof our professioncan avoidsituations John T. Alley,Jr . and John W.Waters, such as mine by timelyfiling state tax returns. Jr. announce the opening or a second officeor Alley & Walen in Union Springs.Alaooma. The address is 214 N. Don 0. White,Mobile, A labama Prairie Street, P.O.Box 5006, Union Springs 36089. Phone (334) 738-5505. James 0. Pruett, formerlyacti ng general counseland associate general Cabaniss,Johns ton. Gardner, Dumas Burgess & Hale, L.L.C. Orficesar c counsel orAmSoulh Bancorporation. & O'Neal.wiU1 offices in Birmingham located al LOlOPark PlaceT ower,2001 Frank I. Brown.Jon M. Turner,Jr .. and Mobllt,announces lhat Sandy C. ParisPlace, North. Birmingham, Alab.una Lisa Jernigan Brown, and Br)'ao K. Robinsonbecame a partner. Phone 35203.Phone (205) 715-1466. Horsley announce the formalion or (205)252-8800. Newman& Sexton announces that Pruett, Brown, Turuer & Horsley, Nathan & Associatesannounces that MichaelA. LeBrunand Frank Steele L.L.C. Officesare locatedat 211 22nd Donna BowlingNathan has joined the Jones havejoined the firm as share Street. North, Birmingham,Alabama firm as a partner. Officesare locatedal holders and the new name is Newman, 35203,and 304 S. 5th Street, Gadsden, Suite 300.Massey Building. 290·21st Sexton, LeBrun & Jones, P.C. Offices Alabama35902. Phone (205)320-1714, Street, North, Birmingham,Alabama are locatedat 3021 Loma Road,Suite (205)546-1714. 35203. Phone (2051323·5400. 310, Birmingham,Alabama 35216. SchJ'<1dcrCenter Management, Inc. Bowron, Oldenburg& Luther Phone (205)823-5515 . announces lhe associationof 4'nn announces LhalDanny J. Collier,Jr . Wallace,Jordan , Ratliff & Brandl Gaines Toweryas assistant counsel. has becomean associate.Offices are announces that Algert S. Agrico~. Jr. Officesare located al 15303Dallas locatedat AmSouthCenter, Suite 609, and James A. Kee,Jr . havejoined the Par~·way,Suite 650. Dallas, Te,ms 63 S. RoyalS treet, Mobile,Alabama firm as members and that Charles B. 75248. Phone (214) 239-9500. 36602. Phone (334)433-8088. Campbelland Phillip O. Corley,Jr. Llo)'d,Schreibu, G1'11)1& Gaines Bingham O. Edwardsannounces that ha,-ejotned as associates.Offices are announceslhe new firm name,and lhal Gre,goT)IA, Reeveshas become an asso locatedin Birminghamand Montgomery, Daniel S. Wolterand Stephen E. ciate and lhal the new name of the firm Alabama. Phone (205)870-0555 and Whiteh~adhave becomemembers and is Edwards,Mitchell & Ree-.·es. Offices (334) 832-9900. Stuart Y.Johnson has becomean associ are localedal Court Square. 123 Lee Pie=. Carr, Alford.Ledyard & Latta ate. Officesare locatedat TwoPerimeter Street, Suile A, Dec.1tur,Alabama. Phone announces lhat lhe f'irm's name has ParkSo uth, Suite 100. Birmingham, (205) 353-6323. changed to Pierce, Ledyard.Latta & Alabama35243. Phone (205)967-Sa22. Tom Burgess, Thomas S. Hale, Wasden. Officesare located al 1110 Sadler.Sulli\'ao. S harp, Fishburne & James A. Haggerty. Jr. and MurrayR. MonllimarDrive, Suite 900, Mobile. Van Tassel announcestha t Ted L. Mano Gibson. Jr. announce the formationo r Alabama36609. The mailing address is has rejoined the nrmand that Theresa S. Jones has becomean associate. Officesare locatedat 2500SouthTrust Tower.420 N. 20lh Street, Birmingham, Alabama 35203. Phone (205)326-1 166. BLUMBERG EXCELSIOR'S Beasley, \\'ilsoo. Allen. Main & Crow announces lhat Richard O. Morrison has becomean associate.Offices are ~~~&Ml,~ .sj:ee«v/7 locatedat 218 CommerceStreet, Montgomery,Alabama 361034160. 5 Phone (334)269-2343. 275 Stuart Le.ac:h, former presiding Ideal for Laser Printers judge or the civildMsion or the 10th ...... circuit, has joined Slrote & Permutl, lncludei;: 1,000 Lette rheads and Envelopes and will serve the nrm of counsel. He will be based in the firm's Birmingham 500 Busi_oess Ca rds, 500 Pla in Secon d Sheets office.The firm has officesin Also i11cludesdies and a proof Huntsville,Mobile, Birmingham. 24 lb.. 25% Cotton, Laser Finish, White or Bamboo, Montgomery,and Tuscaloosa, Recycled Bond $275 Alabama.Phone (205) 933. 7111. 24 lb.. 50% Cotton LawB ond. White, Bamboo C-Ochran& Associatesannounces lhe and Laser White $285 relocationor their officeslo 310 N. 21st Crane's a11dGilbert paper at additional cost Street. Suite 500, Birmingham...... Alabama35203. Phone (205)328-5050. £11gravingpla11ts i11 Alba11y , NY and Orla11do, FL Call /or sampf<.rand ftgal t 11pplycatalog, The firm of RichardJ ordan and Randy (800) 221-2972,ut. 503. ~lyers announcesa name change to RichardJ ordan, RandyM yers & Ben Locklar. Officesare locatedat 302 1$ '•!.• AlabamaStreet, Montgomery,Alabama Blumberg5,Xcel~q,r 36104. Phone (334) 265-4561. ------P.O.Box 16046,Mobile 36616. Phone Alvin T. Prestwood. Ellis D. Hanan. 1303. Phone (2051803-0051. (334)344-5151. Charles H. Volz.Jr . and Charles H. Durward & Cromerannounces that Boanlman & 'fyra announces lhal Volz,rn . formerlyof Volz,Prestwood, David P. Dom has joined the firm. K.ristl A. Dowdyand ~lane )L Hoge..'OOd Hanan & Sizemore,announce the con Oflicesare loc • ,ew111s11·14·- TlwAla"'1mo~ BAR B RIEFS • The Alabamn Pnttem Jury Instruc Pointer,Jr. Woodwas a member or the tions Committee-Civil announces its Allerbeing chief J udge.J udge Godbold executive committee or the Inter rendered further serviceas an in110va committee membersand the purp0se or national Associationof DefenseCounsel the committee.They are: ti\'t and skilleddirector or the Federal and is a member of the AlabamaDefense Judicial Ce.nter,the educationaland Hon. WilliamC. Sullivan.chairman : lawyers Association. ThorrosA Woodall.vice-chairman: Laurel research arm of the federalbranch. lie R.Clapp, reporter; DavisCarr; Andrew • James R. Pratt , Ill or Birmingham continues to make a signific.intconlrl· ,: Citrin; Brittin T.colema n: Robert L. was recently inducted into the Inner bulion to the UnitedStates Court or Gonce;Hon. James I taley, Hon. Robert Circle or Advocates,a group limited lo Appealsin his senior status, and also B. Ha1wood:R. Benjamin Hogan, Ill; 100plaintiff lawyers nationally who teachesat the CumberlandSchool or Hon. Josh Mullins:Bert Nettles; haveachie,oed a substantial number o( law in Birmingham. Profe5sorHerbert Peterson;Professor seven.figureverdicts for plaintiffs.Pratt Robert Riegert; and E. TedTaylor. is also a fellowin the lnternotionai • Binningham attorney Ninn The committee Is composedof trlill Academyor Trial Lawyer:;,a group of lawyersand defenseln\\'}'ers, as well as both plaintiff and defensecounsel limit· Miglionico has judges and professors.and is charged ed lo 500la\\'}'ers in the UnitedStates been named one with draftingjury charge.\. and 100bW)-ers abroad. or frvewomen nationwideto For more informationor to makea • This year's suggestion, contact Judge WilliamC. receivethe recipient or the AmericanBar Sullivan, P.O. !lox 697,Talladega, EdwardJ. Devitt Alnbama35160. Association'$ Distinl!uished N in• Ml gllo nlco MargaretBrcnl • Joseph H. Jobmon. Jr .. of counsel Serviceto Justice WomenLawyers to Lange,Simpson, Robinson& Awardis the or AchiewmenlAward. A congress Somerville,has been elected to mem Honorable John womanand a state supreme court Jus bership in the newlyestab lished C. Godboldof tice are among the other four winners. Amerlc.inCollege o r BondCounsel. Montgomery. Miglionicois a 1933gra duate of Bond counsel are highly specialized Hon ora bl e J oh.n c. Judge Godboldis HowardUniversity (now Samford '3w)'erswho represent states and local Godb old a SeniorUnited University)and a 1936gradwte of the gov;emmenlswhen they raise money Stites Circuit Uni\'trsityor AlammaSchool of Law. through the isswnce of municipal Judge for U1eU.S. Court or Appealsfor She opened her O\\n omce and has bonds. The Collegehas been established the EleventhCircuit, and has been a practicedcontinuously since then. as an organization or prominent bond chiefjudge or thal courl and or the U.S. She was the only woman elected lo lawyersselected on a national basis for Court of Appealsfor the Pi(lh CircuiL Birmingham'sfirst City Council and their expereince,reputation and com The committee for the selection of remainedon the Council for 22 years, mitmenl to serve Slllk and localllO\'ml· the award no1edthat Judge Godbold's declininglo run for re-eltction in 1985. mental bond issuer:;,Initially, the mem career exemplifiesthe wisdomand con In 1958.she wns elected president or bership or the College includes60 bond tinuing necessityfor the constitulional the National1\ssocintlon or Women lm~•ersfro m 28~tdlcs. Additional bond de5ign U1Mestablishe d the Judiciary as l,awyers. Jn 1974,she was the first lawyerswho meet the College's highly an independenlbranch or government Alabamawoman nominated by a major selecti\'emembership criteria will be Accordinglo the committee, Judge party for a congressionalseat (when$ht invited lo become members. Godboldwns a splendid chiefjudge dur Wil$ chosen the Democraticnominee to ing the interesting and lmPOrtantperi unseat U.S.Rep. John Buchanan.) • WllliamC . Woodhas been elected a od in judicial history when whal was di rector of the DefenseResearch Amongthose nominating her for lhe formerly one circuit, comprising six states lnslitute. the nation's largest associa awardwere CarolAnn Smith, president in the southern part or the UnitedStates, tion or civil litigationdefense lawyers. elector the Bim1inghamBar Association, bec.imetwo separate circuits. Judge lie ,s a partner in the Binningham finn Janie Shores,Alabama's only female Godboldis known for his lucid opinions o( Norman. l'iupatrick. Wood& supreme court justice, retired Justice and his willingnessto leach and inspire Kendrick.He servedns the first law OscarAdams. the court's only blackjus other judges in the prompt and scholar clerk to U.S. District Judge Sam tict, and the Women's Section or the ly dischargeor U1eir judicial duties. BirminghamBar Association. ,,..~i.iw II i'JSIFFIWJFII DISCIPLINARY NOTICE Reinstatement the judge in federal cou1t. The federalcotLrt dismissed U 1e • Birminghamattorney John H. Wiley, m was reinstated suit. which was affirmed by the federal appealscourt. to lhe active practice of law by order of the supreme court. In ASBNos. 93-4 76, 93-378.93-379, a nd 93-488. Asamsued effectiveMarch 22. 1996. IPet. No. 95-005) severalpeop le who had opposedher I 992 campaign for circuit judge. Asamfiled suit both in state and federalcourt. Dismissals Surrender of License of all lawsuitswere affirmedat both the state and federall evel. • Hunlsvilleattorney Walter Jasper Price, Jr. has surren ln ASBNo. 94-176.Asam undertook a medical malpractice dered his license to practice Jaw in lhc State of Alabama.By action on behalf of a client. Suit was filed,and defendants order of lhe supreme court, Price's license to practice lawwas filed motions for summary Judgment. The court twice warned cancelledand annulled effective April 25, 1996.I Rule 22(a); Asamthat the defendants' motion for summary judgment Pet No. 96-031 would be granted unless Asamcou ld provide expert testimony Disbarments supportiveof her lawsuit.Asam tried to qualifyhersel f as a • On March28 . 1996, the Alabama Supreme Court entered medical expert. even though her aft1davitfaile d to refute the an order disbarring Jackson. i\labamaat torney James A, arr.davitof the defendantdoctor. Summaryj udgment was Tucker, Jr. 1\tcker had earlier pleaded guilty lo a violation of granted for defendants.Asam then billedher client even TiUe38, Section 9-2, Codeof Alabama (exploitationof the though she had agreed to handle the matter on a contingency elderly), which is a Class C felony.As part of his plea agree fee basis. Without the client's knowledge, Asamappea led the ment with the Stale of Alabama,Tucker agreed to consent to supreme court's amrmance of the circuit court's dismissal to disbarment, and formallydid so on March 11, 1996. The evi the United States Supreme Court. dence showedthat Tucker had fraudulentlyobtaine d a deed ln ASBNo. 94-175,Asam filed two wrongful death actions from an elderly c:lientwhich conveyedher interest in 700 which were dismissed, with the Supreme Court of Alabama acres of Family land to a real estate entrepreneur from anoth affirmingthe dismissals. Asam then filed suit in federal court er city. Tuckerwas paid $15,000by that individual. Tucker is on the identicalcla ims. The complaint was dismissed, with also serving a ten-month sentence in county jail. IRule 23(a), the court of appeals affirming lhe dismissal,an d lhe United Pet. No. 95-001I States Supreme Court denyingcertiorari review. • Tuscaloosaattorney Julia McCain Lampkin Asam was dis The Disciplinary Board found Asamgui lty of 17 separate barred by order of lhe Supreme Court of Alabama,effective violations of the Alabama Rulesof ProfessionalCond uct and March28, 1996.Asam's d isbarment was based upon her having ordered that she be disbarred.Asam appealed h er case to the been found guilty of multiple violationsof the AlabamaRules Supreme Court or Alabama. The Supreme Court of Alabama of Professional Conductin eight separate bar complaints. initiallyaffirmed. without opinion. On Asam's applicationfor Jn ASBNo. 92-254, Asam filed a civilaction on behalfof a rehearing. the Supreme Court of Alabamagranted the appli client who received an on-the-job injury in 1973.Ot her coun cation for rehearing, withdrew ils initial affirmance,and sub sel had settled the client's personali njury claim and a workers' stituted a 30-pageo pinion wherein it affirmedthe disbarn1ent compensation case in 1974. Some 16 years later. Asam filed of Asam.lASB Nos. 92 -254, 94-177, 93-476,93 -378, 93-379. suit in the circuit court on behalfof this same client claiming 93-488,94- 176, and 94-1751 to have "newly discovered evidence." The trial court dismissed Suspensions the complaint and imposedsa nctions against Asam. Asam then • Birmingham attorneyW U!iam Dowsing Davis, rnwas sus filed an identical action on behalf of the client in federal court. pended from the practiceof law for a period of 60 daysby order The district court dismissed the complaint, the Court of Appeals of the supremecou rt, effectiveApril 2. The supremecourt found for the EleventhCircuit affirmedthe dismissal, and U1eUni ted that Davisexpended substantia l amounts of moneyon advertis Stales Supreme Court denied certiorari review. The Eleventh ing. primarilyte levisionadve rtising,and this advertising altr•ct• Circuit also imposedsanctions agains t Asam.Over $32,000 in ed a large number of clients. Asa result of Lhis large advertis sanctionswere imposedagainst Asamin these two cases. ing expenditureand the volume of clients resulting there ln ASBNo. 94-177,Asam filed su it against a circuit judge. from. Davisimplemented severa l policiesdesigned to mini During the discoveryph ase of the lawsuit, Asamavoided mize expensesand maximizeprofils. Th ese policies included notice and service,and failed to cooperate with regard to allowing nonlawyer secretariesto providel egal services.i nter depositions scheduling. The circuit court granted the judge's viewclients and preparelegal fil ings, especially bankruptcypetl· motion for summaryj udgment, which was affirmedby the AlabamaS upreme Court. Asam filedthe identical suit against (Continuedon page 216) ., §f jI j5 j fFi ·111 The , VobomoIA1tyrr Cum.herland School of Law of Sam.ford University Continuing Legal Education Fall 1996 Seminar Schedule September 6 D~-dopments and Tnnds in Health Care Law [co-sponsored by Baptist HealthSystem, lnc.l - 13inningham 13 Alabama Mini-Code Binnlngham 20 Advanced Personal Injury Binningham 27 White Collar Cruru:s Blnnlngham October .. 7th Annual Banlauptcy Law Seminar - Binnlngham 11 Litigating the Class Action Lawsuit • Binningham 18 Elda Law: What Evey Practitioner Must Know - Binningham 19 AUBAa.E Conference (co-sponsoredby CumberlandSchool of law] - Auburn November 1 Securities Regulation iD Alabama - Birmingham 1 Munjcipal Court Practice and Procedure - Huncsville 8 10th Annual Workers' Compensation Seminar - Birmingham 15 Recent Developments for the Civil litigator · Binntngham 15 Municipal Court Practice and Procedure • Mobile 22 Mastering Evidence and Opening St.u:menc and Final Argument f uuuring James W. McElhaney- Birmingham December 6 Representing Alabama Businesses - Binningham 6 Recent Devtlopments for the Gvil litigator • Mobile 12 Writing to W1n: The Esswti.alsor Writing for litigators fwturing Skvvi D. Starlt • Birmingham 20 Current Issues ln Employment law - Birmingham 30-31 a.E By The Hour Brochures describing the specific copies to be addressed and listing the speakezsfor each of the seminarswill be mailed approximatelysix weeksprior to the seminar. lf for any reasonyou do not receive a brochure for a particular seminar, write Cumberland CLE, Box 292275, 800 Lakeshore Drive,Binningham, AL35229 -2275, orcall870-2391 or l-800-S88-7f5f . Additionalprograms may be added co the schedule. Discl plin•ry Notice duct) in Uiathe engagedin conduct in,•oh•ingdishonesty, fraud,deceit or misrepresentation.IASB Nos. 94-366& 95-601 (C,,,,ti,w,oJfrom page 214) • On April 12. 1996,the d1sc1plmarycommission of the lions. Nonlnwyerstaff members al50 g.1\-e clients legal advice AlabamaState Barentered an order interimlysuspending such as "informing"clients of the differencesbetween Chapter 7 Mobilela~r LeMarcusAllen Malonefrom the practice of and Chapter 13bankruptcy. Davis also Instituteda practice lnwunder Rule 20 of the AlabamaRul es of Disciplinary wherebyassociate attorneys would not Interviewor haveany Procedure.The DisciplinaryCo mmission found that Malone's contllcl with the client beforethe nrsl scheduled court appear continued conduct was causing harm lo the public. Malone ance. Davisalso imposedunmanageable case loadson associate had, on several occasions.accepted money from clients and auorn,,ys.many o f whom were inexperienced.Davis further then failed to perform lhe legal servicesthey had contracted failedLo provide his associateswilh adequateequipment. sup \\ith him. !Rule20(a ); Pet No. 96-011 pliesand supportstaff. which coupledwith the huge \'Olumeof • BirminghamaUomey Russell T. Mc.Donald, m wasSUS · cases1mPOsed upon the associates, createda situationin which pended from the practice of law for a period of 91 days. Th• fileswere mishandledresulting anharm to the interestsof Supreme Court of Alabamamade this suspensioneffective clients.Davis also institutedpolicies which imposedtime limits May6, 1996.McDonald represented a bail bonding company or restrictionso n the amount of time associatescou ld spend on its collectioncases. McDonald'smother was 25 percent wilh clientsand on cases.l'uthermore. Davis imposed a quota owner of that company.I n one particular case, McDonald col system lhal requiredassociates lo open a specifiednumber o f lected U1esum of SJ.300in lieu of foreclosure on property filesin a cert11in lime period.Davis inst ituted a policyrequiring which had been mortgaged to secure n ball bond. Al the lime associatesnot lo return the telephonecalls of existingclients, so he colleded the money,lhere was. ln fact, only $160 sllll that the auomeys \\'Ouldha1-e more fn:e time to sign new owedby the mortgagor. When the 01•erpaymentwas discov clients.Davis was found lo be guilty of misleadingadvertising ered.McDonald failed to rCJlily!he money.which hlld not been practices.in that he and the attorneysunder his supervision returned to his client in any event.McDonald also refusedto were not competentor "illing to providethe qualityof legalser cooperate in the investigationof the grievancefiled by the vicesadvertised. mortgagor.IASB No. 94-244(A)I Davis' conduct was found to be in violationof Rule 1.1 of the Rules o( Professional Conduct (fallureto providecompe • Birminghamattorney Dan Arthur Goldberg was suspend tent reprcsent.ition);Rule 1.4(fa ilure to keep clients reason ed from lhe practice of law for a periodo f 60 days by order of ably informedand failure to reasonablyexplain a matter so as the supreme court, effective May 31. 1996. The su11remeco urt to permit a client to make an informeddecis ion); Rule 5.l round that Goldbergexpended substa ntial amountsof moneyon (failureto make reasonableefforts lo ensure that lawyers advertising,primarily television advertising, and this advertising under his supervisionconformed to the Rulesof Professional attracted a large number of clients.As a result of this large Conduct);Rule 5.3(b) (failureto ensure that the activitiesof a ad\'ertisingexpenditure and the volume of clients resulting nonlawyerunder an attorney's supervisionare compatible therefrom. Goldbergimplemented several policies designed to with professionalstandards); Rule8.4(a) !violationof the minimizee.,cpenses and maximizeprofits. These J)()licies includ Rulesof ProfessionalConduct through the acts of another); ed allowingnonlawyer secretaries to providelegal services, Rule 8.4(d)(engaging in conduct prejudicialto the adminis interviewclients and prepare legal filings,espec iallybankruptcy tration of Justice);and Rule 8.4(g)(engag ing in conduct that petitions.Nonlawyer staff members a lso gavecl ients legal11dvice adverselyreOects on U1e lawyer'sfitness lo practice law). IASB such as ''informing" clicnls of the differencesbetween Chapter Nos.92- l34(A),92-'105(A) and 92-451(All 7 and Chapter 13 bankruptcy.Go ldberg also instituted a practice wherebyassociate attorneys would not interviewor haw any • Birminghamattorney Harold EvanJ Whaleywas suspend contact with the client beforethe first scheduledcourt appear ed from the practice of lawin the State of Alabama for a peri ance. Goldbergalso imposedunmanageable case loadson asso od of thrtt years effectiveMarch 14, 1996.The Supreme ciate attorneys. many o( whom were inexperienced.Goldberg Court of Alabamaentered the order of suspensionbased upon further failedto providehis associates"ith adequateequipment, Whaley'shaving pied guilty to formaldisciplinary charges suppliesand support staff, which coupledwith the huge vol· which had been filedagainst him. ume or casesimposed upon lhe associates, createda situation in Whaleywas engagedby CompassBank of Birminghamto whichfiles were mishandledresulting in harm to the inlere$lo f closece rtain mortgagel oanson behalf of lhc bank. ln November clients. Goldberg also instituted policiesw hich imposedlime 1993,Wha ley closeda mortgageloan for CompassBank where limits or restrictions on the amount of time associatescould by sufficientfunds were placedin his trust account to satisfy spend with clients and on cases. F'urthermore.Goldberg six mortgageson the proper!)•in question. However,Whaley imposeda quotas}tslem that requiredassociates lo open a spec failedlo satisfythese mortgages.Whaley repeated this mis ifiednumber of filesin a cerlllin lame period.Goldberg also conduct in a second matter in July 1995. instituted a policyrequiring associatesnot to return the tele Whaleypied guilty lo havingviolated Rule 1.15 (safekeeping phone calls of existingclients. so lhal the atlomeys would property)in that he failedlo promptlydeliver to a third person havemore free time to sign new clients.Goldberg was found funds which lhal third personwas entitled to receive;Rule lo be guilty of misleadingadvertising practices. in that he and 8.4(a) (misconduct) in that he violatedor attempted to violate the attorneys under his supervision were not competentor the Rulesof Professional Conduct:and Rule8.4(c) ( miscon- willing to providethe qualily of legal servicesadv ertised. Goldberg'sconduct was round lo be in violationof Rule I.I probatethe estate as he had beenemployed to do. or to take any o( LheRul es of ProfessionalConduct (failure to providecom other legal action on behalfof his client. Rolandalso failed or pelenl representation);Rule I A (failure lo keep clients rea refused lo respondlo numerous requests for informationfrom sonably informedand failure to reasonably explain a matter so his client or lo otherwisecommunicate with the client concern as to permit a client to make an informeddecision): Rule 5.1 ing the status of the estate. Afterapproximately one )"ear during (failure to make reasonableefforts lo ensure that lawyers which Rolandnwle no progresswhat.soe\ler in probatingthe under his supervisionconformed to the Ruleso f Professional estate, his client fileda complaint with U1e Alabarrn,State Bar. Conduct):Ru le 5.3(b) (failureto ensure that the activitiesof a This com1>laint wasforwa rded to Lhe TuscaloosaCounty Bar nonlawyerunder an attorney's supervision are compatible GrievanceCommittee for investigation.Roland failed or refused wilh professionalstandards); Rule 8.4(a) (violationof the to cooptratewith the grievancecommittee in its imiffligalion, Rulesor Profmional Conduct through the acts or another): refusedto respondto requestsfor informationand refusedlo Rule8A(d) (engagingin conduct prejudicialto the adminis providea written responseto the complaint afterhaving promised tration of jusllce): and Rule8.4(g) (engaging in conduct lhnt to do so. The Disciplinary Commissiondetermined that Roland's adverselyreflects on the lawyer'sfitness lo practice law). IASB conductviolated Rules 1.1, 1.3,1.4 and 8.1 of the Rules of Nos.92-134(8). 92-405(8) and 92-451(8)1 DisciplinaryConducl In additionto the reprimand.Roland was requiredto pay to his clientthe sumof Sl,500. IASBNo. 95-1251 Public Reprimands • On April l2. 1996, Birminghamattorney WilliamJa ckson • Mobile attorney Don OdeUWhlle receiveda public repri Freeman received a public reprimandwithout general publi mand, with general publication, on May 17, 1996. In April cation for violating Rule3.10 of the Rulesof Professional 1993,While was indicted by the MobileCounty Crnnd Jury for Conducl Rulf 3.10 prohibits the threatening of criminal criminal income tax violations.In October 1994.Whi te pied prosecution solelylo gain an advantagein a civil matter. guilty to willfullyfailing to me an Alabamaincome Laxreturn. rreeman was representinga plaintiffin a Tille VII action and Pormalcharges were filedagainst \.l'hlteby the Alabama engagedin a variety of abusiveII Ligation tactics. A protective Stale Bnr based upon his conviction.White entered a plea of order was granted by the U.S.District Court at the defendant's guilty wherein he admitted: Committinga criminal act which requesl In the Court's order. the issue of f'reeman's letters to defensecounsel was addressed." The languageand tone sug gest that Plointiff'scounsel is engaging in extortion and/or blackmail of defendants and the law firm representing them:• WE SAVE YOUR The court further found that the plaintiff's"tactics of TIME . .. threats to promote settlement" raised "serious ethical ques . - tions." IASBNo. 95-041(Al) ~ !<,: amell Now lrgal researchas~istance • On April 12, )996, Gadsden allorncy Leon Carmon is uvnilnblcwhen you need 11. receiveda public reprimandwith general publicationfor vio L E G A L wilhou11he necess,1y of lating DisciplinaryRule 1-J02(A)(6),in that he engagedin addinga full-timeas,oc1a1e or Research conduct which adverselyreOected on his fitness to practice clerk law; Rule 7-102(A)(l), in that he filed a sult, asserted a posi tion, conducted a defense,de layeda lrial, or look other action With access 10 lhC Srn1eLaw Librarya nd Wcs1tnw.we on behalf of his client when he knew it was obvious lhat snld provideras1 and cfficieniservice . Ford~dline work.we action servedmere ly to harass or maliciouslyinjure another; can dchver 1nform~1,on10 you , ,a commonearner. and Rule 7-102(A)(8) for knowinglyengaging in other illegal FederalExprc,,. or FAX. conduct or conduct contrary to a disciplinaryrule. Carmon had previouslyemp loyed a lawc lerk until such FnmellLegal Rcse.irch examine, the issue, 1horoughly lime as he passedthe bar e~am. Uponthat individual's suc throughquali1y research. brier writingand anuly\b. cessfulcompletion of the bar exam, he left Cannon's employ. Thereafter.three of Carmon's former clients requestedthat Our 1'3les arc S35.00per hour. wnh • 11utt hour he withdrawas counsel and allowthe former lawclerk lo rep minimum. resent them in their legal matters.Jn responsethereto, Carmon For Resea rch Assistance con tact: sent a letter, with attachmenls to the three former clients wherein he includedcopies of correspondenceto the former Sarah Kathryn Farnell lawclerk from the stale bar regarding his bar exam results. 112 Moore Building The aforementionedletters servedlo harass and degrade this Montgomery, AL 36104 individual.IASB No. 89-3211 (334) 277-7937 • Tuscaloosaattorney Roger Shayne Roland was given a public reprimandwith general publicationby the Disciplinary Alabama Bar M>_....,, .,,...,,. ....c,.Alttd"' ...... ll>l»f)&b11al Commissionof the State on January 12, 1996. ,,,_,,,.,,,..,~dlegal._f)&bmedby-lo.,.n Rolandwas emploYedby a client lo probate an estate and was paid the sum of $1,500.Th ereaner. Rolandfailed or refused lo reflects adverselyon his honesty,trustworthiness or 01ness as attorney's participationtherein. The DisciplinaryBoard found a lawyer(Rule 8.4(b)I: and engagingin conduct which a~oerse that Carmon's conduct in this matter violated the above.stat ly renec1son his fitness lo practice law. (Rule 8.4(g)f ed provi.sionof the former Codeof ProfessionalResponsibility As a l).)rl of White's plea lo disciplinarycharges. he recei,-ed or the AlabamaState Bar. (ASBN o. 90-601(8)1 a 45-daysuspension from the practice or law,which suspen. • On April 12, 1996, Cadsdenauomey Leon Garmon sion hasbeen abated for a period or two years. During this receiveda public reprimand without general publication for lwo·yearperiod While is to certify to the Officeof Ceneral vrolalingDisciplinary Rule 1·102(A)C4), in that he engaged in Counsel that he hasfiled and paid his income taxes for 1995 conduct involvingdishonesty, fraud. deceit or misrepresenla· and 1996, and not commit any violationsof the Al:lhama tion. and Rule 3· 10I (A) in that he aided a non lawyer in the Rules or ProfessionalConduct. (ASBNo. 93· 1 IS(D)I unauthorized practice of law. • Tuscumbiaattorney Murray W. Beasleyreceived a public In 1990, Garmonundert ook lo represent the interest ofa reprlm;ind without general publicationon April 19, 1996. In criminal defendanto n a retained basi~. He employed an attor 1982 Beasley representtd the complainant, Reba l{ilpalrick. ney who had previously been suspended from lhe practice of now known as Reba Dick,in a divorceproceeding. In 1985 law in the state or Alabama. Beasley represented Jere Rosenblumin a divorceproceeding However.Garmon directed his employee, lhc suspended against his wife, Reha Rosenblum,formally Reba Kilpatrick allorney, to attend a preliminaryhearing with the client, and now Reba Dick.In 1987 Beasleyrepresented Reba being aware lhal this individual was not licensed lo practice Rosenblumin a petition for contempt filedagainst her ex• law in the state or Alabama.Carmon further failed lo inform husband. Jere Rosenblum.In July 1993Beasley represented the court that this individualwas nol licensedto practice law Jere Rosenblum.and liled on his behalf,and against Mrs. in the state. The disciplinaryboard determined that Carmon's Rosenblum, a pelillon lo modifythe di\'Orcedecree to giw conduct violatedthe abovt·stated provisionsof the former custody o( the children lo Mr. Rosenblum.Beasley entered a Cod11of ProfessionalResponsibility. IASB No. 90-424) plea or guilty lo havingviolated Rule 1.9 or the Rules o( • Mobileattorney Johnny Mack Lane receiveda public rep ProfessionalConduct which prohibit an attorney who has (or. rimand, with general publication,on April 12, 1996.In April malty represented a client from representing another person 1993, Lane wasindicted by the Mobile County Grand Jury for adverselo the former client, in the same or substantially criminal income tax violations. In March 1994, Lane pied related matter. IASBNo. 93-4821 guilty lo willfully failing to file an Alabama income tax return. • On April12, 1996, Gadsdenatto rney Leon Gannon received Formal chargeswere nled a!lllinslLa ne by the AlabamaState a public reprimand wiU1oulgeneral publication for vlolalln~ llnr based upon his conviction. L.1neentere d a plea or guilty DisciplinaryRule 3-IOl(A)in Lhat he aideda nonlawyerin lhc whereinh e admitted Violatingthe AlnbamaRules of Professional unauthorized praclice or law. Conduct and/or a disciplinaryrule (Rule 8.4(a)I;com mitting a In or around December1988, an attorney who had been criminal act which reOeclsadverse ly on his honesty.trustwor· suspended from lhe practice of law in the Stale of Alabama lhiness, or fitness as a lawyer (Rule 8.4(bJI:engaging in illegal associatedemployment with Garmonas as attorney. conduct involvingmoral turpitude (Rule DR 1-102(A)(3)1; Carmon had undertaken the representationof a client in a engaging in conduct involvingdishonesty. fraud, deceit or mis crimin.,1matter. Thereafter. the prosecutor handling the case representation(Rule 8.4(c)I;and. engaging In conduct which receivedcalls from the suspended attorney, who wasin adverselyreflects on his fitnessl o practice law (Rule8.4(g)). Carmon's employ.by and on behalfor the c:lienLThis employ. Asa part of Lane's plea to the disciplinarycharges. he ee even negotiated wllh the prosecutor a plea agreement in receiveda 45-daysuspension from the practice of law, which the case wherein Carmon was counsel of record. suspension has been abated for a period of two years. During On or about April 12, 1990.that employeeappeared in open this two-yearperiod Lane is lo certify to the Officeof Ceneral court with Carmon's client, at which lime the client entered a Counsel that he has filed and paid his income taices for 1995 plea or guilty 10lhc charges. Garmonwas not present OI lhese and 1996, and not commit any violations o( the Alabama proceedings,bul was aware of U1csame and orl he sus11cnded Rules orProfessional ConducL (AS B No. 93· 1IS(C )I • Do You Need a Tree Expert? RichardWilson & Associates • Tree Va luati ons * Tre e Protection Registered Professiona l • Pesticide Dama ges * Timber Tr espass Court Reporters * Tre e Care * Tr ee Assess ment s • Registered Foresters * Certified Arbor ists 804 S. Perry Street Montgomery, Alabama 36104 South er n Urban Forestry Associntes 205-333-247 7 264-6433 P. 0. Box 1403, Northport, AL 35476 ay .. ~ &wDay ebmmifr~member ChrisChrist and C;,mmit~~o Drisla1L_, ., (center)join volunteerjudges from IliaJAG school in presanting1996 / ,aw Do[FPo.vterConfest w1i1J} he theme of this year·s LawDay The Creal Experiment: Dream or celebrationwas "The U.S. The 1996 Law Day Reality? TConstitution-the original "... The authors or the Constitution Americandream." And,according to winners are: probablydid not all agree on each issue almost 200 essaysand over 50 posters Poster Contest and objectiveduring the construction entered in the ASB'sannual essa)•/ 1st place: Jason Motes o( it but compromisewas reached oul poster contest, the dream is still alive. or a sense or duty to the American 2nd place: Leah Smith (Entries in the poster contest, new this Dream o( individual freedom.T he year for grades K-5,were all displayed 3rd place: DrakeRoberts future or Americadepends on whether al ASBheadquarters.) United Stales (all of the aboveare from Indian its citizenswill tolerate indilferenceand SavingsBonds were awardedto win Valley4th gradein Sylacauga) injustice,and if they do. then the ners; participatingschools receivedcer AmericanDream is sure to become Uw Division 1 Essay Contest : tificates.Local a nd state LawDay American Nightmare. But if the people lsl place: Roshan Patel, 5th grade, Committee memberswere interviewed or this country cont.inue to and VestaviaCentral, Birmingham accept on MontgomeryTV programs:ASB perform the duties and responsibilities PresidentJohn Owenswas a guest on 2nd place: PamelaMcNeil. 7th grade, which are essential to the preservation APT'sstatewide " For the Record". Also, GreenvilleMiddle School o( a free society,then the American updated public serviceannouncements 3rd place: Nicole Ledesm~, 7th Dreamwil l continue for future genera· continue to run on stations in major grade, WesllawnMiddle Schoo l, lions as the Founding fathers original cities. A LawWeek Awareness publica Huntsville ly intended." tion appeared in The Montgomery -J onathan 0. Barbee Division 2 Essay Conte st: Advertiseron April28 with editorial 1st place: Jonathan Barbee,11th information covering LawW eck and grade. Hewitt-Trussville High School ASBpub lic services and brochures,gen Tbe ll.S. Constitution- The erating requests for brochures and calls 2nd place:Vanessa Aldridge. I 0th American Ore~m regardinghighlighted programs. grade, Muscle Shoals High School "America'shistory changedwhen LawDay contes t judges this included 3rd place: Brad Byrd. I 1th grade, James Madison dipped his fine, wooden LawDay Commi ttee membersand rep Muscle Shoals High School quill pen in a jar o( ink and wrote the resentativesor the JAGSchool at Maxwell famous,large , bold print words, "We Honorable Mention Air force &!le. the Peoplt... " on parchment paper in Certificates: Awardsare presented in thru cate 1787.The document he wrote is known DorieChassin, 5th grade. UMS gories: K-4th grade (poster contest) and as the UnitedStates Constitution, Wright PreparatorySchool. Mobile S~lh and 9th-12th grades (essay which set up our national govern contest). Pirsl. second and third place Nathan Ryan, J 1th grade, Muscle ment... winners in each categoryreceive U.S. Shoals High School •••Be grateful of your rights and free SavingsBonds, as well as certificatesof LeighAnn Moncus,12th grade, dom. We owe it all to the UnitedStates honor. Honorable mention certificates ValleyHigh School. Lanell Constitution-the Americandream." are also awardedin each category. • - Roshan Patel •·~~ II i'ISIFFIVJEml Alabamian Set to Lead American Bar Association by Susan CullenAnderson N. LeeCooper, president-elect of the American13.ir ~iation , lion." Coopersaid or the position.(or which he ran unopposed. hastraveled a long road since his daysas a ladies' shoe sales As a young 13'"}-erin 1972.Cooper was introduced lo the man in lhe late 1950s. I le beJieves.however , that the experi AmericanBar Associationwhen the annual conventionwas ence was invaluable.·To be a goodtrial law)'tr,you ha,-eto held in San Francisco. "I wanted to go lo San Francisco." he have been a ladies' shoe salesm.111:Cooper said, explaining said or his motivesfor becominginvolved. Al the lime, he was thnt it taught him diplomacy. nctivcIn the Alabamn Slntc &r's YoungLawyers ' Section (he "Youcan't fit a size 12 fool in a size 8 shoe," he said. servedas president in 1976).and he became Involvedin the When Coopertakes over the reins in Augustas the president AmericanBar Association's Young Lawyers' Division. or the AmericanBar Association.his diplomaticskills will be in Cooper, the son of a collegefootball coach, grew up in sev demand. He estimates he will tr.i,-cl300.000 air miles and give eral areas of the UnitedStales. His fathersettled into private hundreds or speechesand lntel'\lle,,.-sin his year of service. business m Birminghamwhen Cooperwas a junior al Shades "I have been told the biggestproblem is ValleyHigh School.where he was captain getting lhe bills paid and the laundry or the basketballteam. done,'' Cooper said. Mealswill not pre Cooper met his wife,Joy Clark Cooper sent a problem, however.Coo1>er expects "To be a good trial or Tuscumbia.on a blind date when he to eat a heny amount or chicken and lawyer , you hove to was an 18-)"tar-oldfreshman al the green peas, the staple or any self-respect Universityof Alabama.They will celebrate ing service· club luncheon. "I'll be on hove been a ladies' their 34th anniversaryat about the same the old chicken circuit." he said. shoe salesman," time he takes over the helm or the Cooper, 56, a partner al Maynard, AmericanBar Association. Their son, Cooper & Cale in Birmingham, is only Cooper said, Clark. 28. is an attorney with Burr & the second Alabamian to he.idthe nation explaining that it taught Forman in Birmingham, and their al bar 1\SSOCiation.The lirst was Henry him diplomacy . daughter, Catherine,26 , is an omcer and UpsonSims, who served as president for branch manager for AmSouth Bankin the 1929-1930term. Cooper tries nol to "You can 't flt a size 12 Birmingham. contemplatethe enormity o( the job foot in a size 8 Cooper receivedhis lawdegree from ahead, instead focusingon the day-to-day the Universityor Alabamain 1964and tasks.which already have includeda visit shoe," he said. servedin the U.S.Army for a two-yeartour. lo the UnitedNat ions and severalstints Whilehis serviceas a firstlieutenant was on talk radio.'' It's an excitingchallenge," during the VietnamWar, he was stationed he said. "I'm going to have a great lime." al rorl Lee,Virginia for the entiretyof his The AmericanBar Associationwas Lour.In 1966.Cooper and his wifereturned esbblished in 1878, and it is the largest to Birmingham,where he be8,1nwork as voluntaryprofession.ii organization in the an associateattorney for Cabaniss, world, Coopersaid. ll has 340,000 mem Johnston(from which Maynard,Cooper bers and a $125 million budget, with 750 split off in 1984). full-time staff members In Chicagoand In 1974,Coope r was invited Lothe for Washington,D.C. As president, Cooper mation or the litigation section or the will be based in Bim1ingham,but he will AmericanBar Associationbecause he spend a great deal or time in Chicagoand was a member or two minority groups: Washingtonin additionl o the extenm.-e lie was young, and he was from the tra\"I elsewhere. South. From lhal time forward.Cooper served the association I le will run the Boardor Governors,write monthly columns in many capacities. leading to his current role. (or the ABAJournal, and dealwi th the media,among other duties. ILwou ld have been easyto focuscompletely on his lawprac "It's tJ1ewho le business of running a S125 million corpora- tice, but Coopersaid he feels stronglyabout attorneysand public •a ·tl'ISIPFl·II ~Alobmna laapr seTVlce."Lawyers are licensedby the state." Coopersaid. " I feel Cooper said the political rhetoric ,s harmful. PresidentBill like we\-e beengi,'etl the privilegeor self.regulation. Wehll\,e a Clinton and Republic.inpresidential c.indidale Bob Dolear e higher calling." he said.·Lawyers have to paytheir civic ren1;· ··irresponsible" to attack the federaljudiciary as ··causing" He said he choseto pay his rent by his servicel o the bllr crime, Coopersa id. ll is imperative that lhe federalJudiciary association;others pay it by serviceto community organiza remain free from polilical pressure,because on ly an indepen tions and their churches.H oweverit is done.Cooper said. it dent judiciary can preserveconstitutional freedoms,he said. must be paid. After his year as pre$identis n.r~u. .,,.,. lll i'iSiffiiffiml CLE OPPORTUNITIES Thefollowing in-stole programshaue been approued for credit bv tho AlabamaMandatory ClE Commission.H o,ue/N!_r,informa l ion is ovailab/ofree of chargeon over 4.500approved 11rograms 11alio11wide identified by location dato or specially area. Contact Iha MClE Commissionoffice al (3.14)269-151 5. or J-800-354-6154.and a complete Cl£ c/Jl1md11r111/11 be mailed lo you. 15 Monday 23 Tuesday JULY TIMBER & THE FEDERAL Ll ~UTEO LIABILI TY COMPANIES lNCOMETAX JN ALABAMA 9-12 Tuscaloosa Birmingham SUMMER CONFERENCE Aubum Uni,,.erslty NationalBusiness Institute. Inc. OrangeBeach CL£ credits:7.0 CLE credits: 6.0 Alab.1m.iDistrict Attorneys (334)844-IIT042 (715)835-8525 Association CLEc redits: 8.3 (334)242-4191 16 Tuesday 25 Thursday MEDICAL ~IALPRACTICElN RECENT DEVELOPMENTS IN ALABAMA INSURANCE LAW 10 Wednesday Birmingham Birmingham BASIC PROBATE PROCEDURES & NationalBusiness I nstitute. Inc. LormanBusi ness Center,I nc. PRACTICE lN ALABAMA CLEcredits: 6.0 CLEcredilS: 6.0 Birmingham (715)8.15·8525 (715)833-3940 NationalBusiness ln slitute. Inc. CLEcredits: 6.0 ESTATE PLANNING FOR FOREST 1715)83S-852S 26 Friday LANDOWNERS Tuscaloosa PRACTICAL DEFENSE OF DUI & AuburnUniversity VEHICLE ACCIDENTS MASTERJNG REAL ESTATE Huntsville TITLES & TITLE INSURANCE CLEcredits: 7.0 (334) 844-1042 SBI Professional Development Mobile Seminars,In c. NationalBusiness In stitute, inc. CLEcred its: 6.0 CLE credits: 6.0 17 Wednesday (800)826- 7681 (7J 5) 835-8525 TRYINGTHE AUTOMOBILE lNJURY CASE IN ALABAMA Mobile 30 Tuesday 13 Saturday NationalBu siness Institute, Inc. BAO FAITH LITIGATION J,N TIMBER & THE FEDERAL CLEcredits: 6.0 ALABAIIIA INCOMETAX (715)835-8525 Birmingham Monroe\'ille NationalBusiness I nstitute. Inc. Aubum Uni,-ersity CLE credits:6.0 18 Thursday (715)835-8525 CLEcredi ts: 7.0 TRYINGTH E AIJl'OMOBILE (334) 844-1042 INJURYCASE IN ALA.8/\i\lA Montgomery Nationnl BusinessI nstitute, Inc. CLE credits:6.0 (715)8.15-8525 II zwjI j 5 I IU1l,II r,,. AldbumaIAU'Vff' 22 -24 13 Friday AUGUST MEDIATION PROCESS & ALABAMA~UN I CODE TH~~ SKILLS OF CONFLICT Birmingham 3 Saturday Mobile Cumberland 11,stltule for cu; INFERTILITY, ABORTION & MediationCorporation CLE credits: 6.0 THE RICHT TO DIE CLE credits: 21.0 (800)888-7454 Birmingham (800) ADR-FTRM Institute for Natural Resources CLE credits: 5.8 20 Friday (5!0) 450-1650 SEPTEMBER ADVANCED PERSONAL INJURY Birmingham Cumberlandlnstilule for CLE 8-10 6 Friday DE\IELOPMENTS& TRENDS IN CLEcredits: 6.0 MEDIATION PROCESS& (800)888-7454 TKE SKlLI.S OF CONFLICT HEALTH CARE LAW RESOLUTION Birmingham Hunt,vi lie CumberlnndInstitute for CLE MediationCorp0ration CLE credits: 6.3 CLEcredits: 21.0 (800) 888· 7454 (800), \DR-FIRM 9 Friday PRACTICALDEFEN SE OF DUI & VEHICLE ACCIDENTS PhenixCity $Bl ProfessionalDeve lopment Seminars CLE credits: 6.0 (800) 826-7681 9.10 TAX ON THE BEACH Gulf Shores OVALLPublishing Company, In c. CLEcredits: 8.3 (800)252-5297 14-18 Mlsgsgpp1v.tlley TIiie Im thesmngsh and Sl.1bihty oforo 50)-C:US m thetide DIVORCE& CHILD CUSTODY businc:ss.cmsec:ull\1: At r.u,g; IranS/andmd6, Poor , nl the~ pcs MEDIATION llOll ofbong the number ont tidea= II\ lxxh~f~ppi andAbbwa. Montgomery Wuhour suenR\h ruid e,qienence, we combinethe flexibility 10sol\,c }'OOt School for lfap uLe Resolution toughtide p rolilems\\ilh o willingnessto wo rk whhyou towards re:il so luuons. CLE credits: 40.0 Becauset11Miss1$1ppi v.tlley Tide. FlcxSulbthty tSn\ jusi a c:ona:pl.n's the way (404) 299-1128 \\'t ...... do busmess. 21 Wednesday .. . IMPACT OF THE ADA ON • MISSISSIPPI VALLEY TITLE WORKERS' COMPENSATION •,. * • INSURANCE COMPANY Birmingham ... Lorman BusinessCenter, Inc. The Fkxibility You Need. Tl,e Slability You TntSL CLE credits: 6.0 ) lHom~iu... • ~M"""'Pf1 l9W, • t,01..\loQ.(lill• ~7-212'1 (715) 833-3940 11w~,,,.,"""'° II i'ISl£¥!UtfE 11111LEGISLATIVE WRAP -UP 1996 Regular Session which Alabamaadopted in 1989. This In the second degree regardlessof injury The AlabamaLegis lature began meet repeal becameeffeclive In May1 996. lo the officer. ing in early January and has been in ses Joint Cuslod)' (SB 267). Sponsors are HB 368-Amends AlabamaCode sion either in a specialsession or the Senntor RogerBedford and Representative Section 22-52-1.2to excludethe home current regular session since U1attime. HowardHawk. This ncl does not require addressof the petitioner in an involun On Monday,May 20. 1996.the Legislature that joinl legalcustody be awardedin e,>el)' tary commitment proceeding. adjourned.There were J ,793 bills intro case exceptwhere the parties request HB 489--Regulates windowtinting. duced in the legislatureand 653 of them joint legal custody and even then subject HB 608-/\ uthorizes the ust of an passed. However, less than 120of the bills to approvalby lhe judge. This ad will audio-videocommunications system at affectedthe st.1teat large.In addition,there become eJfecli\"cJanuary I, 1997.See any criminal pre-trial proceeding_The were 835 rt$Olutioruintroduced of which Nabama Lawyer,May 1995. physicalpresence of a defendantis not virtuallyall passed. The ~ that attract The Institute bill on legal separation requiml in open court upon the use of ed mosto( the attentionwas the Mini-Code sponsoredby Rtpresentati\-eMarcel Black audio-videosystems . bill (SB5871 which passed on the last day passed the House of Representativesbut HU 652-Amends AlabamaCode was not acted on in the Senate. Section 18-lA-3et al to clarifythe cost Institute BIiis Other bills of interest to lawyersare as associatedwiU1 condemnation actions Partnership with Limited Liability follows: and eliminate U1e30-day period in Partnership (HB 184). Passedthe legis HB 82-llevocalion of driver"slicense of which the probatejudge is required lo lature and will be effectiveJanuary 1, a non-custodial parentwho is six months conduct a hearing after the rnIng of a l997. The passageof this bill was due in in arrears of court-orderedchi ld support. condemnationcomplaint. large part lo the sponsorshipo f Repre HB 86-The Antique LicenseTag Law HB 755-ln creases speed limits on stntative MikeBox and Senator Charles has been changed lo prohibit automobiles highways. Langford.See AlabamaLawyer , July regularly used on the highwayfrom SB 9--Amends AlabamaCode Section 1995. obtaining antique licenses. Effective 6-2-8which removesthe extended time Revised UCCArticle 8 "ln,·ubnent January I. 1998.Another bill, HB546, was prison inmates are gi\'en for bringing or Securities"' (HB 405). This lawwill passeddealing with vintagevehicle ta defendingactions basedon title ID real become tffecti\oeJanuary I, 1997. The HB 147- Providespenalties for those property. sponsorswere Representative Mark who interferewith and disrupt legal SB 24-The jurisdiction of small Gainesand Senator Steve l\f'mdom.See hunting and fishing. claims court was raised from $1,500to AlabamaLawyer , July 1995. HB 1 52-lt is unlawfulto destroyor S3,000effective July l, 1996. Re~ I of UCCArticle 6 "Bulk defacetraffic signs or defacepublic build SB 35-Amends Alabama Code Transfers" (SB 217). Senator Steve ings or public propertyand parents of Section 6-2-33 lo limit the statute of Windomand llc11resentaliveMark minors who are convictedof destroying limitations for civil actions against sher Gaineswere the sponsors.T hree-fourths or defacing trafficsigns or defacingpub · iffsand other public officials for misfea of the states have repealed Article6 lie buildingsor public propertywill be sance lo actions brought by the state because this area of transactions is now liable for the actual damagescaused by against the public. coveredby the Fraudulent TransfersAct the minor. SB 41--Amcnds the Workers'Compen HB 200-Those persons adjudicated sation Lawto providecompensation for insane or feeblemindedare not to be death of a person21 yearsold or younger. issued a driver's license. Robert L SB 119--Relates to juvenile delin ll cCurley., Jr. HB 226-A person may plead guilty quencyand amendsAlabama Code -L~. to a Mony on informationbefore indict- JI II the dlreclOr al Section 12-15-53to providethat a child ment providedthat the constitutional ... -..i. allegedto be delinquent for possessinga -al llle amendment 1sapproved in No\'ember pistol.etc., shall be detained in custody l.WYof9dyd - removingihe prohibitionfrom pleading tte reoet\leohis until a hearing and can be heJd in jail guilty before 15 daysafter arrest. und.,-graduaieand for up to 60 days.The weaponwill also law dogcoosfrom Ille HB 292-/\mends AlabamaCode be conliscalcdand destroyed. UMl0 labamaJuries historicallyhave History Behind life Insurance Co.of record its reason for interlering \\ith a receivedvery little guidance in Geo1J1i11J: Johnson jwy ~~rdict,or refusingto do so, on the A determining the appropriate The GreenOil factors were originally grounds of excessivenessof the dam amount or punitive damages to be conceivedi n Justice Jones' special con ages. Such statements ~came knowna.1 assessedagainst a defendanLSince currence in Ridouts-Broum Service, Hammond orders. ,\ccording to Justice 1986.security lor the defencbnlwas Inc. v. llollOIJJ(ly,391 So. 2d 125, 127 Shores. who authored the Hammond supposedlyhad via a post-trial (Ala. 1981). While concurring in the opinion. appropriate factors for consid· Hammond hearing, al which the trial court's amrmance of a $220,000award. eration by the trial courts in determin· court consideredevidence relevant lo Justice Jones addressedthe "unguided ing excessivenessincluded culpability or whether the amount of punitive dam discrehon ac-eordedin both the fact. the defendant'sconduct desirabilityor ages awardedby the jury was appropri finding process and the judicial review discouraging others from similar con ate. I l owever, the recent case or life that fL~esthe amount or punitive dam· duct, and impact upon the parties.as lnsurw1a Companyof Georgiav. ages.· Whilepunitive damages "ought well as impact on innocent third parties. Johnson, 1940357.1996 WL 202543 lo sting in order to deter; Justice Jones Shortly after the releaseof I lommond, (Ala., A11ril26, 1996), broadened the wrote, "only in the rarest of ca.ses Justice I louston wrote a specialco ncur applicability of the 1-/ammand!CreenOil should it be large enough to destroy: rence in Aeina life Ins. Co.v. lal/Oie. factors.As a result of life of Georgia, this is not its purpose."The current sys 505 So. 2d. 1050, 1060 (Ala.1987), these factors are now consideredby the tem furnishes "virtually no yardstick for observinglha l a substantial portionof jury aswell as the by lhe lri,11co urt in measuring the amount of the award the judgment in the $3,500,000awar d in determining the amount or damages to over against the purpose of the award." that casevio lated constitutional stan be assessed. Whilerecognizing that evidenceof dards. •we have ~rmitted punitivedam Accordingly,detailed knowledgeor wealth or a defendantwas entirely too ages to be leviedwi thout the constitu how Hammond/CreonOil factors are prejudicial to inject into trial before the tional safeguards that we insist attend interpreted and applied is crucial for jury determined liability.Justice Jones every criminal prosecution: Justice lawyersinvolved in any action seeking suggesteda post-judgmentproceeding Houston then enumerated seven factors punitive damages. This article eKamines during which lhe trial cou rl could com thal '"should be taken into consideration the history behind the court's action In pare the amount or the award against by the trial court in setting the amount life of Georgiaand reviewsthe new the financialworth of lhe defendanL of punili\oedamages." Only l\\'Oyears method by which punitiveawards are to During the same general time frame, later. in GreenOil Co. v. Honisby, 539 be assessedas announced in that deci· another relevanttrend was developing. So. 2d 218 (Alia.1989), the court adopted sion. Next,lhe article discusses recent In the 1986case of 1-/ammondv. Cily of Justice Houston'sIA110ie concurrence appli~lion of Hammond/GreenOil lac· Gadsden. -193So. 2d. 1374(Ala. 1986). and establishedwhat is known today as tors in particular cases. l'inall1•.practice the AlnbamaSupreme Court began the CreonOil factors. pointers are provided. requiring trial courts to state in the Despite the post-verdict application or Hammond/Gre® Oil factors. debate urtain members of the court were malicallyaltered the method by which continued as to whether Alabamajuries struggling with concerns of"windfalls punitivedamages are assessed in this receivesufficient guida nce in I heir to plaintiffsas a resuJLof large punitive state. Accordingly,effective 90 days from allempt to determine lhe appropriate awards." In recent years, severaljustices lhe date the certificateof Judgment in amount of punitive damages.tn Charter supported the concept of allOClllion of a Ufa of Georgiais entered, jury trial of I losp. of Mobile. Inc o. l\'ei11be,p. 558 portion of punitive awardsto the state all casesin which punitivedamages are So. 2d. 909 (Ala. 1990), Justice llouston general fund or lo some special fund sought, with the exceptionof wrongful remarkedthat constitutional due process lhal servesa public purpose or advances death actions. are lo proceed In Lhefol provisionsare violated when lhe jury is lhe cause of justice.' However.lhe con lowing manner:• "given the unbridled discretion lo award cept never g;irnereda majority of the no pwiilire damagesor to a-..... rd 011 Alabamacourt unhl life of Georgia. \ \'erd.id St.lg< unlimited amount of punitive damages. After receivingthe jury charge from laking into considerationonly the char New Bifurcated l'rocedun,~ ,\d opted in the trial court, the Jury is to determine acter and the degree of the wrong as Uf~ Of Crorglu liabilityand the amount of comp;,nsato shown by lhe evidence in the caseand In Ute fl1s11ranceCcmpony of Georgia ry damages, if any. Al lhe same lime. the necessityo f pn."Ventingsimilar ,•.Johnston , 1940357.1996 WL 202543 the jury will also decide by special ver wrongs in lhe future." ln an attempt lo (Ala., April26. 1996),the plaintiffsued dict whether the evidenu presented at ensure due process, Justice I louston U1cJefendanL insurance company alleg trial Justifies the lmposiLion of punitive suggesteda birurc.itedlrial procedure. ing fraud and suppression in relation to damages.If the specialverdict indicates in which the jury wasto be provided the sale of a Medicaresupplement poli punitivedamages are to be a1,•ardcd,the informationrelative to lhe apprOl)riati! cy. Mer trial. the jury awardedplaintiff punitivephase of the trial begins. am<>untof damagesto be assessed. Just $250.000in compensatorydamages and as his concurrence in laooie formedthe $15,000.000in punitivedamages. B. runil!ve Phase cornerstone of GreenOil. Justice Pursuant lo a I lammond!Grwn Oil When the jury's special verdict indi I louston. in his concurrence in Owrter hearing. the trial court remitted lhe cates punitive damagesare lo be award llospital, set the stage for life Insurance punili,-eawMd to $12.500.000. Lifeof ed, lhe trial resumes and all evidence Ccmpanyof C11orgia o. Johnson. Georgia appealedalleging a denial of relevant lo the appropriate amount of In addition lo concems of due process. due process in that the damagesaward punitive damages,with only a few ed were excessiveand the melhOdby exceptions,is admissibleberore the which those damageswere assessedwa.5 jury.' Admissibleevidence includes Davis ea ... inadequate. On appeal, the Alabama informationneussary to consider all o.r..C.,r groaual· Supreme Court reviewedlhe trial court's ect euonCi,I~ from Hammond/GreenOil factors, ns well as lhe Unlvft11tyo f Hammondorder. Although no case cita those factors identifiedby statute or Alabamo Schoolol Honswere provided.the court conduct case law.• The factors specificall)•identi Law He ttirwc:fas ed a comparativeanalysis and remitted .,,_ ..... fied by the court 115appropriate for con the punitive award lo $5,000.000. sideration by the Jury are as follows: -1.-, MaotoaOon°""""" Although newsworthy, lhe n:miltitur '""" 11192-93.and by the court of the SJ2 ,500,000 punitive f'rom the statute(§ 6-11-23.Ala. as odl!Of,Of lho Code197 5 (SL1P1>.1989)1: AOtA Journtl&in~ awardwas not U1e key holding of U1e 19MHe•- life of Georgiadecision. Writing for lhe l.Nature, extent and 'economic .,., ..~ court. Justice Shores commented that, impact' of ,-erdicton plaintiffor __1y..,_ ..... ~---· __ M«11cal~ U11blh1yComrnttte- He i. e although the f lammond and Gri/i.'11Oil defendant. member~ tneAluuomn an d Floridat:Mlra. al"Ct is procedures were adopted partly in 2.Amountof compensatory damages. 1 partnOJinth o l{m ol Ce,rrAl tord, Clau,on& response to the due process concerns of McOonald.LLC "'Mob'II 3.\VhethcrdefenJanl has been guilty defendants.juries traditionallyhave of similar act.sin the pasL Ra chel been shielded from certain rele-"alltbut Sande,. potentiallyprejudicial information. 4.The nature and extent of any effort Cochren I lowever,she noted that, without bene by defendant to remedy the wrong_ .Aacl'!el Sanders Co:hlDf'!. of fit or that informationjuries cannot From GreenOil: Mol-·•v.• determine whether lhe amount of dam t .Doesthe punitivedamag~ award a58CIOmed....,.N ages ii awards Is an appropriateamounL MoblolwmOIC... bear a reasonablerelationship to Alf nw~/AlfPT Ill l'ISIPl·IUfill AmtndmenLWriting for the Court, "And.as the m.,jorityopinion makes IN-STATE MEDIATION Justice Stevens stated that "lellementary clear, the record contains nothing to T•R•A•l•N•l•N• G notions of fairnessenshrined In our con suggest that the extraordinarysize .,r stitutional jurisprudencedictate U,at a the award in this caseis explainedby person receivefair notice not only of the the extraordinarywrongfulness or the conduct th.It will subject him to punish derendant'sbehavior, measu red by his (Approved for CLE credit and ment but also of the severityof the torical or community standards, rather Alabama Center for Dispvte penalty that a Stale may impose." than arbitrariness or caprice_..,, Resolutionroster registration) The Court identifiedthree guideposts. each of which indicated 13MWdid not 13.Afobama Decisions" Augusl 8-10 Huntsville receiveadequate notice of lhe magni One of the most detailed and inslruc Mediation Process and tude or the sanction Alabamamighl Livediscussions of Hammo11d!Cree11Oil the Sklll s of Conflict im~ for ils nondisclosurepolicy. First. factorsfrom the AlabamaSupreme Court Resolution , Mediation the Court found none o( the aggravat is found in the recent caseor Duck 1/ood ing factors typicallyassociated with rep ,tpparel Co. u. floats. 659 So. 2d 897 Corporation rehensible conduct to be present in this (Ala.1995). I n Duck Head. three former (800) ADA-FIRM case." Second, the Court noted that the employeesalleged fraud, suppress ion and puniti\,e damagesav.•arded lo plaintiff breach of contract against their former August 14·18 & November after remitiUur was 500 times the employerfor failure to pay $852,000in 13-17, Montgomery amount of his actual hann. Although sales commissions.Al trial. the jury Divorce and Child still declining lo establisha mathemati awarded plaintiffs$19.500.000 in puni Custody Mediation cal bright-line ratio of punitive damages tive damages.Al LheHammond hearing, Training: School for to actual harm. the Court stated ''[wlhen the trial court remillcd the amounl to Dispute Resolution the ratio is a breathtaking 500 to I. Sl5,000,000,staling as reasons for the (404) 299-1128 however, the award must surely 'raise a remittitur the adequacyof the compen suspiciousjudicial eyebrow:• Third. the satory damages, the fact that the com punitive award of S2.000.000greatly pany was in a down cycle.and the fact August 22-24. Mobile exceededthe maximum civil penalty that the company'sinsurer was contest Mediation Process and authorized by the AlabamaLegislature. ing coverage. On appeal. the Alabama the Skills of Conflict or that of any other srate. lo which BMW Supreme Court afflrniedthe punitive Resolution, Mediation could ha\'t been subjected for its nondis award as remiUed,conditioned upon a Corporation closure policy.u Thus. the Court conclud rurlher remillitur or the mental anguish {800) ADA-FIRM ed, fair notice was not given to BMW damages. Factors relevant to the court's that Its conduct might result in a multi afnrmance included reprehensibility of For out-of-state training Infor milliondollar penalty. Accordingly,th e the defendant'scon duct, the fact that mation call the Alabama Center Court reversedand remanded the case defendant'sactions were intentional and for Dispute Resolution at to the AlabamaSupreme Court for a deliberateand were carriedout by numer (334) 269-0409. new trial or. alternatively,reconsidera ousmembers of management. and the tion by the AlabamaSupreme Court. financialstrength of the company." The Court's decision in Coredid not In addition toils excellentd iscussion disapproveof the Hammo11d!Oree11Oil or Lhel-fammo11d/Oree11 Oil factors, the factors and their use during post-verdict Duck Headopinion is noteworthyfor reviewsof punitive awards.However. severalother reasons. One. the opinion Please Note: the majority of the Court rtjected the affirmedthe largest punitive award ever manner In which those factors were made in Alabama.It should be noted for Dueto the 1996Su mmer Olympic applied by the Alabamacourt. Justice comparativeanalysis purposes that the games. the U.S. Court of Appeals Breyer'sconcur rence, in which Justices actual economicd nmngesuffered by the for the J Ith Circuit has adopted a Souter and O'Connerjoined, stated: three plaintiffsin the case.$852,000, modifiedworkday schedule. Prom ·~1 standards need not be precise probablyrepresents the largest amount Monday, July 8, 1996 through in order to satisfy this constitutional of actual damages.excluding wrongful Monday,August 5, 1996,the Court concern.... But they must offtr some death actions. reported in a Hammond/ will be open to U1epublic from kind of constraint upon a Jury or court's CreenOil context." 'lwo. the opinion 7:00 a.m. until 3:00 p.m.. Monday discretion, and thus protection against contains a detailed discussion regarding through ~'riday.For more infor purely arbitrary behavior.The standards remittitur of damagesfor mental anguish the Alabamacourts applied here are damages.In DuckHead. damages award mation, contact the circuit execu· ,,ague and open-endedlo the point ed by the jury for rmntal anguish alone live at (404) 331-5724or the clerk at (404)331-221 I. where they risk arbitrary results. totaled an astounding $7,000,000.On ••••• appeal, the court remitted these dam• agesto $3,500,000. 2.28 JULY 199G The= of lndepe11denlLife & step further: severalcases have treated In a very similar case,Mutual Accidentl11s1mmce Co . o. llarri11glo11, the defendants' inchoate clafmsof bad Assuranro,Inc . ,,. Madden,627 So. 2d 6548So. 2d 892 (Ala. 1994), is also faith against their insurance carriers as 865 (Ala.I 993), the AlabamaS upreme instructive in analyzingHammond! on "asset'' of the defendantfor purposes Court held that defendant'spotential Crwn 0,1ractors. The jU1')1 in Horringto11 of Hommoll/1/CreenOil hearings. bad faith claim \\'as properlyconsidered awardedplaintiff SG,230.000 on a fraud For example,in the wrongfuldeath nn "ll.. •+ i·ii'ISMEPl·II ffk· .u.-n. ~ and defendant.OOo"1 i.n,.,.,. •M lttm to fln«t ~ · defendant'sconduct. including . •Using "Pn--Polygnpb" Polygnpb Tests duration,awareness or hazard, con i ! • U-Mff .a& ~,~ tll • trvt.•• Accident "Re-Investigation/Reconstruction" For Attorneys cealment,and frequencyof similar "'/l'Ntth.1 /lump1y-<.0Nmp(y u,,n1r.,. 01•/n l alf.ll dh caHnl16fnJllb a,u/ •Cdlnu• past conduct.This will be one or the more futile areas for the .IUI.V AUt:US'J' SEPTEMBER defense.Counsel will be able 10 26: HUlf~le fl: Phettbl ~ f5: Mobile p0inl out that the hazard was unan ticipated,occurred in a short period What Others Have Said...... or time, the lack or concealmenton ·a.stSa"*1•r I Ew r Atmnde ff,t ...... ~ II l'ISIFEMIII against him, he has been punished C. BifurcatedTri•ls and AIIOG1lionto ment into court, to pretermil any dis· enough. One could argue that per lh• State; ~UsceU•neousTbouJlb_ts cussion of cutting the state out of Its haps the defendantwho a110ids Bifurcatedtrials appear to be an equal share in the event a fa\/Orablesettle · multi-milliondollar punitive judg opportunity for the plainLiffand defen menl cannot be reached. in this vein, it ments because of previously dant. The financialinformation lhat is should be noted, illi ably argued by the receivedcriminal punishment is to beprovided lo the jury appearsto be attorney general in his second applica· fortunate in a sense.However, con an obviousadvantage for plaintiffsbut tion for rehearing in the life of Georgia sider the logic of allowinga defen could fa,'Ora defendant. if properinstruc case, that as long as the parties can set dant whose conducl was egregious tions are providedto and heeded by the tle and cut the stale out of the deal, enough to resull In criminal pun jury. On the oU,er hand, for Lhc plaintiff which under lhe current procedure they ishment to receivea lighter civil with a thin punitive damagescase. the can do every time. no money will ever punishment than the defendant bifurcatedtrial will require the jury to bepa.id to the state. Accordingly,the whose conduct wastortious but did focus on the issue of liabilitybefore notion that Alabama's "windfallaward " not violate any criminal statutes. addressing damages.Also. there will be problem has been solvedis a disingenu• 9. Other civil actions related to the an additionalopportunity for defendant ous notion, indeed. • same transaction or type of trans.,c to address settlement, even afler the Uon.This hasbecome known by jury returns a findingof liability.On ENDNOTES balance. this should benefit defendants 1 SH BMW d M>nhAmerica . Inc.•. &w . &16 $o. lawyersin lhc slate as an ~Alfa" 2d S1t . 629 (1,la.19ile )( ._ J., -.,ng ). order. so named after the first more than plaintiffs.It ls respedfull)' reported incidencewhere a trial suggested,however, that defendantsbe 2'2429--"'-- tU.S..Mar 20 , 1996)Ho.9'-896: Sndl v.. , SW._Wl -,Ufe/ns.Cc.. 592 So.at 1021, 102S (AIL judge entered nn order approving prepared to addresssettlement immedi 1119!1): IJnlon~0- Cc., Inc.v. Satlow,595 selllement, specificallyfind ing the ately upon nn adverse linbililyfinding. So. 2d 1335, 1348 (All 1992): SouthemUff i defendant had "been punished In cases where there is a potential for HealthIns. Co. V 1umM;586 So. 2d 854, 859 tAIL 1991); PM •ttPl'ISIFFl-1111wAla6iw1.-.,, .. AboelfilodbyN _ _...... ,,, ..... I no Mlecton,... Clll's.,...,._ , NIiiy Ila · 15. Oll'w ,--Mlbl,nacasesctr, 1 IQ1••••0'0' ...... __ .lho_dal.,oonduc:IGrwn OI tciors areas-foOowl . ~"' lot second-conecdy 80d IUOClndly outllnet tht pr~m i'lhefent in ih11 ponion oi 1he evinced l'K) inclittorenoeIO Of rec:kltMdlStegard Andrews, No 19'169S , 1996 Wl 1735"2 (Ala, tllo ol GOCIIPMdecision , Undf!f Ulo ol Goo,pia, ~r 1hehealth anc:1salety ot c:Mhtr1, "°evidence April 12, 1996); Un/anSoc. t.1/tJIM . Co.•· Cmdtc,, 1hopaitles cnn olwayssenlo tho ca10 in Elsuch a was-lshocl tha, defendant llelod In bad 1.1<111 667 So, 2d 68&(Alo 1-995); An,fric,ln PKX>e« waylhal plolni!Uw1•...,..,. fflOtt .-.ey tllan he In intOIP(1lilt>g..,111p1e stale illlM .. llnd In d e Onl,,rTOtiaJ, 1-f"'-,.~ Ora,,- .. "fflll Onlfm."piu.u.oosau .., ~,o aa uoo _ ..... - ... , .. ,. ~ , ,.,...,,b. flI'-'S(). l!Ot" 17 ror 1111,1oaJ1011 , u5a ol lho Ouc#rH1mdv01dt01 IOI h~d IO!nt11\Ullld" Moll ol lho Utpotled ddonaK LJf• 111!1Co. v QOnbo al()nlllcnntpro 110rd1etIII well 1nalytit durng judc!nl rllYlirNot II punltMI dnmagoaew.ird BMW al Nof/11 Amoncn v W,/llllf1l1Qn, lOOSWl :most(AIIL 11195)1Alabolma Ill SH BMW ol NorthAm11r,r,,1, In<: v; Ooro, 048 So. Ooru, 6'16 s,. 2d 6111(A l11 11193)Compml~on SupremeCoun rem,ull E§IIIJSIE#I·• l1mJt/11lw1,,ulUU'JIU.f The Alabama Criminal Defense Lawye rs Association Presents JUSTICE MUST BE WON IV: Techniques1 Tactics& ToolsNeeded for Success (A Beac;hfront Seminar for Criminal Defense Practitioners) Au~t 15 - 17 1996 Holiday Inn Hote! & Suites Gulf Shore s, Alabama TOPICS FOR PRESENTATION : SPEAKERS INCLUD E: ,. fnnovalive Oeftmses "'Jim Boren, Bnton Rouge, Louisionn • Turning the Tide it1 tho Horrible Pact Case • 'Sob Clnrk, Mobile, Afabamt1 • Qpcnlrig Statements and Maximizing Persuasion • Stephen R. Glassroth, Montgomery, Alnbnrru, • Crossing the Chief hwestigntor • John Wesley Mall,Jr .,Little Rock, Arkansns • Crossing the Coopcrntln_gWitn ess • t>avid Luker, Bl.rtnlngham,Alabamn • Crossing the S~pathy ·Evoking Witness • BllJMofAt Alexandna, Virginia • Standing Up to Judges and Prosecutors • Vlrgtnia Vinson, Birmingl)nm, Alabama • Criminal Defense Llwycrs Under Siege • Jeff Weiner, Miami, Flonda • Bffectlve Use of Experfs COST: ACDLA Members: $150.00 (Includes reception on August 15 and lunchieon Non-Members : $175.00 and keynote address on August 16) CANCELLATION POLICY : Requests for refunds must bo submitted in writing. Refund requests received before August 12, 19915, will be charged an administrative fee of $25:00. No refunds will be given ofter August 12, 1996, but materials will be provided to thos€!who must cancel August 12 or Inter. HOT EL ACCOMMODATIONS : RoonlSat the Holiday Inn I lotel & Suites on the beach will be ot spccl.nlSfilninar ral es ranging from a stimdal'd room for $105.00 per nlght to $150.00 per night for a deluxe king suite. Please check for rates and availability and mttkeyour reservotions directJy with the hotel at (334) 948-6191. Besu.re to i.dcutifyyourscll ns attl.'lndingthe sumlnor to receive the special rates and register early mi we expect apace to be o premium .. REGISTRA Tl ON FORM : (Photocopy of Registration Form ncccptod) Moll To: Alobomo Cr:Jmlnol Oufensc Liiwyers Assoetntlon Post Office110x,J14'7 Montgomery, A obamo 36101-114-7 Stille Sor Numbet: ••Thl'i prl.lgrnmhn• bl.•1mapproved for n nwdmun, of 9 Cl.H 11l'CdithOUl'II , Supreme CourtOf Alabama Featof Clay Spuch of J. Connan Houston,Jr.. associatejustice, AlabamaSupreme Court, at tireAlabama Hi storicalAs.,ociation's 49t/1Annual Meeting,April 12, 1996 hief Justice Clement Comer Clay's appealingto our Constitution.wh ich but by reason of the protection and Cporlmil, which was painted by they have practicallyand publiclydefied. Impetus to prosperity given by our hith WilliamPrye, hangs on the third floor They have appealed Lowar. and must erto moderate and magnanimous of the Judicial Building.at Lhelop of abide its rules and laws. The United Government.It is all idle nonsense for the ceremonial staircase. When I first States. as a belligerentparty claiming these Southern planltrs to say that they bec.imea justice on lhe Supreme Court right in the soil as the ultimate sover· made the South, that they owniL and o( Alabama,the canvason which this eign. have a right to change the popula that they can do as they please - even portrait was painted was slashed. It was tion, and it may be and is, boU1politic lo break up our Government,and lo rumored Lhata Unionso ld[er had slashed and best, !hat we should do so In certain shut up the natural avenues or trade. Lhisportrait. However.because Lhat districts. When the [nhab[lnnt:spersist Intercourse andcommerce. could not be authenticated. this portrail too long in hostility, it maybe both 1>0litic of a man who mighl be thought of as and right that we should banish them "In this belief.while I assertfor our lhe Pather or Alabamawas repaired. and appropriatetheir lands to a more Gov;;rnmenlthe highest military pre· Perhaps it should nol have been. loyaland useful population.No man will rogatives,I am willinglo bear in On January !, 1863.a leller, of which deny that the UnitedStale$ would be patience that politicalnonsense of slave I will re.id;, portion. was lransmilled bcnentedby dispossessing,, single prei· rights. State Rights, freedomof con from Maj. Cen. W.T. Sherman, Head udiced, hard-headedand dislo)•alplanter science, freedomor press,and such quarters, Departmentor Tennessee,lo and fsubstilutinl!]in his place a dozen 0U1crtrash as have deluded the Maj. R. ~t Sawyer,AAG. Army or or more patient. industrious, good famj. Southern peopleinto war, anarchy. Tennesstt. Huntsville,Alabama: Hes,even if they be or foreign birth. I bloodshed.and the foulesl crimes that "DearSawyer: think it does goodlo pr.esentthis view have disgracedany Limeor any people. "IThuel are well establishedprinci· or the case to many Southern gentle "I wouldadvise the commandingoffi. pies or war. and lhe people or the South men. who grow rich and wealthy.not by cers al Huntsvilleand such other towns having appealed to war, arc barred from virtue alone of their industry and skill, as are occupied by our troops. to assem- •s!Wi'ISIFEl·II nwAJobam,,~ bte the inhabilllntsand expbin to them a.arist Russia.Perhaps it is professional Plantersand MerchantsBank. Clay was these plain,self-evident propositions, courtesyto. or concern for,a judge by a a slaveholderand producedapproxi and telI them that It is for U1em now to Judgethat causedme to cheer,when mately200 b.1les of cotton annually. Sllywhether they and their children ofterJudge llyichhad endured horrible Claywas electedas a representativeto shall inherit lheir share.The sufferingfor so long. Tolstoylin;illy let the AlabamaTurritorial Legislature in C JULY 1996 I 239 t _J '. Roadshow '96 ROADSHOWpresentations have been a popularprogram al localand county bar assoelations1h15 spnng . Other bars are Invitedto join Russell, Date. Coaman, Calhoun, Chilton, Tallapoosa. 171hCircuit. Tuscaloosa . Choclaw, and SL Clair counUas In sct,edutlng an ASB vlsil Doesit Applyto SuretiesIn Alabama? by R. CooperShallu ck "Badfaith" has been a popular topic in of Frauds.' Suretyshipcreates a tripar Asurety generallyhas the right to Alabamafor continuinglegal education tite relationshipbetween and among reimbursementfrom the principal for seminarsand numerousarticles. One the party secured (the bond obligee), debts paid b)' the surety on behalfof the issuewhich has apparently not been the principal(the bond obligor).and the principal,whether under a common law addressedis the application of the tort of partysecondarily l iable (the surety). The claim of indemnification.by statute' or bad faith to sureties in Alabama.This surety relationshipis usuallycontained by expressagr eement. Indemnification article ad~ the nature ol the rawof within a document calleda "bond". The agreementsare generallyexecuted by suretyshipas it relates lo surety bonds surety's liabilllyt o the obligeemay be 1he principaland any additionalindemn and construction bonds, the surety's limitedby the expressprovisions of its llors (or guarantors)and governthe goodfaith obligationsund er the lawof contract with lhe obligee- the penal relationshipbetween them and the sure suretyship,the tort of bad faith as it amount of the bond. ty. Each surety gene_rallyhas its own appliesin the contextof insurancein Thereare generallytw o typeso f bonds: form of indemnit)' agreement.If the Alabama,the differencebetween surety. fidelityand surety. Fidelitybonds gener partiesanticipate more than one bond ship and insurance,the treatment by the ally providecoverage for the dishonest. being issued,the principal and any addi Alabamacourts of bad faith claims made illegalor wrongfulconduct of their tional indemnitorsmay executea "mas againstsurelies, and why the tort of bad principalswith respectto monieswhich ter surety agre~ment'"or · master indem faith should not be extendedas a cause may come into their possession as fidu nity agreement" at the outset of the of action against sureties. ~·inally,this ciaries or the failureof the principalslo relationshipwith the suret~ fore any articlesuggests a meansol addressing performspecific duties. Surety bonds bondsare wrillen by the surety- which bad faith in the contextof surctyship if providecompensa tion for lossessus willgovern the relationshipbetween the this tort is to be extendedbeyond its tained by an obligeeas a result of the parties for all bondswhich may be presentappliati ons. principal's failure to perform its con issued.Th is is particularlytru e for con tractual or statutory obligations lo the struction bonds, whichwill be discussed Suretyship Generally obligee.Nol all bonds will fit into one of in greater detail below.Where there is The law of surelyship applies to more these categories.Some bonds may have no anticipatedcon tinuing need for practitionersthan one might first pre both fidelityand surety provisions. bonds, the agreementbetween the sure sume. In Alabama, suretyshipis probabl)• Regardlessof ho\.• a bond may be char ty and the principal( and any additional most oftenencountered in terms of acterized, it will almost alwaysI nvolve indemnilors) will usually be contained bonds requiredfor constructionprojects. the three-party relationshipdiscussed within the applicationfor the bond. public worksprojects and probatepro aboveand will involve the bodyo f law ceedings.H owever,one may experience knownas surctyship. suretyshipin manyother instances.Al In most cases, the obligeewill provide A. Cooper times, insuranceand suretyshipare con· the form of the bond that it desires. or Shattu c k sideredl o be the same;however though willhave to approvethe form of the bond R ~Shanuck Is a QrAdui110ol similarto insurance,suretyship is really proposedby the principal. Someof the ~Teoh ond quite different, as is the applicnblelaw. requirementsof a bond may be required __h l.tMrll!y cf .. Suretyshipis a unique legal relation by an applicablestatute , includingthe law ~-·n'lll!!ffl ship. contractual in nature, whereby amount of the bonds.Most of the larger t>orollhe one party, the surety,undertakes an commercialsurety companiesha1ie bond •nd Allbet'n•bars , and lh• l.ltlga11on obligation to be held answerablefor the formswhich h ave been approvedby their .,,d ro,, & ln$u,_., debt, default or miscarriageof another frequentoblige es, such as governmental ..,.....,_ party, the principal.' Generally, such an entitiesand other largecontracting par He ,SliooO- QI lheT, .. -Counly agreementmust be in writing to be ties. The bond penaltyam ount will be .... ol C<,un Ho ... .i .. e1-.,,,,. TIISClloolat'f'ffl oC Hubbard. Stna1t\, Mcl.h r,'!11"1. enforceable, as il fallswithin the Statute establishedby the obligee. ilrake!aeld & 5"'111uek ,\n indemnity<1gree mcnl l{encr:illy Alabama.or My counly,municipal co r a surety nnJ its principnl(Indemni ty givesth e surety righL~beyond I t:. com• pOrntion or subdivisionth ereof, .ire Jgrccmcnlsor bond apnllcallons)con • mon law or statutory right&of indumni requiredto furnish performnncc,and tnin an express requirement of good ftc.,llon.'l'hesc agrceme11Li usually con lnhor ,ind material bonds.• The policy ft1ith." The termliof the surety'sobliga t,,ln provisions for Lhcco lluclionfrom bd 1lndrequiring labor and mtllcrlal lion lo lhe obli1tee will be provided in th~ prlnclp11la1,d lndemniLors orn ol bonds (ur poyrnenl bonds) Is Lo ,,rovlde lhe bond or in some other contract only Lhcs ums palllby lhc surely on subconlrnclors and mlllcrlalmen with which may be incurpol'alcdlnlo the behnlror u,eprincipal hul also nsi;ocial recourse for paymi!nlfor goodsand ser· bond.An obligee may Jlroviden Aond ed costs and expenses,in cludingaLLor vices nrovidcdM n publicconstruction faith obligationfor lhe surety wilhln n~')'s'fees. P or example, ~omcai,trcc project where U,cy do nol hnvl'th e Lhcterms of U1ebond becauseii has mmls also mny includeprovisio1is th al benefitof ~tnlutoryo r commonlaw control over lhe lerms or form orLhc the principaland indcmnllorsmust pro, m1:chanlc.for moteriolmen'slien~ bond which It will acceJ)t videco llaleral or securityto the surety, becauseth e projectproperty i:i nol sub In /1.lnbama, as in mo~Ls lates which nsit deems necessary, when claims are ject Lo mechunics' or materialmun's h:1w ndopteclthe Uniform Commercial mndl!un Lhcbonds, or Lhnl ll1c prlnch,al lic11s.' Code, 1111co nlrncLsco ntain an implied produce.ill of its booksnnd recordsfor Anotheroccasion when n 1,rnclllloner duty orl{ood faith in U,clr ,,erformnnce 1 inspectionby lhe surely upon dl'mand. tnlly encounler a surety bond (fidelity and enforccmcnl. ' 1'hc surely will then Claim~on a surety bond most com bond) is in a rrobale proceeding.F or have an Implieddut y of goodfaith lo lhe monlynrise in terms of construction instonce, under Alabam:i'sve rsion o( the bond nbllgcewith respectto the bond projccls.S urety bonds are generally UniformC uardianshlpi\cl , n consel'VII· and lo lhc principalw ith res11ccllo the prcvalenl in publlcworks pn,jl!clsan d Lori~ l'liqulrcdto furnish lhe judgilo f ~urely'sco ntract with it. sizeable privately-own<:dpr oJ1:cLs. On a p1·obale wilh 11$ urely bond.' Ukcwlse. file sunny lhus has a divid11d duly of privately-ownedpr oject, lhe owner may ach11i11istralorso f eslales musl bl· bond ~ood failh toward the principal imd lhc reQulreth e Rencr;il contractor lo pro• ed. exceptin case-Swhen: an cxeculor Is obllgee. This can put lhe surety in nn vidcpayment and/orperformnnce expressly l!Xemptedfrom this require uncomfortableposition. A claim which, bonds.'l'he paymentbon d protects the ment by the termsof lhc will.• Various lo the obligee, should clearly be paid, in ownerfrom mechanics'and material· other omcialsor personsseeking official the eyes of the principal.shou ld just ns men's liens.• Generally,If n subconlrnc recognitionmust also providebonds.' G clearly not he paid. This sl lutlllon is not lor of the general conlmctor, or some Surety or indemnificatIon bondsalso unusuillbu l arises often. Whether the one providingmat erlllls for I he con arisu In lltlJ,lalion.Ocncrally, ii credilor surety nny~or docs not ,,ay lhe claim, struction site. ls not 1,nid for I he f.(Ood~ must providea bond bri11cipaJor obllgee will dis 01 servicesil provides,il m:1yprcs1:nl a seizure or execution,whclhcr pre-judg· ili;trccwilh Lhesurety 's decision.Ir the c:lit111,on the bond for payment.Such menl or post-judg1M1)l, will be issued.11 ~urcly pay&parl but not all of a claim, owners mayalso require lhi: gc11ernl Somecou rl clerks ,viii not acce1lla ner both lhc 1irlnc_ipaland obli,tecmay be contractorlo providen performance ~onnlindemnity bond hut requirecom perturbed, and the surety can caJillyend bond.This bond i,i1:nerallyprovides thnt mcrcinl ltmd-parl)' bonds.A bond nu,y up i11liti itution with one or bnlh of the If the sicneralco ntractor should fail to be requiredt o stayan aclion pending other J)articsre*irdles s or il~ decision. f11lnll his contr:iclual obllgallons Lo lhe :ippcal.11 1,lkcwise.a bond 111;1y be required If it docs nol paya claim ,1~prese nted, il owner,Lhc s urely will either pay Lhe nssec urity beforea restrninlnitorder or could be sued by lhe ,)bllJ,tee. Likewise, owner lhc cost incurred in completing preliminaryinju nction is ls~ucd.'i il may hovelo sue the princi1>11lto col lhe conlracledwork with a substitute Other mutters in which bond~may be lect the ch1imslhe surely has paid on contrnclor. providea rcplt1ccm1:nlcon encounteredinclude performance bonds the nrincipnl'sbehalf. Lr,,ctorlo finish lht' contract, or pay the requiredb~ lhe Alab,1maSurface M ining,. Uoei;the surety's good faith oblil! ~ l/11~(//l/1//,u11•vf r Arizona"and Alaska." Other courts ing of non-paymentand provea bad thing, to do with the surety relationship. (includingseveral federal courts) which faith nonpayment,a nonpaymentwith The case arosefrom a suit by the Cityof have addressedthe issue have held Lhat out any reasonablegrou nd for dispute. Birminghamagainst the architect.gen a bud faith action cannot be maintained Or, stated differently,the plaintiffmust eral contractorand roofingsubcontrac against a surety." showthat lhe insurancecompany had tor for the BirminghamMunicipal ApparenLly,no court has held a surely no legalor factualdefense to the insur· Airport TerminalBuilding for breach of liablelo the principalor an indemnitor ance claim.""' contract and negligencein the design ror bad faith on the basis orth e special In NnlionalSo11ings life Ins. Co.,;. and installation or the roof or the termi relationshipthat has been found in Du/Ion," the Alaban111Supreme Court nal building."The Cityattempted to insurancecases. " addedthe "directedvtrdict" test to the lengthen the applicablestatute of limita previousrequirements . The Court stat lions by arguing that the bondsgiven by A, Bed Faith In Alabama ed that "in the nonnal case, in order for the contractor(executed under se.11) The intentionaltort of bad faith was the plaintiffto make out a prima facie were lncorporalcllby referenceInto lhe adopted In first-party Insuranceactions case of bad faith refusalto pay an insur constructioncontrncl (unsealed). Lhus, in Alabamain C'101,ersv. NationalSec. ance claim, the proofoffered must show the applicablestatult of limitationswas Fire& Casually Co." first-party insur that the plaintiffis entitled to a directed Lenyears rather than six years.• No ance actionsare thosebetween the insur verdicton the contract claim and, thus, cla,m was presentedon the bonds and er and the insured, in other words, entilled lo recoveron the contract no surely was made a party to lhe suil." betweenU1e parties to the contract of claim nsa matter or law.'"' However,the However,the tripartite relationship insurnnce.In Chat'IIJ'S,the Supreme AlabamaSupreme Court has since enu found in a surety contract should be Court of Alabamartcognized a redress merateda number of exceptionsto the contrastedto Lhebipartite relationship able Lorifor the intentionalb reach by "directedverdict" requirement• found in common insuranceor fidelity an insurer of its duly of good faith and Longbefore the tort of bad faith was contracts. The differencesbetween sure fair dealing to Its insured." The court adopted in the first-partyinsurance tyshipand liabilityInsurance include: adoptedthe tesl promulgatedby the context, it was adoptedand appliedin I. Suretyshipcreates a tripartite relation dissent in V'mcenlv . Blue Cross·Blue the contextof "third-party" insurance ship in which the suretyand principal Shield of Alabama" and held "that an contracts.Third -partyactions involving areliable to the obligee;but between actionable tori arises from an insurer's liabilitycoverage arc those where an intentionalrefusa l lo settle a direct insurer wrongfully refuses,either negli claim where there Is either (1) no lawful gentlyor intentionally,to settle a third basil (or the refusalcoupled with actual party claim made against an insured ·-,,,.,,._,...., ..,__tritt .. - t/{-. H"'1,--jorlll. • knowledgeof that fact or (2) intentional within policylimits and where.as a ...... failureto detem1inewhether or not there result. the insured incurs a judgment wasany lawful basis for such refusal."" against him in an amount in excessof In NolionalS4curily Fire & Casualty the policy." Negligenceand bad faith in Company o. !Jol&en,• the court later the third-partycontext are two separate enumeratedthe fiverequirements nec causes of action with differentculpabili essaryror a plaintiffto satisfyhis bur ties, and the insured may recoverunder den of proof in a bnd faith case: either." A test for bad faith in such con a. J\rl insurancecontract betweenthe text does not includea negligencestan NEWWlNDOW S VERSION parties and a breach thereof by the dard of conduct.• Whether the conduct /'0/nt, aid(, FU,, defendant; or an insurer is an act of negligenceor Toll,,....Olsl°""" St1/J/)Ortllotlln• b. An intentionalrefusal to pay the bad faith is a questionfor the jury." or l'rlnrs111gb Q1111IIIJ 1)-pc,,,t Fon11.v insured'sclaim; course the distinctionis important in 1011/f, 7(,/J. 7,/1,/2•/J l,1/elUYJril/!1,c!Mg,s c. The absenceof any reasonably legiti· lhal such will determinewhether puni, 60/)IJJ• ilfOnltf •&d C111,ranleo male or arguable reason for that tive damagesmay be recoveredin addi {)()S l'mfon ii/so.ir«/"1/)(e refusal( the absenceof a debatable tion to any compensatorydamages. reason); C.,u.Nol' & SI nm ToTut Bli>11 d. The insurer's actual knowledge of the B, Suretyship Is Not Insurance 1.800.492.8037 absenceof any legitimateor arguable Caselaw sometimesconfuses surety t,JI .... ,..... Dnno An reason: ship and liabilityinsurance. " exam lllol. e. If the intentionalfailure to detennine ple of the confusionbetween suretyship alllonmdoa the existenceof a lawfulbasis is relied and insuranceis containedin the follow Orll JULY 1006 I :t4:I tion frol'l'Ilhe suretyngalnsl a calamily, .in .iclion can be maintainedby an of bad faith to commercialsuret ies in but insteadseeks the coinme,·cial obligce agninsl a surety. Alabama,al leasl in lhe samef orm as advantage o{ obtaining a conLl'act with rra cause of ncllonfor bad falU1Is such a11plicsto ii,surers. an obligee whichl'equires p erformance extended lo bond obl1gees, il should nol ancl/orpayment bonds. 'rh e su1·ety is be extended as a tort as existsin Lheco n• Endnotes more like a standbycreditor of the r>rin• texlo( insurance. lf a court ls inclined to 1. Sloarno&, rho I.owol SurotylJ/lfp§ 1. 1 (51hod 1951):74 Am.Jur.2d Sut11tysh:p§ 1. cip11I. The svrcly's paymenlo f ;i claim nllowi:1 11o bligee lo pursuea cause of 2. All\. Coda§ 8,9,2(3) (1993), whicha ndncipal believesto be merit actionfo r a surety's "bad foith"refusal to 3. Ala, CO 2111i I JULY 1990 TimJllubamu luu'Jlor THEMOST COMPREHENSIVE UBRARY OF STATE lAW ON COMPACT DISC - FROMTHE PUBUSHER YOU CAN TRUST Michle's™ AlabamaLawon Disc™ YOURSINGLE SOURCE FOR A COMPREHENSIVE STIJELAW llBRARY ON CO: • Corleof Alab11111t1(ar111otated) • A/11bam11R11/1•s A1111ot11ted • Alt1b1111111S11p, ·e111e Co11r1t>ecisio11s s/11ce1954 • Alnl,nmaCorm of AppMls ()ecisio11s Jt111u11ry 1965 toSrptembcr I %9 • A/11/wmaCo111 I of Ci11ilAppe11/s De(lsions sin ce 1969 • AlabamaCmm of Crimlnn/1\pp eals Decfaio11s since1969 Pl.US • Sl11'pard'sAlab1ww Ci1a r/011s(op1io ,w/) If you're seriousabout findin g the best electronic legal research systemfor your firrn , you'll want MICHIE'SALABAMA LAW ON DISC Here's why: l-llghestquali ty, mostcornprohonslvo low llbrnryon CO Fromtht! publisherof Mlchlo's™Alobama Codc 1M - Powered by the Industry5tnndard FOLton.1 search engine . OptionalOnline Connocllon ·· to tho LEXIS• servicegenerates oloctronlcadvance shoots for a llxod monthlylee f 01 l},~ ...... ,. .. ,11.1 - "'' - .11• .i1 ' •1w 800/543-7618 Compllmentnry trnlnlng, unlimitedtoli-froo support l'IIAKI11111 CIIDI MOMWIIIN llllllllllNQ - ~ MICI-ITE'M Try ii free tor 30 d11ys- guaranteedno obllgallonl N1r//lt"'14u•1it#1ltt•Ht Thu~tlt1buuml.1fWV< 1r A l1JSHPJHfi§f Bad Fait h ·14 /ti. 62. konnody(;/qc . Co., Inc. 11.M QOr Montgomery to Serve as Pilot Site for Mediation/Settlement Week CircuitJudge Sally Greenhaw, 15th Judiofal Clroult , Is planninga Mediation/ SettlementW eek this summerduring the week of August 19. The purposeof the event Is two-fold: to clear the docketof pendingolvll eases,and to provide participantsan oppoMunltyto decide their own e1:1sesthroug l1 mediation. The Montgomerycounty BarAssociation. w ith coordinationby Wes Romine, wlll ask members trained In mediationto volunteera s pro bono mediators.Rich Hobson of the Administrative Office of Courts and Judy Keeganfrom the AlabamaCenter f or DisputeReso lutiona re alsooffer · Ing assistance. Tlie Montgomery efforts wlll serveas a pilot for possiblestatewide 0xpanslon of the programin 1997. 248 JULY 1!1DG 11/w 1ll11bnnwl"uwvur RECENTD ECISIONS By David8. Byme. Jr. and WilburC. Silberman Alabama Supreme Court - State's petition ror writ or certiorari to made an offer o( proof suggesting the Criminal determine whether the pro\'isionsof the followingfact.$: Al a time before the trial Demand Reduction Assessment Act is DemandReduction Assessment Act are or this case, J.S. had alleged that J.R.. mandatory mandatoryand not permissive. her stepbrother- in an incident unre PiersonI!. Stale of.4/aboma.30 ABR ChiefJustice Hornsby.writing for a lated to lhe one forming the basis o( 26 (October20, 1995).Pierson"~ con unanimous court. held that the provi Peeples'prosecution-had pulled her victed of distributing a controlled sub sions of §/.',IA./2-284authorize the panties down and.. . tried lo have sex stance in violationof §13A-12·211.The court to suspend the collectionor U1e with her. lrial courl sentenced her to 12 years in penally. not the assessment of that This allegation was reported appar· lhe state penitentiary pursuant Lo§JJA. penalty. If a defendant complieswith ently by J.S.'s school counselor to the 12-25()which providesfor an enhanced the provisionsor §JJA./2-284. then the AlabamaOep.irtmmt or Human sentence for a drug sale Lhaloccurred collectiono( lhc mandatoryfine imposed Resources( OHR). J.R. denied the allega within a three-mile radius of a school. in accordancewith §JJA-12-281may be lion, and more significantly,J.S., Juring The trial courl. however.did not impose suspended. ChierJustice Il ornsby rea tin investigallon begun by DI Ill, recant on Pierson a line under the Demand soned in pertinent part as follows: ed the allegation against J.R. in an ReductionAssessmml Act,§1311-12· Moreover.an examinationof the interviewwith a representativeof OHR. 280-284. Codeof Alabama (1975}. application of other drug-related The trial court sustained the State's The court or criminal appealsafn rmed criminal statutes suggest lhal the objection lo the evidencecit ing Ex Lhe trial court's judgment or conviction provisions or the DemandR eduction parl e Loyd. 580 So.2d 1374 (Ala. 1991), nnd the sentence holding that U,e provi AssessmenlAct were intended to The court orcriminal appeals reversed sions of the DemandReduction i\5$ess be mandatory.As noted by Judge Peeples'conviction concluding that lhe mmt Actare merely perm1ss1ve,and Bowenin his dissenting opinion court erred in granting the Statie'smotion thus. the trial court did not err In fail in Pierso11, since 1988, the Alabama lo excludeevidence of J.S.'s ~talemenl$ ing lo assess Pierson the statutory legislature has clearly expressed concerning the allegedscxuo l nbuse by penalty. The supreme court granted the its intent to ImposehMsh manda her stepbrother. tory punishments on drug dealers. Loyd held that during the lrial of a The enhancement provisionsof Mfendantaccused of sexual abuse ·ev1. D11vld B. §13.4-12-25/Jand 270 which pro dcnce or the victim's prior folsc allega Bymo , Jr. vide for an increased sentence if tions and threats or sexual misconduct Oev,dB Bv,ne.Jr the drug sale occurs within a is a Qtactuole d hi: by persons other Ulan the defendant ~"'Yd three-mile radius or a school or may be introduced to showa 'common ~.,..he public housing project respective plan. scheme, design, or system' by the ..-gr ...... - ly are mandatory.See Ctmny11. viclim." Loyd, 580So2d al 137.'i. As --lnwdogroos He II a Stale. 629 So.2d 693, 696. articulated in 1-oyd, demonstrated falsi• mombef01 1he Montgomery rirm o1 (Ala. Crim. App.1993) . ty is the si11e quo non of admissibilityor -&Beloer rd ...... lhis speciesor evidence.In other words, ...... Child sex abU$e- admissibilityof given that J.$. had made allegationsof - prior faults allegations sexual abuse, the denials communicated r-...,. WIibu r Q , Sllb orman Peeplesu. State of Alabama, 30 ABR lo the DHll representative were tanta Witlul G $11bltm0n. 428 (DecemberI , 1995).Peeples was mount to admissions that the alleg;ition of ohoB•mir>Qham tried and convicted for a violationor or sexual abuse was false.J.S.'s denial or lwmalGorm, 5-mon.W9Qira §13,1-6-66,Code of Alabama (1975). i.e., the allegation ag.iinst her stepbrother i>o.od,.1111_ first degree sexual abuse of a female brings this case squarely within the SamfOt'dUnitl'OfSl,Y under the age 12 years. During an in operation or the nile artlcufoledin Ex and lh• Unlv'i:t/Srly or orA!Abel'!'lll at10 limine hearing, lhe State sought to pre parle l.(Jyd, supra. Mnoclmllw vent Peeplesfrom asking J.S .. the alleged Accordingly.the Supreme Court. in a clegrN ...... victim, any questions regarding • sexual five-to-threedecision, affirmed the Un.""""Y'tS Sheffield Public • University of North Alabama University of Alabama Hunstvillc Alabama Supreme Court Why6,000 City of Bir,u;'lg:-,am/~'. ~11ch~;de Branch City or Birnnngham/i-lorrnsu.le Branch Lawyersuse City of Bim1ingha111/WcstcrnHills Mall Branch Chap7•• 13 Univcrsit:,. ut' r\lr.l>, ..1,.i .... istcr Hill Unive~ityof Alub.uiiafii, ,u·;ng.ham/Mcn-ynSterne * Best TYJ>CScllook U'I o,nkrup1cy Ponns . University of South Alabama * l'as1es1,friend liest :;oflw,re. Rohe le Public * The only software with built-in /11tolllge111Help . * Autom:iuc Pl:in Draf1ing.54 CUSIODI Fair ,. Public plans to sm,sfy all dhinets. A u b u r n U ., i \ ..i 1 .; i ; ~· .\1 ;, ., 1 go 111e r y * Filing check-lists, client questionnolrc . 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LEXIS·NEXIS Formore information, call ADVANTAGE 1-800-356-6548FORSMALL LAW FI RMS ALABAMA STATE BAR [ Al.0114 ) MEMORIALS WiJliam David Wilkes, Jr. and two years later was clecLed circuit solicitor. Wilkesr eceived numerous honorsfor the numberof caseshe han· he Marshall County Bar Association died and the number of convictions he TloSLone of its most distinguished won. He moved to Guntersville and James Ira Aldridge members through lhc death of William resumed his private practice in 1961 Birmingham David\ Vllkes. Jr., on Pebruary 6, 1996, and continued it there unlil his death. Mmilted: 19n at the age of 76. Wilkesheld three public pOSitionson or "Junior· he affec Died: February 21. 1996 Wilkes. as was a part-time basisw hile practicing law. tionately known, was born in llo/moke, Me was appointed a s1>ecial federal pros Alabama.H is familymoved to Marshall ecutor in 1967, and in 1976 the City County in 1935. \\rilkesattended Council of the City of Guntersville Paul Warrington Brode Columbia MilitaryAcademy, and gradu 3ppointedhim municipal Judge,a posi Mobile ated in 1939 from Marshall County High tion which he held until shortly be(ore lldmilled : 1950 School. Me then attended SneadStale his death. Additionally, in 1982. DiL'li:Apri l 14, 1996 CommunityCollege and Jacksonville Co,~rnor James named him a special State Uni\'e.rsity Nfore movingto San assistant attorneygeneral. Diego, California.where he workedas a Wilkes left behind a devoted wife, lwo machinist for Consolidated Aircraft. He sons, a brother. three grandchildren and Sydney Wilson Hi bl served in the Na\l}'in lhe Pacific during ~n innumerable host of colleagues and FlorffiCl! WorldWar II, and alter the war, attended friends who mourn his passing. Admitted: 1956 the Universityo f Alabamaand earned his Di/Jd: Pebruary 18, 1996 law degree. -Je ffrey B. Can Wilkes moved to Arab.Alabama i n President. Marshall 1956and beganpracticing law. Il e was Counl)tBar Association elected county judge that same year, Richard Lester Jones IJinningham Admilted: 1949 Died:April 22. 1996 Please Help Us 'l11e Alabama l,awyer "Memorials" section is designed to provide mem J. Paul Meeks bers o( the bar with informationabout the death of their colleagues. The Birmingham AlabamaState Barand the EditorialBoard have no way of knowingw hen lldmifled : 1937 one of our members is deceased unless we are nolified. Please take the time Died: December 5, l 995 to provide us with thal information. If you wish to write something about the individual'slife and professional accomplishments for publicationin the magazine, please limit your comments Lo250 words and send us a picture Reggie Stephens if possible. We reserve the right to edit all information submitted for the Mobile "Memorials"section. Please send notificationinformation to the following Mmitted: 1968 address: DiL'li:Feb ruary 23, 1996 Margaret L. Murphy, The AlabamaLawyer. P.O. Box 4 15 6, Montgomery , AL 36 101 11wAWtiwt.w- II l'ISIFFl#ffll MEMORIALS A Tribute than 23years. Wedid nol always held and the conv,ctions we devel· agree on eve,y point of law-I tell oped were formed in the crucible or people that is why there are mne of substantial research and experienct to Justice us-bul we shared many common and were reached only after we were charactcrislics.T he one that I appre personally convincedthat what we RichardL. ciMedthe most aboul Red is illus were doing wasrigh t. but even if we trated by a commenl he made several disagreed.we did so agreeably. "Red"Jones years ago when we wert attempting During Red's leg of the race. we to get some restructuring or our did not get all accomplishedthat he courL He said: "Hugh and I do not and I would hnve liked to see accom· (Thefollowing remarkswere mada alwaysagree on everything. but there pllshed, but during the leg of the by Juslice Hugh Maddoxal the is alwaysone thing I can count on race we ran together. we saw and funeral of Juslir;aJones at the if there is a proposal that would experienceda lot of change. In fact, ShadesVa/leg Presbyterian Church impl'O\-ethe administration of justice we were working together. and were on April 24, 1996a11d origmally on the table. l can alwayscount on an integral part of it. Redand I saw appearedin The Court Brief. the one other vote from across the the eslablishmenl of the Unified AlabamaJudicial Deportment staff table." Thal feeLingwas mutual, i can Judicial System, the llules of newsle//er.They are reprintedhere assure you. l'rocedure that govern the trials in with permissionfrom Justire Redand I were friendsand shared bolh civiland criminal cases, and Maddox.) many things in common. Weboth the administration of justice. Wesaw grew up in rural Alabama.he in the eslablishment of training pro n April22, when I heard about PickensCounty. I in Covington.We grams for our Judges,clerks and reg. ORed's death, I wilI never forget shared common folkloreand legends, isters, judicial assist.intsand court the feeling. I said lo myself."No, It and enjoyedlhe same kind of wit and reporters. We parlicipa.ledi n the can't be Red. Even al 73. it can't be humor thal was alwaysappropriate revisionof lhc AlabamaCode, serv lled." He had lookedso good the last for mixedcompany. We both disliked ing al alternate times on the Code lime I saw him, but when I hurd the putting things off, except maybethe RevisionCommittee. details, I knew th3t it was Red, that a filingof our income taxts. Weshared RedJones had boundlessenergy, freak accident had wrenched the a common faith. though we wor and although he has passedhis baton of life from his hand and shipped at churches of different baton to those of us who are still In thrust it into ours, that he had fin. denominations.We shared an early the race and lo some who are just ished his part of the race, but that we inleresl in service to others by vol beginning. let me tell you that he still have the baton, uch of us, and unteering our time in c1v1corganiza. left with us the legacyof how the must cal'T)Ion, mindful of the tions and associationslhal we felt race should be run. He prepared instructions and wisdomlhal he so would improve our communities.or well, he was totally committed. and willingly lefl to us for running the that we thought would advance our he ran with endurance. race, but also consciouslyaware , and profession.We both believedstrongly !led and I never talked about the appreciative,of the way he ran the in those things we held dear, our ending of life, becausewe were too ~.... ~th boundlessenergy and country, our families,our faith. We busy living iL Consequently,he enthusiasm. with wit and humor, respected uch other. Myonl>• regret never told me how he would like to with sympathyin time of sorrow and is lhat becausewe livedin different be remembered. I will remember tragedy, with couri,ge, with ho1>e. cities, we did not get to socializeas him as a good husband, father nnd with focus, and mosl of all, with much as I would have liked. to play grandfather,a goodsoldier. a fine endurance. always.as Paul said in golf or just to visit with each other. l Christian. a lawyerwho loved his Philippians3:14, "pressingtoward am sure lhal I have missed some professionand gave himself to it. the prize of the high calling of Cod good sto,ytelling sessions that his and as a justice who made a differ In Christ Jesus." friends in Birminghamgol to enjoy. ence. But I will alwaysremember Red and l served together on the l am going to miss Red. He knew him as my friend, and I will miss AlabamaSupreme Court for more and I knewthat the positIons we him. • •ttil'ISIPki-11 ~~1.-,.r CLASSIFIED NOTICES RATES: Memb ers: 2 free listings of 50 words or less per bar member per calendar year EXCEPTfor ·position wanted" or ·pos1Uonoffered* listings - $35 per insertion of 50 words or less, S.50 per add~ionatword, Nonmemb ers: $35 per ,nsenron of 50 words or less. S.50 per addillonal word Classified copy and payment must be received according to the following publfshing schedule: Jul y '96 Iss ue - deadline May 15, 1996,S ep t ember '9 6 Iss ue - deadline July 15, 1996 No deadline extensionswill be made. Send classified copy and payment. payable lo TheAlabama l.8wyer. to: Alabama Lawyer Classifieds,c/o Margaret Murphy, P.O. 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