ver the years commercial malpractice insurers have come and gone from the Alabama marketplace . End the worry about prior acts coverage. Insure with AIM. We're here when you need us: Continuously!
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"A Mutual Insurance Company Organized by and for Alabama Attorneys" Attorneys Insur ance Mutual of Alabama , Inc. • 22 Inverness Center Parkway Telephone (205) 980-0009 Sulle 340 Toll Free (800) 526 - 1246 Birmingham , A labama 35242-4820 FAX(205)980 -9009 • CHARTER M EMBER : NATIONA L ASSOCIATION OF BAR - RELATED INSURANCE COMPANIES NOTICEOF ELECTION
Notice is given herewith pursuant to the AlabamaState Bar Rules GoverningElection of Presi dent-elect and Commissioner.
PRESIDENT-ELECT
The AlabamaState Bar will elect a president March 1, 1993. Any candidate for this office elect in 1993 to assume the presidencyof the also must submit with the nominating peti bar in July 1994. Any candidate must be a tion a black and white photograph and bio member in good standing on March 1, 1993. graphical data lo be published in the May Pelilions nominating a candidate must bear AlabamaLawyer. the signature of 25 members in good standing Ballots will be mailed between May 15 and of the Alabama State Bar and be received by June l and must be receivedat state bar head the secretary of the state bar on or before quarters by 5 p.m. on July 14, 1993.
COMMISSIONERS
Bar commissionerswill be elected by those Allsubsequent terms will be for three years. lawyerswith their principal officesin the fol Nominationsmay be made by petition bear lowingcircuits: 8th; 10th. places no. 4, 7 and ing the signatures of five members in good Bessemer Cut-off; 11th; 13th, place no. l; standing with principal offices in the circuit ]7th; 18th; 19th; 21st; 22nd; 23rd, place no. l; in which the election will be held or by the 30th; 31st; 33rd; 34th; 35th; 36th; and 40th. candidate's written declaration of candidacy. Additional commissioners will be elected in Either must be received by the secretary no these circuits for each 300 members of the later than 5 p.m. on the last Friday in April state bar with principal offices therein. The (April30, 1993). new commissioner positions will be deter Ballotswill be prepared and mailed to mem mined by a census on March 1, 1993 and bers betweenMay 15 and June 1, 1993. Ballots vacanciescertified by the secretary on March must be voted and returned by 5 p.m. on the 15, 1993. second Tuesdayin June (June 8, 1993) to state The terms of any incumbent commissioners bar headquarters. are retained.
THEALABAMA LAWYER January 1993 / l The Alaban1a IN BRIEF a"\Vyer
January 1993 Volume 54, Number l Publlshodsev on timesa yea, (the sevortlh,ssue i s a ON THE COVER: ba, directory edltfon) by 1ho Alabamo Slate Bat, P.O. Box 4 156, Montgome ry. Alabama36t0 1. Ice storms in Alabama paint a picturesque landsc.ipe. Photo by JomesG uier PhOno (205) 2fl9-15 t5. INSIDE ISSUE: Robert A. Huffaker - ········ ..······-···-· ...... E ditor rms Susa n ShirOdt OePaola ·- ················.Associa1e Editor Lawyers & Doctors Joi n Fon;es Agaim t Drug Abuse M11rgare1M urphy...... , ...... M anagtng Editor By EdwardM . George ...... 16 eo.nto f Edito,. W\111111'1'1J. UndOrwoocl , TutlQUmbl,a• Joftrey L. t.1,nher. Moalle • Report$ from IOLTA Grant Recipients Alex L Holl.S1otd,Jr ._M onlQ00\(11')'• Nan T. RC,001'$, Bitmino ll•m • J,E. s.i.....,.,, JI , Enterprise • Leah 0. Ta'ft)t, Bimllr,o By Timothy A. le wis ...... 22 ham • Deborah Alley Smi1h, 8lr ml11g ham • 0111• Olan Oirmingtl;ain, Joh n w Katgrove, Blrrn~l\am • Rayo. Noo;n, Opening of Court Ceremony ...... 24 Jt., e.tmlngl'lllffl• Dobott1hJ . I.Of'O.e1mv,gti.am • s-,y COf. kltn ·Buller. Mont.gotnety• lalX.l Pedl, BiMWIQIIAm• 5$1:i A ABA's Legal Techno logy Resouru Cent er MeGlv411en, 8irmit1gham • Hon. Joseph A. Colqulu, T U5CIIOOSI • Susatl E. RuS$. Monl gQrn41f)' • John M.,f'k H.n. By M. IYQyne Wheeler ...... 36 Birmingham • ~aymoncl L JoMsori. Jt.. BlrmlngtlLWn• PNl!f, A. Lllrd, Jaw,er • C9c;ilM . T.p PRESIDENT'SP AGE re you genuinely satisfied with the practice ature-the rise of the '·Rambo" lawyer. More and more of law as it exists today? If so, you are in a lawyers and judges complain that we have entered a new [D distinct minority. According to a recently era of ruthlessness in the practice of law. Some counsel released survey conducted by Washington's undoubtedlyequate zealous representation with ridicule, highly regarded Peter Harl and Associates,only 27 per intimidation and humiliation of the opposition. both cent of the lawyers questioned were substantially satis lawyer and client. Accusations of misconduct are increas fied wiU1 the state of the legal profession.Actually , this ingly hurled with impunity and Rule 11 sanctions are should come as no surprise. Surveysover the past five sought against opposingco unsel with alarming frequen years have repeatedly announced that ever-increasing cy. Stud ies throughout the United States reveal a numbers of lawyerswere unhappy in their work and with widespread concernover this gradual change in the prac- the quality of their lives. Between tice of law from a calling charac 1984 and 1990, the number of terized by mut ual respect for young lawyers disenchanted with adversaries to one of abrasive con their career choice jumped 77 per frontation. One judge underscored cent even though their incomes the dilemma this way: had risen. "There must be a way to contin The three most frequently cited ue the spirit of the adversarial pro reasons for this growingd iscontent fession of law withou t the are (I) the lack of public respect mentality of warfare and bitter· for the legal profession, (2) the ness. We have lost sight of the fact absence of fundamental courtesy that we are all brothers and sisters among colleagues, and (3) the of a truly noble profession. We inordinate amount of time and should be showing the best of the effort spent in responding to con rule of law. Not how to conduct a tentio us discovery, motions or bra\vl.r' other tactics designed to intimi· Professio nalism has been date or harass one's opponen t. defined by our bar as the pursuit These concerns appear to be valid Clarenc e M. Small , Jr. of the learned art of the law as a and, in fact, interrelated. common calling, with a spirit of The psychologists tell us that service to the public and the client self-esteem and the satisfaction with our state in life undertaken with competence, integrity and civility. The which accompaniesit, come, in part, from the knowledge concept of lawyeringenvisio ned by that definition is the U1atwe have the respect and affection of others. Aftert he antithesis of that reflected by "Rambo" tactics. Addition recent presidential campaign, there can be little doubt ally. experience teaches us that a victory achieved by that the public holds lawyersi n low esteem. The bashing such tactics creates only long-term and implacable ene of the legalprofessio n that took place there did not occur mie.s who will not soon forget their bitter experience. on a "hunch" that such a tactic would meet with voter It occurs to me that there may well be a relationship approval. Opinion samples taken by campaign officials between lawyer and public dissatisfaction with the cur reflected a pre-existing public distaste for the legal com rent state of the legal profession and this burgeoning munity. Consequently, it made political sense to tie the phenomena of the callous disregard of fundamental nation's economic woes to an already unpopular group. courtes ies among lawyers. Certainly, we cannot and Lawyerswere the perfect scapegoat.I t is little comfortto should not expect the public to respect us if we do not know that the charges leveled turned out to be complete demonstrate respect for each other. And, we must have ly false, based as they were on half· and quarter-truths the respect of the public if we are to retain our exclusive and, in some instances, rank speculation. The public per franchise on the practiceo f law. But, there is more to be ception that lawyers foster and profit from an oppressive gained from professionalism and civilitythan that. Chief explosion of contentious and merilless lit igation Justice Harold Clarkeo f Georgiapu t it this way: remains. "Our effort about professionalism is not a public rela This falseperce ption is, no doubt, aggravatedby a par tions effort. Wear e not doing this just to get the praiseof allel phenomenon being chronicled in current legallite r- (Continued on page9 ) 4 / January 1993 THE ALABAMA LAWYER POLL The lasl poll seemed lo strike a chord as reader participation more than doubled lhat of the September l 992 poll. With some lrepidalion. lhe editors now wanl your honest appraisal of u,e Q11allty of TheAlabama Lawy er. Do you read it? If so, 1vhichfoa · lures do you like or dislike? In short, we wanl a critique of the publication.Take a momenl to complete the followingqu estion naire and lhen fax it to st.atebar headquarters, do MargaretMurphy , at (205) 261-6310.I f you do not have access to a raxma chine, you may mail it lo P.O. Box4156 . Montgomery, Alabama36101 . Allanswers must be RECEIVEDby January 29, 1993 to be includ ed in the results publishedin the MarchiS3ue . CRITIQUEOF THEALABAMA LAWYER 1. 'rhe following best describes my use of The Alabama 3. Please provide any comments on additions, deletions nnd lawyer: changes to The AlabamaI Awver which you would like to a.__ 1 never read it see: b. __ 1skim it c. __ 1 read selectedporti ons d. __ 1 read it in its entirety 2. The following bestdescribes my reading habits with respect lo the features indicated: Pre$idenl'sPa .qe Executive Director's Report a. _ Alwaysread n.__ Always read b. __ Sometimes read b. __ Sometimes read Facts/Fax Poll RESULTS c. __ Neverread c. __ Neverread tn the Novemberissue of lhe Lawver,the editors asked for lepislalit>eWrap-up your participationin our second informalpolling of the mem a. __ Alwaysread bers. The fivequestions centered on lhe selection/electionof b. __ Sometimes read judges. Eighty-fiveallomeys responded to the poll, either by c. __ Neverread faxingor mailing in their response5.Here are the results: BarBrie/s /,1/>outMembers, Among Pirms Of those who responded: a.__ Alwaysread b. __ Sometimes read I. 24% agree that trial and appellate court judges In Alaba· c. __ Neverread ma should continue to be elected under the present for mat.while 65%d isagreewith th.it. BuildingAlabama's Courthouse$ 2. 7'16feel we should continue with lhe partisan election of a.__ Alwaysread b. __ Sometimesread judges. 6596 feel we should adopt a procedure for nonpar c. __ Ne-.wread tisan election, 239' fttl after the initial election or judges. any subsequent election would be on the basis of their Substa11ti1,elegal articles CLEOpportunities record only, and 5% feel we should adopt nonpartiSilJ1elec a. __ Alwaysread a.__ Alwaysread tions ANOe lect only on the basis of th e judge's record. b. __ Sometimes read b. __ Sometimes read 3. 12% want to retain the present systemof allowingunlimit ed c. _ Neverread c. __ Neverread contributions and expenditures in judicial races.2096 want some type of limitation.631)6 fovor placi ng a limit or absolute Discip/inorvReport YoungLawyers ' Section prohibitionon contributionsby lawyers,and 5'!6favor plac a.__ Alwaysread a. __ Alwaysread ing a limit on BOTHexpenditures and contributions. b. _ Sometimesread b. __ Sometimesread c._ _ Neverread c. __ Ne-.-e.rread 4. 1296favor judicial appointmentsby the GO\'Ul10r,7096 fa\/Or appointment by the Covernor from a list submitted by a RecentDecisions Memorials localcommittee, 1796 want appointmentby a local commit· a.__ Alwaysread a. __ Alwaysread tee and 1% chose none of the choices listed. b. __ Sometimes read b. __ Sometimes read 5. 20%feel we should follow lhc federalsystem of appointing c. __ Never read c. _ Neverread judges for life,whil e 8096disagree with that option. Tl JE ALABAMA LAWYER January 1993/ 5 Here'sWha t LawyersWho Have Invested InOur TimeSav ingKnow ledgeSay: , , ...saves 11s time nnd money ... Wit/1 opposi11g ,01111sel , , I renda11d me ALABAMA l.mv Weekly . It givesme mingthis mpid service we c1111 't affordto wait 1111d wait nnedge ill k1101vill91vhat cnscs were decided n11d how they 011slowel' 1111d lesscomplete p11blicatiom. With maynffect 1111, cl/pits 'files. It isi11valunble tot/Je b11sy ALABAMAliliv Weekly weget tl,e cM SQlllllrnrie.s pmetitio11c1:J J nlmostns f nstns the cn .sesare re lensed. J J ~mA. Rumatt, 1,., M igfionico& Rumoie, Birm ingham,Ala bama. jamesE. Tumbach, T11n b1ch& Vla•en,Ga dsden,Alab.ima. , , om·clie11ts e.~pe,t m tostay abreast ofall , , ... 1111immedinte nlert ... 11 grent timrun:ve1: ..n developments.Oftw this 1· eq11fresspwdillg 11011billable vali111ble, practicaltool with co11cise, ensy·to·rend, time.ALABAMA Law Weekly ist/;e fnstcst nnd best serviceavai/able,givillg tu all t/;e i11fo1'11111tio11 we ncwrates11111mn1-ies 1 logicallyor9m1ized byco11rt 1111d legnltapif. J J 11ceda11d ittnkes II lotless time to nse. Our c/iwts 1vin 8ilyW. lock!Of\ Jack son & Willi.lffll,Cullma n, Alabama, 1111dWCn1fo, J J (President,Cullman Cru'liy Bar Al l attodrneys~we must s:tay,a bre{:fst of appellate ''Ascourt ecisions on a timety basts~ , However,the publicationsavailable simply did not meetall my needs. Onedoes not addressall the decisions,the otherswere much too slow, andcompu ter servicestoo expensive in bothtime and money. I needed a weekly alert, a fast,con cise summaryof decisions to makeme awareof alldevelopments so I couldim mediately use the onesim portant to my practice.As an answerI createdALABAMA Law Weekly. The response hasbee n overwhelming. Our subscribersinclude hund redsof l awyers whoare nowsaving Lime and money wh ile aquiringthe knowledge theyneed, fede ral andstate judges, li braries, insurancecompa nies andbanks. We 're the new kido n the blockand we're hereto stayl I urgeyou to becomea subscriber todayand becomea part of the practicesthat aresett ing lhe newstandard . J. Duane Cantre ll . Edit or JD , U of AL. 1Q7S: ll.M.Tox. U of ftA .. 1980 PrCvote Proc .10yr$, In Mouse Counsel 2yrs: AdJuncl P1of, U o,Al Sch ot lo w (groduo te lox Program) 19Q2 Timeis Money. Now You Get More of Bothwith ALABAMALaw Weekly, a Weekly Summary ofAlabama Legal Development s. Whya1 ·e More andMor e ' AttorneysChoosing AlabaniaLaw Weellly? Thereasons are simple. Eachweek, AlABAMA Law\Veekly provides subscriberswith succinct, easy-to-understand summariesof all Alabama AppellateCou rt decisions almosta s fastas the decisions arer eleased.* • U)uallyum n:ICJScJon FridayJI\' bric(cJ.uid in 1hc nuil by the following Thur1'bl'. MOREPOWER TO YOU. rnrnis 01'CASES IIAJl.l:J)OR~ .\ \Ell •L•A•B•A•M•A\VLaweek lv 1'0 \L\BA\L\ L\11 \\££~Lr A SI BSCRIOhRS.C\LL FOR A WEEKLYSUMMARY OF ALABAMALEGAL DEVELOPMENTS ,\11.Til!ill&iAII.S. Call 922-1075 to Subscribeta ALABAMALaw Weekly EXECUTIVEDIRECTOR'S REPORT MOVING!APOLOGIES! SURPRISE! ovlngl lions for space util1zalionfor depositions,c lient conler ences, arbitration and bar-related group meetings. The newyear will be an exciting one at your This is our profession'sbu ilding. I hope you will use it new state bar headquarters. Al long last, we and visit it often. mare lhrough with construction, reconstruction, missed deadlinesand disappointments.The construction pro Apologies! ject is finishedand we are "in". This \\'aS no small project. even though one contrac The best laid plans can be thwarted by a computer.We tor who declinedlo bid on it- for that reason-told us knew the issuanceo( 10,0-00licenses and special mem it was. It was not easyworking in a building that was bership cards would be a tremendous undertaking being constructed and renovated.The project is almost considering the job now done by two people had been fivemonths overdue,but the wait done by at least 67. Unfortunately, has been worth it. our computer program and the The staff has been truly magnifi forms have taken too long to cent throughout our chaos. mesh, and, for that reason. we Things were not always easy-or experienceda delay in getting the pleasant- bul flexibilityand antic 1992-93 licensecert ificates in the !pated new working conditions mail. Al!o. we experienced an assuagedmany frustrations.Com inordinately large nu mber or mittees and others who had meet· improper remittanceswhich have ings scheduled based upon the taken long hours or overtime lo contract completion dates were correct. It is hoped that all of the equallyflexible and cooperati11e. •bugs" now are out or the system I hope when you visit. )'OU will and it will be smooth sailing for agree the wail was\\'Orth it! 1993-94. Our new space allow; us lo have up lo seven meetings occurring Surpri se! simultaneously. One room holds Reglneld T. Hemner 14 persons. another 25 to 30, two The amended pro hac vice rule others hold six to ten, one holds has revealed by far and away a up lo 80, and two smaller rooms greater number of non-resident hold six to eight. We now have a visitinglawyer's office lawyersfrom other jurisdictions practicing in Alabama with adjacentsec retarial space and two other small 11ri than ever imagined. The new rules implementation, vate officesfor visitor use, and the bar president once with an effectiveda le or October J, 1992. revealed186 again has an office. such lawyersapplying in the first week or filing. At this We have three refreshment areas and one modest writing, we have or have in process 386 pro hac vice catering kitchen. We have handicap access and visitor applications.One of these non-admittedlawyers has 88 parking. The addition or two pri\oatetelephone booths casespending in Alabama. has been neededand long o\oerdue. This new system of tracking-once the initial O\'er The entire state bar operation is again under one roof load is processed-will affordour judges the facts upon in this location.Shortly after the first of the year. when which to see how many attorneys are abusing our rules a lew remaining furnishingsare received,we will dedi governing admission. Man>', in fact, may need to take cate our new (acilitywith a week-longreception . Special steps to be admitted in Alabama.given their extensive days will be designatedfor the more densely populated prncticein this state. to avoida charge of unauthorized circuits, but we hope everyone will make an effort to prnctice.This rule applies to practice in all of Alabama's visit at their convenience. We are already taking reserva- state courts and before her agencies. • 81January 1993 TMEALABAMA LAWYER President 's Page abrasi~'tform or ad110cacythat seems to told by our forebears that these are otherwise pervade our profession.Pub among the most powerful! weapons a (Continued from page 4) lished in the November issue of this lawyercan possess.If we follow the stan journal \\'tre the tenets or professional dards of professionalismadopted by our our fellow(human beings).W hat we are ism adopted by )'Ourboard of bar com commissioners, of which civility is an reallylooking for is ••• the kind of self missioners. It reminded me of how I integral part, our satisfaction with the satisfaction thal you get from doing should conduct myself as a laWYer.A slate of our profession,and, indeed,with right for righl's own sake.· part of our creed requires that we offer our own state a.s practicing laWYers, We are fortunate in Alabamatha t few lo opposing parties and their counsel should measurably increase. It is hoped of our peers have fallen victim lo this "fairness. Integrity and civility.• We are the esteem of the public will follow. • r------, ADDRESS CHANGES Compltte the fonn below ONLY if there are ch.1ngut o your llsllngin the current,1/abama Bar Oirectorv.Due to changes in the statute gos..rntng tltctlon of bar commissioners. "'" now anerequired lO ust members'offi ce addre$52$, unless nont is availableor • memberis prohibited from receivingsta te bar mail at the offi~. i\dditio~lly, the Alabama&r r Directoryis compiledfrom our mailinglist and it is importantto usebusintSS addresses for that reason. NOTE: I( we do notk now o( an address chang•.we Cillnot make the neassary changes on our necords.to pl- noti(yus\\'hen )'00raddr""5 changu. Manform to, AliceJo Hendrix, P.O. B4X671 , Montgomny,AL 36101. ------____ _ Memberldenli f,callon (SocialSecurity) Number Chooseo™' : Mr. - Mrs. _ Hon. • Miss ~Is. Other __ _ _ f ullNam•------Business Phont Nu1nber ______Ract ______Sex___ Blrlhdate______Year ofA dmission ______ Firm ------OfficeMailingAddr..s ------City______Stitt _ _ ZIPCode ______County------OfficeStred Address(If diffenentCrom maili ng address) ______ City______State _ _ ZIPCode ______County------L------~ NOTICE JUDICIAL AWARD OF MERIT NOMINATIONS DUE The Boordo( Commissioners of the Alabama State Bar will ly to the administration of Justice in Alab.1ma. The recipient is receive nominations for the state bar's Judicial Award o( Merit presented with a crysial gavel bearing the St.lie bar seal and through May IS. Nominations should be prepa red ond lhe year of presentation. mailed to ReginaldT . Hamner, Secretary, Board of Bar Com· Nominations are considered by a 1hree-mcmbcrcommittee missioners, Alabama Stale Bar, P.O. Box 671, Montgomery, appointed by the president or the state bar which makes a Alabam.136101. recommendation to the board o( commissioners with respect The Judicial Award o( Merit was est.Jblished in 1987, and to a nominee or whether the award shoold be presented in the first recipients were Senior U.S. District Judge Seyboum any given year. H. Lynneand retired Circuit Judge James0. Haley. Nominationssho uld Includea detailed biographical profileo( The award Is not necessarily an annual award. 11may be the nominee and a narrativeoutlining the significant contribu presented to o Judge whether state or federal coun, irial 01 tlon(sl the nominee has made 10 the administration o( jusiice. appellate, who is determined to have contributed significant, Nominations may be suppon~..Jwith letters o( endorsement. THE ALABAMALAWYER January 1993 / 9 BAR BRIEFS Chief Justice than 56,000 square fee and 14 seminar tion Associationof America's"Congres Sonny Hornsby rooms, conference facilities, three com sional Appreciation Award", and lhe has named Oliver puter education training classrooms. American Security Council's "Peace Gilmore as admin faculty offices. lounges. and a 40,000- through Strength" award. istrative director of volume capacitylaw library. 1\vo lecture Dickinson is a native of Opelika, courts in Alabama. auditoriums, serviced by a state-of-the Alabama and obtained his law degree Mr. Gilmore was art audio-visual support system, will from the University or Alabama in l 950. named acting direc- provide facilities for students attending He practiced in Opelikaand from 1951- Gilmorc tor in June when the 23 course offerings throughoul the 53, he served as a judge in the Opelika Judge Leslie John year. City Court. He became judge or the son resigned to become the director of U.S. RepresentativeBill Dickinson was Court of Common Pleas, then served as the MississippiJudicial College. Gilmore first elected to Congressfrom southeast judge of the Juvenile Court of LeeCoun had servedas director of rinanceat AOC Alabama in 1964 and has servedcontin ty and judge of the Pifth Judicial Circuit since 1988. uously since U,en. of Alabama. In 1963. he moved to Mont A native of Lanett. Alabama, Gilmore gomery to serve as vice-president of has been with AOCsince 1978. He was Southern Railway, a post he held until previouslyemp loyed at West Point Pep he won Alabama's SecondCongress ional perell, West Point, Georgia.He is a grad seat in 1964. uate of Auburn University and is He served in the U.S. Navy during married to the former Kathy Woodward World War II and as an Air l'orce of Opelika, and they have three children. Reserve Judge Advocatefrom 1951-68. He is married to the former Barbara The Dickinson Law Center, Edwards of Plant City. Florida. He has named for the Honorable William L. four children. Dickinson, U.S.H ouse of Representa tives. 2nd District, was dedicated Octo James D. Harris, Jr ., formerly ber 26. J 992. The Center, located at of the Montgomery firm of Harris & MaxwellAir Force Base in Montgomery, CongressmanW illiam L Dickinson and then U. Harris and currently a partner in the will house the new Air Poree Judge C0wtal ChatlflSC. Boyd, eornrnt1,1der of Air lhu'. BowlingGreen, Kentucky firm of Harlin AdvocateGeneral School and the Direc oorsity. in frq,it of /if(Lrwell'sDickiu.wn I.Aw Cen & Parker, has been appointed by the torate of LegalIn formation Servicesand lar, named i11 ho,101 of Dicklnson ·s mang Kentucky Supreme Court as a member contributionsto the J.!o.xWf!.lJ·CU11U•tcom,nunify will open May 1993. Thi s S6.J million duringhis 28 years in office - Photocourlesy USAF of the KentuckyContinuing Legal Edu center for legal education and informa cation Commission. tion management will enclose more Mehas servedas the RankingRepubli can for the last l l years on the Mouse Copies of newly adopted Rules Armed Services Comittee and is also Goveming Attorney Discipline senior Republican on the subcommittee in the United States Court of Appealsfor RIDINGTHE CIRCUITS on Procurement and Military Nuclear the Eleventh Circuit (Addendum Eight); Systems, and is a member of the sub newly adopted 11th Circuit Rule 33-1 Marshall County Bar Associatlon committee on Military Installationsand which establishes an Appellate Confer Facilities. As ranking member. Dickin ence Progra m; and amendments lo Officersfor 1993 are: son is an ex officio member of all sub· Addenda Five. Six and Seven of the PNsident: committees of the full Committee. Rules of the U.S. Court or Appeals for JOMNC. CULLAHORN Congressman Dickinson's Alabama the Eleventh Circuit are now available Alberluille district is home to three military instal without charge. These rules and adden lations, Maxwell Air Force Base (AirUni da took effecton October 1, 1992 follow Vice-president: versity), Gunter Annex to Maxwell (Air ing public notice and opportu nity for JAMESR. BERRY ForceCommunications), and Fort Ruck comment pursuant to 28 U.S.C. Albertuille er (U.S. ArmyAviation Center). §2071 (b). To obtain copies contact: Secretary/treasuNr. Dickinson has received numerous Officeof the Clerk, U.S. Court of Appeals T.J. CARNES awards, including the highest honor for the Eleventh Circuit, 56 f'orsyt h Albertuille from the AmericanConservat ive Union, Street, NW. Atlanta, CA 30303, (404) the "Statesman Award", the Army Avia- 331-6187. • JO/January 1993 TMEALABAMA l.AWYER Edward E. Carnes recently became the newestjudge on the UnitedStates Court of Appeals for the Elewnth Circuitwhen he was swornin Octo ber 29. 1992. The ceremony. which took place in Montgomeryat the Frank M. Johnson, Jr. Federal Building.included remarks by U.S.Senators H~'ell Henin and Richard C. Shelby. AlabamaSupreme Court Justice Oscar W. Adams, Jr., Montgomery MayorEmory Folmar and Morris S. Dees,director of the Southern Poverty l,nw Center in Montgomery. T.J. Carnes,a member of the stole bar and Carnes' father. administeredthe oath.Carnes was nominated JudgeEdward B, Carne.I by the President to fill the vacancyl eft when Judge Morriss. O..s. dlr«tor, Southum ~tv Law FrankJ ohnsonassumed senior status. Centu f'lor/110 C,,mc$,Juli< Comes. lleckyCames, Judge Cames and T J, Come, Chiu( Judge Gerald B. Tjoflut, JudJJ•Phvllls Krouilch ond Judge Edwarde. Carnes EXPERT MEDICAL TESTIMONY •fn!r · -SolDl"f •All•- ·-Sof1111' -~ ·.--"*'Gr--c.n • Ps)duuy ·:-~ ·-~-Surgery · Ps~ • Bloodlanl."'O •Cl!OdOQy ·• ----HecN!otov,-&-...... """-Med- • C.,d,o;...,,.., Surg,,y • Gy,,ooolooiGOoc:do9Y ·- Pedlitrtc:-~lnflCliOIIS o...... • Oual11yAIMltlncl , c1.. a1- ·• Gynoooiog'/ • Podlalrfc111t1M1Ye C.re ·• -~llllon lhor>py • ColotK111Suro,ry ·• Hllld--Surv,ry • PodlalrfcN'1JlltOlogy • Ali!lology • CrAA:al0111 • HMnltOIDCY • PediatricN OlfroloQy • Af THE ALABAMA LAWYER January 1993 / 11 BUILDINGALABAMA'S COURTHOUSES TALLADEGA COUNTY COURTHOUSE BuSAl'.fUEl A. RUMORE, JR. The followin,q continues a history of Alabama's county courthouses /heir origins and some of /he people who contributed lo /heir growth. The Alabama £o wg u plans lo run one roun/11:S storv in each issue of the mag· azin~ If 11011haw ang photographs of l!()r/gor present rowtlwuses. please for· ward them lo: Samuel A. Rumore, Jr., Miglionico & Rumore, 1230 Brown Marx Tower, 8irmi11ghom, Alabama 35203. Talladega County he name "Talladega" is well known lo modern day motor sports racing fans. DJbeing one of the fastest 71tehl1/or,( Tal/ndcpr, Co1111tv Courthou~ racetrack$in the world. However,the name traces its roots deep into Alaba RedSticks. Tht Battle or Talladegatook seta. Signed on April4. 1832.the treaty ma's Indianpast. place NO\-ember9, 1813 in the general transferred all or the territory or the In the Creek language, "Talwa" area of today's downtown Talladega. Creeknation to lhe State of Alabama. means town, and "Atigi-means border. The fightingwas fierce.but the Indians Alabamawasted no time assimilating A literal translation of the combined finally broke out of the encirclement. the land. On December 18, 1832 the wordsforming Tolladega means "bor der Jackson lost 14 men and it is estimated AlabamaLegislature created nine new town". Talladega, an UpperCreek lndi· that the Indianslost 500. counties from this Indian territory. an viil age, was a border town near the The Creek Indian War ended the next These included Barbour, Benton (later Cherokeennd Chickasaw lands. Tallade year arter the Battle of HorseshoeBend called Calhoun), Chambers, Coosa, ga County is completely bordered on and the ensuing Treaty of l'ort Jackson, Macon, Randolph. Russell.Tallapoosa, the west l>ythe Coosa River, which which was concluded on August 9, and Talladega. After the area was served as a boundary between these 1814. By this treaty, the Creeks were opened for settlement, only a few years Indiantribes. forcedto give up much or their territory passed beforem ost of the Indianswere Afteran Indianmassacre of white set· with the exceptionof the h.isloric Indi given land in Oklahomaand removedto Uersat Fort Mims on the MobileRiver an lands south and east of the Coosa the WesL on August 30. 1813 precipitated the River ,rnd north of a line running Until the Treaty of Cusseta,this land Creek Indian War. Governor William approximately from present-day was a wildernessinhabited only by Indi Blount of Tennessee called for volun Wetumpka to present-day Eufaula on ans. a few traders and some while teers and sent troops under MajorGen the Georgiaborder. Talladegaremained squatters. The end or Indian control eral Andrew Jackson to fight the in Indiancountry. over the territory inspired a new wave Indians and protect the southern fron Before the end or the decade, the or migration.Settlers came from Geor tier. One of the major battles in this war State of Alabama\\!as created. A signifi gia, Tennessee,the Carolinas,and other with the Red Stick branch of the Creek cant amount of land located1,ithin the Alabamacounties. Indianslook pinceat Talladega.J ackson boundariesof Alabama remained under The first permanent settlers came to used about 2,000 men to encircle the Indian control until the Treaty of Cus- TalladegaCounty in 1833.T hey settled 12 I January J993 THEALABAMA l.AWYER near a spring at the site of the Battle of for every gold watch: S.25 for everysil lure were repaired. Also in 1858, two Talladega.This location became know ver watch; SI for everymetal clock;and loads of sawdust were purchased to llrst as Big Spring, then The Batlle· S.25 for every other clock. Sin taxes cover the courtroom noor. Perhaps this ground, then Talladega Battleground, were common, including a $25 tax for was done to protect the iloor from and finallyTalladega. each billiard table ; $15 for a retail muddyshoe5, or , more likely,to protect An act of the Legislatureon January liquor license in town; SIO for a retail the noor from the errant aim of tobacco 12, 1833 provided that the temporary liquor licenseoutside of town; SIO for a chewers. An allocation of S31.70 was seat of justice for Talladega made for spittoons. Fortunate Countywould be al the Tallade- ly, the courthouse suffered no ga Battleground until a perma- damage during the Civil War nent site was selected. Eligible years. locations for consideration as On December 19, 1881, the lht permanent county seat county commissionmet to dis were the Talladega Battle cuss plans for repairing the ground, the Ford of the Tallade courthouse or constructing a ga Creek or WidO\vAnson's new one. The commission place, and Mardisvi lie. On adopted a plan to renovate lhe December 18, 1833 Talladega building proposed by H.R. was confirmed as the perma Therberge, an architect from nent seat of justice and it has NewOrleans. On May I 0, 1882 remainedso ever since. the commission awarded a The first courts were held In contract lo H.A. Howard for a log house near the spring. Sll,935 to complete the work. Other buildings , including George 0. Wheeler\\'\U super churches and taverns, were -,,,. Talla,kga<:ountrJudiciolBuilding intendent of construction. At used as temporary locations. this time furnaces and heaters Then. on January 4, 1836,a leg- were insta lled in the court islative act provided for the house. This work was complet- building of a permanent brick court· race track; and $1 for every pack of ed in December1882. house. One source recounts that the playing cards sold. loaned. given away A fence was installed around the courthouse was completed in 1838. or otherwise disposed of. There were courthouse in 1883. The building suf However, other sources indicate that also sales taxes, slave taxes, horse and fered roof damage from a storm in the building was not finally and fully callle taxes,and taxes on money loaned 1888. In 1889, the fence was changed finished until 1844. In any event, the for interest assessedagainst the lender. and shade trees were planted around Talladega County Courthouse has the The contract for the building of lhe the building. distinction of being the oldest conli courthouse was signed February 26, ByApril J 905. plans were approvedto nously ~d county courthouse In the 1836. The building contractors were alter and repair the courthouse. 11.K. State of Alabama. Jacob D. Shelley and Robert K. Hamp Chapman of Atlanta submitted these To pay for the courthouse, a special son. The contract price was $10,000. plans. R.W. West received a contract group of taxeswas levied on Pebnmry I , The contractorsagreed to build a struc with his bid of $13,500 to repair the LS36.T hese were the first of many taxes ture 40 by 60 feet and 30 feet high building and add an annex. This con· that had to be assessed before the abovethe foundation.The building was struction was the first major addition to courthouse could be completely paid to ha~ a cornice going entirely around the courthouse . Photographs taken off. Some of the more interesting taxes it and a cupola lo conform to plans fur after 1905 show that with lhis addition leviedwere the Infamoustime taxes: $1 nished by Lhecounty commission.The the buildingwas now shaped like a "T''. work was to include pl~stering,carpen in 1911, a seconda nne.xwas added to tering. glazing, painting, brick work, the courthouse. Charles W. Carlton of Samu e l A . and all things necessary to make the Anniston was architect for the project. Rumore , Jr . building complete and finished in a The firm of Powell&. Wolsoncrof\ \\'U -A.-oJt ii a QTadU&teol N first-rate\\'Orkman -like manner. the contract or. The bid price was unlverSII)' a Noire The are constant references in the $16,743. This lime, additions were Oameand Itta County Commission minutes in the made on both sides of the building to Unlv9'sity ol Naboma Sd' THEAu\BAMA u\WVER January 19931 13 was lost. An:hitecl Charles W. Carlton dislodged some bricks. The county opportunity to completely renovate, again submitted plans for the building commissiondecided to repair the struc modernize, landscape and preserve its and the l.lttle & ClecklerConstruction ture, but also made some minor historic courthouse. Streeter \Viall of Companysubmitted a low bid of S3.670 imprQ\lemenls.Charles H. McCaule)'of Wiatt. Watson & Cole Architects of to complete the repairs. build a new Birminghamwas the architectand ~1.C. Montgomerysupplied the specifications tower,and install a newdock. Munroe. with a bad of S7,003. was for the renovation. E.G. Harris, Jr. of On Frldny the 13th of March 1925, awardedthe constructioncontract. Harris ConstructionCompany in Good· bad luck struck the Talladega Court· In the 1970s, rumors began to circu water, Alabamasubmitted the low bid of house once again. This time a fire late thnl the courtholl$emight be torn $953,736. While the construction pro destroyed the roof and Inside walls of down, Local citizens and groups. such ceeded,th f county offices moved to the the building, but lhe exterior walls as the Talladega County Historical Asso old posl office building on the court remained Intact. Fortunately,when the ciation, wenl Into action. On October square. fire was discovered, a former probate 18, 1972. 39 structures. including the The TalladegaCo unty Courthouse is office worker broke lhe window, courthouse and surrounding buildings. a structure of red brick, while marble, sleel and concrete. It has two stories, an attic and a basement. It is basically a square building with external dimen sions of 110 by 104 feel. It is 40 ieel high. Its Classical Revival details include a pedimented central portico supported by two sets oi double columns with decorative bands and Corinthiancapitals, a Classicalcornice. and a pedimentwlth a circular window. The lirst-noor windowsare crownedby tapered bricks which create the impres· sion of headsor wheat On October 2, 1977,Talladega Coun ty hosted a rededicationof the Tallade ga County Courthouse in what was billedas Its "137th Yearof Continuous Service to lhe Citizens of Talladega County".Those c::itlzens can certiinly be proud of their rich heritage and their kttn foresightIn preservinga cherished historic landmark-their courthouse. To conclude the story of the Tallade 1M Talladtgo Co11t1IV Ol1"1ttBill/din!} in Sglaa,ug,, ga Countycourts. it must be noted that Sylacauga in Talladega County is also entered lhe building, opened the office wtre named to the NationalReg ister of considered a court site by the Adminis vault, nnd placed Lhe probate record Historic l'lactlllas the TalladegaCourt trative Officeo f Courts. A courtroom is books in the nreproof chamber. All of house Square Historic District. The dis providedIn th~ TalladegaCou nty office these records were saved due to this trict was later expanded to include 72 building localed al Sylacauga. 1'he quick »ctlon. buildings and approximately four acres architect for this building, which was Ane.r the nre, the county commission in Talladega'scentral businessarea. constructed In 1964. was Charles H. agreed to rebuild lhe courthouse, pre Instead of Lea.ringdown lhe.ir court McCauley& Associatesof Binningham. serving as much of the original struc house when the needs of the court sys The contractor was Motes Construction ture as possible.The entrances on the tem required modem and expanded Company.Inc. of Sylacauga.which also east and west sides of the buildings facilities, the citizens of Talladega built the newTalladega Count)' Judicial were enclosed, thus providing more County constructed a new court build Building. needed space. R.H. Hunt. an architect ing, and allowed lhciT historic: court· The author acknowledgesthe work of from Chattanooga,submitted the plans house to rtmaln. The new Talladega BettyR. Lessie)•or Sylacauga.who com for l.he courthouse restoration. W.L. CountyJudicial Buildingwas completed plied informationon the history of the Lillie servedas contractor. The count)' ln 1974. Martin J. Lide of Birmingham Talladega County Courthouse for the paid S60.000to rebuild the courthouse was the architect. and Motes Construc rededication brochure of October 2, alter the 1925nre. tion Co. Inc. or Sylacauga was the con 1977 and for the pamphlet honoring In June 1934, '"Mother Nature" struck Lractor. the 150th Anniversary or the Founding the courthouse in the form of a light When Lhe courts moved to the new of Talladega County, which was cele ning boll which damaged the roof and judicial building, the county seized an bratedApril 2, 1982. • 14 / January 1993 THE ALABAMALAWYER YOUR WORRIES ARE OVER w,lh our ALABAMA STATE BAR ENDORSED MAJOR MED ICAL PLAN OVl)ilableSOW or 10 CROUl'S ol PHENOMENAL RATES COVERAGE ACE MONTHLY PREMIUM• MONTHLY PREMlUM• • :ZS $33.00 $26.00 Mmiy JJ Slllll.00 $97,00 --ln • S:Z.000deducb'blc, 8000 """""'"'noclOSS.000 •• $$.OOOdeductiblc,S()IS0Q>W'61ll1JICelOSS,OOO 100","•S:Z.000.000 100%IOS2.000,000 •Ratesavalbblea,AJabamaStateBarMemben ,thelremployeesandellglblefamilymemben • Employer participation notn,quJ~ • Optional maternity beneftlS available • Plan provided by CNA (Conti nental Cuualty Compan y), rated A+by A. M . Best's. Check our Proven Record of Service, Stablllty and Rellab lllty ISi offers you full Local Servi ce with Prompt Claims Payments from our Atlanta Offi ce --Please---- send Information----1bout the -Plan-checked ----: ------( ) Comprehensive Mafor Medial ( ) ObabQltyIncome Name------( ) Bu,iness Clverhad Insurance ( ) U(e ln>urance ( ) Hc»pitalIndemnity (Guaranteed Issue) A.dchss------Insurance Specia lists, Inc .• II II City/ state/ ,;Ip ------2970 BmndywilleRood. S uite 135 I S I Atlonla, Georgia 30341 Telephone ______,Blrthdate ---- - (404)45&-8801 800-241-7753 M.lt) LL.M. LL.M. in in LL.M. TAXATION REAL PROPERTY in ESTATE PLANNING Corporate, Foreign and Program includes leasing, Estate concentrations construction, taxation, finan- Study with many of the available in a one-year cing, zoning and planning, in nation's authorit ies in this program, full or part- a one-year program, full or nationally-recognized one- time. part time. year program. Wri1e or Call: Write or Call: \Vrite or Call: Gra duate Program in Graduate Program in Rea l Prop ert y, Land Graduate Pr ogram in Taxa tion Development and Estate Plann ing Finan ce Law University of Miami University of Miami School of Law University of Miami School of Law P.O. Box 248087 School of Law P.O . Box 248087 Coral Gables, FL 33124 P.O. Box 248087 Coral Gables, FL 33124 Telephone (305) 284-3587 Coral Gables, FL 33 124 Telephone (305) 284-5567 Telephone (305) 284-3587 THEALAB.~l.\ LAWYER JanuaryI 993 f 15 Lawyers& DoctorsJoin ForeesAgainst Drug Abuse by EDWARDM . GEORGE t the Governor's Youth Conference on Drug Awareness held at lhe IJ MontgomeryCiYlc Center October 26-28, several hundred junior high and high school students were introduced to the concept or "Partners in Pre\'ention."a strategy involvingthe joint presentation by a lawyer/doctor team of information about the conse quences of drug and alcohol abuse. In particular. three groups of approximate· ly 200 students each heard discussions by MontgomeryCounty Juvenile Court Referee Robert Bailey and Dr. Sandra Morrisonabout the legal, medical and social effectsof substance abuse. Bailey spoke to the students from the point of viewof a judicialofficial and madethem aware of the types of legal difficulties which teenagers can suffer as result of Juvmik Court Rdem llailty, Dr. Morrison antiromm/1/oY dra,rpmon Shmwr the illegal usage of alcohol or other drugs. For example, Bailey explained that under Alabama's juvenile Justice tion or the joint presentations Morrison Lawyer/DoctorEducation statutes. persons under the age of 18 discussedsome of the myths about sub· Team Project "'ho are convictedof a juvenile offense stance abuse, as well as some of the can be subjected.at the discretionor the signs indicating that a teenager is hav The presentationsby Baileyand Mor· court. to one or more of a wide variety ing a problem wllh drugs or alcohol. rison were examples or a nationwide of punitive measures, ranging from Morrisonwarned the students not to be program called the Lawi,-er/DoctorEdu · unsupervised probation, to compulsory fooled by the widely-held notion that cation Project The formation of this communityservice, to incarcerationin a alcohol is a less dangerous substance project was first formallyannounced al Juvenilefacility until the offenderreach than illicit street drugs. According to the January 1990meeting of the Ameri· es the age of 21. Bailey made the stu· Morrison,nearly one -half of all automo· can Bar Association by the respective dcnls ,,ware that under certain bile accidents in which teenagers are presidentsof the ABAa nd the American ~ircumstanccsa juvenile drug offender killed involve the use of alcohol. and Medlc.-i]Association. The Lawyer/l)oclor over the age of 14 can be treated by the alcohol abuse has a direct relationship Project is a community-baseddrug and circuit court as an adult offender and to the likelihoodthat an adolescentwill alcohol abuse prevention program sentenced lo the same prison term as suffer death from another tragic event designed to reach young people in would an adult criminal convictedof a such as drowning.suic ide or fire. Morri grad~$three through 12. In partlcular, similaroffense. son informed the students lhat the the project targets seventh -graders Or. Morrison.a board-certifiedaddic majority of the teenagers who are because persons in that age group are tions specialist.serves as medicaldirec patients al lhe BradfordCenter are nol entering pubertyand experiencingmany tor at the Bradford Alcoholism and being treated for addiction to illicil physical and emotional changes, Includ Chemical Dependency Treatment Cen drugs, but alcoholism or alcohol abuse ing becomingless dependent upon par ter in Pelham,A labama.During her por· problems. ents and more dependent upon peers as 16 / January 1993 THE ALABAMAI.AWYER behavioralrole models. The partnershipproject can be adapt terns, parent groups, and social service The Lawyer/DoctorProject calls for ed to participatinglawyers ' and doctors' agencies. Respondents to an Alabama attorneysand physiciansto serve as the interests and time commitments; Bar Associations urvey on the various nucleus of a community-based drug The partnership's activities comple lawyer/doctor programs have cited a abuse prevention effort which can also ment the current prevention efforts or variety of benefits which are being include participation by law enforce the schoolsand organi.Ultionsin which derivedfrom the collaborationbetwun ment agencies, other medical profes they are volunteering; medicalsocie ties and bar associations. sionals, businesses. schools. socio] The lawyer/doctor partnel'!hipcan set Among the benents most frequently service agencies, and civic organiza an example for building olher partner- eKpressed by respondents to Lhe survey tions. are: increased dialogue betweenmedical Accordingto the ABA, the project's and legal groups; improved working goalsare: relationshipsbetween the medical and To disseminateto )'Oungpeople, and legal communities; improved public adults who work with them, authonta The lawyer/doctor image of doctors and lawyers;involve live and practical information about the teams are presented ment of medicaland legal associations physiological, psychological, social and as positive, professional in schools and community youth orga legal ctmsequenceso f alcoholand other nizations;development of networks with drug abuse; role modelswho can civicservice groups. parents groups and To strengthen young people's social talk in a straightforward other professionalgroups, such as phar competenciesand peer resistance skills macists, nurses and law enforcement In dealing with life'spleasures and pains; manner on how officers; and greater insight into lhe To affect policies in schools, In their young peoplecan reality of how today's young peopleare communities and state and local gov· affecteddaily by others' use of alcohol ernments,and the media; channeltheir energy into and other drugs. To raise public awarenessand under positive,productive standingof the medicaland legal impli Exemplarys tate and cations of alcoholand other drug use by activities. local projects young people; To promote positive alternative and Amongst.Me and local lawyer/doctor lifeoptions for youngpeople; drug prevention programs which have To train key figures, both adults and ships in the same schooland other orga been designated as exemplary by the young people,in a positionto influence nizationalsettings; American Bar Association are the others in their school and community; The preventionactivities t he partner Detroit Bar Associalion'sM ELLTeam and ship uses do not require extensive Project, the MarylandState BarA ssocia To collaborate with other institutions preparation; tion's Doctor/1.a,vyer/feacberPartner and partnerships to support existing The prevention activities involve ship Against Drugs, and the comprehensivepre\'ention programs . interaction between young people and Pennsylvania Bar Association Young the laW)oer/doctorteam; Lawyers·Division 's Lawyer/DoctorEdu Guiding assumptions The partnership gives clear no-use cation Team Partnership Against Drug messagess ubstantiated by valid, proven and Alcohol Abuse. Fro m its initial stages, the lawyer/doc social, psychological, legal and medical The MELL( Medical-Educalion-Legal tor prevention efforthas been guidedby reasons(or not using; and Law Enforcement) Team project the followingassumptions about estab The lawyer/doctor partnershipcan be involvedteams of medical,legal and law lishingand expandingthe project: '>"Cryeffective in educatingadults, staff, enforcement representatives meeting parents and community leaders,as well simultan eously on three successive as workinj!d irectlyw ith young people in weeks with over 45,000 studenl s in Edwa rd M. a varietyof settings. grades three through eight in all of Ge orge Detroit's 156public elementaryschools . EctNi!dM.George Prevention Project is nationwide After the initial meetings, team mem wnedM:U1'4tf9'111::)J bers made thcmsehoesa,•ailable as men ate degree at~ U!Wef'Slty, M mn 1e(1 At the present lime, there are 13state tors for the entire school year for lhe deg,ee al Troy S,410 and 26 community lawyer/physician schools they had visited. In addition to UM'(t(Sitya nd h,s law drug preventionprojects being co nduct meeting with students, five teams met degree Ill - Sc/lOOI of l aw.H& wu ed throughout the UnitedStates. While with parents at the five regionalschoo l ~lor most of the state and local projects are district offices where they discussed _. .,...... being carried out in school settings, drug preventionand distributed·<:row - liea'.:lhl>oponmool""" 1hen bf ,,,. ,.,._,. Ooponme'"ol P,,a-.,Y Educa:IOnHo 1ocon1, others are being conducted in commu ing Up Drug-Free: A Parents' Cuide to ly Joined1he Monlgomo,y firm cl JefferyA. Foot>ee& nity youth organi1.ations, such as Boys Prevention", a U.S.Department of Edu· Associates Clubs. Cirls Clubs,j uvenile justice sys- c.itionpub lication. THEALABAMA LAWYER January 1993/ 17 In Maryland,the state bar association has joined forces with the Medicaland Surgical ~'acuity of Maryland to send teams of la,")'trs and doctors into most of Maryland's213 middleschools where the team membersha"e spokento near ly 20.000 seventh graders on the reali ties of drug abuse and its related problems. The MSBApartnership pro ject was coordinated "'ilh the state's drug education and prevention initia tives and has Involved other civic groups, including a local Rotary Club, bar associationan d medicalsociety. In Pennsylvania. the state bar associa lion's Young Lawyers'Division's Medi· cological Committee and the Pennsylvania Medical Association's Young Physician's Section formed laW>-erldoctoreducation teams to speak to classes at Pennsylvania middle schools as well as lo other groups of above is designed to give practical. up how young people can channel their youths betweenthe ages of nine and 13. to-date, reliableand actual case history energyinto pcslti'lt,productive activities. The goal of the Pennsylvaniaproject is informationon the health dangers and to engage adolescent children in frank legal risks of dn 1g and alcohol abuse. and meaningful discussions about the The lawyer/doctorteams are presented Alabama'seffort dangers of drug and alcohol abuse. as positive,professional ro le models who Each or the three projects described cantlllk in a straightforward manner on The AlabamaState Bar's Committee on SubstanceAbuse in Society has taken on, as part of its plan of action for 1992- .------HEALTH CARE AUDITORS , INC . ------, 93, the goal of working "toward the implement.itlono( Lawyer/DoctorEdu 1-IC: ~ I cation Teamsconsistent with the guide lines of the 'Partnershipsin Prevention' Program of the American Bar Associa tion in cooperation with the American MFDICAl/DENfAL MAI.PRACilCEEXPERIS MedicalAssociation." The Committee currently is in\'estil!illinglhe possibility • GRATISMEDICAL 'IT.AM PREVIEW OF YOURCASE: Anlndtpcha'llluatlonm of developing and implementing a llSCffllllnand ddine ca~tion, liability211d br"1Chcs Instandards of CU"?. Lawyer/DoctorEducation Team Project with the assistanceof the MedicalAsso • GRATISCUNICAL CONFERENCES: Wt !11:ill can!fully lllkt )'OU step by Step, lhrough C:llCtolnsun: ch.i t 1ourcllnlcalkMwledge lsoommemuratc wlthourn Wesllall be brutally ciation of the State of Alabama. Physi· oo cians and allorneys who thi nk they amdld trC3le eYidenc~no meri~or If c:tllSlllon Is poor. might be interested in participating in • GRATISCLINICAL REJ'RESENTATIVFS TO YOUROfl'ICE: bJdeplhrl"iews. such a project should contact Commit • GRATIS,DETAILED , WRfITEN REPORTS:Should aaasebcurtworth)'ofplD'Slli~ tee ChairpersonPatricia E. Shaner, who ffil upon)'OU dJl'llClh'eS, ll'f !lull bepleased 10 (or11•anlI deltlledrepon is the staff attorney for the Alabama Stale Board of MedicalExaminers. Her • HCA!Basic FEEls$275. Youincurnocosisuntilm!Jchoo!tlopwsuuheexpcn 'swort mailing address is P.O. Box 946, Mont upforhll alllda11L So relttdexpens. no fortfgil expens. and no mun 11om ~ HCA!ISnoc gomery, Alabama3610Hl946, and her aslmi,lerd!JT'll la\ict uv.e h2t't,(IOlided litip!IOCl,uppon b O 18 /Janual')' 1993 THEALABAMA LAWYER ALABAMASTATE BAR SECTION MEMBERSHIPAPPLICATION To join one or more sec1ions, complete 1his form and auach separate checks payable 10 each seclion you wish 10 join. Name------~ Firm or Agency ------Office Address Office Loca1ion ------ Office Telephone Number------Section Annual Dues ___ Administra1lvelaw ...... $20 ___ Bankrup1cyand Commercial Law ...... $ 20 ___ Business Torts and Antitrusl Law ...... $ 15 _ __ Communicallons Law ...... $15 ___ Corporate Counsel ...... $30 ___ Corporalion, Bonkingand Business Law ...... $ 10 ___ Criminal l.iw ...... $ 10 _ __ Environmcn1allaw ...... $20 _ __ Family law ...... $ 30 ___ Heahh Law ...... $ IS __ _ Labor and Employmenl law ...... S 10 If practicing less 1han 5 years, $30 if practicing 5 or more years ___ lit igation...... $ 15 ___ Oil, Gas ;111dM lnera I l aw ...... $ I 5 ___ Real P1oper1y, Probate and Trus1 Law ...... $10 ___ Taxation...... $15 ___ Worker's Compensation law ...... $20 ___ Yoong lawyers' ...... 0 TOTAL Remember: Auach a separa1e check for each sec1ion. Maii to: Sections. Alabama State Bar, P.O. Box 67 1, Montgomery, Al 36 101 !J)l,,au, #n1>e6-li~a/i()-M ~,#no. DEMONSTRATIVE EVIDENCE DIVISION TRAFFIC RECONSTRUCTIONS SCALE MODELS - ANIMATED MOVIES Traffic Accident • Crime Scene • Structure • Fire • Aircraft If it existed it can be built to scale • If It moved it can be animated Over 15 years of traffic reconstruct ion exper ience . COURT QUALIFIED EXPERTS • POLICE & JAIL PROCEDURES • PRODUCT LIABILITY• TRAFFIC RECONSTRUCTIONS-AIRCRAFT -ARSON - TIRE • NO CHARG E FOR CASE REVIEW CALL 1 (800) 476 -1789 TH£ Al.ASAM.<\LA WYER January 1993/ 19 OPINIONSOF THE GENERALCOUNSEL By ROBERT W.NORRIS, general counsel QUESTION: obtains for a client upon the attorney's Can I take the case on a contingency procuring a divorce is generally held feebasis? void as againsl public policy.The major [IACTS: arguments in support of this position ANSWER: are thal these agreements give the Client's ex-husband is far behind in You may enter into a contingent fee attorney an interest in avoiding recon his court-ordered child support Client agreement to collect child support cl liation. R0-83-22, The Alabama wants me lo try and collecl lhe child where the client is unable to pay a rea lau,ger, Ju ly 1983, pg. 219. Having support but client has no moneyto pay sonable attorney fee on a non-contin· noted this the DisciplinaryCommission a reasonableallomey's fee. Client does gent basis. concludedthat: not ha\-t sufficientinformation to cause -once a final decree of divorce has a wage withholding order t.o be issued DISCUSSION: been e.ntered awarding alimony and/or (in Mobilethe client can go directly to Contingent fees have been con child support. the collection of arrear the clerk of the court, pay Sl5 and a demned and prohibited in divorcecases ages concerning the same would not wagewithholding order will be issued if because they are seen as pitting the discourage reconciliation, promote she knows the name and address of her lawyer's interests against those of the divorce and, therefore. violate the pub ex-husband's employer and he is more parties and of society. A fee contingent lic policy against the destruction of than 30 days in arrears). upon the securing of a divorcegives the marriages.F'urthermore, the mechanics lawyer an interest in discouraging or of reducing an order for child support thwarting reconciliationo f the parties. and/or alimony to judgment and pro· A fee contingent upon lhe amount of ceeding lo collect the same would not support or property setllement has the appear lo involve ·the human relation same effect. In addition, the lawyer ships' or 'the unique character of lhe would be encouraged Lomaximize the proceedings'referred to in Ethical Con amount of support or propertyawarded sideration2-20." Supra 219. Pe1t11. J111. y the client. perhaps sacrificing the In subsequent opinions, lhe Disci client's other interests. such as child plinary Commissionheld that a lawyer custody. (Florida Bar Professional could accept representation in a pater p an...Jke.ir Ethics Committee,Opinion 87-3. 10/87, nity action on a contingent fee basis fa.,,,.,,fy Dir«corof Plawnnu of the released 11/87). (R0-87-96) and could represent a wife Unts,euuyof Al.obomaSchool of Law. TheCode of ProfessionalResponsibil· on a contingent fee basis in an action il!I of the Alabama State Bar in effect seeking money damages for breach of Pr0\-·1dtsa.pert icorch3-er11kd co from 1974until the end of 1990did not an antenuptial contract (R0-88-103). la"'/in ns a11do thtr organitatiom contain a disciplinary rule prohibiting Rule I.S(d) of U1e AlabamaRu les of rtaufringcxl}Crlcnccd auomey.s . contingent fees in domestic relations Professional Conduct, which became effective January J. 1991, prohibits a Formore 1n/ ormllUonabou t matters. The Coded id contain, howev hcrcon/ldcnual ,.,.,ccs, pkasr contact er, an "Ethical Consideration" staling contingent fee in a domestic relations Prnn y Parke,, Vi« Pn:ridou, thal contingent fee arrangements in mailer lhat is contingent upon the amount or alimony,support or property NOJC{I A.uoda1t, Inc. domesticrelations cases are rarelyjusti SOOOThwrmoNI M oll. Swic, 218 fied becauseof the human relationships setLlemenl. This language is broader Colwmbio,S.C .. 2920 1 involved and the unique character of than the l.mguagecontained in EC 2-20 T,kp/,onr (BOJJ 799-3622 the proceedings.{EC 2-20. Codeof Pro- and contains no specificexception. The fessi011alResp0ruibililg, Alabama State rule reads as follows: NASE Bar). "(d) A lawyershall not enter into an agreement for.charge, or collect: & ASSOCIATES In prior opinions, the Disciplinary ..... INCOAPORATEO Commissionhas noted that the enforce (I) Any fee in a domestic relations J ment of contingent fee contracts in a matter, the payment or amount of llxoc.. -.s..,.,, domestic relations case poses primarily which is contingent upon the securing a question of law rather than one of of a divorce or upon the amount of ethics. A fee contract contingent upon alimony or support, or property settle the amount of alimony an attorney ment in lieu thereof.'' 20 I January 1993 THEALABAMA LAWYER The pivotal question here is whether similar rationale in a case involving attempts to avoidare not present in this this broadly restrictive language pro arrearages of unpaid child support The situation. The marriage has been termi hibits contingent fee agreements in Commissionstaled, "Althoughthe pro nated and the contingent fee would not child support cases under any circum ceeding originated as a domestic rela give the lawyeran interest in discourag stances. Clearly, ii would prohibit con tions matter. once the arrearages of ing or thwarting reconciliation of the tingent fees in the in itial divorce chi ld support were reduced to judg parties. Anolher evil, not present here, proceedingwhe_re the marriage is termi ment. the collection of the same was is that the lawyer may, because of the nated and propertyand suppOrtmatters analogous lo the colleclion of any other contingent fee, innuence the distribu are setlled. At lea.stone Jurisdiction has indebtedness." tion of property toward a distribution ruled that a contingent fee may be There are se... eral reasons for continu thal favors the lawyer and does disser charged for collecting a judgment for ing I his rationale in our interpretation vice to the client and the client's chil alimony entered in another state. The of new rule I. S(d). First, where lhe dren. theory of this decision is that Lhe proru client cannot afford Lo pay a reasonable l'or lhese reasons,it is our view thal ii bltion against charging conllngent fees attorney's fee, a strict application of Lhe would not be a violation of Rule l.S(d) In domestic relations mailers does not rule would deny the client the benefits to charge a contingent fee in a case apply because the court had already of legal representation. In this situation. involving collection of arrearages in ascertained the amount of alimony and a contingent fee arrangement would unpaid child support, subject lo the fol the representation is limited to collecl serve the desirable purpose of ensuring lowingconditions: ing an existing judgment. (Opinion 90- that the party wilh lesser means is able (l) that the fee is fair and reasonable; 98 I undated I, Committee on Legal lo secure competent counsel to protect (2) that the client is Indigent and no Ethics and Professionallle.sponsibility of that party's interest and, indirectly, Lhe alternative fee arrangement is practical; the Pennsylvania Bar Association). interest of society. (Opinion87-3. Flori and Underthe old rules, although, the Disci da Bar ProfessionalEthics Committee. (3) there are no meansavailable to the plinary Commission of the Alabama supra). client (similar lo those mentioned in State Bar in Ethics Opinion I 70 used Second, the evils that the rule >'l)urquestion) to collectthe arrearage.• Tel.£PHONE PACSl~ULE Cl0$) ;m.91 II (205) 316,2316 Traffic Accident Reconstruction ANNA LEE CIAlTIN A A noa:.-a::r• .unaa a, ALt&4.M,t au S/Ht:C1#1 ALBERT MEDINA AnnaLoe Gianina. P .C. The Pwa 801kl1n1Al Magnolia orr,.,.Park Soilc218 • 2112 ElcvemhAvwucSou 1h 81nni111ham,AIAbalNI 35205 P.O. eox2 40934 MONTGOMERY, AI.AIIAMA 3612A (205) 277,7929 ...... 11.fS[AICH• WU'WIJTL"'iC • ..--.:st\.A ,...._,,....W • ASSISTANCl..... L"I ,._~(,\St Pll,A .~--~IA TJOl'ri · (You read about us ,n the TRIAL Magazlno, published by Association of Trial Lawyors of America, in Washington, D.C.) Harry W.B achus, Jr. 1:J!ll]:(11-1~,il 3~ iii{I) George J . Renfro P ROFESSIONAL INVES TI GAT IONS CIVIL/INSURANCE / CRIMIN AL CASES ATT£NTIONATTORNEYS : Our firm providesinvesligalive services to the insuranoe,legal, and corporate sectors. We offe< a combined background of over 30 years of claims and invesligaliveexperienoe. Fee Structure, Insurance Documentation and Resumesavailab le. Servicesinc lude (but not limited to) the following: • Field Investigations • PersonalInjury • First & Third Party Liability • • Railroad Accidents (Including F.E.L.A.) • Traffic Accidents • Witness Location • • Surveillance • Workers Compensation • Serviceo f Process • • Property Damage • InsuranceClaim Investigations • Ona case-by~ baslsat $35.00per hour(plus expenses). you can not altordlo passup this servicelor non-productive Investigations . (WI: COVER THE ENTIRE SOUTHEAST.) 24--HOUR PHONE: P.O. BOX 180066 FAX Phon e: (205) 649-5984 MOBILE, ALA l3AMA 36618-0066 (205) 649-5886 THE ALABAMALAWYER January 1993/ 2 I Reports from IOLTA Grant Recipients ''THE LAW••• SHOULD BE ACCESSIBLE TO EVERY MAN AT ALL TIMES'' by TIMOTHYA. LEWIS This is the second in a series highlighting those who have benefited from the AlabamaLaw Foundation's IOLTApr ogram. efore the law stands a and most had inadequate facilities. Three ing for law libraries to vary with the doorkeeper. To this door years later, thanks to the AlabamaLaw amount of litigation. This fact, coupled keeper comes a man from Foundat ion's !OLTAgrant program, with rising legal materials costs. and the Ii the country and prays for there is hope for public law libraries in fact that law library fees in some coun admittance lo the law. But the door Alabama. ties have not increasedin years,caused a keeper says that he cannot grant admit In 1987, when the supre me court fiscal crisis in county law libraries. The tance al the moment. The man thinks it amended Disciplinary Rule 9-102. they result was Lhe cancellation of existing over and then asks if he will be allowed listed as one of the purposes of the subscriptions and the inability of law in later. 'It is possible, • answers (he IOI.TAprogram, "to help maintain pub Ii braries to purchase new materials or doorkeeper, 'but not al the momen t. ' lic Jaw libraries." In makingl aw libraries invest in new technology. In 1989, the These are di/Ticulties the man from the one of the beneficiaries of U1e grant pro advent of the lOLTAgrant program country has not expected lo meel; the gram, both the supreme court and the began to turn around lhis situation. That law, he thinks, should surely be accessi IOLTATask Force recognizedthe impor year. len county law libraries received ble al all limes and to everyone . . . • tance of legal information to U1e judges TOI.TAgrants totaling $50,977.50. This (Kafka, Franz, "Before the law ", in and attorneys in Alabama.They also rec money was used to purchase law books. Franz Kaflra, The Complete Stories, ognized that, by definition. public law much-needed computer equipment, tele Schocken Books, 1946.) libraries are to serve the legal informa facsimile machines, CD ROMwor ksta tion needs of the average Alabamian. tions, and essential items such as If there is a purpose to public law whether they be prose litigants, student photocopiersand libraryshelving. libraries, il is embodied in this story. or casual researcher. Thus, the reason Since that time, the Law Foundation Public law libraries are gatewaysto the for helping to fund public law libraries is has provided Z7 grants to county law law, thresho lds to be crossed before not narcissistic, but a true desire to libraries to help meel the needs of their entering Lhe halls or justice. Access to make the lawaccess ible to everyone. users. In MontgomeryCou nty, the law the law is a fundamental right of every Included in the term "pub lic law libraryused an IOI.TA grant to purchase citize n of every state of the United libraries" are the 67 county law libraries, video equipment and continuing legal States, and an essential element of this established under the authority of § 11. education videotapes to be used by local right is access to the sources of lhe law. 25-l for the "use and benefit of the attorneys and law students. The This access is accomplished through county and stale officials,cour t system Huntsville-Madison County LawLibrary, public law libraries. Yet, in Alabama in and the public." These law libraries are wilh the help of an IOLTA grant , 1989,these doors to justice were in dis princi pally funded by a library fee installed a WESTLAWterminal. as did repair, many literally off Lheir hinges. Of assessed as part of the cost of filing a the Colbert County Law Library.In the the 67 county law libraries, some could case in court. Becausethese fees are the four years the !OLTAprogram has been not afford basic legal research materials, only financial support for county law awarding grants, county Jaw libraries others had these materials but C-Ould not libraries, the budgets of county law have received $277.496.50, or approxi afford to supplementt hem, many lacked libraries are dependenton the number of mately 9 perce.ntof the all IOLTA funds basic equipment necessaryfor a library, cases filed in each county causing fund- awarded. 22 I January 1993 THE ALABAMALA WYER Also Included among public law hoped, future IOLTAgrants wiUhelp the librariesis the supreme court and state projectreach its ultimategoal. law libraryin Montgomery.In 1990.the The publiclaw librariesin Alabamaare state's oldest and largest public law fortunatet o ha,oea friend like the Alaba librarybegan Its automationproject, th e ma Law f'oundalion, a friend that is as goats of which were to create a comput committed as they areto makingthe law erizedc.1talog o( the law library's materi accessible to all who requestIL • als. automate its clerical Functions. and providea public access WESTLAW t er minal and a CD ROMworkstation. The Timothy A. Lewi• BetweenSeptember 26 ulUmate aim o( this project Is to net Tlf1'WJO'YfA, Li,w,aII a l888 ecwn::eem tie m;a ow and November30, 1992, work the supreme court library with He-,,_~ dovee n 1919 lrom other law librariesin the stalt . Without ... ~.,-- ...... aog,ce.. · the followingattorneys the help of IOLTAgrants totaling .,.,,, .... -- • - cl low ond ... .._ •• ol >braly SClll<>CAI"' 11181t,o,n ma un.v.. •l!y He made pledges to the $54,421.00O\'er a three-yearperiod, thi s serves es the Jlal.e lowlb'ltien and' d,rOCIOfof &ne projectwould never have begun and, it is sup,emooou• l.i> IIY AlabamaState Bar Building F'und. Their names BOOK REVIEW '" ''·""'l 11 ,., ... .. ,. ,,. will be included on a Alabama Tort Law Handbook wall in the portion of the by Michael L Robens and Gnwo,y S. Cusimano building listing all /M,rh.,e/ L Robensis a 1977 Jdmlllee 10 rhl, 11/abo>mJSlam B/Jr~nd prn:1iceswirh the contributors. Their pledges firm 0/ Floyd, Keener,CusmWIO & Robrm in Gadsden.Greso,y L. Cus,m•no wasadmiJ- 1t>dto the stare bar in 1968o,,d •lso pr.iaices wit/1Floyd, Keener, Cu. DENNJSM . WRIGHT PATRICK H, OAAVE.S, JR . I,:• 1972gt ,lduate-ofthe Un~i1V of Abb:am1Scho<>I of I..Jwond p,,cuce. w1th 1hefirm of ff{iicflq,, Atilll'll. KOie & Vv1\ltciIn d1t1Hunl5v1lle.offKe. THE ALAJ:IAMALAWYER January 1993 / 23 OPENING OF COURT CEREMONY REMARKS BY PARHAM WILLIAMS October5, 1992 Thefollowing memorial addresswas given by Parham Williams, Dean of the Cumberland School of Law, Samford University, at the Opening of Court Ceremony. ay it pleaselhese HonorableCourts. his famousessay, " The Professionof the Law." He wrote: We are gathered here today for two significant "I say to you (who would uphold our professionI that you purposes: must be heroesas wellas idealists." One is to participate,as citizensof this state and He then defined" hero" in the original Creek sense of the mnation, in the Openingof Court Ceremonyfor these important word: namely,one who is a protectoro f others. appellate courts. This day marks U1ebeginning of yet another What a wonderfullyapt descriptionof those whomwe honor term during which these courts will reviewand make ultimate today,f or in that sense they truly are heroes of our profession. decisionsin hundredsof legal mattersaffecting the livesof peo And, in this lime of great challenge to lawyers and the Jaw, ple like you and me. we need to rememberJustice Holmes'r inging challengeto be I readily confessthat I am honored-and a litUe awed-to heroes and take renewedpride in our profession and in our have the privilege of speakingon this occasion.For I have long selvesas lawyers. regarded the appellate courts of Alabamaas the most ellectiw Whala.re the attributes of a hero of our profession? state appellate courts in the UnitedStates. By the term "effec In the last two years, l have done a number of workshopsfor tive", l mean three things: bar associations and for law firms, workshops in which we Integrity. explore,as candidly as possible,the qualityof professionalism Competence. among lawyers. Asp art of the process, l ask the participantsto Productivity. list the most importantqualities which a lawyershou ld possess. The judges who comprise these courts epitomize those Their responsesare invariablyconsistent. Let 's see if you agree attributes. with them. The lawyersof our state- indeedthe peopleof Alabama-are Integrityis alwaysranked first. fortunate to haveju dges of this caliber on the benchesof our Then a sense offairness . highest courts. Then courage, ran, told U,atthis is likelythe last Openingof Court Ceremo imagination, ny to be held in this historic chamber.Next year , the ceremony compassion, and will take place in the splendid newJustice Buildingu nder con intellect. struction acrossthe street. Doyou agree with their ranking? Mr. Chief Justice, I have one request: When you become I suspect that most of us do. And that we also would agree ensconcedin that august temple of justice, please remember that these attributes are beautifullyappropr iate descriptionsof ordinaryfol k like me! thosewhom we memorializetoday. Browsingthrough the cards in a Hallmark store recently, I The qualityof integrityis undeniably the paramount feature found a verse that expressesmy requestperfectly: of the good lawyer. Integrity encompasses both honesty and Whenybu're in a jam, call on me. Whenyou're up a tree, Call mature ethical values,values which are the guiding principals on me. And when you win the lottery. Remember who was of a life livedu pon a higher moral plane than that upon which there, Whenyou were in a jam or up a tree! most of us gropeand struggle. The secolid purpose of our gathering today is to honor the A sense of fairnessimplies a willingnessto exalt that quality memoryof 62 of our colleaguesof the bench and bar who have of the lawwhich opens her doors to all persons, diedd uring the past year. weakor strong, Their livesreflect th e spectrumof our profession; rich or poor, Somewere partners in big city law firms; white or black, Somewere small-town practitioners; of whatsoever religion,creed or belief. Mostwere men; somewere women; The quality of courageis absolutely essentialin the makeup Somewere litigators;others had successfuloffice practices; of a lawyer. The courage to represent unpopular clients, to Some achievedwealth in tangibleform : espouse causes which, though legallyand morally right, may Others claimedwealth on ly in the formo f familyand friends. subject the advocate to ridicule and ostracism. even to eco But each one wasa hero of our profession. nomic retaliation or physicalviolence. T here are some among I use the term "hero"as Justice OliverWendell Holmes did in those we honor today who, as a lawyer or judge, confronted 24 I January 1993 THEALABAMA LAWYER such situationswith unwaveringcourage and fidelity. habilimentsof poetryand give to airy nothings a habitationand lmagmationis that qualitywhich distinguishesa reallygood a name. He may weave or words a rhetorical bouquet that lawyerfrom an ordinaryone. Youknow ,, It is rare that an appel· enchants the ear and mesmerizesthe mind. He may make the late court ever commentson the pen11issible range or a lawyer's learningof the agesthe servant of his tongue." Imagination in handling and arguing a case. But there is one Whew!Mr. Chief Justice, after wading through that l have case,decided nearly 60years ago in ouTsister stale of Mississip renewed respect for those who must hear the arguments of pi. The style of the case is itself memorable: Nelms & Blum v. lawyers! Fink, 159Miss. 372. 131So. 817 (1930). The quality or compassionderives from sources outside our The issue: WhetherP laintiffs lawyerhad strayedloo far from meagerstore of talents. It is the gift we receive,unmerited the facts when he told the jury in closing argument that, from loving families, throughout the trial, defensecounsel had been "slTikingat the from the teachingsor our religion, plaintiff,this wifeand mother, likea viperoussnake." from the movingof the HolySpirit within us. In deciding that the characterization or his opponent was Pinally,inlelkctual strength connotesa broad and conscious permissible,the supreme court had this to say about lhe range knowledgeof the lawco upledwith an openness,a willingnessto or a lawyer'simagination in framingan argument: listen,to hear new ideMand new theoriesof the law. "Counsel may draw upon literature, history,science, rel igion Thosewhom we honor todayas heroes of our professionpos· and philosophyfor material for his argument. He may navigate sused these qualities which mark the good lawyer. And. in all rivers of modem literature OTsail lhe seas of ancient learn addition lo intellect and integrity, courage and compMsion, ing; he may exploreall the shores of thought and experience;he fairmindednessand imagination.they displayeda llllJCol lami· may. if he will, take the wingsof the morning and Jlynot only lg, church and nation which marked them as superior human 10 the uttermost parts of the sea but to the outer reaches of beings, space in search or illustrations,similes and metaphors to adorn Ultimately, these courts, his a.rgument. He may reach the supreme heights of attainable the legalprofession , the state, el0quence,soar Into the empyreanpeaks where his shadowmay Indeed,all or us, fall on the highest mountain top, M the eagle in its loftiest are better, more useful.more complete, night. He may tlolhe the common occurrences of life in the becausethey livedamong us, and servedus well. • DECEASED ATTORNEYS, OCTOBER 7, 1991 - SEPTEMBER 30, 1992 Theodorehmlt Abucrombit -·-···-··--Virginia Buch. Virginia l\lillwn QwruonKcndoll -· Selma.Abboml Clannu 1\lilll&rnAllgood, Sr. -·--···· ..--Binnmghom. AJal»ma RlllphKennamer ····-······--·········--··-····-·...Mobile, Al.lblma IngramBusley ...... --, ...... -...... Binningham, Alabama Morris ClintonMcCtt ...... _ ...... - ..:l'usaloosa, Alabllma \l~lliamWhytt Bedford ...... , ...... Birmingham, A lab.1ma WIiiiamEar l McCrilf,11 ...... Ann islon, Alnb.,mA Jame.,L , Beech.Jr ...... Jo.1ptr, A labama FrAnkJ. Martin...... Gadsden, Alabama DavidRoss B THEALABAMA LAWYER January 1993/ 25 •ALABAMA STATE BAR• LAWYERSIN THE FAMILY Marthalellic Milin (1992), Anita Leste C«h ramt (197,J, lle11fll A Lesli~(1948) Jock Martin Bains. Jr. /1992) and E. Anm Stridrland.Jr. (1992)and and Arthur leslfe (198/ J (admillee, Jack Marti11Bains ( 1953)(admittee Edwin Ansel Strickland (1964) mother,flTOndfathor and uncle) andfalher) (admltteeand father) Sara N. Creed (1992) and Wayne Katt Baldwin Camble (1992). Apsl/ohOurms (1992) and John A M. Jones /1987) (odmillee and WilliamJordan Cambi• (1967) and 0.L'l!JIS (/967) (admilleeand father) bro/Jtor,/n./aw) 1/arru IVhitahaad Camble, Sr. (1923) (admilll'C,fa ther a11dgrand father) Sterling V. f'rlth (1992) and David E .. 4uerg, Ill (1992) and Court.magF . Williams (1992) and Roionne I I, F'rith(1987) (admillee l amas O. Spencer, Jr. (1965) James S. Williams (1991) /odmittee and wife) (odmillee and father-in-law) and husband/ 26 / January I 993 THE ALABAMALAWYER •ALABAMA STATE BAR• LAWYERSIN THE FAMILY Richard F. llorsle11 (1992) and Sterling DeRamU$(1992) and Les Philip Dale Segrest, Jr. (1992) and William F. Horslag(1964) (admit ley Smil h () 989) (admiltee and Judge l'hilip Dale Segrest. Sr. '"" and fotlK!r) fiutlCtr) (/967) (admillee and father) &mjomm II. AlbrillM (1992).71tom4s B. tllbritlon (1992), WilliomHarold AJbrit. Joseph S. ~I/lier (/992), Teresa Seth B. Thompson (1992) and to,1, IV (I 985),a,id Judfl(JMlliom Harold MIiier Norman (/986) and Keith 8. Jof11(!$f;. Thompson(1953) (admit AlbrillQ11,Ill (1960)(aHJ dmitlees.broth Norman (/9/JJ) (admiltce. cousins) /ee and fat"'1r) er mid fathw) Thomas Leo Douglas. Jr. ( 1992). Ralph 1¥. /lomsb11,Jr . (1992) and Maure en Ke/leg (1992), Jim Barbara Douglas Williams (1984) Ralph W. Nornsby, Sr . (1965) Thompson (1969), Patricia Kelley and Orlon r. 11'1/llam.f/1979) (odmill c>eand fa/Mr) (1987), and John Thompson(1969) (<1tlmillc' Tl IE Al./113/\MA1./IWYER January 1993/ 27 •ALABAMA STATE BAR• LAWYERSIN THE FAMILY M. Warren Butler (1992) and JutJ.qe Heidi Price Harp (1992) and Jim C. Clay Torbert, Ill (1992), Mary Charles R. Butler, Jr . (1966) mie C. Harp, Jr. (1991) (admi//ee Dixon Torbert Martino (1984) and (admillee and father) and husband) C.C. Torbert, Jr. (1954) (admillee, sister and father) Corey /Jennell McRae (19.92) and J. William Cole (J 992) cmd Judge A. Wade Leathers (1992) and M. Judge C. Bemie/1 McRae (1962) William H. Cole (1947) (admittee Lionel Leathers (1980) (admillee (admittee and father) and father) and brother) Sharon Anne Donaldson (1992) and Timothy WadeKnight (1992), Gin Patric io Anne Klinefelter (1992) Fronk IV.Donaldson ( 1954) (odmit ger Hill Knight (1992) and Tomm.v and James L. Klinefelter (1951) tee and father) Edward Hill (1967) (co-admillees, (odmittee and father) father-in-law/father) 28 I January 1993 THE ALABAMALAWYER •ALABAMA STATE BAR• V LAWYERSIN THE FAMILY Bil(q C. Bumey (/992) and Billy C George M. Zoghby ( 1992), Judge El ita lau Paschall (1992) and Bunll!y (1966)(a clmilleeand fa/her) Michael E. Zoghbu (1!157)1md Alex Char/as E. T H. /,on ier Brown. If (1992) and l Sara C. Semmes (/992) and JamesDarring/on Ham/ell (1992) Joml!SM . Proctor (1984). laura E. ThomasM. ~mmc.1 ( 1977) (admit· and Roso Ham/all Douis (1972) Proctor ( 1992) and John F. Proctor tee and husband) (odmill cc and aunt) (1957) (brother, odmi/lea and fa/her) THE AlABAMALAWVER JanuaJ)I1 993/ 29 •ALABAMA STATE BAR• FALL 1992 ADMITTEES StacyWade Adams Clint WadeBuller KristiAllen Dowdy James EdgarAkridge, Jr. MichaelWarren Butler AllisonLeigh Downing BenjaminHoward AlbriUon WIiiiamCrumbly B)'t'd .• U LeeAllen Dubois ThomasBynumAlbrition DavidBryson Byrne. Ill DianeLeigh Dunning AllisonLynn Alford Joseph WelchCade HowardWayne East Laurie Ayers Ames CynthiaMoore Calhoun AllysonLeigh Edwards DavidMichael Anderson DavidHall Carter RichardRando lph Edwards l{athleenClaud ia Anderson DavidMichael Carter LarryBi il Eliason WilliamBrantley Anderson RodneyReed Cate LeslieSturdivant Ennis RobertStephen Aultman Stephen DouglasChristie CherylDenise Eubanks DavidEdward A\lery, Ill Lee Brian Chunn Cina MarieFicht.er PaulAlan Avron Jay HarveyClark FrederickLane Finch.Jr. Jac.k MartinBains. Jr. Patrick Fred Clark John MichaelFincher Jason James Baird RichardScott Clark BarryJoseph fisher DavidStuart Baker EdwinBrobslon Cleverdon Cilbert LaroseFontenot Ernest WilliamBail James Paul Clinton PatriciaAnn Ford MaryElizabeth Barile Steven LeeCochrun Eric Douglas Franz WilliamBruce Barr,Jr. John WilliamCo le Sterling VemardFrith RonaldBruce Barze,Jr. LucindaPittman Coie f'loydDenard Gaines Bennett LeeBearden DarinWayne Collier KateBaldwin Camble MarySusan Beatty KellyAnn Collins KimberlyBeth Glass RandalDean Beck BenjaminOwings Collinson ElizabethMoore Golson RichardMichael Beckish, Jr . LisaAnn Copeland liclen Ann Goodner Emil Erich Bergdoll ConstanceElizabeth Cox John MarkGraham John MillonBergquist KimAllyson Craddock 1walaMichelle Grant KarenCeekie B aigi Sara Nell Creed Victor Benjamin Griffin L.iureenCatherine Binns Brent LindseyCrumpton Staci BrahnerGwinn Jody WadeBishop MichaelLawrence Cumpton ConnieJill Hall Cla.rence Blake PaigeMaddox Davis DavidBaker Hail DavidBerman Block ThomasAndrew Davis Harry PrestonHall , II HowardElliot Bogard Patricia Dunn Demos July LayneHamer Carmen ElenaBosch Terry LeeDempsey JamesDarrington Hamlett WilliamHollis Bostick, Ill Sterling Lanier Deramus DavidRonald Hanbury BenjaminMax Bowden Ann Stella Oeriis GregoryFloyd Harley MatthewWayne Bowden JoyceLouise Dietzen AnthonyCameron Harlow JeffreyLowell Bo iwing RalphLaurence Dill. IV Heidi Price Harp AimeeMarie Brandon KimberlyDobbs-Ramey James FrederickHarrington HoustonLanier Brown , U CourtneyLenore Dodge MarieHillery Head Hall BalkeBryant. Ill Sharon Anne Donaldson WilliamHarrison Hedrick BarbaraJeanne Bugg Joel Frank Oorroh Steven Kdlh Herndon StephenJames Bumgarner ThomasLee Douglas , Jr. RonaldAlford Herrington, Jr . Patricia PowellBurke DavidHamill Dowdy CharlesBernard Hess BIiiyCarpenter Burney, II KennethAlden Dowdy StevenAnthony Higg ins THEALABAMA LAWYER January 1993/ 31 •ALABAMA STATE BAR• FALL1992 ADMITTEES DeniseVictllria Hill ChristopherRalph Jones Christophert..1wrence Kottke Jerry DeanHill man Haskins WilliamsJones ThomasC.P. Landry LeighAnne Hodge MichaelLance Jones, Jr. Paul l(enncth Lavelle AnthonyM ichael Hoffman Susan DonovanJosey AnthonyNicholas Law rence, Ill AshleyMi ller Holbrook AlanParish Judge KennethJames Lay WilliamKnighl Holbrook Jill Tarte Karle AnthonyWade Leathers CynthiaAnne Holland John PatrickKa\'anagh, Jr. BellyBobbitt Lee LeeMaxwell Hollls MaureenCaye Kelley Riti Kayl..dl ChristopherRobert Hood William franklin Kelley.Jr. Thomas MichaelLewis JamesAndrew HOO\u JosephRobert Kemp WilliamDice Lineberry RalphyWayne Hornsby. Jr. KarolJane Kemp John Joseph Lloyd Richardl'reeman Horsley JamesRayburn Kennamer LarryStephen Logsdon Stewart LeonHoward AnitaJane Kimbrell EarleWalter Long, IV Brian Paul Howell Jonathan NoelKing N. Blanche WilkinsonLowe .ry l'ay Richardosn Howell RobertChristopher King David Joseph Maloney CharlesDennis Hughes l\yle LeeKinney Janna Lynn lfshln AmosLorenzo l (irkpatrick Milton ;\ndrewMant ler Donald Randolph James. Jr. RobertArthur Kirksey Tracyl ,,eannMa rlo1\/e Paul McGeeJames, J r. ValerieTheresa Kisor DavidPaul Martin ThomasAlan Jennings Jim CharlesKlepper RobertLester Martin, Ill AnthonyBoggs Johnson PatriciaAnne Klinefelter KevinFrancis Masterson LamarColeman Johnson Ginger Hill Knight DiannaKidd McCay MichaelHugh Johnson TimothyWade Knight RandallDavis McClanahan Paul WhitsonJohnson TimothyMartin Knopes JamesWilliam Mc:Claughn YolandaNeveu Johnson Ann MonicaKoszuth ThomasScott McGrath JoAnnMcClain McKee Jennifer BYtrsMcLeod DarrenTodd Mcleroy FALL1992 BAREXAM CareyBennett McRae MichelleAnne Meure r STATISTICSOF INTEREST Charles Ivor Middleton John llamilton Miglionico Numbersitting forex.am ...... 444 JeffreyScott Miller Numbercertified to AlabamaSupreme Court ...... 320 JosephStuart Miller Certificationrate ...... 72 percent MarthaLeslie Miller CERTrFICATIONPERCENTAGES: CarolynE\--elyn Moller RichardHunley Monk. m Uniwrsityof Alabama...... 92 percent Carl CradyMoore. lII CumberlandSchool o(l.aw ...... 77 percent GregoryKeith Morgan BirminghamSchool of Law...... 36 percent Sebrena RetonyaMoten JonesLaw Institute ...... 15 percent TammyDenise Mountain MilesCollege of Law...... 0 percent Mark DavidMullins CarrollJ ames Ogden 32 / January 1993 THEALABAMA LAWYER •ALABAMA STATE BAR• FALL 1992 ADMITTEES ApsilahCeer Owens LisaJohnson Sharp Ashley ElizabethWatkin s Jene WilliamOwens, Jr . John WillardSheffield James f'atherree Watkins Marva JO)'(A?Owens lnnise StanfordShostak WilliamHoust on Webster Alison Lyn Padgett AmyMeacham Shumate Thomas DavidWeston , Jr. James MacLeodParker, Jr. Christopher Scott Simmons Melissa Wynn Wetul Eliza Lee Paschall Nathan Wayne Simms, Jr. LisaMari e While Tina Denise Patrick KimberlyHallmark Sk ipper Tina Ma.rle Whitehead Samuel Donelson Payne DavidPhilip Slepian Paula Lynn Whitley PaulStephen Peatross Be\uly Ann Smith Samuel Ed\\'.lrd Wiggins, Ill Anita LouisePerkins John Carland Smith Courtney f'raley Williams Ciles Gilpin Perkins WIiiiamLamar S mith MaryKathl een Williams MichaelKirk Perry John Winston Smith T John Charles W11son John Frederick Pilati ReginaldVan Speegle Lisa Anne WIison Nathan Edwin Proter JeffreyTodd Steams Terri Elena Wilson Teresa Elaine Poust MarikayKolacz Stewart MelissaCa.rol Wimberley Thomas Marshall Powell Sarah Suzanne Sle\\'olrt WilliamAndrew Wing , 11 WilliamVirg il Powell. Jr. Anne RobinsonStr ickland Daniel Serenus Wolter Jeffery Travis Poynor EdwinAnsel Strickland, Jr. Barry Dean Woodham Barry Carlton Prine Todd Stephen Strohmeyer GeorgeMichael Zoghby Laura Ellison Proctor EdwardBest Strong Ed\\wd Ira Zwilling RandallDean Quarles MargaretElizabeth Stutts Lori Mallette Quigley Robert Paul Taylor Jill Olivia Radwin WIimer RayTharpe DECEMBER Matthew DoyleRamsey Cina LolaTh omas 1992 ADMITIEE S Charles Clayton Ratcliff MelissaBlanch Thomas Thomas Charles Rawlings VanessaTh omas Scott Patrick Arche.r James Robert Reeves, Jr. RayCharles Th omason Melvin Lamar Bailey Katherine Leigh Reynolds MaryHarvill Thompson Albert OwenDrey, ill Julie Kathleen Robberson Seth Balfour Thompson Charles Mac.NeillElmer Christian EdwardRoberson Elizabeth LelieTh omson Warren Albert f'lick John LloydRoberts Lane KelleyTolbert, J r. WilliamJackson Freeman Pamela Patrice Robinson Clement ClayTorbert, Ill Sabrie Cracelyn Craves Thomas Michael Rockwell Walquiria 'l'rujillo Corrie Patricia Haanschoten Carl James lloncaglione, Jr. Minnie Louise Tunstall Paula DaughertyKennon Richard Rockwell Rosenthal ArnoldWilliam Umbach, Ill LewisWa.rdlaw Lamar Neil M.B.R owe Terry Lee Underwood Billie BoydLine, Jr. LeeAubra Rudolph MeredithVan Houten WandaStubblefield McNeil AndrewJohn Rutens AmyCathe rine Vlbbart Janet Novtnak Bradley Paul Ryder Sherrie Marie Vice Gilmer Tucker Simmons Scott MeyersSa lter VivianDeason Vines Stanley Bernard Stallworth Philip King Seay RebeccaAnn Walker Emily NapierWalk er Philip Dale SegresLJr. RoderickWa lls ElizabethCamilla Wible SaraCook Semmes Lonnie AnlhoeyWashington Ann Lee Witherspoon • THE ALABAMALAWYER January 1993133 I OPPORTUNITIES The followingprog rams have been approvedby the Alabama Mandatory Continuing legal Education Commissionfor CLE credit. For informationregarding othe r availableapproved programs, co ntact Diane Weldon,administrative assistant for programs, al (205)269-1515, and a complete CLE calendar will be mailed to you. JANUARY 22 Friday 29 Friday Al..ABAMA EVlDENCl~: NURSING HOMELAW Wl.NNIN C ATTRIAL (video) Birmingham 14-16 Thursday - Saturday Birmingham,Civic Center CumberlandI nstitute for CLE Credits:6 .0 MIDWINTERCONFE RENCE AlabamaBar Institute for CLE Credits:6.0 (800)888-7454 Birmingham, WynfreyHotel (800)627-6514 AlabamaTrial LawyersAssociation WORKERSCOMPENSATION (205)262-4974 DAMAGES(video) Birmingham Birmingham.Civic Center AlabamaBar Institute (or CLE 20-22 Wednesday - Friday AlabamaBar Institute for CLE Credits:6.0 Credits:6.0 (800)627-6514 WINTERCONFERENCE (800) 627-6514 Birmingham, CrownSte rling Suites MOTIONPRACT ICE(video) AlabamaDistrict Attorneys Birmingham,C ivic Center FEBRUARY Association Alabama Bar Institute for CLE (205) 242-4191 Credits: 6.0 (800)627 -6514 19 Friday TORTS(video) ALABAMAAPPELl..A TE PRACTICE Birmingham, CivicCenter Birmingham AlabamaBar Institute for CLE AlabamaBar Institute for CLE ALABAMA Credits:6.0 Credits:6.0 (800) 627-6514 (800)627-6514 0000 ENT EVIDENCE(video) 25 Thur sd ay ASS BLY Mobile LEGALISSUES Of' PROBLEM AlabamaBar Institute for CLE COLLECTIONSIN ALABAMA SOF . ARE Credits:6.0 Birmingham (800) 627•6514 NationalBusiness In stitute, Inc. $200 each MOTIONPRACTICE (vi deo) Credits: 6.0 Mobile (715)835-7909 30 Day Money-Back AlabamaBar lnslllule for CLE 26 Friday Guarantee Credits:6.0 (800)627-6514 LECALISSUES 0 1' PROBLEM Produces drafls in 10-15 minutes COLLl!CTIONSIN ALABAi"IA usinga simple question-and-answer Huntsville format. Edit these documenlswith WORKERSCOMPE NSATION NationalBusiness I nstitute, ln.c. your word-proo:ssingsoftware. IN1\l..ABAMA Credits: 6.0 Birmingham (715) 835-7909 Wills,Trusts. Real Estate.Limited LormanBusiness Center, Inc. Panner.ihillS,Busillffl sales and 11 Credits:6.0 ADVANCEDFAMILY t.A\Y Birmingham Olhcrs. (715) 833-3940 AlabamaBar Institute for CLE For informationcaU BASICREAL ESTATE LAW Credits:6.0 (800) 221-2972eXl . 565 or 503. INALABAMA (800)627-65 14 • Mobile =;=::~ll'ff*f!!I National BusinessI nstitute, Inc. NYC 10013 Credits:6.0 (715) 835-7909 34 /Jan uary J993 THEALABAMA LAWYER YOUNGLAWYERS' SECTION By SIDNEY W.JACl(SON, lll , president Bar admissions ceremony bookletexplains the types of resp0nsibil· biggest ever ily in general, the standard or care for negligence, legal defenses lo liability Elizabeth Smithart expertly arranged and includes the VolunteerService Acl. and conducted the fall admissions cere· There are approximately 40 citations to mony in Montgomery Oclober 27, 1992. cases In the back of the book which are Over 300 admitlees took part in the cer· helpfulto both lawyersand laypersons. emony, which included addresses by The booklet is free and available Clarence Small. president of the stale through the Governor'sOffice on Volun bar, Reggie Hamner, executivedirector Leerism. The contact person for this of Lhebar, and members of the court of booklet is Jeff Johnson, Director, 11 civil appeals, court of criminal appeals South Union Street, Montgom ery, and the supreme court. Alabama 36130. One of the highlights of the ceremony was Morris Dees of the Southern Pover Proposed bylaws ty Law Center, who gave an impressive Sidney W. Jeclcson , Ill and powerfulspeech during lunch. Ind· for the YLS denlly, Dees is coming out with another As reported earlier, Robert Baugh of book in February,Lilied Hale on Trial. 1l Birmingham is heading a committee to is sure to be a bestseller. propose new bylaws and guidelines for Lawyers'Section, Laura Crum of Mont the functioning of the Young Lawyers' Young Lawyers ' Section gomery has produced an outstanding Section. The proposed draft is d ose lo publishes guide for booklet, entitled "A Cuide to Civil Lia linal form. The final draft will be printed volunteer s bility for AlabamaVolunteers.• The 16- in an upcoming issue of Alabama page booklet explainsin laymen'sterms Lowuermagazine. • Under the direction of Keith Norman, the potential liabilities of volunt eer immediate past president of Lhe Young organizations and their volunteers. The r------, Make Plans Now for Sandestin Seminar It is never loo early to reserw your condominium or usual, there will bt an elaborate cocktail party Saturday room for the annual Sandestin Seminar at Lhe Gulf. The nighl with hors d'oeuvres sponsored by PiUman, Hooks, seminar will be held May 14 and 15, 1993. Sandestin Dutton & Marsh. There will also be a golf and Lennis tour reports that the condominiums reserved for the Yl,S are nament and possiblya 5-K run. Makeyaur plans now! booking fast. This ywr's seminar promi~es lo be one of lhe flill out this form ond mail to the address below.Atlen · best ever. Frank Woodson has rounded up n stellar range of decs registering before March 1, 1993 will receive a sul> topics. Hal West has done an excellentjob of lining up the stantial break on the cost of the seminar. The reservations facilities,cocktail parties, band parties, beach fun, etc. As desk at Sandestin is 1·800-277-0802. Registration Form for Sandestin Seminar May14 -15, 1993 Name ______ Address------Cil}l______Stale ______Zip ______ Enclosecheck for SllO and mail Lo:Alabama Young La~-ers' Section, do Ban-yRagsd ale, Treasurer P.O. Box 55727, Birmingham, Alabama 35255 L------~ THEALABAMA LAWYER January 1993I 35 ABA'S LEGALTECHNOLOGY RESOU E CENTER By M. WAmE WHEELER document. Now is the day for scanners. '.::::: both in operationand in cost. Scan· n a recent trip to Chicago, ners and computer-generated lllinois I had the opportu· fax are going to be the new nity to visit the American foture for officeoperation. Bar Association on mNorth Lake Shore Drive. The ABA 2. CD ROM is adjacent to Northwestern Uni· During the day at the Center, I had versity Law and MedicalSchool the opportunity to look and examine the campus in Chicago.I was going new CD ROMstorage discs. These discs are to be in Chicago and I had called , . : ·... . . likean old 78 record you used to see in juke- the ABAto make an appointment at the ~ :':\:' .· boxes, but they are smaller, thicker and gold- ResourceCenter. F'or the members of the bar . ·.-,J~.~: plated. Each disc holds millions of bits of who do not know,lhe Center is a facilitydesigned to (;!~t '';·\:~ permanentstorage information.On the CD ROMs acquaint lawyers with various computer hardware and ' · that I examined,contained were the entire Florida software.The Center has a foll-time administratorto help with ~ Code on just two discs. You operated the system by computer problemsand demonstratethe recent developments accessingthe index and U1enusing a word search to in legal-related software. find everything else in the Code pertainingto that sub Carol Woodbury, the project coordinator.has been a practic ject. It is similar to WESTLAWand its search capacity.The sys ing attorney and now works full-time for the Center. The best tem operateson the current logic systemand is veryeffective. thing about U1eCenter is you do not have to be computer-Ori· The accesstime is lessthan a second. It is my understanding ented or even "user-friendly" to derive a substa.ntial benefit. that the State of Georgia has all of its Code Lawand all of its Carol can tell from talking with visitors the various levels of Reporters on CD ROM. The beauty or the system is that you expertise and is glad to arrange a time for them to examinethe can reduce the library space and the costs, plus you do not computer items she feels are appropriate. have to worry with bulky books and numerous volumes.The for the uninitiated in the computer field, the technology is down side is the problem of updates. The CD ROMis a '\vrite movingfast. Most of the hardware is outdated in two to three once read many" (WORM)system. Each year, you have to years, and the new softwareupgrades are comingout daily. update to gel the latest information. I assume that the book The Center is available to all attorneys by calling (312) 988- companiescould havesome typeof agreement to allow a trade· 5465. Also, if you are going to be in Chicago,you need to call in on old CD ROMor maybejust a CDROM update dise- Carol and make an appointment to spend the day looking at Perhaps the most appealingaspect of the technologyis that the various items. a new lawyercould get an immediatelibrary as close as his or The specificitems I was interested in looking at during my her computer.The possibilitiesare endlessfor practicaluse. visit were: 3. Miscellaneous software 1. Optical scanner and software While I was in the Center, I reviewedseveral differenttypes The technology is now here and available for less than of software. I lookedat time and billing, bankruptcyand real $3,000. The scanners are not quite perfect, but the software estate closing.The primary problemwith all of the softwareI ,)'stem creates a wigglyhorizontal line at everypo int the scan examinedwas that there were too many keystrokes,menus and ner is having trouble reading the document. Then the software miscellaneous items. Plus, the manuals were complex and allowsyou to zoom in on the area and correct the unreadable.None of the systemswere easyto use. 36 / January 1993 THEALABAMA LAWYER I wouldpoint out to membersol the bar that nowis the timt and are interested in the problemsfa cing la\\'}'trs. Also,if you to hire compuler•friendlyla'W}-ers. A friend of mine in Atlanti have a modemsystem , the ABAhas a bulletin board knownas told me that their firm only hires lawyers with computer ABWNET.You subscribe by callingl -800-242-6005.ext . ABA• knowledge. 1'he firm's operation consists of sections with one secretary and three lawyers with systems in their offices. Each M, Wayne Whoe le r lawyerdoes his or her own t}'J)lngand document production. The secretal')'does the dockets,appointments and final proof. M \~ \'~ a 11ilE6IO'nlllNIDlhtAllbarN.~8atandP'8CIC:ellft ing on draft documents. The economicsof the cos! of hiring help and new lawyersar e such that the new lawyershave to do -~ their own pleading, document.s,da ta basing and forms. It is a new world for lawyers. and we all need lo get on the CLE REMINDER bandwagon. If you do not usecompu ters, you are behind the times and non-productive. Only computers can handle the 1992 CLE Transcripts document orientation production practice that lawyersare were malledon or about December 1, 1992 called upon to produce in a rapid manner. No longer can or will our clients wait a day or two for document.s.The practice All CLE credits demands Immediate production. must have been eamedby Decembe r 31, 1992 If Youhave no experience.some computerexperience or are an expert. the trip to the ResourceCenter is just the thing for All CLE transcripts You,Call the ABATechnology Clearinghouse at (312) 988-5465 must be receivedby January 31, 1993 and make an appointment Theywill be glad to hear from you en 're hi• En Whmyar~ anehil,ly~.)<)ll·ro more prudutu,e. The Ix-.,way IO be sure your t.p ....,;,..,,,11....,>nl Q.AJW,wC..,,... M,nl,10.13.1993 ElP..., T... THE ALABAMALA WYER January 1993/ 37 EnforcingArbitration Agreements inAlabama: A DOUBLE STANDARD DILEMMA By STANLEYD . BYNUM also offers the luxury of informality The parties to such a dispute may prefer because arbitrators are not required to an arbitrator with knowledge of engi and J. DAVIDPUGH follow the rules of procedure and evi neering and construction rather than a dence strictly. Additionally, arbitration judge and jury to whom many of the Introduction affords the parties a private and confi technical subtleties and construction dential hearing and award unlike litiga industrystandards may be unfamiliar. In recent years, much has tion which involvesa public trial and an Becauseof the perceivedadvantages of been written about the use of order which becomesa public record. ln arbitration, parties to contracts may alternative methods of dis litigation, even when discoveryis placed somelimes include an arbitration clause lo pute resolution. One of the under seal pursuant lo a protectiveor der in their contracts mandating the arbitra oldest and best known forms of alterna to preserve confidentiality, it is not tion of disputes. Federal law provides tive dispute resolution is arbitration, a unprecedented to unseal all or part of that such agreements may be specifically procedure in which the parties to a dis the discoveryin subsequent litigation or enforcedand that any pending litigation pute choose an arbitrator, or arbitrators, at the request of some unrelated third of the same dispute must be stayed. 9 to conduct a hearing and render a deci party, such as a politicalspecial interest U.S.C. §§1-15, known as "The Federal sion, or award.on the merits. Depending group, that argues it has a right to the Arbitration Act" (referred to herein as on the agreement betweenthe parties lo information on public policy grounds. the "FAA" or the "Act"). The FM will the dispute, the arbitrator's award may The privacyof an arbitration avoids this apply, however, only if the contract at be binding on the partiesor may be advi problem. issue involves interstate commerce. 9 sory only. A binding arbitration awa.rd is The mosl valuable advantage of arbi U.S.C.§2. On the other hand, the Alaba enforceable in court. An advisoryor non tration, however, may be the fact that ma Codeprov ides that pre-dispute agree binding award, although not enforce the parties can attempt to choose an men ts to arbitrate may not be able , may nonethe less result in a arbitrator who has knowledge of the specificallyenforced. Ala. Code §8-1-41 settlement if one of the parties becomes general subject matter of the dispute or, (3) (1975).So, unless the FAAis found to convincedof the relative weaknessof his at least, familiarity with the business, apply, there will be no arbitration if one case, or it may have evidentiaryva lue in professionor industry in which the dis of the parties does not want to arbitrate. a subsequentpr oceeding. putants are engaged. For e.xample, arbi ln 1986, the AlabamaSupreme Court Arbitrationi s often preferredover liti tration has been very popular as a adopted the reasoning followedin most gation. Although it is not a cure-all for dispute resolution procedure in the con other jurisdictions providing that even the shortcomings of litigation, arbitra struction industry and in disputes the slightest nexus with interstate com tion does have certain advantages.While between securities brokers and their merce was sufficientto invoke the appli it is not alwaysfast. arbitration is gener clients. Often, when a dispute arises out cability of the FAA.E., parte Costa & ally concludedfast er than litigation, and of the performance of a construction Head (Atrium), Ud. , 486 So. 2d 1272 only very limited rights of appeal are contract, the resolution of the dispute (Ala. 1986).Costa & Head was viewed as available. Likewise, it is not always depends on an understandingof a tech a very positive developmentby arbitra cheap, but arbitration is generally less nical factual context requiring knowl tion proponents, and the opinion expensive than litigation. Arbitration edge of engineering and construction. brought Alabama law generally in line 38 / January 1993 THEALABAMA LAWYER with the majority of other jurisdictions. alter arising out of such contract . third party beneficiarystatus under the Subsequent to the Costa & Head deci .• shall be valid, irrevocable,and con.struction contract, the court held sion, however,a very troublesome dou enforceab le, save upon such that the bank and the associationmust ble standard appears to have developed groundsas exist at law or in equity arbitrate their claims against the con with regard LOenforcing arbitrat ion for the revocationor any contract. tractor. clauses. Individual plaintiffs or parties Another example of the utent to perceived to havt been al a bargaining Tht FAA. originally promulgated in which federalcourts will stretch to find disadvantageapparently have a "favored 1925. has been held to be reflective of an agreement to arbitrate or that issues son" status with the AlabamaSupre me the strong federal policy favoring lhe are arbitrable is McBro Planning and Court which has held the l'AAnot appli amicable resolution of dis))utes by arbi Deue/opmenlCo . v. TriangleElectrical cable in cases in which such parties tration. See, e.g., Shearson!American Conslr.Co., Inc. , 741 F'.2d342 (I Ith Cir. sought to avoid arbitration. At the same Express,Inc. v. McNaho11,482 U.S.220, 1984). In McBro, a contractor was lime, the Court has not O\oe_rruledCosta 107S. Ct 2332.96 L Ed. 2d 185 (19871: requiredto arbitrate its disputeswith the & Head. In fact. Costa& Headwas held Moses H. Cone Memorial Hospital u. construction manager even though lo contro l in other recent cases not MercuryCons/ruction Corp., 460 U.S. I, there was no written contract between involving a "rnvored son" seeking to 103 S. CL927, 74 L. Ed. 2d 765 (1983). the parties. The contractor had a con· avoid arbitration. This apparent dual In MosesCone . the Supreme Court stat tract with the owner which required standard is discussedin detail below. ed: arbitration. The construction manager had a similar contract with the owner. Agreements to Arbitrate Section 2 is a congressionaldecla· Since bolh contracts spoke in terms of ration of a liberal federal policy the performancerequired by each of the Parties may agree to submit favoring arbitration agreements, parties towardscomp letion of the same a dispute to arbitration a~er notwithstanding any slate substan constructionproject and since each con the dispute has arisen tive or procedural policies lo the tract containedan arbitration clause.the IDwhether or not there wasany contrary..•. The ArbitrationAct court required the parties to arbitrate pre-dispute agreement so to do. Such establishesthat, asa matter of fed. their disputes. post-disputeagreements to arbitrate can era I law. any doubts concerning be specifically enrorced, even under the scope of arbitrable issues Arbitratlon Clauses Under Alabama law. A problem may develop, should be resolvedin favorof arbi· AlabamaLaw however, when a dispute arises during trntion, whether the problem at The Alabama Constitution the performanceof a conlrad contain hand is the construction of lhe elCl)resslyrequires the Alaba ing an arbitration clause if one of the contract languageitself or an alle ma legislature to pass laws parties does not wish lo be bound by the gation of waiver, delay, or a like •necessary and proper" to contractualarbitratio n clause. The party defenselo arbitrability. ID desiring arbitration then has two provide for the arbitration of disputes options. He may proceedwith the arbi MosesCone, 460 U.S.al 24-25. between parties. Ala. Const. §84. More tration and obtain 1vhalis, in essence,a over, it has long been stated that it is the defaultjudgment, hoping that it ll'ill be The Act has been construed so broad· public policy of Alabamato encourage enforceablein court. See. e.g., the Amer ly, in fact, that results ll'hich. on their the amicable settlement of differences ican ArbitrationAssociation's Construe face, may seem unlikely have nonethe between parties by arbitration. Wellsu. Lion Industry Arbitration Rule 30 less been held appropriate given the Mobile County Board of Realtors, 387 providingfor a hearing and award in the broad policy under the FAAfavoring So. 2d 140, 144 {Ala. 1980) citing absenceof a party. Alternatively,he may arbitration. For example, in one casea Headleyu. AetnaInsurance Co., 202 Ala. seek lo ha~oe_the arbitntion agreement bank which financedthe constructionof 385, 80 So. 466 (1918). In contrast to specifically enforced by pelitioning a a condominium and the condominium Alabama'spolicy of encouragingarbitra court for an order compelling arbitra owners association, neither of which tion, however,is the countervailingpoli tion. were parties to the underlyingconstruc cy thal pre-dispute agreemen ts to tion contract bet~en the contractor and arbitrate are void as an attempt to oust The Fede.ml Arbitration Act lht developer,were held subject to the or defeat the jurisdiction of Alabama's arbitration clausein the construction courts to settle differencesbetween par Under Federal Law, written contract. Dunn Constr. Co., Inc. u. ties. Wells v. Mobile Countv Board of ogreements to arbitrate Sugar BeachCondominium Assoc., Inc., Realtors,387 So. 2d at 144. future disputes are specifi 760 F. Supp. 1479 (S.D.Ala. !991). The As a result of these countervailing ,0 claims asserted by the bank and the asso public policies in Alabama,arbitratio n cally enforceable under 9 U.S.C.§2, which states: ciation against the contractor \\'ere ll'as often an tlusive alternative dispute deemedto be intimatelydependent upon resolution procedure for Alabamapar A written provision in ... a con and founded upon the underlyint con· ties, at least prior to Costa & Head in tract evidencing a transaction struclion contract. In this context. and 1986. Courts ,~ould enforce arbitration involving commerce lo settle by given the relationship of the parties awardsalready made, but they would not arbitration a controversy there- combined with the banks' assertion of enforcepre-dispute arbitration clauses if THE ALABAMALAWYER January 1993/ 39 one of the parties to the contract decided it did not wish to instructions to reconsider the case in light of the Court's arbitrate. recent pronouncements in Southland Corp. v. Keating, 465 A significantchange occurred in l 984, however. The previ· U.S. 1, 79 L. Ed. 2d 1, 104 S. Ct. 852 (1984).York lntemation· ous year, the Alabama Supreme Court had issued a writ of al v. Alabama Oxygen Co., 465 U.S. 1016, 104 S. Ct 1260, 79 mandamus ordering a trial court to vacate its stay of an action L. Ed. 2d 668 (1984). In Southland, the Court held that state pending arbitration. Ex parte Alabama Oxygen Co:, 433 So. statutes which invalidate arbitration clauses covered by the 2d JJ58 (Ala.1983). In AlabamaOxygen, the Industrial Devel FAAwere violativeof the SupremacyClause and that the FAA opment Board of Bessemer(the "Board"),the owner of an air covered all contracts Involving interstate commerce. South· separation facility, and Alabama Oxygen Company, Inc. land v. Keating, supra. On remand, the Alabama Supreme ("Alabama Oxygen"),t he lessee-usero f the facility, had filed a Court vacated its earlier opinion, denied the petition for writ lawsuitagainst YorkInternational ("York"). the supplier of an of mandamus and adopted Justice Maddox' dissent from the allegedly defectiverefrigeration unit installed at the facility. court's earlier opinion. Ex parte Alabama Oxygen Company, York had signed a contract with Lotepro, the Board'sge neral Inc., 452 So. 2d 861 (Ala.1984) . contractor. The contract betweenLotepro and Yorkcontained Twoyears later. the AlabamaSupreme Court granted a writ an arbitration clause. The trial court found that the FAA of mandamus compellinga trial court to stay court proceed applied because Yorkwas from Pennsylvaniaand the refriger ings pending arbitration. Ex parte Costa & Head (Atrium), ation package which they supplied had been brought from lid ., 486 So. 2d 1272 (Ala.1986). In Ccsta & Head, the owner out-of-state thus supplying the necessary involvementwith of a construction project demanded arbitration of claims interstate commerce. The trial court further found that the against its general contractor. The genera l contractor Board was bound by the contract executed by its agent declinedto submit to arbitration, preferring instead to litigate Loteprowith Yorkand that AlabamaOxygen was bound by the the claims.The AlabamaSupreme Court found that the owner same contract by virtue of its third-party beneficiarystatus was a limited partnership partially composed of limited part under that contract. Accordingly,the trial court stayed the lit ners from other states. that the general contractor's principal igation pending arbitration between the parties. place of businesswas Tennessee, that some of the subcontrac The Board and Alabama Oxygen petitioned for a writ of tors either resided or were incorporated outside of Alabama, mandamus which was granted by the Alabama Supreme and that materials incorporated into the project were manu Court. On certiorari. the UnitedStates Supreme Court vacat factured in states other than Alabama. Based on these find ed the Alabama Supreme Court's opinion and remanded with ings, the AlabamaSupreme Court found that the transaction easily met the test then adopted by the court, that is, that the FAAapplied if the transaction had the "slightest nexus with interstate commerce." The Costa & Head decision was viewed quite favorablyby THE ALABAMA proponentsof arbitration. Mostof the other states had, by that LEGAL SECRETARY'S time. amended their arbitration statutes to conform substan HANDBOOK tially with the l'AAor with the UniformArbitration Act , both ___.._ ...... i...... - · - of which provide for the specific enforcement of arbitration clauses. Both acts implicitly acknowledgethat an arbitration AN INVALUABLELA \II OFFICETOOL FOR: clause in a written contract is part and parcel of the consensu • SECRETARIES al agreement between the parties which should be enforced • PARALEGALS just like paymentor performance provisionsin the same con • CLERICAL SUPPORT • ATIORNEYS tract. In 1989, however,the AlabamaSupre me Court confusedt he -NEWLYREV ISED- law with its Ex parte Warren decision in which the court CONTAINSLA TEST PROCEDURALINFORMATION ON ALABAMAPROCEDURES , lNCLUDINGMANY FORMS adopted a new standard for determining the applicability of the PAA.Ex parte Warren 548 So. 2d 157 (Ala. 1989), cert. INCLUDESCHAPTERS ON : denied, 493 U.S. 998, 110S. Ct. 554, 107 L. Ed. 2d 550 (1989). • LEGALPHRASEOLOGY , THE COURTS , WU.LSAND PROBATE Instead of the "slightest nexus with interstate commerce" test • CORPORATIONS, DOMESTICRELA TJONS • REAL PROPEiRTY • COMPlIT6RS/WORDPROCESS lNG TERMS • BANKRUPTCY adopted in Costa& Head, U1eWarren co urt held that the FAA , CONTRACTS, UNIFORMCOMMERCIALCODE, NOTARIALLAW would only apply, if, "at the time the parties entered into the • oo·sAND DON'TS • AND MUCHMORE ! contract and acceptedthe arbitration clause, they contemplat $SO Noo-Mcmbe,s ed substantial interstate activity." Ex parte Warren, 548 So. $40 StudcnlSin Legal TrainingCourse 2d at 160. No other jurisdiction in the country has adopted S3S AALS Mcmben S20 New Membetsor AALS( tf purchased the subjective"sta te of mind" test appliedin Warren.The only wilbin6 mooth.sof joinin_,g) authority cited by the AlabamaSu preme Court for the new test adopted in Warrenwas language from a concurring opin COi\'TAC'f OR ORDliR OJRECTI..YBY ~1AJLI.NOA CHECK(plus$1.50pos,111gc )TO: ion to a 1961 decision from the Court of Appealsfor the Sec Jtanne \Youd. PLS, ALS HundbookC halrmo.n ond Circuit. Metro Industrial Painting Corp. v. Terminal 381 Hickory Ro:Jd Gardcndal,, AL 35071 CcnstruclionCo. , 287 F.2d 382, 387 (2d Cir. 1961)(Lumbard, (205) 631-8998 ChiefJudge, concurring) cert. denied, 368 U.S.817. 82 S. Ct. 40 I January 1993 THEALABAMA LAWYER 31, 7 L.Ed.2d 24 (1961). Even if the test from the Metro Althoughthe AlabamaSupreme Court had stated that 1Var Industrial concurrence were ever followed(fo r which there is r(ll1 was confined to the "narrow, factual context" in that case, no evidence),t hen it has long been completely eroded by sub the Court, nonetheless, applied the Warren "subjectivein tent sequent United States Supreme Court decisionswhich recog of the parties" test. CRIargued that the transaction pertained nize the FAA was intended to apply as broadly as the 10 an emplO)>mentagreement which involvedintersta te sales constitutional dimensions of the commerce power. 'See, e.g., of telecommunicationsequipmen t and contiined a covenant Shearson/AmericanExpress v. MacMahan.supra; So11/h/and not to compete effectivein at least three slates. In rejecting u. /(eating, supra.; Moses Cone,supr a. CRr's argument, lhe Alabama Supreme Court held that there In Warren.the Alabama Supreme Court held that the FAA was no sufficientnexus with interstate commerceactivity dt· did not apply to an automob~esales contract because the new ing Warrenand H.L..Fuller Construction Co. 11. 11!dustrial motor vehicle im'Olvedwas alreadylocated in Alabamaand the Deue/opmenlBoo rd of the Totutl of lfincent, 590 So. 2d 218 sale was made by an Alabamadeal ership lo an Alabama resi (Ala.1991).l In PullerCons/ruction, no question was present dent who was buying it as a consumer and not for commercial ed as to whether interstate commerce was involved since the purposes.This fondingwas reached in spite of a stipulation in parties agreed that the FM applied. Nonetheless. the court the contract that the motor vehicle had "heretofore (been( stated it "felt compelledto point out its disfavorof predispute traveling in interstate commerce and has an impact upon arbitration agreements." and devoted the next several para interstate commerce." Although it is purely speculation, the graphs to m~ke its point. That the court felt compelled to probable reason for the court's holding in Warren was recog address the issue seems to be an Implicit recognition by the nized by Justice Maddox in his dissenting opinion, where he court of the weaknessof Warr1!11and a perceivedneed to sup stated: port Warrenwith additional authority before the issue was again addressedby the court. Alter Clem1!11/s,it appeared that Also, in Costa& Head, petitioners contend, the transac Alabama's new subjective test was rirml)' adopted and that tions were all of a commercial nature betweenb usiness Casio& Headwas no longer good law. men of equal bargainingstrength, whereas in this case, Lessthan six months later, however,the AlabamaS upreme petitioners argue, the purchasers are ordinary con Court issued its opinion in Maxus.Inc. o. Sdacca, 598 So. 2d sumers contractingwith a large corporation lo purchase a consumer good for familyuse. exparte Warren, 548 So. 2d at 162. Justice Maddoxbelieved the Court had improperly latched WE SAVE YOUR onto this distinc:tion.and he argued that Congress did not TIME ... intend for the application of the FM to be determined on a "" case-by,case analysisof the relative bargaining strength of the ~ !,, arnell Now legal rcscnrchass istance parties. Id. is nvoilable when you need h. After Warren,it appeared that Alabamahad abandoned the L E G A L without the nttessity of "slightest nexus" test and had instead adopted the IVa"en addinga full-ltmcassociate or Re sea rch ·subjective intent or the parties at the time of contracting" clerk. test to determine whether the contract Involved interstate commerce. Althoughthe Warrendecision is inconsistent with all other jurisdictionsthat have addressedthe issue, the Unit With access 10 the State L.:iwLibrary and Wcstlaw, we providefa~ and cffte1en1,crvi~ - For deadline work. we ed Stales Supreme Court denied certiorari and the decision stands. The opinion did, however, hint that it was to be nar can dehvcrinformation 10 you via commoncarrier. Federal Expre 1lfE ALABAMALAWYER January 1993 I 41 1376(Ala. 1992 ). The Maxus case did not subjective test. Instead, it applied the alleging trespassing and nuisance. The involve enforcement of an arbitration Costa& Headslig htest nexus test. plaintiff lessors were individuals who clause. Rather, it involved the enforce 1womonths after Maxus, the Alabama had entered into an agreementwith Taft ment of an arbitration award. The ques Supreme Court issued its opinion in Bx leasing their surface mining rights on tion on appeal to the Alabama Supreme parle Brice Building Co., Inc., 1992 WL property in WalkerCounty, Alabama, lo Court was whether the FM or the Alaba· 165068(A la. 1992).3 In Brice Building, Taft. The lease agreement contained an ma arbitration statutes applied in the the general contractor moved to compel arbitration clause. When the plaintiffs review of the arbitrator's award. arbitrat ion of disputes it had with the sued Taft for trespass and nuisance, Taft Certain disputes had arisen between owner, the ZamoraShrine Temple Asso moved to compel arbitration and to stay the Sciaccas and the ir contractor, ciation. When the trial court refused to the litigation pendingarbi tration. Maxus, regardingthe construction of the compel arbitration, the contractor An interstate comme rce nexus Sciacca's residence in Shelby County, sought a writ of mandamus. The writ appears to have been present in Tall Alabama. The construct ion contract was granted by the Alabama Supreme Coal.Certain of the parties to the lease included the standard form arbitration Court, primar ily on the authority of agreement 1veren ot Alabamaresiden ts. clause from the American institut e of Costa & Head, and on the finding that One of the parties to the lease agree Architect A201Genera l Conditions.2 The the contract provided for the use of ment signed the agreement in Illinois. court noted that the construction con building mater ials from out-of-s tate and Taft had mailed rental payments to tract involved the purchase and installa manufacturersand for the use of an out the out-<>f-state residents using the U.S. tion of materials and equipment of-state subcontractor. Accordingly, the mails. In its opinion, the court applied manufactured in different states and Costa & Head "slightest nexus with the "slightest nexus" test citing Maxus shipped by common carrier across stale interstate c-0mmerce'' test was satisfied, and Costa& Nead. In spite of the appar lines, and which were ordered and paid and the l'M applied.The ZamoraShrine ent interstate commerce activityhowev for using the U.S.ma ils, telephones and Temple argued that Warrenhad implic er, the court concludedth at the facts in interstate financial transaction settle itly overruled Costa & Head, and that Taft Coal did not provide the required ment proceduresand institutions. Addi the parties' subjectiveintent of substan nexus with interstate commerce. tionally, Maxus and the Sciaccas had tial interstate activity required by War The Taft Coal opinion is irreconcil established an escrow fund for the pay ren was not present in the case. The able with Maxus. The court was appar ment of disputed billing amounts. The Alabama Supreme Court rejected this ent ly stretching to find some way to escrow agent was a national banking argument and stated: avoid the application of the FAAand to associationwhich had also used the U.S. compensate for the seemingly disparate mails, telephonesand interstate financial The Warren case was expressly bargaining power between the plaintiffs trans action settlem ent procedures. addressed by this court with and Taft. The holding seems to be based Accordingly, the court found that the regards to its "narrow factual con on Alabama lawwhich states that in rem interstate commerce requirement was text." Implicitly, we have recog actions must be heard in the court with met and that the FAA applied. Interest nized that the Costa standard, jurisdiction over the subject property. ingly, however, the court did not cite rather than the Warren standard, Ala. Code §6-3·2 (1975) (providingthat Warren nor attempt to apply Warren'.s is the appropriate standard to uti actions of a legal nature for the recovery lize within the factual context of of land mus t be commenced in the this case. county where the land is located); Ala. ,---=---, Sta nley D, Code §35-11-220 (1975) (stating that Bynum Brice Building, 1992 WL 165068 (Ala. lien actions must be commenced in the S1an!ey 0 . Byn...n1 .sa ]992). Circuit Court where the property is situ g,aduateor Pnnceton ated). Lnthe case of Taft Caal, the court UniverS.1y and the Uni· versityof Alabama After the Maxus and Brice Building stated that: Schoolot Lew H£tis a opinions, it appeared that the Warren partnerwllh lhe firm ot and Clements decisions were aberra In the Instant case, the property Bradloy, Arant.Rose & \Mllte tional or were no longer going to be fol that is the subject of the lease lowed by the court which expressly agreement is located in Alabama, reaffirmed its 1986 Cos/a & Head deci and the surface mining described sion in the Brice Building opinion. But, in the lease agreement was to be J . David Pugh the Alabama Supreme Court was not performed in Alabama. finished yet. J OavlOPugh Is a gradual&o f the Unive,. On August 3, 1992, the Court issued Taft Coal,602 So. 2d at 397. sltyot Alabama ano1he its opinion in A. J. Taft Coal Co.,Inc. u. VanderbiltSchool o r Randolph,602 So. 2d 395 (Ala. 1992). In Thus, it seems that the Court covertly Law He Gan associate wll/11/lo llnn of B 42 / January 1993 THE AL.ABAMALAWYER The Double Standard Dilemma Clements. and Taft Coal trilogy is an securities broker and one of its clients. individualplaintiff or plaintiffsseeking Ex parte McEllen, So. 2d, 27 ABR62, Now that some of the dust to avoid arbitrating against a corpora 1992 WL 282043 (Ala., Oct. 16, 1992). has temporarily settled, the tion. The arbitration clauses in each of The trial court was directed lo follow law in Alabama regarding the three caseswere more or less boiler the "slightest nexus" test cited in Costa IJ enforcement of arbitration plate provisionsin agreementstha t were & Headand BriesBuildmg. Id al 68. clauses is less clear than a-er. In War probablydrafted by the corporate party The recenl McE/len opinion bodes ren, the defendantcar dealershipwas a (an automobilesales invoicein Warren. well for the future but may not go far Delawarecorporation and the automo an employmentagreement in Clements enough. Even though certiorari was bile that was sold had been designedand and a mineral lease in Tan Coal).Tha t a denied in Warren.it is likelythat, given manufacturedout-of-state and shipped particular clause may not have been the right facts. the U.S.Supreme Court to Alabamafrom out-of-stale. The court expresslynegotiated is no reason not to would accept certiorari review of an not only found lhal the Co.sta& Head enforce the clause. however. See, e.g., Alabamacase which is decidedcontrary slightest nexus test was not met, but Carnival Cruise lines, Inc. v. Shute, Lothe policy o{ the FM. Although an also adopted a new test, borrowedfrom U.S.. 111 S.Ct. 1522, 113 L.Ed.2d 622 argument can be made that Warrenwas a 28-year -old 2nd Circuit Court of (1991) (enforcing a boilerplate forum purelya localaction nol involving Inter Appealsconcurrence, which dependson selectionclause). There was no evidence state commerce, such an argument is lhe partie$'subjective intent at the lime in any o/ the three casesthat any of lhe not justifiable on the facts of Clements of contracting. In Clements, the subject agreementshad been negotiated and Toll Coal,both of which are incon employmentagreement al issue cowred al arm's length; therefore, it seems the sistent with the policy of lhe FM. Fur the employee's obligations in multiple Alabama Supreme Court apparently thermore. the Warren subjective test states and contained a covenant not to reached its decision on a presumption encourages the party seeking to avoid competewhich was effectivein multiple that the parties did not enjoy equal bar arbitration to fabricate. after lhe fact, states . Nonetheless. it was held that gaining strength. These factors should his alleged" state of mind" at the time of interstate commerce was not involved not be used as a basis for avoiding lhe contracting to avoid the enforcementof citing Warrenas authority. In Taft Coal, applicabilityof the PM, an unambiguous, written arbitration the court did not apply the subjective The likelihood that an arbitration clause. Ralher than continuing to be intent of the parties test adopted in clause will be enforcedcan be increased burdened with the subjective. case-by Wal'7'en,yet found that even the Co.sto& with careful contract drafting. however. case analysis of whether the parties con Head slightest nexus test was not met First the contract should includea writ templatedinterstate activityat the lime even though the dispute was between ten acknowledgementthat the parties of contracting. the Alabama Supreme out-of-state parties and concerned a contemplated interstate activity at the Court should overrule Warren, mineral rights lease which had been lime of contracting and that the agree· Clements and Tait Coal and reaffirm executed by al least one of the parties ment involves inters tate commerce. Costa& Headand its progeny. out-of-slate. Rather than a simple assertion to that During the same period of lime that effect,however, one might also attempt the Warren, Clements, and Tan Coal to describehow interstate commerce is ENDNOTES trilogy of cases were decided,the court affectedby the tran.~ction. For anyone also decidedMaxus and Brice Building. conlemplating entering into an agree· I. Th< t THEALABAMA u\WVER January 1993I 43 DISCIPLINARY REPORT Reinstatement calls and letters. The client was also the client sent Powella certified letter, concerned that Carter was on inactive 1\/hichwas delivered to Powell's office • Walter Lee Bragan, Jr. was rein status with the AlabamaState Bar when December 3, 1990. Powell failed or stated to the practice o( law by order o( the Alabama divorce decree was refused to resp0nd to this letter. There· the Supreme Court o( Alabama,effective obtained. after, the client made inquiryof the cir· September28, 1992. (Pet.#92 -04) Carter was specificallyrequested to cuit clerk's office and discovered that address the allegation that he did not the stay was lifted in March 1990, and Surrender of license hold a current Alabamalicense to prac his case had been set for trial on May4, • In an order dated October20, 1992, tice law. He did not respond to this 1990, but that his case was dismissed the Supreme Court or Alabama can request. The records or the Alabama becauseof Powell's failure to appear in celledand annulled the license and priv State Bar indicate that Carter did not court on the day of trial. Thereafter, the ilege o( Montgomery attorney Je sse purchase a license to practice law in client attempted again to communicate Eldridge Holt to practice law in all or Alabama from October 11 1990 until with Powellconcerning the outcome of the courts in the state o( Alabama, effec December1 , 1991. his case, but Powell again failed or tive November10, 1992. The order of Formal charges were filed April 27, refused to return the client's telephone the court was based upon Holt's having 1992.Carter filedno defensivepleadings calls . The Disciplinary Commission voluntar ily relinquished and surren and a default judgment was entered. determined that as discipline for the dered his licenseto practice law. After a hearing to impose discipline, abovedes cribed conduct, Powellshou ld with Carter present pro se, the Disci receivea public reprimandwith general plinary Board suspended Carter for a publication. (ASBNo. 91 -778) Suspensions periodor three years.(ASB No . 91-595). • Mobileattorney Bryan C. Dube' • EffectiveSeptember 30, 1992, Birm was publicly reprimanded on October ingham attorney Willlam Kent Eason 30, 1992 for violating Rule 1.1 of the has been suspendedfrom the practice of Public Reprimands Rules of Professional Conduct which law for noncompliancewith the Manda· • l'airhope attorney James Conrad provides that a lawyer shall provide tory Continuing Legal EducalionRules. Powell waspublicly reprimanded Octo competent representation to a client; (CLENo. 92-57) ber 30, 1992 for violatingRule 1.3of the Rule 1.5 which prohibits an attorney • By order of the Supreme Court o( Rules of Professional Conduct which from charging/collecting an excessive Alabama,dated October20, 1992, Annis providesthat a lawyershall not willfully fee; and Rule 5.4 which provides that a ton attorney Hugh Merrill Vardaman neglecta legal matter entrusted to him, lawyer shall not share legal fees with a was susirendedfrom the practice of law and Rule l.4(a) which requires that an non-lawyer. in the State or Alabama for a period of attorney keep his client reasonably In 1989,Duhe' negotiateda settlement 90 days, said suspension to become informed about the status of pending on behalf of his clients, Mr. and Mrs. effective October 30, 1992. Vardaman legal matters and promptlycomply with Clarence Vaughn, under the terms of piedguilty in federalcourt to the misde the client's requestfor information. which the Vaughnswere to receivea 20- meanor offenseof failing to pay his fed In January 1988,Powell was emp loyed year annuity. Giventhe advancedage of eral income taxes. Vardaman's to represent a client in a fraud and the Vaughns at the time or the settle suspensionwas based upon his convic breach of contract claim. Aftersuit was ment, a 20-yearannuity was not in their tion, pursuant to Rule 22(al(2),Alaban1a filed, the defendantsfiled for bankruptcy best interest. Furthermore,Duhe ' calcu Rules of DisciplinaryProcedure. !Rule and the proceeding was stayed. There lated his attorney's fees based on the 22(a)(2)Pet. #92-061 after, the client made repeatedattempts total amount to be paid out over the 20- • Columbus,Georgia lawyer C harles to conta ct Powell but he failed or year period, rather than reducing the Clifford Carter, also admitted in refused to return the client's telephone settlement to its present value for pur Alabama,was suspendedfrom the prac calls or to communicatewith the client posesof calculating his attorney's feesas tice of law for a period of three years concerning the status of the case. In is required under Alabamalaw. In addi effective October 28, 1992. A former August 1990, Powellrepresented Lohis tion, the investigation indicated that client of Carter's complained that he client that the case would likely come Duhe' shared a portion or his feeswith a had been advised by other lawyersthat up in October1990. From October1990 non-lawyer.The Disciplinary Commis the divorcedecree obtained for him by through l'ebruary l991 , the client sion determined that as disciplinefor the Carter contained a number of errors and repeatedlyattempted to contact Powell above-describedcond uct, Duhe' should may not be valid and that Carter would by telephone, but Powellagain refused receive a public reprimandwithout gen not respond to his numerous telephone to return the calls. In November1990, eral publication. (ASBNo. 90-644) • 44 / January 1993 THEALABAMA LAWYER LEGISLATIVEWRAP-UP By BOBMcCURLEY, director, the Alabama Law Jnslitu/e January 1993 Court-drawn plan. Ms. Marilyn Terry Renovated State Capitol serves as Reapportionment Director, he 1993 Regular Session of and Mr. David Boydo f the law firm or After seven years and twenty-eight the Alabama Legislature Balch & Bingham servesas Counsel to million dollars of renovation, the State will begin Tue5day, Febru the Commillu. Capital reopened December 12, 1992 II ary 2. 1993 . ~' acing the and is nowopen to the public. The Gov Legislatureis a possible financial crisis Law Institute Legislation ernor's office, Lt. Governor's Office, which may result from the equity fund· Treasurer, Auditor and Secretary of Ing lawsuit brought by the Alabama The Alabama Law Institute will pre Slntc movedback into the Capital. Coalition for Equality in which the sent to the Legislature a revision of the The Alabama House and Senate wiII school boards contend the funding of Alabama Probate Procedure Jaw which continue to meet in the State House, education is unconstitutional to afford and members will continue to have their students an equal education to their offices in the Slate Mouse. The those in the more amuent counties. Attorney General's Officewill also con Funding of prisons, ment..11health and tinue lo be in the State House. Medicaidalso will be beforethe Legisla For further information conti1clBob ture. The court system got a temporary Mccurley, AlabamaLaw Institute, P.O. reprieve from its funding shortage last Box 1425. Tuscaloosa, Alabama35486 , year with the passageof Act No. 92-227, or3 call (205) 48-7411. • which provided for a one-year supple mental court costs to expire September 30. 1993. Robert L. n:.ring the interim period between -Cu'1e1 , Jr . Regular Sessions of the Legislature Mc:Q,,1oy, Jr there have been eleven Joint Senate -i&t,oct.<""°'alL ... Mablm9 U w 11'1111k1Se House Committeesstudying subjects as ..... Un_al election reform and the environment Alabama tie,_ that should report early in the session. h,s ...-gflOUOIO MCf law oooroo,irom Ula Covemor Hunt has also appointed two Unlvortlty, special committees: the Tax Reform will set forth automatic duties and pow Committee, chaired by Birmingham ers of personal representat ives much lawyerT om Carruthers, and the Ethics Like that now found for conservators. ll Reform Committee, chaired by will reduce the amount of bond Demopolis attorney RickManley . required from double the value of the NOTICE The Committee most likely Lobe in estate to single value or the estate. the forefront is the permanent legisla· The AlabamaLaw Institute expects to live reapportionment committee complete in Jhe early part of 1993 a JUDICIALAWARD chaired by Speaker Pro Tem and Law revision or the Business Corporation Of MERITNO MINATIONS Institute President James M. Campbell Act and a new Limited LiabilityCompa DUE MAY 15 from Anniston. This Committee was Alabama ny Act (see lawyer, Novem The Oonrdor Commissioners of the presented numerous reapportionment ber, 1992). These should be introduced Alabama State Bar will re<:clvenoml · plans. during the Legislativesession. notions for the state bor' s ludiciol Already pending in the Montgomery The uniform CommercialCode Arti Award ol Metilthrough May 'Is. Circuit Court is a lawsuit concerning cle 2A, "Leases", and Article4A. "Funds Nominations should be prepared legislative reapportionment . The last Transfers" both passed the Legislature and mailed 10 ReginaldT . Hamner, legislativereapportionment plan passed in the Second Special Session in 1992 S«re tary, Board of Bar Commission by the Legislature ten years ago was and both became effective January l , er,, AlabamaState Bar, P.O. Bot 6n, thrown out by the Federal Courts after 1993. Copies of these Acts are included Montgomery, Al 36 101 . the 1982 Legislature had already been in an interim supplement published by For imponantdeiall s see 1heboxed elected. Consequently a new election Alabama's Code publishing company. anicle on page9. was held the following year under a The Michie Company. Tl IE ALABAMALA\W~;R January 1993/ 45 Beware of Tax Liens and the IRS Right of Redemption Mter Foreclosure By GILBERTF. DUKES,m ~ The "Amount to be or his successor in interest or is rented at less than its reasonable THE FACTS: '{;J Paid" by the IRS: mital value):and The following facts will serve as Company B's dilemma begins with the basis for this article: § 7425(d)(2)of the InternalRevenue Code (iv) With respect to a redemption madeafter December 31, 1976, the l. Company A borrows $200,000 and the regulationsthe reunder.3 Section 301.7425..ol(b)(J)states as follows: amount, if any, of a paymentmade from Bank I and mortgages its by the purchaser or his successor land and building (the "Proper in interestafter the foreclosuresale ty") to Bank I. Bank 1 records "In general. In any C.!$1! in which to a holder or a senior lien ... ." the mortgage. a district director exercises the (emphasisadded) 2. Company A fails to pay federal right lo redeem real propert y laxes and the I RS records a under section 7425(d),the amount The starting point in calculating the Notice of F'ederall'ax Lien on to be paid is the sum of the follow "amount to be paid" b)•the IRSseems to the Property. ing amounts- be the $200,000 Bank J paid at foreclo 3. CompanyA fails to pay Bank 1 (i)The actual amount poid for the sure rather than the S210,000 purchase which then purchases the Prop property ... being redeemed(which. price paidby CompanyB to Bank 1. The erty at non-judicial foreclosure in the case of a purchaser who is regulations are somewhat unclear. Sec for S200.000. the holder of the lien being fore tion 30l.7425-4(b)( l)(i) begins with ·1tJheactual amount paidfor the proper 4. CompanyB purchasesthe Prop· closed,shall includethe amount of the obligationsecured by such lien ty... being redeemed." This amount Is erty from Bank I for its fair definedas follows: "The actual amount market value of $210.000. to the extent legally satisfied by reasonor the sale); paid for property by a purchaser, other 5. The Property ls In poor condi than the holder or the lien being fore• tion and CompanyB spends an (H)/nurest on the amou,!l poid ... closed,is the amount paid by him at the additional $250.000 repairing at the sale by the purchaserof the sale."4 and improvingthe Property. real propertycomputed at the rate CompanyB might argue that ·a pur 6. Within one year of Bank l's of 6 percent per annum for the chaser" refers to the party to whom the foreclosure, IRS notifiesCom pa periodfrom the date of the sale... to IRS is asserting its right to redeem,nnd ny B that it intends to redeem the dateo f redemption: a~s uch. the tarting point in calculating the Property from Company B lhe ''amount to be paid" is the $210.000 by paying $200,000plus 6 per (ill ) The amount, if any, equal to It paid to Bank I rather than the cent interest and incidental the excesso f (A)the u,,mses ner $200,000paid by Bank I at foreclosure. maintenance expenses,l ess the essa rilg incurred to maintain In supp0rt of Company B's argument, reasonable rental value of the such prop erty ... by the purchaser §301.7425-4(c)(3)(discussing the Lille Property during Company B's (and his successor in interest. if receivedby the IRSupon a redemption) ownership.2 Accordingto IRS. any) over (B) the income from impliesthat "the purchaser"is "the per such property realizedby the pur the purchaseprice will be slight son. from whom the district director ly over$200 ,000. chaser (and his successorin inter redeemedthe property.· est, if any) plus a reasonablerental The fRSwould disagree with Company 7. Company B is facing a loss of value of such property (to the B's argument given its interest in pro approximately$260,0001 extent the property is used by or tecting the delinquent taxpayer's (Com with the consent of the purchaser pany A's) equity in the property and 46 /January 1993 THEAIJ\BAMA LAWYER insuring that a full price is paid al fore is so woefullyinadequate as to be uncon to a third party and lacked standing to closure. As support for the IRS's posi scionable.•13 appeal)and has indicatedlhat it will seek tion, in several places the regulations Although lhe outcome of Black seems a re\'ersalor Blackwhen the Limecomes. Include lhe phrase "and his succe$50rin fair, the holding was contrary lo the interest, if any."5 The Treasury Depart §7425 regulations. l'irsl, as previously Improvements: ment contemplatedsubsequent transfers discussed. lhe regulations indicate that An issue which Is more such as the sale to Company B, yet nei the "amount to be paid" by the IRS is significant than the "amount ther this phrase nor something similar based on the foreclosure sales price or paid" involvesCompany B 's expensesor thereto appears in §§30l.742S.4(b)(l)(i) $33,916.26, not the $122,255.00Loeda $250.000in repairingand improvingthe or 30t.7425-4(b)(2)defining the amount Black" legitimatelypaid."14 Second. the Property. Although §301.7425-4(b)(l) to be paid. With this in mind, it s«ms District Court concluded that lhe appli requires the IRS to pay for "expenses that "the actual amount paid" refers to cable federalstatutes -Wereclearly writ necessarily incurred Lo maintain" the lhe amount paid by a purdia$er al fore ten with lhe intent that they be property,22 the IRS is generally not closure (the amount paid by Bank I) construed in conjunction with state law, required to pay for "improvements." rather than an amount paid for the prop and not as creating a scheme separate Section 30J.7425-4(b)(3) states as fol erty by such purchaser's successor in and apart from that or the state."15 The lows: interest (Company B). District Court stated that "[cJlearly, the 1'he "amount paid" issue is presented Code and regulations contemplate that in Black v. U.S.,6which involveda quiet state law will be referencedat every tum "Expenses necessarily incurred in title proceedingin connection with fore when the United States attempts lo connectio n with the property closed property upon which the fRS had redeem property upon which it has a tax include, for example, rental agent recorded a tax lien. There, the January lien.•16 To the contrary, §301.7425- commissions. repair and mainte 31. 1986 foreclosure sale price was 4(a)(2)(ii) preempt$Alabama law by Stal· nance expen$eS. utilities expenses. $33.916.26.7 The holder or the second ing lhal ·section 7425 and !his section legal fees incurred after the fore and third mortgage redeemed the prop shall govern the amount lO be paid and closure sale and prior to the erty by paying $33,916.26 plus 1096 the procedurelO be followed."The regu redemption in defending the title interest.8 The property was later sold to lations tum lo slate law in two limited acquired through the foreclosure Locda Black for $122,225.05.9 On Jan circumstances: To determin e (i)the sale, and a proportionate amount uary 29, 1987, two days before the expi period within which the IRS may or casualty insurance premiums ration or the one year period or redeem, 17and (ii)the "amount paid" al and ad valorem taxes. Improve redemption. the IRS offered to redeem foreclosure by a forec:Josinglien holder ments made to the propertv are the property from Black for $33,916.26 who may or may not have rights to a not considered as an expen se plus 696lnterest.1 0 "Black, who had paid deficiencyjudgment under local law.IS unless /he amounts incurred for $122,225.05 for the property, refused Last. the District Court staled lhat · the such improvements are m.'CeSSOri· this offer.•11 The IRS immediately amount tendered lby the IRS] must lg incurred to maintain /he prop recordeda ·certificate or Redemplionof include amounts due on other junior erty.'' (emphasis added) Real Propertyby United Stales• and quit mortgages owned by the purchaser , claimed the property to a third party whether or not owned at the time or As there is very little (i( any) case Jaw pu,·chaser for $66,000.12 The District foreclosure."19 Seclion 30l.7425-4(b)(I) on point. the IRS argues that If expenses Court held in favoror Blackstating that makes no mention or these amounts are of the type which should be capital "the government's tender to plaintiff In when setting forth the ·amount to be ized for income tax purposesrather than this case or $36,064.60,for property for paid" by the IRS upon a redemption.21> currently deducted, then such expenses which she legitimatelypaid S122,225.00 , Instead, the regulations indicate that by are not "necessarily incurred to main exercising its right of redemption, the tain" Lhe property and should not be IRSste_ps into the shoesor lhe buyer and included in the redemption purchase is subject only to encu mbrances that price. Generally,expenses for ordinary GIIIHtrt F. Dukes, Il l exist and are senior to the foreclosed and necessaryrepairs to property used in interest al the lime or the sale.21 a trade or business or held for the pro G1!borl F Oukn, Ill ,oc.,;,,,dnil B$. In Thus, although Black indicates thal duction or income may be deducted in the IRS is subject to Alabama rules or "'""'""'inl>ond bua, lhe year paid or incurred ,23 whereas "*" 1dnwli1ua11on redemption, and although the case may expenses for permanent improvements """'WalllnQI.On &Lff Ll'1Mrl,l'f and M J 0 come in handy in the event or litigation that either add to the value of the prop """' ,,.1-mw"'V .. with the IRS owr this issue, the District erly or appreciablyprolong its ure must A.abomtSc>oolOI Court's holding seems contrary to be capitali~ 24 Law. '*'*•he W'lll 8 §7425 and II$ regulations and will nol As such, e\'en if most or CompanyB 's Coil j;fr-hlsLL M w,Ta,auonlfomNew""'"**"'O Complete the form below ONLYif there are any changes to your listing in the current AlabamaBar Direclory.Due to changes in the statute governingelecti on of bar commissioners, we now are required to use members' officeaddresses, unless none is availableor a member is prohibitedfrom receivingstate bar mail at the office.Additionally , the AlabamaBar Directory is compiledfrom our mailing list and it is important to use businessaddresses for that reason. NOTE:If we do not knowo f a change in address, we cannot make the necessarychanges on our records, so pleasenotify us when your addresschanges. Please mail form to: AliceJ o Hendrix,P.O . Box 671, Montgomery, Alabama 36101. ----- MemberIdentification ( SocialS ecurity) Number Chooseone: D Mr. 0 Mrs. D Hon. D Miss O Ms. D Other _ _ _ _ Full Name ______ BusinessPhone Number______Race------Sex______Birthdate______ Yearof Admission------Firm ______ Office MailingAddress ______City______State __ _ ZIP Code______County_ _ _ Office Street Address (if differentfrom mailing address)______ City______State __ ZIP Code------County__ _ L------~ THEALABAMA LAWYER January 1993 / 49 ABOUTMEMBERS, AMONG FIRMS ABOUT MEMBERS office. The new office is located at 116 Phone (703)823-98 00. Mabry Street, Selma, Alabama. Phone Stone, Granade, Crosby & Black (205)872-5545. bum announces that L. Brian Chunn Cordon C. Amull'ong , m, formerly Robert H. Ford announces that he has becomean associateof the firm. The with Clark, Deen & Copeland, announc has withdrawn from Emond & Vinesand mailing address is P.O. Drawer 1509. es the opening or his office al 205 opened his office al Two Melroplex BayMinette, Alabama 36507 . CongressStreet, Mobile, Alabama 36603. Drive, Suite lll , Birmingham,Alabama Samford, Denson, Horsley, Pettey The mailing address is P.O. Box 1464, 35209. Phone (205) 868-0104. lie also & Martin announces lhal Corinne Mobile. 36633. Phone (205)434-6428. has an office at 3322 S. Memorial Park Tatnm Hurst has become an associate. John Thomas Hom announces the way, Suite 228, Huntsville, Alabama Officesare locatedat 709 AvenueA, Ope openi ng of his office at 2800 Zelda 35801. lika, Alabama. The mailing address is Road,Suite 100-9, Montgmery, Alabama Mary P. WIiiiamson, formerly with P.O. Box 2345, Opelika. 36803. Phone 36106.Phone (205)271 -4789. Gorham & Waldrep, announces the (205)745 -3504. Cha.rles C. Elliott , formerly secre opening of her office at 1919 Morris Dillard & Fuguson announces that tary and counsel for Southern Life and Avenue,Su ite 1300. Birmingham,Alaba · Richard F. Horsley and Vane ss a Health Insurance Company,announces ma 35203. Thomas have becomeassociates. Offices the opening of his office at 3918 Mont William Houston Oliver became a are located al The MasseyBu ilding, 290 clair Road, Suite 120, Birmingham, member of the Madrid, Spain bar in 21st Street, N., Suite 600, Birmingham, Alabama 35213. The mailing address is September. Me was admitted to the Alabama35203 . Phone (205)251-2823. P.O. Box 530893, Birmingham, 35223. Alabama State Bar in 1984. Rushton , Stalcel .y, Johnston & Phone (205) 879-1075. Garrett announces that Amy C. Vlb Richard W. Vickers announces the bart, Pan.I M. James , Jr. and N. relocation of his officeto 100 W. College AMONG FIRMS Wayne Simms, Jr. have become asso Street. Columbiana, Alabama35051. Th e ciates. The mailing address is P.O. Box mailing address is P.0. Box 649. Phone 270. Montgomery, Alabama 36101-0270. (205)669-1771. Caban.iss, Johnston , Gardner , Phone (205)834-8480 . Randall K. Bozeman announces the Dumas & O'Neal announces the firm Jackson & Taylor announces that opening of his office al 10 Lafayette has moved its offices lo Park Place Steven A. Martino has become a mem Street, Hayneville. Alabama36040. The Tower, Suite 700, 2001 Park Place, ber of the firm, and the firm name will mailing address is P.O. Box 337, North, Birmingham, Alabama 35203. be Jackson , Taylor & Martino . Hayneville, 36040. Phone (205) 548- Phone (205)252-8800. Officesa re located al SouthTrust Bank 2244. Meac ham, Flowers & Earley Building, 61 St. Joseph Street, Suite J. Michael Broom announces the announces the relocationof its officeslo 1500.Mobile, A labama 36602. The mail opening of his office at 1314 Sixth 5704 BeallwoodConnector, Columbus, ing address is P.O. Box 894, Mobile, Avenue, Decatur, Alabama 35601. The Georgia31904 . Phone (706)576-4064. 36601. Phone (205)433-3131. mailing address is P.O. Box 1626, John T, Mooresmlth announces Brannan & Guy announces that Decatur,35602 . Phone (205)355-9151. that Howard E. Bogard has become Andy D. Birchfield, Jr. and Hugh R. Leonard F. Milcul announces the associated with the firm, with offices E\lans, ID, formerly city attorney for opening of his office al 200 E. Second localed al 100 BrookwoodPlace, Suite the City of Montgomery, have become Street, Bay Minette, Alabama.The mail 202, Birm ingham, Alabama 35209. associatedw ilh the firm. Newo ffices are ing address is P.O. Box296, BayMinette, Phone (205)871-3437. located al 602 S. Mull Street, Mont 36507.Phone (205) 937-0046. Craddick & Belser announces that gomery, Alabama. Phone (205) 264- J. Mlchael Conaway announces the Anne Elizabeth McGowin and Roy 8118. relocation of h.is officeto Hall, Sherrer & WyUe Granger, U have becomeassoci · Balch & Bingham announces that Smith, 316 N. Oates Street, Dothan, ated with the firm. Officesare locatedal Clarie R. Hammond has become a Alabama.Phone (205)792-6752 . 138 Adams Avenue, Montgomery, Alaba member of the firm in the Birmingham Kendall W. Maddox announces the ma 36104.Phone (205)262-2000. office.T he firm also announces that R. opening of his officeat 250 FarleyBuild The American Mental Health Broce Ba.n:e, Jr., Da\lid B. Bloek, ing, 1929 Third Avenue, N., Birming Counselors Association announces Matthew W. Bowden, Courtney L. ham, Alabama 35203. Phone (205) the appointment of Mary Lyn Pike as Dodge, Larry S. Logsdon, Randall 251-4775. executive director, effective July l, 1992. D. McClanahan , C. Grady Moore, M.ickl Beth Stlller or Montgomery Offices are localed al 5999 Stevenson m, Lisa J. Sharp, and Terri E. Wil announces the opening of a second Avenue, Alexandr ia, Virginia 22304. son have joined the Birmingham office 50 I January 1993 THE ALABAMALAWVER as associates, and that Cynthia A. Doi· Ally1on L. Edwa rds has become an m Co1llWDerFlnanclal Co,pora land has joined the Montgomery office associate. Offices are located at 2711 Uon announces that Robert H. Car as an associate. The firm ha.~lwo Birm University Boulevard, Suite 700, penter, Jr. has joined the company as ingham offices, and one each in Tusca loosa, Alabama 35401. Phone general counsel and senior vice-presi Huntsville and Montgomery, Alabama, (205) 349-4300. dent in the company's Plymouth, Min and Washington, O.C. N~ar, Denaburg announces that nesota office. Carpente r is a 1975 Crac e & Shaw announces the relo Th omas lit. Lewla has joined as an admittee to the AlabamaState Bar. cat ion of the firm to 108 Jefferson associate. Offices are located at 2125 Cn>wnovu, Coleman & Standrid4e Street, N., Huntsville, Alabama 35801. Morris Avenue, Birmingham, Alabama announces that Ralph L. Dill has Phone (205) 534-0491. 35203. Phone(205)8400. become associated with the. firm, with Dominick, Fletcher , Yellding , Paxton, Crowe, Br•IIII, Smith & offices locat ed at 2600 7th Stree t, Wood & Lloyd announces that Scott Keyaer announces that Thomas 8, Tuscaloosa, Alabama. The mailingad dress Patrick Archer and Judy P. Hamer Miller has joined as an associate.M iller is P.O. Box25 07. Tuscaloosa.3 5403. have become associated with the firm, is a 1988adm ittee to the Alabama State Spain , CIUon, Croom s, Blan & with offices at 2121 mghland Avenue, Bar. Officesare located at 1615 Forum Nettle.s or Birmingham announces that Birmingham, Alabama 35205. Phone Place , Suite 500, West Palm Beach. Rennie S. Moody , forme rly with (205) 939-0033. ~·torida33406. Lanier, Ford, Shaver & Payne in Adams & Reese announces that A. David A. Carfinkel has become a Huntsville, Earl B . Moody, formerly Evan a Crow e has Joined the firm. partner in the firm or Datz , Jacobaon with Wilson & King in Jasper, Kate 8. Crowe is a 1989 admittee to the Alaba & Lembcke , and the firm name has Camble and AnlhoD.YC. Harlow have ma State Bar. The firm has offices in been changed to Datz , Jacobson , joined the firm as associates. New Orlea ns and Baton Rouge, Lembcke & Carflnkel. Offices are Emond & Vlnea of Birm ingham Louisiana, Mobile. Alabama and Wash located at 2902 Independent Square. announcesthat Thomu Marshall p....,. ington. 0.C. Jacksonville, Florida 32202. Phone (904) ell hasjoined the firm as an associate. Emil y Sherwlnter and J. CJenn 355-5467. Garfinkel is a 1983 admittee Flo yd , Keener, Culima no & 111.cElroy, formerlywith the firm or Sher to the AlabamaState Bar. Roberta an nounces that David A. winter & Tokars, announce the forma Holly J. Hamner and Herachel T. Kimberley has become a partner in the lion of She.winter & McElroy, with Hamner , Jr. announce the formation Orm, Offices are located al 816 Chestnut of/ices located at 1801 Peachtree Street, or Hamner & Hamner . Offices are Streel, Gadsden, Alabllma35901. Phone Suite 250, Atlanta,Georgia 30309. Phone located at 2310 15th Street Tuscaloosa, (205) 547-6328. (404) 355-9800.M c£1royi s a 1988admit · Alabama35401. Phone (205) 3494000. Bradley , Arant , Roae & White tee to the AlabamaState Bar. Lanl[e, Simp so n , Robinson & announces that Jo hn W, H11.rt1rove1 E, py, Nettlu & Scogin announces Somerville announces that William A. John E. Hagefltrallon, Jr., Stuart that Laurie A. Amea has Joined the 111-.lor, Jr. , formerly senior vice-presi• J, Prent& and Paul S. Ware have firm as an associate. Officesa re located dcnl and general counsel for Southern joi ned the firm in th e 13irm ingham al 2728 8th Street, Tuscaloosa, Alabama. Natural Cas Company and senior vice· office.a nd C. Rick Hall has joined lhe Phone (205) 758-5591. president, regulatory and government firm in the Huntsville office.O ffices are Hollla & Leathors announces that affairs, SONAT Gas Group, is now of located at 1400 Park Place Tower. 2001 A. Wade Lealhus has becomea mem counselto the firm in the Birmingham Park Place, Birmingham, Alabama ber or the firm. Offices are located at 28 office. 35203, and 200 Clinlon Avenue, W• . £. Firsl Avenue, N.. Winfield,A labama. David P. Shephord announces that Suite 900, Huntsville, 35801. Phone The mailing address is P.O. Box 708. Joseph R. Ke.mp has Joined lhe firm as (205) 521-8000 Birmingham, and (205) Winfield 35594. Phone (205) 487-4301. an associate. Offices are located at 913 517-5100Hunt sville. Offices are also located at 109 Firsl Plantation Boulevard, l'nirhope, Alaba Rosen , Cook, Slodl[e, Davi,, Car· Street, S.E., Fayette, Alabama 35555. ma 36532. Phone (205) 9284400. roll & Jonu or Tuscaloosaa nnounces Phone (205) 932-8866. Rives & Peterson announces taht that Joseph W. Cade has joined the Hand , Arendall , Beclaole, Crean s Loulae Dietzen and Dcnlae V. HilJ firm as an associate. & Johnston announces lhat J . have become associates . Offices are Bert P. Taylor announces that M.lc.hael Finchor and Sarah H. Stew• localed at 1700 Financial Center, 505 N. PelT)I C. Shuttleaworth, Jr. , formerly art have joined as associates. Officesar e 20th Street, Birm ingham, Alabama wilh Balch & Bingham, has become localed al 3000 £'irsl Nalional Bank J5203. Phone (205) 328-814I. 3ssociated the firm. O(ficesar e located Building, Mobile, 1\lab.ima. The mailing Burr & Forman annou nces that at 710 Title Building, 300 N. 21st Street, address is P.O. Box1 23. Mobile, 36601. PattJ Powell Burke , Darin Collier , Birmingham, Alabama35203. Bradley, Arant , Roae & White and Alllaon Downing, Eric Fraiu, Pete Sauer & Littleton announces that Vul can Materlah Compan y Crammas , Crea[ Harley, J eff Miller, Jamu D. Ham.Jell and Christopher announce that Donald M. James has and Yolanda Nevett-Jobn1on have R. Hood have become associated with becomesenior vice-president and gener joined the Birmingham officeas associ the firm, and the nrm has relocated to al counsel or Vulcan. ates, and Alan Judge has joined the One Commerce Streel, Suite 700, Mont Tanner & Coln an nounces that 11un tsville office as an associate. gomery, Alabama 36104. • TtlE ALABAMALAWVER January 1993/ 51 Helping OthersHelps Us All: LawStudents Donate Services by MELINDAM . WATERS ften overlooked in surveys chairman Ann Shook, Scottsboro, wiU1 payers.David Weilbaecher, Dallas, Texas, concerning pro bono work keeping the students informed about serves this year as director of lhe VITA performedby lhe legal pro public interest opportunities. project for Cumberland. mfession are the many hours Annually the CSBAsponsors several For lhe past several years, lhe CSBA donated by law students to persons less pro bono projectsto assist citizens in the has sponsored an Explorer Post of the fortunate lhan themselves. [t is an inspi Birmingham Area. The Volunteer Boy Scouts of America.The purpose of ration for lhe practicing bar in Alabama Income Tax Assistance Program (VlTA) this post is to providecareer and hobby to learn of the pro bono servicesprovid offers free income tax assistance to low information to young persons between ed by these young adults - lhey have few income elderly, handicapped, or non the age.sof 14 and 20. In order to meet free hours during their law school English speaking individuals.The Inter its goals, lhe CSBAworks on lhis project career, but still find innovative, useful nal Revenue Service, primary sponsor both with the Birn1inghamArea Council waysto engagein public interest work. for the project, providestraining free of of Boy Scouts of America and the Birm· charge for lhe law students and all nec ingham office of Balch & Bingham law Cum.berlandSc hool of Law essary forms. Actual sites for the VlTA firm. clinics are arranged by and advertised The post meets at CumberlandSchool The Student Bar Associationof Cum through the msand are typicallyheld in of Law two evenings each month. berland School of Law (CSBA)actively public libraries or community centers. Judges.lawyers and professorsmake pre pursues public interest project ideas for The CSBAprovides office suppl ies and, of sentations to lh.e groups. Field trips are the law students at the school.The Com course. law student volunteers. In addi offered to lhe offices of Balch & Bing mittee for the Advancement of Public tion to participatingin clinicsduring lhe ham, lhe courthouse, and even U1eja il. Interest was formed this year to coordi lax season, several students volunteer The young people are also given the nate such projects and to publicizethem with the IRS on a year-round basis, opportunity to view a mock trial, tour to all students. Jeanette Rader, Cumber speaking to various organizations or the school law library and learn about land's Career Services director, assists working with late-filing individual lax· admission requirements for law school. 52 / January 1993 THE ALABAMALAWYER ...... ~ ...... The Birmingham Area Council or Boy AccompanyingMs. Junkins and Ms. organize summer internships with par Scouts of America provides support to York to Wacowere law students: Daniel ticipating localbar associationsand legal the post, including training for adult !larker of New Bern, North Carolina; servlcelig roups in Alabama. leaders.a serviceteam member lo advise Richard Voight of Spartanburg, South The NAPILal the lawschool is chaired the student post leaders,and a program Carolina; Chris DiCeorgioo f Birming by Dan Cochran of Birmingham.Other of activities LOsupplement those of lhe ham; Melissa Gifford of Chicamauga, officersinclude: Windy Hillman of Brew CSBAposL A weekendleadership retreat Georgia; Tommy Douglas of Birming ton, counsel; StaceyHaire of Huntsville, is also providedas Is a tour of local busi ham; Cathy Callowayof Nashville, Ten publicity chair; Cathy Carpenter or nesses operating at night in the Birm nessee; and Ed Fricia of Clearwater, Nashville, Tennessee,fundraising chair. inghamaffil. Florida. and FeliciaBrooks of Mobile, DavidHale ShawnJunkins, Gulf Shores, president of Huntsvilleand SonyaPow ell of Chesa of the CSBA,is servingas student direc University of Alabama peake, Virginia, special projects co tor for the post this year. Volunteerlaw School of Law chairs. student post leaders include:Amy Him Tuscaloosaarea charities ha\'t greatly melwright, Auburn; Mark Gibson, Stone The Studenl Farrah LawSociety al lhe benefitedfrom the individualefforts of Mountain, Georgia; Ann Shook. Scotts University of Alabama School of Law several Jaw students. The local "Meals boro; and Maggie Bagley, Columbus, consistsof close to 50 percentof the stu on-Wheels" project, through which Georgia. Jesse Vogtleof Balch & Bing dent body at the lawschool and annually meals att deliveredevery week LOelder ham serves as director of the Explorer selects three philanthropic projects for ly, homebound citizens, is assisted by Post and is assistedby other attorneysof Its membership.This year. the students students Dee Andersonof Monroeville, the firm, DavidChandler, Li sa Sharp and unanimously voted to support public Alex Coldsmith of Birmingham, Amy KellyKelley. interest law fellowships.During a recent Hubbard of Attalla and Ward Beesonof During the 1992 spring break in class reunion held by the law school, Montgomery.David Tomlinson of Flo March, eight Cumberlandlaw students Student Farrah raised over S4.SOO rence works with his church group to and the CSBA'sexec uUve sercretary. through a silent auction which will be make and deliver meals for Hospice of Carla York.traveled to Waco, Texas, to used to fund public interest law intern Tuscaloosa.Deborah Kay King, Gig Har volunteer for Habitat for Humanity. ships for studentsduring summer 1993. bour of Washingtonand Stella Shackle Arrangements were made by student This year's officersof Student Farrah ford of Birmingham are volunteers for Amy Himmelwrightthro ugh the nation include: Cary Howard, Hartselle. presi the Tuscaloosa ''SpouseAbus e Network," al Habitat headquarters.. Meals and lodg dent; Marie Robbins, Silver Springs, and Amy Strain of Scottsboro plans ing were provided by Waco area Maryland.vice -presidenl; Shelton Foss, annual blood drives al the law school. churches. Montgomery.treasurer; Tammy Dobbs. Volunteers with the United Way Big The law students workedprimarily on Birmingham. secretary; and Brian Brother/Big Sister program locally are two homes while in Waco.Th ey painted, White. Hartselle. student recruitment. KelvinJ ones, Ill of Huntsville and Cathy erected fencing and laid walkwaysand Socialco-chairs are Lisa Wathey.Milton. Carpenter. Mr. Jones has also tutored sidewalks. Severalstudents tven helped Florida. and Sharon Wheeler, Signal students at both Martin I.. King, Jr. Ele with roofing and shingling jobs. The Mountain, Tennessee. mentary School and Stillman College. families themselvesworked with the stu Guided by ProfessorsPame la Bucyand Student Julie Mosley of Muscle Shoals dents throughout the week as did other Brian Fair, law students recently estab· serves as a Girl Seoul leader and Ward ,,olunteersfrom the area. ShawnJunkins lished a campus chapter of lhe National Beeson,Cathy Carpenter and Jake Brab summarizes the experience: "Though Association for Public Interest Law ston of Birmingham are working with many other students traveled to exotic (NAP!L).NAP IL ls a coalition of law stu Tuscaloosa Projecl Literacy U.S. places for spring break, l do nol think dent organizations throughout the Through a progrnm sponsoredby the anyone had as much fun as those of us country that offers grants and other Law School Student Bar Association, who went to Waco. Sure, we worked forms of assistance to students and several students have volunteered to from 8:00 a.m. to 5:00 p.m. every day, recen t graduales engaged in public tutor seventh grade "al-risk" children in and were tired and sore, but the feelings interesl employment. The University TuscaloosaM iddle School. For an initial we all had in our hearts ,vhen a Jltleboy LawSchool chapter servts as a dearing four-week period. the volunteers assist named Johnny thanked us for helping housefor information relating to public their assignedstudents with schoolwork build Habitathomes for familieslike his interest employment oporlunilies and and study skills. The students are then can't be beaL We all brought home a lot sponsors seminars at the law school evaluated by the volunteers to determine more than we left with. The experience designed to foster interest among stu whether further time with the child and appreciation that we gained from dents in this type of service.It also raises would be beneficial. Windy Hillman of traveling lo Waco att far greater than funds for public interest fellowshipsand Brewton, Mark Sabel of Montgomery, anything many will ever know unless is supporting the effortsof the Alabama Robert Minor of Culf Breeze, Florida, they participatein such a project." Stale Bar Volunteer LawyersProgram to Courtney Stallings of Atlanta, Georgia THEAUBAMA LAWVER January 1993/ 53 ...... ~ ...... - and Christine Marie Coody of Mont around us who are less fortunate than gomery have each provided special ourselves.,. attention to needy children through this A$ demonstrated by these outstanding Designed specifically for law firms project. women and men presently at Cumber Dan Cochran, chair of the law school's land and the Universityof Alabama l..aw • Comrrn.'Ttial& Rct,U CollttUon.t; NAPILchapter, volunteered last summer Schools,he lping others can make a visi • ML-dical & Subr~;i Hon Ca5e!> with DNA-People's Legal Services in Ari· ble, positive differencein our communi • For IBM-PC's & Networks zona working with ind igent Native ties. It is gratifying to know that the • One 1"ime Data Entry Americans of the Navajo, Hopi and future of our profession rests with such • User F'riendl)' Po.p-Up \Vindo\\'S Paiute tribes. In describingth is pro bono committed young adults for whom pro • Automatic Form~ & LetU'Ni experience, Dan stated: "Working in Ari fessionalismmean s more than just prac· • \\'ordPe:rfoct 5.l Interface zona helped tie up many loose ends for ticing law for compensation - it means • Compltte Tickler Sy$tem me professionally as it really brought offeringyo ur time a.nd skills to guaran • Trust Accounting& Ch« k \Vritrng home how important basic first-year tee that justice is accessibleat all times courses are to the practice of law. Addi to all persons. • Prown, Affordable. & Expandable tionally, working with the Native Ameri For regular members of the bar. the Free Demonstration cans was both depress ing and Alabama State Bar Volunteer Lawyers Program Available rewarding - depressingbeca use this par· Program offers an organized, efficient For Information Call licular special group of needy citizens mechanism through which to volunteer (800) 827-1457 historically has often been overlooked, your expertise to help indigent citizens but rewarding as well because l realized in this state in civil, non-fee-generating , .... JS Technologies, Inc. how different things can be and what a cases. More information on the project J •• ,I 5001 West Broad SI. difference we can make in others' lives. can be obtained from Melinda Waters, ..... Richmond, VA 23230 If enough people care, then we can turn program director. al the Alabama State thin gs around and really help those Bar. • CARNEY & NELSO N Foren sic Document Laborator y BAR DIRECTORIES Handwriting Experts Civil & Criminal Work t-.1cmben: Am. Academy or Forensi c Sciences ond 1992-93 EDITION Am. Society of QuC$l.ioncd Document E.xamineni Alabama State Bar Members: $25.00 each Certified by The AmericanBoar d of Forensic Document Examiners Non-Members: $40.00 each Examination of Questioned Send check or money order to Wills, Contracts, Deeds, and MedicalRecords. Expert Te.stimony Alabama State Bar Directory 5855 Jimmy Carter Blvd. Financial Center, Suite 240 P.O. Box 4156 Norcross (Atlanta), GA 30071 (404) 4 16-7690 Montgomery,Al abama 36101 Fax (404) 416-7689 54 / January l 993 THE ALABAMALAWYER REPORTOF THETASK FORCE ON SPECIALIZATION by KEITHB. NORMAN,director of programs & activities ,, s pedali~tion " in its s!mpiest of those state bars which have not Trial Advocacy."The court. while pro terms is a concentration or a adoptedsuch plans. hibiting a categorical bar of certifica lawyer'spractice within one, Chaired bi• Will Lawrenceor Tallade lion advertising, in dictum suggested or. al most, a few fields or law. As n ga, the tnsk force reviewedvarious cer that the public interest in prohibillng resu lt, lawyers who do concen trate ti fica llon plans from around the misleading or deceptive advertising expeclt o be more proficientthan if they country. in addition to considering the would be served by regulation or certify. devoted their lime lo many areas or ing organizations and the content and practice. Although de facto specializa· placementor the advertisedmessage. tion is a foct of legal life. the legal pro Arter a great deal or study and work. fession hns been slow in developing the task force presented to the board of formal plans for the recognition and bar commissioners a plan of legal spe regulation or specialists in their train cialization. The proposed Alabama ing. Forces outside and within the bar Rules of Specialization, considered at have prompted a further need to sludy the board's May22, 1992 meeting, were the possible implementation or a formal modeled after Minnesota's specializa program. Indeed, the public demand for tion plan. The proposed rules provide more specific information to assist in for the certification of · outside" agen fmding a lawyer tends lo create a need cies or entities other than the state bar for the identification of specialists. or its committees or sections, to pre While some lawyers consider more lib pare and administer programs approved eral advertising rules lo be a means or by a state board or certification. The satisfying that need, othen find adver proposed rules recommended by the tising lo be an inappropriate,unaccepl· task forcewere approvedby the board or able or, at best, incompletesolution . Ke ith B. Norm a n bar commissioners. In 1990. AlabamaState Bar President Presently, the Alabama State Bar's Alva Caine appointed a task force to Permanent Code Commissionis coruid· revisit the issue of specialization. par ering modification or Rule 7. 7 to ticularly in light or the Alabama ramifications or the United States accommodate the proposed specializa Supreme Court's decision in Ex Parle Supre me Court decision in Peel u. tion plan. Modifications to Rule 7.7 1-/owell,487 So.2d 848 (Ala. 1986). A//omey Regisb'alionand Disciplinary must be considered by the board or bar which required the development or a Commission of Illinois. 496 U.S. 91 commissionersand, along with the spe· rule allowinga THEALABAMA LAWYER January 1993/ 55 COMPARATIVEFAULT: A PRIMER What Happens When the Lid Flies OffPandoras Box By DEBORAHALLEY SMITH and RHONDAJ<. Pf'ITS eus plannedhis reuengeon whether comparative fault should be man. He took counsel with adopted as the lawof this state and, if so, the other gods, and togeth what form should be adopted. The court D er lheg made for man a also requested briefs and argument on woman. All the gods gave gilts lo this what effect the adoption of comparative new creation.She was named Pandora, fault would have on well-established which means All-Gifted,since each of rules of law such as joint and severallia /he gods had given her something. The bility, the prohibitionon apportionment last gifl was a chest 1i1 which there was of damages, the doctrines of last clear supposed lo be a great treasure, but chance and assumption of risk, and which Pandorawas instructednever to Alabama's wrongful death statute. At open. least 15 amicus briefs were filed on Evenluallg, Pandora's curiosity go/ behalfof more than 66 companies, asso lhe be/ferof her, and she determinedlo ciations and individuals. On May 14, see for herselfwhat treasure 11was that 1992,the court heard an unprecedented the gods had given her. One day when fivean d one-half hours of oral argument. she was alone, she wen/ over to the cor The court took the issues under submis ner where her chest lay and cautiously sion at the close of argument. At press lift.edthe lid for a peep. The lid flew up time, no opinion had yet been released. out of her handsand knockedh er aside, Certainly, no one can predictwhat the while beforeh er frightenedeyes dread man's hear/ is the only thing whichhas court will do. It could simplydecline to ful, shadowy shapes flew out of the box made him able lo bear /he so"ows that reach the comparative fault issue. How in an endless stream . There were Pandorabrought upon him. ever, if the court does decide to reach hunger, disease, war, greed, anger,jeal Coolidge,Greek Myths (The Riverside the issue, the resulting opinion could ousy, toil, and all the griefs and hard Press1949) dramatically change U1epractice of law ships lo which man from that day has in this state. Adopting comparativel'a ult been subject. Each was terrible in involves more than simply abandoning appearance,a nd as ii passed, Pandora Introduction contributory negligence. The legal prin saw something of the misery Iha/ her On February 21, 1992, the Alabama ciples that have been used by the bench thoughtlessaction had brought on her Supreme Court withdrew its original and bar to determine tort liability for descendants. At last the stream slack opinion and announced that it would more than I 00 years would be forever ened,and Pandora,who had beenpara consider the judicial adoption of com changed. Adopting compa.rative fault lyzed with fear and horror, found parative fault in Williamsv. DellaIn/er · would open a judicial Pandora's box of strength lo shut her box. The only thing national Machinery Corp., IMs. other issues that could be the source of left in ii now, however, was the one 1901255, Feb. 21, 19921 _ So. 2d _ potential confusionto the bench an bar good gift.the gods had put in among so (Ala.1992). The court invited all inter for years to come. Virtually every tort many evil ones. This was hope, and estedpa rties to submit briefs and partici casefiled in this state could be affected. since that lime the hope Iha/ is in pate in oral argument on the issue of This article will attempt to outline 56 / January 1993 THE ALABAMALAWYER brieflythe differentforms or comparative mostpopular. is in effectin 21 slates. it is simpler and easier to administer fault advocated by the various parties The least favoredversion orcompara than are the modifiedforms. However. and amici in the Wi/fiamscase and lo tive fault is the slight-gross rule, cur experienceappears to disprovethis con point out a few of the more important rently in effect in only two slates. The tention. Several st.ites that judicially Issuesthat the adoption of comparath-e rule retains the recoverybar or contribu adoptedpure comparativesystems have fault would raise. This discussionis by tory negligenceunless the plaintiffcan since displacedthose systemswith leg no means exhaustive. Countless other shO\I.•that his negligencewas slight and islati,-elyenacted modifiedcomparative importantissues will arise if comparative the defendant's negligence was gross. statutes. See Ill. Ann.Stat. ch. 110,para. faultis adopted. The slight-grossrule is appealingin that 2-1116(Smllh-liurd Supp. 1990);I owa it would be the least radical change to CodeAnn . 668.3(West 1987) . Forms of existing law but would still ameliorate The modifiedform seems to discour comparativefa ult the harshness or contributory negli age frivolouslawsui ts, encouragessettle gence. ments and minimizes runaway j ury The pure. form o( comparative fault One orthe difficultieswith the pure verdicts. In the case of two negligent allowsall parties to recover their dam comparativefault rule is that it focuses parties, the mutual fear of a jury out ages reducedby their percentageor fault. solely on the hypothetical ''plaintiff" come placing one party's fault over 50 The pure form is a minoritydoctrine in without recognizing that once pure percent and thereby precluding dam the UnitedStates, with only13 of the 46 comparative fault is embraced. all ages, weighs heavily in favor or settle comparativefault states endorsing this injuredparties whose negligence or fault ment. Underthe pure system.each party form. The vast majority of states have combined to contribute to the accident would continue to trial, knowing that optedfor a modifiedcomparative system. are automaticallypotential plaintiffs.It some recoverywould be ll\'llilableregard The modilled "not as great as" form is difficult to justify the adoption of a less of the jury's allocationor raulLThis (also known as the "less than" form or systemwhich permitsparties who are 95 wouldsurely increasecosts in an already the 49 percent rule) allowsplaintiffs to percentat fault to havetheir dayin court overburdenedcourt system. recover damages,reduced by their per as plainllffsbecause they are 5 percent The modifiedform likelywould gener centageor causal negligence,so long as faultfree. See Bradley v. Appalachian ate fewer counterclaims than the pure their contributionto the total negligent PowerCo., 256 S.E.2d 879, 883 (W.Va. form. In a pure comparativefault sta te, a conduct causing their injury is "less 1979). The ''pure" systeme ncourages a badly injured plaintiff, although 90 per than'' or "not as great as" that of the par race lo the courthouse, favoringthe first cent at fault.w ill bring an action against ties from whom recoveryis sought. The to me. a 10 percent negligent defendant damagesare reduced by the percentage More importantly, Lhe pure form becausethe plaintiffcan still recover 10 or plaintiffs fault. bul when the plain favors parties who have incurred the percent or his or her damages.The 10 urrsnegligence is equal to or greater most damages. regardless or their percent negligent defendant, having than that or the party from whom n=v amount or fault or negligence.See, e.g., been sued by the plaintiff,naturally will ery is sought. the plaintiffis barredfrom lombom v. Phillips Pacific Chemical counterclaim,the result likelybeing two any recovery. This form or modified Co., 89 Wash.2d 701, 575 P.2d 215 lawyers for each side in virtually every comparative fault was first adopted in (1978)(plain tiff found 99 percent negli suit. Wisconsinin 1931.Tennessee recently gent in causingan accidentbut awarded The manner in which negligence is became the tenth state to adopt this a verdictor S3,500based on damagesof comparedbetween the plaintiffand two form. See Mclnt.vrev. Balentine.833 $350,000).~'urthermore, a plaintiff,who or more Joint torlfeasorsis very impor S.W.2d52 (Tenn.1992). has sustained a moderate injury with a tant in a modlfledsystem. There are two The second modifiedform is referred potentialjury verdictof $20,000and who possible approaches,t he individual rule to as the "not greater Lhan" form or the is 90 percent raull free, may be reluctant and the unit or aggregate rule. Under 50 percent rule. This system allows to filesuit againsta derendant who is 90 the individual rule. the plaintiff can plaintiffsto recoverreduced damages so percent nl fault but who has received recoverfrom a particulardefen dant only long as their comparativeor proportion severeinjuries and whose case carries a when the plaintifrs neg.ligence is less al contribution to the total negligence p01ent.ialor $800,000in damages.Even than the fault of the particular defen causingtheir injuriesis not greaterthan though the verdictis reducedto $80,000 dant. See Walkerv. Kroger Grocery& that or the parties from whom recovery by the defendant's90 percent fault, it is Baking Co.• 214 Wis.519, 252 N.W.721 is sought. Plaintiffsare all0\1.-edto n=v still far in excessor the plaintiffspoten (1934). Underthe aggregaterule, plain er their damagesreduced by the propor tial rec<)\'eryor $18,000.The courts that tiffs are entitled to recover so long as tion of ca115alnegligence attributed to haveadopted the pure comparativefault their fault is less than the fault or all the them up to and including the point rule have not discussed this kind of defendants combined. See, e.g., Ark. where their negligence constitutes 50 result,but rather seem to proceedon the Stat.Ann.§16-64-122 (1991). percent or the total in a two-party situa unstatedassumption that all partieswill In multipledefendant cases, the indi tion. Unlikethe "not as great as• form, be coveredby sufficientinsurance to pay vidual rule preserves the principle of under the 50 percent form, plaintiffscan all the verdictsstemming from a multi nonliability for any defendant less at recovereven If U1elrneglige nce is equal partyaccident. fault than the J)laintiff. The individual to that or the defendants.T his form, the Advocatesof the pure formarg ue that rule reducesthe prospector recovery for HIE ALABAMALAWYER January 1993/ 57 grossly faulty plaintiffs,but an innocent The rationale behind comparative fault is Kan. 195, 580 P.2d 867, 874 (1978), plaintiff still can recover from a defen. that liabilityshould be assessedaccord "[tJhere is nothing inherently fair about dant minimallyat fault In an aggregate ing to the relative fault of the parties. a defendant who is 10 percent at fault rule case, a marginally negligent defen. Joint and several liability makes each paying 100 percent of the loss, and there dant will be forced to pay damages to a joint tortfeasor liable for the entire is no social policy that should compel more negligent plaintiff. f'urther. the amount of plaintiffs injury. regardless of defendants to pay more than their fair coexistenceof the aggregate principle of the amount of fault assessed to that share of the loss." comparisonwith joint and several liabili· defendant. ''Since the doctrine is anti Fewcourts have set forth any reasoned ty serves as an incentive for negligent thetical to the basic premise of the com· analysis in deciding whether joint and plaintiffs to join "deep pocket" defen. parative fault concept - that liabilityfor several liability should be retained in a dants only marginally involved in the damages will be borne by those whose comparative fault system. None of the incident. fault caused it in proportion to their justificationscited by the fewcourts that respective fault - logic compel ls! its have examined this issue and retained Joint and several liability abolition." Eilbacber, ComparativeFaull joint and severa l liability withs tand and the Non·Parlyrortfeasor, 17 Ind. L. meaningfulscrutiny . No matter what form of comparative Rev.903 , 907 (1984). If liabilityis to be The courts rationalize that the plain fault is adopted, the Court must decide assessed according to fault, then no tiffs injury is indivisible because each whether joint and several liabilitywill be party should be held responsible for defendant's negligencecaused the entire retained. Defenselawyers for years have more than its proportionate share of injury. This ignores the fact that the cried that joint and several liability is fault. To hold otherwise is to favor one plaintifrs negligence also caused the pate ntly unfair. Though one might wrongdoer over another. The advocates entire injury. If indivisibilityis no longer expect that joint and several liability of comparative fault maintain that it is a bar to plaintiffs recovery, then it would be abol.ished as a matter of course unfair to place the burden of a loss should not be used to deny modification with the adoption of comparative fault, caused by the fault of two parties on one of joint and several liability.Comments , many argue emphatically that joint and alone (the plaintiff). especially when Where is the Principle of Fairness in several liability should be retained. In one's fault may be relatively minor in Joint and Seueral l iability - Missouri the last few years, the law of joint and comparison to the fault of the other. A Stops Shor/ of a ComprehensiueC-0m several liability has been abolished or princip le of Joss apportionment that paratiue Fault Sys/em, 50 Mo. l,. Rev. modifiedi n at least 37 of the 46 compar allows plaintiffs to recover despite their 601. 6l 7 (1985).If the Court accepts the ative fault states. See Mutter, Mouingto fault should also serve to insulate defen· ability of the fact-finding process to Comparaliue Negligence in an Era of dants from liability for loss to the plain appartion degrees of negligencethen the ToriReform: Decis ions for Tennessee,57 tiff attributable to the negligence of foundation of joint and several liability, Tenn. L. Rev. 199, 304 (1990). Many another defendant. the prev iously assumed inability to jurisdictions have recognized that joint Allowing joint and several liability in a apportion fault an,ong tortfeasors, has and several liability is inconsistent with a comparativefault system leads to results been eliminated. AmericanMotorcycle comparative fault system and essentially that clearly are unjust and incompatible Ass'n u. SuperiorCourt , 65 Cal. App. 3d have eliminated joint and several liability with the comparative fault rationale. 694, 135 Cal. Rptr. 497 (1977),rev 'd 20 entirely. Other jurisdictions have abol See, e.g., Wall Disney World Co. v. Cal. 3d 578, 146 Cal. Rptr. 182, 578 P.2d ished joint and several liability in all Wood,515 So. 2d 198 (Pia. 1987)(Plain· 899 (1978). cases except U1osein which the plaintiff tiff 14 percent at fault, Disney1 percent Some courts have suggested that is found not to be at fault. Still other at fault and plaintiffs finance 85 percent because plaintiffhas only violated a duty jurisdictions have abolished joint and at fault. but Disney held responsible for to protect himself and the defendants several liability for a defendant whose 86 percent of plaintiffs damages because have violated a duty to prevent harm to fault is below a certain threshold. Others fiance was immune from suit). If liability others, the defendants' conduct is some• have formulated schemes modeled after is to be assessed according to fault , how more culpablethan is the plaintiffs. the Uniform Comparative Fault Act, whether a defendant can actually pay a However.there is no qualitative differ which retains joint and several liability judgment should not be considered in ence in the culpability of the parties' in the first instance , but reallocates assessing liability. The application of conduct simply by reason of one being a uncollectible damages among all parties joint and several liability in a compara plaintiff and the others being defendants. at fault, including the plaintiff. Some tive fault system destroys the asserted The label "plaintiff' does not change the jurisdictions have enacted schemes dis· fairness of a fault-based recovery and nature of a party's conduct. A plaintiffs tinguishing between economic and non· shifts the focus from liabilityaccording conduct often creates a tremendous risk econo mic loss or ot her similar dis to fault to liability according to col of harm to others. Sometimes the con• tinctions. lectability.Ad ler, Allocationof Responsi duct fortuitously does not result in any A!though the variations on the aboli· bility After American Motorcycle injury to anyone else, but other times tion of joint and several liability are A$socialionv. SuperiorCourt , 6 Pepp. L. plaintiffs conduct, in fact, does cause widespread. they represent a consensus Rev. 1, 5 (1978).Such a policy is funda injury to one or more of the defendants that joint and several liabilityshould not mentally unfair. As the Kansas Supreme or to non-parties. If a plaintifrs conduct coexist equally with comparative fault. Court observed in Brown v. l{eill, 224 is less culpable than the defendants', the 58 I January 1993 THEALABAMA LAWYER jury will assess fault accordingly, but change in the rule itself. I( the Court which a given comparative fault that is not someth ing that should adopts a comparativefault system then it system addresses the issue of allo require one defendant to pay all the is recognizingthe ability of the fact find cation of fault and responsibility damages caused by all the defendants.To er to apportion fault. If the fact finder for damages to the non-party tort hold that the mere fact that a party is the can apportion fault, it can apportion feasor providesthe measure of fair plaintiff makes that party's conduct less damages. The rationale that damages ness of that system of loss culpable than the defendants' conduct cannot be apportioned, which has been distribution. simply encourages a race to the court· lhe justificationfor joint and several lia house. bility, is no longer valid. Eilbacher. ComparativeFault and the Some courts reason that joint and sev Neither reason nor the rationales cited Non-Party Tortfeasor, 17 Ind. L. Rev. eral liabilityshould be retained to assure by other courts can justify the retention 903 (1984). that injured plaintiffs are compensated of joint and several liability in a compar for their injuries. However, the court ative fault system.If the Court adopts The need for such a rule is obvious in cannot assume that each defendant will comparative fault and the rationale that cases in which the plaintiff chooses not not be responsible for his or her appOr liability should be assessed according to to join a culpable party or allows the tioned share of a judgment. Certainly, fault, then jo int and several liability statute of limitations to run as to a cul there occasionally will be an insolvent must be abolished or, at the very least, pable party. Certainly, if the plaintiff defendant, but the majority of defen modified. If liability is to be assessed chooses not to proceed against a party dants, through insurance or otherwise, according to fault, then no party can be who is partially at fault for the plaintifrs are able to pay their just debts. The fact held resp0nsiblefor more than his or her damages, the other defendants should that plaint iffs occasiona lly may be proportionate share of the fault. f'airness not be penalized. Plaintiffs can choose unable to collect a p0rtion of their dam and equity dictate that each party be not to sue potentially liable parties, but ages, is an insufficient basis for shifting responsible for those damages in so doing, they should not be able to the responsibility for one defendant's lia attributable to his or her fault, and only manipulate the principles of comparative bility to another defendant. "Between for those damages. fault effectively to shift the fault of one the plaint iff and one defendant, the tortfeasor to the other tortfeasors. Nor plaintiff bears the risk of the defendant Problems presented by absent or should plaintiffs be allowed to shift the being insolvent; on '"hat basis does the immune culpable parties fault of a tortfeasorwho has a statute of risk shift if there are two defendantsand limitations defenseto another tortfeasor. one is insolvent?"Barlett u. New Mexico Another troublesome problem and one "Adefendant should not be penalizedfo r WeldingSupply, Inc., 98 N.M. 152, 646 closely related to the joint and several a plaintiffs Jack of diligence in identify P.2d 579, 585 (N.M.App.) cert. denied 98 liability issue is the question of what ing and suing each tortfeasor. If dili N.M.336, 648 P.2d 794 (1982).l f the risk treatment should be given to tortfeasors gence is to be encouraged, so as to of insolvencyshifts when there are mul whose fault contributed to cause the achieve true apportionment and liability tiple defendants. the court is determin injury but who are not parties to the according to fault, the burden of loss ing liabil ity not on the basis of suit. f'or example, what happens if the must fall on that party who determines blameworthiness but on the financial plaintiffsettles with one of the parties at who should be defendants in the suit." conditions of the defendants. Ball, A fault or chooses not to join, or cannot Id. at 912. Reexaminationof Joint and Severallia obtain jurisdiction over, one of the par Somewhat more troublesome is the bility under a ComparativeFault Sys ties at fault? What happens if one of the case in which a defendant cannot be tem, 18 St. Mary'sLJ. 891 (1987). '1fwe parties at fault is immune from suit or served or is beyond the jur isdiction of are ever to achieve a just and equitable has a valid statute of limitations defense the court because inconsistent results tort system, we must predicate a party's to the plaintiff'sclaim? The only fair and could occur if the plaintiff is forced to liability upon his or her blameworthi equitable means of dealing with each of pursue some tortfeasors in a separate ness, not upon his or her solvencyor a these problems consistent with the ratio action. Another difficult problem is pre codefendant's susceptibility to suit." nale behind comparativefault is to assess sented by immune tortfeasors. However, Wall Disney World,515 So. 2d at 205-6 the fault of all parties whose fault con the fault of all culpable parties must be (McDonald,J., dissenting). tributed to cause the injury, regardless considered or the principles and ratio The final cited rationale for retaining of whether they are or can be made par nale behind comparativefau lt are defeat· joint and several liability is stare decisis. ties to the suit. As one commentator has ed. "It would be unfortunate to permit If stare decisisdoes not prevent the abo· observed: the fear of occasional inconsistencies in Jition of contributory neg ligence, it loss distribution to prevent the adoption should not prevent the abolition of joint To the extent that a given legal of a system of spreading loss which and several liability. It has long been system ignores the fault of any would in most cases abolish the recognized that the stare decisis rule is tortfeasor, and shifts the financial Archaisms of our present common law only a starting point. Ex parte Marek. burden from one culpable person rules of negligence." Goldenberg and 556 So. 2d 375 (Ala. 1989). A change in to another, the fundamental prin Nicholas, ComparativeLiability Among the law that resulted in the development ciple of comparative fault is com Joint Torlfeasors:The Aflermalhof Liv. of the joint and several rule dictates a promised. Thus, the manner in YellowCab Company,8 U. West L.A. L. THE AL<\BAMALAWYER January 1993 / 59 Rev.23, 52-53 (1976). fault, nor does its application circum number of state courts have held recent The settling tortfeasor presents the vent the comparative fault enactments. ly that the princ iples of comparative additionalquestion of whether the plain Contributory negligence rests on the fault require that the jury be allowed to tiffs damages should be reduced by the plaintiff's failure to exercise reasonable consider a motorist's nonuse of a protec settling tortfeasor's percentage of fault care. It measures the plaintiffs conduct tive safety device in apportioning dam or by the amount of the settlement. The objectively,against that of the "reason ages. See generally Annot., Nonuse of rationale behind comparative fault dic able person." Assumption of risk does Automobile Seatbelts as Evide11ceof tates that the plaint iff s damages be not employ any such notion of fault or Comparative Negligence, 95 A.L.R.3d reduced by the settling tmtfeasor's per negligence , but rather, rests on the 239(1979) . centage of fault and not by the amount plaintiff's informed decision to Guest statute. Some have argued that of the settlement. A contrary rule would encounter the risk created by lhe defen the adoption of comparativefault should allow the plaintiff effectively to shift the dant's dangerous conduct. Where impliedlyrepea l the guest statute. While loss to the party best able to pay by set· assumption of risk is applicable, the the guest statute in a comparative fault tling with the other parties. Moreover, plaintiff.a lthough able to avoid the risk case could produce some unkind results, the contrary rule would resuJt in the of proceeding, has made a conscious, no court in any state has held that the non-settling defendants bearing the risk informed choice to accept that risk and adoption of comparative fault has that lhe settling parties misevaluatedthe to proceed in harm's way. Having made impliedly repealed a guest statute. The case. If plaintiff makes the decision to that conscious choice, it is neither illogi guest statute remains viable until specif settle with one tortfeasor, the p/ainlilf cal nor inequitable to require the plain icallyrepealed by the legislature or over should bear the risk that that settlement tiff to accept the consequences, which so turned by the Alabama Supreme Court may be less (or more) than the settling easilycou ld have been avoided. on constitutional grounds. tortfeasor's percentage of plaintiffs dam Intentional, Reckless, Willfu l a.nd Other enactme11ts.In several statutes ages. It is far more equitable for plaintiffs Wa.n/011Co.nduct . Generally, compara the legislature has made specificfindings to bear the risk of their own failure to tive fault jurisdictions have refused to with regard to the contributory negli· accurately evaluate their cases than it is apply comparative fault principles to gence defense.See, e.g., Ala. Code25-6-1 for the remaining defendants to bear intentional conduct. However, a number (1975) (Employer's Liability Act); Ala. that risk. The percentage reduction of courts have determined that compara Code 32-5-222 (1975) (child passenger method is the only fair and equitable tive fault should be applied to all forms restraints); Ala. Code 21-7-7 (1975) method of accounting for the settling of aggravatedconduct short of intention (rights of blind persons not using cane tortfeasor. al injury. Emphasizing that aggravated or guide dog). In addition, the Worker's In summary, in order to effectuate negligence concepts were developed to CompensationAct is also premised upon fully the goals of a comparativefault sys ameliorate the harsh common law bar of the quid pro quo of not holding employ tem, the fault of all parties to the occur contr ibutory negligence, these courts ees' contributorily negligent. Adoptionof rence must be considere d when reason that the advent of Gomparative comparative fault will have an impact on allocating fault. The plaintiffs damages fault makes such concepts superfluous. these and other statutory enactments then must be reduced by the percentage See, e.g., Sorenson 11. Allred, 112 Cal. that are premised upon contr ibutor y of fault of all non-party tortfeasors. App.3d717 , 725, 169 Cal. Rptr. 441, 446 negligenceprinciples. (1980).Since the harshness of contribu Negligence of Childre11. In lhe past tory negligence will be eliminated with many categories of plaintiffs, such as Otherissues the adoption of comparative fault, the infants, children, and aged or incapaci Assumptio.n of Risk Abolition of con rationa le for refusing to apply the tated people, have been held either inca tributory negligencedoes not necessarily defense to claims of recklessness,willful pable of contr ibutory negligence or at dictate abolition of the assumption of ness and wantonness no longer eitists. least capable only of some diminished the risk defense. Assumptionof risk and Laufenberg, Comparative Negligence form of contributory negligence. The contributory negligence embody distin Primer, DefenseResearch Institute, Inc. comparative system may permit a more guishable concepts. Assumption of risk (1975). realistic evaluation, for example, of a employs a subjective standard to assess lnteraction of Comparative Fault child's own responsibility for his or her whether a particular plaintiff appreciated with Statutory Enactments. When injury and of the defendant's responsibil a risk prior to voluntarily proceeding to longstanding lorl doctrines are abrogat ity. For example,the age and experience encounter it. Contributory negligence ed, the new doctrines established of the child can be considered in deter utilize.s an objective reasonableness cri inevitablywill conflict in some respects mining whether that child was in fact terion. The AlabamaSupreme Court has with statutory enactme nts premised negligent. lf so, these same factors again steadfastly recognized the distinc tion. upon those longstanding doctrines. Abo can be considered in comparing the neg See, e.g., Slade 11. City of Montgomery, lition of contributory negligence in favor ligenceof the minor plaintiffwilh that of 577So. 2d 887 (Ala. 1991). of comparative negligence would be no the adult defendant. The capacity of the Further, assumption of risk rests on exception. child is thus used for establishing which different theoretical grounds than does Seat belt defe11se, Although the standard of care applies to the minor comparative fault. It does not connict majority of states, including Alabama, do plaintiff and in apportioning fault. See with lhe policies underlyingcomparat ive not recognize the seal bell defense, a Blahnik v. Dax, 22 Wis. 2d 67, 125 60 I January 1993 THEALABAMA LA\VYER N.W.2d364 (1963). it would always be in one defendant's motorist cases, and the impact of com Res Ipso loquitur. A part of the clas best interest to attempt to increase the parative fault on indemnity and subroga sic res ipso foquitur doctrine is a percentagesof fault to be assessedto the tion claims. requirement that the plaintiffbe free of other defendants,as well as the plaintiff. The one good gift of hope allowedPan contributory negligence. Comparative dora to survive her misery. Perhaps, the fault obviouslywi lI modifythis rule. See, Conclusion hope of a fair and equitable tort system e.g., Turk v. H. C. PrangeCo. , 18 Wis.2d If the Supreme Court or Alabama will give us the strength to endure the 547, 119 N.W.2d 365 (1963). Where a decidesto adopt the doctrine of compar initial chaos that will come to bear if the modified form of comparative fault is in ative fault in the Williamscase , like Pan lid on the comparative fault Pandora's effect, such as in Colorado,res ipsa can dora's Box once opened, it is difficult to box is lifted. • be applied since the jury could find that envision the chaos which may ultimately plaintifrs "negligence was not as great emerge. It is impossible to predict the Deborah Alley Smith land I ... the essential elements of res endless stream of "shadowy shapes'" of ipsa were established.'"Gordon v. West issues that may ultimately be unleashed Deb0fatlAlley Smith Is a member of 1hel irmof Rives inghouse Electric Corp., 599 P.2d 953 & Poto,son. Sho Is a 1982 gracuat& 01t h& UniW!rsity once the lid is opened. Only a few have ct Temessee and t985 graduate ot 1heU nlve,siiyol {Colo. App.1979 ). been touched upon herein. Additional AlabamaSci'loo l of Law. Counterclaims.Adoption of compara issues include the proper pleading of Rhonda K. Pitts tive fault likely will dramaticallyi ncrease comparat ive fault, special verdicts, the number of counterclaimsfiled. Even Rhonda K. Pittst$ an assocla1ewi th Rives& Petet· whether the jury should be told about son. Sher oceived het underg,aduat& degree from if the defendant clearly is at fault in the impact of the verdict, prospective JudsonColege l n 1986 and her law degree from causing the accident and the plaintifrs Cumbe THE ALABAMALA WYER January 1993/ 61 RECENT DECISIONS By DAVIDB . Bl'RNE,JR. and TERRYA. SIDES kidnapping, but reserved the right to "take off and kill [Sainl)," and. finally, ALABAMA SUPREME appeal the trial court 's denial of her hitting the victim and telling her to stay COURT - CRIMINAL motion to dismiss based on the ground in the trunk. This conduct constitutes o( double jeopardy. The court of crimi an offense that Staten had already been Double jeopardy-critica l nal appeals affirmed her conviction. convicted or in the munic ipal court, specifically assault in the third degree, analysis; proof of conduc t The AlabamaSupreme Court granted certiorari to consider Staten's claim that and according to the doctTineof Grad.11 Staten v. State, 26 ABR5048 (August the trial judge erred by not vacatingher v. Corbin,lhe admission of evidence of 14, 1992). The Double Jeopardy Clause attempted kidnappingconviction o n the this conduct is barred by the double of Lhe United States Constitution and ground of double jeopardy. Specifically, jeopardy provisions of both the United the AlabamaConstitution bars any sub· Staten argued that the State had to States and Alabama Constitutions. sequent prosecution on which the Gov proveco nduct for which she had already ernmen t, to establish an essential been prosecuted in order to establish an Summary testimony relating element of an offense charged in that essential element of the attempted kid· to business records subject to prosecution. will prove conduct that napping charge, and. thus, her convic Best Evidence Rule and constitutes an offense for which the tion was barred by the double jeopardy defendant's right to examine defendanth as alreadybeen prosecuted. provisions of the Alabama and United underlying documents In February 1990. Staten was convict States constitutions. The supreme court, ed in the Guntersville MunicipalCourt in an opinion authored by Justice Walkerv. State. 26 ABR 5254 (August of assault in the U1irddegree. The war Shores, reversedthe convictionand ren 2J, 1992). Walkerwas the manager of a rant charged Staten with causing physi deredjudgment in favorof Staten. restaurant located in Saraland and was cal injury to Betty Saint by hitting her The U.S. Supreme Court, in Gradyv. charged wiU1 the embezzlement(theft in and trying to close the trunk lid of an Corbin,495 U.S. 508 (1990), held that a the first degree) or S9,J 00 from the automobile on her. In April 1990, based subsequent prosecution must do more restaurant's owners. on the earlier incident, the Marshall than pass the elements test under Block· During the trial. the Slllte questioned County Grand Jury charged Staten with burger v. United States, 284 U.S. 299 the bookkeeper about the restauran t attempting to kidnap Saint in the first (1932). The Supreme Court stated in records for the first six months of 1990. degree by abducting her with the Intent pertinent part as follows: The bookkeepertestified that the $9,100 to physically injure her. IT(he Double Jeopardy Clause bars was missing during this time period. Staten pied guilty to second degree any subsequent prosecution in which The State then attempted to question the government, to est.abIi sh an essen the bookkeeper about the second six tia I element of an offense charged in months of 1990 and the regularity of Da vid 8 . lhal prosecution. will prove conduct deposits after Walker's termination as Byrn e, J r, that consitutes an offensefor which the managerof the reslllurant. David 8 . Byrne, Jt Is a defendant has already been prosecuted. o,aduateot the Un1vec Because the bookkeeper's knowledge s:ryof Alabama. where This is not an 'actual evidence·or 'same was based upon his examination of the hereoelvedbolttt.. undetg,aduoteand h.lw evidence' test. The critical inquiry is restaurant's records, the derense object dogrocsHe Isa mi,m. what the Slate will prove, not the evi ed lo the testimony under the "Best IM 001o r theMoo!go,nosy dence the Stale will use lo prove that dence Rule". More specifically, Walker l,rm ol Roblson ~ conduct. contended that the bookkeeper's sum Whilean essential element of attempt· mary testimony of what the restaurant - ed kidnappingis intent to injure and not records showed should have been pre actual injury to the victim, the State in cluded unless the defendant was given Terry Alan Side s this case presented evidence of Saint's an opportunity to e,mmine the records. Teny AlanSides . •ffl"lo actual injury in order to allow U1efact The evidence was wiU1out dispute that covers1he c,'111por tion finder to infer Staten's intent in trying the records had never been made avail of lhode~G:IOf'tS. isa graduate OilIha urwa, to kidnap Sainl The State proved Stat able to Walkerbefore tr ial notwithstand· sity al Alabama and en's intent to injure Saint by showing ing the State's obligation to produce all CumberlondSchool ol Lawo f SamlordlJm ve, lhe following conduct on her part: documentary evidence for the defen sity,Ho Is a memberof pushing the victim into the trunk of the dant's inspectionas a part or the court's I.hoMont gomeryfir m ol HIil, Hm.Caner. F'tanoo. car, trying to close lhe trunk lid, stating standard pretrial discoveryorder. Cole& Black to the victim that she (Staten( would (Continuedon page64) 62 / January 1993 THE ALABAMALAWYER Alaba• Alaba• nee.the onty"'8y to research AlabamaLaw on Time. Contact your Michie Alabama caselaw wasto fumble aroundWith stacks al case It could lakehOu1 to ~rch ttvoush mounlalllS representativein Alabama reportS, dlgestSand indexes. or cases,rtpOltS, d19esisond indexes 0 Rese«ehlreo legol lSSUewith Alabamalaw on today for a no-obligation Thosedays (ond nights)are a,,er Disc lakesseconds Just enter your own search demonstration- Mich1e·snew Alab 64 I January 1993 THE ALABAMALAWYER State and refused to allow the testimo court, in an opinion authored by Justice review of the technica l procedure ny, hold ing that it was hearsay. By a Adams, affirmed. invoked by Batsonas follows: three-to-two margin, the court of crimi Before the Huntley jury was sworn, Upon the exercise of the prosecution's nal appeals affirmed, agreeing that the the defense moved to quash the jury first peremptory challenge of a black statement was inadmissible hearsay. panel on the ground that the State had veniremember, a defendant is entitled to Judges Bowen and Taylor dissented. exercised its challenges in a racially dis a Batson hearing. Harrellv. State, 555 The supreme court granted Bunn 's criminatory manner, in violation of the So.2d 263, 267-68 (Ala. 1989) (adopting petit ion for certiorari to review that defendant's constitutional guarantee of a 'bright line test' for determ ining the holding. The supreme court , in an a right to an impartial trial. See Batson defendant's right to a hearing); . .. This unanimous opinion, reversed the judg v. Kentucky,476 U.S. 79 (1986). hearing provides t he defendant the ment of the court of cr iminal appeals, The record reflects that after the opportunity to marshal all available evi holding that the testimony was proper defense made its motion, the assistant dence in order to construct a prima to explain Bunn's flight, an issue raised district attorney stated: facie case of discrimination. Ex parte by the State. !By the prosecutrix]. I'm assuming I'll Branch, 52 So.2d 609, 620 (Ala. 1987); "Hearsay has been defined as an out be given an opportunity to put my rea Ex parte Jackson, 516 So.2d 768, 772 of-court statement offered to prove the sons on the record for (the] strikes. (Ala. 1986) . . . If the circumstances truth of the matter stated." Ex parte [By the court]. If I find it necessary. raise an inference of discrimination, the Bryars, 456 So.2d 1136, 1138 (Ala. For the record, I'd like to say that .. . State must attempt to justify its chal 1984). Johnson's statement that he told the State did use five of its seven strikes lenges, the burden having shifted to the Bunn that McDaniel's family had threat to strike blacks. However, according to State to rebut the defendant's prima ened Bunn's life was not offered to prove my records, (there are! still five remain facie case. Ex parte Bird, 594 So.2d 676, that McDaniel's family had actually ing blacks on this jury, is that correct? 680 (Ala. 1991). Following the State's threatened Bunn's life, but, rather , to [By the defense!. Yes, your Honor . explanations, the defendant may offer prove that Bunn left Alabama because The problem is that I ... th ink the rebuttal evidence 'showing that the rea he had been told that his life had been Court shou ld ru le that if one strike is sons or explanations are merely a sham threatened. Stated differently, the state not a - !iOthere is not a race-neutra l or pretext' for racial discrimination. Ex ment was not offered to prove its truth, reason for one of the strikes, .. . the porte Branch,526 So.2d at 624 . .. but to prove the effect it had on Bunn. Court can turn around and order the Justice Adams reasoned tha t , "If it is material to prove that a person whole venire . . . (quashed( and a new "Although each logical step within this at a specified t ime had been put on one empaneled. procedura l framework is theoretically notice about a matter, or ente rtained a In response, the trial judge stated: severable, cons iderations of justice, specific bel ief, acted in good or bad "For the record, the Court does not expediency, and judic ial economy faith, had a specified motive to do or not find evidence of racial bias in the strikes, oppose a slavish adherence to the frame to do an act or to do an act with a speci especially in light of the fact that there work in practice. First, considerations of fied motive, or was mentally deranged, are still five lblacksl remaining ... but ju dicial economy require a record of all proof that a statement was made lo him for the purposes of the record, I will let the evidence bearing on t he issue of prior to the time in question which was the (prosecutrixl give her reasons in alleged discrimination. Althoug h, tech reasonably calculated to create, and each case." nically, the State is under no compu l which is offered for the purpose of The court of criminal appeals reversed sion to rebut an infe rence of showing, notice, belief, good or bad the trial court and remanded the case, discrimination unti l a prima fade case faith, motive or mental derangement is holding that the State had "failed to exists, th is Court, if it determines that not violative of the hearsay rule." carry its burden of articu lating ... clear, an inference clearly exists, will not hesi Charles Gamble, McElroy 's Alabama specific and legitimate reasons for the tate to remand a cause to the trial court Evidence,§273.02 (4th Ed. 1991). challenges which related to the particu with directions to examine the State's lar case to be tried and which were non explanations." Primer on Batson 's technical discriminatory." In short, the supreme court refused to procedure It is important to note that the grant reverse the judgment of the court of of certiorari in this case was to consider criminal appeals for considering the Huntley v. State, 26 ABR 5589 the contention that because the trial entire record with which the trial court (September 18, 1992). In Huntley, the court expressly determined that the sought to expedite the judicial process. State petitioned the supreme court for defendant had failed to present a prima Justice Adams fur th er observed th at, certiorari to review the judgment of the faciecase of discrimination, the court of " ... considerations of justice invite a court of criminal appea ls which had appeals erroneously concluded that the contemporaneous record, rather than reversed Huntley's conviction in Jeffer burden had shifted to the State to justify post hoc excuses offere d by the state son County for rape and sodomy. The its challenges, and, consequently, erro long after the events have faded from court of crimina l appeals reversed the neously held that the State had failed to the trial judge's memory." conviction because the State exercised carry its burden. For example, a defendant may both its peremptory challenges in a racially Justice Adams, in this case, gives to construct a prima facie case and rebut discr iminatory manner. The supreme the Alabama practitioner an excellent the State's proffered explanat ions by THE ALABAMALAWYER January 1993 I 65 showing lhat the prosecuUonexerc.ised In reversing the trial court's order believed that there were claims under (ll desultory voir dlre. 12) "[dJisparate denyinAthe City's motion for summary the policies thai should have been paid examination of the members of the judgment, lhe court drew illl analogy but were not paid. When Lhe plaintiff ~nire," (3) •dJspamte treatment• of the bttwten the municipal notice of claims asked the defendant to pay those addi veni remember, who shared certain statute and the probate non-claims tion.alclaims, the plaintiffwas told that characteristicsother than race, and (4) a statute. Both are statutes of non-claim, the defendant had p;iid all it was going number o( challenges to black venire as opposed to statutes of limitations. In to pay. membtrs disproportionateto their rep construing the probate non-claim In August 1990, the plaintiff sued, resentation on the venlre. See Ex parte statute, the law ,s that lhe non-claim alleging that the defendant had fraudu Branch,526 So.2dal 623-24. does not fall within the healing provi lently foiled to pay to her all amounts sions of the relation backdoctrine. Mot that were due under the insurance poli ley v. Baille, 368 So.2d 20, 21 (Ala. cies. The defendantmove d for a summa ALABAMA SUPREME 1979). This is because nothing in the ry judgment. arguing that since the original complaintcan be said to put the plaintiff had had actual knowledge of COURT - CIVIL estate on notice (l( the additionalclaim. her fraud claim Just a few weeks after So, too, ls lhe rule in the context of the her husband's death In 1984,her claim Relation back doctrine municipal notice statute. The doctrine was barred by the applicable two-year cannot be used to circumvent of relation back annol be used to save a statute of limitations. The plaintiif Ala. Code §11-47 -23 claim that ls otherwise barred by lhat countered by arguing that although she statute. In the instant case, the plaln had been dissatlsn~ with the payment In City of Birminghamu. CarlaDauis, liffs' claims were barred because the on the policies, she had no actual (Ms. 1911140. November 6. 1992). City was not given notice within six knowledge or the defendant's alleged __ So.2d__ (Ala.1992 ), the court months of the accrual of those claims. fraud until a lawyerexamaned the mat held that the doctrine of relation back The substitution, outside the six-month ter for her after a chance discussion cannot be used to save a claim that is notice period, of a municipality for a between hcTand the lawyer'swifo. T he otherwisebarred by the notice of claims fictitiously named party properlysued is trial court granted the defendant's statute.A/a. Code§1 1-47-23. not a sufficientpresentation of the claim motion for summary judgment, finding On Jnnunry 17, 1990, the plaintiffs to the munlclpallly to avoid the bar of that as a matter of lnw,the plaintiff had sued lhe defendantsfor injuries alleged, §l l-47-23. actual nollce or Lhealleged fraud more ly suffered In a two-car accident which than two )'ears before the filing of her occurred on September 30, 1989 wilh Fraud claims • when does suit. the City or Birmingham.In addition to statute of llmltatlons begin to In reversing the lrlal court's grant of the named defendants, the complaint run? summary judgment, Chief Justice also listed \'llrious nctiliously named Hornsby,writing for Lhemajority, stated defendants, including one described as In Howard u. Mutual Savings life that the trial court's summary judgment follows: "DefendantNo. 10, that person Insurance Compan11,( Ms. 1910698 , rested on its conclusion that the plain or entity who controlled or lllilintained September4, 1992),_So.2d_(Ala. tiff's suspicions that the defendant had the roadway and roadway signs where 1992), the court was presentedwith the not properlypaid on her cliams required the accident was caused to take pla.ce." issue of when a plaintiffis chargedwith tht finding lhal she knew of the alleged On April 10, 1990the plaintiffsamended knowledgeof fraud by a defendantso as fraud as a molter of Law.The majority their complaint to substitute the City to begin Lherunning of the statute of concluded. however, that in this case for ''DefendantNo. 1O". limil.iltions. such a rinding was erroneous. Though The City movedfor a summary judg In December1983. the plaintiffs hus there was evidence which certainly sup· ment on grounds that the plaintiffs had band was diagnosedwith cancer and was ported an ln(erence that in 1984 the not filed n notice or claim with the City hospitalize 66 / January 1993 THEALABAMA LAWYE R majority concludedas follows: __ So.2d_ (Ala. 1992),the plaintiffs actionsjustify the impositionof punitive Reasonablepeop le could disagree on purchased a pickup truck from the damages (i.e., the defendantacted with whether Howard could justifiably rely defendant. The defendant's sales repre an intent to deceive, or recklessly or on the representations by Mutual Sav sentative represented to Lheplaintiffs ,vantonly), then an award of compen ings. In light of the complexity and that the truck 1vas"new". No discussion satory or nominal damagesis not a pre inter-relation of the policiesand the fact took place as to whether any bodywork requisite to an award of punit ive that she was speakingto the managerat or repairs had been done on the truck. A damages. the companyo ffice, Howardcould have rewweeks later, the plaintiffsdiscovered concluded that she had receiveda ll that that Lhepaint on the truck was chipping Standard of liability for inn she was entitled to under the policy and that there 1veredents in the hood. keeper's wrongful or unautho terms. The evidencewou ld support the The plaintiffs later learned that the rized entry into guest's room inferencethat she learned of factsshow truck had been damagedby hail and had ing the possibility of fraud only after an been subsequentlyrepaired and repaint In Thetford, etc. v. City of Clanton, attorney scrutinized the policies; if the ed. The plaintiffssued the defendantand )Ms. 1910567, September 18, 1992), factfinder accepts that inference, then asserted claims (or wantonessand fraud __ .So.2d__ (Ala.1992), the court the record indicates that she filed her in connection with the sale of the truck. finallyaddressed the standard of liability claim with two years from the date she The plaintiffs only sought to reco11er for an innkeeper'swrongful or unautho learnedof those facts. punitive damages. Followingtrial, judg rizedentry into a guest's room. The question whether she justifiably ment was entered in favor of the plain On or about June JO, 1989, Shirley relied on the insurer's representations tiffs on a jury verdict awarding them Ann Bankswas a business inviteeof the as to the policy coverage cannot be $50,000in punitivedamages. HolidayInn in Clanton,A labama. On or resolvedas a matter of law. Under these On appeal. the defendantargued, inter about the same date, Eddie Core, the facts and the law as it has developed alia, U1atthe trial court erred in failing managerand an employeeof the Holiday since Hickox v. Stovel', 1551So.2d 259 to set aside the jury verdict on grounds Inn, accompaniedMs . Banks'husband to (1989)1, that is a jury question. that the jury failed to award the plain her room, where, in the presence of a In separate opinions,Justices Maddox, tiffs either compensatory or nominal representative of the Clanton Police Houston and Stegall dissented.Justices damages. Department. Core sawed through a Houston and Stegall concluded that as In a per curiam opinion. the supreme lockeddoor chain lo gain entry to Banks' of February 1984, when the plaintiff court affirmed the trial court's judg room. Mr. Banks later took his wife to admittedly allowed her insurance poli ment. The majori ty concluded thal another location, where he inflictedsuch cies to lapse "because (MutualSav ings) based upon the trilogy of O.K. Bonding severe injuries to her that she died as a didn't do whal (Mutual Savings] was Ca. v. Millon, 579 So.2d 602 (Ala.1991), proximateresult of his beatings. supposed to do", she had actual knowl First Bank of Boaz u. Fielder, 590 So.2d In April 1990, Mary Thetford, Ms. edge of the facts that would put a rea 893 (Ala. 1991),and Caterpillar. fnc. u. Banks' sister and perso11alrepresenta sonab le person on notice of fraud. Hightower, !Ms. J 901465. August 7, tive, filed a wrongful death action Accordingly, the statutory period of lim 19921. __ So.2d__ , an award of against Core, Holiday Inn, Inc. and the itations beganto run al that time, and it compensatory or nominal damages is City of Clanton. Her complaint was later expired in 1986. Justice Houston also not a pre-requisite to an award of puni amended to add Williams Motels, Inc. opined as follows: tive damages. which operated the HolidayInn in Clan "The majority of the Court has now In 0.K. Bonding, the court, speaking ton. All defendants filed molions (or allowed the new justifiable reliance through Justice Almon, held that an summary judgment which the trial standard-the subjective standard-in awardQ( compensatoryor nominal dam court granted.Thetford appealed. fraud cases to 'tread into the arena' of ages ivas a pre-requisite to award of In reversingthe trial court's summary the discovery ru le for the purpose of punitive damages. Seven months later, juc(gment as to Core and the hotel determlning when the statutory perlod however, In First Ba11kof Boaz, the defendants,the supreme court, in a per of limitations began to run." (Citation court, due to an apparent oversight of curiam opinion. specificallyaddressed omittedJ. This is contrary to Chier Jus 0.K. Bondi11g,held the other way. The for the first time the standard of liability tice Hornsby's special concurrence in inconsistency in the holdings in these for an innkeeper's wrongfulor unautho Sou/hem States Ford, Inc. v. Proctor, two cases was discussed in Caterpillar, rized entry into a guest's room. Though 541 So.2d 1081, 1090-92 (Ala. 1989): where the court, speakingthrough Jus the court did not expressly adopt any ")SJtatutes of limitations, even when tice Adams, distinguishedO.K. Bonding specificstandard , it noted that the gen basedon the 'discoveryrule ' in the fraud and First Bank of Boaz. ln the instant eral rule appears to be as follows: context, should be measured by objec case, the majority ruled upon the rea After a guest has been assigned to a tive standards." 541 So.2d at 1091. soning or First Bank of Boaz and Cater room at an inn or hotel for his exclusive An award of compensatory or nominal pillar to hold that as long as there is use, he has a right of occupation for all damages is not a pre-requisite to an evidenceto support findingsby the jury lawful purposes until it is vacated, sub awardof punitivedamages. that (1) the plaintiff was injuredor dam ject only to the right of the innkeeperor In Shoals Ford, Inc. v. McKinney, aged, at least nominally, by the defen his servants to enter the room at rea !Ms. 1902012, August 7, 19921, dant's actions, a11d(2) the defendant's sonable Limesand in a proper manner, THEALABAMA LAWYER January 1993/ 67 and for such purposes as might be nec husband. Accordingly, a jury question years have expired after essary in the general management of a was presented as to whether the hotel death of plaintiff? hotel, or upon the happening of some manager could foresee another beating unanticipatedcontingency .. . . by Ms. Banks' husband. In f(ing u. National Spa and Pool An innkeeper is liable if he or his ser The majority affirmedthe trial court's Institute, Inc. !Ms. 1910620, September vant unjustifiably or unreasonably inter summary judgment as to the City of 4, 19921,_So .2d_ (Ala.1992) and feres with his guest's right to privacy Clanton. The plaintiff argued that the Hogland u. The Ci!lotexCorporation, and the peacefulenjoyment o f his room. failure of the City's police officers to !Ms. 1910077. Septem ber 4, 1992), Stated another way, the innkeeper has comply with the mandates of Ala. Code _so .2d_ (Ala. 1992), the Court "an affirmative duty, stemming from a §15-10-3 (1975) ("whenever a law overruled Elam u. 11/inoisCentral Golf guest's right of privacyand peacefulpos enforcementorficer investigatesan alle R.R.,496 So.2d 740 (Ala.1986 ), and held session, not to allow unregistered and gation of family violence.whether or not that personal injury actions do not abate unaut horize d third parties to gain an arrest is made, the officersha ll make when a plaintiff dies as a result of the access to the rooms of its guests." a written report or the alleged incident, allegedwrongful act of the defendanL After citing and discussingcases from ...") constituted "statutory negligence." After tracing the history of Elam and other jurisdictions which have discussed and, therefore, summary judgment as to Alabama'swrongful death statute, codi innkeeper's liability, the majority of the the City was inappropriate. After dis fied al Ala. Code §6-5-410 (1975), the court concluded that questions of mate cussing the elements necessarylo recov majority. in an opinion written by Chief rial fact existed as to( !) whether Core's er under the theory of statutory Justice Hornsby, held that the survival actions of cutting the chain on Ms. negligence, the majority opined that statute, Ala. Code §6-5-462 (1975). Banks' door and allowing her husband though the statute (whichhad only been means exaclly what its plain language to enter her room were justified and/or in effectfor three weeksbefore the incl states, that ·'all personal claims upon reasonable under the circumstances; dent involved in this case) requires the which an action has been filed ... sur and (2) if the actions were not justifted officer to file a report, it does not say vive in favorof and against personal rep and/or reasonable under the cirucm where and does not say what should be resentatives . . . " (Emphasis supplied). stances, whether Mr. Banks' criminal done with the report. The majorityfound The fact U1atthe injury that servesas the conduct was foreseeable when Core cut that under these circumstances, a jury basis for the personal injury action later the chain. Viewingall of the evidencein could not concludethat the officer'sfail givesr ise to a wrongful death claim does a light most favorable to the plaintiff, ure to file a report required by the not extinguish the original personal the majoritycite d evidence demonstrat· statute proximatelyca used the death of injury claim.The majorityalso overruled ing that upon checking into the hotel. Ms.Banks. the holdings in Mollison u. /(irk, 497 Ms. Banks notified the clerk that she So.2d 120 (Ala.1986) , Parkeru. Fies & had been beaten by her husband and Sons, 243 Ala.348, 10 So.2d 13 (1942), was hiding from him for fear of addi Abatement of claims-can and Carrollu. FloralaMemorial Hospi tional abuse. The majority concluded personal injury action be tal, Inc., 288 Ala. 118, 257 So.2d 837 that this evidence presentedan issue of amended by personal repre (1972), to the extent that they relied fact about whether Core and Holiday sentative after plaintiff dies upon the rule that a persona l injury Inn knew that Ms. Bankswas an abused as result of personal injury , action does not survive the plaintifFs wife who was hiding in fear from her even though more than two death if a wrongful death claim could be basedon the same injury. The rule that a plaintiff substituted for a deceasedplain tiff must file an entirely new complaint in order to recover for wrongful death is no longer the law. Should the plaintiff BARDIRECTORIES die as a result of the injuries alleged in the origina l personal injury suit, the properly substituted personal represen tative may amend the original complaint 1992-93 EDITION to add a wrongful death claim. Hence forth, the original personalinjury action AlabamaState Bar Members:$25.00 each survivesthe death of the plaintiffjust as if the injury bad not caused the death. Non-Members:$40.00 each Moreover,and perhaps just as impor Send check or money order to tantly, the majority held that in addition to recovering punitive damages on the AlabamaState Bar Directory, P.O.Box 4156 wrongful death claim, the personal rep resentative in such cases may also now Montgomery, Alabama36 101 recover compensatory damages on the personal injury claims. • 681 January 1993 THE ALABAMAIA WYER • M·E·M·O·R·I·A·t·S • FRANK8 . PAR SONS practiceof law. He servedas the city of Frank's life. He joined Fairfield attorney for both the cities of Fair· United Methodist Church when he .... On the third field and Hueytown, serving Fair· was 12.Al the age of 17,he began to day of August field continuously for 40 years. He teach SundaySchool and continued 1992, Fran k B. also served twice as presidentof the to do so until his death. He also had ~-· Parsons died. B~mtr Bar Association,president served on the board of trustees of t~ -. Frank Parsons of the fairfield Chamber of Com the church since l950. :9: will be truly merce, president of lhe ra irfield ~·rankParsons contributed to his missed by his Exchan11cClub nnd president of lhe profession,lhe Sl~le of Alabama, his family, brothers Birmingham Northwest Camp of family and his chu rch. He was a in the law and the citizens of both Gideons.International. In addition, man of compassionand honor, and fairlield andthe st.iteof Alabama. he seNed on the board of trustees of was revered and admired by all Frank Parsons was born and Lloyd Noland llospilal in Fairfield those who knewhim. raised in fo'airfield,Alabama. He for the past eight years. F'rankwas a Elizabeth Parsons died July 5. graduated from Fairfield High member of the AlabamaState Bar. 1974; ~'ranknever remarried. He is School in 1936. After attending the Birmingham Bar AssociaOon, survived by a daughter, Mrs. Betty Birmingham Southern College for the American Bar Association, the Frank McDo\\'ell;two sons, Donald two and a half years, he went to the AlabamaTrial LawyersAssociation, and Bruce Parsons: three sisters, Universityof AlabamaSchool of Law and the AmericanJudicature Soci Mrs.Marguerite Maveety, Mrs. Sadie and graduated in January 1942. IL ety. Just three weeks before his Slaughter and Mrs. Freda Wood wasat the Uniyersitythat Frank mel death, Frank was honored by mem man; and twobrothers. Joe and Carl and mnrried the former Elizabeth bers of the stale bar for 50 years of Parsons. Reams. serviceas an attorney. - J, Clewis True/rs Once home. llrank began the The church wasan impartant part Poirfield,Alabama • M·E·M·O·R·l·A·L·S • WIUJAMHENRY 6 1/RTOS Ulsl ,IE Au.EN JEFFRIES CHAJU.ESROBERT RICHARDS Musel•Shoals Admillt!d: 1978 Russellrillc Mmillud: 1928 Died: Septtmbu 6, 1992 Admilll!d: 1969 Dit·tl:Octobf!r 27, 1992 Died:October 12, 1992 JOROAJ'/WALKER JOHNCHASON McAPEE,JR. 8E11NARDJi'AIUIIOR SYKF.S &yMine/lo Cul/mqn Jlfontgomory Mmilll!tl: 1928 Atlmlllod:1937 Mmillcd: 19~2 Died:September 26, 1992 Dk~/:OctQber 22, 1992 Dietl:Novtn1ber l. 1992 SAMUELSKINNER HEIDE, J R. GEORGEAu!EHT MITCHEI.L HAROI..D O'DELLWEEKS Vt:>IOUl'a Birmingham Scoltsbr,,o Mmi/led: 19-10 Mmilled: 1945 Admilled: 1932 D,ed:Sepltmber 4. 1992 Died: Augu,l 28, 1992 Died:August 22, 1992 RICH,\J!DCt.AYl'ON HUNT Do11At.0L. NEWSOM f ortPaJITlf' Birmingham Wlt.LIA.'IBR UCE WHITE Mmifled: 1939 Birmingham Adm/tied: 1952 Admillod: 1940 Dk-vi: Apnl 19, 1992 Died: May12, 1992 0/l!d: September 24. 1992 Ct IARU::SPOL.I.ARD JACKSON, JR. VIRGIi. LF.F.PEI.FREY, JR. Mow1/ainBrook Clio Mmillcd: 1941 Admilted: 1980 Dil!d:Odobrr 3. 1992 Diod:October 13. 1992 THE ALABAMALAWYER January 1993 I 69 • M·E·M·O·R·l·A·L·S • CHARLE S A. POELLNITZ , IV Brant Young. His brother, Richard sessed a warm and ingratiating per Poellnitz, Is a trul y ou~standing sonalil:)I.He was a kind man. He will Mr. Heflin.Mr. lawyer in Greensboro, Alabama. He be sorely missed by his family and President, I rise practiced law for more than 50 years those of us fortunate enough to have today to pay trib before retiring severalyears ago. known and worked with him over ut e to Charl es During World War II, Charles the decades. Augustus Poell entered the Army as a private, but - Congressional Record, • nitz, IV, who was later assignedto the Judge Advo September 17, 1992 passed away cate Corps, receivinghis commission recently. He was from the Judge AdvocateSchool at VCRGII, LEE PELFREY a prominen' t member of the lega I the University of Michigan. After community in Alabama, and a close completing several assignments as a Virgil Lee Pelfreyof Clio, Alabama personal friendof mine. first lieutenant, he served with the died on October 13, 1992at his resi Charles was a native of Creens· 5th Air Force in the Mediterranean dence followinga brief illness. The boro. Alabamawhere he was born in theater, where he was stationed in bench and bar of Barbour and Pike 1908to Or. Charles A. Poellnitz, ill North Africa and Italy for over two Counties mourn the loss of this out and Annie Roulhac Poellnitz. He years. He was discharged in 1945, standing attorney. citizen, family graduated from the AlabamaMilitary havingattained the rank of major. man and friend. Institu te ln Anniston in 1926 and During his lifetime, Charles Lee graduated from the University then enrolledal the University of the earned many civic honors and was a of AlabamnSchool of Law in 1980. South. located in Sewanee, Ten fixture In local communil:)Ipr ojects. He returned to his native Barbour nessee. I le subsequently attend ed He served as director of the First County where he practiced law for a the law school at the University or National Bank of Florence for 40 dozen years mostly in Pike and Bar Alabama. While a student, Charles years, and was a director of several bour Counties. was inll()lve(,Iin all facets of campus other corporations . Re was also a During his brief but bright legal life. I le received many awards and real eslate developer. He remained a career l.ee developed a reputation honors for his leadership. waspresi member of Trinity l>piscopalChurch among the bench and bar as a tena dent of his senior class al Sewanee. from the Limehe settled in Florence cious litigator. lie was a zealous wasacli\oe m honor societiesand was in 1933 until his death. serving as ad\'ocate and worthy adversary. His an a,1d outdoorsman. senior warden and on the vestry. painstaking throughness and ani Afterlaw school, Charles movedto Charles \\'a5 an enthusiastic golfer mated personality helped him lo Florence, Alabamawhere he began and hunter. but his first love was developa fiercelyloyal and admiring practicing law with Ceorge Bliss alwaY$th e legal profession.He prac clientele. Jones in the firm of Jones & Poell ticed in both the state and federal Lee was a loving husband and nitz . Mr. Jones left the firm to courts, and was a member of the father who undeniably placed only become executive secretary to Cov. Alabama Judicial Inquiry Commis the love of his familyabove his love Chauncey Sparks. Later, Charles sion, and was honored by his selec of the law. He was a member or a Joined with Will Mitchell, one of tion as a fellow of the American remarkable familyand is survived by Alabama's most disting uish ed Collegeo f '!'rial L.awyers and Ameri his lovely wife, Theresa. and their lawyers,l o form the firm of Mitchell can Bar Foundation. precious daughter, Anne, as well as & Poellnitz. Charles Poellnitz, N was highly his parents, Virgilan d Crace Pelfrey, The firm grew to be one of the respectedby his peers and the judges and his brothers, Dr. WilliamV. Pel state's most renowned law firms. At before whom he appeared. He was a frey, Or. Robert J. Pelfreyand Jack the time or his death, it \\ 70 I January 1993 THEALABA MALAWYER • M·E·M·O·R·l·A·L·S • JAM.ESE. HART, JR. recognized.but believedin. the con forceful leader. a wise counselor, a cept that the practice of law is a pro kindly man and a dear friend. His RESOLVED. fession,not simplybusiness. He was was a sterling character. His gen th at the mem a warm and true genlleman lo his uineness ,~as renected in his genlle bers of the col leagues at the Bar and always manly demeanor. his sense of duty Escambia County adhered lo the highest ethical and to his profession and to the public. Bar Association intellectualstandards. his unselfishness, his kindness, his adopt this Reso Jim's interests were man)• and understanding and his wholesome lution in tribute varied. He was very active ln other goodfellowship. II was his privilege lo the memory of organizations. He was a member of lo make for himself a fortunate life James E. 1l arl, Jr .. and ih recogni lhe Escambia County and I he State and lo be given lhc satisfaction of tion of his substantial contribulions of Alabama Cattl emen's Associa knowing that the ample fruits of his to our profession. as wellas to our tions, St:rvingin ,,arious capacities. labors were to remain for the community and Stale. including President of the Alabama enrichment of his community. Jim was bom on March 26. I 942. Cattlemen's Association. Al the lime The memben of the Escambia and graduated from Marion Military of his death, he was President of U,e County Bar Associatio n wish ltJ Institute in 1962. While there, he Soulhenslcrn Livestock £x1>osition. express their great n11preciation or was a member of the Monogram He was a very active member of the these qualities and this service and Club. Morgan's Raiders, Honor Brewton Rotary Club. having seived to adopt this Re$Olutionas a testi· Council and played varsity football. in severalcapacities. as well as Presi mony to the memory of one we He receiveda Bachelor'sin Business dent and had been honored by being could ill afford lo lose. Administration from Auburn Uni named a Paul Harris Fellow. He was versity and graduated from Cumber a past president of lhe 1'.R. Miller - Adopted at a meeting of the la no School of Law at Samfor d Quarterback Club, served as Chair Escambia Cou11tgB ar Assoclatio11 Universityin 1970 with a Doctor of man of the EscambiaCounty Demo httld in Brewton, Alabam a, on Jurisprudence, cum laude. While al crallc Executive Committee, as a August 13. 1992. Samford. he was a member of the member of the Marion Military CordellHull International LawSoci l nstilu te Presidential Advisory ety, Phi Alpha Delta Law Fraternity Council, a member of the Advisory and Alpha Tau OmegaFr aternity. I le Board of Cumberland School of Law was the managing editor of the and a member of the Centennial Cumberland-Samford Law Review Commilleefo r the Cityo f Brewton. PLEASE for 1969-70. Jim wasan acli\-emember of First Jim was admitted to the practice United Methodisl Church of Bre,~ HELP Us... of law in Alabama in 1970, and in lon, having served as a l.ay Leader. Florida in 1972. He was a member of Chair men of Lhe Adminis trat ive The Alabama State Bar and the AlabamaSlate Bar, The Florida Board, and on other committeesand Al abama Lawyer magazin e Bar, the Amencan Bar Association, boardsof the church. He was a past have no wa y of know ing the AmericanTrial Lawyer's Associa member of the Conferenceof Board wh en one of our members is tion. the Alabama Trial Lawyer's of Trustees of the Alabama-West deceased unless we are noli· Associat ion and the Crimina l Florida Conference of I he United fted. Do no1 wait for som~'One Defense Lawyer's Association. He Methodist Chur ch. he was also else to do il - If you know of served as Chairman of the Oil. Cas actively Involved in the Gulf Coast the death of one of our mem and Mineral Law Section and the Council of lhe Boy Scouts of Ameri bers, please let us know. Lawyers Public RelationsCommittee ca and many other civic organiza of the AlabamaState Bar. He wasa tions. He also served as Chairman of Send the information to: past pres iden t of the Escamb ia the All-AmericaCity Award Com mit County Bar Association and was, at tee for the City of flrewLon. In Alice Jo Hendrix the Lime o( his death, serving as Bar recognition of his many contribu P.O . Box 671 Commissioner for the 21st Judicial tions to his community. Jim was Montgomery, Alabama CircuiL selected as Brewton's 1990 Citizen Jim wasa skillful. aggressivetrial of lhe Year. 36101 and appellate lawyer who not only In Jim Hart's death, we have lost a Tl IE ALABAMALAWYER January 1993/ 71 CLASSIFIED NOTICES RATES: Members: 2 free listings per bar member per calendar year EXCEPT for "position wanted" or "position offe red" listings - $35 per Insertion o f 50 words or less, $.50 per addll ional word : Nonmembers: $35 per Insertion of 50 words or less, $.50 per additional word. Classlfled copy and payment must be received according to the following publishing schedule: January '93 Iss u e-d eadline November 30, 1992 ; March '93 Issue - deadline January 29, 1993;no deadline extensions will be made. Send cfassrfied copy and payment, payable 10 The Alabama Lawyer, 10: Alabama Lawyer Classifieds , c/0 Margaret Murphy, P.O. Box 4156. 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