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f l í i l I li! U

II II

1'~ Volume 1 Number 3, Winter 1996

YQl~QlßtLITIGATION SECTION

CONTENTS:

'1 FROM OUR PERSPECTIVE THE JUDICIAL PROCESS Trial by Jury is Essential to The Judicial Rules Review Committee Civil and Political Liberty . , .. , ,...... , . . . , . , . . , . . , , . . , , 3 by Lisa WaffsBaskin , .:...... "...... ,...... 28 l'

REPORT FROM THE CHAIR CASES IN CONTROVERSY Sullvøn \1. Scou/ar Grain:lnjJréd . Civilty Is Not Optional . . , . , ...... , . . , , . , . , . . . . 6 Employees Further Forced to Bear Búrden of Boss's Neglect

LEnERS FROM OUR MEMBERS. . , . , , , , , . , ...... 8 by A/an W. Mortensen" . , , , .,. . . . , . . .. , . . , . , . , , . , , . . .' . . 32

CIVIL LITIGATION A CREDIT TO THE PROFESSION Report of the Civilty Committee Jane Marquardt.,."."."...... ,..,...... ,...... 35 by Craig G. Adamson. . . . . , , . , ...... , . . . , . . , , ...... , 10 BAR & BENCH THE CIVIL LITIGATOR.,...,...... ".,..,.."... .11 HoW to Win Cases and Influence People (on the Bench) POINT/COUNTERPOINT - by "She Who Must Be Obeyed" ,., , . . . . , ...... ,..."..36 MANDATORy'PRISON SENTENCES Smoothing the BumpsAIQng the Way' , to Uniform Procedure" '. ' Why Minimum Mandatory Sentences Should Be Repealed by Roger H. Bullock, , ...... ,..,.,. . , , ...... , ...... 39 by Judge Bruce S. Jenkins ...... , . , . , . . . , , . , .. , . . , . , .. .12 Letters to Lennie... ..".". ",. "...... ,.,..."..,....,41 The Case for MandCltory Prison Sentences ' by Brent D, Ward ""...,.."..,.,.",.....,.,...... 16 IN MEMORIAM , RobertD.Moore by Kevin M. McDonough, . . , . . ;. , , . ,. ,.. , . , . . . . , , . . . . . , , 43 l PRACTICE POINTERS Trial Basics: Using Exhibits by Francis), Carney, . . . . , . , , , . " . , : . . . . , . . . . , . . , . , . , , 18 " AMUSEMENT IN THE LAW t Potential Tax Advantages of And What No Good Can You Gross' Fee' Arrangements Be Up to During Tin1,eOut? , . ., . . , .. ,... " . . . , ...... 45 by Charles R, Brown .,...... ,.,..,; ,',..,.,.. .22 Is the Law a Lass?,..,..,..,..,.,..,..,...... ,..",.. 46

POINT/COUNTERPOINT - PROPOSED,CHANGES IN MEDICAL MALPRACTICE LAW Physician "Reform,sHof the Mj!dical Malpractice Laws in Utah - Don't Confuse Them with Fàcts, Their Minds Are Made Up by Rà/ph L Dewsnup "...... ,.,.....,..,..,..."..,. 24

VOIR DIRE WINTER 1996.1 Medical Medical Prescreen Records Service Review YQ!ltQlßÇLITIGATION SECTION Phone conference Written review of with physician medical records specialist for case by board -certified Editorial Board: Ross C. Anderson, Editor-in-Chief merit evaluation physician specialist Kate A Toomey, Managing Editor ""All physicians available for depositions Victoria K. Kidman, Editor and expert witness testimony Samuel D. McVey, Editor David L. Miller, Editor Paul M, Simmons, Editor

Contributors: Craig G, Adamson Rolph L. Dewsnup .,~~E.DICAL Ross C. Anderson Hon. Bruce S, Jenkins Lisa Watts Baskin Hon. Leslie A Lewis Charles R, Brown Kevin M. McDonough . Pit PINIONSm Roger H. Bullock Alan W, Mortensen Francis J. Corney Kent B. Scott 800/654-2422 · (801)261..3003 Martin W. Custen Brent D. Ward LoreleiChernyshov, ext. 446 Litigation Section Executive Committee: Kent B. Scott, Choir Philip R. Fishier 670 East 3900 South, Ste.300, SLC, UT 84107 Jeffrey R. Oritt, Choir-Elect Tracy H. Fowler Victoria K, Kidman, Secretary Janet A Goldstein Craig G. Adamson Hon. Stephen L. Henriod Steven J. Aeschbacher James C. Jenkins Ross C. Anderson David J. Jordon P. Bruce Badger Hon. Gordon J. Low W. Cullen Bottle Julie V. Lund Hon. William B. Bohling Ellen Maycock Roger H, Bullock Frank Pignanelli Francis J. Corney Justice Leonard H. Russon MERIT Scott Daniels Teresa Silcox -REPORTERS- Cameron S. Denning Anne Swensen WHEN QUALITY COUNTS Raymond J. Etcheverry John L. Young Assistant: Graphic Design: UT'S MOST CERI FI Koren McMicken Bailey-Montague & Associates Cover Art: Printing: · Daily Copy-No Added Cost Trav Winn Advance Graphics, Inc.

(Ask for Caseview) Voir Dire is a quarterly publication of the Litigation Section of the Utah State Bar, The opinions contained in Voir Dire are those of the contributors, · Free Mini-Transcripts and not necessarily of the Litigation Section. Voir Dire will review original articles submitted for publication. Please submit proposed articles to Voir Dire, 50 West Broadway, · 5 - Day Delivery 700 Bonk One Tower, Salt Lake City, Utah 84101-2006. The Editorial Board reserves the right to edit all submissions accepted for · Full Litigation Support publication, With appropriate attribution, Voir Dire articles, or portions thereof, may be reproduced, quoted or praised with, impunity.

322-3742 ¡ The Editors of Voir Dire are pleased to announce that the Utah State i 185 So. State #380 Salt Lake City, UT 84111 Bar will generously provide funds so that all members of the Bar will receive at least this and the next issue of Voir Dire. Ii

i , f 2. VOIR DIRE WINTER 1996 T

'fROM OUR PERSPECTIVE Trial by Jury Is Essential to Civil and Political Liberty

lf If liberty and equality as is to stand for all we mean by English jus- thought by some, are chiefly to be tice;// and Cynthia J. Cohen warned in 1991 t found in democracy, they will be that //(uJnless we find new respect for the best attained when all persons Seventh Amendment, one of the basic alike share in the government to elements of our democracy may be lost.// the utmost. What //reasoning,// then, comprises the ammunition of the recent assaults on the ~ Aristotle, Politics, book IV, ch. 4 institution of trial by jury? A recent peru- sal of newspaper columns and letters to Juries are called the bulwarks of the editor provides some curious, yet com- our rights and liberties; and no mon, observations. For instance, a letter country can ever be enslaved as appearing in The Salt Lake Tribune offers long as those cases which affect the following commentary: //What does the their lives and property are to be Simpson trial prove about our joke of a decided, in a great measure, by Trial by jury is a right guaranteed by justice system? If you have enough money, the consent of 12 honest, disin- the Magna Carta and by the constitutions you can get away with murder - twice.// terested men. of the United States and every state in this nation. Its roots go back at least That letter echoes what many of us - Samuel Spencer (1788) 4000 years, perhaps to the Ken bet in have heard almost every day since the (quoted in Schwartz, 4 ancient Egypt, where juries were com- verdict. //He bought himself out of The Roots of the Bill of Rights prised of eight jurors, four from each side trouble.// //We have two types of justice in 946) of the Nile. According to Blackstone, trial this country; one for the rich and one for by jury //hath been used time out of mind the pOOL// //A poor African-American in A jury of twelve men and women, in (EnglandJ and seems to have been co- Los Angeles would have been convicted having heard evidence for eight months, eval with the first civil government there- of the same crimes in a week.// But none acquitted OJ, Simpson of the murder ", of.// Thomas Jefferson stressed that //(tJhe of these critics offer any solutions. charges against him a few months ago. wisdom of our sages and the blood of Of course, the wealthy get a better Now, many otherwise responsible people our heroes has been devoted to the shake of ¡tin our legal system. On the are saying that the verdict proves the jury attainment of trial by jury.// whole, the wealthy in our country also i system is a failure and that we should i The value of the jury system to a get better health care, better education, abolish it. democracy has been recognized for better food, better housing, and better In calling for the demolition or drastic hundreds of years. Sir Edward Coke transportation. If the critics of the jury alteration of our system of trial by jury, noted in 1628 that //(tJrial by jury is a system ore saying that everyone should many Americans have demonstrated not wise distribution of power which exceeds be reduced to the lowest common-denom" only their capacity for extreme reaction, all other modes of trial;// David Hume inator in legal representation, do they also but an underlying contempt for democ- declared in 1762, //(TJrial by jury is the advocate that everyone get the worst racy. Or perhaps they have learned and best institution calculated for the health care being provided to the poor, thought so minimally about the founda- preservation of liberty and the admission the worst education, the worst nutrition, the tions of our system of government that of justice that ever was devised by the wit worst housing, and the worst transportation? they cannot be credited with enough of man;// Sir Winston Churchill asserted True, we should do what we can to knowledge or contemplation to formulate in 1956 that //(tJhe jury system has come achieve equal justice, just as we should such a contempt.

VOIR DIRE wiNTER I996.3 ""

provide equal opportunities in education which found that only two percent of Some believe that the evidence in the for every citizen in this country. However, husbands charged with killing their wives Simpson case was overwhelming, the inequity in the provision of legal services are acquitted, also establishes that jurors clearly were in error, and, therefore, is not a justification for razing the jury African-Amèrican jurors are not tolerant that in itselUs proof of the need to rid our- system-described by Elihu Root as "the of husbands murdering wives, regardless selves of the' jùry system, That is tantamount most vital, most sacred of the institutions of the defendant's race. to demanding an end to representative gov- which maintain our free and popular We also hear from many that, inas- ernment because AI D'Amato is re-elected government." much as Simpson was 9bviously guilty, to'the United ,StåfesS"inate. We must all Another argument of those who would the acquittal proves that the jury system face the fact that mistakes happen. An destroy the jury system is that an African- (or the criminal justice system altogether) expectation of perfection in every American is not likely to be convicted by is a failure. Even if we assume that instance is naive, and certainly not the a jury that is predominately African- Simpson is guilty, what these critics do basis for abolishing a principal component American. That racist argument, which not understand is that our system is not a of democratic government. we have even heard spewing forth from guarantor that every ()ffender will be As lawyers, we have an obligation to Marcia Clark (who, of course, must find proven guilty beyond a reasonable speak Out and inform others ;about these SOme reason other than her performance doubt, or even that every guilty person issues. If our friends, family members,and for her defeat), is empirically hogwash. will be brought to trial for his or her others with whom we associate are left in First of all, the Simpson jury verdict was crimes. the dark about the importance of our unariimous. Even the non-African-Ameri- The fact is that many people get away democratic institutions, we are to' blame, can jurors, who comprised one-quarter of with murder, without enough evidence and we will come to regrekour inability the panel, voted for acquittaL. And those available even to try, them for the crime, or unwillingness to champion our funda- jurors who have spoken publicly have not Dozens of murders have occurred in Utah mental freedoms. As Justice George mentioned race orintimidation asa basis in the past ten years, for which arrests Sutherland said, "The saddest epitaph for their verdict. have not even been made. And sometimes which can be carved in memory of a van- The explanations provided by those acquittals are returnedby,juries simply ished liberty is that it was lost because its jurors who have spoken publicly have because not enough persuasive evidence possessors failed to stretçh forth a saving been well considered and rational,refer- is available. Acquittals in those cases, hand while yet there wastime." __ ring to just the sort of reasons that have although sometimes a result of shoddy or made rtanyintelligent people conclude unethical police practices (as in the Simp- that there may, indeed,have been a rea- son case), are truly a vindication ofa sonable-doubt as to Simpson's guilt. system that demands proof beyond a ;&~ Further, a recent Justice Department study, reasonable doubt for a conviction.

4. VOIR DIRE WINTER 1996 'T

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VOIR DIRE WINTER 1996.5 RtVORl FROM THE CHAIR Civility Is Not Optional

The fault, dear Brutus, have the courage to be professionally is not in our stars, independent of our clients? But in ourselves. . . . What is the Litigation Section doing - William Shakespeare to promote professional civility? Why Julius Caesar, t ii. 734 not form another committee? So we did. Let's call this one the "Civility In a recent pollution case involving Committee" and have a highly respected Monsanto Company, the following bat- attorney, Craig Adamson, chair a blue- tle took place at the deposition of a ribbon assortment of heavyeight Monsanto board member. The gladi- jurists. Serving on the committee are i Judges Pat Brian, Bill Bohling, and , ators were two well-known lawyers ,1 Steve Henriod, together with former f who were hired by their respective .' clients for big dollars. Both attorneys district court judges Phil Fishier and Scott t.,.,'" had reputations for effective and zeal- Aren't we fortunate not to have any- Daniels. Experienced attorneys Frank Carney, Bruce Badger, and Martin ous advocacy. Joseph Jamail (of Pennzoil thing like this in Utah? But what about i v. Texaco fame), and his worthy oppo- a recent case pending before the United Jensen are also key people who serve nent, Edward Carstarphan, squared States District Court in the District of on the Civility Committee. Civil enough Utah where the out-of-state counsel for you? I off against one another in the follow- t: ing manner: accosted the opposing local attorney at Okay, members of the Litigation a deposition, locked him in a military Section, what do you expect from the Mr. Jamail: You don't run this depo- hold and threw him to the ground? The Civility Committee? Should we adopt a sition, you understand? t attacking counsel walked out of the civility code and require every attorney \1 Mr. Carstarphan: Neither do you, Joe. room, and with him went his pro hac to hang it directly under his oath of Mr. Jamail: You watch and see. You vice privileges to practice law in Utah. office? How about displaying a civility watch and see who does, big boy. In a recent address to the American code banner in every federal and state And don't be telling other lawyers Bar Association, Supreme Court Justice courtroom to make things look really to shut up. That isn't your (obscen- Sandra Day O'Connor pointed out: good? Should we take another trip ity) job, fat boy. "rrhe justice system cannot function down to Southern California to see effectively when the professionals what they have? What about the Mr. Carstarphan: Well, that's not charged with administering it cannot Liigation Guidelines adopted by the your job, Mr. Hairpiece. even be polite to one another." Los Angeles County Bar Association in (The witness tried to speak but What happened to civility among 1989, and the Los Angeles County Bar could not make himself heard.) professionals? Are there too many Civility Code adopted in connection Mr. Jamail: What do you want to lawyers chasing after too few clients? with those guidelines? Now there's a do about it, (obscenity)? Do lawyers feel the need to make more "civil" place to practice law. money so their lifestyles can keep pace For years we've had Rule 11 of the Mr. Carstarphan: You're not going with that of other well paid profes- Federal and Utah Rules of Civil Proce- to bully this guy. sionals? Are we really buying that old dure, and Rules 3.1 through 3.6 of the Mr. Jamail: Oh, you big (obscen- dictum of an angered and shortsighted Rules of Professional Conduct. Rule 3.2 ity), sit down. client: "Win at all costs"? Do we still specifically provides: "A lawyer shall

6. VOIR DIRE WINTER 1996 .,

make reasonable efforts to expedite .:- It's good for the firm. A firm with a court. Take time to read the attorney's litigation consistent with the interests of classy reputation provides each of its oath each of us signed which states, in the client." We have articles that appear members with tremendous advantages. part: "I will maintain the respect due to in bar journals. We have continuing How, then, do we become "classy courts of justice and judicial offcers. I legal education programs on ethics. lawyers"? The following is a list of sug- will not counselor maintain any suit or We have the benefit of what can be gestions offered by United States District proceeding which shall appear to be learned from Report of the Commission Court Judge David Sam during his pre- unjust, nor any defense except such as I believe to be honestly debatable on Professionalism to the Board of the sentation at the Federal Court Litigation Governors and the House of Delegates Practice Seminar held last fall in Salt under the law of the land." of the American Bar Association, 112 Lake City: I am aware of, and fully acknowl- edge, my need to shape up and be F.R.D. 243 (Aug. 1986). We also have .:. Have respect for the fairness and the Seventh Federal Judicial Circuit's dignity of the role of the law in "born again" in matters dealing with Committee on Civility, and the American maintaining a free society. professional civility. Incivility is like Bar Association's Tort and Insurance Prac- .:. Work out matters with other attor- B.O. The person who is infected with it tice Section's Committee on Professionalism. neys without involving the court. is usually the last to know. What more do we need? What more Conserve the court's resources so Each attorney has a stake in do Craig Adamson and his Civility that the court can be used for more regaining the professionalism and col- Committee need to do to bring about substantive matters, such as settle- legiality that once characterized the the perfect order of civility? They need ment conferences and trials. practice of law. The real solution is not YOU!!! Yes, you, the "born again lawyer," -:- Give extensions, and waive forma- found in more committees, civility to step up and realize that Justice O'Connor lities unless real prejudice results to codes, oaths, or continuing legal makes sense when she so accurately the client. education programs. These things are states that our justice system cannot func- .:- Use discovery and law and motion desirable, but only serve as tools that tion unless lawyers take personal respon- practice to solve the problems, attorneys can use to build a better sibility for their professionalism. rather than creating another layer professional environment. Consider the words of former Let's improve and protect this profes- of difficulties. sion of ours. Why don't we do something .:. View compromise as a tool. Supreme Court Justice Warren E. complex and novel by learning to dis- .:. Consider alternate forms of dispute Burger in a 1984 address to the American Bar Association: "The entire agree without being disagreeable? In resolution in settling all or certain the words of the Georgia Supreme parts of your case. legal profession-lawyers, judges, law teachers-has become so mesmerized Court in a recent decision: "If the bar .:. Be punctual, and promptly return is to maintain the respect of the commu- phone calls. Take time to communi- with the stimulation of the courtroom nity, lawyers must be willing to act out cate often and accurately with contest that we tend to forget that we of a spirit of cooperation and civility and opposing counseL. ought to be healers of conflicts. . . .

not wholly out of a sense of blind and .:- Advise clients that you will refuse to Should lawyers not be healers? unbridled advocacy." Green v. Green, take any course of action that is with- Healers, not hired guns?" 437 S.E.2d 457, 459 (Ga. 1993). out merit. Any position that you take The Litigation Section will use its Each year, a well-known Phoenix law will have a good faith basis in the resources to build a better professional firm conducts a session with its new asso- facts and the law governing your case. environment and a more civil way of ciates on the subject of "How to Be a Classy -:. Do not disparage or attribute bad resolving disputes. We invite each member of the Utah State Bar and the Lawyer." As part of their training, the motives to opposing counseL. associates are informed about some of -:. Treat witnesses, the court's staff, judiciary to contribute ideas and com- the good reasons for being" classy." Here and clerical personnel with cour- ments on this subject to 'me, Craig is a brief summary of those reasons: tesy and respect. Adamson, or any member of the litiga- .:- It's a small town. If you aren't classy, tion Section Civility Committee. The Good luck to each of you in your word gets around. members of the Bar have the collective daily pursuit to develop a better profes- .:. Classy lawyers get better results. intelligence to develop a better way to sional environment in which to practice Judges, juries, and appellate courts treat one another. All we need is a law. Craig Adamson and the rest of trust classy lawyers more. dash of desire to fuel our fire. -- the members of the Litigation Section's -:- It's more efficient. Less time is wasted Civility Committee have a challenging on petty and needless disputes. and rewarding job. Every member of the -:. Classy lawyers get more referrals, Utah State Bar is an officer of the /Pd~

VOIR DIRE WINTER 1996.7 ~

\,r:-rTcRS fROM OUR MEMBERS

DEAR EDITOR: + article (like those in which another i As a member of the legislature that lawyer has shown himself or herself to i passed the court consolidation mea- The bottom-line effect of court consol- be a liarL surreptitious tape recording l sure in 1991, I have a few comments idation is more judges, doing a greater of conversations should never become I and observations regarding the articles variety of tasks, at a much higher cost, a routine practice, or anything close to on that subject in your summer issue. At a time when most states are moving it. lawyers should always strive, Regardless of the number of big toward judicial specialization and non- consistent with their duties zealously to cannons wheeled out by the Judicial judicial alternatives to dispute resolu- represent their clients, to abide by the Council to declare the success of court tion, we are moving back to judicial "Golden Rule." lawyers should, if consolidation, the fact remains that con- generalization, possible, never even come close to the solidation has not turned out as promised. I commend Craig M. Snyder for hav- line of what the formal rules proscribe The assurance given to the legislature ing the courage to speak up and ques- as "unethical conduct." to induce its passage was that a consol- tion the consolidation movement from Peter C. Collins idated system would be more efficient its inception, Unfortunately he has been and more economicaL. The reasoning was a lone voice crying in the wilderness. that an entire layer of judiciary (circuit Finally, I intend no criticism of those courts) would be eliminated, and the num- who initiated the consolidation move- ber of district judges would be reduced. ment; their motives were pure and their Letters From Our Members The lesser matters previously handled goals were laudable. It simply seems to Please send letters to Letters to the by these eliminated judges would be me that we have lost sight of those Editor, Voir Dire, 50 West Broadway, assumed by less expensive commission- goals in the rush to consolidate. 700 Bank One Tower, Salt Lake City ers and justice courts. This consolidation Merrill F. Nelson Utah 84707 -2006. Letters should be system would not only be less expen- type-written, double-spaced, and sive, but would be more efficient because concise. All letters are sub¡ect to it would foster specialization by the com- editing, and. some may not be missioner, justice court, or district judge DEAR EDITOR: published at all, at the discretion of the in a particular category of cases. I read with interest the article, Editorial Board. As it turns out, consolidation will be appearing in the Summer (995 issue, neither more economical nor more effi- by Nathan B. Wilcox dealing with cient than the prior system. We have surreptitious tape recording by lawyers. now more judges than before, and each It was informative and confirmed what additional judge requires additional faci- I thought to be the law and the formal lities and support staff. Moreover, those ethical rule, but something was missing. judges are handling a broader range I kept waiting to see the author's of cases, reducing the opportunity for acknowledgement that, although it specialization and development of may be legal and not prohibited by the expertise in particular subject matters. written rules of ethics to do such things, Meanwhile, court commissioners and and although it may be reasonably justice courts have assumed little, if necessary in limited circumstances of any, of the prior judicial work load. the kind referenced at the outset of the

8. VOIR DIRE WINTER 1996 "T

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VOIR DIRE WINTER I996.9 :. --

C1VIL LITIGATION

Report of the Civility Committee

by Craig G. Adamson

What, if anything, can be done to out the Bar, struggle with how to improve the poor effect or non-effect that such increase the practice of civility between civility, a few modest suggestions seem to comments have on judges. An example lawyers or, in the alternative, what can be in order. of this problem, recently received by the ~ be done to decrease incivility? That is the First, civility begins at home. Begin writer, is set forth below. These comments question being studied by the Litigation each day by dedicating yourself to the were made in response to a motion to Section subcommittee on civility. The idea that you are going to be civil in your dismiss under Rule 12(b)(6), and a committee is in its second year of opera- dealings with others. Many people fail to motion for a protective order. tion, and, as you might suspect, it has no understand that you can be civil and still Knowing that P is an individual who easy or ready answers to these questions. be an effective advocate. Examples of must fund this litigation personally, D During its first year, the committee Utah lawyers who are unfailingly civil, and its insurance carriers have adopted a program of publishing scur- but who have never been accused of instructed counsel for D to assign rilous letters from one lawyer to another. failing to strongly and effectively advo- three lawyers to this case and file That program continues, and you are cate their client's position, come easily to every conceivable objection and invited to submit appropriate examples of mind. Among those are Steve Nebeker, motion, whether such objection or letters you have received. The committee Gordon Roberts, and Carman Kipp. motion has merit or not. also is considering publishing laudatory Being civil works. If you haven't tried it, letters about lawyers. The first of those, a you should. D then filed a meritless Motion to letter by Bob Wilde praising the conduct Second, being civil helps your clients. Dismiss that is currently pending before this Court. . . . Indeed, D seeks of Mike Mohrman, is published below. Remember that your job is to secure a just Other examples of encouraging behavior resolution of a dispute, and not to to keep from both this Court and P will be noted in this space in the future. become a personal porticipant in it. If internal documents that demonstrate At its initial meeting in 1995, the com- you have allowed yourself to become D's liability to purchasers such as P. This Court should not tolerate such mittee focused on the question of whether part of the problem, instead of part of the adopting yet another code is likely to solution, you can only expect that your blatant stonewalling. improve civility. The question is still being opponent is going to insist on the matter ¡IJn an effort to keep these incrim- debated, and your comments are welcome. being handled in the most formal manner inating documents from the Court, D Although it is difficult to believe that possible. If you have personally abused filed a Motion for Protective Order. anyone who has been able to graduate opposing counselor the opposing client, The lawyer who made these com- from an accredited law school and pass you will end up doing things in the most ments has been around for some time, the bar exam has not figured out that abus- expensive way possible, and you will and should have known that the judge ing court personnel is a very poor idea, have to explain the cost of doing it that who read them would be perfectly aware the committee is assured that it happens way to your client. that he had no knowledge of conver- ever more frequently. Judge Pat Brian is Third, do not let the miracles of sations between defendant's counsel and putting together a group of court person- modern technology trap you. Modern its client, that the comments about insur- nel who will report to the committee on technology has made it possible for a ance were inappropriate, that character- problems they face, and possible solutions. lawyer to sit in the office, and either izations of the documents and what they Incivility is a difficult problem. The dictate into a microphone or type into a would show would not be helpful to the difficulty begins with a definition. Some- computer terminal, letters and pleadings court, and that opposing counsel likely times a third party cannot tell whether a that go out to third parties almost imme- would be offended by the comments. These lawyer's conduct is uncivil, or merely firm diately. Under these circumstances, it is comments did not move the case toward advocacy. On the other hand, most easy to be carried away by the sound of resolution, and did not help the court. lawyers are well able to recognize incivil- your own voice, or the beauty of your Your job as a trial lawyer is not to be ity when they see it. While this committee rhetoric on the computer screen. Court a IIpaid hater.1I It is to attempt to resolve and other bodies, both within and with- rules that limit oral argument on motions conflicts. If you are part of the conflict, it tend to further insulate attorneys from is much more diffcult to secure a good Mr. Adamson is a shareholder of the Salt Lake City having to look opposing counsel in the result for your client. .- law firm Dart, Adamson & Donovan. eye, or of being able to directly observe

10. v 0 I R D IRE WIN T E R I 9 9 6 ."

'"n-1t CIVIL LITIGATOR

DEAR EDITOR: I would like to know, however, if in the middle of a week during which I any other young attorneys or new will be out of town, without bothering As calculated, I was embarrassed members of the Utah Bar have had the to coordinate it with my calendar. to note that you printed my letter under experience that I have had with fellow I agree that identifying the uncivil your "Uncivil Litigator Section" in your litigators who have lengthy careers litigators is appropriate. I also think it summer 1995 edition of Voir Dire. I under the belt. Personally, i have found appropriate to recognize the civillitiga- hereby publicly apologize to your that some of these older and outwardly tors, when you find them. To that end, I readers and to the attorney it was sent "civil" attorneys tend to, as a fellow submit the following anecdote. to. Although the message was merited friend and attorney said, "stab you in I appeared in a civil matter in front ,¡ and was the result of a "bad hair day,'1 i the back while they're pleasantly of one of the judges of the Third District the vehicle used to express it was not. greeting you with a handshake." I Court, who had granted Summary The splenetic and poorly drafted letter have found that many that fit this Judgment to our opponent, who was should have been tabled. description knowingly misrepresent the represented by Michael Mohrman of I also want to apologize to all the law and the facts, do not answer calls, Richards, Brandt, Miller & Nelson. I practicing retarded monkeys who are unnecessarily badger clients, do not felt, and the judge ultimately concurred, members of the Utah Bar and indicate grant any reasonable concessions, sched- that summary judgment had been that my reference to them was unwar- ule dates without any consultation, and inappropriately granted. I filed a Rule ranted. To allay some of your writers' are very condescending and over- 59 motion for a new triaL. During a hear- (I am sure heartfelt) concernsi be bearing. Perhaps I possess a persecu- ing on the matter, the judge expressed aware that I do have a mother and I tion complex and I am the one that has her view that Rule 59 was not the am very interested in the personality been totally at fault for this perception, proper mechanism to bring this issue transplant that was alluded to in one of but I would be interested in knowing back into court. During the subsequent your articles. Where can I obtain one? from your readers if they have experi- hearing, Mr. Mohrman informed the Moreover, although the suggested enced the same. I would also like to court that he had researched the issue $80.00 of Valium a month has been know if you would give equal time to following the last hearing, and, much as ineffective, I have found that a steady such "uncivil" behavior in your publica- he would have liked to have it be dose of Prozac, an increase in my tion instead of merely airing the obvious. otherwise, Rule 59 was in fact the earning capacity, and several deep In parting, while i will admit that I appropriate mechanism. Mr. Mohrman breaths before dealing with conde- am one of the offenders in need of provided the court with several cita- scending and equally obnoxious fellow direction, I would again emphasize tions of cases supporting my position. attorneysi have substantially curbed my that I appreciate the efforts being While, in theory, we all know that i desire to resort to incivility. (Not to "? made to promote civility among Rule 3,3(a)(3) of the Rules of Profes- mention the possibility of being members of the Bar, and I reiterate my sional Conduct requires us to disclose published again.) * commitment to better regulate my such precedent to the court, my Back again to a more serious note, behavior and communications. observation is that the rule is more I am an avid reader of Voir Dire and often honored in the breach than in the other articles that are put out by the Loren M. Lambert aka Jeffrey E.R. King following. In my book, Mr. Mohrman is Bar and want you to know that I find truly a "Civil Litigator" who ought to be your articles instructive and very recognized as such. persuasive. I am also encouraged by Dear Mr. Carney: the admission that those on your civility Thank you for your Report of the committee recognized that they have Civility Committee in Voir Dire. I Robert H. Wilde been uncivil at times in their past. Their recently photocopied it and included it admissions give me hope that we all with a Motion for Protective Order to can do better, and I hereby make a opposing counsel, who had been so commitment to do so. thoughtful as to schedule a deposition

* This paragraph is not to be taken seriously,

VOIR DIRE WINTER 1996.11 -,

VO iNT /COD NTE RPO ¡NT MANDATORY PRISON SENTENCES

Why Minimum Mandatory Sentences Should Be Repealed

by Judge Bruce S. Jenkins

A young man, married, with three pocket. About $600 is passed. He is A drug event. The defendants are children and one on the way. Passive followed into the parking lot and sub- charged with distribution. Split sovereign personality. A little on the dull side. dued by local police offcers who were interests-state and federaL. One defen- (What Rumpole would call "of the called while the event was in progress. dant processed in state court. Sentenced humdrum persuasion.") Supportive wife, No one is harmed. The Federal Reserve, to eight days. The other in federal court,

Influenced by orators on the Federal which manufactures money, hasn't lost with a potential of twenty-one years. Reserve system, he resolves to rob a anything. He is charged with bank rob- Another drug event. Principal pro- f bank. He and his wife pray, seeking a bery and the use of a gun. Had he only vides on-going information. No charges .. sign that if his plan is wrong in God's robbed the bank, he may have avoided brought. Principal put on government sight, they will be told. No sign is given. a lengthy prison term, but the gun in. his payrolL. Lesser figures charged, con-

She drives him to a country bank. He pocket was worth a minimum of five years. victed and, depending on the quantities .¡ goes to the loan department and gives A Mexican alien. Charged with drug of drugs and weapons involved,. sen- the officer a note asking for money. The and weapons violations. Subject to tenced to anywhere from four months to note threatens. He has a gun in his deportation after service of his sentence. twenty years. Principal remains free and Early deportation or the exploration of on the government payrolL. incarceration in Mexico through a treaty These examples point up some of the Judge Bruce S. Jenkins is a senior iudge of the United States District Court for the District of Utah. is desirable but not possible because of a problems with minimum mandatory This article is adapted from remarks given to the minimum mandatory sentence. sentenci ng.1 Federal Judges Association.

1 Although my topic is minimum mandatory sentencing, the rationale for repeal- sentences do, In fact, Judge Wilkins, the Chairman of the United States Sentencing ing minimum mandatory sentences also applies to the mandatory nature of Commission, has suggested that minimum mandatory sentences "are philosoph. sentences under the federal sentencing guidelines, While rigid, however, the ically at odds" with sentencing guidelines and that "most of the problems alleged sentencing guidelines do not impose the same, inflexible limits minimum mandatory to stem from the guidelines can more properly be traced to mandatory minimum

12 . v 0 I R D IRE WIN T E R I 9 9 6 1. Minimum mandatory sentenc- genuine sorrow and repentance, a high minimum mandatory sentences, I am not ing is unscientific and ilogical. The probability of future good conduct, a advocating "the opening of the prison to process runs backwards. Minimum man- supportive family or supportive commu- them that are bound."7 But not every datory sentencing provides an answer nity are simply of no moment. Punishment defendant sentenced to a minimum man- before the specific conduct, context, per- is the policy. Rehabilitation is forgotten. datory term needs, to serve that term to sons, mental state, provocation, or other We don't have a unified system with achieve the legitimate goals of the crim- aggravating or mitigating factors are consistent social goals. We have several inal justice system. Even if the repeal of adequately defined. This is like asking an mandatory minimum sentences only saved accountant to give his bottom line before . two million dollars a year instead of two he has ever examined the books. Unlike billion, think of the good that could be the common-law tradition, which applies inimum mandatory done with that money. the law (major premise) to the facts sentencing starts with the And the real costs-the social costs- of minimum mandatory sentences are (minor premise) to reach a conclusion, conclusion before it knows "" much greater than just the cost of ware- minimum mandatory sentencing starts all the fact. with the conclusion (the sentence), before housing prisoners. Take our bank robber it knows all the relevant facts. . in the first example I gave. He was sen- ., tenced to thirty days on the substantive 2. Minimum mandatory sentenc- systems with social goals and the means count and five years on the mandatory ing is hopelessly in conflict with to achieve them in perpetual conflict. gun count. The result? A wife on welfare; important goals of the criminal Minimum mandatory sentencing enshrines children (now four) on welfare. Probation justice system. The purported justifi- a particular theory of criminal justice cation for minimum mandatory sentences would have been a viable alternative for (punishment) at the expense of other such a defendant-no prior history, no is to protect the public. But that is only penological goals. genuine probability of violence in the one goal of our criminal justice system.2 3. Minimum mandatory sentenc- future, passive, sorrowful, compliant- Perhaps equally important is rehabilita- ing overburdens the available cor- and probation alone would have kept a tion. Indeed, our penal system is com- rectional resources. Overcrowded family together and off welfare. monly called a "corrections" system. prisons, the costs of new prison construc- Or take another recent example: a Minimum mandatory sentences ignore tion and remodeling and the ever- single father, the sole caretaker of his the corrective aspect of punishment. They expandi'1g maintenance costs of a minor son, a loving and conscientious make "correction," or rehabilitation, growing prison population result, in part, parent. The son is on his school's honor much more difficult, if not impossible in from the diminishment of the power of the roll and is a stabilizing influence in his many cases. Lengthy prison sentences pro- court to select non-prison alternatives. In father's life. Father addicted to marijuana. duce career prisoners, not useful mem- 1985, when the federal sentencing He grows it for his own use. When bers of society. Rehabilitation is only pos- guidelines were initiated, the federal confronted by law enforcement agents, sible through what one scholar has called prison population was 36,000. Seven he cooperates fully. He shows them his "the individualization of punishment."3 years later, it had virtually doubled-to personal stash and consents to a search For example, perhaps one of the best 71,000.5 The costs of housing these of his house. The search turns up a ,22 indicators of potential recidivism is family prisoners are staggering. It now costs calibre rifle with a homemade silencer I support, yet minimum mandatory sen- about $30,000 per year to house a made out of old toilet paper tubes and f tences, like the federal sentencing guide- federal inmate~roughly the cost of a stuffing from old stuffed animals. If the lines, "start from the premise that '(~amily Harvard education.6 That's $2.13 billion ties and responsibilities. . . are not ordi- father is incarcerated, the son will stay (71,000 x $30,000) every year in with the father's stepson, who is in his or narily relevant. . . .' "4 For a defendant taxpayer dollars. Admittedly, not all that early twenties and never finished high convicted of a crime carrying a minimum money could be saved by repealing mandatory sentence, prior good conduct, schooL. The father is placed on proba-

3See Raymond Solei statutes." William W Wilkins, Jr., Mand~tory Minimum Penalties, 5 Fed, Sentenc- lies, THE INDIVIDUALIZATION Of PUNISHMENT (Rachel Szold ing Rep, 201, 201 IJan./Feb, 1993). The Sentencing Commission has recom- Jawstrowtrans"1913), mended the repeal of minimum mandatory sentences on the federal level, as has 4United States v. Webb, 49 F.3d 636, 638 (10th Cir. 1995) (quoting U,S,S.G, the Federal Court Study Committee. The Federal Judges Association has joined in § 5H1.6), the recommendation, 5See Abner J. Mikva, It's Time to "Unfix" the Criminal Justice System, 20 2Congress has identified the following functions punishment is meant to serve HASTINGS CONST, L.Q. 825, 829 (1993). in the federal system:"to reflect the seriousness of the offense, to promote respect for 6As former Judge Mikva noted, "while one could argue about which institution the law, and to provide just punishment for the offense"; "to afford adequate deter- inflicts more harm on its inmates, Harvard is not paid for with taxpayer dollars," Id. rence to criminal conduct"; "to protect the public from further crimes of the defen- 71saiah 61: 1. dant"; "to provide the defendant with needed. . , correctional treatment"; and "to provide restitution to any victims of the offense."See 18 U.S.c. § 3553(0)(21, (7).

v 0 I R D IRE WIN T E R I 9 9 6 . 13 r ~

.1,(I I tion, but his sentence is reversed on 1" Minimum mandatory sentencing does review with respect to individual charg- appeal, with instructions to sentence not eliminate discretion. It shifts it to the ing decisions. Moreover, no coherent within the prescribed guideline range of prosecution. The outcome is determined program of legislative oversight of the I: twenty-seven to thirty-three months. The i, by the charge. For this reason, the charg- administration of minimum mandatory son begins to have difficulties at school.8 i ing process becomes highly important. sentencing statutes currently exists. i 4. Minimum mandatory sentenc. Yet there is no public oversight of the i The prosecutor has a built-in conflict. ing produces arbitrary and dispar- process of selecting the outcome in a A judge cannot be both judge and prose- ate results. The well-intentioned legis- particular case, no judicial tailoring of cutor, but a prosecutor can in essence lative effort to achieve uniformity and the result to the circumstances of the perform both functions. When a judge evenhandedness, as applied, does not case. The results can be just as arbitrary has a conflict, he can recuse himself, but eliminate disparity. If anything, it merely and disparate as sentencing results under there is no mechanism for a prosecutor encourages its concealment. indeterminate sentencing. As Judge who is called on to be both prosecutor Disparity results when the same and judge to get off the case. His desires consequence is assigned to very different .. are not subject to public scrutiny or to the events. Indeed, the Chairman of the inimum mandatory neutral balance and oversight of a coor- United States Sentencing Commission sentencing does not dinate branch of government. The concen- has criticized mandatory minimum sen- eliminate discretion. It shifts tration of the charging and sentencing tences as having "the tendency to skew it to the prosecutio powers in the Executive Branch is an open punishment levels by sometimes produc- invitation to manipulation and corruption. ing unwarranted uniformity. "9 In drug .. When we talk of mandatory sentenc- cases, for example, minimum mandatory Wilkins, the Chairman of the Sentencing ing, we are talking about power, pro- sentence statutes impose lengthy prison Commission, recognized, mandatory cess, method, mission-in short, about terms based on the amount and type of minimum sentences "often apply on a hit the structure and function of government drug involved, without accounting for the or miss basis, depending on how prose- in trying to deal rationally with criminal offender's actual level of involvement in cutorial charging discretion is exer- action and criminal consequence. We the distribution system, cised."lo At least one federal district have been warned from the beginning DIsparity in sentencing may also arise court has determined that, in a series of about the abuses that can arise from the from the decision to prosecute some prosecutions, the United States Attorney's concentration of governmental power. participants in the same criminal event in Office for that district had brought dis- The principle of fractured power, our different systems. Some may be charged proportionately harsher charges against great experiment with fractured power, is in the federal forum, while others may be male drug couriers than as against female found in that most fundamental of docu- charged in the state system. The two drug couriers engaged in substantially ments-the Constitution. We find there a systems do not provide identical punish- similar conduct. general expression of role and of the ments for the same event. One may Similarly, under the federal system, relationship of the three great depart- impose a minimum mandatory sentence only the prosecutor has discretion to seek ments. The current scheme of minimum where the other does not. Statistical a departure below the mandatory, or mandatory sentences ignores the wisdom surveys of federal sentencing routinely guideline, range based upon "substantial of the Founding Fathers. overlook this source of disparity. assistance," and that discretion is unre- 6. Minimum mandatory sentenc. 5. Minimum mandatory sentenc. viewable. Recently gathered data sug- ing does away with the rational ing leads to a, dangerous concen- gest at least some racial disparity in process of judgment. The usual tration of power in the, Executive departures sought by federal prosecutors. rational process requires the exercise of Branch. Minimum mandatory sentenc- One may arguèthat a prosecutor has judgment. It requires that information be ing upsets the traditional division of always had discretion in charging. That gathered first before an answer, depen- power among the three great branches is true, but he has not always had control dent on such information, can be given. of government by concentrating the over the penal consequence, as he often Statutes should be written to do what i power to charge, prosecute, and fix the does now. statutes do best: define standards of sentence in one branch-the Executive. , i With minimum mandatory sentences, conduct applicable to all. Legislatures The opportunity of the Judicial Branch to 'I public oversight of the real sentencing should make policy, but they are ill- oversee and balance out arbitrary action decision-the charging decision-is non- equipped to make micro-judgments. A I by the Executive is diminished. existent. There is no independent judicial criminal statute can define the standard

8See United States v. Webb, 49 F.3d 636 (10th Cir. 1995), I 9William W. Wilkins, Jr., supra note i, at 201 (emphasis added), l0ld

14. v 0 I R D IRE WIN T E R I 99 6 of conduct and the elements of the that the application of judgment by a differences. The neutral magistrate, the offense. In a sense, however, every vio- trained jurist after fact-gathering in full judge, has no power to consider the lation of a statute is different because of public view, subject to further review on differences and tailor the punishment to the make-up of the persons involved and appeal, is a process far superior to the fit the crime. Everyone is given the same the context. Each criminal offense is fact- mechanical application of a predeter- size suit off the rack. "One size fits alL." intensive. It depends on context, mental + No alterations ollowed. state, capacity, provocation, sequence, Judging-the hands-on process of aggravating and mitigating factors. A 7he application of comparing and deciding the particular statute cannot anticipate all of these judgment by a trained jurist consequences of particular events- factors. It cannot anticipate the actual after fact-gathering in full should be left to those best situated to conduct of a given defendant in a given public view, subject to judge, those in whom both the Consti- situation. The statute cannot define or tuion and Congress have invested the further review on appeal, i describe the event. Yet, consequences judicial power of the United States-the 1 can fairly be measured only in terms of is a process far superior courts. The court is better equipped than the event and its attendant circumstances. either of the other branches to exercise i to the mechanical , In a sense, every violation of a statute is application of a judgment as to sentencing of a particular ..I different because of the make-up of the defendant under a particular set of facts. i predetermined outco persons, the context, the sequence of Deference to process and deference events. Mandating a prescribed conse- + to the traditional concepts of federalism quence, a punishment, before the myriad mined outcome. When determinate sen- support the repeal of minimum manda- of individualized fact questions have tencing is mandated, however, judicial tory sentences, The search for even- even arisen, ignores the critical factors discretion is nonexistent. The court applies handedness is best served when the that must be taken into account in fitting the sentence mechanically. Allocution is punishment can be tailored to fit the par- punishment to the event. merely a rituaL. The essential discretion- ticular crime, with due consideration for If judgment is fact-intensive, with due ary choices have been made, either by all of the individual differences. That is regard for individual differences, then the the legislature or by the prosecutor in best done in the open courtroom, on the court is better equipped than either of the bringing the charge. The legislature has record, subject to appellate review and other branches to exercise judgment as both defined the crime and mandated the public oversight. A common answer that to a particular defendant enmeshed in a consequence. Events with genuinely ignores the differences only institution- particular factual context with the myriad important factual differences are given alizes disparity. 1- of differences that always exist. I submit predetermined answers that ignore the

v 0 I RD IRE WIN T E R 1996 . 15 The Case for Mandatory Prison Sentences

by Brent D. Ward

Mandatory prison sentences have sentences make good sense for many the most serious sex offenders, there is no received a bad rap in some quarters serious crimes. better way right now to give the public lately. Of course, criminals and defense Reason number one. Mandatory the protection it needs. Fortunately, there is a growing prospect that in the next attorneys have never liked them-for incarceration incapacitates the offender. r: To the extent the offense is one the session the Legislature will appropriate ~; obvious reasons. Judges, too, typically $ funds needed to give these offenders line up against them as an encroachment offender is likely to repeat, mandatory ~ i f on their decisions. sentencing gives the general population treatment while they are in prison. absolute protection from that offender Reason number two. There is no But many people were surprised last :;, winter when the Utah State Legislature during the period of incarceration. This is greater deterrent to crime than justice that f; especially important in the case of is both swift and sure. Well, one out of ol precipitously gutted Utah's mandatory I; il sentences for sex crimes against children. serious crimes, such as the seven crimes two is not bad. Swift justice still eludes us, i The Legislature later had second thoughts, that carry mandatory sentences under but we can make sure that "if you do the ..: w and postponed the effective date of its Utah's Child Kidnapping and Sexual crime, you do the time." The absolute certainty of a prison repealer to allow for study by the Utah Abuse Act of 1983: aggravated kidnap- Sentencing Commission. The Sentencing ping, aggravated sexual abuse, rape of sentence may not always show up when a child, sodomy of a child, aggravated academicians study deterrent effects, and Commission has now finished its work, ~¡ is not as good as a strong-willed mother, r: and recommended retaining the manda- sexual abuse of a child, object rape of a ~" tory sentences. It is to be hoped that the child, and kidnapping of a child. Manda- but common sense says that a crime that Legislature will follow suit. tory prison terms take sex offenders off brings incarceration every time is a crime f t Mandatory sentences have become the streets, among them people who less likely to be committed. If a crime is treated lightly, either because of lax laws more common in recent years. All federal have an exclusive sexual attraction to ¡ or lax enforcement, the incidence of that h sentences are now mandatory in the children and who are likely to attack a; crime generally goes up. For example, ~~ sense that federal judges must adhere to other children if placed on probation. i ~ when speed limits are not enforced, speed- if sentencing guidelines recommended by + the United States Sentencing Commission ing violations increase. On the other hand, and approved by Congress. In most andatory sentencing not there are few things like a sure prison sentence to make a person think twice. felony cases, these guidelines leave the only makes us feel safer, sentencing judge no choice but to give it actually makes us safi Reason number three. Mandatory sentences make the statement that some jail time. + Moreover, the sentence pronounced wrongs are so beyond the pale that in a federal case is very nearly the sen- Mandatory sentencing not only society will not tolerate them in any tence served, because (1) the concept of makes us feel safer, it actually makes us degree; no equivocation, no hemming parole, and with it the United States safer. On the average, a pedophile and hawing, and no hand-wringing. "Do Parole Commission, has been abolished assaults children sixty times before being not pass Go-go directly to jaiL." This by Congress; and (2) the effect of "good caught. Every day he is off the streets is crime is so egregious that severe punish- time" has been severely curtailed. a safer day for the public. He can't hurt ment-certain incarceration-is the most Likewise, many states are opting more anybody, because he can't get out. fitting punishment in every case. often for mandatory prison sentences, To prove the point, more sex offend- This kind of emphatic statement is especially for crimes that are anathema ers have been going to prison in Utah important when it becomes necessary to to the public, including child sex abuse since mandatory sentencing was adopted. address a persistent threat to the basic crimes, drug crimes, and crimes committed In 1980, they made up nearly eleven fabric of our society, as in the case of with the aid of a firearm. percent of Utah's prison population. In crimes committed with a firearm, sex Of course, popularity does not 1994, they made up twenty-five percent offenses against children, and drug trafficking. In those cases, there can be always signal good policy. Are there of the total inmate population. The actual other reasons for mandatory prison sen- number of sex offenders in prison in Utah no argument that a prison term is not tences? Certainly there are. Mandatory has increased six times, today requiring commensurate with the severity of the more than 750 beds. That is a dramatic offense. The only question may be, "Is the increase. It is a tragedy to have to "ware- prison term long enough?" Mr. Ward is a partner of the Salt Lake City law firm Parry Murray Ward & Moxley. house" people this way, but in the case of

16. v 0 I R D IRE WIN T E R 1 99 6 An emphatic statement is especially sentencing. Left to their own discretion, business associates, and community important in the case of sex crimes different judges sentencing different leaders. Meanwhile, if there has been a against children. Without mandatory people for the same conduct, where all of plea bargain, the judge never sees the prison sentences, few of these offenses the factors relevant to sentencing are victims or hears the victims' family, are ever reported (perhaps one in ten), substantially the same, are likely to hand friends, business associates, or contacts few of them are ever prosecuted, and down different sentences. Some will give in high places. The full impact of the few of those prosecuted result in prison probation; others will give jail time. crime can be lost amid an avalanche of terms. Even today, when reporting is up Mandatory prison sentences have the support for the offender. The result can be dramatically from fifteen years ago, out advantage of reducing this disparity. At an anomalous sentence of probation. By of one hundred reported cases of child the same time, they promote public adopting mandatory prison sentences for sexual abuse in Utah, only twenty are confidence in the criminal justice system. an offense, the Legislature reduces the prosecuted at alL. Of those twenty, only .. possibility that a judge will be persuaded five receive prison terms and only one to give probation, because the Legisla- receives a mandatory prison term. Every andatory sentences "" ture has decided that prison is appropri- criminal case that actually reaches the promote uniformity and ate every time. sentencing phase, therefore, must carry a equality in sentencin There is nothing wrong with a legis- strong message, .,. .. lature making a policy judgment to limit Reason number four. Mandatory judicial discretion where one or more of sentences promote uniformity and A related, but more subtle, problem is the above reasons apply. Nothing is sacro- equality in sentencing. It doesn't matter the ability of some defendants to win sanct about absolute judicial discretion. It whether you are the mayor or the janitor. probation partly because of the sym- is well within the legislative sphere to Nobody is going to get special treat- pathy they are able to evoke as the judge decide that the legislative purposes of ment. Money doesn't matter, status reviews their cases, sees the defendants' proscribing certain criminal conduct are doesn't matter, connections don't matter, families, hears the pleas of the defen- best served by prescribing a prison sen- slick defense attorneys don't matter. dants and their defense lawyers, and tence in every case. When we the public The criminal justice system comes in reviews letters procured by the defen- say we favòr mandatory prison sentences for heavy criticism for disparity in dants from family members, friends, for some crimes, we are right. .-

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v 0 I R D IRE WIN T E R I 99 6 . 17 --

rRACTICE POINTERS

Trial Basics: Using Exhibits

by Francis J. Carney

Getting exhibits into evidence without 5. Get a ruling on admissibility. what the rules are from the bailiff and the embarrassing yourself is a rite of pas- 6. Use the exhibit. court clerk. They'll be happy to fill you in. sage for the trial lawyer. The naturally timid ones, like me, had nightmares of 7. Publish the exhibit to the jury, if Dos and Don'ts on Exhibits necessary. t, being chased out of court by a hooting 1 . Do pre-mark exhibits. i jury, just as I was chased out of my first Here's how it works in practice. Judges hate having court time wasted confession by mean old Father Boland. You've pre-marked the exhibit at the on lawyers who fumble around getting At seven years old, and meeting the break, given copies to opposing counsel exhibits marked while the witness and the t i forbidding priest for the first time, I and to the judge, and now approach the jury are waiting. Ideally, counsel will nervously and unwisely forgot my well- witness: identify all exhibits before triaL. There's memorized prayers in the Catholic dark- You: "Mr. Witness, J show you Exhibit no reason you cannot also agree on pre- ness of the confessional, and was sternly 8 and ask if you've seen it before." marking all proposed exhibits and exchang- bade by him to leave and never return Witness: "Yes. This is a blow-up of the ing copies. Even if you can't mark an until I properly learned my prayers. photograph that J took of my car. " exhibit before trial, get it marked by the The first time that you stand before clerk during a break. You don't need the You: "And does Exhibit 8 fairly and court and jury, and those ritual incan- judge's permission or the consent ofoppos- accurately depict your car on the day tations effortlessly flow from your mouth, ing counsel; just do it. of the crash?" is the moment you think, "Hey, I can do 2. Do reach stipulations on exhibits this. This is easy. Maybe I didn't make a Witness: "Yes, it does. " before trial. horrible mistake in going to law school You: "We offer Exhibit 8." No one should make an opponent after all." call a records custodian to establish the Court: "Any objection?" There's really no great mystery to it. authenticity of records, unless there is a It's a simple mechanical skill that's intim- Other lawyer: "No." legitimate issue about it. The judge and idating for some of us only because we Court: "Exhibit 8 is received." everyone else will resent this unprofes- weren't taught how to do it in law school, sional waste of time. Laying foundations You got the exhibit into evidence and and we haven't had enough chances to for exhibits can be time-consuming and it practice since then. Here are the basic now you can use it. No more fussing about is needed.2 Some judges take bores the jury. Get stipulations on steps for admitting any exhibit: 1 foundations before triaL. offense if a lawyer approaches a witness Some stock pretrial orders provide 1. Clerk marks the exhibit. without asking for permission. Some find that all objections to "foundation" are 2. Show the exhibit to opposing it annoying for a lawyer to continually waived unless made before triaL. If this is counseL. bother them with asking. Despite what not the case, ask for a stipulation on you'veseen on lV., few judges will allow ..i 3. Lay the foundation. foundation for exhibits. There are a few a lawyer to hover over a witness during lawyers too inexperienced or obstinate to 4. Offer the exhibit. examination. But the level of formality stipulate to foundation before trial, and varies in every court. If you haven't tried with those your best bet is to raise the Mr. Carney is a Director of the Salt Lake City law a case before this judge, ask in advance , firm Suiller, Axland & Hanson, issue at the pretrial conference.

lOne usually clear-thinking author suggests a mnemonic: "MOASIE," for Court: "Yes, the clerk will so mark the photograph," "Mark-Opponent-Approach-Witness-Show-Testimony-Evidence," Keith Evans, THE Defense lawyer: "Your honor, may the record reflect that the clerk has marked COMMON SENSE RULES OF TRIAL ADVOCACY 121 (19941."CSLOGUP" works just as this photograph as Exhibit 8 for identification purposes only?" welL. 2Courts in other places sometimes follow more stilted procedures: Court: "Yes, it may. " Defense lawyer: "Your honor, may the record reflect that I am showing the Defense lawyer: "Your honor, may the clerk mark this blown-up photograph as photograph marked as Exhibit 8 for identification purposes only to Plaintiffs Exhibit 8 for identification purposes only?" counsel?"

!I,,'1'1 18 . v 0 I R D IRE WIN T E R 1 9 9 6

II 3. Don't stipulate on exhibits without Rule 104 of the Utah and the federal unless there's a question on the ,exhibit's understanding what you're stipulating to. evidence rules provides that preliminary ultimate admissibility. Stipulations are marvelous, but know questions of admissibility are determined 6. Do give the judge a copy of all what you're agreeing to. There's a by the court, and in making that deter- exhibits. dramatic difference in stipulating to the mination the court is not bound by the rules Don't make a judge ask to see an authenticity of an exhibit, stipulating to its of evidence, except as to those regarding exhibit before ruling on its admissibility. foundation, and stipulating to its admissibility. privileges. Therefore, you can and should The judge, as a courtesy, should have a Suppose plaintiff was admitted to the lead the witness when laying the foundation copy of whatever documents the witness Wasatch Mental Health Center for treat- for an exhibit. Don't be buffaloed by and the lawyers have. ment of depression, and the defense wants "leading the witness" objections on any Ideally, the court and opposing coun- to get those records before the jury. To foundational matter, either as to an exhibit sel have identical exhibit binders con- plaintiffs counsel, that treatment is irrelevant. or as to the qualifications of a witness. taining all of your pre-marked exhibits. You're plaintiffs attorney, and are 5. Don't show the jury exhibits, or refer to (By the way, exhibits don't need to be asked to stipulate to the "foundation" on them before they have been received. marked in order, and you can always ot the mental health records. You ought to .. add an unexpected one in the middle of trial, even though it will be out of order.) know that stipulating to "foundation" means u can and should lead the different things to different people. This isn't always possible. When it's not, To some, it means that you are stip- witness when laying the hand a copy to .the clerk to pass up to the ulating to the authenticity of the medical foundation for an exhib judge on your way to the witness chair. records; that is, that the records really are .. 7. Do make copies of all exhibits for the official records from the Wasatch other counsel. Mental Health Center, and the records It's improper to display any exhibit in Counsel is entitled to see the exhibit custodian does not need to come in to view of the jury before it has been before you examine the witness on it. testify to that fact. admitted. Keep your eyes open, and insist Don't be embarrassed at the start of your To others, it means you are also stipu- that your adversary keep all exhibits, examination by the court's ordering you lating to relevancy; that is, that the records especially blow-ups and models, out of to bring the exhibit back from the witness tend to prove or disprove a fact of the jury's sight until then. You will find stand to show opposing counseL. Do it consequence to the action. Don't be afraid amateurs and not-so-amateurs out there right the first time. of appearing stupid: ask what "founda- who insist on being cute in this fashion. The usual way is to hand it to counsel tion" is taken to mean. Most of the time Put a stop to it. in open court. Which means that you you'll find the other side doesn't under- It's also a common error to ask a wit- stand and wait while opposing counsel stand it either. ness about the substance of a document takes his time to examine the document. On the other hand, stipulating to the before it's been admitted. That's objec- The better way is to hand him his own admissibility of the medical records means tionable, and a sloppy practice. Get the copy and use another for the witness. that the records will be admitted without document admitted before getting into its And the best way is to have all exhibits any foundation and may be used for all contents. pre-marked in a binder, with a copy appropriate purposes in triaL. That is, Attorneys want to keep their own provided before trial to the court and to counsel can use them in direct examina- blow-ups in view of the jury, even after opposing counseL. (Unless, of course, tion, cross examination, argument, and their side is finished. Don't allow it. When there's a surprise value in the exhibit that they will go into the jury room. it's your turn to speak, make the stage you don't want to give up.) If I were the plaintiffs attorney, I would your own. Erase the blackboard. Turn 8. Don't "move to admit" exhibits stipulate on authentici~ I wouldn't stipu- those blow-ups away from the jury. Flip into evidence. late on foundation without further expla- over the big pad. Then, and only then, speak. To many judges, this is like fingernails " nation, and I would never stipulate to If you're going to use an exhibit in on the blackboard. Exhibits are offered admissibility. your opening statement, clear it with oppos- and received. A "motion to admit" an 4. Do understand Rule 104. ing counseL. If she objects, raise it with exhibit is wrong and confusing. Just say, the judge. It normally will be allowed, "I offer Exhibit 5/' not "I move to admit Exhibit 5 into evidence."

Court: "Yes, it may." Defense lawyer: "Your honor, the defendant offers Exhibit 8 for identification Defense lawyer: "Your honor, may I approach the witness?" purposes only into evidence as defendant's Exhibit 8 and requests that the clerk strike the designation of Exhibit 8 for identification purposes only and designate it Defense lawyer: "Mr. Witness, I am showing you what has been marked as as Defendant's Exhibit 8." Exhibit 8 for identification purposes only. Have you seen this before? Court: "Any objection?" Mr. Witness: "Yes, this is a blow-up of the photograph that I took of my car the Plaintiffs lawyer: "No," day after the accident." Defense lawyer: "And does Exhibit 8 for identification purposes only accurately Court: "Exhibit 8 for identification purposes only is received as Defendant's depict the conditon of your automobile on that occasion?" Exhibit 8. The clerk shall redesignate the exhibit accordingly." This sort of hypertechnical mumbo jumbo is unnecessary. Skip the obsequious- Mr. Witness: "Yes, it does," ness and the incantations, and get to the point,

VOIR D IRE WIN T E R I 9 9 6 . 19 r

9. Do speak for the record. Being lawyers, we can't say "show" e. Use an overhead projector. 'Ii i Refer to exhibits by their proper iden- as everyone else would. But that's what it This is probably the most effective way to ii tification numbers or letters. Don't say, means to "publish" an exhibit. Whatever show large numbers of documents, such "this contract," or "that photograph." It you want to call it, show the jury the as medical records, although some hold /1: makes for work by an appellate judge exhibit. Anything the jury can't see is for the looseleaf binder approach. The attempting to understand the transcript. likely to be ignored or misunderstood. So technology is simple. The downside is f Say instead, "the photograph marked as don't just tell them-always show them. dimming the lights and finding a place Exhibit 7," or simply "Exhibit 7." These are your alternatives: for the screen-always a problem in the I: When a witness makes a vague refer- I round courtrooms of the Third District. Ii ence to an exhibit, clarify it for the .. You'll need a laser pointer for yourself record. "When you said 'this letter' you n exhibit) the jury can't see and for the witness, as it is next to impos- were referring to Exhibit 7, and when is likely to be ignored or sible to point things out clearly with your ii you said 'this photograph' you were finger. And, please, learn how to use the i referring to Exhibit 8, correct?" Similarly, misunderstoo overhead before you step into court. when a witness refers to a part of an .. f. There are many new high-tech exhibit, clarify the reference for the rec- computer projection devices coming onto a. Do nothing. Examine the ord: "When you say 'right here in the the market. One provides simultaneous witness on the document and don't show contract,' you are referring to the second projection of any exhibit on monitors for it to the jury. A confused and bored jury paragraph on page 2 of Exhibit 8, correct?" the lawyers, the witness, and the jury, via is the likely result. 10. Do keep your own exhibit list. a laptop computer. In Utah, it's unlikely b. After the witness testifies ~-;, Exhibits are marked and tracked by that level of technology will ever receive about the document, ask the court if you r the court clerk. (Not by the reporter, widespread use unless the clients happen rJ may "publish the exhibit" to the jury, and contrary to deposition practice.) The to pay for it.4 then hand it to the closest juror. One by clerk keeps a list of all marked exhibits, 13. Don't allow any exhibit into the one, they will each review the exhibit as well as physical custody of those that jury room without your inspection. while you, the witness, counsel, and the have been offered. Keep your own list as Review the exhibits after closing court wait. You've lost control over your li you go along: exhibit number, descrip- argument is finished and the jury is sent stage, and wasted everyone's time. tion, offered, received, and comments. out, to make sure that the jury gets only ii c. Make a separate copy of the Occasionally, compare the clerk's list what it's supposed to get. There will be a exhibit for each juror, and hand them out with your own to make certain that you pile of documents, poster boards, photo- : I while the witness is testifying. This is ~ aren't missing anything. graphs, models, and other exhibits. It ~ better, but the problem is that whatever 11. Do review your exhibits before may be late, and you will be exhausted. ~ closing your case. you give them to read, they will. And 11 The temptation is to delegate this task to ~ while you're trying to focus on para- When you've finished with your last a paralegaL. Don't. You need to take the graph 4 of the contract, one juror is witness, ask for a break. Get the clerk's time to carefully review what goes into reading paragraph 8, another is reading exhibit list. Review all the exhibits you the jury room from that pile. meant to offer, and make sure that you paragraph 2, and a third is studying the signatures. You've again lost control of Just because something is marked as did. Review all the exhibits you offered, an exhibit does not mean it goes into the the action. and make sure you received a ruling. jury room. For example, the jury does not d. Make a blow-up readable at Then rest your case. Finding an exhibit get to see depositions or trial transcripts, after you've closed that wasn't received ten feet. (You might be surprised at the number of "blow-ups" that are unread- although they will ask for them. See UTAH ~:~ isn't pleasant. R. CiY. P. 47(m); Shoreline Dev., Inc. v. able to someone sitting five feet away.) Some lawyers try to cover this by Utah County 835 P.2d 207, 210 (Ut. Ct. The downside to this is the cost of com- making a statement before resting like, App. 1992). They don't get counsel's ~, mercial blow-ups.3 Be restrained on the "We offer all of the exhibits and specifi- chart scribbles made during argument. number of blow-ups you use, as they can cally offer any exhibits that weren't They don't get medical literature or get overwhelming. Bring your own received/' to which most judges will learned treatises, UTAH R. EYID. 803 (18), portable stand for them, and learn how rightly respond, "Huh?" they certainly don't get the pleadings, to set it up before you try it in court. 12. Do "publish" the exhibits to the jury nor do they see anything else that has not been offered and received. 1-

3Aboutthe best thousand dollars I ever spent was for a blow-up copier. All you might. On the other hand, most jurors who've actually been exposed to these do is insert the page, and a 4' x 5' blow-up comes out, which is then mounted on computer toys claim to have positive impressions. One sure thing is that a lawyer's posterboard. Quick, easy, and cheap. fumbling with unfamiliar equipment will be remembered. 4Excessive technology, especially if it's expensive, has a potential for leaving the wrong impression with the jury, iust as swarms of associates and other helpers

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v 0 I R D IRE WIN T E R I 9 9 6 . 21 Potential Tax Advantages of Gross Fee Arrangements

by Charles R. Brown

Depending on the circumstances, a Tax Court held that litigation costs when the commission check for the sale trial lawyer undertaking a matter for a incurred in a "gross fee" arrangement, finally arrives. client on a contingent fee basis may wish although more contingent than in a "net Regarding the Tax Court's holding to consider a "gross fee" contract instead fee" arrangement, would still constitute that if the costs paid by the law firm do of the more customary" net fee" contract. advances that ultimately would be repaid not constitute an "advance/' then the Under a "gross fee" arrangement, a law out of the recovery. In ruling against the "gross fee" arrangement must be a firm agrees to pay all litigation costs, but, taxpayer, the Tax Court also determined violation of the California Rules of upon recovery of a settlement or judg- that, as to the California practice, if a Professional Conduct, the United States ment, receives only a specified percen- "gross fee" arrangement does not con- Court of Appeals for the Ninth Circuit J tage of the recovery with no separate stitue an "advance to the c1ient/' it would distinguished the California rule from the 11' ¡f' reimbursement of costs advanced. This is violate the California Rules of Profes- District of Columbia Rules of Professional ~ &' in contrast to the more customary "net sional Conduct. That violation would Conduct (Rule 1.8(d) and comment (5) to t ß Wi fee" arrangement, where the firm agrees that ruleL which do not require the client "" .. ~ to advance all litigation costs, but, upon to remain ultimately liable for the ~~ recovery, receives the costs advanced in dera "gross fee" arrangement, expenses. The court also held that, even addition to the contingent fee, a law firm agrees to pay all ~.: if the "gross fee" arrangement violated i In a recent decision by the United the California Rules of Professional E'' litigation costs, but, upon ~¡ States Court of Appeals for the Ninth recovery of a settlement or judg- Responsibility, there was no evidence Circuit, an attorney licensed to practice concerning enforcement of the California ment, receives only a specified ~ in California and the District of Columbia rule that would cause it to rise to the level was allowed to deduct his share of the percentage of the recovery with of violation of "a law of the United litigation costs paid by his cash method no separate reimbursement States" or a "State law that is generally partnership pursuant to its "gross fee" of costs advanc enforced, which subjects the payor to a arrangement with the firm's clients. See , .. criminal penalty or the loss of a license or Boccardo v. Commissioner, 56 F.3d privilege to engage in a trade or t 1016 (9th Cir. 1995). In prior cases cause the expenditure to be non-deduc- business/' as proscribed by section I involving this issue, "net fee" arrangements tible under the provisions of section 162(c) of the Code. ~ were determined to be non-deductible 162(c) of the Code, which states: "No The ethical constraint and the section g "advances" or loans when paid, rather deduction shall be allowed for any 162(c) argument are not a problem for than deductible business expenses under payment. . . if the payment constitutes an attorneys licensed to practice in Utah. section 162 of the Internal Revenue Code . . . illegal payment under any law of the Specifically, Rule 1.8(e) of the Utah Rules of 1986 (the "Code"). See Boccardo v. United States, or under any law of a of Professional Conduct states as follows: Commissioner, 12 CI. Ct. 184 (1987); State. . . which subjects the payor to a "A lawyer shall not provide financial Burnett v. Commissioner; 356 F.2d 755 criminal penalty or the loss of license or assistance to a client in connection with ~ (5th Cir. 1966); Canelo v. Commissioner, privilege to engage in a trade or a pending or contemplated litigation, except: 447 F.2d 484 (9th Cir. 1971); John W. business." (1) a lawyer may advance court costs ~ r Herrick, 63 iC. 562 (1975). In reversing the Tax Court and and expenses of litigation, the repayment ~ ~, ~ ¡ì In the underlying United States Tax holding for the taxpayer, the Court of of which may be contingent upon the Court decision involving the taxpayer, Appeals accepted the taxpayer's argu- outcome of the matter." which was appealed to the United States ment that in a "gross fee" arrangement, The comments following the Utah rule " Court of Appeals for the Ninth Circuit, the payment of costs by the law firm is specifically state that "¡pJaragraph (e)(l) the Tax Court agreed with the Internal not an "advance" of the costs. The court eliminates the requirement that the client Revenue Service that litigation costs paid agreed that in a "gross fee" arrange- remains ultimately liable for such expenses." in a "gross fee" arrangement were not ment, the firm has no contractual right to This rule is precisely the same as the deductible in the year paid. See James R. reimbursement; the firm is no more reim- District of Columbia rule discussed by the ~ Boccardo, 65 iC.M. 2739 (1993). The bursed its expenses than a self-employed United States Court of Appeals for the ~ commissioned salesman is reimbursed for Ninth Circuit. ~ the travel costs incurred in making a sale Mr, Brown is a partner of the Salt Lake City law firm ~ Hunter & Brown, t~ ~

l~

22 . v 0 I R D IRE WIN T E R I 9 9 6 The I.R,S. can be expected to ing $45,000, including taxes. In a gross dollars in a "net fee" arrangement. continue to challenge the deductibility of "gross fee" arrangement, the law firm For example, assuming a recovery of litigation costs in "gross fee" arrange- will pay the $25,000 and deduct it in the $300,000, the law firm would recover its ments in jurisdictions outside of the Ninth year paid, with the result that the total costs advanced of $25,000, in addition Circuit, including Utah, under the theory cost is, in fact, $25,000. to a contingent fee of $100,000. In a that the costs are still "advanced" with In an unsuccessful case where the "gross fee" arrangement, the total some contingency of repayment. Never- costs are not fully recovered, the eco- amount recovered by the law firm would theless, the rationale of the Boccardo nomic cost to the law firm is substantially be limited to the contingent fee of decision is persuasive, and should con- worse under a "net fee" arrangement. $100,000. But a more sophisticated stitute "substantial authority" for taking The firm may not deduct the unrecovered analysis would determine that the extra the deduction on a tax return, in the costs until final resolution, and has lost recovery in the "net fee" arrangement is absence of an adverse decision on the .. not as disproportional as it appears, issue by the United States District Court once the lost earnings on the additional e lR.S. can be expected for the District of Utah or the United States taxes incurred in earlier years are

~ Court of Appeals for the Tenth Circuit. to continue to challenge the factored in. Assuming that the Boccardo holding deductibility of litigation A slight adjustment in the contingency j, is not rejected in Utah, what is its costs in gross fee' percentage may also compensate for the relevance to a Utah lawyer? As noted, arrangements. . . under the difference. For example, if, in the "gross the advantage to a "gross fee" contract is fee" contract, the contingent fee were that the costs may be deducted by the theory that the costs are still forty percent rather than thirty-three and law firm when paid, and will not have to 'advanced with some one-third percent, the law firm would be funded out of the after-tax dollars. contingency of repayme receive $120,000 in the year of recov- An example: Assume that the litiga- .. ery and could have deducted the tion costs total $25,000, and resolution $25,000 in expenses when paid. The of the case will not occur until four or five the use of the "time value" of the taxes client may retain more in a "gross fee" years after the case is undertaken. In a paid to fund the costs incurred in earlier arrangement at forty percent than a "net "net fee" arrangement, the law firm years. In a "gross fee" arrangement, the fee" arrangement at thirty-three and one- would have to fund the $25,000 out of payment of the costs and the deduction third percent, depending upon the after-tax dollars. Assuming a marginal occur in the same year. There is no loss amount of the costs. income tax rate of thirty-five percent, that of the use or the "time value" of the taxes Because of the tax advantages, a would result in a total expenditure exceed- that would have been paid under a "net "gross fee" arrangement may be more ing $35,000, including the taxes which fee" arrangement. economically advantageous, to both the must be paid on the income generated to If the contingent fee rate is the same client and the law firm, depending upon fund that expenditure. For heavy hitters in in both a "gross fee" and a "net fee" the circumstances, the predictability of the highest brackets, the marginal rate case, say thirty-three and one-third per- the costs, and the duration of the case. could exceed forty-five percent, which cent, and there is a successful recovery, .- could result in a total expenditure exceed- the law firm of course, will recover more

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Ii i VOiNT /COD NTERPOINr PROPOSED CHANGES IN MEDICAL MALPRACTICE LAW

Physician IJReforms" of the Medical Malpractice Laws in Utah - Don't Confuse Them with Facts, Their Minds Are Made Up

by Ralph L Dewsnup

chemotherapy that was four times the So-called IIreformsll in the law of med- fully scrutinized and analyzed before desired amount; or the woman who was ical malpractice are not doctors versus people realize, too late, that they have seriously burned and rendered sterile lawyers issues. Patients are the ones who been sold out. when she was negligently swabbed with are affected by the changes in law that .. have made it more difficult and expen- a concentrated acid solution 100 times lobbying for passage of stronger than the one she was supposed sive, and which may eventually make it to have received; or the family of the man impossible, to sue doctors. Such laws restrictive legislative proposals, who was negligently given incorrect have been advocated by the medical the medical industry has doses of blood thinners that killed him industry (doctors and their insurers), as succeeded in erecting more after he developed an uncontrollable brain ways to rein in the cost of, and improve barriers to the legal recourse hemorrhage. None of these people ever access to, health care. Well orchestrated public relations campaigns have turned of its victims than any other suspected that they would be victims of negligent medical care. It is important to public opinion against the victims of med- profession, vocation, or remember that medical malpractice can ical malpractice and cast the medical occupation in this sta happen to the people who least expect it. industry itself in the role of victim. Since .. The tort system has always operated all citizens who receive medical care are on the general premise that when a potential victims of medical negligence, Just about anyone's life can be ruined one person further IIreformsll in the tort system involv- by negligent medical care. Just ask the wrong is committed by ing medical malpractice should be care- man whose good leg was amputated by against another, there should be account- an inattentive physician; or the family of ability for the resulting injuries and the woman who received a fatal dose of damages. That philosophy sits well with Mr. Dewsnup is a shareholder of the Salt Lake City law firm Wilcox, Dewsnup & King.

24 . v 0 I R D IRE WIN T E R 1 9 9 6 people's basic sense of fairness and jus- bers of the legal profession, that there continued to pursue an agenda that has tice. But it has been under attack for the were crises which required immediate fed on newly announced "crises" when- past twenty years by the medical and action. A brief examination of some of ever the old ones seem to be losing steam. insurance industries, that seem single- those crises shows them to be more imag- The IJGlut of CaseslJ Crisis. One minded in their efforts to avoid respon- inary than reaL. of the next "crises" ballyhooed by the sibility and accountability to the very sponsors of malpractice "reform" was Cries of Crisis people they are supposed to serve. The that Utah courts were being inundated by erosion of the rights of victims of medical The IJlnsurance CrisislJ of the huge numbers of medical malpractice malpractice has been relentless, yet so 19705. One of the first "crises" that was lawsuits. This glut of suits supposedly was gradual that most people do not realize concocted to support passage of medical paralyzing the courts. But, according to how disparate the legal treatment of this malpractice reform legislation received data supplied by the Utah Court Admin- class of tort victims has become. .. istrator's Office, of the 38,760 cases In Utah, victims of medical malprac- filed in the state district courts in 1994, jomprehensive legislation tice have been handed a shorter (two only 1,928 were tort cases. And of those year) statute of limitations (Utah Code was passed in Utah, and cases, only ninety-four involved claims of Ann. § 78-14-4); a four year statute of elsewhere, on the basis of a medical malpractice. That makes medical repose (Utah Code Ann. § 78-14-4); the malpractice cases responsible for a tiny 'crisis' that never existe elimination of the collateral source rule .. fraction of one percent of all district court (Utah Code Ann. § 78-14-4.5); a require- filings. This is hardly a glut, considering ment that they give their doctors advance attention in the 1970s. Insurance com- the thousands of physicians, nurses, and notice of their intent to sue (Utah Code panies began raising malpractice insur- other medical professionals who are Ann. § 78-14-8); restrictions on their abil- ance premiums to exorbitant levels, licensed in Utah, and the hundreds of ity to claim they did not give informed claiming that skyrocketing claims pay- thousands of tests and procedures that consent to treatment (Utah Code Ann. § ments were causing them to lose money. they perform each year. 78-14-5); the preclusion of their ability to This gambit has now been exposed as a lest someone argue that the number bring claims for breach of oral promise, hoax perpetrated by the insurance indus- of cases actually filed in court is not a fair contract, warranty or guarantee (Utah try to make up for huge losses brought indication of the number of claims Code Ann. § 78-14-6); a prohibition about by bad investment decisions asserted, the legislative Auditor General against including specified damage during an era of rising interest rates. See of the State of Utah has provided some amounts in their complaints (Utah Code Jethro K. Lieberman, THE liTIGIOUS SOCIET helpful additional information. In January Ann. § 78-14-7); caps on non-economic 82-85 (1981). The Utah Supreme Court 1994, a performance audit of Medical damages (Utah Code Ann. § 78-14-7.1); recently said there was no basis for a Malpractice Prelitigation Panels disclosed ceilings on attorneys' fees (Utah Code legislative finding that there was such a that during the period from 1985 to Ann. § 78-14-7.5); a mandatory deferral crisis. The Court therefore held portions 1990, health care malpractice prelitiga- of payments on jury verdicts in excess of of the Utah Health Care Malpractice Act tion hearings were requested in fewer $100,000 (Utah Code Ann. § 78-14- unconstitutionaL. See Lee v. Gaufin, 867 than 250 cases per year for the whole 9.5); and requirements that they P.2d 572 (Utah 1993). state! Actual hearings were conducted in participate in a prelitigation screening An ABC News Nightline program in an average of only 174 cases per year. hearing at the Division of Occupational 1989 demonstrated that insurance com- See legislative Auditor General, Report and Professional Licensing as a condition pany greed and monopolistic markets to Utah State legislature No. 90-07, "A precedent to filing suit (Utah Code Ann. were responsible for disproportionate Performance Audit of the Medical § 78-14-12). increases in malpractice premium rates Malpractice Prelitigation Panels," Jan. By lobbying for passage of these and during a time when actual claims pay- 1994. This shows just how erroneous other types of restrictive leg islative ments were not increasing at al1.1 and self-serving the medical industry's proposals, the medical industry has suc- Simply put, comprehensive legislation arguments have been. ceeded in erecting more barriers to the was passed in Utah, and elsewhere, on The IJFrivolous CaselJ Crisis. legal recourse of its victims than any the basis of a "crisis" that never existed. Another claim used by the medical pro- other profession, vocation, or occupation Even after the hoax was exposed, the laws fession to advocate adoption of restric- in this state. It was able to do this by were never repealed. Rather, the medical tive legislation is that doctors are being convincing the public, and many mem- industry encouraged by its successes, has burdened by the filing of frivolous cases.

1The program aired Feb, 14, 1989; a transcript is available from Radio TV Reports, Inc,

VOL R D IRE WIN T E R 1 9 9 6 . 25 rr

It does not take much effort to figure out verdicts that were less than the figure) make mistakes that inflict injury, damage, II! that attorneys who file frivolous medical was only $36,500. Professor Vidmar pain, and suffering. If they are to be malpractice cases will soon go broke. also reviewed fifteen years of data from shielded from accountability for their I: The contingent fee on a frivolous case is forty-three counties in ten states, includ- actions, is it likely that doctors, any more a whopping zero, By calculating the ing data for malpractice verdicts in than other human beings, will make costs an attorney usually must advance to Chicago and San Francisco. His conclu- fewer mistakes? pursue such cases, it can be seen that the sion: large verdicts "are the exception, Interestingly despite the "reforms" in i attorney who pursues frivolous causes is not the rule." Utah medical malpractice law of the 1970s demonstrating some serious stupidity. The JlMedical Cost Containment" and 1980s, Utah medical bills rose 140.8% from 1980 to 1990. See Bus. INS., Dec. I Furthermore, patients are not all that Crisis. One of the arguments that will not l eager to sue their doctors. When the die, in spite of all the evidence against it, 12, 1991, at 3. This is in line with increases I, Utah Medical Association set about to is that medical malpractice suits are everyhere, and would seem to illustrate learn more about the risks of being sued responsible for the high cost of health that laws restricting patient rights and in Utah, it learned that eighty-nine per- care in the United States. No one can remedies have little, if anything, to do cent of all patients never even considered seriously challenge the now clearly with the cost of health care. suing their doctor. Of the remaining known national fact that substantially less The JlDefensive Medicine" Crisis. eleven percent who considered it, only than one percent of the health care dollar The current "crisis du ¡our" in the medical four percent ever actually did anything. goes to finance the entire medical mal- industry is the claim that health care costs

See THE SALT LAKE TRIBUNE, Apr. 12, 1989, are rising because of the practice of r~ r,' M;¡ at A7. This is not the stuff of crisis. .. "defensive medicine" (doctors prescrib- f', The JlRunaway VerdictJl Crisis. e right of access to courts, ing unnecessary tests and procedures, m One of the arguments frequently heard to right to trial by jury, and not because of medical need, but because ~ of fear of being sued). During the last ~ justify changing the legal system is that sundry other constitutional juries are running amok and awarding presidential campaign, candidates were outlandish sums of money for the inflic- rights, would be 'sacrificed for heard to estimate the cost of "defensive tion of the slightest of injuries. Plentiful the greater goo medicine" at anywhere from six billion to anecdotal evidence is trotted out for its .. thirty billion dollars annually. These fig- requisite shock value so that lawmakers ures were pulled out of thin air. The Office will be appropriately inflamed. But the practice system: claims, investigation, defense of Technology Assessment of the United factual evidence seldom gets much air costs, attorneys' fees, adjustor salaries, States Congress concluded in 1994 that time. People often forget that the big insurance company profits, taxes, judg- accurate measurement of the phenom- verdicts reported in the news got there ments, settlement, etc.-lock, stock and enon (of defensive medicine) is virtually because they are unusual, surprising- barreL. See United States Congressional impossible. See United States Congress, newsworthy, Coverage is rarely given to Budget Office, Economic Implications of Office of Technology Assessment, Defen- the fact that a large verdict was remitted Rising Health Care Costs 4 (Oct. 1992); sive Medicine and Medical Malpractice, by the court, or that a new trial was Ellen M, Nedde, U.S. Health Care Reform OTA-H-602 4 (Washington, D.C.: U.S. granted, or that a verdict was overturned 15 (INT' MONETARY FUND, Dec. 1993); Government Printing Office, July 1994). on appeal, or that a seemingly meritori- Health Care Financing Administration The OTA estimated that fewer than eight ous case was no-caused by a jury. (HCFA) of the United States Department percent of diagnostic procedures were ~ of Health and Human Services (HHS) motivated by malpractice concerns. In a comprehensive study reported in i~ a respected legal publication, Duke (1992). Therefore, if all malpractice Furthermore, it concluded that some of University Professor Neil Vidmar found claims brought in America were assumed those tests and procedures actually con- that in North Carolina, large verdicts to be frivolous, which they clearly are stitued the practice of good medicine, were handed down in only four of 117 not, elimination of the entire claims sys- albeit motivated by the wrong reason. cases that went to triaL. See 76 Judica- tem theoretically would reduce health Unnecessary tests and procedures are ture, Oct.-Nov. 1992, at 118. Those four care costs by less than one percent. The just that-unnecessary. They are not awards involved catastrophic injuries: savings would be less than one dollar for appropriate for any legal or medical brain damage, death, and paralysis. The every hundred dollars spent. And the reason. Nevertheless, a doctor charges effect of those awards was to create an incidents of malpractice would continue the same for a test whether it is necessary tJ average verdict in the 117 cases of and probably increase. The reason is or unnecessary. Could it be that the ì; $367,737. But the median verdict that doctors are human. They are well desire to make money has something to 'i'~~ (where the number of verdicts exceeding trained and highly skilled, but still do with the ordering of unnecessary íi human, Because they are human, they tests? Physicians with financial interests in i1i the figure was equal to the number of !l

26. v 0 I R D IRE WIN TE R 1 9 9 6 laboratories order thirty-four to ninety-six prove causation). The amount of compen- educated, so that informed decisions can percent more tests than those without such sation would be fixed by a payment be made. Otherwise, we may live to see interests. See Mark N. Cooper, Physician schedule established by insurance claims the fulfillment of the warning given by Self-Dealing for Diagnostic Test in the adjusters, and funded by the medical American patriot and president John 1980s: Defensive Medicine vs. Offensive industry. Total payments would depend on Adams, who said, Profits, CONSUMER FEDERATION OF AMERICA, money available, not on the degree of Representative government and Oct. 2,1991, at 8-9. injury sustained. The program would be trial by jury are the heart and administered by doctors. Physician respon- lungs of liberty. Without them, we The Next Step-A Potential sibility would be transferred to corporate Real Crisis have no other fortification against entities, and individual doctors would be being ridden like horses, fleeced Having been successful thus far with immune from suit. Lawyers would be pre- like sheep, worked like cattle, and its legislative agenda for reforming the med- cluded from participating in the system fed and clothed like swine and ical malpractice laws, the medical indus- unless they agreed to a compensation hounds.2 I- try is no longer content with mere tinkering. scheme established by doctors and bureau- As could have been expected, the enact- crats. The right of access to courts, right to ments to date have completely failed to trial by jury, and sundry other constitutional bring about the promised results of lower rights, would be "sacrificed for the greater cost and more accessible health care. By good." Now, doesn't that sound fair? Ed. Note: The editors attempted, both ignoring that, and inconsistently seiz- The medical industry has not said when without success, to solicit a ing upon it to perpetuate the crises myths, its proposal will be introduced in the "Counterpoint" article regarding the medical industry now advocates the Legislature. Studies are presently being proposed changes to medical entire dismantling of the tort system as it conducted under a grant by the Robert malpractice law. We would wel- relates to health care professionals. In a nut- Wood Johnson Foundation Uohnson & come the submission of such an shell, many doctors and their insurers want Johnson) to gather the data needed to article if any of our readers would a "no-fault" medical malpractice system so support such an effort. Its proponents are like to take issue with Mr. Dewsnup. that injured patients can be "compen- dead serious. Every prejudice against Of course, Mr. Dewsnup will be sated" without having to prove negligence, injured people, lawyers, courts, and law- provided the opportunity to respond. (even though they would still have to suits will be exploited. The public must be

2Quoted in CLINTON ROSSITER, SEEDTIME OF THE REPUBLIC 388-89 (1953), quoted in J. KENDAll FEW, I TRIAL BY JURY 161, 239 (1993),

v 0 I R D IRE WIN T E R I 9 9 6 . 27 'Ttlt JUDICIAL PROCESS The Judicial Rules Review Committee

by Lisa Watts Baskin

In 1993, the Utah State Legislature tain privileges provided by statute "are lature determined that it needed more enacted legislation creating the Judicial made ineffectual by the adoption of rules interaction with the judiciary to monitor Rules Review Committee. See 1993 Utah specifically redefining those privileges." the judiciary's authority to amend court Laws Ch. 282. The Legislature's primary The note perfunctorily dismisses any poten- rules having a substantial impact on purpose was to create a forum for com- tial conflict between a statutory privilege, legislative policy and authority. munication between the judicial and leg- a substantive (from the Legislature's per- islative branches concerning court rules spective) right, and a rule promulgated The Judicial Rules Review of procedure, evidence, and judicial admin- Committee: A New Forum for by the courts. The note was not well Communication Between the istration as they relate to statutory law. received by legislators and by attorneys Legislature and the Judiciary Legislators were motivated to establish for the Legislature. this forum by their increasing concerns Additionally, during the 1992 General The statutory design for this new about changes to court rules that directly Session, the judiciary proposed legisla- forum for communication was the Judicial affect statutes in the absence of notifi- tion augmenting the authority of court Rules Review Committee, consisting of six cation to the Legislature and an oppor- commissioners. Upon review and nego- legislators,2 whose duty it is to review tunity for legislators to comment. tiation with the Legislature over consti- existing and proposed court rules and For example, Utah Code Annotated tutional concerns regarding the authority any conflicts between judicial rules and section 78-120-2 is in direct conflict with statutes or the Utah Constitution. The com- Rule 69(d), Utah Rules of Civil Procedure .. mittee is also responsible for preventing (formerly Rule 69(b)J. Rule 69(d) pre- e legislature determined encroachment of the judiciary on the cludes peace offcers who are not sheriffs that it needed more executive and legislative branches, and or constables from serving writs of execu- interaction with the judiciary to propose legislative action when neces- tion, but the statute permits any peace sary. The committee's members meet as officer to serve process, This created con- to monitor the judiciary's needed to review and evaluate submis- fusion for the courts, practitioners and, authority to amend court sions of court rules or proposed court of course, peace officers, sheriffs, and rules having a substantial rules. The statute requires the committee constables. impact on legislative policy to examine whether the rules are autho- rized by the state constitution or by Another example is the advisory and authori committee note to the 1992 amendment statute, and, if authorized by statute, to of Rule 501, Utah Rules of Evidence, .. consider whether the rules comply with ~ which amended certain privileges. The and functions of court commissioners, the legislative intent. The statute also requires advisory committee note provides that Administrative Office of the Courts with- the committee to examine whether the Rule 501 "accepts all pre-existing statu- drew the bilL. Slight variations on that rules conflict with existing statute, or tory privileges, except those inconsistent theme, however, appeared not long after govern the same policy articulated in a with these rules." The note adds that cer- the session in the proposed additions to statute. Finally, the committee must con- the Code of Judicial Administration.1 sider whether the rules are primarily Ms. Watts Baskin is an Associate General Counsel The writing was on the walL. Because substantive or procedural in nature, and to the Utah State Legislature and serves as counsel whether they infringe upon the powers of iF to the Judicial Rules Review Committee. of these episodes and others, the Legis- the executive or legislative branches.3 l ii

1 See proposed rules 3.201,2, 3-201.3, 3-201 A, & 4-905, 3See UTAH CODE ANN, § 36-20.4 (1994). &JC). 2Current members of the Judicial Rules Review Committee are Rep. John L t~l ~~.~ Valentine, Co-Chair; Sen, Robert F. Montgomery, Co-Chair; Rep. Christine R, Fox; Rep. Frank R, Pignanelli; Sen. Wilford R, Black, Jr.; and Sen, Nathan C. Tanner, ~

28. v 0 I R D IRE WIN T E R I 9 9 6 For purposes of committee work¡ IIcourt general election of 19841 effective July Report also explained the commission/s rulesll means: 1, 1985, The revised article VIII estab- rationale: IIMembers of the commission felt that the rulemaking authority of the a) rules of procedure¡ evidence¡ and lishes the relationship between the Legis- practice for use of the courts of lature and the judiciary with regard to supreme court should be specifically this state; rulemaking. included in the constitution. This power is + considered essential to maintaining an b) rules governing and managing the independent judiciary.1I Id. On the floor appellate process adopted by the rticle VIII, Section 41 of the Senatei proposed section 4 was Supreme Court; implies that the legislature amended to give the Legislature amend- c) rules adopted by the Judicial Coun- may amend only those rules ing power over the rules of evidence and cil for the administration of the that are already adopted, procedure by a two-thirds vote of both courts of the state.4 houses. This provision implies that the and no othe Legislature may amend only those rules Simply put¡ the Judicial Rules Review + Committee reviews and comments upon that are already adopted, and no others, early drafts of proposed rules¡ or amend- Article VIII, Section 4. The Judiciarls Section 4 does not limit the Supreme ments to current Rules of Civil Procedure¡ rulemaking power is outlined in article Courfs rulemaking power, as did pre- vious legislation.? Ratheri the Utah Criminal Procedure¡ Appellate Proce- Vllt section 4 of the Utah Constitution: Constitution is silent on several important dure¡ Juvenile Procedure¡ Evidence¡ and The Supreme Court shall adopt Professional Conduct¡ and reviews and issues. First, it does not explicitly prohibit rules of procedure and evidence to be the Supreme Court from making rules comments upon administrative rules in used in the courts of the state and affecting substantive rights. Second i it the Code of Judicial Administration when shall by rule manage the appellate those rules are substantive¡ rather than does not indicate whether court rules process. The Legislature may amend administrative in nature¡ or when they supersede legislative enactmentsi or vice the Rules of Procedure and Evidence conflict with statute.5 versai or how conflicts between court rule adopted by the Supreme Court upon The Judicial Rules Review Committee and statute are to be resolved. The con- a vote of two-thirds of all members of has the option to make an informal stitution and commission notes are silent both houses of the Legislature. Except recommendation or to make written find- about whether the Legislature can veto or as otherwise provided by this consti- ings of its review and suggest possible simply amend court rules, whether the tutioni the Supreme Court by rule may legislative action or Supreme Court or Legislature can sidestep the Supreme Courfs authorize retired justices and judges Judicial Council rulemaking action.6 The rulemaking process and directly regulate and judges pro tempore to perform practical effect is that the committee the Courfs procedurei and what course any judicial duties. . . . The Supreme provides written feedback to the Supreme of action the Court should take after the Court by rule shall govern the practice Court or the Judicial Council and¡ if Legislature amends, vetoes¡ or makes a of law, including admission to practice necessary¡ recommends amendments to court rule. law and the conduct and discipline of rules of procedure and evidence. The Article VIII, Section 12. Article Vllt persons admitted to practice law. committee also proposes legislation to section 12 of the Utah Constitution estab- amend or repeal statutes that are in con- The Supreme Court had no such lishes the Judicial CouncWs administrative flct with court rules. authority prior to the constitutional grant rulemaking authority. You might ask at this point why the contained in section 4. The Constitutional There is created a Judicial Council Legislature has any right to affect the rules Revision Commissioni in its 1984 reporti which shall adopt rules for the admin- the Supreme Court proposes or adopts. summarized its study of the Judicial istration of the courts of the state. . . . Article: IIThis section gives the supreme The chief justice of the Supreme Court The Constitutional Authority court general authority to establish rules for Rulemaking shall be the chief administrative of procedure and evidence for the state's officer for the courts and shall Article VIII of the Utah Constitution¡ various courts.1I Report of the Utah Con- implement the rules adopted by the covering the Judicial Departmenti was stitutional Revision Commission (111984 Judicial CounciL. repealed and re-enacted by voters in the Reporf), Jan. 19841 at 27. The 1984

4UTAH CODE ANN. § 36-20-1 (3). 6See UTAH CODE ANN, § 36-20-6. 5The Administrative Office of the Courts generously provides the Judicial Rules 7 Act of Mar. 6, 1943, 1943 Utah Laws ch, 33 (repealed by Act of Mar, 8, Review Committee with information, both with early drafts and finalized versions of 1951¡ § 2, 1951 Utah Laws ch. 58, § 2, at 247); Act of Mar, 8, 1951, 1951 Utah rules circulating for comments. Also, the Administrative Office provides staff of the Laws ch. 58, § 1, at 152 (repealed by Act of Feb, 26, 1986, 1986 Utah Laws ch. Judic!al Rules Review Committee notice of, and an opportunity to attend, any 47, § 41, at 135). meeting of the Judicial Council and the Supreme Coures Advisory Committees as rules are being formulated.

v 0 I R D IRE WIN T E R I 9 9 6 . 29 The scope of section 1 2 as it relates administrative rules. Even under Judicial structure of government by blocking uncon- to legislative authority is no less difficult Council procedures outlining its rule- stitutional or statutorily unauthorized actions to characterize than section 4. For making process, the Judicial Council may by other branches. Each branch is equal example, the meaning and scope of the or may not heed comments, The attempted to the others, and consequently equipped word "administration" is unclear. See remedy was an unsuccessful bill pro- with a system of checks and balances, State v. Egbert, 748 P.2d 558, 562 posed in the 1995 General Session to The tension between the branches is (Utah 1987) (Durham, J., dissenting).S A clarify the principle that Judicial Council constitutionally designed to prevent pub- law review article states that "the clarity rules are not "law." See H,B, 238, lic wrongs and encroachment upon the of the term 'administration' is deceptive." "Definition of Law." other branches' authority. Recent illus- I A. Leo Levin & Anthony G. Amsterdam, trations from the 1995 General Session I: Legislative Control Over Judicial Rule- .. show an accommodation by the legis- ¡ øbe tension between the making: A Problem in Constitutional lative and judicial branches to maintain i Revision, 107 U. PA. L. REV. 1, 34 branches is constitutionally this delicate balance, The Supreme Court's I (1958). It adds that, "to entrust (the designed to prevent public advisory committee on the Rules of Evi- i" administrative field) to the exclusive wrongs and encroachment dence reviewed Senate Bill 180, "Admis- power of the judiciary is palpably sibility of Optical Imaging Evidence," upon the other branches' unwise." ¡d. at 35. The Constitutional which amended the current statutory Revision Commission report provides a authori parol evidence rule and which would brief description of the intended scope of .. have affected Rule 1001, Utah Rules of administration. The report states: Evidence. The committee suggested that Some questions arose over the Substantive vs. Procedural Rules the existing evidence rule already cov- administrative authority of the judicial The vast majority of court rules are ered what was~c9,ntained in S.B. 180. council and the rulemaking authority Consequently, the sponsor withdrew the I, I inherently procedural or administrative in . of the supreme court. The commission nature, outlining the practice and proce- bill, awaiting the committee's written i felt that the primary role of the council dure of, or the legal machinery for using statement that optical imaging evidence lies in developing basic administra- would be admissible under Rule 1001. In the courts. Nevertheless, some rules take , tive policies including consolidated a cooperative spirit, the advisory com- j on a substantive nature, creating or amend- ii budgeting procedures, personnel sys- ing a person's rights to equal enjoyment mittee provided the written statement to r tems, relations with other governmen- the lobbyist and sponsor as requested. i of fundamental protections and immuni- i tal entities, and the management of ties, such as the right to a jury trial or, Senate Bill 71, "Admissibility of Drug I judicial resources. The role of the more commonly, the right to assert a priv- Analysis," was modified so that the i i criteria for the admissibility of drug i supreme court is to establish the ilege. Because court rules and statutes , actual adjudication procedures used each contain elements of both substance analysis would be set forth in an evi- , !I by the courts. In addition, the supreme and procedure, the distinction is not dentiary rule, rather than by statute. court is specifically charged with the always clear. In fact, it can be quite gray. Senate Joint Resolution 6, "Environmental f I management of the appeals process. The distinction ironically becomes appar- Self Evaluation Privilege," created a new 'I 1984 Report, supra, at 35. ent, however, when one branch of govern- evidentiary rule. The advisory committee ment feels encroached upon by another. on the Rules of Evidence was informed of Some legislators and judges have this resolution, and although the com- argued that administrative rules some- Separation of Powers mittee opposed the new rule in concept, times amount to substantive provisions- The executive branch carries out it provided valuable comment concerning if not outright legislation in their impact policy through action; the legislative ways to improve it. . I -thus violating the separation of powers branch passes laws prescribing general Since the 1993 statute creating the provision of Utah Constitution, article V, policy affecting its citizenry; courts Judicial Rules Review Committee, tliere section 1. Importantly, once a Judicial interpret the law and resolve conflicts on has been extensive and continuing com- Council rule is adopted, the Legislature a case-by-case basis. The judiciary also munication between the advisory com- has no authority to amend, repeal, protects individual rights and the general mittee on the Rules of Juvenile Practice modify, or adopt the Judicial Council's and Procedure and the Judicial Rules

Sin a case discussing the minimum mandatory sentencing scheme for convicted the uniformity and fairness of sentencing practices appears to be consistent with the sex offenders and factors of aggravation and mitigation, Justice Durham provided constitutional grant of authority, Deciding when persons convicted of the same insight on the sentencing guidelines promulgated by the Judicial Council through the offense should receive one of three different minimum mandatory terms, however, Code of Judicial Administration based upon a delegation from the Legislature, In does not by any stretch of the imagination involve the 'administration of the courts.''' her dissent, she stated, "The development of nonbinding guidelines for improving

, I I 30 . v a i R D IRE IV I N T E R I 9 9 6 i . ii'I Review Committee. For example, the Judi- Council could create a rule of adminis- under Utah's constitutional system, the cial Rules Review Committee assisted in tration or the Supreme Court could create courts are essentially left to police them- the process of amending the rules of the rules of procedure and evidence that the selves. Other states' constitutions prevent

juvenile court and kept a watchful eye to Legislature believes are actually substan- this stalemate. For example, California's ensure that amendments to the rules con- tive law, or, at the very least, have the constitution specifically limits the Judicial formed to rapidly evolving statutory law, .. Council's authority to adopt rules of Another example can be seen in the bsent a determination that administration, practice and procedure dialogue about the 1994 law regarding that are "not inconsistent with statute," criminal discovery, House Bill 379, a rule is substantive, or CAL. CONST. art. Vi, § 6, No such "Discovery of Expert Witnesses," and unconstitutional as a violation provision exists in Utah's constitution. how it differed from Rule 16, Utah Rules of the separation of powers, Conclusion of Criminal Procedure, concerning dis- the rulemaking authority of covery. The advisory committee on the Reasonable minds differ on what is i Rules of Criminal Procedure reviewed the courts and the Judicial substance and procedure, and arguably Rule 16 in an attempt to resolve the Council is unfettet1 the term "administration" is a subset of I conflict. The Utah Supreme Court held in that distinction. Tests for determining i .. i State v. Larsen, 850 P.2d 1264, 1266 which is which include balancing the ¡ (Utah 1993), that an amendment to a effect of substantive law. Not only could judiciary's efficiency interests against the statutory section regarding release on the rules conflict with statutory law; they Legislature's policy interests in order to bail pending appeal applied where the could be unconstitutionaL. Conversely, determine whose jurisdiction is para- statute was more stringent than the instead of amending a rule of civil pro- mount. The best solution for such charac- requirement of Rule 27 of the Rules of cedure or evidence, which requires a terization problems is prevention through Criminal Procedure. In the process, the two-thirds vote by both houses, the Legis- communication, and this has been court noted that the conflict was not lature could enact a law that conflicts accomplished in large measure through indicated anywhere in the bill. Associate with a rule of procedure or evidence, the process established by the Judicial Chief Justice Howe stated that any legis- such as a special privilege. The potential Rules Review Committee Act. Under the lation that amends (or requires a subse- for overreaching by the Legislature and authority of Utah Code Annotated, quent amendment to) a court rule should the judiciary in the realm of rulemaking is sections 36-20-1 through 36-20-8, the be noted in the legislation. See Larsen, substantiaL. When a statute and a court judiciary provides notice to the Legis- 850 P.2d at 1267. This is a good sug- rule conflict, there will be confusion as to lature that a statute needs to be repealed gestion, and illustrates the ongoing which provision governs and how to or amended. Alternatively, the Legislature dialogue between the judiciary and the reconcile the differences. provides notice to the judiciary that a rule Legislature, setting a higher standard of Absent a determination that a rule is may need to be modified, or that a pro- cooperation. substantive, or unconstitutional as a viola- posed rule should be rejected. This Aside from these recent concrete tion of the separation of powers, the unique cooperation between the judi-

examples, there are other potential prob- rulemaking authority of the courts and the ciary and the Legislature has benefited lems that enhanced communication Judicial Council is unfettered, and the both branches and enhanced the prac- between the judiciary and the Legislature courts are generally the body that would tice of law by reducing, if not eliminat- could alleviate. For example, the Judicial make such a determination. In other words, ing, confusion and distrust. I-

v 0 I R D IRE WIN T E R I 9 9 6 . 31 Ci'seS IN CONTROVERSy

I Sullivan v. Scoular Grain: Iniured ~ ~,îi,:.; Employees Further Forced to Bear Burden of Boss's Neglect í I by Alan W. Mortensen I li~ ,it' One exception exists to the exclusive and unlawfully violating a safety The Utah Supreme Court decision of i:c' remedy of the workers' compensation statute, this still falls short of the kind Sullivan v. Scoular Grain, 853 P.2d 877 ~~, act. See UTAH CODE ANN. § 35-1-60 of actual intention to injure that robs L (Utah 1993), represents a further blow to the injury of accidental nature. i\!'C injured employees' rights. Under Utah (1988) (Utah's Exclusive Remedy Provi- common law, an employee had the right sion). In Bryan v. Utah International, 533 Id. (quoting 2A A. Larson, THE LAw OF to fully recover damages in tort against P.2d 892, 894 (Utah 1975), the Utah WORKMEN'S COMPENSATION§ 68.13 (1988)). f Supreme Court recognized an exception As a result of the Lantz decision, an ~ an employer for the employer's breach of f! the duty to provide a safe workplace and for injuries intentionally caused to employee must prove the employer "had Ii til employees by employers. The subsequent an actual deliberate intent to injure him If to properly supervise an employee's ~ labors. See, e.g., Scudder v. Kennecott decision by the Utah Court of Appeals in ...." Id. This high standard of proof effec- Lantz demonstrates that this "intentional tively eliminates an employee's remedy to Copper Corp., 881 P.2d890, 894 (Utah 1994), re-hearing pending. But with the injury" exception provides no substantive recover for an employer's tortious con- imposition of the workers' compensation relief to employees. In order for an duct. Id. at 939 n.3 ("We note that no system, employees lost their right to injured employee to recover in tort reported Utah cases recognizing the excep- prove and be compensated for the negli- .. tion created in Bryan have invoked that I exception."). Thus, for all practical pur- ~ gence of employers and fellow employ- nder the workers' * poses, an employee is left to the inade- ees. An employee who suffers an indus- f~ compensation scheme, trial injury is compensated under the quacies of the workers' compensation ~ workers' compensation scheme without an injured employee is system for redress. i i inquiry into the employer's actions. The forced to bear the lion's Under the workers' compensation r scheme, an injured employee is forced to ~/~' oft-cited policy determination behind the share of an employer's bear the lion's share of an employer's workers' compensation scheme "'is to culpable condu ii provide a speedy and certain compen- culpable conduct. It is no secret that an sation for workmen and their dependents .. employee injured by his employer's and to avoid the delay, expense and negligence is most likely never fully com- I rc; )i uncertainty which were involved prior to against an employer, the employee must pensated for injuries, because "the I. the act; and the concomitant purpose of prove more than just a "substantial amounts which may be awarded are at ~~ all times very modest, and in inflationary 1~; protecting the employer from the hazards certainty that injury will follow." 755 .F- of exorbitant and in some instances P.2d at 940. The Court of Appeals noted: times practically penurious. . . . " Thatcher perhaps ruinous liabilities.'" Lantz v. Even if the alleged conduct goes v. Industrial Comm'n, 207 P.2d 178, 182 (Utah 1949). I National Semiconductor Corp., 775 P.2d beyond aggravated negligence, and I'j, 937, 938 (Utah Ct. App. 1989) (citing includes such elements as knowingly Nevertheless, the workers' compensa- tion system provides the right to bring suit Adamson v. Okland Constr. Co., 508 permiting a hazardous work condi- P.2d 805, 807 (1973)). tion to exist, knowingly ordering clai- against negligent third parties, which mant to perform an extremely danger- right provides one venue for full redress ~; of employees' injuries. See UTAH CODE ANN. ous job, willfully failing to provide a 's' Mr. Mortensen is an associate of the Salt Lake City t¡ § 35-1-62 (1988). Unlike the no-fault ''" law firm Wilcox, Dewsnup & King. safe place to work, or even Willfully !. ~~-

s . t~J~ 1 Moreover, an employer is not vicariously liable for an employee's intentional employer directed or intended the employee to so act. Mounteer v, Utah Power & Light Co., 773 P,2d 405, 407 (Utah Ct. App, 1989), conduct that occurred within the scope and course of employment, unless the ¡

32 . v 0 I R D IRE WIN T E R I 9 9 6 system of workers' compensation, where Liability Reform Act, Utah Code Anno- intent, and was void of empirical obser- employees bore the risk of "paying" for tated, section 78-27-39, a jury can only vation of the jury apportionment process: the negligence of employers, juries did apportion the fault attributable to "each Practically speaking, a jury would not allocate fault to immune employers defendant." Utah Code Annotated, naturally be inclined to allocate the on the verdict form prior to the 1986 section 78-27-37(1) specifically defines a fault of an immune person among enactment of the Liability Reform Act. See defendant as "any person not immune both plaintiffs and defendants. If a Wollam v. Kennecott Copper Corp., 663 from suit who is claimed to be liable plaintiff is 20% at fault, each of two F.Supp. 268, 274 n.9 (D. Utah 1987) because of fault to any person seeking named defendants 30% at fault, the recovery." Plaintiff argued that because ("(Als a matter of law, (the third partyl is legislature could reasonably assume the sole cause of 'liability' that could be the employers were immune under the that a jury would allocate the immune paid to the plaintiff."). Experience exclusive remedy provision, they were person's 20% fault among the plaintiff demonstrates that juries naturally allocate not "defendants," and thus were excluded and the defendants, probably accord- an immune employer's fault among both from apportionment. Sullivani 853 P.2d ing to their respective percentages of plaintiffs and defendants. See Sullivan v. at 878-79. "actionable fault." Thus, there is no Scoular Grain Co.i 853 P.2d 877, 886 .. reason to assume, as the majority (Utah 1993) (Stewart, J. dissenting). does, that the immune person's fault Other commentators assume that. third- be Supreme Court's will be attributed solely to defendants party defendants were allocated the decision in Sullvan further under Utah's comparative negligence entire amount of an immune employer's stripped injured employees of scheme. fault. See id. at 882; Dale T. Hansen, The majority position will neces- Sullivan v. Scoular Grain Co.: their rights to recover the sarily result in the entire amount of an Apportioning the Fault of Immune full measure of their immune person's fault being deducted Employersi 1994 B.Y.U. L. REV. 187, 190 damage from a plaintiffs damages. (1994). Thus, injured employees and .. industry both bore the burden of Id. at 886 (Stewart, J., dissenting). employer negligence, while the immune, Adding to the grim plight of injured albeit negligent, employer pillaged the The Slippery Slide of Injured Employees' Rights employees, the court recognized that an employee's third-party recovery for immune employer who may be found to

reimbursement of workers' compensation In Sullivani the Utah Supreme Court be at fault at a near intentional level may benefits. See UTAH CODE ANN. § 35-1-61 held that a jury is required to "account further escape liability for payment of (1988). This burden shifted solely onto for the relative proportion of fault of a workers' compensation benefits. An injured employees as a result of the plaintiffs employer that may have caused immune employer is statutorily entitled to Sullivan decision. or contributed to an accident, even recover the entire amount it has paid in though the employer is immune from Factual Background of workers' compensation benefits from the Sullvan suit." Id. at 878. While justifying its third-party verdict. Though seeking to decision by the language of the Utah protect defendants from the perceived Kenneth Sullivan lost his arm and leg Liability Reform Act, the court placed little inequities of the statutory language of the on the railroad tracks of the Freeport emphasis on the definition of "defen- Utah Liability Reform Act, the court left Center. Sullivan brought suit against dant," and focused instead upon its employees a "legislative" remedy, not a numerous entities that were later found notions of "equitable considerations." In judicial remedy. When forced "between by the trial court to be Sullivan/s employ- addressing the equities, the court ignored two evils," the court shunned splitting the ers, and thus dismissed under the Sullivan's argument that allocation of his baby between the third party and the exclusive remedy provision. Sullivan also employer's negligence would force him employee, placing the entire "evil" upon brought suit against Trackmobile, Inc., to bear a disproportionate share of his the injured employee, who is least G.w. Van Keppel Company, Oregon damages. Instead, the court adopted the equipped to bear such a plight. See Dale Short Line Railroad Company, Utah defendants' argument that they, not the T. Hansen, suprai at 198. Power & Light, and Union Pacific Rail- injured employee, would be forced to The Supreme Court's decision in road Company. bear the entire amount of damage caused Sullivan further stripped injured employ- Defendant Trackmobile moved to by the immune employers. ees of their rights to recover the full have the jury apportion the fault of all The dissent recognized that the equity measure of their damages. An injured those who were initially named defen- handed out by the majority opinion was employee who 100 years ago was dants. Sullivan argued that the immune one-sided, was based upon faulty entitled to sue his employer for violation employers' actions could not be appor- assumption and inquiry into legislative of its duty to provide a safe workplace, tioned by the jury because, under the Utah

v 0 I R D IRE WIN T E R I 9 9 6 . 33 now can only maintain suit against his Legislature's amendments more fully and Conclusion employer if the employee can show "an equitably allocate an immune employer's Injured employees have lost signifi- actual deliberate intent to injure him fault among all parties, including the cant rights to be fully compensated for . . . ." Lantz, 775 P.2d at 940. In return employer. See UTAH CODE ANN. § 78-27- their damages. This precarious pathway for foregoing the right to sue an 39 (1994). Under the amended provi- began with the imposition of the workers' employer, an employee receives workers' sion, if an immune employer's proportion compensation scheme, thereby allowing compensation benefits, which are paltry of fault is less than forty percent, the fault an employer immunity from liability for in comparison to an employee's actual .. failing to provide a safe workplace to its damages. See Thatcher v. Industrial early the quid pro quo employees. The path continued with the Comm'n, 207 P.2d 178, 182 (Utah Lantz decision, which broadened an 1949). Moreover, as a result of the envisioned through the employer's immunity from suit unless the Sullivan decision, an employer's fault workers' compensation employee was able to prove an employ- reduces to nearly nothing the employee's scheme has left injured er's actual, deliberate intent to hurt the ability to recover proven damages, while employees with almost employee. The path reached a tragic allowing the employer to strip the crossroad with the Sullivan decision, as remaining verdict to recoup its workers' nothing to compensate injured employees were left to bear the compensation payout. Clearly the quid them for their dam entire burden of an employer's fault in a pro quo envisioned through the workers' .. jury apportionment, and also were compensation scheme has left injured forced to reimburse fully the workers' employees with almost nothing to com- is allocated among the other parties, compensation benefits the employer paid pensate them for their damages. The including the injured employee, in out. Though recent legislative enactments aftermath of Sullivan left employees, not proportion to the percentage of fault have turned the path back toward a more employers, in a position of bearing "exor- initially attributed to each party by the equitable distribution of immune employ- bitant and in some instances perhaps jury.2 If an immune employer's fault ers' faults, the fact remains that injured ruinous liabilities." Lantz, 775 P.2d at exceeds thirty-nine percent, the employer's employees are the least equipped to bear 938 (quoting Adamson v. Okland Constr. fault is' not allocated, and the injured the cost of an employer's negligence. But Co., 508 P.2d 805, 807 (Utah 1973). employee continues to bear the entire based upon the "equitable considera- Legislative Postscript burden of the employer's acts for pur- tions" of the Utah Supreme Court in poses of the jury's apportionment of fault. Sullivan, employees are forced to bear In the aftermath of Sullivan, the Utah See Brent W. Wilcox & Tim Dalton Dunn, the brunt of employer negligence. .- State Legislature amended the Utah Significant Changes in Comparative Liability Reform Act in an attempt to par- Fault and Workers' Compensation Reim- tially rectify the decision's inequities. The bursement, 7 UTAH BARJ 7-11 (1994).

2Employers are not entitled to full reimbursement .of ,workers'. compensatio,n reduced by the percentage of fault attributed to the employer by the iury. See UTAH liens if their fault exceeds thirty-nine percent; rather, their right to reimbursement is CODE ANN. § 35-1-62(511blli) (19941.

il

34 . v 0 I R D IRE WIN T E R 1 9 9 6 PROFESS/ ~ CReDIT TO THE . ON Jane Marquardt

Sometimes it seems to those who know Domestic Violence Advisory CounciL. her well that Jane Marquardt has tapped In her professional life, Jane is best into the secret of expanding a day to described as calm, insightful, meticulous, more than twenty-four hours. Jane is a and caring. She is a terrific listener, and partner in the Ogden law firm Marquardt, this contributes to her considerable skills Hasenyager & Custen, an active member as a problem solver. Jane's colleagues know of the State Bar Estate Planning Section, her as a consummate professional, and serving as Chairperson in 1994-95, and other attorneys are eager to discuss their a Fellow of the American College of Trust ideas and theories with her. Although Jane and Estate CounseL. Jane has also served has been honored with numerous awards, on the Board of Directors of the Utah Bar one would have to virtually pry that infor- Foundation since 1992, including a year mation from her, because she is too modest on the Executive Committee in 1994-95. to boast about her many achievements. Jane's tireless devotion to the better- her law career with Utah Legal Services, Jane also makes the most of her per- ment of her profession and her commu- Inc., in the Ogden office where her current sonal time. She and Pauline, her partner nity is demonstrated in her many years of partners were also employed. Jane was a of many years, travel extensively together, service. Jane was a member of the Third Reginald Heber Smith Fellow from 1977-79, and Jane has been active in the lives of Circuit Court Judicial Nominating Com- an honor she received for her work with Pauline's three children. Jane is some- mittee, and she has been President of the Legal Services. Entering private practice in thing of an athlete. She loves to ski, and Weber County Bar Association. She also 1979, Jane had a general practice until even skied competitively for the Univer- served as a member, and then Chair- 1990, when she began to concentrate on sity of Utah's women's team when she person, of the Utah State Bar Ethics and family law, adoption law, and business was in college. Jane also enjoys cycling, Discipline Committee, and as a member law. In 1990, Jane returned to school, earn- hiking, and, most recently, golfing (for of the Utah State Bar Committee on ing an LL.M, in taxation from the University which she has developed an unsurpassed Model Rules of Professional Conduct Jane of San Diego. Since then, Jane's practice passion). Jane is an accomplished amateur was also the Utah Reporter for the ABA has focused on the areas of estate plan- photographer, and especially likes nature Real Property, Probate and Trust Section ning, probate, business and tax law. photography. Jane's close friends know Committee on Recent Significant Decisions. Jane has always made time for com- her as a funny, witty person, with a pen- Additionally, through the years, Jane has munity and activities. In various capacities, chant for puns and practical jokes. been an indefatigable member of numer- Jane has devoted her time to the Eccles Everyone who gets to know Jane comes ous boards of directors and advisory Community Art Center, the Ogden Dino- to respect and admire her intelligence, boards, including the University of Utah saur Park and Museum Foundation, the wit, and dignity. She is totally committed College of Law Alumni Association, the Intermediate Gifts Committee of the to her professional life and the enrich- Management and Training Corporation, Downtown Ogden Conference and ment of her community, and she is like- the Utah Planned Giving Roundtable, Performing Arts Center, the Fundraising wise committed to her family and pursu- and the Senior Lawyer Volunteer Project. Committee of the Ogden River Parkway, ing her amateur interests. The attorneys Born in Dayton, Ohio, but raised in the Planned Gifts Committee of Primary who know her hold her in the highest Ogden, Jane attended the University of Children's Medical Center, the Weber esteem, because she represents the best Utah, where she earned her baccalaureate State County Democratic Convention, and of our profession-extremely capable, and her juris doctor degrees. She began the Utah Department of Social Services friendly, compassionate and giving.

v 0 I R D IRE WIN T E R I 9 9 6 . 35 - j

~,

~ 1:.1 l\ ,r BAR &BENCH fi ~

~ ~' How to Win Cases and Influence People y~ (on the Bench) Ii "c by "She Who Must Be Obeyed" i~ ~ ~,;-" ~\~; (4) Express Yourself Clearly The Judge aimed a look of distaste pleasant, helpful demeanor helps set the f'~ and Succinctly. Get to the point. The art F, in my direction and then turned to mood for an enlightening dialogue with t~~ of thinking and speaking clearly, succinctly, speak to the witness. The Judge the Court. Remember the adage: "Argue and at a reasonable speed is important ~' was, as always, reluctant to to the Court, not with the Court." A prag- to a judge and her staff. Consider the exercise his right to silence. matic approach to problem solving is appreciated. Retain and use your sense court reporter and the record, and avoid - John Mortimer, Rumpole of humor. Keep an open mind. Consider "taking over" a witness. If an attorney I and the Right to Silence1 ~J~ that doing the right thing and dealing masters this and adds an animated deliv- with opposing counsel with civility, gen- ery style, that attorney will unfailingly Clearly, some judges, like some erally serves your client best and always impress the Bench. lawyers, talk too much. However, having A state trial court judge has, at any I" impresses the judge. Judges abhor being :~ been invited to author this issue's "View put in the position of acting like a kinder- given time, between 700 and 850 cases, from the Bench," as a follow-up to "What garten teacher, forced to separate so an attorney who makes his or her Lawyers Want from Judges" (Voir Dire, battling kids on the playground. Mean- point with brevity and clarity will earn the Spring 1995), I intend to state my spiritedness is anathema in court. judge's attention and appreciation. practice tips. Certain practices of lawyers "Just the facts, Mr. Rumpole. Just impact a judge's ability to "hear" or (3) Operate with Candor and Honesty. A lawyer's reputation for give me the plain facts," snapped focus on counsel's arguments and affect integrity is the most precious quality the old spoil-sport. the overall mood of the Court. Following he/she possesses. Playing "hide the ball" - John Mortimer, Rumpole and these tips will help an attorney avoid facts with evidence or misrepresenting the Age for Retirement certain pitfalls and cultivate judicial ¿ and case law to a judge, results in the respect and affection. destruction of one's reputation and may ~ Learn to phrase your questions and L (1) Aim to Assist the Court. Your well anger the Court. goal should be to help the Court under- effectively articulate your arguments with ~ We've got a few rules, old sweet- plain speech, devoid of legalese. If you stand your position. At the outset of your fc argument, begin with a succinct state- heart. We don't deceive Courts, cannot express yourself in a way that a r. not on purpose. ment of the relief you are seeking and the judge can grasp, it is unlikely you will t basis for entitlement to the relief. Remem- - John Mortimer, Rumpole and persuade a jury. ~i ber, a trial court judge is a generalist, not the Alternative Society At last J had irritated Mr. Justice ~ a specialist. Share your expertise about Vosper beyond endurance. "Mr. the area of law in which you practice Judges may not always remember an Rumpolel" he thundered. "Are yolJ and disclose the relevant facts the Court attorney for his or her eloquence, but going to conduct this entire case may have missed. they will always remember an attorney in what the jury may well find to (2) Adopt an Appropriate Atti. who has misrepresented facts. Once a be a foreign language?" tude. Your attitude and demeanor should lawyer's reputation with the judiciary is - John Mortimer, Rumpole and be professional, courteous and pleasant, made, it is difficult to remake. the Rotten Apple as you seek to educate the Court. Pro- Candor includes acknowledging the fessionalism includes appropriate dress weaknesses in your case and your own and manners. A lawyer who evinces a need for direction or assistance.

1 Horace Rumpole, as millions know from reading John Mortimer's books or work, defending criminals, is rendered more difficult due to the interference of obtuse, churlish judges, Lawyers empathize with Rumpole's ruminations on the judiciary, watching the PBS television series, is a fictional barrister-at-Iaw. Rumpole's life's

36. v 0 I R D IRE WIN T E R I 9 9 6 It is important to note that when a entitled to know what a judge will expect ever, the majority of judges want to do judge limits your timei she/s not urging of them. Advise your witnesses to avoid the right thing and work diligently to you to speak faster. (This only increases a hearsaY/and rambling in non-responsive achieve that end. court reporterls stress level and propen- answers. Remind your witnesses to speak For some reason the then Lord sity to carpal tunnel syndrome.) The distinctly and audibly. The misery created Chancellor took it into his head to judge is really sayingi IIGet to the point. /I by a lack of preparation is incalculable. make Guthrie (Featherstoner who Objections should also be voiced con- So my client's evidence wound on, suffered from a total inability to cisely. An objection that is lengthy and accompanied by toothache and an make up his mind about anything, argumentative irritates judges and juries. angry ¡udge, and I felt that I had a ¡udge. Clad in scarlet and Lawyers who fail to make a clear finally fallen out of love with the ermine, Mr. Justice Featherstone record regarding exhibits, who interrupt art of advocacy. presided over his cases in a or talk over witnessesi or speak too softlyi ferment of doubti desperately irritate the judge. - John Mortimer, Rumpole and the Younger Generation anxious to do the right thing, (5) Listen to the Court. When fearful of the Court of Appeal, and arguing a motion or doing a triali it is frequently tempted to make the important to listen to the judge and take While judges recognize that litigators most reckless pronouncements which your cues from the judge/s questions and have to gain skill and experience over got him into trouble with the news- rulings. During motion hearingsi a mere time, it is essential that lawyers, coming papers. Despite all these glaring recital of what you have written in your to court in the service of a client, avail character defects, there was some- memorandum is not helpfuL. Andi at trial, themselves of every training opportunity thing quite decent about old while you may want to repeat objections available. The American Inns of Court Guthrie. He often tried, in his ner- to make a record, make it clear you've program facilitates this educational vous and confused fashion, to do understood the Court's prior rulings, opportunity. This programi which brings ¡ustice . . . . Avoid giving the appearance that you together lawyers (with varying levels of are ignoring the Court. experience) and judges in social and - John Mortimeri Rumpole and /I Mr. Rumpole!/I I had now lit the educational settingsi promotes civility the Summer of Discontent and helps lawyers to prepare to deal blue touch paper and Mr. Justice with a variety of trial and motion issuesi Rememberi judges were attorneys Graves went off like a rocket. IThis through demonstrations and discussions. once. Each judge is an individual with a is quite intolerable! I stopped you Be preparedi when calling a judge unique personality. Treat judges like you when you pursued this line before on a discovery dispute, to arrange for the expect them to treat you. A judge and you have totally disregarded judge to have the filei and clearly identify responds positively to a good natured my ruling. You persist in attempt- the discovery issue, in the context of the smile, and a kind word. An attitude ing to involve this most distin- case facts. reflective of respect and consideration guished gentleman in the terrible (7) Know Your Judge. Ascertain (including arrival on timeL will endear crime of which your client stands what your judge/s backgroundi practices you to the Court. accused. That is not the way in and preferences are. A judge who reads /lEven ¡udges are human. /I Guthrie which we 'play the game' in these everything before oral arguments assumes spoke as though letting us into a courts, as you should know you know thisi and does not want coun- perfectly well. /I closely guarded secret. sel to repeat everything that she has - John Mortimeri - John Mortimeri already read in the pleadings. Rumpole on Trial Recently a lawyer painstakingly Rumpole on Trial explained the holding in a key case on Judges can generally tell if yöu like (6) Be Prepared. Careful prepara- expert testimony to a disgusted judge. tion is fundamental to the effective prac- Knowledge of the judge/s backgroundi and respect them. Judgesi being humani tice of law. Preparationi for motion and a closer reading of the casei would tend to respect or like people who like them. Your feelings about members of the hearingi should include consideration of have provided the lawyer with the possible questions from the Court. Ade- relevant information that this judge had Bench, whether expressed i demonstratedi quate preparation insures that you won/t tried the referenced case and authored or suggested by your attitudei are not be tied to your notes and can meaning- several articles on expert testimony and likely to be lost on the judge. fully respond to questions from the Court. did not need or appreciate the lawyerls If you communicate contempt to a Your witnesses also need to be prepared simplistici condescending approach. judgei Ws diffcult for the court to ignore for a courtroom experience. They are (8) Remember Judges Are this lIinput.1I Human. Judges are not perfect. How-

v 0 I R D IRE WIN T E R I 9 9 6 . 37 As we bowed to each other I gave i.e., "jerk litigators,"2 who treat one tinuances, and abide by the rule on page my opponent a whispered another with a lack of civility, or unskilled limitations, when filing memoranda. character sketch. "This iudge," I lawyers, who have literally construed the (10) Consider Your Audience. told her, "is an absolute four-letter phrase "practicing the law." When you choose your words and your man. He's humorless, tedious, "You never wanted to be a iudge, delivery style, it is wise to remember to unimaginative and uniust. In a did you, Rumpole?" whom you're directing your words. word, he's a iudicial pain in the "Judging people? Condemning " Mr. Rumpole," the Judge behind." them? No, that's not my line, said. "' think perhaps you need Having bowed, Graves was exactly. Anyway, iudges are meant reminding. That iury-box is empty" still standing and made a pro- to keep quiet in court." I looked at it. His Lordship was nouncement, in my direction. "And they're much more re- perfectly right. The twelve puzzled "Mr. Rumpole, it may come as stricted, aren't they?" It may have and honest citizens, picked off the a surprise to you to know that the sounded an innocent question on street at random, were conspicuous acoustics in this Court are abso- a matter of general interest, but by their absence. This was one of lutely perfect and my hearing is her voice was full of menace. the occasions, strange to Rumpole, exceptionally keen. I can hear "Restricted" I repeated, play- of a trial by Judge alone . . . . every word that is spoken on ing for time. "It is therefore, Mr. Rumpole, Counsel's benches." "Stuck in Court all day, in the not an occasion for emotional - John Mortimer, Rumpole and public eye and on their best appeals. " The Judge continued his the Reform of Joby Jenson behavior. They have far less scope lesson. "Perhaps it would be more than you to indulge in other useful if you gave me some Judges come on the Bench with activities. . . ." relevan~ dates and a comparison varying degrees of experience. Under- of the rif) wills." - John Mortimer, standing a judge's experience or inex- Rumpole on Trial - John Mortimer perience and tailoring your arguments "to fit" the judge, is wise. (9) Avoid Abuse of the Court Most of my favorite people (including Just as lawyers seek humane treat- and Court Resources. Make a good most of my family) are lawyers, so I will ment from the Bench, judges appreciate faith effort to resolve disputes, without the always try to treat counsel with respect this. The majority of judges have huge court's involvement, when possible. Have and understanding. These tips may help case loads, immense responsibilities, and your exhibits pre-marked, to avoid wast- you with my colleagues-who aren't all little support. Additionally, judges have to ing trial time. Get pleadings in on time. as "lawyer-friendly" as I am. 1- deal with the occasional difficult attorney, Avoid requesting unnecessary trial con-

2"Jerk litigotors" is a term used in What Lawyers Want from Judges by Leonard Hand, Voir Dire, vol. 1, No, 1, Spring 1995.

38. v 0 I R D IRE WI N T E R I 9 9 6 Smoothing the Bumps Along the Way to Uniform Procedure

by Roger H. Bullock

Believe it or noti there was a time piece of legislation i bringing help to should take a lesson from thisi and when bureaucracy was not a dirty word. victims often made desperate in their evaluate seriously whether an ex parte It meant the administration of rules by own homes. Judges are assigned to be attempt to get an order is appropriate. routine guidelines so the players could available on short noticei including late Sometimes this is difficult in the face of a rely on a known (or knowable) path to afternoonsi and the procedure is c1ienfs remonstrations that irreparable get their jobs done. For the Chinese accessible to those who do not have an harm is about to occur. Neverthelessi an Empire of 200 B.C.1 which radicalized attorney. But the procedure also opens aware lawyer knows that sometimes such government with iti bureaucracy was the door to abuse by lawyers and matters are not the crises they first immensely preferable to the alternative of parties, for examplei as a pretext to get appear to be. Furtheri most legal wrongs unique approaches to individual poten- the adverse spouse out of the house a can be repaired by money damages. tatesi each with his own procedurei few days before filing a divorce com- If a restraining order is indeed essen- tial, it is a rare application that truly must agendai and idiosyncrasies. .. The importance of civilized civil go forward ex parte. Most lawyers notice procedure in Utah courts has never been wyers are well advised early in their practices that it is easier to greater. In the Third Judicial District Court to use lex parte proceduresj prevail in the absence of oppositioni and alone there are fourteen district judgesi only after careful scrutiny of the temptation to skirt the notice require- who deal with 3500 lawyers and ments therefore is great. But do the right 20/000 new matters each year. The num- clients' accounts of facts thing. Try to inform the opposition i and bers are different in other districtsi but the and nee provide reasonable notice. Give what- principle is the same. Whether we like it .. ever notice you can, however informali or noti growth and complexity are facts under the circumstances. Give notice to of life. The court bureaucracy functions plaint. The ex parte format is necessary unrepresented parties. For examplei you well only when judges and lawyers fol- to get timely action. On the other hand, may suspect that the opposing party has low both the letter and the spirit of rules. by the very nature of ex parte pro- talked to an attorney andi if you aski the On an evening in Decemberi many ceedingsi the adverse spouse is denied a party may identify the attorneyi allowing members of the Bar gave up some pre- hearing. The judges on the panel ques- you to notify him or her. Your presen- cious dinner time to attend /IAn Evening tion applicants carefully, and have been tation may not go as smoothly as it would With the Third District Court/l to listen to known to telephone the adverse spouse if it had been unopposedi but you can be judges Bill Bohlingi Glenn Iwasaki, and in the middle of an ex parte application. sure the judge/s deliberation of your Anne Stirbai panelists Mike Mohrman Lawyers are well advised to use this argument will be properly influenced by and Patricia O/Rorkel and gadfly mod- procedure only after careful scrutiny of the fact that it is not ex parte. erator Ross /lRockl Anderson. clients' accounts of facts and needs. The ex parte temptation is not limited Messages abounded. The wisdom might Credibility is extremely important in this to domestic orders and other types of condense into these two propositions: arena. If you are too easily sold on your temporary restraining orders. Judgesi like c1ienfs story at the expense of the other everyone elsei are entitled to have friends. 1. Rules should be utilized in a party's due process, the judge will remem- Some of those friends may even be lawyers. reasonable manner consistent with beri and more importantlyi you will have Friends socializei trade ideasi and do their obvious purpose. misused the procedure. If the day comes small personal courtesies for each other. 2. Rule 1 apples to all players, when critics of the Cohabitant Abuse Act This is the stuff that makes the world go judges and lawyers alike. Each must complain that it does not work because round. But when you seek preference do his or her best. the lawyers abuse it, the fault will be ours. based on your familiarity with the judge, Some specific areas covered by the Similar challenges arise in other ex even on procedural matters you deem minori speakers: parte proceedings for temporary orders you have crossed the line. See Rule 3.51 Ex Parte Perils. The Cohabitant Abuse under Rule 651 Utah Rules of Civil Canon 2(B), 3(B)(7) Rules of Professional Act (Utah Code Annotatedi section 30-6- Procedure. The judges have seen more of Conduct. Judges are sensitive to this poten- 11 et seq.) provides an expedited proce- these than most lawyers havei and they tial problem. Friendship is too valuable in dure for protective orders, usually on an are very reluctant to grant relief ex parte. life to squander in this way. ex parte basis. This is an enlightened Most judges are also mindful of the high Trial Schedule. When it comes to

standards for obtaining temporary orders. moving a civil matter toward resolution i

Mr. Bullock is a partner of the Salt Lake City law See UTAH R. CiV. P. 65A(b). Lawyers any schedule is better than no schedule. firm Strong & Hanni.

v 0 I R D IRE WIN T E R I 9 9 6 . 39 Rule 16, Utah Rules of Civil Procedure, beforehand, and submit a proposed sched- own inertia and unfamiliarity, but these governing pretrial, scheduling, and man- uling order prior to the conference. are disabilities we can overcome. agement conferences, is a fine piece of Final pretrial settlement conferences A Closing Note on Civilty. For work on the printed page. But the written under Rule 16(c) are another opportunity every lawyer's story of insensitive treat- rule is worthless if judges refuse Rule 16 for judges to save time by investing a lit- ment by a judge, there is probably a requests for conferences. Analytically, tle. The timing is important. Some judges similar story the judge could telL. Perspec- there are two tracks through state court favor a settlement conference two to four tive is difficult. The lawyer may feel litigation: (1) Rule 16 scheduling confer- weeks before triaL. At that point, the par- bullied and arbitrarily cut off during ences; and (2) certificates of readiness ties and their attorneys are getting very motion argument; the judge may suspect for trial under Rule 4-104, Code of interested in their case, but last minute that the lawyer behaves as if her cause Judicial Administration. A few judges are intensive trial preparation can still be were the only one pending before the known to inexplicably decline Rule 16 saved. Judges should not underestimate court. Some common sense strategies help: conference requests until a certificate of the healthy benefit of their input at the (1) Inform, do not ignore. Telephone calls readiness for trial is filed. Rule 16 settlement conference. Parties may give to the judge's clerk and to other counsel conferences and orders are hard work great weight to the reasoned obser- on scheduling matters can do wonders for everybody, and consume precious court vations of the trial judge. towards lubricating the mechanism of time. Parties often return to court to modify Alternative Dispute Resolution. judicial procedure. Fax and phonemail a scheduling order, alleging changed The Third Judicial District Court and the are great advances. (2) Temper your circumstances. But Rule 16 proceedings Fifth Judicial District Court follow the words. Observe protocol. Be polite. save judicial resources in the long run by court-annexed Alternative Dispute Reso- As our numbers grow and the court sys- moving cases through the discovery lution program for mediation and arbitra- tem expands, we face great challenges process toward potential settlement. The tion. If you have not yet watched the to preserve the quality of justice and col- consensus of the panel was that judges eleven-minute mandatory videotape, you're legiality among lawyers and judges. We should respect Rule 16 requests. If the in for a treat. It is polished and profes- are all on the same basic mission to help court's reticence is based on time constraints, sional, and starts clients thinking about people solve their problems. The admin- perhaps the judge could experiment with dispute resolution, especially through istration of justice is the business, and the directing the parties to meet and confer mediation. The biggest obstacles are our calling, of each of us, lawyers and judges.-- UTAH STATEVVIDE COURT REPORTING UT AH STATEWIDE

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40 . v 0 I R D IRE WIN T E R I 9 9 6 Letters to Lennie

Dear Leonard Hand: ference. The judge indicat~d that complete their work in a timely manner? I realize that the judges and justices the filing of a certificate of readi- If justice delayed is justice denied, there must be very busy with all of their recep- ness for trial must be filed in order are many on the bench who clearly are tions, luncheons, conventions, retreats, to obtain a trial date. (Of course, not doing justice. committees, boards and councils; how- had discovery been completed, a certificate of read i ness would Peeved at Delays ever, is there anything that can be done to get those who are far behind in have been filed in the first place.) deciding cases to attend once in a while Now, without a scheduling order in place, the case continues to to their judging? I recently surveyed some LENNIE RESPONDS of my colleagues and have heard the languish" without any deadlines, following nightmare accounts of delay in with discovery slowly plodding Dear Peeved: our system of justice: along, and without a trial setting. Your concerns are shared by many of - One relatively uncomplicated case + your colleagues who are too shy to speak out. Our Supreme Court has limited itself was before the Utah Supreme justice delayed is justice Court for five years-two years to deciding only one hundred cases a denied, there are many year and, even so, seems unable to before oral argument and three more years between oral argu- on the bench who clearly handle that many on a timely basis, ment and the opinion. are not doing justic Utah Code Annotated, section 78-7- 25, requires trial judges to decide all - In one case pending before the + matters within sixty days, unless the Utah Supreme Court, the plaintiff, - A few years ago, a motion to circumstances causing the delay are who is medically disabled, was dismiss was timely filed in the beyond the judge's personal control. awarded a verdict in early 1993 United States Federal Court soon Remember term papers in college? to cover his medical expenses and after service of a complaint. The Sure you do. Remember how you prom- lost wages. The case was trial judge took the matter under ised yourself to write each new one long appealed in July 1993 and oral "advisement". Thereafter, the defen- before it was due, thoughtfully and with argument was held fifteen months dant paid his lawyers in excess of care? Remember what actually hap- ago. No opinion has yet been $125,000 during the course of pened? You wrote each in a blind, issued. Because of the appeal, the extensive discovery over the next caffeine-induced frenzy the day before it plaintiff has not yet received one eighteen months. At a pretrial con- was due. That's only human nature. cent and there is no telling hoVý ference, the judge, almost off- Judges, being human, are subject to long it will be before the Court handedly, stated that he was grant- human nature. Think of their written finally decides the case. (One ingthe motion to dismiss. (Cur- opinions as being term papers, but term hopes that the plaintiff wiH be rently in another case, a motion papers with no deadline. Does it surprise al,ive by the time a decision is for summary judgment, which was you that things get put off so long? rendered.) Some of the issues in filed nearly two years ago, is still I have a few thoughts on how to solve that case are also involved in pending before that same judge!) this problem, some of which have been other cases, which are currently on These, illustrations are only a few of followed for years by other states: hold pending the decision of the many instances of incredible delays in 1. Let's impose terms of court on the CoUrt. Thus is the delay multiplied! the workings of our judicial system. Three Utah Supreme Court and the Utah Court - In a case that has been languish- questions: . What can be done to get of Appeals, just as the United States ing in state court for more than a these judges to do their job in a timely Supreme Court has. All matters must be year, plaintiffs counsel filed a manner? How can a lawyer explain to argued and decided in one term. No Motion for Scheduling Conference his clients' and others the ridiculous delay ca rry-overs. in order that discovery deadlines and waste caused by dilatory judges? 2. Publish a list in the next edition of could be set and the matter prö- And how is the judicial system ever to Voir Dire of the most egregious offenders ceedin a timely manner to triaL. regain respect in our society when judges on the Bench. We all know who they are.

The trial judge denied the motion, demonstrate their arrogance and disdain Let's let. them know that we know who refusing to set a scheduling con- for the interests of litigants by failing to they are, even if we can't impeach them.

v 0 I R D IRE WIN T E R 1 9 9 6 . 41 3. Send an underling down to the decision from the court and intemperately are not only provided for under the rules; offending judge/s court to discreetly ask expressing displeasure with the delays in they are probably the best tool for the clerk if the judge has reached a deci- the judicial system. moving cases alongi in a timely fashion, sion on your motion yet. Tell him to sit there 5. Call the court clerk and identify toward a conclusion. Nothing ensures in that courtroom, day after dayi watch- yourself as a reporter from The Wall that foot-dragging counsel get their ing the proceedings, not making a nui- Street Journal. Inquire about the decision discovery completed like witness-desig- sance, but occasIonally making inquiries and when it might be expected, noting nation and discovery deadlines. And, of the c1erkl and to never leave until the that it concerns a timely and important nothing motivates a party to settle a case judge writes the overdue opinion. Have issue and might receive prominent cover- like a looming trial date. I- your friends in other firms do the same age in the Ilaw and Lawyersll section, thing with their overdue motions and but only if it can make it in the news" Peace and Justice, underworked messengers. paper within the month. Lennie 4. Write a IIfriendlyll letter to the 6. Somehow educate certain state offending judge on your opposing coun- trial judges about Utah Rule of Civil sells stationary demanding a prompt Procedure 16. Scheduling conferences

Litigation Section Announces Trial Academy 1996

The Litigation Section of the Utah State Bar On February 22, the first session wil be held in announces its first annual Trial Academy. The Judge Pat Brian's courtroom from 6:00 to 8:00 p.m. Academy wil consist of evening seminars held every Prominent local trial attorneys wil demonstrate the other month taught by top-notch trial practitioners, jury selection process using a live jury and a federal focusing on basic trial skils for the trial lawyer. and state judge sitting jointly on the bench. The tentative schedule is as follows: Students wil receive two CLE credit hours for February 22, 1996: Jury Selection each session attended. The cost is $20 per session April 25, 1996: Opening Statements for Litigation Section members, and $30 per session June 27, 1996: Direct Examination for non-members. Students may sign up for the August 29, 1996: Cross Examination entire six sessions at a cost of $100 for Section October 24, 1996: Exhibits at Trial members, and $150 for non-members. December 19, 1996: Closing Argument Enrollment for the February 22 session is limited This promises to be the most in-depth training to fort students. To register, call Monica Jergensen program available for the Utah lawyer on the basics at the Utah State Bar offices at 531-9077. For further of trial practice in our local courts. It is designed to information on the program, contact Francis Carney acquaint the new and not-so-new lawyer with the at 532-7300. basics and some of the intricacies they wil encounter in court.

42. VOIR DIRE WINTER 1996 ,si

iN MEMORIAM

Robert D. Moore

By Kevin M. McDonough

On August 14, 1995, the Utah Bob was genuinely proud of his legal community suffered a tremendous profession. On one occasion, he was loss when Robert D. Moore unex- cross-examining a witness in federal pectedly died while vacationing out- court when the witness made a flippant side of the country. The personal loss comment that Bob perceived as being that I feel is overwhelming, because derogatory to the legal profession. Bob was my friend, my uncle, and my Bob took it personally, and in his mentor, with whom I practiced law for characteristically loud and booming the past nine years. voice, chastised the witness, informing Although I knew Bob for virtually the witness that he (Bob) took great my entire life, it was not until I began pride in being a member of the legal working with him in 1986 that I came profession. to fully realize, and appreciatei the Although Bob was absorbed in the complete person of Bob Moore. and the greater the odds against his practice of law, he certainly was not all Having daily contact with someone client, the more zealöus he became. business. Oftentimes Bob called me allows you to see their many different I greatly benefitted from Bob's into his office to discuss a case we qualities, and I consider myself fortu- unyielding passion for the law. You were working on, and after we had nate to have had the opportunity to do simply do not practice law with an discussed the issues at hand, we this with Bob. attorney the caliber of Bob Moore ended up discussing how the Univer- For Bob, practicing law was almost without walking away a better sity of Utah football team or the Utah an obsession. He was entirely devoted attorney, and a better person. Jazz had fared that weekendi and how to each of his clients, whether the client Bob not only was a great prac- we would have done things differently. was a wealthy corporation, or an titioner, but a great teacher. In addition Other times, Bob summoned me to tell individual of little means. Most of the to instilling in me the fundamentals of me about a challenging golf course he people Bob represented fit more practicing law, he taught me how to had played, and we ended up dis- squarely within the latter category, practice law ethically, and with cussing strategy to employ in an because Bob Was a champion of the dedication. Bob taught as much by upcoming triaL. small person. He enjoyed representing example as by instruction, which is not Bob had a knack for striking a bal- underdogs, and took on causes no one to say that he did not verbally express ance between business matters and else would touch. Bob represented his feelings. If Bob felt I had handled a non-business matters, and always people without reservation, pursuing matter inadequately, he certainly let maintained a sense of humor. Even their causes as though he personally me know that perhaps I should have during the heat of battle, Bob was able had something at stake. Anyone who done something differently. By the to employ his subtle sense of humor practiced law with Bob or against him, same tokeni he was never short on while getting his point across. On a knows well that Bob was never praise for a job well done. Bob could recent occasion, opposing counsel was intimidated by any person or situation, anger you, embarrass you, praise you, cross-examining one of our witnesses, and make you laugh-all in the same re-plowing an area of inquiry upon afternoon. which he had already expended con- Mr. McDonough is of counsel to the Salt Lake City law firm Giauque, Crockett, Bendinger & siderable time. Bob became impatient, Peterson.

VOIR DIRE WINTER 1996.43 and objected to the line of questioning and civic affairs. In addition to being a Chair of Law-Layman Conference of as being "asked and answeredi argu- well-respected trial lawyer for more the Intermountain Area, Chair of the mentative and boring." The objection than thirty years, Bob was a leader in Legislative Committee for the Utah was sustained. At the conclusion of trial the Utah Democratic Party, having State Bar, and he was on the Judicial that day, I told Bob I had never heard served as chairman of the Salt Lake Selection Committee for the Third an objection bottomed on the ground County Democratic Party. He also Judicial District Court of Utah. At the of being ''boring.' Bob simply smiled, served as a delegate to national time of his death, Bob was a member and advised me never to so object. presidential nominating conventions, of the American Inn of Court, and was Bob also was a family man. He rev- as Salt Lake County Chairman of practicing law, of counsel, to the firm eled in each of his childrens' accomplish- former Governor Calvin Rampton's of Giauque, Crockett, Bendinger & ments, and he was never shy about three election campaigns, as chairman Peterson. He also was active in the boasting about his wonderful wife. of Pat Shea's gubernatorial campaign, Catholic Church, and served on the Before his children grew up and and as General Counsel for the Board of Directors of Catholic Commu- ventured out (world-wide) on their own, Democratic Committee for Rules and nity Services of Utah. the family took vacations to go deep- Procedures for National Conventions. As I sit in my offce adjacent to the sea fishing off the coast of Mexico, Bob also was President of the office Bob previously occupied, I can and to Ireland to get a better handle on Board of Directors of the University still hear his booming voice and family heritage. Club, on the Board of Directors of Fort infectious laugh. To use a cliche, Bob Bob's specific accomplishments are Douglas/ Hidden Valley Country Club, Moore truly was "bigger than life," almost too numerous to list, because he anda Member of the National Public 1- was actively involved in community Lands Advisory Board. Bob served as

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" 44. VOIR DIRE WINTER I996 p.N\ \J S E MEN TIN THE LA tv

And What No Good Can You Be Up to During Time Out?

APPENDIX B from the case liaison logistics com- out periods. This rule is designed mittee which will be strung around to prevent counsel from spending "Time Out" Rule his, her or its neck. When a time more than one week of their time out is desired, the designated with their family, friends, partners A. Statement of Rule whistler will go to the offices of and associates. For no good cause shown * opposing lead counsel (see ~ 4. As stated above, each side each side will be entitled to three XVI.E.) and blow the whistle three will be entitled to only three time (3) time outs between now and the (3) times. Thereafter there will be outs. Any attempt by any side to date of triaL. A time out is defined a one (1) week time out. exceed this three time out limit will as a one week period in which no be regarded by the Court as a discovery can be served, all dead- 2. As stated above, each is serious infraction of the rules (here- lines are postponed and counsel entitled to three time outs. How- ever during the period of the two inafter "illegal use of whistle"). can generally goof off. month warning (see ~ B below) The sanction for illegal use of 1. The procedure for calling a each side will be entitled to only whistle will be that such counsel time out will be as follows: one time out, providing that side attempting to exceed the three Both plaintiffs and defendants still has remaining at least one time outs will have his, her or its will designate one individual as time out. desk moved five yards (in the event of a non-flagrant violation) the official time out persons (here- 3. Time outs must not be called inafter referred to as the "Desig- on two consecutive one week or fifteen yards (in the event of a nated Whistler"). The designated periods. That is there must be an flagrant infraction) further from the whistler will be issued a whistle intervening week between time jury box at triaL.

*No good cause shown is defined as family events, such as anniversaries, anything else which helps attorneys to keep their sanity during the course of these birthdays, sporting events involving siblings, laziness, genuine ennui (pronounced proceedings. NUE); drunkenness, firm events, such as annual dinner dance or outing; and

v 0 I R D IRE WIN T E R I 9 9 6. 45 B. Two Month Warning Is the Law a Lass As stated abovei there will be a two month warning. Such a two (Light (See Proverbs 6:23) and month warning will be called by Ass (See Dickens, Nicholas Nickleby))? the Court two months prior to triaL. At this pointi there will be a three Once upon a timei in lands kangaroo)i 'Rhinokey' (a rhinoc- day stoppage of the clock in fari far awayi lived strange but eros and monkeyL and IBumblelionl which all counsel will be required cuddly creatures that became (a bumblebee and lion). to get their personal affairs in involved in a struggle for identity. Our story now moves to its sad order. Personal affairs will include In IWhatland/ which is just a few conclusion. The creators of the such items cis last Will and Testa- miles north of Fairyland, lived the 'Whats/ who were protected by menti final instructions to spouse 'Whats.1 In the land of Wuzl copyrighti were outraged and and family arrangements for pub- lived the IWuzzles.1 We don/t thought that the creators of the lication of memoirs and other less known where IWUZI wasi but we 'Wuzzlesl had stolen their idea. A important details. are told we could get there if we Isnuzzle a Wuzzle.' It appears lawsuit broke outi with the plain- Zenith Radio Corp. v. Matsushita Elec. tiffsi creators of the 'Whats/ Indus. CO'1 478 F.Supp. 889, 959-60 that for a timei never the two did alleging violation of the federal meet. But one day the creators of (E.D. Pa. 1979). copyright laws and unjust enrich- the IWhats' discovered the ment. The defendants, creators of IWuzzles' and were astonished to the IWuzzles, i have moved for learn that 'Whats' and IWuzzlesl summary judgment, as well as had certain similarities. Most attorney's fees and sanctions specificallyi it seems each IWhaf under 17 U.S.c. § 505 of the and IWuzzlel had the names and Copyright Acti 28 U.S.c. § If you have enioyed a humorous characteristics of two different 1927, and Rule 11 of the Federal or odd experience in the practice of animals combined into one. In Rules of Civil Procedure for lawi please share it with the rest of 'Whatland/ there was 'Me-ousel plaintiffs' pursuit of allegedly us. Submit your amusing storiesi (a mouse and a cat combined), frivolous and vexatious litigation. transcripts or pleadings for publi- 'Wissh' (a walrus and sealL IChuckl This battle on high between cation to Voir Dire Editorial Board, (a chicken and duck), 'Skeef creators has filtered down to us in 50 West Broadway, 700 Bank One (a skunk and parakeetL IPea-tur' this IWhaf-less and 'Wuzzle'-Iess

Tower, Salt Lake City Utah 84101- (a peacock and turkey), 'Gir-itchl land of White Plains. The 2006. Please advise if you do not (a giraffe and ostrich)i leo-lamo' questions before us are really want your name published as having (a lion and lamb), and IBeav-airel quite simplei 'Just whafs a IWhat,' been responsible for the submission. (a beaver and bear). The whafs the similarity between a 'Wuzzlesl included 'MooseI' (a IWhatl and a IWuzzle/ and moose and seal), 'Butterbearl (a 'Wuzzlel we do about it?1 butterfly and bearL 'Hoppopota- Selmon v. Hasbro Bradley, Inc., 669 musl (a rabbit and hippopota- F.Supp. 1267, 1268-1269 (S.D.NY mus), 'Eleroo' (an elephant and 1987) 1-

46. v 0 I R D IRE WIN T E R I 9 9 6 We love being taken to court!

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Trial Academy 1996 to Begin on Febmary 22

The first session of the Litigation Section's annual Trial Academy A live panel wil be seated and a jury selected. The faculty wil wil be held on February 22 in Judge Pat Brian's courtroom. The cover the mechanics of jury selection, the basis for cause challenges, subject wil be 'Jury Selection" and the faculty wil cover every aspect the tactics of peremptory challenges, the use of jury panel of the jury selection process in Utah, with an emphasis on the basics questionnaires, the limitations of court-conducted voir dire, the use of for the novice lawyer. supplemental attorney voir dire, the proper use of in-chambers

Judge Brian and Judge Dee Benson (Unites States District Court) conferences, the differences in procedures among the state and wil preside jointly. David Jordan (Stoel, Rives, Boley, Jones & Grey) federal COUlts, and other key concepts the lawyer should understand and Gordon Campbell (Assistant United States Attorney) wil act as before picking a jury. Every lawyer who has never picked a jury and

counsel for Plaintiff. Richard Burbidge (Burbidge & Mitchell) and has a trial on their calendar should plan on attending,

Ross Anderson (Anderson & Karrenberg) wil represent the defense, Enrollment is limited and is nearly closed, So please call Monica

Eddie the whooping llama wil seive drinks. Jergensen at' 531-9077 imediately if you'd like to register. "

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