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AJJu•~I d11up •P~ 10a..11 •ao •llf')' l:ft dw 111111,Noet: aAl('.anJ lt>Ol1.1\ h IIOl 111(h-.""1,.~ ~ ro 011the Cover Waterfallnl ChewaclaStat e Park,near Auburn, Alabama. Chcwac la State Park is comprisedof 696acres l yingon tl1e geographicalfoult line separa ting the PiedmontP lalc.iufrom th e LowerCoastal Plain. Unique rock formations and a varietyof trees,nowers and wi ldlifecan be foundthroughout the park. -Photo by Poul Crawford.JD, CW IN THIS ISSUE STATEBAR M EMBERSLABOR AT SUMMEROLYMPIC S By Susan Cullen Anderson ...... • ..•...... ••...... 22 FALL1996 ADMITIEES •••...... •...... • .•••.•••... 25 OPENINGOF COURTS OCTOBER7, 1996...... 37 THE ETHICSOF TIME-BASED Bil.LINC B YATroRNEYS By WilliamC . Ross ...... 40 PROBLEMSAPl'LYINC THE LtFE OF GEORGJAII. JOHNSONCASE IN THEPR ODUCTLIABILITY S1'."ITLNG: WHERED o WE Co WITH PUNITIVE0 At>1AGES AFTERBMW V. GORE? ByAndrew C. Clausenand AnnetteM. Carwie •. ••.• • ..•.••.... 46 REsPECTINGTHE R ULES: THE Lowe-EDGARABERRATION ENDANGE RSTHE INTEGRITYo~· R ULES]8(c), 20, 21, ANO42(8) ByJer ome 1\ lloffman...... 54 fhr,IJut,m,u IAm·~t II f,jfi'f·f'JIPffiflll Publishedseven limes a yea, (lhe June issue Is a bar directo • ,,., ji'J)'\lfff. TlwAlflbamalAU/ler Alabama Bar Institute for Continuing LegalEducation ALABAMALAWYERS SERVlNG ALABAMA LAWYERS "I always have been impressed with the tremendous quality of the bar in our State. The quality of our lawyers is evidem in their commitmentto continuing legaleducation . As technology brings about greater changesin our profession, l am confident that our continued commitment in that regardwill keep us at the forefronto f our profession and enable us to maintain our high standards of quality." DavidG. Hymer Bradley,Arant, Rose & White Birmingham, Alabama Call ABICLEat 1-800-627-6514 or 205,348-6230for progr.1m information. Bg m,mm8. lightfool his is my third Pre. CODE OF NCRA CONTRACTING PROFESSIONAL ETID CS DISCLOSURE POLICY A Member Shall: l. A counrcponcr shallalways disclose 10all panics I. Be fnir nnd irnparlialtoward each par1icip:mtin oil prcscnl at a deposilionthe c.'Clstenccof any dirnct or indirccl conl.nlCtingrelationship \\ilh any n11omcy :ispccts of rcponcd proceedingi;. or pany to lhe case.so that the other parties may 2. Be nlen 10situations thai arc conlllcts orintcrcsl or exerciselheir rights under Rules28(c), 29 and 11mlmay give the appearanceof a conflictof in1ercst. 32(d) (2) oflhe Federal Rulesof Civil Procedure, If n con0ic1or n potential conflictarises . the Member and comparables1a1e nnd local laws. 10 objce110 lite shall disclose thai confliCIor po1enlialco110ic1. taking of the depositionbecause of lite possible disqualilicationof the coun reponer. This 3. Ounrd ng11ins1 not only the fact bul the appc:irnnccof disclosureshall includel11c idc n1i1yor all principals impropriely. and agents involved i11l11e co ntracting group os well as a descriptionofnll scrvlcesbeing performed 4. Prescr"c the co1tlid.e111iali1y aud ensure the sccurilyof by such court reporter, his or her employer, or any informniion, oml or wri11en.entrusted to lhe Member principal or agent of the c:ontmctinggroup . It is the by nny of 1hcp.1rlies in a proceeding. court reponet's obllgation10 mnkc reasonnble inquiriesand ascertain this infomi,tion before S. Be 1ru1hfuland acc,1r.11ewhen m:utlngpublic accepting auy assignmcnL Sllltemcmsor when ad,·cnisiug the Member's quntilicolionsor 1hcservices provided_ 2. A coun rcponer shall olwaysolfer 10provide comparableservices 10 :ill partles in a cosc. 6. Refmin. as on official reporter, from freelance However.nothing in lltis policy is intended 10 allow reportingactivities that interferewilh officialduties coun rcponers to directly or indirccllyc.~chnnge nod obligmions. informationwith competitorsabout lite prices they charge, or lo discouragein any oilier wny 7. Octcnninc fees indepcndeoUy,exccpl when compctitiooin Ilic servicesoJfcrcd or prices charged csmblishcd by statute or court order. cn1crln g inlo by court reponcrs. no unluwfulagreements wi th 01herreporters on 3. A coun reponcr shall 1101. in act or oppcnroncc, the fees 10o.ny u ser. indicale that the court reporter is parlicipa1ing as 8. Rcfroinfrom giving, dirccllyor imtircclly. nny pan of an advocacysuppon team for nny one of lhc gin. incentive.reward or an}1hingof value. 10 parties. auomcys, clients. wiinesses, insurancecomixmies or 4. A court reponer shall alwayscomply with fcdcrnl, ony Olherpersons or en1itiesassocialcd with Ilic s1a1cnod local laws and rules thnt govern Ute litlg,11io11, or 10the rcprcscntati,-csor agenls of any of conductof court reporters(such as those lhal deal the foregoing.cxccp1 for ilems that do not exceed with certification,confidcruiality and CUSlodyof $100 in lhe aggregate per rccipienlc:icb ycnr . 1ranscripts,and contracting). 9. Maimnin1he integrity ofll,e reponing profession. nwAtaN,,wt.a·va • i:Ul'f:i·\¥1,fifP• l}A_f ~~. ::.. •. -- 0 EXECUTIVEDIRE CTOR'SREPORT By l(eith B. Nomian I am sure you are wondering what both sides that each possessed sufficient I MAOhas to do with our profession. nuclear weaponsto destroy the entire I am writing lhis only days after sever world many times over. al judicial campaigns reached a new Recentjud icial electionsand the low in campaign conducL On an emo• ~!AD doctrine seem lo be strikingly MAD: tional level. I am mad because they similar. For example, one candidate lacked the dignity LhalJud icial cam starts by slightly crossing the line of paigns are supposed lo possess. On a appropriatecampa ign conduct hoping professionalbas is, I am concerned to gain a small edge in the race. The Mutual because the campaign tactics that we olher candidate,fear ing lhat U1eoppo have experienced in this year's elec nent might gain the advantage, tion and the 1994 election are endan responds in kind. bul more negatively. gering the public's respect for the This conduct is repeated with each side Assured judiciary. If the type of campaign con ratcheting up the negativecampaign duct that we have witnessed in the last rhetoric each lime until the campaign two elections continues in future judi becomes embarrassingly undignified. cial elections, we may experience the essentially, the candidates have Destruction mutual assured destruction of our destroyedone another-mutual judicial branch of government assureddestruction. In the process.the For many the acronym MAD is a candidates have lost sight or the harm hauntingly familiar reminder or lhe that is inOictedon the judicial system Cold Warera. Coinedby derensestrate · as a whole. Theirs and their campaign gists in the 1960s.mutual assured advisers' primary concern is U1estrate destructionrefers to lhe policyof gic outcome-winn ing al any cost. nuclear deterrence that guided policy An astute and candid assessment or makers until the adoption of strategic the situation with which 1 happen to arms limitation agreemenlsbetween agree is by Birmingham Bar Association the UnitedSlates and the USSRand the President ClayAlspaugh . In his subsequent collapseor lhe USSR. "Presidenls Message"appearing in the Simply stated, the doctrine of mutual summer 1996i ssue or lhe Birmingham assured destruction made the first Bar AssociationBulletin, he writes: launch of nuclear weaponsb y either the U.S. or the USSRa zero sum outcome. "The sad reality in my mind is that This policymaintained stability we as lawyershave let politicseat its between the two super powers during way into our system of justice. While the Cold War,but it touched off an arms laws obviouslyare a direct product of race betweenthe U.S. and USSR as a 'politics', the administration of same consequence.In order to maintain lhe should not be. Weas lawyerssho uld stabilityof this nuclear deterrence, have the total right of advocacywith in defenseplanners for both sides conlin the lawswiU 1out unjustified criticism of ued to advocatethe buildup of each U1eresult of U1at advocacyso long as side's nuclear arsenal. This expans.ion of that advocacyi s within the bounds of Keith B. Norman nuclear arsenals continued out of fear the law and our Codeof Professional lhat the other side might gain a strate· Conduct. gic edge, despite the recognitionb y "Likewise,the judiciary should be • ·fff· f \'f·f· ff§ijf. ThirAlolxtnw !All!y cr able to interpret those laws and call may exist." IEmphasis in the original! require a change in the method of balls and strikes without pressure fTom Judicial Cllmpaignsshould not be run electing our judiciary because these lhe political right or left and without like ordinary political campaigns. standards are no longer pertinent, is regardto a perception by some that, Canon 7 orthe Canons o( Judicial not the subject of this article. Newr due to partisan political affiliation, that Ethics requires candidates lo "maintain thelw. we must either change lhe pre parlkular party gets lhe calls on lhe the dignity appropriate to judicial sent system or demand that the con comers. Pleaseunderslllnd that I do office.• Weshould not only expect that duct of judicial candidates be dignified not infer,and certainlydo not believe judicial candidates aspire to these high and not destructive. If we let the mad this lo be the case in practice. But, that er standards, but require that they ness continue,we haveno one else lo perception to Ih ose outside the system aclually be followed.Whether this will blame but ourselves. • u..--"~ ...." 1· ....'" I.U.U ...... [ U.La. 1997 ANNUAL MEETING J U LY 1 6 1 9 1 9 9 7 ABOUT MEMBERS, AMONG FIRM S About Members 310, Bim1ingham, 35203.Phon e (205) RichardG. Poff, Jr. announces the RobertG . Saunders announces the 322-3444. opening of his officea t 205N . 20" StreeL relocation of his officeto 170016" J. T"unothySmith announces the relo Suite 310, Birmingham, 35203.Ph one Avenue,So uth, Irondale,35210. Phone cation of his officel o 1678Highwa y 31, (205)322-7050. (205)592-0505 . South, Suite AA.Hoover , 35216.Phone CynthiaCargile M~lean s announces Julie A. Palmer announcesa change of (205)823-1650. the relocationof her officeto 132Cove address to 2068Va lleydaleRoad , Suite C, Ann M. Koszuthannounces her reloca Avenue,Cu l( Shores, 36542.Phone (334) Hoover, 35244. tion to the FederalPublic Defender's 968-5816. The mailing addressis P.O.Box James E. Loris, Jr. announces the relo Office,Western District of Missouri, Suite 1322,Gu lf Shores. 36547. cation of his officeto 209 N.Joachim 3-104,Corpera te Centre, 1949East L. J. Stein, ill announces the opening Street, Mobile, 3ii603-6402. Phone (334) Sunshine, Springfield. Missouri65804. or his officeal U,e Dauphin LawCen ter. 432-3100. Phone (417)881-4090. 150Government Street, Suite 1004. Joan-MarieK .etteUannounces the C. ~licheleAnders announces a change Mobile,36602. The mailing address is P.O. opening of her officeat 108So uth Side of address to 4284Bark ley BridgeRoad. Box1281, 36633. Phone (334)432 -2629. Square,H untsville,35801. Phone (205) Hartselle, 35640. KevinK. Haysannounces the opening 534-4557. James E. Bridges, ill announces Lhe or his ofticeat 200 CanyonPark Drive, Jonathan S. Wessonannounces the opening of his officesin Auburn and Suite 105,Pelham. 35 124. Phone (205) openingo f his officeat the Prank Nelson Tuskegee.Phone (334)887-3434 and 620-5670. Building.205 20"' Street, North, Suite (334)727-3430. Ben C. Hand announcesthe relocation of his officeto 2006Executive Park Drive, Opelika. 36801. Phone (334)741-4077. Among Finns BLUMB ERG EXCELSIOR 'S Joseph T. Carpenter announces that Nathan C. Prater has become an asso ciate. Officesare located at 303 Sterling Centre. 4121 Carmichael Road, Montgomery, 36106. Phone (334)213-5600. DouglasJ. Fees announcesthat Stacey L. Lemleyand RichanlL. Collinshave Ideal for Laser Printers becomeassociates. Offices are locatedal ...... 401-403Madison Streel, Huntsville, lncludes: 1,000 Letterhead s and Envelopes 35801.Phone (205)S36-ll99. 500 Business Cards , 500 Plain Second Sheets Corley, Moncus & Ward announces Also i11cl11desdies and a proof. U1atJ . Thomas King, Jr., former cor porate counsel for Collateral Mortgage 24 lb., 25% Cotton,L aser Finish, White or Bamboo, and New South Federal Savings Bank. RecycledB ond $275 has joined lhe firm as a partner and 24 lb., 50% CottonLaw Bond. White, Bamboo U1atAnnette Tolley Phebus has and LaserWhite $285 become an associate. Offices are Crane's and Gilbert paper at addiJional cost located at 400 Shades Creek Parkway, ...... Suite 100. Birmingham, 35209. E11gravi11gplants in Alba11y, NY and Orln11do, FL Phone (205) 879-5959. Call for samples a11dlegal mpply catalog, RichanlF. Pate & Associatesannounce (800) 22/ -2972, ext. 503. that An1andaS . Hunter, fom,er staff attorney to Judge RogerM. Monroe. AlabamaCourt of CivilAppeals. has Blumberg~cel~Lq,r becomean associate. Officesare locatedat 56-58S. ConceptionStreet, Mobile, 1 111f·ff f,j 'jf·l'i3J'¥fIll rrit Jl/abama Lauyu 36633.Phone (334) 433-0300. 35203.Phone (205) 324-6654. becomea member.Step hen J. Riws & Petersonannounces that Ball.Ba!L Matth ews & NO\-ak Bumgarnerand Blake D. Andrews ha,oe ~lich.'\el£. Hollingsworthn, C. Andrew announcesthat MichaelL Whitehas becomeassociates and that the new \\'atlleworthand Julie M. Collierhave becomean associate.Offices are locatedal firm name is Harris, Cleclder,Berg, becomea,ooci.1tes. Oilices are locatedat 60 CommerceStreet, Suite 1100, Rogers & Hollis. Officesare locatedat 1700Financial Cenler, 505 N.20" Street. Montgomery.36102-2148. The mamng Historic2007 Building.2007 Third Binnlngham, 35203.Phone addressis P.O.Drn"oe,- 2148.Phone Avenue,North, Birmingham.35203. (205)J28..814 I. (334) 834-7680. Phone (205)323-2366. Emond& Vineaannounces thal Rex Cabaniss,Johnston , Gardner, Dumas Robert P. Reynold, announces that Wam,nS late and DavidEdwin Rains & O'Nealannounces thal Joseph V. Jackson E. Duncan. m has become an lul\'ejoined Lhe nrm as a.,;.'\Ociates.Offices Musso. RebeccaO. Parks, Ian 0. associate.OrAces are locatedat 1308 are locatedal 420 N. 20'' Street,2200 Rosenthal, an(I Lisa M. Shannon have GreensboroAvenue. Tusca loosa,35403 . SouthTrustTowers. 13im1lngham. 35203. becomeassociates. Ofnces are located at Phone (205)391 -0073. Phone(205) 324-4000. Park PlaceTower. 200 I Park Place, Murchison Gt.S utley announces U1at Gillion.Brooks & Hambyannounces a North,Suite 700, Birmingham.35203 . Lisa C. Gunter has becomean associ changein the firm name lo Brooks& Phone (205)252-8800. ate. Officesnre locatedat 1600N. Flamby. OfficesDI"' localedal 618 Azalea NajjarOentlburg aMounces that McKenzieStreet, Foley,36535. Phone Road,Mobile, 36609. The mailingaddress Joseph L. Cowan,11 and Jeffrey 0. (334) 943-1579. is P.O.Box 161629,36616-2629. Phone l>)-ess, formerclerk lo the honorable Robison & Belserannounces that ~) 661-4118. WilliamM. Acker, Jr .• UnitedStates MarthaAnn Miller has becomea part Sigler.M OOI"',Clements & Wolfe DistrictJudge for the NorthernDistrict ner, and Chariu 8. Haigler, Ill has announcesthat AlexW. 7,oghbyhas of Alabama.have btcome associates. becomean associateand Julia J. WeUer joinedll1e firm. The new firmname is Oilicesare locatedat 2125 Morris has joined the fim1as a shareholder. Sigler.Moore. Clements, Wolfe & Avenue,Birmingham, 35203. Phone Officesare loc.itedot 210 Commerce Zogbby. Officesare locatedat 2525First (205)250-8400. Street. Second Floor,Montgomery. National BankBuilding, 107 Saint Harris, Clecldcr, Berg & Rogers 36104.i>ho11e (334) 834-7000. FrancisSlreet, Mobile, 36602. announcesthat Jeffrey K. Hollis has Wallace, Jordan, Ratliff & Brandt Phone ('.t14)433 · 7766. Chen;•.Givens, P eters & Lockett announ~-eslh.1l A. CaryJ ones has joined the firm.Offices arc locatedal 163W. ARE YOU PAYING TOO MUCH FOR MainStreet, Dothan,36301. Phone (334) 793-1555. LIFE INSURANCE? Tom Radn~')'& Associatesannounce Through Orone & Associates, you can purchose nlfordoble term life that Thonw A. Radneyhas become a insurnnce from highly rated insurance companies. lb o,'Oidoverpaying, partner.The new firm name is Radney. caU fora (recquote on policiesranging from Sl00.000 up to$25,000,000 Radney& Bl'll"1t. Officesare locatedat to compnre with your currcot life insurance. 56 Court Squ.il"'. AlexCity, 35010. Phone $250,000 Level Tem1 Coverage (205) 234-2547. Male Preferred NonSmoker Spain & Gillonannounces that Gat)' ParkerI-la,< become a partner.and that Age: 30 35 40 45 so 55 60 $167.SO $1,397.50 KarenJoh m, Pclcr Wright, Stnccy L. IOYenr $165 $247.SO $357.SO SSS7.SO $85.~.oo 15 Ycnr $195 $202.50 $297.50 $432.SO $691).00 Sl.070.00 $1,822-'iO McDuffo, FredericL. Smith, Jr., and 20 Yc11r $255 $275.00 $405.00 $600.00 $915.~0 $1.195,00 $2.932.50 Kcny Laheyhave become associates . Officesare localedin The Zinszer $100,000 Level Term Coverage Building,2117 Second Avenue. North. Male Preferred No nSmoke r Birmingham,35208. f'hone Age: 30 35 40 45 55 (205) 328-4100. so 60 10 Year $66.00 $67.00 $99.00 Sl43.00 S22J.OO $342.00 SS59.00 Hing,h'C),' & Junkin announcesthat 15 Ycor $78.00 $81.00 $119.00 $ 173.00 $276.00 $428.00 $729.00 W'mclyH illman. Kltliy Lepperand Allison 20Yenr $102.00 $110.00 $162.00 $240.00 $366.00 SSSS.00 $1,173.00 Shelleyh.Mt become associales. Offices are looitedat 315W. 19"Street, Jasper. 35501.Phone (205) 221-4640.Ken Drane & Associotes Hail'Ston has becomean ~ate in the Carter H. Drane Birminghamoffice. Phone (205) 327-5223. 1-800-554-4599 Durwanl& Cromerannounces the relocation of Its officesto 2015 Second Life lnsurunce • Group Benefits • Estate f' lnm1ing • lhcc utive Benefits Avenue,North, Suite 100,Birmingham, l'h«A~l.w•llff II l>id'f·1'\Bl+f&fll Abou t Member s, Among Firm s Phone (334) 432-5001. become an associate. Officesare located (Qmlinuetl from J)(J!Je.130) Richard W. Pectol & Associates at AmSouth Bank Building.9 Broad announces that Clinton C. Carter has Street. Suite 201. Selma. The mailing announces that Thomas M. Eden, Ill joined the finn. Officesare located at address is I'. 0. Drawer537, has joined the nrm. Officesare located 202 E. Unaka Avenue,Johnson City, 36702-0537. at 2000ASouthBr idge Parkway,Suite Tennessee37601. Phone (423) Carr, Alford, Clausen & McDonald 525, Birmingham, 35209. Phone 928-6106. announces that Pamela A. Moore, A. (205) 870,0555. Ronald W. Wise and William M. Edwin Stuardi, m and W. Benjamin Boardman & Tyra announces that Bowen, Jr., former presiding judge of Broadwater have become associates. Jason P. Tortorici has become an asso U1eA labama Court of Criminal Appeals. ornces are locatedat Suite 5000. One ciate. Officesare located at 104 announce the formation of Wise & SL.Louis Centre, Mobile, 36602.The Inverness Center Place. Suite 325. Bowen. Officesare localed at 2000 mailing address is P.O.Drawer C, Birmingham, 35242-4870.Phone (205) Interstate Park Drive,S uite 105. 36601. Phone (334) 432-1600. 980-6000. Montgomery,36 109. Phone Pruett, Brown, Turner & Horsley Pittman, Pittman & Carwie (334) 260-0003. announces that Dianna Smith. formerly announces that Kathy l'a.rdeo Sherman Dillard, Goozee & King announces of Coopers& Lybrand, has become an has become an associate and T.A. U1alRichard F. Horsley has become a associate. Officesare located in Harding Fendley has joined of counsel. partner and that Todd A. Delcambre Birmingham and GadsdenAlabama. Officesare located at 1111 Dauphin has joined the firm as an associate. Phone (205) 871- 1714and Street, Mobile, 36640-0278. Phone Officesare located al the Massey (205) 546-9666. (334) 433-8383. Building,Suite 600. 290 21• Street. Walston, Stabler, Wells, Anderson & Hartman, Springlleld & Beckham North, Birmingham. 35203. Phone Bains announces that Elizabeth announces that Charlie M. Shah has (205) 251-2823. Holland Hutchins has joined the firm, joined the firm as an associate.Offices Ralph D. Gaines, m. Daniel S. and that Bany A. Brock, Elizabeth are located at 2700 Highway280 South. Wolter and ~le L. Kinney announce Mehaffey Davis and Leland L. Price Suite 360 East, Mountain BrookCenter, the formation of Gaines, Wolter & have become associates. Officesare Birmingham, 35223. Phone Kinney. Officesare locatedal 22 located al 500 Financial Center. 505 20" (205)879-0500. Inverness Center Parkway,Suite 300, Street, North, Birmingham. 35203. Michael P. Windomand Desmond V. Birmingham. 35242. Phone (205) Phone (205) 251-9600. Tobias announces the formation of 980-5888. Bradley P. Ryder and Teresa N. Ryder Windom & Tobias. Officesare located at Pitts, Pitts & Thompson announces announce the formation or Ryder & 1203 Dauphin Street. Mobile, 36604. LhalRi ckman Edgar Williams. ill has Ryder. Officesare localedat 100 JeffersonS treet, Suite 300. Huntsville. 35801. Phone (205) 534-3288.The mailing address is P.O. Box 18095. 35804. Hand Arendall announces that Gregory R. Jj one.shas oined the firm. Frederick G. Helmsing, Jr. has joined the firm as an associate in the Mobile office and Jeny J. Crook, a is an asso "Court surety service no ordinary ciate in Birmingham. Phone (205) 324-4400and (334) 432-5511. agent can match" Adams & Reese announces that W. David Watkins has joined as a partner with the firm. omces are located at the CIVIL COURT BONDS BY PHONE... -I Motel Centre, Suite 900, 200 S. Lamar Street, P.O.Box 24297,Jackson, BY TOMORROW Mississippi39225-4297. Ph one (601) I 353,3234. WilliamM. Hammond, Daniel 8. CURATORS + INJUNCTION t APPEAL t AITACHMENT t DETINUE Feldman and Daniel P. LeHane ADMINISTRATORS t GARNISHMENT t LANDLORD-TENANT announce the formation of Hammond, CONSERVATORS t ALL OTHER FEDERAL & STATE COURT BONDS Feldman & LeHane. Officesa re located at 205 20" Street, North, Suite 615, Binningham, 35203. Phone (205) 1-800-27 4-2663 322-2260. • II Rfi·iil't ·i·iii+im Tli,;1 '10/xmw lauyer :\ T & T P R O F I T B Y A S S <) C I .\ T I O \: With The Alaban,a StaleBar, The Guarantees AreYours. The Alalx1111aS1111 c ll:1r puts everythingon on.: bill, helps you find :..,fc.ind jusr to m:1ke it ca;,y. L'tl\) ' W'd)'S over ~ unCL't• Kl&T~ gu~mnrL~ru-e the win11csof husiness. i-o" most e.~ensi,•t•ln the ,11~,· hcl\C te:imL-d up wilh industl)• G1wm111c'edrelia AT&T10 offer you nn e:1,i• bility'. G11mr11t/(.'!'(/do mestic wai• to gain eiom s:ivil18S and i111ern31io n31f: t~ 0 11lo ng dislllnce service delivery'· And f?t1t1ra11teed that'~ g1u1ra11tL'ed'. compctirivcptiecs'. AT&TProfit BrAssociation give, you 3 Cro.-;sme bridge. 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Ely, Birminghamwas awarded the U.M. in an associatewiU1 a membero f the Thxalion by the Universityof Alabama Ball,Ball, firmofTunner & Schoolo f Law.He is a 1988a dmittee to the Matthews& Guin, has been Alabama State Bar. Novakof electeda fellowof Montgomery,has the American • BibbAllen , a seniorpa rtner in the beense lectedas Collegeof Tax Birminghamfirm of Rives& Peterson, one of two1 997 Counsel. Criteria recently had publishedhis comprehensive recipientsof the for membership source on liability insurancel aw.Alabama Pegasus include at least 15 liabililg Jmurance HandbooA·. ScholarshipTrust for YoungLawyers. yearsin the practice of lawwi th the principal Allenis a graduate of the University of This trust,whose patron i s HRHThe part of the time devotedto lax and tax-relat AlabamaSchool o f Lawand is a professora l PrincePhi lip,Duke of Edinburghof Great ed matters,com mitment to the practiceof the Birmingham School of Law.He is a Britain, selectsthe recipientsof this scholar la,vthroug h activeinvolveme nt in the work memberof the Pederation of Insurance ship.Awarded annually, the Pegasusenables of the TuxSectio n of the AmericanBa r Counsel, the InternationalAssociation of Americansto studywith Englishbarristers Association, by planninga nd speakingin tax Defense Counsel, the International Academy in the Courtsof London for the monthsof seminarsand programsacross t he country. ofTr ial Lawyers, the AlabamaDefense February,March and April.Based on her by holdingoffice i n taxcommittees or sec Law)'ersAssociation, an d the American applicationthroug h the MontgomeryInn of tionsof regional, stateor local bar associa Boardof Tria l Advocates. He is alsoa l'ellow Court and her strongletters o f recommen tions,through significant legal wriling or of the AmericanBar Foundatio n and the dation,Alford was ch05en along with Jan teaching in U,efie ld of taxation, or byho ld AmericanCollege of TrialLawyers. Michelsen of Indianapolis. ing a high leveltax ad ministrationpos ition Alfordwill be an observerin various with the federalgovemmenL • EleanorI. courts, includingthe Houseof Lords,Pr ivy Heis pastchair of lhe 'i'dxSection a nd Brooks, district Council and the Lord Chancellor; the CommunicationsLaw Section o f the attorneyfor CommercialJudges and QueensBe nch AlabamaSt1te Bar and presentlyserves as Montgomery Mastersat the Royal Courtsof Justice;the vice-chair of the Tax& fiscal Policy County, was OldBailey; Marylebon Magistrates Court; the Committeeof the BusinessCouncil o f recentlye lected Inns of CourtSchoo l ofLaw; the ~·acuityof Alabamaan d as Alabamaed itor of StateTux U1ird vice-presi• Advocatesin Edinburgh,Sco Uand;and the Nolesan d SouU,eastem TaxAlert. He is also dent of the LordCh ief Justice, HighCo urt and Crown a memberof the advisoryboard of Vanderbill National Board Courti n Belfast, Ireland.S he mayalso t.ike University'sPaul J. HartmanState & Local of Directorso f part in a residentialweekend at Windsor Tax1-'orum and the BoardofDirectors of the Girl Scoutsof GreatPark a nd a week'sma rshaJling on cir PublicAffairs Research Council of Alabama. the USAduring cuit with a highcourt judge. Ely is one of the principalauthors of the the Girl Scouts'Natio nal Council Session, recently-enactedAlabama l,imited Liabi lity October 11-14. • MichaelChambers , a partnerin the Partnership Actof 1996and co-authoredtl1 e Brooksis the first womanelected as Mobilefirm of McRigh~Jackson, Donnan, ABA'sModel S CorporationIncome Tax Act district attorneya nd recentlybecame a Myrick & Moore.L.L.C., was recently award (1988),the 1992Taxpayers' Bill of Rights, F'ellowo r the American Collegeof eda doctoratefrom lhe international law, and the AlabamaLim ited Liability Company ProsecutingAttorn eys. sectiono f the GraduateInstitute of Actof 1993. She hasserved the nationalGirl Scou t International Studiesat the Universityof He receivedhis undergraduateand law organi1.ationas a memberof its boardof Genevain Geneva.Switurland. The doctor· degreesfrom the Universityof Alabama an II f·f'Jj//'J·);\ll+fII ThttAlabama UlJL'flrT --, ,- - 1,u:. r iabiliitt1no iua~ ce.,, pyofeoouuu:iL~,w,tnd eJXLl,uoWb fza&t d, iJziotralilYfar o4 n ifo4 [ab{Vl'l(JI ttomeys ' tf~S t.a,te,a , dt,alita!Jb Advanlage is dl( exlending a specia I by,o4ttJJJ 'l'liY6' o4 J invilation lo lawyers in Alabama Simply conlacl Professional Liability . Insurance , Inc. lo receive y our \- no-obligation quolation. Plu S, - you'll receive a complimen la ry - . . . copy o1 The Ousrter Hour, our • Flnanc,alStab1hty ••• policyholder risk management Allorneys' Advantage is underw rilten by TIG newsletter . Insurance Company, A.M. Besl raled A (Excellent). XI. 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Box 2287 Available with an agg regale deducllble 300 Delaware Av e nue , 17th Floor option. plus per claim deduclibles up to Wilmingt o n, OE 19899 $25,000 . All deductJbles apply only to any 1-80<>-441·9385 • Fax 1-800· 716-341 1 loss amounts you may Incur, DlU defense costs . Administered oy: Underwritten by: mrT1 Profestitmalliability ~ l11s11ra11ce, l 11c. a INSURANCE. 0\99&A1iorney,'Aava.n1age lnsuranc 1 Agoncy, Inc BUILDING ALABAMA'SCOURTHOUSES BySamuel A. Rumore. Jr. on tl1eAlabama River which tl1eIndi ans Lowndes County believedwas impregnablebecause i t was surroundedby creeks. swamps,thickets and the river.They were followedthere by I' owndesC-Ounly, in south central troopssent from SL Stephensunder the .IJA !abama,is lhe site of a well-known leadershipof BrigadierGe neral Ferdinand story involvingone of Alabama's most L. Claiborne, the brother of Louisiana famous and colorfulIndian chiefs, Red GovernorWilliam Claiborne. One of the Eagle.Red Eag le wasa half-breed, having supplyp oints General Claiborneestab a Scottishfather and a Creek Indian lishedduring this campaignwas fort mother. He was knownas William Deposit, the name of a U1rivingLowndes Weatherfordto the white settlers who Countytown to this day. On December 23, knew his faU1er. His leadershipro le in 1813,C laiborne's troopsand Indianallies the massacreof ,vhite seltlersal Fort attackedthe HolyGround. They comp lete Mimsin Baldwin Countyon August30 , ly routed the Creeksand burned the vil 1813 was the precursorof the military lage the Creekshad establishedthere. encounter in LowndesCounty fro m Claiborne'smen droveU 1e Creeksout of which the story arose.The encounter central Alabama. took placeat a site called the Holy Red Eagle's escape from the Holy Ground, or lkanatchakai n the Creek Ground is the basis of the story. part leg Indianlang uage. end and part fact, which is still told about After~·ort Mims, Red Eagle 's warriors him. When the battle was lost and the gatheredat the Holy Ground, a high bluff Indiansbegan escapingac ross the river in Lowndes County Established : 1830 ...... The following continuesa history { . of Alabama'sco unty courthouses /heir or~qins and some of the people '~ who contributed to their growth. If you have any photographsof early or present courthouses,please for ward them lo: Samuel A Rumore, Jr., Miglionico & Rumore,1230 Brown Marx Tower,Bi rmingham, Oti!Jbuz/L,, u,ndesCo unty CcurlhoUSI! Alabama 35203. l#t·iti'i·i.;3 f:ij f bo.'itsor by swimming.Red Eagle on his horse, Arrow. defiantlyopposed C laiborne's I forces.See ing that his only e5'ape from capture and death was a leap into the river, the story goesthat he racedhis horse to the edge of the bluff and cloveon horsebackinto lhe Al.ib;imaRiVi?r . Some accountssay the bluffwas 20 fe£thigh, others 50, and oth ers higher still. Survivingthe di\'e,Red Eagle escaped in a h.iilof bullets lo fightagain at Horseshoe Bend. Followingth e ultimate defeatof the Crwks in 1814, many settlers from South CarolinamO\-'ed into the terri- schoolsin South Carolina.In 1802he MontgomeryCounty was paid $25 from tory lhat wouldbecome Lowndes marriedEli1.abelh Pinckney, a daughteror MontgomeryCounty's treasury to conduct County. McGill's Mill.a village named for ThomasPinckney, the formergovernor of lhe LowndesCounty election. early residentsand Inter called South C;irolina.Lc7,,11des practiced law for In VolumeI of the LowndesCounty Lowndesboro.was Sd in tents. They October27, 1822. Court Mouse.In a su1mlement to the kepi the name BigSwa mp for their settlc The most fittingepitaph to Lowndes post officedirectory. 11 listings in mcnl. Yearslat er this descriptivename was pennedby his Congressionalcol· /llnbamahad nam~ changesbetween wouldtake on significancewhen archi league.Henry Cla~·. who said. "I think the October1. 1830and April1, 1831.One tects workingon a courthouserenovation wisestman l l!\-erknew was William ol the l 1 changeswas LowndesCourt there learnedabout the structure'smois Lowndes." The Alabamalegislature hon tlouse to Haynesville.At a later dale the ture problemcalled "rising damp. · ored Lowndesby creatingLowndes •s" was droppedand the name became LowndesCounty was the only new Countyon January20, 1830. I layn~ville.It is appropriatethat the county createdin Alabamain l&'lO.The In the legislationestablishing Lowndes county seat of a county named for a legisfaturetook land rrom Buller.Dallas. County.lhe sheriffof MontgomeryCounty famousSouth Carolinianshould be Montgomery, Pike.and Wilcoxcounties to wasdirected to holdan electionon the named for an e\'ffl more famousSouth form this newgo,.-emmenlal unit in lhe first Mondayin March1830 for the selec Carolinian-Robert YoungHayne. south central portionof the state. Since tion of countycomm issionersand other Ll.keLowndes. I laynewas born in the most of the earlyresidents came from officers.Then the newlye lectedomcia ls ColletonDistrict of South Carolina.11 is South Carolina, the legislature chosea were directedto holdan ~leclionto date of birth was November10. 1791. name to honor a popular South Carolinian choosethe permanentseat of justice for tlaynewas born on a rice plantation, stud o( the day.\Villlnm Jones Lc7,,'l'ldes. the county.li01,-ever. until a permanent ied in a lawoffice. and wasadmitted to ln,mdes wasborn in ColletonCounty. choicecould be made."Fisher's store· was practicelaw at lheage of 21.Also. he mar· South Carolina.on February11. 1782.1le designatedru; the temporarycourthouse . ricd into the same prominentpolitical was educatedin EnAlandand in priv.ite It is Interestingto note th.il lhe sheriffof fomilyLowndes had entered.I-tis first wife ------:,,..::-.-...::-:-- -:---,..--11ttU'f-' ·iHF,18111 was FrancesHenrielta Pinckney. who died was built on the town square in raisedportico and curvingsteps on this at an early age. HayneviUe,U1e site of the present memo building were patternedafter the 1854 Haynewas electedlo the SouU, rial to the Confederatedead. The build courthousein Montgomery. Carolina legislature in 1814 and became ing was 50 feet long, 40 [eet wideand The courthouse faceswesl overlooking speakerin 1818. l~eserved as South two stories tall. It was constructed of the court square. It is a Lwo-storystruc Carolina AttorneyGeneral for twoyears. handmade brick with two-feetthick walls ture built of load-bearingbrick_ ll is built In December1822. he was electedlo the on the rirst story and 20-inch U1ickwalls on grade,with no steps up lo the first UnitedStates Senateand re-electedin on the second story. The upirerstory level.w ith brick footingsused for the 1828.Following his servicein the &nate, containedsix rooms. The cost of this foundation.The upper lloor and roof are Haynebecame governor of South first courthouse was $500. of wood frame construction-The exterior Carolina, then mayorof U1e city of This courthouseserved the county for walls arc made of stucco and the interior Charlestonfor one year.After his govern over 20 )"ears,but in 1854 the building walls and ceilings are plastered.with the ment serviceended, he becamepresident wasdeclared unsafe. Courls were again exception of the ceiling in the main of a railroadin 1836.Hayne died on held al Fisher's Store, then calledthe W.& courtroom, which is made of st.,mped September24. 1839. J. Fisher GeneralStore and later renamed metal tiles. The courtroom ceiling is J 9 Hayneis rememberedin American J.P. Streety& Co.This slore was located feet high. political historyfor his oppositionlo a west of the t01,11square. The Haynevillecourthouse served protectivetariff and for beinga champion Constructionon the new and present LowndesCounty during lhe tumultuous of states' rights. He had a seriesof famous LowndesCounty Courtl1ousebegan in period of the CivilWar and the ensuing debateswith DanielWebster on these sub 1855 and was completed in 1858.This Reconstructionera. While the residents jects fromJanuary 19 to January27, 1830. building is one o[ only four antebellum of LowndesCounty wou ld never regain Asan aside, it is intere.,tingto note lhal struclures built as courthouses which lhe per capita wealth of the antebellum LowndesCounty was created dming ll1e are still being used today.The others are years. the population of the county same weekas the famousdebate. found in St. Clair Count)•at Ashville, reached its historical zenith in 1900 Hayne'sposition was thal a state had the Perry Countyat Marion.and Coosa when over 35,000people called Lowndes right to nulllfya federall aw.The argu County at Rockford. County home. Bythat I ime the court ment for this "doctrineof nullification" AntebellumLowndes County was a rich house needed significantrepairs. was that since the states had crc.ltedthe and prosperousplantation land. Bentting In l 905 the county entered into con Constitution. U1eycould U1erefore limit the wealth of the county al Lhistime , its tracts for the repair and enlargement of the powersgiven to their creation,the fed courthousewas built in the GreekRevival lhe 1858 structure. The front po1tico eral governmenLWebster a rgued Ulatthe style.The buildingwas 56 feet by 67 feel with curving staircaseswas replaced. The Union was superiorto any individual with a r<1isedportico on U1efront approxi stairwaywas now placed inside the build state's interests. mately29 feet wideand projectingfrom ing. \.\'hen the front and rear doors were In 1831,Hayne, along with several the building13 feet.The secondnoor was opened, the central hall formeda breeze other South Carolinians.purchased a reachedby a pair of curvingstait'W'ays on way reminiscent of the old "dog trot" large portionof land in Alabama.Shortly each sideof the podiumbase. !'our fluted architecture used in early cabins. Por thereafter,the county seat of Lowndes Doricco lumns frontedthe porticoand additionalspace, two llanking h,•o-story Counlywas named for &nator Hayne. suppo,ted u,e triangularpediment. Cast officew ings were attached to the original The rirsl LowndesCounty Courthouse iron railingsenclosed the porch.The building. ,Is the crowning touch. the lowrnks CountyCou,tlwuse ,,!/,,,. /9//IJ ~ru101.wt/o,1 J.ou,,uksC.0 1111111Courlhous<•. "'°' aml Ill l·fff· B\i(,.JlfffII TheAlilbamoi.JJUT)t'f buildersplaced a domedcupola on the the court square under the trees than in The courthouse renovationof the courthouse roof. the courth0\J5'l. 1980scost approximatelyS I million. The work completedin 1906added 26 Finally,the countyfound funding for a The building was made handicapped feel by 44 feel o( office space on two lev neededrenovation project. It receiveda assessible,needed restroom facilities els on each side of the old building,.The grantfrom lhe F.conomlcDevelopment were added,and more usable work new entrance structure had a roof wilh Administrationand a loanfrom the spacef or the county \\'3S provided. a steeper pitch than the main building Farmer·sHome Administration. The new Hawe~r. maintenanceremains the and pilasters containing Ionic capitals. project.under U1cdirection of major problem now.Moisture and Both the enl ranee structure and the MontgOmcryarchitect Bill Wible, brought mildew have causedyellow-green blem side wings had smaller windowsthan the courthousecloser to its originalIS50"s ishes on the exterior walls.And, in lhe original building. appearance.The l\~oside wings which had 1993,a newspaperarticle reported that The base or the courU1ousedome is been completed In 1906were removed. cou_rt1>roceedin11s had to be halted and approximately ten feel square. Al each These were replacedby a two-storyannex Lhe main courtrc,omclose d because of corner are doubledisengaged col umns buill behind lhe co1.1rU1ouse.The front bats ha11gingfrom Lhece iling. Such placedon diagonalI ines. A cornice entrancere turned lo a closeresemblance problems can be expe;:ledin a historic divideslhe base from the dome. On each of its IS50"s;,ppearance ",jlh a raisedpOr· structure located In a rural setting. of the four sides, the buildersreserved Licoand pairedcurving stairs. LowndesCounty is not as prosperousas space for clocks to beadded, but no WiblehaJ somediffkulty in gettinghis in the antebellumd.!}-s. More people &.oed clocks have e-.u been mslalled.The plansa.wl'O\'ed by the NationalRegister in LowndesCounty in 1840than today. ribbeddome is toppedby a finialand advisorycouncil. The problemwas the Still. lhe citizenso( the countyhave a stands O">oer20 feet abo\oethe roof. newannex. The council had a guideline unique governmentbuildlng in their The Lo\,11desCounty Courthouse which stated I.hillan additionto a historic courthoust.They should takeall steps recehoednational allcntion follol.ing the buildingshould reflectthe time when it necessaiy lo praer\'e the third oldest 1965 shootingdeath of a cMI rightswork wasbuilL In other words.it shouldbe a courthousein the state of Alabama. • er. Viola Lluzzo,during the Selmalo productof its°'"" Lime.Fortunattly, MontgOmeryMarch. L iuzzodied in Wiblel ater found another guidelinewh ich Sources: wumdes CourtHouse. A LowndesCou nty and the trial of the saysthnl anyadd ition should be hanno Chronicleor /1aynl!llllle, an Alabama allegedKl ansmen defendants took place in niouswilh lhe surrounding architecture. Black Belt Vi/Iago,1820- 1900.Mildred the 1906 version ofU1c courthouse. The annex,as constructed,reflected tradi BrewerRussell. 1 951;" fhe Courthousesof In recognitionof its historicalsignifi tionalantebellum styling , LowndesCounty , Alabama,"The Alabama cance, the LowndesCoun ty Courthouse Whilecomp leting the renovations, lauiger.J,u,uary 1971, pages 74-77; was named to the NationalRegister of WiblediscOl'trcd many interestingfea /1LftoricAfSl!is-lcwndi!s County, HistoricPlaces on June 24, l97L This tures In lht courlhous.?. The woodused in ;1/obama.South CentralAlabama courthouse had been the scene of its CXJ11Slruclionconsisted of hand-hewn De\oelopmenlCommission. 1975; speeches leading up lo the CivilWar in trussesconnected with peg$. The bricks Ndntwi and Weatherford.Creek Indian the 1860sas wtll as trials irwolvingthe \\wt handm.,dt.The first floorceilings 1..-krs. BenjaminW. Griffith. Jr., 1988; civilrights mO">oemenlin the 1960s.Also, \\'ere of \'ilUlledbrick. The supporting lnteJviewwith architectBiil Wible of a relic from the pas1is still in placeal brickwalls \\'ere 30 inchesthick. Parsons.Wible. Brummal, Alkire the courthouse. The main courtroom Wiblealso encountered persistent proo Architects.Montgomery, Alabama: Article. contains a.smrul triangular holdin_gcell lems ",jth moisturein the \\'illls. The cour BinninghamPost -fl1JTtJld,Tuesday, Ap ril in the rear southwestcorner. There are thouse wasconstructed with a brickfoun 28. 1981.page A9 ; NationalRegister o f no olher cells visible in any other court dationon ground level in a placeUw1l had I listoric l'lnces-Nominalion l'onn, room In the st;ile of Alabama.Th is cell is been a big swamp. Brick,an d f)ilrticularly Lownde.,Cou nty Courlhou~e. 1971. no longer used becauseof its prejudicial hand-madebrick . is quite porous. effecton a jury. Moisturein the ground lendsto spread Overthe yearsthe courthousefell into upwardthrough porousbuilding materi Samu el A. disrepairdue lo n lack of moneyfor main als. And,with modem improvementsin Rumore , Jr. tenance.The roofleaked and lhe floors \\'illtr-proofing.any moisturein lhe walls SiffulO A - Jr• rolled.In 1978court could no longerbe wouldtravel higlier in order to escape. ~·~"'""'ol- held in lhe building.I leanngswere l110\'ed The conditionencountered in the court Dlmllnclt,e ~ ol-.0 to lhe oosementcl a.building across the house is called" risingdamp ~. The plaster Senooodu.He stteel In a 1981article in The and stuccohad difficultyin drying. Walls -·b,o,gd'IMpa.w ,cthl BinninghomPosl -flerald, Haynewle had lo be repainted There has been a con attorneyJerry Thornton told of the primi stant balllt in the buildingwith moisture FIITllyLAWs«oon- ,.., -pocbce., -8o11wa....9e 11 tivecondilions al the old courthouse. relatedproblems, and the baUlecontinues Bees.wasps and birdsfrequenUy attacked today.TI1ere is lillle doubt that the site of ""'""''"""'.. t,e"'" com_~~ lot&- 1he1 ClllCiroul- , place IUl1bet 1w .-.cl II a mombe 111eAlabamaLaw Institute is expectedto 11,erevisions to the Limited Partnership of separation.l-lowever. th is sectiondoes introducefour m ajor revisions.These are: laware all technicalin nature. The providethe flexibilityof allowingthe cou Multiple PartyAccounts; Uniform Family Committeeis chairedby attorneyBob ple to agree that if a reconciliationdoes SupportAct (see November1996 Alalx1ma Dennistonfrom Mobile. and Professor not occur that the divisionof property lawyer); RevisedLimited Partnership Act; HowardWalthall of CumberlandSchool of and the alimonyprovision wi ll be contin and Legal Separation. Lawserves as reporter. ued in a final decree. Subsection(e) providesthat "U1ebest Revised Limited legal Separation interestof the child"standard shall applyi f Partnership Act This bill is designedto allowcouples the partieslo 1l1elegal separat ion later file Alabamapassed Its current Limited who are facingmarit.il d iscordlo havea for dissolutionor their marriage. PartnershipAct in 1983but followedthe viable alternativeto immediatelyobtaining Subsection(f) providesthat if boU1par 1976Uniform Limited Partnership Act. ln a divorce.tt has been draftedto provide tiesconsent, property acqu ired by each 1985.amendments were made to the flexibilityso that it can be utili1,edby cou partysubsequent to the legal separation UniformAct but Alabamahas not pleswho hope for a briefperiod of legal willbe deemedthe sole partyof the person addressedthese changes. separationwhile theyattempt to reconcile acquiringthe property.Likewise, if both ILhas further been pointedout by practi or il can be used by coupleswho anticipate partiesconsent, each spousemay waive al l tionersthat the LimitedPartnership Act, as a long, perhapseven pennanent.separa rights of inheritancesubsequent to the nowin effect,makes it difficult to use lim tion but do notwanl to obtaina divorcefor legal separation.This section has been ited partnershipsto maximumadvanrage religious or oilier reasons. includedto providenexib ility to those par for estate planningpurposes. This is Undersubsection (a), the court shall tieswho desiremore economiccertainty becauseU1e I nternal RevenueCode and the enter a legalseparation if requested byone whena legalseparation is anticipatedto TreasuryRegulations provide that restric or both of the parties, providedthat the extendfor a longperiod of time or when tions in the limitedpartnership agreement jurisdictionalrequirements for a dissolu the partiesprefer to have lhosematters set regardingl iquidationwill be disregardedif tion of a marriagehave been meL In so tled byconsent prior to the entry of the the transferor(or familymembers) control doing, the court must complywith Rule32 legalseparation. the limitedpartnership before the transfer. relatingto U1emandatory child support Subsection(g) providesthat U1ecost for In that situation,lhe righl Lowithdraw wm guidelines,if the couplehas children. legalseparation is the sameas if a dissolu be detennined under the general rulesof Subsection(bl reiterates that a decree tion of the marriagewas requested. state law, hereAla. Code §10-9A-102, of legalseparation does not tem1inatethe Sections30 -2-30and -31 relatinglo whichprov ides that a limitedpartner may marital status of the parties.Subsection divorcefrom bed and boardhave been withdrawupon six months notice. (c) spec.ifiesthat the tenns of a legalsepa repealed. f'urthermore, the provisions of merger ration can be modifiedor dissolvedo nly The Acthas a delayedeffective date to of limited partnerswith other legalentities bywritten consent by both parties and January1, 1998to enable the benchand need to be reviseddue to the passageof the ratificationby the court or by court order bar to be informedof the new law. Limited LiabilityCompany and Limited upon proofof a materialchange of cir In additionto these four lawsit is Liability Partnershiplaws and the revisions cumstances.Moreover , the existenceof a expectedthat during the session.Institute of the BusinessCorporation Act and legal separationdoes nol bar a party from committeesw ill completethe revision of PartnershipAcl later instituting an action for dissolution UCCArticle 5 ..Letters of Credit'·,Unifom, of a marriage. Principaland IncomeAct and Uniform Robert L. Subsection(d) contemplatesthat the CustodialTrust Act. If these revisions are Mccurley . Jr. terms relating lo alimonyor a property completedand approvedby the Institute RobertL McCvrley setllement in the legal separationwill not early in the session, they, too. willbe pre Jr II lho dlrGCtorol lhe AlobamoLaw generallybe incorporatedinto a final sented to the Legislature. lns111uieat 1ho divorcedecree absent agreementby the University ol Alabiima parties. This section recognizesthat in New laws Effective He rocetvedhis undergradumoand many instances the parties hope to recon January 1, 1997 &awdeg rees tromthe cile and thereforehave not attempted to The Legislaturepassed the followingnew Un!VOf'Sll)' equitably dividetheir propertyduring lawswhich became effective January 1, what is hopedwill be only a brief period 1997. •J·fff,j/fll ALABAMA DIVORCE, ALIMONY AND CBil,D CUSTODY HORNBOOK TB1RD EDITION by Penny A. Davis CONVENIENT QUICK and NEW LAW REFERENCE Robert L. Mccurley, Jr. The 1997 Pocket part contains Alabama Divorce, Alimony and Child importantnew st:arutoryand case law Custody Hombook, Third Edition, is including changes in retirement, the most comprehensive book on 1997 Pocket Part cooling-off periods, and mediAliolU. Alabamadivorce law available. It bas Also includedare several new federal 42 cbapterf and ovtr I 7S pages or laws relatingto childcustody and child formswhich are convenientlyorganized suppon. withtho busy lawyer in mind. ·------LAWYERS EDUCA TrON AL PRESS Also Available: LAW OFFICE PRACTICE DESKBOOK,Seventh Post ornceBox 86U87 Editionat S73.00 ($65.00plus $8.00, Wt, pDS1J1geand (handling). Tuscaloosa, AL 35486-0013 Pleasesend me __ copies of AJ..ABAMADIVORCE, ALIMONY AND C1IIl.D CUSTODY RORNBOOK,Third Edition wich Pocket Pan, at S79.40 each ($70.00 plus$9.40 rax, postageand handling). Please send me _ copies of the 1997 PocketPan for ALABAMADIVORCE, ALIMONY AND CHILD CUSTODY HORNBOOK at $23.00 each ($20.00 plus S3.00 rax, poSlagel1Dd handling). • All orders mustbe PREPAID. Make ch01:kspayable to LAWYERS EDUCATIONAL PRESS . lfnot satisfiedyou may return the book within IOdays for a full refund. TN.~1.-,n II ffU'i'·,il·liEII StateBair Members La1>or atSUMMER OLYMPICS BySus.;n CullenAnderson wo membersof the AlabamaStole Bar took leatJe The club playsteams from clubs in other Southern cities. from practicinglaw last summer lo work for the 1996 l'or the uninitiated,waler polo Is much likesoccer or hock TSummer Olympicsill Atlanta.I luntsuillelitigator ey. wilh some elementsof basketballU1rown in, Shawsaid. Ste,,eShaw lefl his insura11cedefense practice for a month Eachteam has a goalieand six fieldplayers. and the t!ilmeis to manageu.Yiler polo rompelilionmulls. and Bryan playedin deepwatu. Theyrun playssimilar to powerplays in Morgan lei/ /he Enterprisedistricl otlomeg's officefor an hockey.Shaw said. Pla}'el'5 cannot touch lhe ball with two eight-monthlour of duly wilh /he NationalGuard Olympic hands." It's \oeryphysically dem.1nding, • he said. Taskforce. Becausewater polo doesnot exactlyrank up there with college footballas a Southern sport, officialswere scrnm Steve Shaw bling when Atlant.iwas chosen as the site for the 1996 For the 43-year-old Shaw.a lire Summer Olympics. "There was no one in the South who longwa ler polo competitor and knewanything about water polo; Shaw said."They needed enlhusiasLthe Carnesmeant IS. someoneclose." Consequently. Shaw found himselfrespon hour daysat the poolmanaging sible for compilingthe results for lhe sport at lhe Carnes. 30 peopleassigned to computer Withsix gamesplayed each day for eight days orcompetl slilllonsand monitoring four lion. his hands "-ere full. computershimself. With 56,000 "The first day was horrible."Shaw confessed.The score pagesof water po lo dataproduced board. which was part of his responsibility.listed the \\/rong eachd4'y of the competition, teams, and he found it impossiblelo meet the five-minute Shawsnw llll le of his sport." I saw deadlinesfor producingdata to the mediaand olher inlcr ten minutesworth of waterpolo ested parties... Arterlha t, il gol much. much smoolher," he in 48 games." he said.Shaw slept al the poolsome nights said. Still, he wouldnot take on the job again. becausehe hadonly a fewhours until he had lo be back to "I would be a ball boy; Shaw said. work."It wasdefinitely not a \'acntion." he Slid. One bright note was lhe supportand cooperationShaw Shaw,a 1989graduate of the Uni\-ersityof AlabamaSchool of recei\ .:Mt Q,W.n-wtt?J' tticusFinch A'n O!':AL Boo K FOR WYERS ~AlllhoJnalJMfn II f,f,jif\'tlf \flfflll Thursday, January 23, 1997 Embassy Suites Hotel-Montgomery, Alabama Sponsored by: Alabama Judicial College Circuit & District Judges Association Alabama State Bar 8:00-8:45 a.m ...... Registration 8:45-9:15 a.m ...... Welcoming Remarks 9:15-10:45 a.m ...... •.. ... The Living Constitution 10:45-11:00a .m ...... Break 11:00-Noon ...... Ethics and the Judicial Inquiry Commission Noon-1:30 p.m . . ..• ...... Lunch 1: 30-3:00 p.m ...... Track I-Class Action Lawsuits ...... • ... . .Track II-Fami ly Law Issues and Acts 3:00-3:15 p.m .. . , ...... Brea k 3:15-5:00 p.m ...... Common Problems w ith New Rules of Evidence 6:00 p.m ...... Reception Registration Fee: $45 (Includes written materials, luncheon and reception) Conference is approved for 5.8 hours CLE credit r------, I I i Bench & Bar Mid-Winter Conference Registration Form i : Program is limited to first 200 attorneys to register : : Name: : :I Address:.______I Telephone:______! D Enclosed is my Registration fee of $45.00 ! D I will have a guest(s) at $15.00 each : I Total amount of check• enclosed : D I will attend the 6 pm reception : D I will not attend the reception • I * Make check payable to AJCFA • L------• ------Mail this form and check by January 15, 1997 to: The Alabama Judicial College, 300 Dexter Avenue. Montgomery, AL 36104 •J-ff 'JB\'f·i;flfijf II TheA fabanwf.alt'Jta Fall 1996 Admittees STATISTICS OF I N T E R E S T Numbersitli ng for exam ...... •...•••...... •.....••..•...••...... •...•.. 577 Numbercertified to SupremeCourt of Alabama. .•...••••.•.•.•...... • ...... •...... •...... •.. 378 Certificationrate ...... •.....•...... ••.....••.....•....•.••.••...... •..... 66 percent Certification Percen tages : Uni,oersityof AlabamaSchool of Law ...... • ..•. ••.....•...•••••..• ..•.... •....•.•••.••••••..•.• 90 percent CumberlandSchool of Law.••• •••••.... •..••..•.....•...••....••..•.••...... •...... •.•.• 87 percent BirminghamSchoo l or Law ..•.•••.•...... •....•..•. •.• ..•.•...•...••.•.••.....••..•... 34 percent Jones Schoolof Law...... •...... ••••.•....•.....•...... •...... •...... 37 perctnl Miles Collegeof Law••.••.••••••••••••... .. • . , •..••.•••.•• .. •..•. . ••..• .. ••.••..•..•• . • .. ••. . 8 percent r~,~ loqrr 11'IBl'i idil+IRFII lesl<>!C. fronr:h/'96) und /Jr/pmI<, l'resa,// ('96}, Dol'/dS. Smdl/g('96/ om/ .ldl''IJN. Q1/e ('!16/mid J(ath,1rit'II!~Villiams Caxu~/ Nic/wr,J/l. l•'nmd>/'89) Judpo(Ji// .'ipw/..,/ '84/(J11J/ 1'hcmosE. S,,od MorleeHendri, Dailey('96) /¥1i/ipSt,71/le,1 Gii/ierr! , m A,11111Sim 1/onobg('!!ti /, CooilrJGrilli,, Si!. ... (:/8/.Garion Oril/in 01or/es1 1'oodm/f('96Jand a,tdH'i/Jis lialbnm1 ('96)and Pl>il#>Stq>htm SikJ,Jr. / 74)..Jc&,p/,Aiknllonl!ibg.IV(i!I). Ch,m Roberlumd(75) , '/bmmyWoodn1ff('6JJ Hendrix('59) Gitfit:r,. Jr. (72) undJot/£. /Ji/illlrl (75) (J(/Jnitteea11d ~1/lx!r odmilteeamt !other odmlllo!J'mui!other odinil/n,.ht/"'1; /Jrr:Jh,r; /uislxmtf. hmlher-il1./arn undbrolhtr .1,,-/ar ,o ,jl ' ,·•' ' f-l,• 8i119homD. Edu.,11'ds,Jr. RichardCallin.< ('961 1111d .km/LS H. Sinnoll('96} 011d Ti11uAibtillan Buf!}l!JI('96) C/1ris/b,eMeiu BellyShinn ('96/a"d Roo,r/0. Rires('96). Asht,i NII'"' N.M,FaJdm ('96/ , I: Johnlirodt,v Felton ('96) /with M«ll•!I /'96/a11d Rodfl'!TBa..< ('!13/ 1/JJ/eRi..,{'9/)tmd Osa,r 1/ . llfJfff}lotlMcf'udrll.11, Jr.{'89 ) ond l'oodn8. Felton{'9/) CamicOJil Me ,•filch<{flampto,11/ok, (96) JohnII. £11gfund,Ill ('96) Fn.,kricirC. flehm;ing,Jr. Cl,'111A,1$1,1/, Jr. /'96/IJ1ld James;L Prillon.Jr. ('96) undH. /lamplan fkJ/es (liT) undJudge John ff. /'96)amf Frotk.'lickG . Evan.4u.'i/il/ 1'59 ) 1111dJo,m,s A Pal/on('65) ud1n/JtMand faJJier £11g/1111d,Jr. (74 ) llclm. •&t ·fdlf,j;\ifffm 1mtAlabamulw,ya 0.nfd Edi.Ml /labIf /'!16/ J~/urkA,1tA.~1- IV ('!Jf•') uttd Su«mflaggooJ /'96/and C=y l'iper ('!16).,., OtrolinlSmJJh /Yli). 11a,,., Ill•/ f/r»I. f>.nofdA/Mi Mark~. Ill ('GZ/ 1ar,,...11<1J/j/11Ud('57/ lfoJS/cyl'ipcr ('66/ 1hn>S,nflh /'!lJ/ond Jut/gt Rain1(70/ od,nill1."f!and klh'f' admiJhManti Nlher udmilfte andluJJk'J' t.arr,,•ltxkSmith {79/ Wlllllltt u,,d hllltr "'*"It«. mdhtr ,nl iJllttr 1ml 0<1kcs('961 and Amg .Mfn71C. TkAvl 1'961 and Tnq T.,i,,rSproui. tlio/, St,phonialloodh,m, DwulA Alch1- 1961<11¥1 H a..b,'l.i\Vla• /'f1)a,,t Ru,Wph II. Slote(T/7}anti ·'""11•'1.lrgon:114'1!.1116P Jahn·~ Donaltbal.Ill /'6t °"""'.'(...... Jr (9IQ i,u II $1.J/r/"6/ ,•faS!ly11<&.Jr. /71/.., C. lqJ/1 A lodt7.Jt. /'SOIand StlJw,..,J ....,... hJM..iorr,.,, J>mvR,/k/75) Ral!milvnDr/'54/ aifmilt.Y. f,Jf/ltr ""' undt -«.-and.ad AIABAMA STATEBAR FALL 1996 ADMITTEES Abm1c,thg.J..,,,,.--:s Au;dln II /Jdc,..,.,/Jor/>ara AJJ,l,y ll11'fldl, 1T11Ulouise1U&rlll1J1I 0,,,.. ,V/c,JC/crrlck .W.lnt,rd, f:drmrd William Bdrlwr, /),,o,u l.vrnSmith Burk/wrt,Chari Thr Vaftinnfl~ II (B\'f1f;ffl"1fffj II Fa.II 1996 Admlttees ,•1""""1,I/randy .idgne SltrtMlir,uah Odlikr Sillfl"' , Jo,lu,a DeslaSlwrmbl,t 1-·\Titol,dd Kalhmrw1, A'/1!111RugPm1a Si,lfldmr. £eslieDw'II! fl'li. II ;,qi Nicholt Sinnott,.lamt: The Honorable Joseph Dispute Resolution. Mediation and D. Phelps: Judg e, conciliation werejust twoof the Peacemaker And Friend judge'smany interestsand projects. Askanyone in Montgomery,and they n June, Alabamalost~ of its "ill tell}'OU ,'Olwnesabout his many I mo.ststaunch supportersof alter }'Carsof communitysel'\•ce. nativedispute reso lution (ADR)when Wheni camelo Montgomery, Judge JosephPhelps, recently retired Alabama from lhe Washington,D.C. nfler20 years as a circuit court judge nrca,Judg e Phelps waso ne of the in MontgomeryCounty, was killedin first personsin the legalcom munity an automobileaccidenL I met. Shortlythereafter. I had intro While.stillon the bench,Judge ductionslo local.lltO!m)'S ht Phelpsbecame a promoterof media respectedand the AlabamaState Bar_ tion, suggestingto partiesbefore him BeforeI knewit, I was directingthe that lh~• get togetherto workit out new AlabamaCenter for Dispute win,win stylewith their nttorneys Resolution. The judge l'lilS alwaysa and a mediator. He learnedlhe value presenceat the Center,ca lling to see or med~1tlonto the courts at the how thingswere going if ht had not NationalSymposium on Court heard from me in a week.And his Comlf(:(edMediation. and returned presenceremains: AOR materials to work\\ilh the clerk'soffice to from his officenow residein the makesure attorneyswere aware or Cent.er'slibrary. a g;nfrom his family alternativesprior to trial.11,e j udge Throughlhe hard 1oorkor many also learned to be a mediator,attending lnstil\llefor Christian Conciliation. attorneysand judges. U1 c use or alterna Mal'\' ~,.,.....,..., Ill iiti'tiiiFFfEtll Mem oria ls Roger CarlisleS uttle Ralph Bolen 'I l ~ Rogu CarlisleSuttle. a distinguished membtr of~ WI( EtowahCounty Bar Asoocialion, died on October11. 1996.at 1 l 7tJereas.H. Ralph Bolen.a membero( the BirminghamBar ~ ageof 86 , and l'I' Associationwas admitted lo prnct,cc1.lw in the Stnteof Whereas.this Associationdesires to honor his name and to Alabamaon February2, 1952and on July 7, 1996.after a longand recognizehis contributionsto the legal professionand to his distinguishedcareer. Mr. Bolen p.1.ISed away. and. community; Whereas.H . RalphBo len was born nnd raisedin Jackson. Now,therefore, be il remembered, Alabama.He seivedin the United Stites Armywherein he distin RogerCarlis le Suttle wasbom in Suttle, PerryCounty, A labama guishedh imself byserv ing as Gener.ii Omar 13rmlley'saide in in 1910. Uponhis graduation fromthe Uni\>ersit)Iof AJaba1Tlil chargeof USOe ntertainmenti n Europtduring World WarII; and. Schoolof l.a1vin 1930,he wasadmitted to the AlabamaStale Baral Whereas.on his dischargefrom the military,he movedto the ageof 20.Known as "Dick"to his familyand friends,he moved Tuscaloosa,Alabama, where he openeda restaurantwhich he lo Gadsdenand ent~redthe pl'ilCtkeof law.Dkk soon met and mar OJ)l:mted-.ilile attendingundergraduate school. and subsequently, ried DorothySlalllnl!$ Suttle, who proceded him in deathby three lawschool , al the Uni\'ersityof Alabama;and, weeks. Whereas.upon graduationfrom lawschool. he and his wife, He Issurviwd by his twosom, Dr.Roger C. Suttle.Jr. , of Vera.mcM!d to Birminghamwhere he openedhis lawpractice and Cads&n.and W. CarySuWe, of Phoenix.Amona. I le is alsosur he practicedwilh the HonorabltGeorge It Reynoldsand W.L. vivedby lhrtt l!T,lnddaughtm.Memll Suttle McCullough of Long. Horncc Ralph Bolen WillisE. Issac Thomas E. Skinner Binningham Montgomery Tequesta,F'lorlda Adml/led: 1952 Admitled: 1978 AdmiUed:1931 Died:July 7, 1996 Oled:November 8. 1996 Died:October 19. 1996 \111llamCn)• Es)))• Davidli!ugene Loe Hanl)• Bolton Smith 1'1011/gomerg Mo11Jgomery Mobile Mmilled: 1938 ,ldmillcd: 1926 Admitted:1958 Died:August 5. I996 Died: October 13. 1996 Died:Aul!usl 1. J996 MichaelAntholll' Figures John Terry Reynolds,Jr. MatthewD. Thomuoo. m Mobile Mobile llu11ts1>il/e Admill11d:1972 ActmU/ed:1936 Aclmill1ul:1975 Died:Se~tember 13, 1996 Died:July 4. 1996 Diec/:August 4. 1996 II !·d'li/11'1ii\fl'l!flll rr i=,,.-Al::-•-:-""'-,,-.-:--Lou-....,------PaulW. Brock James R. Cooley,Jr. hereas,P;,ul W. Brock was l)omon l'ebruary23, 1928in liereas,the MobileBar WMobile,A labama.the son of GlennPor ter Brock.Sr. and WAssociationwishes to honor EstherGoodwin Br()(k. H e was educ.,tedal Uni\oersityMllltlry th~ memoryof JamesRalph School,graduating in 19.t.\and excellingas a student and as an Cooley,Jr., a distingui.lhedmem athltte and demonslrntinga,en then the qualitiesof ptrstr\'er· ber of this association.who died ance,dedication and leadershipthat wouldmark his entire lire.He on May15 , J 996.and the associa nllxndedthe University of Alabama,where he receiveda B.S. tion desiringto rememberh is degree in I948 and o J.D. degree in 1950.H e was electedto ODK mme and recognizeh is conlribu· nndJasons. and receivedthe BalrourAward as the outstanding tions to our professionand to this undergrnduatemember of SigmaChi frntemityin the nation. community;Now. therefore be it 1le wasadmitted to the remembered: Alab3maState Barin 1950. JamesRalph Cooley, Jr., knownto all as "James.•was born in I le servedin the U.S.Air Birmingh.1m,Alabama and attendede lementaryand high schools Forcei n 1952and 1953.and in the Mobilearea. playedfootba ll al Davidsonl ligh School and then returnedto Mobileand wasan d\lidAlabama footba IJ fan. mteffii the practiceor law Jamesgraduated from the Unl\'fflit.yol South Alabamain 1975 .,_;ththe Hand.An:nlbll law and CumberlandSchool or law of SamfordUnl-oersit.y in 1978. firm,\,,!,ere he wouldprac whenhe enteredthe privateprnctice of l.iw. ticefor 43 years, He hnda Jameswa.\ a memberof the Bankruptcyand Commercial t..iw highly distinguished !~gal Sectiono f the AlabamaSlll le Barand the Mobile 13arBa11kn 1ptcy career:H e wasa Fellowof Committee. lhe AmericanCollege or 1\ial Janies'law practice \\'ii$ focusedin lhe domesticrelations area la\,.)'el'Sand a Memberof the and in misting personswho had financial difficulties and who InternationalAss«ialion of were viewedas being"dov,,i on their ludc." DefenseCou nsel. u,e Associationof Defense'lrial Allorneys. the Jamesrepresented his clientsin an exemplarymann er and AlabamaDefense L awyersAssoc iation (whichhe servedas presl· treatedhis dients and fellow lawyerswilh dignity and courtesy. dent), the DefenseResearch lnslilul e (whichhe alsoserved as Jameswas knownas an ewn•temperedperson who was a president),the Federationor Insurance and CorporateCounsel. strong and capablead\'oalle for his clients. the NationalAssociation or Railroad Trial Counsel. th.: Produd James">as a da'Oledrather and familyman, leavingSUJ\IMng LiabilityAd\isory Council. the AlabamaSlllte Bar Crie\'ance him haswife, Patricia A. Cooleyof Daphne, Alabama:two step Committee(which he servedas chair),Lh e JudicialIn quiry daughlers,Mrs. Kim I lamiltonand Mrs. l(cllyBell or Mobile:two Commissiono r lhe Stale of Alabama, the MobileAmerican Inn s of grandchildren,T)•ler and Ashley Hamiltonof Mobile; mother.Mrs. Court(which he wasin.\lru mental in foundingand twiceserved as Tom.,sinaWerner of Daphne:father. Dr. J.R Cooley. Sr. of president\.and the AmericanBar l'ouncbtion. Semmesand other re!ativts. I le was an outstandinglaw)'er who faithfullyand ablyrepresent Nov.•.thereiore be it resolved,by the MoblleBar ~iation on ed his clients.To say lhaLhe \\'as hardworking,\\-ell prepared. this 20th d.,y of September1996, that the associationmourns IJ,e inLensel)•competi tive,and the worthiestof opponentsis nn under passingof JamesRalph Cooley . Jr. st.1t.ement He wasa t the same time,, man of the highest Integrity. wh05Cword was his bond. who aewr sacrificedhis integrityal the - Wllllam/\. Kimbrough.Jr. alter o( eKpediencyor for personalgain or unfairadvanlllge. In President,Mobile &r Auocbllon personaldealings. he \\'as kind and considerate.He wasa llffllle· man in the timell'.SSand verybest meaningof lhal word. Whereas,Paul W. llrock died on April14. 1996.lie is survived by a largeand lovingfamily, co nsisting of his wife.Louise Shearer HonorableRobert Brock,h is childr(n, Paul Brock, Jr.• Bette f!utaa, ValerieCn111is. EdwardHodnette , Jr. SherryMcCowin, and Richan!Brock. six grandchildren.and his brothtr and partner,Porter Brock. ,1 fhcrtas,the llonorable Now,therefore. be it resol\'edby 11wMobile Bar Associatlonthat ft RobertEdward I lodnetle, Paul W. Brock's uniqueand irreplaceablepresence, character and Jr.,a long-timeand distinguished eJCnmplewill be missed by his friendsand colleagues in U1eas.wci memberor the MobileOar ution. that the membersof the Ass«iationcelebrate his lifean d Assoclalion,died on April30. moum his death.and that lhe memberso( the associationextend 1996.and the Mobile Bar their sympathyand condolenas to his family. Associationdesires to n:membtr hasname and recogruu his con - WilliamA. K!mlm,u,gh,Jr. tributions,both to our profession l'nlsideot,Mobil e BarA,soclatio n and to lhis community. ,,.~~ Ill tih'fi-lll ·ffillll Memorial s Whereas,lhe I lonornbleRobert Edward Hodnett, , Jr.,wM born honorablyas a circuitjudge, until he was elecledpresiding judge ooMay 13. 1913,in Port Deposit,Alabama: of lhe CircuitCourt o f MobileCounty in 1981; Whereas,Judge Hodnette altendedAuburn Unil.'et'Sity from Whereas.Judge Hodndte was ekcttd pn?Sidentof the Alabama 1930to 1932, andreaMd his lawdegree from the Uni\'cmtyof Associationorcin:uitJutlges in 1983; Alabamain 1935; Whereas,Judge Hodnettesel\oed as presidingjudge of the Whereas.Judge Hodnelte was admitted to practicelaw in the CircuitCourt or MobileCounty during a particularlycrucial time State o( Alabamain 1935,and practicedlaw in Atmorefrom 1935 (or lhal Institution,and willbe long remembm!dror his devotion through 1938, thereafterpracticing law in Mobile; to his duty,strength or characterand honor: Whereas,Judg e 1-lodnetle'spractice o( lawwas interruptedby Whereas,Judge Hodnettewas n man ,eilh strongdevotion to WorldWnr II , whereh e servedas a CaptainIn the United States his family, and is survivedby his w,re.Agnes No,vling Hodnette, Infantry,as the result of whichservice h e receivedbo th the his daughter.Martha Hodn ellc McNeil.h is stepson, William 13ronzcStar and the PurpleHeart ; MelvinHaas, Ill, of Macon, Georgia: fivegrandchildren; nnd Whereas, aJler his honorable dischargefrom the UnitedSiates numerousothe r relatives:and Army, Judge Modneue w-.is awardeda Masterof Lawsdegree from Now,lherefort, be it resolved,by U1emembers or Lhe Mobile the Unil.oersityof Chicago; BarAssociation, in this meetingassembled on U1e20th dayof Whereas.Judge I lodnettethereafter returned lo the privat.e September1996. that lhe Associationmoums the passingor the practicelaw in Mobile.leaving the pm11tepractice to sel\-eas HonorableRobert Edward Hodnette, Jr .. and does herebyhonor AssislanlUnited States Allomey for the SouthernDistrict of the memoryof ourfriend and rettowmembtr. who exemplified Alabama.from 1950to 1952: throughouthis long careerthe highestproressional principles to Whereas,aJle r leavingthe UnitedStates Attorney's Office. Judge \\.'h1chthe membersof this Associahonaspire. Hodnetle resumedthe pm11lepractice of lawin Mobile.ultimately becominga p.1rtnerin the firmor Holberg,Tully & Hodnette; - ll'iUiam A. Kimbrough.Jr. Whereas, Judge I lodnettewas elected to the Circuit Court n( Pmidenl,Mobile Bar ,usociation Mobile Countyin 1970,nft:er wh ich time he servedcapably a nd Oliver Wiley Brantley liver Wiley "Pi"'llr.mUey. outstandi ng trial lawyer, leaderin lhe decidedto return to Troy.practicing a lone until he w·.iscal led into OAlabamaSl:llle Bar, and past presidentor the Uni~ersilyof the U.S.Na\y during WorldWar II . Il e servedon boardlhe AlabamaLaw School Foundation. died on Jul)•1 5, 1996nt the age destroyer Dalyin lhe South Pacific.partlc!pating in the Battleof of80. ThePoundation. at its 1996annual meeting,notes his iass· l..e)1eGulf, lhe battlewhich broke the backo( lhe JapaneseNavy. ing "ith great$ldness and respect. Pi leflthe Navyat the endor the "11ras a lieutenant(J.C.), USNR He \\'aS descendedfrom Thomas Kil\lffl Brantley,pionttr of Returningto practicein 'lroy, Pi sel\'tdas PikeCounty Solicitor southeastAlab.im.1 for whomthe towno( Brantley\\'aS namtd.and from 1947-1974,a part-timeposilion which allowed him to main fromJames M c:CalebWiley, "tio cameinto Alabamain 1818, seN tlin a ta,, practice.Pi "'aS associatedearly in hiscareer with ing as a physcian,a majorgeneral of the AlabamaMilitln, and an BrantleyWiley and laterwilh RichardCalhoun. For 20 years begin eminentdrcuitj udge in PikeCounty. Jame; Wileyalw \\':IS elected ning in 1955,he practicedalone, serving as attorneyfor Pike to Congressin 1866,but not seated. Pi wasborn in Th))'on County.the cities orTuiyand llrundldge,and the cityand county October30, 1915. the son or JamesThomas a nd Julia Wiley bo.lrdsof education.H e alsoser.oed as loa,1 counsel ror more than Brantley. I lis fatherhad a hardwarest ore and other businessinLer 20 insurance companies,three railroads.the Greyhound Company, ests in Troy. ·one brother,Dr. Jack Brantley , a revered Troyphysi and S0uU1em BellTeJeph one Co.I-l e wasa l"ellowor lhe American cian,was one ye;iro lder. Ayou nger livingbr other, Robert M. Collegeo f TrialLaw yers and lhe AmcricnnCo llegeof Probate Brantley, nowlives in 'lwcaloosa.Pi attended'l'Yoy schools, Counseland a membero f the NationalAssociation of RailroadTrial StauntonMilit ary Academy.Riversi de MilitaryAcadem) •. the Counsel. Unh,ersityor Alabama.and the University'sLaw School. grndU11ting l"ormcrProbat.e Judge and closefriend John W. [Billy)Gibson in 1939. remembershim as beingouLmnding in e-oeryphase of lawprac· Al the Uni\.oersily.he \\'aS a membero( the OKEFrat.?rnily and lia! anda person or unblemishedcharacter. He said that Pi was businessm.mager ol the Rammer-Jammer.the collegehumor one of 12men in 'lroy O\.'l.'ra number of y,ears who quietly and rnag.w.ine.Al the lawschool. he wasa membero{ the Phi Dtlta Phi anonymouslymade generous gifts to nee 1 II Effltit\f i1,ff+flll ~,4/abtnnalau'V(T this tenurehas never been surpassed and onlyequaled by T.B . Hill, Anderson,president of AndersonOil and GasCo . of Jr.of Montgomery.He served on the AlabamaJudicial Commission Shreveport,Louisiana. The Andersons, both UAa lumni, ha\-ea from 1972-74, servingthe lastyear as chairman. and the following son,W. Brantley Anderson, a 1992graduate of the schoolof law.Pi yearhe servedas first chairmanof the JudicialInquiry Brantley'sother son,Pat, died in 1974from a tragic huntingacci Commission. J-lisclassmate , PrankJ. Tipler of Andalusia,a former dentafter his secondyear of lawschool. statebar president,lauded his closefriend , Pi Brantley. whomhe For all of the above,the University of AlabamaLaw School facedin court on numerousoccas ions, as" the besttrial lawyerI Foundation,during its 1996annual meeting, expresses its sadness haveever seen." at the passingof their friendand colleague, Oliver W iley Brantley, Pi wasa loyala lumnusof his lawschool, serving as a memberof and takesthis occasionto recognizeand pay tribute to his life and the lawschool foundat ion from 1966to 1980, andas the careeras a talentedand forcefu l lawyer, devotedleader in baractiv roundation'spresident dur ing 1972-73. His leadershipwas invalu ities,loyal alumnus of the schoolof law,leader of this Foundation, ableduring the Foundation'sear ly yearsas the lawschool's sup and a privatepe rsonin manyrespe cts but a responsible andcaring port from the Foundationwas greatly strengthened by his se1vice. personin his communityand among his manyclients a nd friends. Pi was marriedi n 1937, while in lawschool, to BettyJane The Poundationextends its condolenceto his family members Gastonof Birmingham,who predeceasedhim. The hadfour chil namedherein and directs that copiesof this tribute to sentto each dren:Michael, who hastwo degreesfrom the Universityand is now of them. with the North Carolina Museum of Art in Raleigh:Betsy of Bim1ingham,who has a degreein sociologyand is marriedto -J . llufus Bealle William M. Gresham;and T ina,who is married to WilliamG. Tuscaloosa Judicial Award of Merit Nominations Due The Board of Bar Commissioners of the Alabama State Bar will receive nominations for the state bar's Judicial Award of Merit through May 15, 1997. Nominations should be prepared and mailed to: Keith B. Norman, Secretary Board of Bar Commissioners Alab ama State Bar P.O. Box 671 Montgomery , Alabama 36101 The Judicial Award of Merit was established in 1987. The 1996 recipient was the Honorable Ralph Cook, asso ciate justice, Supreme Court of Alabama. The award is not necessarily an annual award. It may be presented to a judge who is not retired. whether state or federal court. trial or appellate, who is determined to have contributed significantly to the administration of jus tice in Alabama. The recipient is presented with a crystal gavel bearing the state bar seal and the year of presen tation. Nominations are considered by a three-member committee appointed by the president of the state bar, which then makes a recommendation to the board of bar commissioners with respect to a nominee or whether the award should be presented ,n any given year. Nominations should include a detailed biographical profile of the nominee and a narrative outlining the signifi cant contribution(s) the nominee has made to the administration of justice. Nominations may be supported with letters of endorsement. 11tcAlobctft,al.d{qltff"II J·jfilf,j,,Sfijffffm D ISCIPLINARY NOTICE Reln•tatement though requestedLo do so on numerous occasions.Jones 1vas • Effectiv~August 5, 1996, Birminghamattorney James N. found to haveviolated Rufe 1.15,A.R-P-C., for failingto prop Brown. Ill wa.sreinstated lo the practice of law.Brown wa.s erly preserveclient funds, and for failing to promptlydeliver suspendedJuly 29. 1996 from the practiceof law for noncom· said funds to his client. Jones wa.salso foundguilty of violat· plianct with the MandatoryContinuing LegalEducation ing Rule 8.1( b), A.R.P.C., (or failinglo respond to a lawful Rulesof the AlabamaState Bar. (CI.E No. 96--06] demand for informationfrom a disciplinaryauthority. The bo.1rdfurther found th.it Jones violatedRule 8.4(c).A.R .P.C.. •EffoctivcSeptember 25. 1996,Mobile allorney Charles T. in that he engagedin conduct involvingd ishonesty,fraud, Koch was reinstated to the practice of law.Koch was suspend· deceitor misrepresentalion.lA SB No. 95-1781 ed on July 26. 1996From the practiceof law for noncompli· ance with the MandatoryContinuing Legal EducationRules •On November13, 1996the AlabamaSupreme Court of the AlabamaStale Bar. !CLENo. 96-321 entered an order disbarringAnd.i lusia attorney William Bartlett Taylorfrom the further practiceor law effective12:-01 Dl• bannents A.M.. November13 , 1996. Thylorhad previouslypleaded gullly •On August 15, 1996, the DisciplinaryCommission dis lo a felonyin the U.S.District Court for the MiddleDistrict of barred Jacksonattorney Franklin Delano Leeunder Rule22 Alabama.Taylor then consentedlo disbarmentwith the of the Rulesof DisciplinaryProcedure. Lee had previously AlabamaState Bar. IASBNo. 96,241 (A)I pleadedguilty in BaldwinCounty to Lhecrime or possession of a forgedinstrume nt, which is a felony.Lee had prepared a Su spensions counterfeitw ill for a womanwho had nctuallydied Intestate. •EffectiveSeptember 9. 1996.Prattville a ttorney KarinAnn He had her signature forged lo the document. Lee's"cl ient" Shivers wa.ssuspended from the practiceor law in the State or then inheritedall the property.and paid LeeS 15,000 for his Alabamafor failure to complywilh the AlabamaState Bar work in perpetratingthe fraud. Suspensionor disbarmentis ClientSecurity Fund Rulesfor calendaryear 1996. (CSFN o. mand.llorywhen a lawyer'sconviction of a felonybecomes 96-14) final. (Rule22(a) ; Pel No. 96-0061 •EffectiveOctober 16, 1996,1\JSC.'!loosa atlomey Roger •Mobileattorney WilliamCro,-er Jon es. 111was disbarred Sh11YOeRoland was suspendedfrom the practice of law for from lhe practiceof law in lhe Stnte of Alabamaby order of noncompliance with the MandatoryContinuing Legal lhe Supreme Court of Alabamaeffective August 23 , 1996. Education Rules of U1eAlabama Slate Bar. EffectiveOctober Jones failedlo respond to formal chargeswhich had been filed 25. 1996, Rolandwas reinstated to Lhepractice of law. (CLE against him by the Alabama State 13.i.r.A defau lt judgment was No.96-531 entered on lhe charges.with the factsalleged in the charges havingbeen deemedadmitted. Therea~er, Jones failedto •On November13, 1996.the AlabamaSupreme Court appearat a hearing which wa.sscheduled for the issue or disci· entered an order suspendingAlabaster attorney NickeyJ . pfine alone. The DisciplinaryBoard thereupon directedand Rudd. Jr. from Lhepractice of law for a period of 91 days.This entered an order that Jones be disbarredfrom the practiceor suspensionwa.s entered in accordancewith a plea agreement law in the Stale or Alabama. lhal Rudd made with LheAlab.',ma Stale Bar regardinggriev The formalcharges alleged Lhal Jones undertookto represent ances pendingagainst him. IASBNo. 94-147 (A), et al.( an individuallo pursue a collectionscase. Judgment was obtainedby Jones on behalf of his client in the amount of Publi c Repr imand s $1.400p lus $66 in costs. Jones subsequentlyfiled a garnish· •On September 27, 1996, Birmingham attorney Michael ment action againstthe judgment debtor.Thereafter, four sepa Stephen Herring received a public reprimand 1vilhoulgen , rate checkswere forwardedto Jonesa.s counsel for the.judg era\ publication. The reprimand wa.sthe result of a condi, ment cr~ditorwhich monieshad b,:en rtceivedby the clerk's tional guilty plea that Nerring entered into with the officepursuant to the garnishment.ictlon. HC>We\'er. Jones AlabamaState Bar. Herring was ostensibly handling a med, failedto properlypresuve these monieson behalfof his client, ical malpractice case for a client of the firm where he and also failedto promptlyremit thesemonies to his client. worked a.san associate. The client was assured by other The client fileda complaint against Jones. Howe\'er,Jones employeesof the firm that Herring was going Lobe repre failedLo submit any written responselo the complaint even senting her. Arter several months. Herring wrote the client 1 •11e&111ti1;,ae;1111TM,U,,b(,m.,LmrtJ Notice of Election Notice Is g,venherewith pursuant 10 the AlabamaState BarRules Governing ElectJOn of Presid91\t·Electand Commiss,oner. President-Elect TheAlabama State Barw,11elect a prasomt-elect in 1997 to assume the presldency of the bar in Juty 1998 Arr-,can didate must be a memberin good Slandingon March 1, 1997 Pe11tJOnsnominating a candidatemust beat the S1Q11ature of 25 membersin good standing of the AlabamaS1111e Bar and be reoeMld by the secrellllYof the state bar on or before March 1, 1997.Arr-, candidate for this office must also subm,t With the nom1na!Jti9peullOn a blackand white photographand biographicaldata to be published1n the May Alabamalawyer. Ballotsw,II be mailedbetween May 15 and June 1 andmust be rece,vedat state bar headquarte,s by 5 p.m. on July 15, 1997. Commissioners Barcommissioners wi ll be electedby those lawyers with U1eirprincipal offices in the followtngclrcuhs: 2nd ; 4th; 6th, place no.2, 9th; 10th,places no. 1, 2, 5, 8, and 9; 12th; 13th,place no. 2: 15th, place no. 2; 16th; 20th; 23rd. placeno. 2; 24th; 27th; 29th; 38th; and 39th. Additionalcommissioners wm be elected in these circuits for each 300 membersof the state barwith pm1C1paloffices herein The new commissionerpositions will be determinedby a censuson March 1, 1997and vacancies certified by the secretaryon March 15, 1997. Theterms of any mcumbent commss,onersare retarned. All subsequentterms will be far three years. NOffllnanonsmay be madeby petition beanng the s,gnatures of fivemembers 111good standingwith pnnapal offices 1nthe cucurtIll which the efecoonwil be held or by the candidate'swritten declarationof candidacy.8ther must be rece,vedby the secretaiyno later than 5 p.m on the last Friday111 Apnl !April25,1997) . Balfotswill be preparedand mailed to membersbetween May 15 and June 1. 1997.Ballots must be voted and returnedby 6 p.m on the secondTuesday in June (June 10, 1997)to state bar headquarters. ThtAlahumril.au'JlfrII f·j'jlf,j·,IJ+Mfll DelinquentNotice Licensing/Special MembershipDues 1996-97 All Alabama Attorneys : The dual invoice for licenses or special memberships was mailed in mid-September and was to be paid between October 1 and October 31. If you have not purchased an occupational license or paid special membership dues, you are now delinquent! In Active Private Practice : Any attorney who engages in the active private practice of law in Alabama is required to purchase an occupational license. The practice of law is defined in Section 34-3-6, Code of Alabama, 1975, as amended. (Act #92-600 was passed by the Alabama Legislature and amended Section 40-12-49, Code of Alabama, 1975, effective October 1, 1992.) Occu pational License : $287.50 (includes auto matic 15 perce nt late penal ty) Not in Active Private Practi ce: An attorney not engaged In the active private practice of law In Alabama may pay the special membership fee to be a member in good standing. Judges, attorneys general, United States attorneys, district attorneys, etc., who are exempt from licensing by virtue of a position held, qualify for special membership. (Sections 34-3-17 & 18, Code of Alabama, 1975, as amended) Spec ial Mem bershi p Dues: $125 (pena lty not applicabl e) Direct any questions to: Diane Weldon, membership services director, at 1-800-354-6154 (In-state WATS). (334) 269-1515, or e-mail: ms @alabar .org immediately! II /ftf:hi'i:\·flffflll nt.A/abmna(.mt·/ll'r October 7, 1996 ~ May it pleasethe courts,Mr. ChiefJustice Hoope~ jus ticesof the supreme~ U'] JUdge~:s's,. 00):!!ts. 0 ~a li;, In membersof the clergy,members of the AlabamaState Bar, and tionored>luests::3§: ,. · / ii'.i.~ 4 1 It_is my honorand privilegethat you allow'me to adc!resJ,y.ou tod;iy. The fir~Mon~yi rf~ ~ ~ gl 41~t~~ tradrt1onalday for the fOfmalopening of the appellatecourts in Alabama.At anothert1;l!e It ~ ff"Yler~t Jrrn~ f tlje , courtsfrom theirsummer recess to begina new term.Today tne term is i64days a,tea~~ ~i~ ~~- · ~ the hugecase load of most of the oourtsin Alabama.Howevei in my opinion~ ecSie\Uldbh ntln ~. ta..~osi( , l. i~ i I I' I I ¥/· "openingof courts" to reviewthe pastand to anticipatethe new. It is .alsqa 1jm!3wl1. en :Jp enfember 1 »_i~~\t andnonor the memoiyof our 67 colleagueswl)o departedth~ life s]ncethe la$io~lirin ~~ ra:-~Y- On Octobe/2, 1995, the openingof courtremarks were mqdeby the Honoraj)l~ Rli:hard, L • e . sineedeparted this life. I was not there,but I wouldbet that JudgeJosiiph 9:'~ ~ wh_ci~,as ~' , ~ • ·· 1e,. was in attendanceto hear" Red's~ remar!(s.And, sincethat time, two clr.cuitJudgE!,~ jJ)Jnv'sirciiit1J~ llf.j .~ Bollingand Judge Robert E. Hodnett,Jr .• have passed away. These fourJudgj;!s , rrkethe other6s ati.e~~ _. whom was Senator.Michael A Figures.have served thiflr professionw. ith honor.ardplsti.nction in m;ny.~';f n'!ii am surethey are now in a muchhigher court, but they all will q:esosely missecj, -~~, , •• \ _ Socratesonce said, "The only goodis knowledgeand the only evil 1signoralilce.' 1 ,(eahzeor:ily, oo clearly · • detractorsplace me, but oeingto~lly honestwith you andmyself, I knowthat I cronot possessthe intelleetua t or eloquenceof the lateJustice Jenes. so I will nottry. . 11 ' 1 I I haveasked, how do we adequatelyremember and honorour fallen comrades?As simphst,eas it ~ ay syr think by alwaysremembering what they stood for arid workedso hardto achje~e., fl°fii\ t' i~n ind!lpenden\ c1aiywith equaljustice for all.These are mere words, but this is the legacyof our 1rjen:l"s ~9c'l¥lePM~ co-i Therefore,we shouldnever forget or let othe,s fOfget that our forefathers, su~h as ~e'ffersbh1c,ij~1tf .P.·Ha 'l\o andalmost all the framersof our federalConstitution, we,e endowedwith infirite ]. dgm lo-a , a~d to I, new government.with threeseparate and distinct branches of government. to eaC&raj bl"oe . e r 1 andduties of each,staggers the imagination.And, if one wouldjust gJancea~ " e]:jeral1i ti ;1.5'' fit~ 1 quicklysee the ratilicaMnof the Constitutionand new governmentwas not 94silYJcco ~ isti . Toc f~rpri dayphrase, "Just do it·, well. they just did it Now. I would ask you, did not most of our fallenmembers posse~s wisdQ ~ not4oww.,in1@: 1r Iii'\ D{ f 1 not sacrificefor the rest of us?And did.theynot leavea blueprintfor us te fofipw,?0n'-a!l 'J · nt j ft 1 resounding" yes · . II II , II A wise manwnose name was Carnegieonce said,"As I grow older.I pay lessatte~tiqp t. h rn 1 s watchwhat theydo." f I 1 Since I havegrown older and I havewatched, I can reportto youI likedwl)at i'saw. ).lj~ toµI i andsee manyof oor fallen, andif we but listenwe canactually hear what 'lhe'i'~ 1d. lrl a8di!i, I ~s re er Dictionaryhad pictures next to eachword, words suehas lady,gentlemen, jt lrislf lntE![l~e'iitl fa~-an~ s9!~f i ~e excellenthusband. wife, Christian,etc., you wouldcertain ly see the picture/01 ,.lla ~yo f;o~r fal~,i ~eat; ff1ijfao lk Thethree branches of our Governmentare all, ~s they should.be,enhrelt 9ittere,:i ~ O\.lf(Nin tt if ln l1 o 1· ' same,and thatis to seivethe citizensof this greatstate and country, fo r it,~ 1ol19s·to \hem ti]~ sail a I I I ~ l TheAloban,al.aulyer Ill f,jijiJ,j·\Hfiffjffll ' es~~ ollrlS\Jl!tel"Qi:loes- :nol.be~g to attorneysand judges, but to all thepeople we se,ve. We. theiustiees . ~ 9!!S_a ~tt~~ p\y~ PYa i;i!acelfl'the coui'thouse,. and, yes,for a relativ(llysJ'iort period of time,and we ~ pffi ~eeppeace:ao'd tranq_i;11fity 1h0\JT society b,y resolving.disputes, because we area nationof laws.no1 men . Toi;i wTno~ angeare constan\ly plewing,'and this is notalways bad. 81:lt, I would caution YoU justices and ~~notallow a -!!;~m_~n\to goth!()Ugh Q~. r legals.\r,item , oneway or lha od1er.It Is our duty!O question and Ii W..tl}IL~mmonse11se-0lctates that we.steer the 'Course.10 an everrhandedmanner. maintaining our system ~ \I ~~~ teed to )JS; ~ 1~ 7qw J~~~~ ns we!\ave a "buaj:lleof rigllts" guaranteed101.JS underthe UnhedStates and :-..~ ba(!lacorl~tltut ions,b ut n01'le;"i11m _y opihfon, is moreprecious than the right to a trialby a Jllryof you~peers,if ::,... ~tia v~ iJ~ f ac,tion, It js vvritter:i;if you haveear s,10 hear, thenlisten . Thereare thoselh' lflese ·ctiang,ng ~ ~ nds" wh~~ llke-te dispensew ith !~is fundamentalnght of a matby Jury. That ls. takei t awayfrom you "::: ~ ~~ us~ er,allewth i s to happeni for 1hepull lic 1sthe eonscie!'lceef our legalsystem . We mustalways re'ffiembe~a:- as longas w.e'nav.ith ~ ..iA'd the o,ther r,ghts-g(tatameedto us in o.ur constitutions,Wfl will contin l1eto 009f.i t~'1ta ws..,[1ot men. PartlctJl;lrlymen who weuldli ke10,d1ctatewhat nghtsthey thinkwe citizens should~ a~};s t~ sbl~teliJ_~'ss~ iatfQreve _0>~ to tememberthat o_ur only hopefor a_cont inuedfree soc fety . . . re~tswith edt1f !i9p a11cl:! n 1hdepea~enL1ud1ciary. T.h1s -ques11onof. an 1nd~pendentjud1c1ary should have been l; nd te restl%~f 0f·191;,v_earsago in the,caseof Marburyv. Madison, but yet thereare these todaywho think by l!!fl#i\yt)(ii;\\\' d~ arvcan be tinkeredwith ; it'carinot.Our deJ)!lrtedbrotb,ers and ~isters of the law surelydill not a!lo~1./i 1~C?;lj,!f? n and neithercan we, oofij/J'ffefthe Jlam \&,pf tt)psew!:Jo h ~v.i deR91tedtliat I haveoot mentioned,and thooght about what I might ~ Y <111 helmedwith thetremendous,loss we N!Vesuffe(ed 1n Just one year . 0f this6'7 we knowtheir per ~ _L~t ~ ~ffi. erEJnt,therr individual taj>t~s were different, li kesand disl ikesof differentsubiectswere different g 11kmowltlat was equalamong a11 was theirlove.of the-legal pr0fsission . And,to havea loveof theI~ In !ti ~rr1 1 ~Yllfffivbo m ustliave love a (fur~pecf foryour fellow man I haveno doulltthat ,n allthose times when they 1~ ; ~ simplv,dld wfiatwas right ~fH ~ e falle~wive¥,li9~t1JS~ ~mple what the lateEdward R . Morrowsaid, addressing a groul)of · i~«r1J,.J fIT persua k~e: we ,riuJtbe sel(eyabte.To be beJ16'/llble,we mustbe credible.To be credible, we must 1 · ~1'l eo .[ rr ltose ~ (oreme 1 like yo,udid . butin everv1ury tna1 fjlaVe. c rirn(riator cMI,I tellthe jurv ; lffftir~ ' thjscaseOr anycases 1ould 9e like yourdaily life, and thaNs a searchfor !hetruth." _lo/ ef~+i?e1e r j;la:fr any'prollfem.in ~eterrpini11gttie truthfer it fs oneof Goo'sgifts to ea<:hof us andwe insun~ iiI iel fTM~I :ij I' n r ~ jiev~W,t tb se who hal(epredecea~ us wouldlike forus to learnfrom their successes, as well as of~ · clitijft a , s)l1~ ~Tue ~I ofthe lawyer'sambition ca n be reachedonly by wolk. hardwork. Oratory Cflli of \ xo~i~rie\1tie'r ca1)&irttlno rfam ilYd 1stmdon. ,~can'Qe reachedby meritand by meritalone " f~ l~ I f llr i rnJwe~ r\ed"{?Uld have rrie lo rel1)indyou t0 keepeverything 1n its proper~Jspecwe .What I ~ anj 111.t:Jest11lusr te wr a pers".flalocrurr ence, but I WIii shareit with you Onenight, long after otbers 1n the · @lti, o~i9[~l dh r!~ fol ~e pay, I wasst111 w0r~mg . MYc/Jlleagtte and [nowl departed Irland. Judge Micnael E . ~ 1lvlcar 'fl d~~fco Jrthouse,and f~nd l'neWO*lng. He said, "Ferrill, go homeand be wnhyour lamtly, fo r 1n(lM.ici[j .j,ff;j{jlf:f·\lffflll TINtA/J1bu11u1l#l.•tJt"t' Who is wise? Theman who canlearn something from every man . IMlo ,s srrong? Theman who overcemeshis passion . Whois rich? Thirteenth Judicial Circuit Mobile. Alabama Thq A/o}}Qm fly \Villi;irn<:. lloss oncealed for too long as a taboo subjecL practicesmay be more common than even pes unethical and illegalbilling by attorneys has simists havefeared . (Crecently emergedas a subject of widespread 1\,-o-thirds of the attorneyslhal I polledin a survey discussionamong lawyers,clients, judges and com in 1991were personallyaware of at leasl some mentators. Originallyhailed for iL~objectivity and instancesof billingfraud, although relative ly few efficiency.hourly billingis now widely assailedfor believedthat it was a frequenl practice.' ln a survey encouragingwastefu l work and fraud.Virtually Uli!tI conductedduring 1994-95.more than halfof non-existenta decadeago, disbarmentsand crimi the attorneyssaid that theybelieve that at least five nal prosecutionsfor fraudulentbilling havebecome percentof the time billedby attorneysin U1iscountry almost commonplace. is padded~ Thisfigure i s consistentwith the experi The billingprocedures used by most law firms enceof audit firms. which report that fiveto ten per practicallyinvite attorneys to pad bills.As Professor cent of the billsthat theyexamine are fraudltlent.• lf GeoffreyHazard has observed,"The notion of this 6gure is accurate,then lawyersare bilkingclients paddingundoubtedly crosses the mind of almost out of literallybillions of dollarsevery year. anyonewho has kept a time sheet."' Since bill Bul while billing fraud is all too widespread, it is paddingis so hard to prove,dishonest billing might probablyLhe exception rather than the rule_A much be called "the perfectcrime." Both empirical and more tl'oubling-a nd costly-p roblem is that many anecdotal evidencesuggests that it is not uncom customarybilling practices are legal but unethical mon. In reviewingbi lls in statutory fee cases,some and that manyoulside attorneysare so blindedby courts haveuncovered odd ities such as lime billed self-interestthat thei• do not perceiveany ethicaldif to a client beforea file is opened. Legalaudit firms ficulty. The most common billingabuse is excessive report similarly bizarre occurrences, such as billing zeal in representingc lients. Time-basedbilling cre by phantom attorneys of whom the firm has no ates an inherent conOictof interest betweenthe record of employment,and a surprising incidence client's interest in the efficientd isposition of its of billingsfar in excessof 24 hours per day.And the businessand the attorney'sinterest in rackingup recent spate of criminal prosecutionsof attorneys hours. Spurred on by a ferventdesire to provelheir for fraudulent billingsuggests that illegalbilling skill and dedicationand to avoidmalpractice su its by ll+fff,jfji,,j·Jlf+fII Tht1lluba,naU1r,yu leaving no stone unturned in their representlllionof clients. moreethically ambiguous, since nn nttorneywho billsClient A all too many attorneys have deludedthemselves into beJieving forwriting a briefat the same time that he billsCl ient B for that no amount of work is too much. \V-tllfullyignorant of the tmoelhas actually e.,l'ffl(led lime for bothclients and provided lawof diminishmgreturns. countless attorneyswill milk a ,'31ueto both.Although double billing is Lhusnot fraudulent.it file to death. billing time long aner any marginalutility to is questionableinsofar as most clients"ould not appl'IJ\oeolit the client has ,,anished.In an ironic twisL other attorneys Onlyone-tenth o{ the outsideossoci:11e or Resear ch cal about the utility or much of the time billed for such tasks clerk as attending deposllionsand internal conferences.•In side counsel were more inclinedLhan o utside counsel in both of With acet:s.sco 1hc Staie Luw Libruryand Wc~tlaw. v.·e my surveyslo believet hat unethical billing is widespread. provide fa~t and efficient ~crvice. For dcndlinewo rk, we The disparity is I\Otg r~at, however. Inside counsel can'Lbe con dehver 1nforrnnuon 10 you via <"01nn1on carrier. too soured on hourly billing or else they would replaceit Federal Expre..,.,o r FAX. with another system. Morethan 90 percent of the outside F:imell U'g31 Research~:c.ttm1nc, the i"•uc,thoro ughly counsel who respondedto my 1994-95survey indicatedthat throogb qu:lli1yrc~nrch . bncf wrulnJ •nd nnaly$JS. hourly billlng remained Lheirprincipal form of billing.• In additionto churning files.many atlOl'Oe)-'S ha\'t i111.,.eased Our ratesarc S35.00 per hOtJr. .. uh• lhrcc hoor their hours by eng.'lgjngin l\o.'Omuch-criticized practices - mul minimum tiplebilling of dients for worlcperformed at thesame time For Research Assistance contact: ("doublebilling") 1111d time-based billing for recycledwork. The Sarah Kathryn Farn ell AmencanBar Association stl'Ollgly condemned both practicesin its 1993opinion on billingethics, • which the Disciplinary 112 Moore Buildi ng Committeeof the AlabamaBar Association officially adopted in Montgomery , AL36104 11 1994. Sincenn attorneywho billsfor hours that he hasnot (334) 277•7937 actuallyexpended is engagingin blatantlyillega l conduct. billingon nn hourly mther than n value-addedbasis for work previously perfon11edi~ blatantly fraudulenl. Doublebilling is Tht!AIJb.11n.,tanw II t,i/i'bi·iifff&III Someattorneys blame the codesof professional responsibility ABA Opinion seems Lo allow attorneys to round up lime periods for failingt o providegu idanceas to what constitutesethical to the minimumbilling increment-in other words,an attor billingpractices. The Al11wma Rules of Profossional Conduct, neycould bill JS minutesfor a one-minutephone call if her for example, offeron ly verygeneral guidance on billingissues, firm used JS-minuteincrements . The combinationof large enjoining"clea rlyexcessive" fees, "' requiringattorneys lo com billingincreme nts and liberal roundingtechniques costs clients municatethe basisof feesto new clients," and suggestingthe untold millionsof dollarsvery year . If. for example, an attorney needfor infom1ed consentof the client lo workperfom1ed by who billsat the rate of $180per hour recordsten one-minute the attorney." No rules, hOwtVer.can adequatelyanticipate the phonecalls i n 15-minuteincrements, he has billed the client myriad ethicalsituations in whichan attorneymight herselfin $450 in billingsfor $30 worth of work.The use of six-minute billingtime . Muchbet ter than codesan d rules are common incrementsreduces the likelihoodof such mischief. senseand a goodconscience. But eventhe mo.sthonest lawyers Corporationsa lso might wish to insist that p,rralegalswho bill can findways to justify ethicallydubious practices and reason by the hour havebona fideparaprofessional credentials and are able attorneyscan differabout constitutes ethica l behavior. not merely glorifiedclerks. Although there are no officially Inside counseltherefore need to vigilantlymonitor the billing definedcredent ials for paralegals,the majorparalega l organiza practicesof outsidecounsel. tions and the ABAdefine a paralegal as someonewho has for The best way to start monitoringfee practices i s up front mal paralegaltraining or significantexperience. Ln a recent witl1bill ing guidelinesthat spellout the boundariesof proper audit of a major firn1,the Legalgard group foundthat only l3 of billingpract ices and squashopportunities for outside counselto the 22 personswhose work had beenb illedat pa1·alegalrates claimafter the factthat questionable biltingpractices were in overa period of yearsfe ll withinthis definition."' The most out the client's interest. Sincealmost any billingpract ice is ethical standingcredential of one "paraleg;il"who was billedat S135 if the client consentsto it. a feeagreement helps to chokeoff per hour was her job as a summer assistantmanager at a cookie manyof the inevitableethica l ambiguitiesthat inevitablyarise store.' ' Sincefirms have also beenknown to bill secretaries, in U1econtext of lime-basedbilliJ,g. Most companies that have messengersand 0U1erclerica l personnel al hourly rates, a fee billing guidelines prohibit the practicesof doublebilling and agreementshould also makec lear that only allorneysand gen billingfor re-cycledwork. In-house counsel can also insist that uine paralegalsshould be billedat hourly rates. attorneysbill their time in six-minutei ncrements.The use of Likewise, inside counselshou ld makeclear in U1e feeagree ten-minuteor 15-minute units providesattorneys with an ment and through the monitoringof billsthat attorneyscannot opJ)Orlunity lo round up the time of insignificanttasks. The normallybill Limefor clerical t"dSks.Although the re are some instances,of course.in whichi l maybe more efricienl for an attorneyto perfonnan essentially clerical task,all too many associatesin largefirms spend the bulkof U1eir time engagedi n Y ou·re handling• class actionlawsun, tasks that could be performedby paralegalsor non-legalstaff. and you an: req\llfcd,o place ads in One legal auditor.for example,recently found an entry for si.~ Rveralne,vs1X1,pc.l'S in sc,.·er.tl «>unties and a lwlf hours,at a raleof $245.for ·'preparingclosing room. " or evenstaLCS that are afftcted You'rr. CLASSACTION not in the busin Th(!~110/xnno IAit 'Jlflr Ill l United States Supreme tencing Judge to depal't below the Can Ingestion or Alcohol Be Used to Court - Crlmlnal statutory minimum b;iscd upon "all Negate SpecWc Intent? the attendant facts and circum Monltma11. b'gelhoff,__ U.S.~ Sentencing Guidelines nnd stances." 64 U.S.L.W.4500 ( 1996). Can the Downward Departur es This case clearly underscores the Slate of Monlllna bar a criminal Melendez11. Uniled Stales, role of an Assistant U.S.Attorney in defendant from using drunkenness as _U.S._, 64 U.S.L.W.4525 the sentencing process to the extent evidence that they did not act deliber (1996). Does n federal prosecutor's lhal downward departures under Rule ately? The Supremc Court. in a request that i cooperating defendant 5.1 are left to the discretion and sharply divided five-to-four vote, be given the minimum or the applica integrity or the prosecutor. answered yes. ble guideline sentencing range permit Justice Scalia, writing ror the a federal judge lo depart below a Beware. Lhe Clock Is Running majority, held that "defendants do not lower statutory minimum sentence, Carlisle11. UnitedSia/es, have a constitutional right to have all i.e.. a downward departure? The _u.s._, 64 U.S.L.W.4293 relevant evid~nec introduced in court. Supreme Court, splil seven-to-two, (1996). Do Federal trial judges have The rule comports with society's answered no. the authority or discretion, after con moral perception that one who has In an opinion nulhored by Justice viction, lo grant a motion for judg voluntarily impaired his own faculties Thomas, the Court held lhal a prison ment of acquittal if the motion is should be responsible for the conse sentence cannot go below the statuto filed beyond the seven-day deadline quences.'' ry minimum wilhout a specific provided for In the Federal Rules or Justice Sandra Day O'Connor wrote request by government prosecutors. Criminal Procedure, Rule 29(c)? a stinging dissenting opinion that was Justices Souter and Stevens wrote The Court. again split b)•a seven joined by Justices Stevens. Souter and concurring opinions. Justice Breyer, to-two margin. answered no. Breyer. Justice O'Connor observed joined Justice O'Connor, filed a Justice Scalia, wnting for lhe lhat the Montana law at issue violated strong dissent from the judgment. Court. held that ju dges may not due process because "it frees the Practice Point: It is important for stretch the deadline for the filing or a prosecution ... from having to prove defense counsel, who represent coop motion for Judgment or acquittal by beyond a reasonable doubt that the erating co-defendants, to incorporate even one day. "There is simply no ddendant ... possessed lhe required in the terms or any plea agreement room... for the grnnting of an untime mental stale." not only the applkable guideline sen ly post-verdict motion for judgment Practice Point: Nol\\lilhstanding tencing range, bul a commitment on of acquittal, regardless of whether the the majority opinion In Montana u. the part of lhe U.S. lo permit the sen- motion is .1ccompanledby a claim of Egelhoff. counsel needs to continue actual innocence." to asserl signlricant alcohol ingestion J ustlce Stevens, Joined by J us lice as a basis to negate specific intent. Kennedy in dissent, strongly dis Whether a person with the requisite o .. tdB , agreed. Justice Stevens said, mens rea can only be adjudicated in Byrne. Jr . " ... Congress would not likely have light or the totality or the circum OoMIB B)mi. Jr • ..,_ ..,,,. intended to require a district court to stances surrounding the purported _.__enter a judgment of conviction criminal conduct. ~ ..- against a defendant whom ii knows to balnt.~ bt innocent." The dissent strongly ...--~He ...... suggests that justice is subverted by Standard of Appellate Review on ...... - ,rm, .. Fourth Amendment Questions _&__ the rules whtn an untimely filing of a ...... _ post-judgment motion results in an Ornelasu. Unili!dStales . innocenl person's conviction. _U.S._. 64 U.S.L.W.4373 --- (1996). In reviewing a trial judge's 11 ffffUjif :ihil:\,fll 1MAl,1hamalmrtftr findings that a police search conducted without n warrant we lo eliminate this distinction, we would eliminate the was based upon probable cause. should an appellate courl incentive for obtaining a warrant." use a de nOl'O standard? Chief Justice Rehnquist. writing Juslice Scalia dessented and suggested that law enforce for the majority. said yes. ment officerswould still have ample incentive to proceed The Chief Justice reasoned that the less stringent "clear by warrant e\'tn if appellate courts showed greater dtfer error· standard or review should be confined to those cases ence 10 trial judges· rulings in warrantless search cases. In which a judicially authorized search warrant was obtained before Lhepolice conducted a search. In-Custody Delerminalion Involves a Mixed Question of "The Fourth Amendment demonstrates a strong prefer Law and F'acl ence for searches conducted pursuant lo a warranl...Were Thompson v. Keohane, __ U.S.__ , 64 U.S.L.W.4027 (1996). Is the question of whether a criminal suspect was "'in custody" when interrogated by lhe police a question or fact so that a state court's deterrninntlon of such is entitled lo grcal deference by a redernl judge? The Supreme Court, in a seven-to-two decision. answered no. Justice Ginsburg, writing for lhe majority. held that whether a suspect was In custody i$ a "mixed question of In-State Mediation Training law and facL .. and the presumption of correctness there fore does not apply." The Court's opinion instructed federal judges to under (Approved for CLE credit and Alabama Center for take an "independent review" or the "in custody" question. Dispute Resolution roster reglsuat,onl Justice Thomas wrote a dissent in which the Chief Justice joined. • January 23-26 Montgomery and February 13-15 Birminghan, Mediation Process and th e Skills of Conflict Reso lution, Mediat ion Corpo ration 18001ADA-FIRM . Credit: 21.0 January 30, March 13 or May 20 Why6,000 Birmingham Arl>itratlonTraining (one day only, course given Lawyersuse three times), Resolution Resources (8001745-2402 Chap7 •• 13 February 18-20 or Apnl 15-17 * Besl T)•peSel look in Bankmptcy l'onns. Birmingham * Fas1est,friendlies! sofl"\\•,1,~ Mediation Training, Reso lution Resources * The only softwn.rewith bulh,in /111ellige111/lelp. !800) 745-2402 Credit: 21.0 * Autom:ulcP lan l)r:1f1ln1154 cuMont plans 10 satisfy nil dlsirlcts. February 27, March 3 or April 24-28 * Filtng check-lists, client questionnoirc. Mobile * M:urbt-on-di,kvcr..lon., for .di courL~ Divorce Mediation Professionals, Atlanta th3t mke lhem , Divorce Mediators , Inc. DEMODISK • REFERENCES (8001862-1425 MONEYBACK GUARANTEE For out-of-state uaimng infonnauon call CALL800 BEST-7-13 the Alabama Center for Dispute ResolutiOn at (334) 269-0409. & CHAP7**13 Specialty Software 1111S . Woodword • RoyalO ok, Mith. 48067 ThrAJobutfhl~., II f.iti'i·i·\IFkiD+II ProblemsApplying the Life of Georgiav. JohnsonCase in the Product LiabilitySetting: WHERE Do WE Go WITH PuNITIVE DAMAGES AFTER BMWv. GORE? ByAndrew C. Clausen,md Annette M. Carwie Andrew C. Clausen An ll+Jf'Jj:(if§;\IFffIll iMA fobu,nal .awllfr Discussion of Johnson v. Ute of Georgia and the differencebel\\oeen the punitiveaward and other criminal BMWv . Gore sanctionslhal may 11.1\-ebeen imposed.The Suprmie Court con• DaiseyJohnson sued Lifeof Georgiaalleging fraud in the sale 5ideredthe wrongfulcondud ofBMW in light of these criteria or a Medicare$Upplmienl insurance policy that wasor no benefit and foundthe impositionor $2 millionin punimoedamages was to her becauseshe was eligiblero r Medicaid. A jury wrdict was grosslyexcessive and, thus, violativeor the Due ProcessClause or returned in favoror Ms.John son in the amount or $250.000in tJ,e 14thAmendmenL compensatory ~nd$15 million in punitivedamages. T he trial llegarding the first guideposl.Lh e U.S.Su preme Court con, courl rcmiUcdthe punitiveawnrd to $12.5million. Life or eluded that BMW's con Tlw.~maluu~ lll f fijli\-\ff(,Jiff II constraining legal forcethat the statute and GreenOil standards found liabilityand awarded$2.5 million in economicdamages , (as interpreted here) lack"their decisionmight haw "counseled $47.5 million for mental anguish and loss of consortium and more deferential review by this Court."BMW at 15-16. $100 million in punitive damages.Max Boot,/11 the land of lawsuits. WallSL J., Oct.30.1996. Applying the Green Oil Factors In Product The Goredecision 's admonitiont hat puniti~'I?damages must be Liability Cases determinedw ith respectto harm that occurred solelywith in In light or the U.S.Supreme Court's decision in BMW.this arti Alabamagiws support for a motion to exclude evidenceof all cle will nowexamine how lhe decisionin /,ife of Georgiato giw accidentsexcepl those occurri ng 1vithin the slate. However,a juries evidenceregarding the GreenOt1 factors may have an skillfulplaintiff attorney will argue that evidenceor accidents impact on the determinationo f punitiw damagesin productslia nationwidei s relevantto the issueof the defectas wellas notice bilitycases. thereofto LhedefendanL Citing the Ufe of C:eorgiacase, he or 1. Does the punitiw damages awanlbe ar a reasonable relation she can further argue that a limitinginstruction to U1eju ry will ship to the harm likely lo occur from the defendant's conduct? preventimproper consideration of non-Alabamainjuries in deter The problemar ise.,when a jury considershow "the harm likely miningthe amount or punitiw damagesbeca use, as Justice to occur from the defendant'sconduct" should be defined.Unlike Shores states in that opinion: ''There is no reasonto assume that the Core case,where the wrongfulconduct involwdon ly a small a jury woulddisregard the trial court's instructions." life of percentageof all BMW'ssold, the typicalproducts liability case Georgiaat 7. will includeallegations of defectiwdesign and defectivewarn 2. The d.egreeo f reprebensibililyo f defendant's conduct ings.wh ich implicate everyunil of the subjectproduct Lhemanu The challengefaced by the producl manufacturerunder this facturerhas everproduced. ln an imperfectworld no productis factoris createdby evidencewh ich is profferedin virtuallyevery perfectlysafe. Even if a product is extremelysafe, when a manu case that the allegeddefect cou ld have been eliminated by some facturermass producesmillions of them, the productwill be design changewhich wou ld have increasedthe cost or Lheprod · associatedwith someaccidents and injuries.Alabama clear ly rec uct. The argument followsthat the decisionnot to makethe ognizesthat a manufactureris not requiredto producea product ; LET OUR37 )'£.ANS(JF NIJIIS/N(; EXPERIENCE WORK FOR rov. Productmanufacturers typica lly build the same typesof prod ucts for a long time.The productis usuallyimproved and refined as lime goesby, but the basicconcept for it does not change.As CASE RIG H T, INC. noted above,virtually all product liability suits allegedesign and MEDICAL-LEGAL CONSULTING warningdefects which are applicableto all productsof the same CARSONROAi) • HC6). BOXI S8 Lypethe manufacturerhas previouslyso ld. Asa result, almost all U'.ROY.AJ.AllAMA 36)48 productsclaims will involveconduct which is of long duration. OJ.fl 4-493 • FN<014) 246,7149 (bl U,e degree of defendant's awareness of any ha2ard which this conduct hasca used or is likelyto cause RIJTI'ILYNCH, 6$N, CRNP,LNC UnderAlabama strict liability productslaw the manufactureri s ll ·j·ffJj/ji(J ·nlfffII Tl1t!Alabam.1Ul~i!r conclusively presumed lo have knowledgeof any ha?.ardsassoci dends lo the shareholders. The result is that a punitive verdict ated with his or her products.Beyond t his, most manufacturers calculated to remo~ a manufacturer'sprofits from years past will are awareo f the designaspect alleged to be defecti~;however. inevitablyresu lt in excessivepunishment. and can drastically lheybelieve their product is reasonablysafe a nd defendthe prod affecta company'sfinancial ab ilityto survi~. uct on the basisthat U1e designaspect at issuedoes not consti 4. Defendant'sfinancial condition tute a defect.Thu s, the manufacturer's awarenessof the alleged Thismay be the most complexand interesting of lhe GreenOil defectcan seldomb e effecti~ ly challenged. factors. In his dissent,Chief Justice Hooper notes that: "Evidence (cl any concealmentor cover-up of the hazard of a defendant'swea lth or financialstanding has never been A hazardwhich is open and obvious does not constitutea admissible in a jury trial."life of Georgia.at p.19. l'or 140 years, defectunder Alabamalaw. T herefore,by definition,a ny time a priorj urisprudencewas wellsettled that evidenceof the wealth jury concludesa productis defective,there is a risk the jury will or pa~rty of the partiesto litigationshould n ot be admissible also concludelhe hazardal issue was concealed.T his is because becauseof the risk the jury will be improperly influenced by the of the inherent difficultyin distinguishing betweena latent defect relativeeconom ic positionsof the parties.Th e chief justice cor and a concealeddefect where il is undisputedthat the manufac rectlynotes in the 1987"To rt ReformAcL" A la. Code§ 6-ll- turer made the productand thus, is deemedto havesuperior 23(b),U1e legis lature codified this commonlaw, thus evidencing knowledgeth ereof. its positionon the issue.Id. (d) existenceand frequencyof similar past conduct ln the productsliability setting, havingthe jury considerthe As noted abo~, in the typical case, the product at issue has defendant'sfinancial condition will almosta lwaysse= to been mass produced for years. If the jury is instructed that increasean award.Thi s is becausein a typical case,even if a com punitive damages should be increasedbased on the frequencyo f pany is struggling to survivefi nanciallya nd has pasted los....esin similar past conduct. the verdict will be increasedin virtually recent years,o n cross examinationt he plaintiffsatto rney will everycase. introduceg ross salesnumbers into evidence,many limes in mil Giventhe unique context of products liabilitydesig ,1defect lions or tens of millionsof dollarswhen accumulatedover several cases,none of U1esesub-factors g ive the jury real guidance years. Couple this with the jury's preexistingdete rn1inationthat about how lo judge whether a manufacturer's conduct was rep the defendantneeds to be punished,a long wiU1 the jury charge rehensible. and will simply tend lo increasethe punitive verdict admonishing that a punitiveaward shou ld "sting," and it is sub in everycase . mitted that the jury'scons ideration of this factor ,,,illse ldom 3. Punitivedamages should removethe profitabilityof the operateto constrain improperpassion or prejudice. wrongfulconduct Another interesting dilemmaarises in the common situa- Again,the difficulty in applying this factoris most clear in lhe defectivedes ign case.As n oted above,the typicalcase invol~s opinionevidence int roduced through the plaintiff'sexpert that, for onlya smalla dditional cost, say$15 per unit, the manufactur er could havead ded a safelyguard or madea designchange whichwould h aveprevented the accident as wellas the plaintiffs FIRST ANNUAL ALABAMA needless suffering. The plaintiffs attorney will then introduceev i dencethat during lhe last decadethe defendanthas sold fivemil CONFERENCE ON MEDIATION lion units of the defective product during lhe last ten yearsin Alabama.Under this GreenOil factor, the minimumappropr iate JONES SCHOOL OF LAW punitiveaward i n this scenario wouldbe $75 million. Faulkmr UnifJersil'y Such an approachcomp letelyigno res lhe realitythat profits 5345 Atlanta HiglxDay from a manufacturingo peration do not accumulatein the com Montgomery, Alabat11436109 pany'sb ank accountfor yearson end. Theyge t rei,wested in new f technology,plant and equipment, get used to retire debt and ulti Wednesday, Febnwy 19, 1997 mately are distributed as employeesalaries , bonusesand divi- RichardWilson & Associates Registered Professional Court Reporters Coa!aa,a: Scssiocs f0< Bwioas Eucuma,l!duaton >Dd Lowycn 804 S. Perry Street Montgomery, Alabama 36104 For 'lddiDoaal infonmtioa, Phooc 334-26°"210 Fu JJ+260-6l23 264-6433 TheAlabomol.a1cyel' II f·Jtji,,j·fif+fifijll lion where a manuraclurer has a high self-insured reknlion or, informedif a defendanthas bct?n convicted of a crime related to less commonly.Is totally self-insured.In order to self-insure. the behaviorwhich is the subjec:lof the civil suiL This is so the whether p.irtiallyor totally,a company will have to draw up jury can considerthe criminalconviction i11 ml'ligalio11 of the contingent rt:Serveswhich serve the same exact purpose as a puniti\-edama!!es that will beawarded. In practice,it is diffirultto primary insurance policy.Under this GreenOil factor,the undffltand howthe applicationor this rador willserve to con astute plaintiffallomey will argue the reserve monies relate to strain a Jury or reducethe risk of an txCCSSr.'t or arbitraryaward. lhe financialcondition of the defendantand should be dis The problem is simpl}'that for many jurors, havingalready decid closed to U1cjury as evidmcc supporting a larger punitive ed a defendant'sbehavior was such that civilpunitive damages award. On the other hand, the defendantwill argue the should beawarded, being told that the defendantwa.~ also the sub reservesserve the same purpose as insurance and should be ject of a related criminalconviction may well inspire an increased inadmissible. It is submitted that il is irrationa l to subject a ,oerdicl instead. defendantto differing punitivedamage exposuresbased so lely 7. Other civilactions based 011 the same conductshould be taken on whether the company chooses to structure its insurance into account in mitigationor punitivedamages coveragewith a large or small deductible amount Prom the productman ufacturer's t)erspeclive,this factormay 5. The cost of the litigationto the plaintiff be the most troublingof all. Evidenceof other verdictsis supposed Instructing the jury to add the plaintiff'slegal fees to lheir puni lo be considered by the jury as a mitigaUngfactor, but aswith tive verdictmay result in plaintiffsagreeing to contingencyfoes prior criminal convictions.many jurors maysee this as a reason which are unfair.Over the years,the averagecontingency fee to increasethe verdictinstead. This will be particularlytrue where agreementhas increased from the traditionalone-third Lo40 l)l!r· a skillfullaW)-er argues that managementknl.'W about the alleged cent of any rt.'CO\>ery.In most product liabilitycases law),oersnow defectand knew about the injuries, but concludedit wouldbe ch.1.rgefees of 50 l)l!rcentor higher.exclusive of litig;ll.ioncosts. If cheaperto keepselling the product even though it cost millionsto the ju,y willbe instructi!dlo add attorneysfees lo the puniti\-e p.1)' off the lawsuits. damage verdict,the plaintiffmay be willing to agree to 60 pcrcenl Moreover,the plaintiffcan argue that, even arter p;,yingmil or maybeeven 70 percem fee rates for puniti,oedamage awards, lions in damages,the defendant is undeterred, and will still thinking that if they lose,nothing is owed,and if lheywin, the keep selling the defectiveproduct to thousands of unsusp«ting defendanlis going Lohave to paytheir attorney'sfees anyway. consumers unless the punitiveaward in Uiiscase is big enough 6. Criminalsanctions 5houldbe considend in mitigation lo send them the message they haven't learned from all the The life of Georgiu opinioninstructs that the Jury should be prior damages combined. Again,i l is diffitull to feel confident Health Ma)or Med ical. 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We're here to help with all your insurance needs . EST.1959 FAX: 404·814-0782 INSURANCE SPECIALISTS , INC. •i ·fff,tB't:hillH+II Th11,t1aoomalau,p that letting the jury consider such evidencew ill have the con the plaintiff. This also eliminates the income tax liabilitytha t straining effect on punitive awards contemplated in the Gore would have otherwise existedas to the punitive portion of the v. BMW decision. verdict.Of course, the dollarsar e all the same to the defendant Unlesscomplete ly confidentof reversal on appeal, Lhe defendant Ute of Georgia 's Provision Allocating Damages to will see settlement as an opportunityto reduce the punitivej udg the State Will Not Work as Intended ment by up to one-half,and maybe more, dependingo n the tax Considering the foregoing analysis, it is submitted that having implications to the plaintiff. the jury considerth e GreenO il factors in detem1ining a punitive damageaward is not likelyto reducethe risk of arbitraryor Because There Is No Double Jeopardy Protection excessiveverd icts in product liabilitycases. In fact, the result may In Civil Suits, Punit ive Damages Inevitably Result be increasingn umbers of everlarger punitive verdicts, possibly Perhaps the most frustrating aspect of trying to defend influencedby the juries' beliefthat half of the punitivedamages punitive damage claims from a manufacturer's perspective is willgo to the state. that lawyers canfil e multiple, identical lawsuits, until a puni Ironically, however,it is virtuallyguarantee d that, regardless tive award is eventuallyo btained. The facl thal a prior jury of the jury's intent as to allocationof a punitive award,the State finds a defendant innocent of punitive conduct in one case will never receiveany of it. This is becauseUfe of Georgiais creates no double jeopardy protection in a civil sett.ing, quite explicit that the State has no vested interest in any puni although, this rule might change if a portion of the punitive tive award,and has "no right to interveneo r participate in such verdict is paid to the state. life of Georgia at 20-21. (Maddox, cases." The parties "continue to have full authority to settle J .. concurring in part; dissenting in part). Ironically, just a few cases without the participation or consent of the State," and months before the Gore case went to trial, anoU1ercase was "(i)n the case of settlement the parties need not designateany tried against BMWbased on an identical claim. Yatesv. BMW part of the settlement proceeds as punitivedamages an d no part of North America, Inc., 642 So.2d 937 (Ala. 1993), was tried of the settlement shall be paid into the general fund." Ufe of by the same plaintiffs lawyers against the same defense Georgia at p. 30. lawyersi n the same venue involvingt he same facts.The Yates Given this context,after a punitiveverdict is rendered,the jury awardeda comparable amount of compensatory damages plaintiffhas an incentiveto settle for any amount less than the but refused to award punitive damages. total judgment that would reducethe share which would other During discovery,how ever, the plaintiffs lawyerso btained the wise go to the state, U1erebyincreasing the total money going to names and addresseso f other BMWowners who had purchased BECAUSEAVOIDING TI-IEB IG PROBLEM Is A TALENT ALL ITS OWN. ,7itte quest.ionshave a bad habit of blockingdeals. Typica Uy, jusLw hen 1utni1,g bacl:.is as per· ilou.\as m ovingahead . Thisi.~ tl 1e coos1ant co,,ccnJ of Missis.sippi ValleyTi~e. We're here to bel1>you clear your pa~, long before tr011bling ques1ionsap J>ear.In the event LhC)' do, \\1C'l't here 10 answer 01cm.Quickly. Becattliei.n th is bus.iness, the Line youwalk betwee n successand lailurc is too finefotan ythiog kss. ; ~OSS!SSIPPt VALI,£Y Tl1'LE • • •••• INSURANCE COMPANY lf).,,_, J/t.,.,.,,. TheA/ubomal.all'Jler Ill J·J'jif,j-JiffFJII similarlyrefinished airs, and filedsuits diets previouslyrendered in similarcases. COLLECTIONS on behalfor 24 of them, too. Rather than The judge couldstill considerthe repre SOFTWARE? consolidatingall of the casesfor trial, the hensibililyof the de(endant"sconduct. plaintiffsrecognized they coold get mul BMWal 8.and comparethe punitive tiple bites at the punitivedamages apple damageaward with any civilor criminal b)' ltying each caseseparately. The penaltiesthat could be imposedby the lawyersw~rc frte to sue BMWowr and legislaturefor compatilblemisconduct o,"r until they improvedtheir trial pre This\\'OUld also address the U.S.Supreme sent.Ilionor perhapsjust got luclcy. Court'sconcern thal a defendantreceive Oner1 meData Enlr~ fair noticeor the severityof the penalty ln1e9ia1edTickler S~stem Conclusion U1almay be lmJ>OSed.See BMW at 10-14. AulomallcFee Ca lculaHon In conclusion.jury uwardsof punitive Asan alternative,L he legislature might WordPerfectt WordInt erface damages in Alabama have dramatically considere nacting a statute which limits increasedIn lhe p.1sl15 years.J t is hard u,e recoveryor any punitiveaward to COL.L.ECT-MAJC"M to see how lhc changesset forth in the twice the nmount of the compensatory DEBTOR MANAGEMENT SOFTWARE UNIQUELY Ufe of Goorgioopinion will reduce the awardor $250,000,whichever is greater. DE S IGNED FOR COLLECTIONS ATTORNEY S. PRIC ,ES risk of arbilmry,inconsistent, grossly This is the recommendationof the S TA RT AT J U ST $1700. excess;v.or otherwiseunconstitutional AmericanCollege of Trial l..iwyersin punlm'led.1mage verdicts. Maybe it is their R,'T)Orton PunitiveDamages of the time to go back to basicsand reconsider Commit/re 011SP11cial Problems in the ~ the goalsand reasons for havingpuniti"e Admini!ltrolio11of Justice. March 3. 1989. 1 r~.. ~1~ tJ" ~ - ~... :~·~~. ;~i J~ u J!O damagesin the first place:-Vindication of "'Thisapproach pl'Ollides for flexibility. the public interest and deterrencelo the The plaintiffthllt suffersamounts of com 1. 800. 827. 1457 defendantand others who might commit pensatoryharm below$125.000 as a J \ 1 • I +• ~ , J ii I t 'i I i. [ similarwrongs in the futvre."Ufe of result of outrageousconduct b)' the . I 11 ', : I J' H ll!• l•lll ll +•11111,j[J~[l R 23230 Coorgioal JO.The meU1odfor determin defendantwould be permitted to recover ing such punishmentshou ld be designed a substantial punitiveaward. but the limit solelyto achievethese societalpurposes . ofS250.000 would preventan excessive The focusIn 111111llivcdam,1ge as.sess ment aw~rd.On lhe other hand, where the should be on determiningwhat is the compensMoryharm exceeds$ 125.000the ·,\f.Nr•I 1n:1tu,JI)' kw,jfi,rnwrd U, ~ 1Jt111trn/Jh*J- II II"' t'ff..\J," fl'"..,_°" minimal amount th.it will fairlybut effec ceilingon any punitiveaward would r ise tivelypunish and d~ter the particular commensuratelywith the compensatory conduct in question. Wilsenu. Dukona harm. The~ would be no limit in the Corp., N.V., 547 So.2d70 (Ala.1989). The serious injury casesexcept for the tre AlabamaSupreme Court is correct that bling effectpt"O\~ded by the formula."Id. there is no individu.ilconstitutional right al 15.For many years trebledamages lo have a jury determinepunim .,,,,,u1t:ibilj,fm T11itA/nbomolll,qJt"f OPINIONS OF THE GENERALC OUNSEL 8g J. AnJiwngMcloi11. ge11cro/ COU11Sl/l Direct Mall Solicitation 7.3(b)(2)(i). The Commission inter prets the term "list" as used in lhis Q u es tion One: rule lo mean a wrillen or printed Rule 7.3(b)(2){v)of lhe Rules of series of nnmes. The acceptance of Professional Conduct requires a computer disks creates storage prob· lawyer who is stndlng oul a direct lems, and more importantly. the risk mail lelter to a prospective client to of infecllng Lhestate bar's computer put the word "Advertisement· in 14- system with a virus. The only way to point red ink in the lower left hand access the information from a disk is corner or the envelope. I( this aspect to run 11on a computer. The informa of the rule is complied with. is it per lion on a printed list is immediatelv missible to put olher words or terms self-evident. · Advertising on the envelope as well? (R0-96-05] Ques ti o n Two: Rule 7.3(b)(2)(1)requires a lawyer to send to lhc General Counsel's Advertising on the Internet Officea list or names and addresses of lhose persons to whom a direcl mail solicilallon letler has been sent. Can Quest io n : lhis requiremenl be satisfied by send Do lhe Alabama Rules of ing in a computer disk on which Lhat Professional Conduct apply to lawyer information is contained? advertising on the Internet or privale Answer. Question O n e: on-line services? According to the Comment of new Answer: Rule 7.3, the purpose of requiring the The number of options available for word "Advertisement" on the enve disseminating lawyer advertising has lope of a direct mail solicitalion letter grown rapidly and will continue to is to avoid the perception that the let grow over ti me. llowever, Lheadver ter must be opened merely because it tising and solicitation rules round is from a lawyer.when It only con within the Rules of Professional tains a soliciLallon for legal business. Conduct focus on con lent or advertis ll is Lhc Commission's opinion that ing and not on the means used lo lhe addil ion of other words or terms advertise. ll is the Disciplinary on lhe envelope are nothing bul Commission's opinion lhat any infor attempts to subvert the recipient's mation made available lo lhe public option or disregarding a legal adver aboul a lawyer or a lawyer's services tisement. Direcl mall envelopes lhat on the Internet or private on-line ser contain extraneous terms are not per vices is subject to regulation under missible and would be in ,•iolalion of the rules on advertising and solicita Rule 7.3(b)t2J(v)of the Rules of tion. It makes no difference whether Professional Conduct. it is done through a web page. a bul Answer , Que s tion Two: letin board, or via unsolicited elec The submission of computer disks tronic mail. Any advertising or pro containing lhe names and addresses motional activity transmitted through J . Anth ony McLain of persons to whom direct mail let the use of a computer is subject to ters have been sent does not comply re.11ulationlik e any olher form of with the filing requiremenl of Rule lawyer advertising. (ll0-96-07( • 11HrAJ.Jootn4,.,,,,·~"'11i i/li,:i ·\ll+iMfll RESPECTINGTHERULES: The Lowe-Edgar Aberration Endangersthe Integrity of Rules 18(c), 20, 21, and 42(b) By Jerome ,\. Hoffman Respecting Each Other And yet, when judges solve procedureprob lems, l reviewthe ir I am about to say some critical Lhings about three opinions solutions as if they had nothing to do but think about civil by the AlabamaSupre me Courl, including an opinion wrilten procedure.And some other commentator lurks in virtually by one of my all-time favorites on the court. That makes U1is everyspecialty of U1ela w, second-guessing judicial decisions an appropriate occasionto restate something I said to the as if judges had only that specialtyto think about. Lf it were a court years ago about the partnership of judge and commenta game. it would be mightily unfair. But neither judges. com tor. J. Hoffman, The Scintilla Ruleand OtherTopics , 43 ALA. mentators, lawyers,nor onlookers ought to view il as some LAW.259,259 (April 1982). I enjoy the greal luxury (as well as gaming exercisei n one-upmanship. It's not a game we're the responsibility) of earning my keep by thinking about civil engaged in, but a collective enterprise which strives toward procedure for many of my wakinghours. Judges, on the other making Alabamajurisprudence the kind of national model hand, are among the great surviving generalists in a societyof that the Alabama court system became with the reforms of the increasingly narrow specialists.We expectthem to render '70s. In that spirit, as in the past and future, I offer the sug informeddecisions across great expansesof the corpusj uris. gestions that appear here. • ,,,,.,a'i·i·ifPi+II 'nwAlabamalawvw STILLWAITING Respect ing the Rules: Rule court continued. 181c) and Others Under Siege the insureris namedas 11 party,it ONYoUR Rule 18(c)does nol prcwnt a plaintiff wouldhave U1e right. withina reason fromjoining, under Rule20, a conditional able lime afl£rservice of proc;ess,to claimagainst his ownun- or underinsured el~t either to participateIn the trial STATIONERY motorist insurerv.ith his claimagainst a (in whichcase its identityand the rea motorist-tortfeasor.Rule 18(c)only forbids $Oll for its beingim'lllved are proper ORDER? "a jury trialof a liabilityinsurarn:e cover information for thejury). or not to par ngequestion jointly with the trialo( a ticipatein the trial (in which case no relateddamage claim against rm insured." mentionof it or its potential involve AU\. ll. CIV.P. 1 8(c) (emphasisadded). It menl is permittedby the trial court). doesnot requiresiMrance, nor does it for Id. (italiciiedemphasis in original; bold- bidjoint managemmlof the claimsdur faceclemphasis added). The keyv.'Ords "in ing the pleadingand disco-,-ery st.iges. The the trial"suggest the rq!ular procedure trial court must, howe\'er,upon appropri (or $tJ>araletrials provided by Rule42(b). ate motion,order separate trials of the two Thecourt did not, however,cite Rule claimsunder Rule 42(bl,I n a seriesof 42(b)at Lhispoint or, indeed,anywhere in cases,the AlabamaSupreme Court has its opinion.(In his special concurrence, ignoredthese straightforward propositions JusticeMaddox did cite Rules IS(c)and andprocedures, clearly contemplalfd by 42. Id. at 1310-11.) "Undereither elec the AlabamaRules of CivilProcedure.. in tion." thecourt wenton. "the insurer f.l,'Orof an extraordinal}' "Ol)l-out·pl'Clre wouldbe boundby the f.lctfinder's deci dure.,apparenUy administered outside the sionson the issuesof liabnityand dam Rules. ages."Id. It would not be bound,hOl,._r, CALLUs. Although others might. I do not here on issuesrelevant lo coverage. Byth is pas suggestthat a court exceedsits authority sage,the court merelyrecognized that the A si.mplcphone a ll l~.all h 1;aka byentertaining motions for procedural implicationsof the old commonlaw co ff'«ivc your FreeU::t rrinc r,or....,m1Sunonny S...plc Padt. disposiUonsnot expresslyauthorized by \'Oucherto warrantydoctrine apply to ~ So, r«,..,...ir wh"h of.., fine formallyadopted and published Rules. At arate trials under the modem rules of pro '"'""" """ung p,pcn l'<'""ffl'bes, least lor pre.sentpurposes, I suggestonly cedure.just as theyapplied to sqiarate r«you ,nd .. hlcli .....S.colo<. that a court doesnot act judiciouslyby actionsunder commonlaw procedure. finbh2nd prin1 ptOOtM)'OU prd'cL supplanting its ownfonmally adopted and Next,the court said,• ·If the insurer is nol On« you m;akcyo u, clcd,ion. publishedRul es with other rules derived joinedbut merely is givennotice of theft l. youan pl11cc)'UUt order W11b In some less public way.Al the veryleast. ing of Lheaction, it candec .ideeither to confidence.h) ,('.1Uy1h;1, 1lmplc. it do..-snot do sowithout acknowledging interwne orto stayoul of the case."Id. the existenceof the general rules it honors (emphasisIn original).Here abo. the REORDERSSmr Nt!XTDA Y in the breachand v.ithout explaining why court stated nothingnew. but merely FREEStnPPll'oG NATIO"Q'WIOE it choosesnot lo followthem. restated\\ithoul explicitreference the No s,::r-UrCt••k underinsuredmotorist c~rage al the mistakell nowseems to havebeen. lay in N ATION WI Of conclusionof the trial. sayinganything al all in a case in which 800 !162-64'~ Id. at 1310(emphasis in original). the partieshad already resolved the issue FAX 800 ?6l-<13H Therein,the court staled nothing new. they had broughtbefore the court. That •• but merelyrestated the effectof super issuewas whether Rule IS(c)had to be US · PRINT imposingmodem Rule20 upon com readso bro;idly as to restrictthe salutary mon law joinder practice,Inc luding the operationof Rule20. Thal is. did Rule SINC:I 1?33 doclrlne of voucher Lo warranty." If," the JS(c) prevent the plaintifffrom joini ng the 71,-~l.-ptr Ill i'il'iifiil+i+ill insurance companyas a co-defendantin action."Ex parle Edgar,543 So. 2d at 683, her complaint?In their briefon appeal, n.l. Evenstanding a lone, this first request counselfor the insurer concededthat Rule dramatizes the unfortunateconfus ion 18(c)did not requireso much. Notwith· caused by the Lowedi ctum. The request standingco unsel's invitationto elaborate, this motion leavesthe reader in doubt, fell easilywithin the purviewo f Rule the court should have let it go at lhi1t.Or, and must have left the trial court in 42(b)'smotion for a separatetrial. So far, ;r nol. Lhecou rt should. at least. havecited doubt, as to what counsel reallywanted it counselhad askedneither for dismissal U1egenera l, formallypromulgated author to do. lf counsel wanted merely a separate nor for separatemanagement o f the ity, that is, Rules 18(c),20, 21, and 42(b), trial, they should haveinvoked Rule claimsduring the pleadingan d discovery supporting its dictum. 42(b). If they wanted the action against stages.Second. "De fendantALFA reserves It was counsel for U1einsurer in the the insurer severed.they should have U1eright tojoin this actiona nd... res nexl case,Ex parle Edgar.543 So. 2d 682 iJM>kedRule 21, sentence3, which pro erve(slthe right tojoin the litigationof (Ala.1989). who took what could have vides that "la]nyclaim against a party this action."Id. (emphasis added). Oops. remainedjust another harmless error or may be severedand proceededwith sepa DoesU1is mean that counselreally wante d inclusion (saying more than lhe disposi rately."If they wanted the insured dis dismissal or severancecouple d with tion of the appealrequired ) or exclusion missedfro m the plaintiffsaction. the prospectivepennission to cl1angethe ir (failing lo cite controllingR ules) and gave Lowedecision stood there, in its COO\'O· minds?Probably not , considering lhe Lhecourt the opportunityto tum il into a luted way,to remind them they were not request in the context of Lhewho le mistake of consequence.Instead of going entiUedto dismissal under the Hules. motion.Th ird. "Anorder ... wiU1out preju backto basics.that is, to the text of the In the bodyof U1eir"No tice of Election dice to ALFAreturning as a party /to/ !his Rules, counsel lookwhat they perceived Not to Participatein PlaintiffsAction." adion and participatingin the trial or this to be the court's new gospelacco rding to counselbecame more sl) •1nt ·ifjiJ,j ·\ll+tll TJic1VtJbQmf1 UJJly;r, tinue to manage the claimsjointly during of the appeal as it had had in Edgarand in the pleadingand discoverystages . Thus, Lowe itself.Driver presente d the question had U1e insurer clearlymo\led for a sepa whether an uninsured motorist insurer rate trial under Rule 42(b), it could have could properly provide legal counsel for participated in discoverywi thout asking. at 684. This is just the opposite of the the uninsuredmotorist in the underlying The AlabamaS upreme Court should actual holding in l..owe. There, the action. That question could arise whether have so heldand should havemade clear appellee-insurer concededon appealUiat the plaintiffhad not joined the insurer at the simple bit or Rulesr easoning suppOrl· it was not entitled to dismissalfrom the all, or whether the insurer had been dis ing this holding.Perhaps i t wouldhave case, lo!ueu. NationwideIns. Co., 521 So. missed under Lowe-Edgar(if , indeed, that done so had counsel stuck to the Rules, 2d at 1309-10, and the court ;'accept[edl is what Lowe-Edgarstands for), severed insteado r invoking the lowe dictum. counsel'sconfess ion of error."ld. at 1310. under Rule2 1, or separatedu nder Rule Unfortunately, however,U 1e court now fol So what wasthe prncticingbar to make 42(b). The answer to the question should lowed the lead of counsel, who thought of Exparte Edgar? Wo uld the court. if not, it would seem, turn up0n the ques they werefollowi ng the court's lead.That properly approached,limit Lowea nd tion's associationwith one or another of is, the court decided the case not up0n the Edgarto their facts, as courts have,t ime these possible procedur•Ipost ures. authority of the AlabamaRul es of Civil out of mind. euphemisticallyrepudiated Nevertheless, on appeal, the plaintiff. Procedureconcerning j oinder of parties their former mistakes?Or had the court appellantstated , and the supreme court and claims,of which they cited none, reallymeant to establish a new non-Rules accepted,the followingcha racterization of **but upOnt he authorityof the Lowedic ground for dismissal to the detriment of the question presented: Dolowe and tum. For the insurer, the result wasnot a the salutaryo peration of Rule 20? Edgarstand "for the proposition that if an happy one. Bydeny ing the insurer's peti The ghost ofLowe-Edgar appeared insurance company opts out of the trial in tion for a writ of mandan1Us, the court again in Driveru. Nat ionalSecuri(I/ Fire & an uninsured motorist case it cannot 'par confirmed the circuit court's denial of the Casually Company,658 So. 2d 390 (Ala. ticipate' in the trial by hiring an attorney insurer's "requestto withdrnw," Id. at 684 1995). Onceagain, the lowe dictum had for the uninsured defendantmo torist!.I "? ("requestto withdrnw");Id. at 685 (denial as little to do with the properdisposi tion Id. at 394.No , held the court, "once the of mandamus), reasoningas follows: carrier opts out of the trial under Lowe, it Alfahad the right under lowe to with draw from the presentcase at the time that it filedits motion on May2, 1988. However,Alfa sought permission in that motion to continue to participate Whenyou need expert valuation or in discoveryand , in addition, sought in its ... amendedmoti on to reservethe litigationsupport, call the specialist. right to intervene,i f it determinedthat it would be in its best interest to later CertifiedFraud Examiner Ra lph reenter the case.Thist is just he oppo Swnmerforo,CPA, hasdevocoo a career site of theprocedure that wassanc to maldngsure attorneys get ttie expert tionedin Lowe.. .The clear import of testimony, depositionhelp , and case Alfa'sm otion, as amended,is that Alfa relatooanalysis that yo urcase' s success wanted out of the case, but only if it dependson. could monitor the progressionof the For over 20years, attorneys have re case through the discoveryprocess and Uoo on himfor business valuatio,is, fo rensic accounting, investigativeac then intervene if it deemed it necessary counting (civil and aimina l matteis), in order to protect its interest andparmership and estate disputes. All ConstruingAlfa~ motion in this man in all, attorneyshave foundhis bc lp ner,the trialcourt had no authorit.11to invaluablein calculatingdamages . grant it. Therefore, havingfai led to Het an help I'"' too. prove Uiat it madea properelect ion to C111/,w, v for a freea msr1/t/lti011. withdrnwfr om the case,Alfa h as shown SummerfordAccountancy , P.C. no error on the trial court's part. Ralph Summerford , UlllfllO fUlll( AC(OUITAIIJS& n,uo U AMIIIU S Id. at 685( emphasisa dded).The court CFE, CPA f~/ortwk-JUmtPdic.i 1,p)!1y.N11.'1'1..:alltlfd compounded its error in reaching the .,tr,nbt,;A n~ J,urJMeo(CPAl. Call today Alltl,,m• s«lttyll(CPAs,F1oriJ,, wrongresult by misreading its dictum in l,ISlfruttof CPtls. AJs«ilfio,i of I! Ctttjf,tJf'r rud £w,11t,m g lowe to afford an insurer the option "of 205-716-70000 being dismissedas a party to the case."Id. ISUlrE 1530 • Al,ISOUTH/HARBERrPLAZA• 1901 S/XfH AVEIIUE 1/0RrH • BIRAIIIIGHA/4 Al • 35203 TheAl()lwma UJuyer II f·itl't·i·,al+iUtm may,in its discretion,hire an attorneyto appeal, we do not knoww hether the insur however.the court reliedsolely on Lowe representthe uninsuredmotorist defen er actually obtained a Lowe-Edgardis in supportof its decision. dant."Id. at 395(boldfaced emphasis missal, or onlya Rule21 severanceor a added).Justice Maddox again concurred Rule42(b) separation. We must a1,oaiLfur specially,saying: "This case graphically ther appealsto learn whetherthere really pointsoul whyl did not favorthe 'opt out' is such a thing asa U/1/Je•&lgardismissa l. Jorom e A. Hoffman proceduresadopted by this Courl in And, ifso, why there shouldbe. • Pmlessort-bflman received Lowe ... ". Id tis A.B. Dogroe;,, 1962 and hsJ .D n 196Slromlhe Whetherthe court's holdingcreates or *Accordingto the report,counsel for Unl"1lfscyol~ perpetuatesgood law may depend upon U1einsurer had apparentlyinvoked Rules where re grodualodOr MEDICAL/ DENTAL Elder Law Section MALPRACTICEEXPERTS To better serve the needs of Alabama attorneys pract icfng in the area of elder law, the state bar has formed the Elder Law Task Force . The task force will 1dentify if there is sutticient interest to support this new section . If interested. please fax a statement express ing interest in the sec tion. Yourexpressed interest does not obligate you to join the sect ion when formed nor are you obligated to commit to any work. Please mail or fax your statement by February 15, 1997 to Lynn Campisi, chair, Alabama Elder Law Task Force, 3008 Pump House Road, Birmingham, Alabama 35243; fax (205) 967-9724; phone (205) 967-1010 . ~ UNG LAWYERS' SECTION By Andy D. Birchfield.Jr. What Is our mission? tion for organizing and increasing mem 1\vo key objectiveso f U1e Young bershipinvo lvement for local young Lawyers'Section of the Alabama State lawyerorgan izations,ideas for servicepro Bar are: jects,and nuts and bolts informationfor (1) "To provide a program of activity carryingout projects. If your area does not designed to be attractive to the mem havea local Young Lawyers' Section, or if bership and helpful to the legal profes you wouldlik e additional information, sion";and please call ColePortis. (2) "Toencourage and fosterthe orga Our professionis one of service.Th e nization of localYoung Lawyers' Sections missionof the YLSis lo serve its members and to promote a closer relationship and to help memberssel\ie ot hers. I betweensaid local organization and this encourage each of you to be involved in section." lhe activitieso f your local affiliate. ONA In other words,the Vl.Sshould be Working togetherwe can be successful about helping young lawyersin their pro ''Young Lawyers"in our mission fessional lives and, also, helping local of service. • groups with their projects.T owardthe MISSION first goal,our sectionsponsors a number of activities,such as the Young Lawyers' Seminar in Sandestineach May(go ahead Order Your and mark your calendarfor the Sandestin Seminar-May 23-25, 1997),the Youth 1996 Judicial Program, the Admissions Ceremonyand Luncheon,and the MinorityHigh SchoolPre-Law Directories! Conference.This year we are undertaking two additionalpro jects in this regard. Pirst, ExecutiveCommittee M ember Clark Members-$25 each Cooperis spearheadingo ur effortto implementa MentoringProgram for Non-Members-$60 each young lawyers.Second, Executive CommitteeMembe r and District Mail check or money order to: RepresentativeMichael Freeman is direct ing our effortsto set up Children's WaitingRooms in our state courthouses. Alabama Bar Directories This is a programstrong ly promotedby the ABNYLDand has beensuccessful P. O. Bo x 4156 acrossthe nation. Montgomery, AL 36101 Towardthe secondgoal of helpinglocal affiliates,we, as a section,have not devot ed an organi1,edeffort in the past. That is changing this year. Weare sponsoring an Include name. street address AffiliateOutreach Program Conferencein and street ZIP Birminghamo n March14 and 15, 1997. Andy D. Birchfield, Jr. ExecutiveCommittee Member Cole P ortis -We ship by UPS is organizing this conferencea imed at providingassistance to localaffi liate lead Orders must be prepaid ! ers. This conferencewill prov ide instruc- 1heAlubomolAlCflCT11,.j/ji(j ·Jlfiffiiflll Notice and Opportunity for Comment Pursuant 1028 U.S.C.§207l(e), nouce 1shereby given that the U.S. Coun of Appeals for the Eleventh C1rcu11 has amended Eleventh Circuit Rule 22-3, "Habeas Corpus Death Penalty Cases, • by adding a new subsechon which provides: Motion for Order Authorizing Second or SuccessweHabeas Ccrpus Applicarion A motion 1nthe coun of appealsfOf an order authorizing the district coun to consider a second or successive habeascorpus apphcauonshall be assigned to the panel constlluted under secnon (a)(4)of this Rule 10constder habeas corpus appeals, pehtJOnsor other related maners with respect to the same pettUoner Comments concem1ng this amendment may be submined in wriung to the clerk by January 31, 1997. at Office of the Clerk. U.S Court of Appeals for the Eleventh Circuit. 56 Forsyth Street. NW. Atlanta. Georgia 30303. CLE NEW IOLTA PARTICIPANTS September Charles Petty Hunter, Jr., Birmingham REMINDER K. AndersonNel ms. Montgomery L. MichaelBarrel. Birmingham Philip E. Cable.Birmingham James C. Brakefield, Jasper All CLE credits Cheryl D. Eubanks, Fairhope Middlemas& Whatley.B irmingham must have been earned Davyne Ryals,Montgomery H. Jerome Thompson, Moulton by December 31, 1996 Lee & Rousseau. Geneva Odober Lila V.Cle\>eland, M obile CharlesSah'i!gio, Ves1avia Roger Lee Lucas.Birm ingham All CLE transcripts MichaelPatrick Hanle. Birmingham Robert E. Long,Jr. , Decatur Stuart J. Roth. Mobile must be received Finis A. Royal,Scottsboro Kenneth W.Quatt lebaum,Ozark by January 31, 1997 Cervera & Ralph. Troy Thomas R. Boller, Mobile lll;!of'Jfh1frj·\ff+fIll TMAlulN.tmu/.lJu•g« @ CLEOPPORT UNITIES Thefollowing in-stale programshaue been approued for credit by the AlabamaMandatory CLE Commission. // oweuer.informa tion is ,111aila/Jlcfret• of char_qe on over 4.500apprm1ed programs n<1//01110ide identified by location dale or s11ecially area. Contactthe MCLI?Co mmissionoffice at (331) 269-1515,o r l-800,g5,t.6JS4, and a completeClli calendarwill be mailed to you. ' CLEcredits: 6.0 Birmingham JANUARY (800)888-74S4 Medical Forum Building AlabamaBar Institute for CLE 29 Wednesday CLE credits: 6.0 CO$t:$165 14 Tuesday TRVJNG THE AUTOMOBILE (205)348,6230 ALABAMAPR OBATE: INJURY CASElN ALABAMA BEYONDTllE BASICS Birmingham 20 Thuraday Birmingham National BusinessInstitute DEFENDINGWRONGFUL lioliday l nn llcdmonl CLEcredits: 6.0 Cost:$ 149 DISCHARGED CLAJMS UNDER NationalBusiness In stitute (715)8.35-8525 AlABAJIIALAW CLE credits: 8.0 Cost.: $149 Montgomery (715) 835-8525 National BusinessIn stitute cu: credits: 6.0 Cost: $149 22 -24 Wednesday -Friday FEBRUARY (715) 835-8525 CIRCUITAND DI STRICT JUDGES MID-WINTERCO NFERENCE 7 Friday 21 Friday Montgomery NEGOTIATION: REACHING WORKERS' COMPENSATION AlabamaJudicial College AGREEMEN'I'ON YOURTERMS IN AlABAJIIA CLEcr~dil3: 11.6 Birmingham Birmingham (334) 242-0300 Cumberlandlmlitute for CLE Lorman BusinessCenter. Inc. CLEcredit.s: 6.0 CLE credit.s:6.0 Cost: $155 23 Thursday (800) 888-7454 (i15) SJ3.3940 JOINT MEETINGOF THE BENCH ANDBAR 12 Wednesday 21 Friday Montgomery MANAGED CARE:THE FUTURE ADVANCEDFAMILY LAW AlabamaJudical College OF' HEALTHCA RE Birmingham CLE credits: 5.8 Birminghnm Cumberland Institute for CLE (334)242-0300 Lorman Business Center, Inc. CLE credits: 6.0 CLE credits: 3.8 Cosl: $135 (800)888-7454 23 -25 Thursday -Saturday (7l 5) 833-3940 MEDIATIONPROCESS AND TRE 26 Wednesday SKILLSOF CONFLICT 13· 15 Thursday -Saturday DEFENDINGWRONGFUL RESOLtrrlON ~IBDIATIONPROCE SS ANDT HE DISCHARGEDC l.AlMS UNDER Mon111omery SKILi.$ OF CONFLICT ALABAi\l;\ LAW MediationCorporation RESOLUTION Mobile CLEcredits: 21.0 Cost: $700 Birmingham National Businw lmtitute (800)237-3476 MedialionCorporation CLE credils: 6.0 Cost: S149 CLEcredit.s: 21.0 Cost: S700 (715) 835-8525 24 Friday (800) 237-3476 NINTH ANNUALNURSING HOME LAWSE ~tlNAR 14 Friday Birminghr,m COMPUTERSAND TECHNOLOGY Cumberland Institute for Cl,E lN THE LEGALPUOFE SSION 11wAM>ut1t11lw·lf4*TII t,BJiilifPijf&SIII ~ ...... '= ~ CLASSIFIED NOTI CES RATES : Memb ers: 2 free hst,ngs of 50 words or less per bar member per calendar year EXCEPT '°'·pos 111on wanted· or "position oftered· listings- $35 per insertion of 50 words or less, $.50 per additional word, Nonmembers: $35 per insertion of 50 words or less, $.50 per additional word Classified copy and paymenl must be received according to the following publlSlllng schedule; November '96 Issue - deadline September 15, 1996; January '97 issue - deadline November 15, 1996 No deadline extensions will be made Send classified copy and payment. payable to TheAlabama Lawyer, to: Alabama Lawyer Classil,eds, c/o Rita Gray, P.O Box 4156. Montgomery, Alabama 3610 1 Georgia 30519. Phone (770) 614- SERVICES DRIVER'S LICENSE REINSTATED: 4440. Fax {770) 271-4357. let us do lhe work gelllng your client's Alabama driver's license rem FORENSIC AUDIO: Audiotape EXPERT WITNESS: Profess,onal stared Call with your client's name, reslora!lon and clarillcatlon audio engineer and attorney with a practice birthday and driver's hcense number. engineer. Without allerlng or damag of exper1tesUmony in construction, We will llnd out what the state ing your original tape we can: reduce &alely, highway and structural design. requirements are for reinstarementor tape noise: increase fntelllg1bohry; Thirty-five years· expenence in high· the license. We can usually have lhe maximize speec.h levels; lower back way.railroad , commercial buildings licenses eligible for reinstatement ground noise to reveal voice; digitally and power plant consiruellon. Call or within 24 hours. Tlmesavers, P.O. Box enhance recording clarity. Cherry wrife for resume, fees: Lamar T. 1431. Columbia, Tennessee 38402· Otchard Studios, 713 Oliver Road, Hawkins, 950 22nd Street. North, t 431 Phone (800) 809-0589. Montgomery, Alabama 36117. Phone Suite 632, Birmingham, Alabama (800) 865-4355. 35203. Phone (205) 458·8485. No ESTATE LIQUIDATION& representation Is made that the qua/1- APPRAISALS: Jewelry, art and of Iha legal servic6s to be per· FORENSICDOCUMENT EXAMINER : ty antiques Let the prolesslonals help formed greater than the quality of Hanclw11ting. typew111lngt.attereddoc is you solve your es1a1evaluation or fiq legal servicss performed by other uments, medical records, wills, con, uidallon problem. Levy's jewelry, art lawyers. tracts, deeds. checks, anonymous let and antiques, 2116 Second Avenue, ters. Court-qualified. E',ghteenyear 's North. Birmingham, Alabama 35203. experience. Certified: American Board LATENT PRINT EXAMINER: Phone (205) 251·3381 of Forensic Document Examiners. Examinationol latenl fingerpnnt. Member: Americari Society ol palmprint. footprint. foo1wear,tire LEGAL RESEARCH: Experienced Questioned Document Examiners. tread, lip and ear impressions, and attorney. member ol the Alabama Ame11canAcademy of Forens,c crime scenes.Court accepted expen State Bar since 1977. Access ro State Sciences, Southeastern Assocatlon of witness In federal and state couns. law Lib Name Firm or Agency OfficeAddress------ OfficeLocatio n ______ OfficeTelephone Nu mber Section Annual Dues D Administrative Law ...... $20 0 Bankruptcy and Commercial Law...... $20 0 BusinessTorts and Antitrust Law...... $15 D CommunicationsLaw ...... $ 15 D CorporateCounse l ...... $30 D Corporation, Banking and BusinessLaw ...... $10 D Criminal Law...... $10 D DisabilitiesLaw ...... $20 D Environmental Law...... $20 D Family Law...... $30 D Health Law...... $15 D Jnternational Law ...... $30 D Laborand EmploymentLaw ...... if practicing less than 5 years-$10 if practicing 5 or more years-$30 D Litigation ...... $15 D Oil, Gas and Mineral Law ...... $15 D Professional Economicsand Technology Law ...... $25 D Real Property, Probate and Trust Law ...... $10 0 Taxation...... $15 0 Workers' CompensationLaw ...... $20 D YoungLawyers ' ...... 0 TOTAL Remember: Attach a separate check for each section. llli ffi:J:jlf:f ·ilff f III Th.eAJabamo Ulu.'Jltr W l~l,IAMS,TAYL OR & i\.~SOC~ITES,P. C., ISA NATIONALl,YRANKED ACCOUNTING AND OONSvLT INC ~1RM WITHF IVE CERTIFIED BUSh'IESSVALUATION AN~l'STS ON PF.RMJ\Nl,NT S1'Al'F. EvEn VICLLANT ON UEHALF OF YOUR CLIFNTS' INTERESTS, Wl'A's PROFESslONAt.SOFFER Sl11FT, ACCUMTE BUSINESSV ALUATIONS,WHICI I ARE CRIT ICALTOO I.S ON MANYfl!ONTS IN TODAYSWO RLD. WILLIAMS, T ,\YI.OR& AssOCIA'rnS • SERIOUSABOUT \'OUR C l,11,NTS' llllSINF.SS. J,\}lf:', L ll'Uil~ IS, l\(llUNI;:. TAil.OR. CPA,CVA CPA.Cl/A Wru1\IK NIOOSLII, Tis lO'lllY W.YOII~. J. BARRYTmww. , CPA,CVA Cl'A.CVA CPA.CV/\ •T•• ..,•"'.... I::. "'•.,. WJ[LLKAMS. 'fAf[LOR& AS§OC[A1'ltS ACCOVNl'i\l',n'"S• CONSUl:11\N'TS :n,,o F.l,El~·;l(TII AVI\Nllt : l,()l)1'11, SL111'1\ ~00 , TUE l'ARI( UUII.DING , 811\.\IINGIL\,\I, 1\1.lllML\ J5205 (205) 'IJ0,91 11 , (800) 874,/1552 , FACSl~lll,i; (205) 9J0-9 1i7 UnlimitedWestlaw research forAlabama aslow as $125 *per month! pero n1011 U1for ne ,,uon1t')'.and :m:i&llli • ,m~ ilflD•---. lwfao"51\,1.a ft D~ - _...,...... ___ _a:1--..-._,...... , (:;:::>- _,_ __ u/,J,t RuN{J fllot:ltr/,ri. 7bomtrsAadtW'Jr. Corte;.•latl/w, a.vt/a,¥/ l)/tt,, Shirltg ~ AkhlJOtt,Varpl A/"'6rool< IJlallt, /1,charr/l'inmll Ctnh,"'1tk71ceAlnn<, /}Odd, Midtae/amt ,l,,stlll, f:,vn k /Jkd..,,.,,,~ny Nark Nt'U'SOtlll! C,,,!(1/on,f'hillip Danny 0o,,.Jdsqn, Jalu, 11\obbIll lktchun. /k>,IJJ/u,Rag Jr. 8/l>m1u/0t1, /JnWMidun:I Cu1.:01lel,1\10~ Elliot Dow,l\,Jsg S11e !Jusbv lluf,,, Cltorli:s,~lark IJ/0,1111, /)will Jlusw/1 Clwml>les.,,Jlicky Tlw,nas Orr1111u11,James Derek &m-&i tslift,J,.iva: liato IJ Eslobllll