Also Inside: • Mediating on the Internet • Nailing Down Knick and Governmental Takings in La

Also Inside: • Mediating on the Internet • Nailing Down Knick and Governmental Takings in La. • Trauma-Informed Practices Come to Juvenile Court LegierCo haystack NO Mag Aug09 8/12/09 4:37 PM Page 1

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Supplement to the Louisiana Bar Journal 11 Louisiana Bar Journal October / November 2020 161 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 161 Vol. 68, No. 3 www.lsba.org

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October / November 2020 Volume 68, Number 3 Departments Features Editor’s Message...... 166 The Litigation of Arbitration: Five President’s Message...... 168 from the 5th Circuit in Early 2020 Association Actions...... 190 By Blair Druhan Bullock and Practice Management...... 194 Anthony M. DiLeo...... 170 Focus on Diversity...... 196 Puzzle...... 198 Discipline Reports...... 199 Recent Developments...... 204 Young Lawyers Spotlight...... 216 Young Lawyers...... 218 Mediating on the Internet Judicial Notes...... 220 By Bobby M. Harges...... 174 People...... 222 News...... 224 Classified...... 230 The Last Word...... 232

Also Inside Nailing Down Knick and SOLACE...... 198 Governmental Takings in Louisiana By Randall A. Smith...... 178 Secret Santa Program Form.... 219 Advertisers’ Index...... 231

Caddo Parish Juvenile Court: Who’s Who ► Trauma-Informed Practices Come to Juvenile Court in ADR By Judge David N. Matlock and A. 2020 Michelle Perkins...... 182

► Interview with Judge Ree J. Casey-Jones, Louisiana’s First STAR Court Judge Interviewed by Hal Odom, Jr...... 186

► Focus on Local Practice: What’s

Supplement to the Louisiana Bar Journal Volume 68, No. 3 New at Caddo Parish Juvenile Court Louisiana Bar Journal Vol. 68, No. 3 Who’s Who in ADR 2020 1 By Hal Odom, Jr...... 188 Who’s Who in ADR 2020 Supplement mailed with this issue.

Louisiana Bar Journal October / November 2020 162 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 163 Vol. 68, No. 3 www.lsba.org ® Officers 2020-21 President Editorial Board

Alainna R. Mire • (318)449-5046 þ Patrick A. Talley, Jr. þ Claire McDaniel-Ojeh President-Elect Editor (504)528-9500 H. Minor Pipes III • (504)322-7101 (504)584-9220 þ John H. Musser V Secretary (504)523-0400 Patrick A. Talley, Jr. • (504)584-9220 þ Danielle L. Borel (225)387-4000 þ Roy H. (Hal) Odom, Jr. Treasurer (318)227-3762 John E. McAuliffe, Jr. • (504)840-4909 þ Rachel P. Dunaway Immediate Past President (225)922-5110 þ Kelly M. Rabalais Robert A. Kutcher • (504)830-3838 (985)898-2445 þ Stephen I. Dwyer (504)838-9090 þ Graham H. Ryan Board of Governors 2020-21 (504)582-8370 First District þ Laura S. Gravener (504)554-5807 þ Maggie Trahan Simar Lawrence J. Centola III • (504)581-9065 (337)394-6133 Scott L. Sternberg • (504)324-2141 þ Mark A. Hill Second District (504)526-4337 þ Gail S. Stephenson (225)771-4900, x 216 Erin O. Braud • (504)836-2780 þ Michael D. Lane Third District (504)581-3300 þ Tyler G. Storms Dwazendra J. Smith • (337)948-8008 (318)255-7805 þ Winfield E. Little, Jr. Fourth District (337)430-0907 þ Adrejia L. Boutte Swafford Todd S. Clemons • (337)477-0000 (504)561-5700 þ C.A. (Hap) Martin III Fifth District (318)388-4700 þ Edward J. Walters, Jr. Kelly M. Rabalais • (985)871-5837 (225)236-3636 Adrian G. Nadeau • (225)922-5110 þ John E. McAuliffe, Jr. (504)840-4909 þ Sixth District Jack K. Whitehead, Jr. (225)303-8600 Edward L. Tarpley, Jr. • (318)487-1460 Seventh District Paul L. Hurd • (318)323-3838 The Louisiana Bar Journal (ISSN 0459-8881) is published bimonthly by Eighth District the Louisiana State Bar Association, 601 St. Charles Avenue, New Orleans, Patrick J. Harrington • (318)303-6833 Louisiana 70130. Periodicals postage paid at New Orleans, Louisiana and additional offices. Annual subscription rate: members, $5, included in dues; Chair, Young Lawyers Division nonmembers, $45 (domestic), $55 (foreign). Canada Agreement No. PM Carrie LeBlanc Jones • (225)755-7575 41450540. Return undeliverable Canadian addresses to: 4240 Harvester At-Large Members Rd #2, Burlington, ON L7L 0E8. Lynn Luker • (504)669-0322 Postmaster: Send change of address to: Louisiana Bar Journal, 601 St. Tina L. Suggs • (504)442-8591 Charles Avenue, New Orleans, Louisiana 70130. Adrejia Boutté Swafford • (504)561-5700 For the fastest service or questions, call Darlene M. Loyola University College of Law Subscriber Service: LaBranche at (504)619-0112 or (800)421-5722, ext. 112. Monica Hof Wallace • (504)861-5670 Southern University Law Center Editorial and Advertising: Donald W. North • (225)505-6714 Publication of any advertisement shall not be considered an endorsement of the product or service involved. Submissions are welcome and will be Louisiana State Law Institute considered for publication by the Editorial Board. For submission guide- Zelda W. Tucker • (318)861-0884 lines, go online at www.lsba.org, click on “Publications,” then “Louisiana House of Delegates Liaison Chair Bar Journal.” Copyright © by Louisiana Bar Journal. All rights reserved. Shayna Beevers Morvant • (504)361-4287 Reproduction in whole or part without permission is prohibited. Views expressed are those of the authors only. Editorial Staff Executive Director Luminary Award 2003 Loretta Larsen, CAE National Association of Bar Executives Communications Director Communications Section Kelly Wells Ponder Excellence in Regular Publications Publications Coordinator/Managing Editor Darlene M. LaBranche International Communications Coordinator/Graphic Design Association of Barbara D. Baldwin Business Public Relations Society Communications Assistant Communicators of America New Orleans Krystal Bellanger Rodriguez New Orleans Chapter Chapter Advertising Booking Questions? ward of Bronze Quill A Call (504)619-0131. Award of Merit

Louisiana Bar Journal October / November 2020 164 Vol. 68, No. 3 www.lsba.org STEVE HERMAN GravierHouse.com HAS BEEN CALLED A LOT OF NAMES BY OTHER LAW FIRMS. IF YOU NEED AN

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20-124-2 LA BAR JOURNAL.indd 1 3/3/20 11:18 AM Editor's Message

It’s Not A Free Pass By Patrick A. Talley, Jr.

aced with a rapidly rising Bar with additional requirements. This school remotely and isolated from class- coronavirus infection rate, es- pandemic, not experienced globally mates and professors; cancelled gradua- pecially among young adults, since the 1918 Spanish Flu, has caused tion ceremonies; and bar exam prepara- and an ongoing concern for the absolute disruption not only to the legal tion totally online with little to no input Fhealth and safety of registered bar exam profession but to every aspect of society, from fellow classmates. applicants, on July 15, the Louisiana with serious illness prevalent, schools The rationale of the dissents and Supreme Court announced the cancel- shuttered nationally since March, unem- other criticisms seems to be about com- lation of the bar examination for the ployment at record high rates, and rising petence and a concern that the waiver 2020 law school graduates who had infection rates. We are bombarded with of the bar exam for these applicants registered. As explained in the Court’s new information daily as we attempt to somehow will make them less compe- press release, “with an in-person ad- navigate these uncharted waters.” tent to practice law. One of the dissents ministration deemed too uncertain for Unfortunately, this bold action by the even incorrectly states there are more the near future, the Court considered, Supreme Court has been inappropriately than 22,000 lawyers licensed to prac- but rejected, issuing a mandate that the characterized by some as a “free pass” tice law in Louisiana, all of whom have bar examination be taken remotely for or “gift” of a license to practice law to taken the bar exam. Not so, as we cur- first-time test takers . . . the majority of the 2020 bar applicants, even by some rently have a number of attorneys for the Justices were not willing to mandate justices of the Court. With all due re- whom the bar exam was waived during that the examination be taken in settings spect to the justices who dissented from the Korean Conflict. One such example which might encounter insurmountable the Court’s July 22, 2020, Order, the is my father-in-law, J. Peyton Parker of challenges wholly-unrelated to the com- graduating class of 2020 did not get a Baton Rouge, who is one of the finest petence to practice law.” free pass or gift of a law license. To the lawyers I have known, a consummate Chief Justice Bernette Joshua contrary, the Court’s Order recognizing professional, gentleman and scholar of Johnson further explained the rationale a diploma privilege is far from a free the law. I cannot imagine that the wavier of the decision: “This COVID-19 crisis pass or gift. Without question, members of the bar exam for him somehow di- is unprecedented, and it calls for unprec- of the Class of 2020 have struggled and minished his ability and credibility as a edented and bold action, including im- endured unprecedented challenges — lawyer in this state over 50 years. There plementation of today’s Order granting an abrupt end to an in-person final se- are several other senior lawyers who one-time emergency admission to the mester, requiring them to complete law did not take a bar exam, but who have LSBA Member Services The mission of the Louisiana State Bar Association (LSBA) is to assist and serve its members in the practice of law. The LSBA offers many worthwhile programs and services designed to complement your career, the legal profession and the community. In the past several years, the legal profession has experienced many changes. The LSBA has kept up with those changes by maturing in structure and stature and becoming more diverse and competitive. For more information, visit www.lsba.org

Louisiana Bar Journal October / November 2020 166 Vol. 68, No. 3 www.lsba.org had an incredibly positive impact on the LSBA and the skills they will gain from practice of law in Louisiana during their louisiana state bar this program will arguably make them long careers. The bar exam itself does not association better qualified for their license to prac- ensure the competence of the legal pro- tice law than had they taken the bar exam. fession; only the character of the individ- In conclusion, while cancellation of ual ensures that, and there are numerous the in-person 2020 bar examination was instances of those who have passed the Transition an unusual action that no doubt pres- bar exam but later proved to be incompe- ents some concerns, in the words of the tent. One only has to read the Discipline Into Practice Chief Justice, the Court’s action “is not Reports in this and every issue of the Mentoring only warranted, but necessary during this Journal to be reminded of that sad fact. public health crisis.” We all agree that Certain facts seem to be overlooked by Program the Court has a responsibility to ensure those who characterize the Order as a gift the competency and integrity of the legal or a free pass. The deans of Louisiana’s visit lsba.org/mentoring profession. I believe that the Order, in- four law schools all supported this deci- cluding the additional requirements for sion. Law school deans do not have the for more information bar admission, fulfills this responsibility. reputation of gifting grades or diplomas, It is not a free pass or gift of a license to so why then would they support this practice law. Moreover, we, as members Order if it was the gift of a license to complete 25 hours of CLE (that doesn’t of the Bar, have a responsibility to see to practice law? Moreover, most, if not all, sound like a “gift” to me) and they must it that the Court’s order is not a free pass of the applicants had already spent count- complete the requirements of the LSBA’s for these applicants. By proper mentoring less hours studying and preparing for the Transition into Practice (TIP) Program. and professionalism, we can help ensure bar exam as the bar exam was scheduled How can that be a free pass? Take a look that these new attorneys entering the Bar to commence only a few days after the at the requirements of the TIP program. by virtue of the diploma privilege do so Order was announced. Also according to Each one of the 2020 bar applicants will with even a higher degree of competence the Order, the applicants are required to be assigned a mentor approved by the than passing a one-day bar exam.

Louisiana Bar Journal October / November 2020 166 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 167 Vol. 68, No. 3 www.lsba.org President's Message Hurricane Laura and How the LSBA Can Help

By Alainna R. Mire “Even a bad day is a luxury” – Libby Christensen (@libbychristensen) DEAR 2020, Disaster Resources Statewide Resources eing from Scott in South Louisiana, I am very familiar ► SOLACE with hurricanes. It actually is www.lsba.org/goto/solace my specialty if I must say so ► LSBA Disaster Reponse website myself.B One of my favorite things to do as www.lsba.org/DR a child was to track the path of a hurricane. ► JLAP I thoroughly enjoyed it. I could map the – EVERYONE louisianajlap.com coordinates using latitude and longitude, ► Acadiana Legal Service Corporation rebuilding efforts on top of everything but to this day I am no good with people www.la-law.org/home/disaster-recovery-resources else that 2020 has thrown at us can be giving me driving directions using east ► LSBA Disaster Planning Handbook incredibly disheartening. If you begin to and west. I guess that means we can’t all www.lsba.org/goto/disasterhandbook feel exhausted and overwhelmed, know be good at everything. Now that I live in that you are not alone. The Louisiana Volunteer Opportunities Alexandria, I don’t think about hurricanes Judges and Lawyers Assistance Program ► Louisiana Free Legal Answers as much. It just isn’t as much of a threat (JLAP) provides direct and confidential LA.FreeLegalAnswers.org here; yet if a hurricane does have the force assistance for all mental health issues that ► Pro Bono Organizations to impact Central Louisiana as a hurricane, members of the legal profession may be www.lsba.org/public/FindLegalHelp then that means it was a very strong encountering in the aftermath of Hurricane ► LBF Hurricane Laura Disaster Fund one. That is exactly what happened with Laura. Please reach out. www.raisingthebar.org/about-us/ Hurricane Laura (“Laura”). August 27, If you are from a parish that was newsroom/80-lbf-news/549-lbf-establishes- 2020, is a day to remember. Laura’s impact spared the hurricane’s destruction or hurricane-laura-disaster-fund on Calcasieu and Cameron parishes is you are otherwise in a position to assist unlike any that area has seen. Laura then has been one of the most active in recent others, there are plenty of volunteer proceeded through Alexandria in Rapides history and it won’t officially be over until opportunities available. If you would Parish. November 30. We must remain vigilant like to begin volunteering immediately, As attorneys, we are used to relying and prepared to mitigate the effects consider registering as a volunteer with on our own grit and ingenuity to get us of future storms. For general disaster LA.FreeLegalAnswers.org; the website is through, but I am urging anyone who could preparedness tips and information, visit a virtual legal walk-in clinic where low- use extra support right now to reach out. www.getagameplan.org, created by the income individuals can request brief advice The LSBA SOLACE Program is accepting Governor’s Office of Homeland Security and counsel about a specific civil legal issue assistance requests for non-monetary and Emergency Preparedness. The LSBA’s from anonymous lawyer volunteers. Pro needs from those affected by the hurricane. free e-book, “Disaster Planning: It’s Not Bono and legal aid organizations are also Requests can be for gift cards, furniture, Just for Hurricanes,” also has practical in need of volunteers to assist with disaster- office space, temporary housing, food, and tips, checklists and resources to help you related legal services, which often appear more. Whatever the need, I’m sure one create a plan for your office in case of days or weeks after the event. Contact of the 17,000+ SOLACE members can an unexpected practice interruption; the information for the pro bono programs help. In addition, the message board on the e-book can be downloaded at www.lsba. across the state can be found on the LSBA’s LSBA Disaster Response website can be org/goto/disasterhandbook. Find Legal Help webpage. If you’d like used to post offers of assistance or request Hurricane Laura’s devastating impact to offer monetary support for displaced assistance from others. The website also will be felt for a long time to come. If you families and individuals experiencing a provides valuable information on court need support, there are resources and many variety of legal needs, consider donating to closures, resources, and legal assistance people willing to help. If you want to offer the Louisiana Bar Foundation’s Hurricane for those affected by the storm. support, there are many ways to reach out Laura Disaster Fund. The anxiety and strain of facing to those in need. Let’s get to work. The 2020 Atlantic hurricane season

Louisiana Bar Journal October / November 2020 168 Vol. 68, No. 3 www.lsba.org IS PLEASED TO ANNOUNCE THAT

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Louisiana Bar Journal October / November 2020 168 Vol. 68, No. 3 www.lsba.org 201 ST CHARLESLouisiana Bar AVE, Journal SUITE October 2500 / November | NEW 2020 ORLEANS,169 LAVol. 70170 68, No. 3| 504-754-6999www.lsba.org | WWW.SKV.COM By Blair Druhan Bullock and Anthony M. DiLeo

LouisianaLouisiana BarBar JournalJournal OctoberOctober // NovemberNovember 20202020 170170 Vol.Vol. 68,68, No.No. 33 www.lsba.orgwww.lsba.org espite nearly a century hav- spondent. Communications Workers of contract. . . . Therefore, the sole question ing passed since the adoption America (CWA) filed a grievance- un for [the court] is whether the arbitrator of the Federal Arbitration der a collective bargaining agreement (even arguably) interpreted the parties’ Act (FAA) to ensure the en- against Southwestern Bell Telephone contract, not whether he got its meaning forcementD of arbitration agreements, the Co. The arbitrator originally found that right or wrong.” Because the arbitration enforcement of arbitration provisions Southwestern Bell violated the collec- provision of the contract “expressly au- continues to be frequently litigated. tive bargaining agreement by requiring thorized the arbitrator to decide ‘all dis- Since 2015, the Supreme Court has de- the employees to perform work that was putes arising out of or related to’ the [ ] cided at least six cases regarding the in- contrary to a summary of the collective Agreement, ‘make a decision having re- terpretation of the FAA.1 In the first half bargaining agreement (but not the agree- gard to the intentions of the parties,’ and of 2020 alone, the U.S. 5th Circuit Court ment itself). Southwestern Bell filed a ‘render an award,’” the court deferred of Appeals issued a number of opinions motion to reconsider, showing that the to the arbitrator’s interpretation that the enforcing arbitration awards and provi- summary was actually a summary of a damages it awarded were allowed under sions. Why arbitration provisions are different (and not controlling) collective the contract as direct (instead of conse- frequently litigated remains unclear. Is bargaining agreement, and the arbitrator quential) damages. it because large dollar amounts are in- changed the ruling to no violation. In fed- volved that fuel the dispute, is it a tacti- eral court, CWA filed a motion to vacate Quezada v. Bechtel OG & C Constr. cal step of the settlement process, does the second award favoring Southwestern Servs., Inc., 946 F.3d 837 (5 Cir. 2020). it reflect the parties’ perception as to Bell, arguing that the second award vio- Illustrating an even more deferential differences in enforceability between lated American Arbitration Association standard, the court refused to entertain courts, does it reflect the parties’ dissat- (AAA) Rule 40 and the common law the argument that the arbitrator misap- isfaction with the arbitration process it- doctrine of functus officio — both of plied 5th Circuit law, holding the “con- self or is it just what lawyers and clients which preclude an arbitrator from re- tention that the arbitrator failed to follow do? Still, the challenges to arbitration considering the merits of a decision, but the law of this Circuit amounts to nothing are rarely successful, subjecting parties allow an arbitrator “to correct any cleri- more than a freestanding claim of mani- to additional costs and delay. As a result cal, typographical, technical, or compu- fest disregard for the law, a ground for of these frequent decisions addressing tational errors in the award.”2 The district vacatur this court has squarely rejected.” more rarefied issues, the law regarding court and the 5th Circuit confirmed the The arbitrator had awarded Quezada litigation of arbitration itself takes on a award. “Guided by the ‘extraordinarily damages for back and front pay in an em- new level of specialized knowledge for narrow’ standard of review that applies to ployment dispute under the Americans parties and arbitrators. [its] consideration of arbitration awards,” with Disabilities Act, after finding that the 5th Circuit held that because the ar- the employer failed to accommodate The Five Cases bitrator considered Rule 40 and con- Quezada by denying overtime, but that sidered his modification the correction the termination at issue did not violate Confirming that consistent enforce- of a “clerical, typographical, technical, the statute. The employer — not surpris- ment, several decisions in 2020 reflect or computational error,” there was no ingly — argued that the issuance of such the 5th Circuit’s narrow interpretation of grounds for vacatur. The court deferred damages, despite a finding of no action- “exceeding powers” as a reason to vacate to the arbitrator’s characterization of his able termination, violated 5th Circuit an award under Section 10 of the FAA, reconsideration. law. But as noted, the 5th Circuit deferred including its great deference to arbitra- to the arbitrator’s determination. tors’ interpretations of contracts and its Kemper Corp. Servs., Inc. v. Computer continued rejection of arguments seek- Scis. Corp., 946 F.3d 817 (5 Cir. 2020). OJSC Ukrnafta v. Carpatsky Petroleum ing vacatur for manifest disregard of the The 5th Circuit again rejected the Corp., 957 F.3d 487 (5 Cir. 2020). law since Hall Street Associates, L.L.C. v. manifest disregard standard when re- Relatedly, the court reviewed an in- Mattel, Inc., 552 U.S. 576 (2008). viewing a motion to vacate challenging ternational arbitration award under the an arbitrator’s interpretation of a con- Convention (9 U.S.C. §§ 201-208). Part Commc’ns Workers of Am., AFL-CIO tract. The losing party argued that the ar- of the challenge to the award was that the v. Sw. Bell Tel. Co., 953 F.3d 822 (5 Cir. bitrator exceeded his authority by award- arbitrator “manifestly disregarded” the 2020). ing consequential damages contrary to arguably applicable statute of limitations. The 5th Circuit illustrated its lim- the parties’ agreement that only allowed But the 5th Circuit again rejected the ited review of arbitration awards, up- for direct damages. The court described manifest disregard standard, recognizing holding an award where the arbitrator its limited role as the court “must sustain that the Convention allows for the vaca- originally found in favor of the mov- an arbitration award even if we disagree tur of an international award only for the ing party, but reconsidered that award with the arbitrator’s interpretation of the grounds provided in Article V of the FAA and issued a new one favoring the re- underlying contract as long as the arbitra- and that manifest disregard of the law was tor’s decision draws its essence from the not a standard for vacatur under Article V.

Louisiana Bar Journal October / November 2020 170170 Vol.Vol. 68,68, No.No. 33 www.lsba.orgwww.lsba.org LouisianaLouisiana BarBar JournalJournal OctoberOctober // NovemberNovember 20202020 171171 Vol.Vol. 68,68, No.No. 33 www.lsba.orgwww.lsba.org Sun Coast Res., Inc. v. Conrad, 956 F.3d ling arbitration — including jurisdic- tration based on two conflicting arbitra- 335 (5 Cir. 2020). tional disputes, waiver, and the appli- tion provisions — one governing a loan Perhaps most interestingly, the 5th cation of substantive federal arbitration agreement, and the other an insurance Circuit upheld a class action arbitration, law.4 policy. Both agreements delegated gate- despite an arbitration agreement that Notably, the Supreme Court recently way arbitrability issues to the arbitrator, was arguably ambiguous as to whether granted certiorari to review a case it re- but the “agreements conflict[ed] over class action arbitration was allowed. manded to the 5th Circuit — to interpret several procedural aspects of the arbitra- The arbitrator interpreted an arbitration whether a carve out for injunctive relief tion, relating mainly to the selection and agreement to allow for class action ar- applied to a delegation clause.5 In Henry number of arbitrators, time to respond, bitration of a Fair Labor Standards Act Schein, Inc. v. Archer & White Sales, location, and fee-shifting.” Before com- claim against Sun Coast. The agree- Inc., 139 S.Ct. 524 (2019), the Supreme pelling arbitration for the arbitrator to ment covered “any claim that could be Court rejected the “wholly groundless” determine whether the claim at issue asserted in court or before an adminis- standard, which courts had applied to by- was arbitrable, the court held that the trative agency” and “any controversy or pass a delegation clause if the argument parties entered into a valid agreement to claim” arising out of the employment for arbitration was meritless. Applying arbitrate because although Mississippi relationship. The agreement also incor- this standard meant even if the parties law required definiteness for there to porated the AAA rules which allowed agreed that an arbitrator was to deter- be a meeting of the minds, the inconsis- for class arbitration. The 5th Circuit first mine a gateway issue, such as whether tencies here were “non-essential” and held that Sun Coast waived any argu- the arbitration agreement governed the did not change that the parties reached ment that whether the contract allowed dispute, the court could make that deter- an agreement “to arbitrate.” In dissent, for class arbitration was for the court to mination if there was no real determina- Judge Dennis argued that the seven con- determine by consenting to arbitration tion to make. In Henry Schein I, the 5th flicting terms — most egregiously the and not raising this argument in arbitra- Circuit had denied a motion to compel a conflict as to who pays for the arbitration or until its Rule 59 motion in the claim for injunctive relief because such tion — “were so copious and of such district court.3 The court then reiterated claims were explicitly excluded from considerable import that there was no its limited role in reviewing an arbitra- the governing arbitration clause, despite meeting of the minds.”10 tion award interpreting a contract: “[t] the incorporation of the AAA rules — Relatedly, in Bowles v. OneMain Fin. he correctness of the arbitrator’s inter- which the 5th Circuit recognized was a Grp., L.L.C., 954 F.3d 722, 727 (5 Cir. pretation is irrelevant so long as it was delegation clause.6 The Supreme Court 2020), the 5th Circuit addressed what an interpretation.” The court deferred to vacated that decision, holding that the defenses to an arbitration agreement are the arbitrator’s interpretation of the arbi- court could not make this determina- to be decided by the court instead of the tration agreement as allowing for class tion if the parties clearly and manifestly arbitrator. The court confirmed that the arbitration. At first glance, this case agreed that the arbitrator would deter- question of whether there was a meeting seems hard to square with Lamps Plus, mine such gateway issues by adopting of the minds under Mississippi law as to Inc. v. Varela, 139 S.Ct. 1407 (2019), in a delegation clause.7 On remand, the 5th formation of a contract (as compared to which the Supreme Court held that class Circuit again upheld the denial of the enforceability) was for the court to de- arbitration was not authorized when an motion to compel arbitration — holding termine because it goes to the formation arbitration agreement was ambiguous as that the carve out of injunctive relief ap- of the arbitration agreement. But the to whether it was allowed — the crucial plied to the application of the delegation court held that the plaintiff’s procedural difference being that the court made the clause (the incorporation of the AAA unconscionability challenge (based on decision in Lamps Plus, not an arbitra- rules) as well as to the arbitration agree- an argument that there was not equal tor. This case — as do all of these cases ment itself.8 Accordingly, it held that the bargaining power) was for the arbitra- illustrating great deference to an arbitra- parties did not clearly and manifestly tor to decide. Applying Mississippi law tor’s ruling — serves as an important agree that the arbitrator should deter- on unconscionability, the court held that affirmation of the importance of delega- mine whether the carve out was met. the unconscionability issue was an issue tion clauses. But now, the Supreme Court has decid- of contract enforcement and not contract ed to review that ruling — suggesting it formation, and accordingly, because the Other Appellate Guidance may be short-lived.9 arbitration agreement contained a del- In Matter of Willis, 944 F.3d 577 (5 egation clause, the issue was for the ar- Supporting that backdrop of appel- Cir. 2019), a divided panel of the 5th bitrator to determine. late decisions affirming the enforcement Circuit addressed whether there is a In Psara Energy, Ltd. v. Advantage of arbitration rulings, the 5th Circuit has meeting of the minds when two govern- Arrow Shipping, L.L.C., 946 F.3d 803 also recently issued several opinions ing arbitration agreements contain con- (5 Cir. 2020), the 5th Circuit held that that provide guidance to lower courts flicting provisions. The court reviewed a district court order compelling arbitra- regarding the procedures as to compel- the denial of a motion to compel arbi- tion, but not dismissing the case, is not a

LouisianaLouisiana BarBar JournalJournal OctoberOctober // NovemberNovember 20202020 172172 Vol.Vol. 68,68, No.No. 33 www.lsba.orgwww.lsba.org final appealable order. The district court dissented to the award stating that the Holts v. TNT Cable Contractors, Inc., CV-19-13546, granted the motion to compel arbitration majority of the arbitrators denied “fun- 2020 WL 1046337 (E.D. La., March 4, 2020), motion to compel by nonsignatory granted where the and administratively closed the case but damental fairness and due process.” The plaintiff alleged interdependent claims between a maintained jurisdiction to enforce any court further noted Rule 52(e) of the signatory employer and a nonsignatory employer. arbitration award. Psara Energy ap- AAA rules provide that parties may not And in Llagas v. Sealift Holdings, Inc., 2:17-CV- pealed (or attempted to), and the 5th call the arbitrator as a witness in litiga- 00472, 2020 WL 1243313 (W.D. La., March 13, 2020), plaintiff failed to comply with the order com- Circuit held that administratively clos- tion or any other proceeding. The trial pelling arbitration and section 5 of the FAA “comes ing a case (as opposed to dismissing it) court refused to allow the deposition of into play which permits the court to appoint an ar- is the equivalent to staying a case, which an arbitrator and the AAA; and, through bitrator.” it had previously held was not a final ap- the appellate court, declined to “be the 5. Archer & White Sales, Inc. v. Henry Schein, Inc., 935 F.3d 274, 281 (5 Cir. 2019), cert. granted, pealable order under FAA, 9 U.S.C. § first” to find that such was an abuse of No. 19-963, 2020 WL 3146679 (U.S. June 15, 2020). 16(a)(3). The court also rejected the ap- discretion. 6. Archer & White Sales, Inc. v. Henry Schein, plication of the collateral order doctrine Inc., 878 F.3d 488, 491 (5 Cir. 2017), vacated and — which makes some interlocutory or- remanded, 139 S.Ct. 524 (2019). Conclusion 7. Henry Schein, Inc. v. Archer & White Sales, ders reviewable — holding that it does Inc., 139 S.Ct. 524 (2019). not apply to cases governed by the FAA. The number and variety of these 8. Archer & White Sales, Inc. v. Henry Schein, Accordingly, the court dismissed the ap- cases illustrate how frequently parties Inc., 935 F.3d 274, 281 (5 Cir. 2019), cert. granted, peal for lack of jurisdiction. No. 19-963, 2020 WL 3146679 (U.S. June 15, 2020). challenge the enforcement of arbitration 9. The Court denied Archer & White Sales, Inc.’s In Eastus v. ISS Facility Servs., Inc., agreements and awards, though success petition to review whether incorporation of the AAA ____ F.3d ____, No. 19-20258, 2020 is infrequent. This process may ulti- rules actually shows clear and manifest agreement WL 2745545, at *1 (5 Cir. May 27, mately defeat a purpose of arbitration — for the arbitrator to determine such gateway issues 2020), the plaintiff argued that she was in the first place.Archer & White Sales, Inc. v. Henry quick and binding resolution of disputes Schein, Inc., No. 19-1080, 2020 WL 3146709, at *1 not bound by the arbitration provision outside of court — especially when the (U.S. June 15, 2020). found in her employment contract be- losing party challenges the enforcement 10. Matter of Willis, 944 F.3d 577, 586 (5 Cir. cause she fell under the transportation of the agreement to the highest court. 2019) (Dennis, J. dissenting). workers exemption: “nothing herein contained shall apply to contracts of Blair Druhan Bullock is the FOOTNOTES Murphy Visiting Assistant employment of seamen, railroad em- Professor at Tulane Law ployees, or any other class of workers 1. Most recently, the Supreme Court decided School, where she cur- engaged in foreign or interstate com- GE Energy Power Conversion France SAS, Corp. rently teaches arbitration merce,” 9 U.S.C. § 1. The plaintiff v. Outokumpu Stainless USA, L.L.C., No. 18-1048, law. She earned a Ph.D. in law and economics and a “supervised 25 part-time and 2 full- 2020 WL 2814297, at *5 (U.S. June 1, 2020). Confirming this trend, the Court held that -nonsig JD degree from Vanderbilt time ticketing and gate agents” at the natories can enforce arbitration provisions under a University. Before joining George Bush Intercontinental Airport in theory of equitable estoppel, even if the agreement Tulane Law School, she Houston, Texas, and occasionally han- falls under the Convention (9 U.S.C. §§ 201-208) clerked for Judge Stephen A. Higginson of the U.S. dled luggage. The 5th Circuit enforced because there is no conflict between this domestic doctrine and the Convention. A recent decision 5th Circuit Court of Appeals. She then spent time in the arbitration agreement because under from the Louisiana 4th Circuit Court of Appeal also private practice at Bradley Arant Boult Cummings, Circuit City Stores, Inc. v. Adams, 532 illustrates that nonsignatories may be bound by an L.L.P., representing national corporations in civil U.S. 105 (2001), “[s]he was not en- arbitration provision, particularly when the nonsig- litigation. ([email protected]; 6329 Freret St., New Orleans, LA 70118) gaged in an aircraft’s actual movement natory seeks to enforce a provision of the contract — known in Louisiana as “direct benefit estoppel.” in interstate commerce.” Under Louisiana law (like most states), a party Anthony M. DiLeo is a life Finally, in Vantage Deepwater may not “file[] suit to enforce and benefit from the member of the American Company v. Petrobras America, Inc., Agreement, but . . . seek[] to avoid the binding arbi- Law Institute, served as ____ F.3d ____, No.19–20435 (5 Cir. tration provision.” ERG Enterprises, L.L.C. v. Green a law clerk for Judge Coast Enterprises, L.L.C., 2019-1104 (La. App. 4 John Minor Wisdom and July 16, 2020), the court upheld a $622 Cir. 5/13/20). Judge Alvin B. Rubin, and million arbitration award rendered by 2. In footnote 3, the 5th Circuit held that AAA received an LLM from two of three arbitrators, despite allega- Rule 40 codified the doctrine of functus officio. Harvard Law School after tions that one of the arbitrators “improp- Commc’ns Workers of Am., 953 F.3d at 829 n.3. graduating from Tulane 3. The court hinted that this issue would typically University Law School. erly advocated” for one of the parties, be for the arbitrator because the parties, by incorpo- He is the co-reporter for was biased, and was either “intention- rating the AAA rules, delegated this determination to the ADR Committee of the ally ignoring other evidence” or “inten- the arbitrator. Sun Coast, 956 F.3d at 338. Louisiana State Law Institute for arbitration law. He tionally misstating the evidence,” and 4. For example, federal trial courts in Louisiana has taught arbitration at Tulane Law School as an have upheld arbitration in favor of nonsignors. See, adjunct professor. (tdileo1@gmail.com; Ste. 3300, that he “frequently dozed off during the Brock Services, L.L.C. v. Rogillio, CV-18-867-JWD- 201 St. Charles Ave., New Orleans, LA 70170) hearing;” and, where the third arbitrator EWD, 2020 WL 2529396 (M.D. La., May 18, 2020), motion to compel by nonsignatory granted; and

Louisiana Bar Journal October / November 2020 172172 Vol.Vol. 68,68, No.No. 33 www.lsba.orgwww.lsba.org Louisiana Bar Journal October / November 2020 173 Vol. 68, No. 3 www.lsba.org Mediating on the Internet By Bobby M. Harges

Louisiana Bar Journal October / November 2020 174 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 175 efore the COVID-19 pandemic tively shuttered. the parties should expect when the virtual in the United States earlier I found that lawyers and their clients mediation begins. I uploaded the video to this year, I did not know many were initially skeptical about mediating YouTube.com so it could be easily acces- mediators who had conducted on the Internet. In fact, many of my me- sible to the parties.2 I now send the video mediationsB on the Internet. As a mediations scheduled to occur in Louisiana to parties who will be participating in diator myself, I had conducted only one during the stay-at-home period were ini- mediations with me. At the beginning of mediation on the Internet. That Internet tially postponed or cancelled because the video, I explain that mediating on the mediation was a family mediation where parties assumed that mediations were not Internet is just one form of mediation and the husband, who was a member of the possible without being held in person. that most mediators also offer in-person U.S. military and stationed overseas in However, when litigants realized that mediations where all parties begin the me- Hawaii, attended the mediation virtu- America would be shut down longer than diation in the same room. Then, I explain ally via iPhones’s FaceTime feature. The initially expected, they began to try vir- that online mediations are scheduled just husband’s attorney, his wife, her attorney tual mediations. What happened after that like other mediations with the mediator and I were all present together in my of- is that cases continued to settle in virtual or the mediator’s assistant scheduling and fice. Because the husband was in Hawaii, mediations just as they did in person- to- confirming the date and time of the email it was not feasible for him to attend the person mediations. by phone, email or by facsimile transmis- mediation in person. Thus, he participated After states began to reopen, parties sion. Next, I explain that the agreement to in the mediation virtually, with the use of realized they did not have to travel long mediate will be sent to all parties for their technology. During the mediation, all par- distances to effectively mediate cases. electronic signatures prior to the media- ties could see and hear the husband, and Litigants could mediate on the Internet tion. I currently use DocuSign to enable the husband could see and hear all parties and avoid the time and expense involved the parties to e-sign documents; however, in the mediation. The mediation ended with travelling to mediations. As a re- there are many alternatives to DocuSign.3 in a settlement and all parties were hap- sult, what began as a necessity because The video then explains that, before py about the outcome. I did not give too of COVID-19 has now become an inte- the mediation, the mediator will send much thought to the fact that the husband gral part of mediations in America. That to the parties an email with the login in- was not present physically at the media- is, even after stay-at-home orders were formation so they can join the mediator tion and that he attended the mediation on lifted, parties continued to mediate on the and other parties on the designated date the Internet. The mediation occurred in Internet. They realized that the virtual me- and time. Zoom is my software of choice 2015, and, at that time, although I did not diation process could be just as effective as for conducting mediations at this time.4 know it, it was a sign of what was to come. in-person mediations. Mediators are now Parties are able to join the mediation by holding mediations in a variety of fashions clicking on the Zoom link or by calling The Value of Mediating — in person, totally on the Internet, or in a toll-free number to participate by tele- on the Internet a hybrid fashion where some people are phone. To participate in the mediation, present in the same room with the media- participants will need an electronic device One may ask, why would anyone tors and other parties are elsewhere. such as a computer, electronic tablet de- ever want to mediate on the Internet? vice or telephone. To be seen and heard, The short answer is that, initially, when Mediating After the the participants will need the device to the COVID-19 pandemic began in 2020, COVID-19 Pandemic be equipped with a camera and a micro- it was the only way that parties could ef- phone. The video also explains that advance payment for the mediation can be fectively mediate after America was shut Fast forwarding to summer 2020, 5 down and many governors in the United several months after the COVID-19 pan- handled electronically. States issued statewide executive “stay- demic began in the United States, I have Moreover, the video explains that, at at-home orders” mandating that people now conducted numerous mediations on the beginning of the mediation, everyone stay in their homes in order to prevent the Internet, of all types with amazing will share their contact information with the spread of COVID-19. For example, in success. The settlement rate of the Internet the parties in the event that the parties are early March 2020, Louisiana Gov. John mediations I have conducted is similar to disconnected during the mediation. Other Bel Edwards declared a statewide Public that of the mediations I have conducted in points covered on the video are the fact Health Emergency and issued a state- person. Thus, I am happy to say that, as that the mediation is confidential, that wide stay-at-home order for all individu- of this date, mediating on the Internet has the mediation will not be taped by either als in Louisiana to protect the health and been a success for me. the mediator or the participants, and that safety of the public, to mitigate the impact the participants will be expected to con- of COVID-19 and to disrupt its spread.1 Explaining Online firm the identities of all people present in the rooms with them. Further, the video Mediations on the Internet provided a Mediations way for business to be conducted among explains the purposes of the joint ses- lawyers, clients and their opponents when After conducting several online me- sion and the caucus, as well as presents commerce in the United States was effec- diations, I taped a short video on what images that depict the joint session as a

Louisiana Bar Journal October / November 2020 174 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 175 Vol. 68, No. 3 www.lsba.org general meeting with all participants and order to make the parties more comfort- Conclusion the caucus as a separate meeting between able with the mediator and with the pro- the mediator and one or more of the par- cess. The introduction to virtual media- Because of COVID-19, mediating on ties. Additionally, the video explains that tions takes only a few minutes. the Internet is beginning to gain popular- each team is able to meet privately and ity in the United States. As mediators and confidentially with its members without Tips for Representing lawyers become more comfortable par- the mediator. The caucuses and separate Clients in Mediation ticipating in virtual mediations, they will meetings of team members will be facili- become as effective, if not more effective, tated by use of the Zoom virtual Breakout Twenty-five years ago, in 1995, when than mediating in person. Even after the Rooms which allow the individual partici- I was a relatively new mediator, I wrote COVID-19 pandemic of 2020 ends, on- pants to have privacy and confidentiality. an article titled “The ABCs of Effective line mediations will continue because of In addition, the video explains to the ADR: 10 Practical Tips for Representing the many benefits they provide to lawyers participants that they are able to turn their Clients in Mediations.”7 The 10 tips are: and litigants alike. cameras and microphones on and off dur- 1) educate yourself about the process; 2) ing the mediation to control what other prepare the client for the mediation; 3) FOOTNOTES participants see and hear in their actual prepare a position paper; 4) carefully se- rooms. Because the goal of the media- lect the mediator; 5) develop a mediation 1. Mitchell F. Crusto, “Stay-at-Home, Coronavirus and Its Impact on the Right to tion is settlement, the video explains that, strategy; 6) prepare an opening statement; when the parties reach a settlement, the Interstate Travel,” 68 La. Bar J. 16 (June/July 7) listen carefully; 8) be patient during the 2020). settlement agreement will be executed mediation; 9) ensure confidentiality; and 2. The video can be found on the electronically using DocuSign. This is ac- 10) leave the door open for future negotia- Internet at: https://www.youtube.com/ watch?v=MQ2DzBLuqnM&t=197s. complished by one of the lawyers draft- tions (if there is an impasse). Those tips ing the settlement agreement with the 3. Alternatives to DocuSign are Signnow, are still valid today and I encourage law- Adobe Sign, PandaDoc, Formstack Sign, Eversign language approved by all parties present. yers to follow them. and HelloSign. Once the agreement is finalized, it is sent In addition to those tips, I offer these 4. Other online programs for conducting mediations are Webex, Adobe Connect, Skype, Google to the mediator or the mediator’s assistant tips to mediators and lawyers alike who who will convert the document to PDF Meet, Facebook Messenger, Go to Meeting and may be participating in virtual mediations. Microsoft Teams. and send it to all parties for their electronic First, mediators should provide as 5. Programs that can be used for processing signatures. If one of the e-sign programs is much information as possible to the par- electronic payments are Paypal, Square, Shrill, Payoneer, Apple Pay and Google Pay Send. not available, an alternative would be for ties about virtual mediations so that the the parties to confirm the settlement via 6. The PowerPoint presentation can be viewed parties will become comfortable with the on the YouTube video referred to in footnote 2. email. mediator and the virtual mediation pro- 7. Bobby Marzine Harges, “The ABCs of cess. Effective ADR, 10 Practical Tips for Representing Conducting Mediations on Clients in Mediations,” 43 La. Bar J. 142, (August Second, before the mediation begins, 1995). the Internet lawyers should meet, either virtually or in person, with their clients to explain the Bobby M. Harges medi- At the beginning of a Zoom virtual mediation process and how it will be con- ates and arbitrates with mediation, after I introduce myself to ducted virtually. Mediation Arbitration Professional Systems, the parties and explain the purpose of Third, mediators and lawyers should Inc. (MAPS) in Louisiana the session, I “share my screen” with all educate themselves about virtual media- and Mississippi. He has parties. I share the PowerPoint presentations by researching on the Internet, read- been a neutral since tion from the YouTube video and explain ing articles and attending virtual webinars 1990 in the capacities of special master, media- to the parties once again everything that or other seminars about how to mediate on tor, arbitrator, attorney was explained on the video. The goal of the Internet. chair of medical review this PowerPoint presentation is to reiter- Fourth, for lawyers, it is a good idea to panels, and a complaint ate how the mediation will be conducted.6 have a settlement document prepared in hearing officer for energy regulatory matters. He is a member of the Executive Committee of This helps those participants who did not draft form with the anticipated terms of the Louisiana State Bar Association’s Alternative have a chance to view the short YouTube the settlement spelled out in advance. This Dispute Resolution Section, a past chair of the video to understand what will happen at will facilitate the resolution of the media- Mississippi Bar ADR Section, and teaches me- the mediation, as well as to reinforce for tion. diation and arbitration, evidence, torts, sports law, DWI law, and criminal law and procedure at those parties who did view the video ex- Finally, realize that virtual mediations Loyola University College of Law. (harges@loy- actly what to expect. Because virtual me- are here to stay and, just like in-person no.edu; 7214 St. Charles Ave., Campus Box 901, diations are relatively new, in my opinion, mediations, virtual mediations can be an New Orleans, LA 70118) it is important to provide detailed informa- effective tool for resolving disputes and tion about how the process will proceed in settling cases.

Louisiana Bar Journal OctoberOctober // NovemberNovember 20202020 176 Vol. 68, No. 3 www.lsba.org By Get Year Your Cases Closed End

Louisiana - Mississippi - Nationwide

800.443.7351 [email protected] www.maps-adr.com Louisiana Bar Journal October / November 2020 176 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 177 Vol. 68, No. 3 www.lsba.org Nailing Down Knick and Governmental Takings in Louisiana By Randall A. Smith

itle 19 of the Louisiana taking, or contends that more property of property taken and severance damages Revised Statutes contains the is sought to be taken than is needed, has to his remainder, but also that such an general expropriation statutes, a narrow window of opportunity within owner be put in as good a position pe- and it governs takings by pub- which to challenge the propriety of the cuniarily as he would have been had his licT bodies and certain quasi-public en- taking, and the statutory time periods property not been taken.” State Through tities, such as utilities. La. R.S. 19:2.1 vary depending upon the taking author- Dept. of Highways v. Constant, 369 So.2d specifically authorizes the state or its ity. To that point, Title 19 is not the only 699, 701 (La. 1979). Such damages may political corporations or subdivisions to Title that governs takings in Louisiana. include compensation for moving costs, take private property for public use in ac- Portions of Title 38 govern takings by relocation, inconvenience and lost profits cordance with Article 1, § 4 and Article local levee boards, whereas Title 48 typi- from the taking of a business enterprise. VI, § 21 of the Louisiana Constitution. cally comes into play when the taking in- Louisiana law, generally, also requires Expropriating authorities must possess volves the Department of Transportation the expropriating authority to attempt, the authority to take needed property and, and Development. Additionally, some in good faith, to reach an agreement as in all situations, if the right to expropri- other local governmental bodies have to compensation with the owner of the ate exists, under both the Louisiana and their own takings statutes with entirely property sought to be taken. In most United States Constitutions, the govern- different filing deadlines and require- situations, the expropriating authority ment must pay “just compensation” for ments from Titles 19, 38 or 48. must provide the property owner with the taking. La. Const. art. I, § 4(B)(1); While the state’s expropriation au- certain information from its appraisals U.S. Const. amend. V. Just compensation thority to take is construed broadly by or estimates and must offer as payment is required both for physical takings and the courts, under La. Const. art. I, § 4, an amount not less than the lowest ap- for inverse condemnations, such as regu- expropriating authorities are required to praisal. If the parties are unable to reach latory takings. compensate a property owner to the “full an agreement, under Title 19, the state or The grounds to challenge takings are extent of the loss.” The phrase “full ex- its political corporations or subdivisions limited under Louisiana law. An owner tent of the loss” means that the owner may then file a petition for expropriation who contests the public necessity for the must “not only be paid the market value in the district court of the parish in which

Louisiana Bar Journal October / November 2020 178 Vol. 68, No. 3 www.lsba.org the property to be expropriated is located. court. That all changed on June 21, 2019, may bring a Fifth Amendment claim un- When the taking authority takes property when a 5-4 majority of the United States der § 1983 upon the taking of his prop- without filing an expropriation petition, Supreme Court overruled the state-litiga- erty without just compensation by a lo- the property owner must file an inverse tion prong of Williamson County. Knick cal government” and need not first seek condemnation suit in order to obtain v. Twp. of Scott, Pennsylvania, 139 S.Ct. compensation through state-provided compensation. In either case, if the prop- 2162, 2172 (2019). procedures. Knick, 139 S.Ct. at 2179. erty owner is successful, it may recover The Supreme Court expressly de- attorney’s fees, costs and expert fees Breaking Down Knick clined to address the viability of the final- pursuant to Louisiana statutory authority prong of Williamson County because ity. See, e.g., La. R.S. 19:8 (attorney’s In Knick, the Township passed an or- “Knick does not question the validity of fees in general expropriation suits); La. dinance that required Ms. Knick to allow this finality requirement, which is not at R.S. 13:5111 (attorney’s fees in inverse general public access to a small, antiquat- issue here.” Knick, 139 S.Ct. at 2169. condemnation suits); La. R.S. 19:201 ed graveyard located on her otherwise pri- The Court also did not address in any (attorney’s fees and costs for abandoned vate property. After first commencing an detail how its holding might be applied proceedings or those in which the gov- injunction suit in state court, Ms. Knick to challenges to expropriation suits filed ernmental entity lacks authority to take); then filed a Section 1983 action in fed- by local governmental bodies in state La. C.C.P. art. 1920 (costs generally); La. eral court, alleging that the Township’s court. However, in response to concerns R.S. 13:5112 (costs in inverse condem- attempted enforcement of the ordinance that property owners might run to fed- nations). effected a Fifth Amendment taking of eral courts to enjoin state regulations and Louisiana has a long line of cases her property without just compensation. usurp state governmental authority, the regarding public use, economic devel- The federal court dismissed her just com- Chief Justice allayed these concerns by opment and deference to a governmen- pensation claim without prejudice, find- stating that, “Today, because the federal tal entity’s determination of necessity ing that it was not ripe under Williamson and nearly all state governments provide that makes its legal framework consis- County because she had not first sought just compensation remedies to property tent with the majority’s opinion in Kelo just compensation through state court owners who have suffered a taking, eq- v. City of New London, 545 U.S. 469 inverse condemnation proceedings. The uitable relief is generally unavailable. As (2005), despite having passed an anti-Ke- 3rd Circuit affirmed, and the Supreme long as an adequate provision for obtain- lo Constitutional Amendment to outlaw Court granted certiorari to reconsider ing just compensation exists, there is no takings “(a) for predominate use by any Williamson County’s rule regarding ex- basis to enjoin the government’s action private person or entity, or (b) for trans- haustion of state procedures. effecting a taking.” Knick, 139 S.Ct. at fer of ownership to any private person or In the majority opinion, authored by 2176. Thus, “Governments need not fear entity.” La. Const. art. I, § 4(B)(1). (Kelo Chief Justice Roberts, the Court deter- that our holding will lead federal courts upheld a taking for economic develop- mined that “Williamson County effec- to invalidate their regulations as uncon- ment purposes.) tively established an exhaustion require- stitutional. As long as just compensation Because both the Louisiana and ment for § 1983 takings claims when it remedies are available — as they have United States Constitutions require held that a property owner must pursue been for nearly 150 years — injunctive the payment of just compensation, one state procedures for obtaining compensa- relief will be foreclosed.” Knick, 139 would, therefore, assume that a prop- tion before bringing a federal suit.” Id. S.Ct. at 2179. erty owner, as master of its complaint, at 2173. Under Williamson County, the could choose to pursue its takings claim existence of a state remedy “prevented Testing Knick in Louisiana either in state court, under the Louisiana the Fifth Amendment right to just com- and the 5th Circuit Constitution, or in federal court, under pensation from vesting until exhaustion the Fifth Amendment. Prior to June 21, of the state procedure.” Knick, 139 S.Ct. In the wake of Knick, Louisiana fed- 2019, a takings plaintiff was effectively at 2171. Noting that there was no state- eral courts are now tasked with aligning barred from bringing a Fifth Amendment litigation requirement for vindication of prior 5th Circuit precedent with Knick’s takings claim in federal court, unless other constitutional rights, the majority pronouncements and defining the extent the plaintiff demonstrated that his/her opinion held that a property owner must to which Knick’s rationale may be ex- claim was ripe under a two-prong test be permitted to bring a Section 1983 tak- tended beyond its specific factual -sce established by the Supreme Court in ings claim in a federal forum because nario. Currently pending before the 5th Williamson County Regional Planning “it would defeat the purpose of § 1983 Circuit is a case in which the 5th Circuit Commission v. Hamilton Bank of Johnson ‘if we held that assertion of a federal has been called upon to determine if City, 473 U.S. 172 (1985), requiring, first, claim in a federal court must await an Knick’s rationale permits a federal court that government regulatory action be fi- attempt to vindicate the same claim in to enforce payment of a state court final nal and, second, that a property owner state court.’” Knick, 139 S.Ct. at 2173 judgment awarding tens of millions of must first exhaust available state law pro- (2019). Consequently, “a property owner dollars in just compensation for an ex- cedures prior to seeking relief in federal

Louisiana Bar Journal October / November 2020 178 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 179 Vol. 68, No. 3 www.lsba.org DOES YOUR MALPRACTICE DOES YOUR MALPRACTICE propriation of private property. Violet antee of reasonably prompt payment of property to satisfy a dire public need. POLICY INCLUDE CYBER COVERAGE? Dock Port v. St. Bernard Port, No-19- just compensation — including neces- Under Knick, as soon as a local gov- POLICY INCLUDE CYBER COVERAGE? 30992, 5th Circuit Court of Appeal. In sary mechanisms to enforce payment. ernmental body effects a physical or reg- Violet Dock Port, St. Bernard Port filed The significance of the issues raised in ulatory taking of private property with- a quick-taking state court expropriation Violet Dock Port’s appeal is duly noted out filing an expropriation suit in state suit in 2010 and, upon depositing its es- by the many amici briefs filed in the case. court, a property owner whose property timate of just compensation as required The appeal is still pending. has been taken should be able to pursue under state law, took immediate owner- To date, the only 5th Circuit opinion a Fifth Amendment takings claim in fed- ship of Violet Dock Port’s private, turn- directly addressing and interpreting Knick eral court pursuant to Section 1983, pro- key, Mississippi River port facility. After is Bay Point Props., Inc. v. Miss. Transp. vided that all elements of the cause of over eight years of litigation, final judg- Comm’n, 937 F.3d 454 (5 Cir. 2019), action are otherwise met. However, un- ment was issued awarding Violet Dock cert. denied, ____ S.Ct. ____, (March 30, less the 5th Circuit is called upon to re- Port just compensation in the amount of 2020), 2020 WL 1496635. In Bay Point visit its holding in Bay Point Properties, $28,764,685, plus interest. St. Bernard Properties, plaintiff first sought just com- a Section 1983 claim against the state for Port, Harbor & Terminal Dist. v. Violet pensation in a Mississippi state court just compensation for the taking will be *********** **** Dock Port, Inc., L.L.C., 16-0096 (La. inverse condemnation suit, but the state barred under the 11th Amendment. *********** **** App. 4 Cir. 9/12/18), 255 So.3d 57, courts determined that plaintiff’s right to Although Knick does not offer specif- writ denied, 18-1696 (La. 2/11/19), 263 compensation was limited by state stat- ic guidance regarding whether a property STRONG WEAK So.3d 435, and writ denied, 18-1692 (La. ute. Plaintiff then filed a takings claim in owners’ federal takings claim could take STRONG WEAK 2/11/19), 263 So.3d 436. federal court, which was dismissed by precedence over a previously-filed state Just after the Supreme Court rendered the district court on sovereign immunity court expropriation proceeding filed by a its decision in Knick, Violet Dock Port grounds before the Supreme Court ren- local governmental body, Knick did over- filed a Section 1983 claim in the federal dered its decision in Knick. On appeal, rule Williamson County’s state litigation district court for the Eastern District of the 5th Circuit affirmed the dismissal of requirement. The majority opinion in Louisiana, seeking just compensation in plaintiff’s suit, concluding that the deci- Knick assured that there was no basis the amount of the final state court award. sion in Knick had no bearing upon the for a federal court to enjoin a state court Violet Dock Port averred that St. Bernard property owner’s appeal because the expropriation proceeding “[a]s long as Port’s failure to pay was a continuing vi- Court in Knick did not consider, and did an adequate provision for obtaining just olation of Violet Dock Port’s right to pay- not alter, the “bedrock principles” of 11th compensation exists.” Knick 139 S.Ct. ment of just compensation that, pursuant Amendment sovereign immunity that at 2176. Given that the intent of Knick to Knick, is viable and properly brought otherwise prohibit federal courts from was to eliminate faulty jurisdictional or in federal court. St. Bernard Port filed a considering takings claims made against prudential obstacles to pursuing federal motion to dismiss, arguing that Knick did the state. Bay Point Props., Inc., 937 F.3d takings claims in federal courts, Knick’s REMEMBER... not support the filing of a Section 1983 at 456 (5 Cir. 2019). On March 30, 2020, rationale should be extended to permit REMEMBER... action to enforce a state court judgment, the Supreme Court denied Bay Point federal takings claims that the federal likening the just compensation judgment Properties’ petition for certiorari. Bay courts had declined to entertain before less premium may mean less coveraGe to personal injury judgments that are typ- Point Properties, 2020 WL 1496635. Knick. less premium may mean less coveraGe ically not enforced in federal court. The district court agreed with St. Bernard In the Knick of Time for Randall A. 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([email protected]; ages of personal protective equipment Ste. 3702, 201 St. Charles Ave., New Orleans, LA Violet Dock Port appealed to the 5th 70170-3702) Circuit, arguing that the district court and other supplies. Thus, owners of such erred in failing to apply the rationale of property may face a potential govern- Knick and the Fifth Amendment’s guar- mental taking of their real or personal

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Louisiana Bar Journal October / November 2020 Vol. 68, No. 3 www.lsba.org LouisianaThis informationThis BarThis information Journalinformation is intended isOctober isintended intended to present to/ toNovemberpresent present a general a generala generaloverview 2020 overview overview for illustrative for for illustrative illustrative purposes purposes purposes only.Vol. only. It 68, only.is not ItNo. is Itintended isnot 3 not intended www.lsba.orgintended to constitute to toconstitute constitute a binding a bindinga bindingcontract. contract. contract. Please Please Please 180 Thisremember informationrememberremember that onlythat is that intended theonly only relevant the the torelevant relevantpresent insurance insurance insurancea generalpolicy policy can policyoverview provide can can provide for providethe181 illustrative actual the the actual terms, actual purposes terms, coverages,terms, coverages, only. coverages, amounts,It is notamounts, amounts, intended conditions conditions conditions to andconstitute exclusions and and exclusions aexclusions binding for an forcontract. insured. for an an insured. insured. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. Caddo Parish Juvenile Court: Trauma-Informed Practices Come to Juvenile Court By Judge David N. Matlock and A. Michelle Perkins

hildhood trauma is not an excuse for failure; it is a path- and doing okay in school, but, afterward, became withdrawn or be- way for success. Severe toxic trauma adversely affects gan acting out. This was followed by poor grades and bad conduct the formation and pruning of neural pathways. That ef- reports, and then a cascade of other behavioral and emotional is- fect is durable, but largely not irreversible. At the risk of sues, including negative peer associations, unhealthy relationships, grossC oversimplification and reduction, severe trauma, and particu- sexual acting out and drug-seeking behaviors. Each new unhealthy larly unbuffered, repeated, relational trauma, causes glucocorticoid behavior brought its own new wave of trauma, followed by more (and particularly cortisol) flooding of the brain which damages and steadily worsening trauma-causing behaviors. neural development and pathways. The effect is dose-responsive: The child may have been removed from his/her home to prevent the more the trauma, the worse the effect. The effect is also worse further maltreatment to the child or due to the child’s own escalat- during childhood and particularly early childhood because that is ing and dangerous behaviors. The removal was often followed by when the most brain pathways are being formed. This can cause a series of disrupted foster home placements, progressively more children to become quickly stuck in lower brain fight, flight or unsettling placements in shelters, group homes, psychiatric facili- fright (frozen) mode or have their body or brain react as though a ties, hospitals and, eventually perhaps, incarceration. At each new prior traumatic event is occurring in the present. stage of placement, the child was exposed to increasingly restric- tive conditions and more toxic interactions with increasingly trou- What are Trauma-Informed Practices? bled peers leading, predictably, to new traumas experienced by an increasingly fragile and demoralized child. There is rapidly developing science regarding effective, evi- This series of events can be stopped and even reversed if, early dence-based treatments and interventions to prevent and heal the in the process, the child begins receiving effectivetrauma-focused adverse effects of trauma. These include evidence-based models mental health treatment and is able to live in a home and school of counseling for both children and adults who are survivors of environment with caregivers who are well informed about what serious childhood trauma and includes parenting methods to help behaviors to expect and how to respond to a child who has been protect children and help them heal. severely traumatized. Children who have serious emotional and behavioral issues Much of the awareness of the effects of childhood trauma arising from severe trauma need three things. First, they need arises out of the landmark Centers for Disease Control and Kaiser trauma-competent, evidence-based mental health services and in- Permanente ACEs study in 1998. From 1995-97, a group of scien- terventions. Second, they need trauma-smart daily care from their tists studied the effects of adverse childhood experiences (ACEs) parents and other caregivers. Relational trauma requires relational on the mental and physical health of 17,000 adults. This showed healing. Third, they need for their parents to receive treatment that “ACEs disrupt neurodevelopment and can have lasting effects and interventions for any of the parent’s own unresolved serious on brain structure and function — the biologic pathways that likely childhood trauma. The best option is to refer that parent to a good explain the strength of the findings from the ACE Study.”1 mental health provider who is trained to use an evidence-based, In late 2016, I decided to find out what was going on with the trauma-focused treatment model. parents I was seeing in child maltreatment cases. I used an often overlooked and highly sophisticated scientific research method: I Judge Matlock: My Introduction to asked them. The first time a parent showed up in court, I would hold a bench conference in the secure hallway beside the court- Trauma-Informed Practices room with the parent, the DCFS caseworkers, the lawyers, the CASA, and occasionally the parent’s mental health counselor, and In my 25 years as a juvenile judge, I have seen many children I asked the parent as delicately as I could if he/she had ever been who were molested by an adult member of the child’s household or hurt as a child. family. Prior to the onset of the molestation, the child was friendly

Louisiana Bar Journal October / November 2020 182 Vol. 68, No. 3 www.lsba.org The parents’ responses were jarring and eye-opening. Their tal health professionals and child welfare workers on how to con- childhood trauma was pervasive, severe and relational. There were duct trauma-focused assessments and make referrals to appropriate remarkable similarities in what they were reporting. Their trauma trauma-competent treatment services and adjunct interventions. frequently involved inescapable and repeated sexual abuse by an The assessment protocol that this group developed is individu- adult member of their family or household. Many of these parents alized and draws from several instruments, including the Global reported seeing their own parent being serially victimized by do- Assessment of Individual Needs (GAIN), the ACEs question- mestic violence when they were too young to be able to do any- naire with supplemental questions, trauma blocks, the Global thing about it. Assessment of Relational Functioning (GARF) scale assessment A high percentage of the parents with mental illness or treat- and the LEC-5 symptoms screen. This assessment process has ment-resistant substance abuse were themselves survivors of se- been refined and streamlined based on our experience. vere childhood trauma. And a very high percentage of mothers Removal of a child from the home can be necessary for the had been victims of childhood sexual abuse. The parents’ accounts child’s protection, but the removal itself causes trauma to the child. were credible and often verifiable from DCFS records, criminal In order to prevent removal, we have begun working with DCFS records and accounts from other family members. This, it turns to use the trauma-focused assessment and referral process before out, was not an anomaly.2 the risk of harm to the child reaches a point that requires removal. One thing that stood out about these hallway interviews was This represents a significant shift in the culture and approach to how uniformly willing these parents were to share their deeply per- child welfare. sonal information in an unfamiliar setting with people they barely After an assessment, we referred cases to the Treatment knew. One parent who had been molested as a child told us that Capacity and Training Team. The purpose of this group was this was the first time she had ever told anyone about what had twofold: to identify local mental health providers who were al- happened to her. ready willing and able to provide evidence-based, trauma-com- I began to realize that I had spent over two decades as a juvenile petent, Medicaid-funded treatment; and to identify mental health judge not really understanding the singular and pervasive effect treatment providers who wanted to receive additional training in that trauma, unhealthy parent/child attachments, toxic stress and, this kind of treatment and make it available to them. on the positive side, resilience has on every part of the juvenile There are a number of evidence-based, trauma-specific men- justice system and on the health and quality of life in our entire tal health therapies. For adults, these include Prolonged Exposure community. My experience was not unique.3 Therapy, Cognitive Processing Therapy and Eye Movement Desensitization and Reprocessing (EMDR) Therapy. For children, A Plan for Action these include Trauma Focused Cognitive Behavioral Therapy and EMDR. Others include the Nurse Family Partnership, Parents as On Sept. 19, 2017, I met with about 35 local treatment provid- Teachers, Triple P-Positive Parenting Program®, cognitive pro- ers and child welfare stakeholders who were interested in trauma cessing therapy (CPT) and play therapy, and more shallow-end, to discuss how to address trauma in the context of the child welfare trauma-competent services such as yoga, mindfulness, equine system. In that meeting, we identified a goal, the steps necessary therapy and others. to achieve that goal, and additional stakeholders that we needed to The travel and tuition cost for providers to be trained to deliver include. We referred to our little band as the Strategic Planning these services can be high, almost prohibitive, given Medicaid re- Group for Trauma. We eventually included not only healthcare imbursement rates. The Treatment Capacity and Training Team professionals, but foster and adoptive parents and children, educa- convened a large gathering of local mental health professionals to tors, lawyers, Latinx community representatives, and even a yoga identify the trauma-competent treatment training that our providers instructor. Our initial goal was to identify and address the trauma- wanted and then worked to make it available to local providers free related needs of children and adults in Caddo Parish who are in- or at a substantially reduced cost. volved or at risk of becoming involved in the child welfare system. As a result, 25 local providers have received free training in a To achieve that goal, we created four working groups: proprietary treatment model;4 15 have received scholarships and ► the Screening, Assessment and Referral Group; obtained comprehensive training in EMDR treatment. This ad- ► the Treatment Capacity and Training Team; dresses the crucial need to get trauma-focused, evidence-based ► the Caregiver Training/TBRI® Group; and treatment to parents who are survivors of serious childhood trauma ► the Multidisciplinary Trauma Intervention Team. and are eligible for Medicaid.5 Severe relational trauma requires The purpose of the first group, Screening, Assessment and sustained relational healing. Referral, was to develop a system to provide a comprehensive This leads to our third team, the Caregiver Training/TBRI® trauma-focused mental health assessment and a referral to appro- Group. Its purpose was to promote training for biological, adop- priate treatment for parents as early as practicable in child protective and foster parents, teachers, childcare providers and other tion cases. We quickly built a speedy child welfare worker and caregivers on how to provide trauma-competent care for children court assessment and referral process by using our existing Family who are survivors of serious trauma. Drug Court referral process and by providing training to local men- Continued on page 184

Louisiana Bar Journal October / November 2020 182 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 183 Vol. 68, No. 3 www.lsba.org Juvenile Court continued from page 183 And the Project Continues The letters TBRI stand for trust-based relational intervention. The overall Strategic Planning Group continued to meet peri- 20th annual louiSiana State BaR aSSoCiation TBRI® is an intervention developed by Dr. Karyn Purvis and Dr. odically to take stock and adjust the trajectory of our efforts. Our David Cross, with TCU, to help equip parents and other caregivers structure worked well to make palpable changes in the culture and to be well informed about what behaviors to expect and how to processes within our local child welfare system and helped us be- respond to children who have been severely traumatized. DCFS come a trauma-informed child welfare system, but there were still Complex litigation SympoSium and Crossroads NOLA, a community-based organization in New gaps. Orleans, were already working to promote the availability of We realized that our efforts need not be limited to the child wel- TBRI® in Louisiana. We were able to leverage these statewide ef- fare system and must include schools and childcare providers, law forts locally by working in particular to promote TBRI® training enforcement, fire and EMS, adult corrections and family court. We novemBeR 6, 2020 – new oRleanS in the Shreveport area. also realized that we should address social media, public aware- Volunteers For Youth Justice (VYJ) has adopted TBRI® as ness and intersystem communications and networking. We further one of its five primary programs. VYJ employs a full-time, court- realized that our efforts should include public health components Richard J. Arsenault, Seminar Chair based TBRI® coordinator, and our clerk of court provides part- and should be informed and guided by our local medical commu- time TBRI® assistants. VYJ partners with Crossroads NOLA to nity. Our speakers include the nation’s leading complex litigation conduct monthly TBRI® Friday trainings in Shreveport and has So we broadened our goal to develop and implement a health- academicians, jurists, and members of the bar from both sides of the reached hundreds of local parents and child-serving professionals. care system-guided, community-wide action plan to prevent child- “V.” These are the folks that are presiding over, writing about, and hood trauma and to heal its pervasive effects on adults and chil- VYJ has recruited and trained and supervises about three dozen litigating the most significant cases in the country. They are the who’s TBRI® Advocates, specially trained volunteers who are commis- dren. We merged our child welfare efforts with other ongoing local sioned by the court and assigned to provide one-on-one training efforts, including ACEs training, school-based resilience-building who of the complex litigation bench and bar. and support for biological, foster and adoptive parents of children efforts and youth resilience-building activities, into a broader ef- with serious emotional or behavioral problems arising from trau- fort guided by the Community Foundation of North Louisiana and ma. We also now have a counselor-led, TBRI®-infused caregiver Step Forward NWLA. support group for foster parents. We have 30 or so local certified Caddo Parish is one of four pilot sites for the Service Array Featured Speakers Have Included: TBRI® practitioners in our area.6 portion of our statewide child welfare Program Improvement This TBRI®-related programming has led to VYJ providing a Plan. Working with the Louisiana Pelican Center for Children and staffed Calming Studio for children at court and to our having an Families and Step Forward NWLA, we are coordinating our vari- emotional support puppy, Sasha, available for children and others ous local trauma-related efforts with this Service Array pilot project. while at court. Sasha circulates within our courtroom, hallways, Part of that broader effort included developing and conduct- sidewalks and the Calming Studio helping children, and not infre- ing the Northwest Louisiana Early Childhood Policy Leadership quently adults, experience a degree of joy and emotional comfort Institute. This included three one-day training sessions over three during an otherwise very difficult time. months for local business, political, hospital administration and ed- In addition, we have staggered docketing to reduce court ucation leaders. The Northwest Louisiana ECPLI has set in motion waiting time, and our District Attorney’s office provides trauma- a collaborative public awareness and policy development effort smart activity bags for children who come to court. Caddo Parish to promote quality childhood reading education and attachment- Juvenile Services has TBRI® training for detention staff, juvenile nurturing, trauma-informed parenting and childcare. probation officers, FINS staff and parents of children in detention, We also reached out to our local medical community, and they on probation or in the FINS program. We are working to provide are now helping lead our efforts. The Department of Pediatrics of TBRI® training to the staffs of area juvenile shelters, group homes the University of Maryland School of Medicine has developed a and secure facilities. screening model for risk factors of child maltreatment and social The Caddo Parish School Board has adopted and is implement- determinants of health called Safe Environment for Every Kid ing its system-wide Trauma Responsive Schools Plan. This plan (SEEK). Our local pediatricians have adapted the SEEK model for extends to teachers and other staff workers who come into contact our community, and, together with the Community Foundation of with children, such as bus drivers, cafeteria workers, office person- North Louisiana, they are promoting the use of this model among nel and others. We also now have two dedicated TBRI® time-in their local peers.7 This change is important because pediatricians classrooms in local schools. are among the earliest touchpoints for children who are survivors Finally, we established the Multidisciplinary Trauma of serious trauma or are at risk of trauma. Pediatricians at our local teaching hospital, Ochsner LSU Health Shreveport, have begun Intervention Team. Its purpose is to staff specific child welfare Hon. Eldon Fallon • Hon. Carl Barbier • Hon. Patrick Hanna • Hon. Glenn Norton • Hon. Ken Starr cases involving serious trauma to either children or the adult par- training on using the SEEK model to screen and make referrals ents. This group quickly helped build cross-discipline relationships to trauma-competent services as part of their routine well-check Prof. Lynn Baker • Prof. Jaime Dodge • Prof. Arthur Miller • Prof. James Wren and communication networks among a number of local agencies process. This is important because it is taking place at a teaching Thomas Anapol • Khaldoun Baghdadi • Jeff Bassett • Dustin Carter • Dawn Chmielewski and service providers. These efforts helped create a trauma-con- hospital with the capacity to bend the trajectory of pediatric prac- Tony Clayton • Lori Cohen • Special Master Kenny DeJean • Brian Devine • Bob Drakulich scious culture in our local child welfare system. tices for a generation of new doctors. Nick Drakulich • Val Exnicios • Yvonne Flaherty • John Hooper • Jane Lamberti • Mark Lanier Rachel Lanier • Lynn Luker • Hunter Lundy • Todd Mathews • Jennifer Moore Continued on page 186 Melanie Muhlstock • James Murdica • Joe Rice • Special Master Gary Russo • John Sherk Raymond Silverman • Joe Thorpe • Aimee Wagstaff • James Williams For more information and to register online, please visit: www.lsba.org/CLE Louisiana Bar Journal October / November 2020 184 Vol. 68, No. 3 www.lsba.org 20th annual louiSiana State BaR aSSoCiation Complex litigation SympoSium

novemBeR 6, 2020 – new oRleanS

Richard J. Arsenault, Seminar Chair Our speakers include the nation’s leading complex litigation academicians, jurists, and members of the bar from both sides of the “V.” These are the folks that are presiding over, writing about, and litigating the most significant cases in the country. They are the who’s who of the complex litigation bench and bar.

Featured Speakers Have Included:

Hon. Eldon Fallon • Hon. Carl Barbier • Hon. Patrick Hanna • Hon. Glenn Norton • Hon. Ken Starr Prof. Lynn Baker • Prof. Jaime Dodge • Prof. Arthur Miller • Prof. James Wren Thomas Anapol • Khaldoun Baghdadi • Jeff Bassett • Dustin Carter • Dawn Chmielewski Tony Clayton • Lori Cohen • Special Master Kenny DeJean • Brian Devine • Bob Drakulich Nick Drakulich • Val Exnicios • Yvonne Flaherty • John Hooper • Jane Lamberti • Mark Lanier Rachel Lanier • Lynn Luker • Hunter Lundy • Todd Mathews • Jennifer Moore Melanie Muhlstock • James Murdica • Joe Rice • Special Master Gary Russo • John Sherk Raymond Silverman • Joe Thorpe • Aimee Wagstaff • James Williams For more information and to register online, please visit: www.lsba.org/CLE Louisiana Bar Journal October / November 2020 184 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 185 Vol. 68, No. 3 www.lsba.org Juvenile Court continued from page 184 agement. Parents and caregivers who are themselves survivors of serious childhood trauma also need to receive effective, trauma- Conclusion informed treatment and interventions to prevent the recurrence of trauma to the children they care for and so that they can, in turn, There are a lot of moving parts to these efforts. It’s hard, but provide the trauma-smart healing care that their children need. it is not complicated and can be boiled down to a few concepts. This article is adapted from a presentation given at the American Probation and Parents and caregivers need to know about the adverse effects of Parole Association at its winter meeting in New Orleans in January 2020. childhood trauma. Children who are survivors of severe trauma need to receive evidence-based, trauma-competent mental health FOOTNOTES services. We need to make those services available to families who want and need them. 1. www.wvlegislature.gov/Senate1/majority/poverty/ These children need to receive nurturing, trauma-informed dai- ACEsinWashington2009BRFSSFinalReport%20-%20Crittenton.pdf. 2. See, e.g., Substance Abuse and Mental Health Services Admin., “Essential ly care from their parents and caregivers. To provide this, parents Components of Trauma-Informed Judicial Practice,” p. 3, available at www.nasmh- and caregivers of these children need training, support and encour- pd.org/sites/default/files/DRAFT_Essential_Components_of_Trauma_Informed_ Judicial_Practice.pdf.

Interview with Judge Ree J. Casey-Jones, Louisiana’s First STAR Court Judge Interviewed by Hal Odom, Jr.

“You can be a rising star. You can be Journal: How do you divert cases to a shining star. You can even be a rock STAR? star!” This is the message Judge Ree Judge Casey-Jones: All our cases start J. Casey-Jones has for the girls (and a out as delinquency cases, and most of them few boys) who come through her court, have been with girls. We look for juveniles Louisiana’s first STAR court, a specialty who have started out with minor offenses, court established to help address the epi- like fighting or disturbing the peace, but demic of human trafficking. Before the have progressed to more serious matters, coronavirus lockdown, Judge Casey- like major theft, kidnapping or even homi- Jones sat down to talk with the Louisiana cide. We’re trying to find out, what’s caus- Bar Journal about this innovative court ing this? What are the underlying issues? section under her leadership. What can we do to move them out of juvenile justice? Journal: What does STAR stand for? Judge Casey-Jones: It stands for Journal: Who selects cases for diversion? Succeeding Through Achievement and Judge Ree J. Casey-Jones Resiliency. We got the idea, and the name, Judge Casey-Jones: The Caddo from the Los Angeles, Calif., County Parish Office of Juvenile Services. The our Number One goal. Unfortunately, this Court System, where they have devel- office’s intensive probation officers evalu- sometimes involves moving them out of oped it. I was able to go to Los Angeles ate the kids, starting with talking to them, town, or even out of state. and observe the system for about a week. their parents, their teachers, and any other It was an education. There are also simi- significant persons in their lives. Most of Journal: Is human trafficking the thread lar courts in other major cities. them are already on probation, and moving running through most of these cases? their case to STAR Court is a condition of Judge Casey-Jones: Yes, in perhaps Journal: When did Caddo Juvenile probation. 90 percent of the cases. However, we never Court begin the STAR Court? use the expression “human trafficking” or Judge Casey-Jones: In March 2019. Journal: Is there an immediate effect? the word “prostitution.” We try to focus So, it’s relatively new. In the first year, we Judge Casey-Jones: Our first goal is to on the positive aspect of improving each have diverted 13 cases to STAR. make sure they have a place to stay, food child’s self-esteem, placing the children to eat, and some security. Their safety is in a safe environment and giving them

Louisiana Bar Journal OctoberOctober // NovemberNovember 20202020 186 Vol. 68, No. 3 www.lsba.org 3. Id.; Bessel van der Kolk, The Body Keeps the Score: Brain, Mind, and Body Community Response Team, Intensive Probation Unit, on-site drug treatment clinic in the Healing of Trauma. London: Penguin Pub. Group, © 2015. for children and parents, Teen Court Program and Good Support (a partnership 4. We use the TARGET model. See, www.advancedtrauma.com/Services.html. with Goodwill providing employment counseling for individuals in Child Support 5. As Dr. van der Kolk states, “Study after study shows that having a good Court). ([email protected]; 1835 Spring St., Shreveport, LA 71101) support network constitutes the single most powerful protection against becoming traumatized. Safety and terror are incompatible.” Van der Kolk, supra. A. Michelle Perkins, judicial hearing officer for Caddo 6. Shreveport was selected as a training site for TCU’s international TBRI® Parish Juvenile Court, graduated magna cum laude practitioner training, set for September 2020. from Louisiana State University-Shreveport in 1991 7. https://cfnla.org/aces/. with a BS degree in psychology and received her JD degree from the University of Colorado in 1994. She is a Caddo Parish Juvenile Court Chief Judge David N. current member of the Louisiana State Bar Association’s Matlock was elected in 1994. He earned his BA degree at Children’s Law Committee and the House of Delegates. Louisiana State University-Shreveport and his JD degree She implemented the first Family Preservation Court in from Baylor School of Law. In his 26 years at the court, the state to assist parents with substance abuse prob- he has been instrumental in establishing the Trauma lems who have pending domestic violence, child sup- Competent Child In Need of Care program, Juvenile port and FINS cases in juvenile court. She also created Good Support Court, the Drug Court, Family Preservation Court, Domestic first specialty court in the state to assist non-custodial parents find employment. She Violence and Child Support Drug Court, Juvenile is the 2015 recipient of the Louisiana Outstanding Hearing Officer Award. (mper- Mental Health Court, Truancy Court, Sex Trafficking [email protected]; 1835 Spring St., Shreveport, LA 71101)

incentives to stay out of trouble. That’s and its individual employees. The em- succeed in life. I am overjoyed by giving why I always tell them, “You can be a ployees have opened up their own wal- back and helping someone. And it just rising star.” lets to help with incentives and been so makes an enormous difference. involved. The Caddo Parish Commission Journal: What kind of procedures do has been a source of funding. Volunteers Journal: Do you have any other com- you have for that? For Youth Justice are very involved. The ments about your experience at STAR Court? Judge Casey-Jones: You know, it’s District Attorney’s Office is a great- part Judge Casey-Jones: Juvenile court is hard to believe, but many of these kids ner, lots of resources and personnel. Then, not just for kids. It’s to bring families back have never once had any person in their there’s the Christ Center Church for work together, to give them all the tools they life tell them, “You’re pretty,” “I love you with girls. And too many individuals to need to build, or rebuild, their family unit. for who you are” or “I don’t want anything name. I would also mention Alpha Kappa Look, I am a parent, too. I can tell everyone out of you.” This is the first step. Then, we Alpha Sorority, an organization of which in my court, “There’s no parenting hand- use incentives. They can get a gift card to I have been a member for 20 years. They book. We’re all going to learn by doing, have their hair done or their nails. Some have really jumped in. And Jack and Jill of and we can all make mistakes.” But the of them would like to have a prom dress; America, an African-American organiza- message is, we are here to help. I’m going we’ve done that. We held a Christmas par- tion that has always helped mothers. You to give it everything I can, and so are our ty for them, and some of them had never might not have heard of them, but they are partners. This is a wonderful opportunity received a Christmas present before. It was important players. to pull these kids out of an awful situation. a revelation to see their eyes when they got three, four or five presents! Journal: From what you have seen, Journal: I’m enormously impressed what are the underlying causes of human with all the layers of support right inside Journal: Can you revoke their probation? trafficking? this building, and the strong networks you Judge Casey-Jones: Yes, that’s a last Judge Casey-Jones: Maybe not have developed. Thank you for taking time resort, and I hate to do it, but we can al- causes, but we always see two things: lack to talk with the Journal, and mostly for all ways send them to Juvenile Detention. of self-esteem and absence of stability in you’re doing to address trafficking and -de the home. These are latchkey kids. Their linquency. Journal: Has the program been suc- situation makes them very vulnerable. Judge Casey-Jones: You’re most wel- cessful? come. It’s been my pleasure. Judge Casey-Jones: Well, it’s so new, Journal: What have you learned from as of February 2020, we have had only one the STAR Court? Hal Odom, Jr. is a gradu- person go all the way through and graduate of Louisiana State Judge Casey-Jones: When I first University and LSU Paul ate. However, she is now doing okay, and started, I didn’t know the severity of the M. Hebert Law Center. it’s an encouraging model moving forward. trafficking issues. It’s shocking to me that He is a research attor- a parent or grandparent could do this to a ney for the Louisiana 2nd Circuit Court of Appeal in Journal: What community resources little girl. Through working with the girls, have partnered with the STAR Court? Shreveport and a member of helping them, seeing them smile, building the Louisiana Bar Journal’s Judge Casey-Jones: Oh, there are their self-esteem, I see they are learning for Editorial Board. (rhodom@ many. First, the Office of Juvenile Justice the first time that somebody wants them to la2nd.org; 430 Fannin St., Shreveport, LA 71101)

Louisiana Bar Journal October / November 2020 186 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 187 Vol. 68, No. 3 www.lsba.org Focus on Local Practice: What’s New at Juvenile Court for Caddo Parish By Hal Odom, Jr.

his time, we’re not talking about the First JDC courthouse. No, we’re talking about a separate, free-standing complex about one mile south of downtown Shreveport on Spring Street (La. Hwy. 1), just past a tall alluvial ridge. TAlthough the first Juvenile Court for Caddo Parish was established by the Legislature in 1922, the current, modern facility was built in 1990. And much of it is newer than that. The most striking and innovative new feature of the facility is the Calming Studio. This room, a former overflow courtroom, has been completely reconceived and remodeled as an area for children who may have experienced trauma. Inside, they are sheltered from witnesses and law enforcement. Beaming from the ceiling is an interactive floor projection which creates the impression of looking down into an aquarium. When children reach for a fish, the water splashes and the fish dart away! This effect is impressive, andit even seems to break through to children who are hardened by fairly graphic video games. There is also a sitting nook, infinity panels and a bubble tower. Members of Volunteers for Youth Justice may even stroll in carrying Sasha, the therapy dog. The day I visited, this caused a sensation. The Calming Studio cost about $100,000 and was designed by Sensory One in Canada and Mike Ayres Co. in the United Kingdom. Funding came from Caddo Parish Juvenile Services, Volunteers for The bubble column in the Calming Studio Youth Justice, the Caddo Parish Commission and from individual offers a whole spectrum of soothing donors. In light of the obvious benefit to highly vulnerable children, colors, all at the user’s command. this is money well spent. Photo by Hal Odom, Jr. For the basics: The building houses three courtrooms, the clerk’s office, probation services and a 24-bed detention center. An initia- tive, started in 2013, is to use detention only for violent crimes, like armed robbery, rape and murder, and for repeat offenders, but not for minor offenses like school fights and shoplifting. This has kept the center’s “occupancy” down to an average of 22 per night. Clay Walker, director of juvenile services, provided statistics that, since 2013, major crimes committed by juveniles have decreased 10% and minor crimes by 38%, and the recidivism rate (repeat offense within one year) is now 19%, down from 33% 15 years ago. These may be national trends, but Walker ascribed Caddo’s success to “our easy collaboration with the District Attorney, mayor, school board, LSU Medical Center and any other entities that are in a position to spot and prevent juvenile crime.” The court has exclusive original juvenile jurisdiction, hearing juvenile delinquency cases, Family in Need of Services (FINS) cases and Child in Need of Care (CINC) cases. It also exercises domestic violence jurisdiction if there is a child involved, and jurisdiction for child support and adoptions. Sasha, the emotional support puppy, and her handler, Lucinda Miles, pay regular visits to the Calming Studio. Photo by Hal Odom, Jr.

Louisiana Bar Journal October / November 2020 188 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 189 and Calcasieu. On the day I visited, a contingent from the 15th JDC (Lafayette Parish) was visiting to tour the facility, observe the organizational structure and hear from NGOs like Volunteers for Youth Justice, the Council on Alcoholism and Drug Abuse and Step Forward, all of which work closely with juvenile court programs. Ted Cox, the judicial administrator and hearing officer, and Clay Walker gave an overview of programs and services. The interaction with the Lafayette delegation showed that information is best exchanged both ways! Perhaps the biggest challenge facing the Juvenile Court was the passage of the Raise the Age Act. On March 1, 2019, this began channeling 17-year- olds charged with nonviolent delinquen- cies to juvenile court; on July 1, 2020, it incorporated all 17-year-olds arrested The floor projection in the Calming Studio is touch-sensitive and interactive. When a user reaches for a in Caddo Parish. Based on projections, fish, it briskly swims away. Photo by Hal Odom, Jr. this will add 300 cases to Juvenile Court in the first year. The court has been There are also nine specialty courts practice, the judges and court personnel working with law enforcement and the — Juvenile Drug Court, two Family try to address the underlying problem. District Attorney’s Office to increase Preservation Courts, Domestic Violence Once again, substance abuse treatment diversion programs and reduce proba- Court, Juvenile Mental Health Court, is key. For more information about trau- tion caseloads so these new juvenile of- Truancy Court, Juvenile Traffic Court, ma-informed practice, read the article fenders can be absorbed at minimal cost. Good Support Program and Succeeding by Judge David N. Matlock and court Additional facilities — and taxes — Through Achievement and Resilience administrator A. Michelle Perkins in may be inevitable, but the Legislature (STAR) Court for sex trafficking. For this issue of Louisiana Bar Journal (be- estimates that treating 17-year-olds as more details about the STAR Court, ginning on page 182). juveniles will yield a 34% decrease in read the interview with Judge Ree J. Not everything here is “new and recidivism. Casey-Jones in this issue of Louisiana improved.” For example, the court has The Juvenile Court for Caddo Parish Bar Journal (page 186). All in all, it’s a printed a handbook for foster parents is a busy place. But innovation tempered very busy place. and custodians in CINC cases. While with tradition is the court’s approach to The Family Preservation Courts are this paper-and-ink artifact might seem meet new challenges and serve the chil- for adults. Family Preservation Court I defiantly low-tech, it gives volunteers dren who must enter its doors. is essentially an adult drug court. “In the an outline of the judicial process, what average CINC case,” Walker said, “the to expect, definitions of legal terms Hal Odom, Jr. is a gradu- claim is abuse and neglect, but the prob- and a list of important phone numbers. ate of Louisiana State lem is substance abuse. Our approach is I have seen prospective foster parents University and LSU Paul M. Hebert Law Center. to work with the parents and try to get staring as intently at this book as they He is a research attorney them sober and employed. If they man- ever would a smartphone. for the Louisiana 2nd age this for one year, they graduate from Caddo Juvenile is dedicated to col- Circuit Court of Appeal the program, and it’s much easier for laborating with local agencies, govern- in Shreveport and a member of the Louisiana them to get their kids back.” mental bodies and other entities to make Bar Journal’s Editorial Family Preservation Court II is for the system work. The effort, however, Board. (rhodom@la2nd. other cases like child support and de- is statewide, as Caddo meets quarter- org; 430 Fannin St., linquency. Keeping with the overarch- ly with the juvenile court officials of Shreveport, LA 71101) ing philosophy of trauma-informed Orleans, Jefferson, East Baton Rouge

Louisiana Bar Journal October / November 2020 188 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 189 Vol. 68, No. 3 www.lsba.org LAJ_LastChance_alaCarte2020_LSBAadRevised_Layout 1 8/25/2020 10:59 AM Page 1

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Hall Beauregard, Calcasieu, Cameron, Iberia, Carte House of Delegates. of Shreveport for 2021-22 YLD secretary. Jefferson Davis, St. Martin, St. Mary and December 10-11, 2020 December 29-30, 2020 Deadline for return of nominations Current Secretary Danielle L. Borel of Vermilion, one member; District 3C, par- by petition and qualification forms is Baton Rouge will automatically assume ishes of Allen, Avoyelles, Evangeline, Monday, Oct. 19. First election bal- the post of 2021-22 YLD chair-elect. Grant, LaSalle, Natchitoches, Rapides, lots will be available to members on Other positions to be filled in the Sabine, St. Landry and Vernon, one mem- Monday, Nov. 16. 2020-21 elections are: ber; District 3D, parishes of Bossier and Daniel A. Cavell of Thibodaux and Board of Governors (three-year Caddo, one member; and District 3E, par- C.A. (Hap) Martin III of Monroe have terms beginning at the adjournment of ishes of Bienville, Caldwell, Catahoula, been nominated for 2021-22 LSBA the 2021 LSBA Annual Meeting and C laiborne, Concordia, DeSoto, East president-elect and 2021-23 LSBA sec- ending at the adjournment of the 2024 Carroll, Franklin, Jackson, Lincoln, retary, respectively. The president-elect LSBA Annual Meeting) — one member Madison, Morehouse, Ouachita, Red will automatically assume the presiden- each from the Sixth, Seventh and Eighth River, Richland, Tensas, Union, Webster, cy in 2022-23. Board Districts. West Carroll and Winn, one member. According to the president-elect LSBA House of Delegates (two-year Young Lawyers Division. 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Petitions for nom- courses from which to choose, it’s no wonder seminar is the most convenient way to Jefferson, Lafourche, Livingston, Pointe Forty-Second Judicial Districts, plus one ination must be signed by 15 members of that LAJ’s Last Chance CLE Conference is squeeze in those last few remaining Coupee, St. Charles, St. Helena, St. additional delegate for every additional the Young Lawyers Division. Also to be James, St. John the Baptist, Tangipahoa, district judge in each district. elected, one representative each from the Louisiana’s ultimate CLE experience. CLE requirements for 2020 or to get a jump Terrebonne, Washington, West Baton Nominating Committee (15 mem- First, Second, Fourth, Fifth, Sixth and You will be impressed with the highly start on 2021. 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Louisiana Bar Journal October / November 2020 Vol. 68, No. 3 www.lsba.org 190 442 Europe Street • Baton Rouge, Louisiana 70802-6406 • 225-383-5554 • www.lafj.org • [email protected] LAJ_LastChance_alaCarte2020_LSBAadRevised_Layout 1 8/25/2020 10:59 AM Page 1

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Louisiana Bar Journal October / November 2020 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 Vol. 68, No. 3 www.lsba.org 190 442 Europe Street • Baton Rouge, Louisiana 70802-6406191 • 225-383-5554 • www.lafj.org • [email protected] LASC Order: Board-Certified Specialists LBLS Recertification May Earn Up to 18 hours of “Self-Study” Applications in the CLE Credits in 2020 Mail On Sept. 1, 2020, considering the of approved specialization “self-study” The Louisiana Board of Legal continuing need to take measures to stop credits on or before Dec. 31, 2020. LBLS Specialization (LBLS) has mailed recer- the spread of COVID-19, the Louisiana Appellate Practice specialists, Family Law tification applications to those special- Supreme Court increased the limitation on specialists and Health Law specialists may ists whose certification is due to expire “self-study” credits to a maximum of 18 earn up to 15 hours of approved specializa- on Dec. 31, 2020. The completed ap- hours for board-certified specialists. The tion “self-study” credits on or before Dec. plication, together with a check pay- Court increased the “self-study” credits to 31, 2020. LBLS Business Bankruptcy able to the “Louisiana Board of Legal assist board-certified specialists in - com Law specialists and Consumer Bankruptcy Specialization” for $100, should be for- pleting their certification requirements Law specialists must satisfy the continu- warded to the LBLS office c/o Mary Ann for the approved fields of law set forth in ing legal education requirements of the Wegmann, LBLS Specialization Director, the Louisiana State Bar Association Plan American Board of Certification. 601 St. Charles Ave., New Orleans, LA of Legal Specialization. For more information, contact 70130, no later than Monday, Nov. 2, In compliance with the Court or- Specialization Director Mary Ann 2020, to avoid penalties. der, the Louisiana Board of Legal Wegmann at (504)619-0128, 1-800-421- For any questions, contact Wegmann Specialization (LBLS) Estate Planning 5722, or email maryann.wegmann@lsba. at (504)619-0128 or email maryann.we- and Administration specialists and Tax org. For more information on specializa- [email protected]. Law specialists may earn up to 18 hours tion, go to: www.lsba.org/Specialization/.

La. Board of Legal Specialization Accepting Requests for Applications The Louisiana Board of Legal knowledge, skills and proficiency in the ► Appellate Practice — 15 hours of Specialization (LBLS) is accepting ap- area for which certification is sought and appellate practice. plications for certification in five areas five favorable references. Peer review ► Estate Planning and — appellate practice, estate planning shall be used to determine that an appli- Administration — 18 hours of estate and administration, family law, health cant has achieved recognition as having planning and administration. law and tax law — from Nov. 1, 2020, a level of competence indicating profi- ► Family Law — 15 hours of family through March 1, 2021. cient performance handling the usual law. In accordance with the Plan of Legal matters in the specialty field. Refer to ► Health Law — 15 hours of health Specialization, a Louisiana State Bar the LBLS standards for the applicable law. Association member in good standing specialty for a detailed description of ► Tax Law — 18 hours of tax law. who has been engaged in the practice of the requirements for application: www. Anyone interested in applying for law on a full-time basis for a minimum lsba.org/documents/Specialization/ certification should contact LBLS of five years may apply for certification. LSBAPlanofLegalspecialization2017. Specialization Director Mary Ann Further requirements are that each year pdf. Wegmann, email maryann.wegmann@ a minimum percentage of the attorney’s In addition to the above, applicants lsba.org, or call (504)619-0128. For practice must be devoted to the area of must meet a minimum CLE requirement more information, go to the LBLS web- certification sought, passing a written for the year in which application is made site: www.lsba.org/specialization/. examination to demonstrate sufficient and the examination is administered:

House Resolution Deadline is Dec. 16 for Midyear Meeting The Louisiana State Bar Association’s will meet on Jan. 23, 2021.) posed to be considered at the meeting (LSBA) Midyear Meeting is scheduled for Resolutions by House members and must be received on or before Dec. Thursday through Saturday, Jan. 21-23, committee and section chairs should 16. Resolutions must be signed by the 2021, at the Renaissance Hotel in Baton be mailed to LSBA Secretary Patrick author. Also, copies of all resolutions Rouge. The deadline for submitting reso- A. Talley, Jr., c/o Louisiana Bar Center, should be emailed (in MS Word format) lutions for the House of Delegates meet- 601 St. Charles Ave., New Orleans, to LSBA Executive Assistant Jen France ing is Wednesday, Dec. 16. (The House LA 70130-3404. All resolutions pro- at [email protected].

Louisiana Bar Journal October / November 2020 192 Vol. 68, No. 3 www.lsba.org LSBA to Recognize Pro Bono Achievements at Virtual Event in October Several Louisiana State Bar Association. Awards: Leah J. Glass, Belle Chasse; Association (LSBA) legal professionals ► 2020 LSBA President’s Access Charles R. Kelly Community Center, will be recognized for their outstanding to Justice Award: Debra (Debbie) Baton Rouge; Steven James Matt (post- pro bono accomplishments in a virtual Smith served for 20 years as the execu- humously), Lafayette; Jean Morgan event on Thursday, Oct. 29. tive director of the Central Louisiana Meaux, Covington; and Richard A. Each year, the LSBA and the Pro Bono Project. Webster, New Orleans. Louisiana Supreme Court recognize ► 2020 Children’s Law Award: ► 2020 Law Student Pro Bono the work of attorney volunteers, public Caddo Parish Juvenile Court and Otha Awards: Samantha M. Kennedy, interest professionals, law students and (Curtis) Nelson, Jr., deputy judicial ad- Louisiana State University Paul community organizations. Because the ministrator for the Louisiana Supreme M. Hebert Law Center; Lauren T. coronavirus pandemic prevented the Court-Division of Children and Kirichkow, Loyola University College ceremony from taking place in its usual Families. of Law; Wynnifred L. Sanders, Southern setting in May at the Supreme Court, the ► 2020 Pro Bono Publico Awards: University Law Center; and Caroline V. event will proceed virtually on Oct. 29. Matthew R. Slaughter, New Orleans; Green, Tulane University Law School. LSBA President Alainna R. Mire will Lillian M. Grappe, New Orleans; ► 2020 LA.FreeLegalAnswers. recognize the award winners. Richard Gary Higgins, Jr., Covington; org Award: Benjamin H. Banta, New ► 2020 David A. Hamilton David M. Kaufman, Lafayette; Jesse Orleans. Lifetime Achievement Award: James P. Lagarde, Hammond; Emily M. ► 2020 Century Club Awards: J. Zito, a sole practitioner from Baton Latiolais, Lafayette; Jennifer G. Dana Dallas Atchison, New Orleans; Rouge. Prescott, Prairieville; Cynthia N. Reed, W. Scott Brown, New Orleans; Jonah ► 2020 Career Public Interest Baton Rouge; and James A. Word II, A. Freedman, New Orleans; Deanna J. Award: Ann K. Gregorie, execu- Baton Rouge. Hamilton-Lamz, Slidell; and Mark C. tive director of the Baton Rouge Bar ► 2020 Friend of Pro Bono Surprenant, New Orleans. LAWYERS andIN LIBRARIES October 26-31, 2020 For the past 6 years, the Louisiana State Bar Association and the Louisiana Library Association have hosted “Lawyers in Libraries” events during National Celebrate Pro Bono Week. This year, we hope you will join “Lawyers AND Libraries” to provide virtual access to individuals who may be in even more need of legal direction as a result of the current health crisis. We need volunteers who will conduct educational conversations on relevant legal topics or who will virtually answer questions for participants across Louisiana. Make a difference and ensure justice: volunteer virtually! To participate in a virtual Lawyers in AND Libraries event, sign up at https://lil.ivolunteer.com/2020

Louisiana Bar Journal October / November 2020 192 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 193 Vol. 68, No. 3 www.lsba.org PRACTICEManagement By Andrea Brewington Owen PRACTICE PIVOTS IN A PANDEMIC

his past spring, the COVID-19 Professional Conduct states that “a law- type of case. Don’t underestimate net- pandemic response by our yer shall provide competent representa- working. Find colleagues who practice government brought the tion to a client. Competent representa- in the area and pick their brains. Fellow economy to a standstill and tion requires the legal knowledge, skill, members of the Bar are often more than Twill continue to cause far-reaching con- thoroughness and preparation reason- willing to assist. sequences beyond the realm of public ably necessary for the representation.” Lastly, with a shift in practice area, health. Economists predict that the sud- The Comments to ABA Model Rule 1.1 firms must not forget to review their den halt to the world’s economy will state that “relevant factors include the professional liability policy application cause market disruptions for years. The relative complexity and specialized na- at renewal and discuss the coverage it United States Bureau of Labor Statistics ture of the matter, the lawyer’s general provides with the broker or agent. Areas reported that the legal market’s unem- experience, the lawyer’s training and of practice are disclosed to the carrier in ployment rate rose along with all other experience in the field in question, the the application for insurance and again sectors, proving that the legal market is preparation and study the lawyer is able at policy renewals and are used to as- no more immune to the current econom- to give the matter and whether it is fea- sist the underwriters in determining the ic downturn than other industries. Court sible to refer the matter to, or associate malpractice premium and the lawyer’s closures have also had a direct impact or consult with, a lawyer of established premium. Make sure that the areas of on some. Firms cut staff, furloughed competence in the field in question.” practice disclosed align with the current attorneys and cut pay in order to finan- Lawyers can and do provide competent areas of practice, especially if entering a cially survive. representation in new areas of practice higher risk area of practice as different Some law firms fare better than others but must be careful to plan and prepare areas of practice have different risk fac- during a recession due to the demand of for the transition. Model Rule 1.1 goes tors in setting rates. their selected area of practice. To those on to state that a lawyer does not need to The practice of law in Louisiana that practice in areas of current low cli- have special training or prior experience is no stranger to the ebbs and flows of ent demand, law firms and solo lawyers to handle unfamiliar legal problems but the market due to recessions and natu- may react by diversifying their practice needs to become competent by analyz- ral disasters. Resilient lawyers adapt to to include a new practice area that is in ing the laws and legal precedents. market fluctuations just like the many higher demand. Sometimes this may be Lack of competence in a new area before them by approaching any chang- a completely different area of the law. of practice can be the subject of comes to their law practice with thoughtful Healthcare and employment law have plaints, disciplinary proceedings and consideration of the competence rule. remained steady since the COVID-19 malpractice claims. Legal malpractice pandemic began. Many businesses claims surged after the recession of Andrea Brewington are seeking out attorneys with experi- 2008 and the same could happen as a re- Owen is a loss prevention counsel for the Louisiana ence in business interruption insurance. sult of the current economic downturn. State Bar Association Predictably, there will soon be a de- How do lawyers comply with their ethi- and is employed by mand for lawyers with bankruptcy and cal obligations of competence in a new Gilsbar, L.L.C., in restructuring experience. Transactional area and avoid the risks? Read the law, Covington. She received a BA degree in 2002 from attorneys who work with contracts will the legislative history and regulations Auburn University and stay in demand as clients navigate con- flowing from that law. Read case law her JD degree in 2005 tract breach disputes that arose because and any available practice guides on the from Loyola University of the COVID-19 pandemic shutdown. subject matter. Scope out and attend rel- New Orleans College of Law. She worked as an assistant district attorney When the Governor’s ban on evictions evant continuing legal education on that in Alabama’s 28th Judicial Circuit in Baldwin lifted, the area of landlord-tenant law subject matter. Gain valuable hands-on County, Ala. She also worked as the director of demand rose. experience through pro bono work. The legal programs for the South Alabama Volunteer Lawyers need to be aware of the Louisiana State Bar Association and Lawyers Program. She has been a member of the Alabama State Bar Association since 2005 and ethical duties that are implicated if they many nonprofit legal aid organizations was admitted to the Louisiana Bar in 2019. Email choose to pursue a new area of prac- can match lawyers with mentors to of- her at [email protected]. tice. Rule 1.1 of the Louisiana Rules of fer guidance in handling an unfamiliar

Louisiana Bar Journal October / November 2020 194 Vol. 68, No. 3 www.lsba.org Procrastination, Inability to open mail Feelings of file stagnation & or answer phones, bafflement, confusion, neglect, inability to “emotional paralysis” loneliness, isolation, meet professional or desolation and being personal obligations overwhelmed or deadlines Drug or alcohol Persistent abuse Changes apathy or in energy, “empty” feeling eating or sleep habits Loss of interest or pleasure, dropping Trouble hobbies concentrating or remembering things Guilt, feelings of hopelessness, helplessness, worthlessness, or A Johns Hopkins study lowfound self-esteem that lawyers suffer from depression at a rate 3.6 times higher than the general employed population.

We Can Help. The signs of depression aren’t easy to read. No one is completely immune. If you or a colleague experiences signs of depression, please call.

Your call is absolutely confidential as a matter of law. Toll-free (866)354-9334 • Email: [email protected] • www.louisianajlap.com

Louisiana Bar Journal Vol. 61, No. 5 195 Louisiana Bar Journal October / November 2020 194 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 195 Vol. 68, No. 3 www.lsba.org FOCUSDiversity ON COMMITTEE WELCOME... CLE EVENT

LSBA Welcomes 2020-21 Committee on Diversity in the Legal Profession he Louisiana State Bar Christine T.C. Bruneau Dean David. D Meyer Association (LSBA) welcomes Camille R. Bryant Evian Mugrabi the 2020-21 members of the J. Dalton Courson, Co-Chair Jared E.A. Nelson Committee on Diversity in the Sandra Diggs-Miller Barbara B. Ormsby TLegal Profession. John C. Enochs Courtney H. Payton The mission of the committee is to ac- Demarcus J. Gordon Ezra Pettis, Jr. cess the level of racial, ethnic, national Lezlie A. Griffin Chancellor John K. Pierre Scherri N. Guidry Tricia R. Pierre, Staff Liaison origin, religion, gender, age, sexual ori- Senae D. Hall Deidre D. Robert entation and disability diversity within Joseph H. (Jody) Hart IV Andrea L. Rubin all components of the legal profession in Justin A. Jack Rachel M. Scarafia Louisiana; to identify barriers to the attain- Mckinley B. James, Jr. Ronald J. Sholes, Jr. ment of full and meaningful representation Hon. Bernette Joshua Johnson Chantell M. Smith and participation in the legal profession Adria N. Kimbrough Justin W. Stephens by persons of diverse backgrounds; and to Arlene D. Knighten Hon. Karelia R. Stewart propose programs and methods by which Jennifer G. Lampton Heidi H. Thompson the LSBA can most effectively work to Dean Madeleine M. Landrieu Hon. Max N. Tobias, Jr. (retired) remove the barriers and achieve greater Jeffrey M. Landry Dan L. Tran diversity. Susan R. Laporte James T. Tran Committee members include: Quintillis K. Lawrence Joseph D. Tran Denia S. Aiyegbusi, Co-Chair Kristen A. Lee Monica M. Vela-Vick Kenneth R. Barnes, Jr. Wayne J. Lee Michael B. Victorian Tiara S. Barnes Luis A. Leitzelar Eda A. Walker Troy N. Bell Dean Lee Ann W. Lockridge Angela White-Bazile Hon. Roland L. Belsome, Jr. Misha M. Logan Sharonda R. Williams Katia D. Bowman Maria P. Lopez John A. Womble, Co-Chair William C. Bradford, Jr. Patrick J. Lorio Christie C. Wood Dominique R. Bright-Wheeler Sowmya Mandava Micah C. Zeno George W. Britton III Janell M. McFarland-Forges THE RIGHT TO

VOTEOCT. IN 27, 2020AMERICA • NOON This CLE seminar highlights the history of Voting in Louisiana and the United States. 2020 is the 150th Anniversary of the 15th Amendment, the 100th Anniversary of the 19th Amendment, and the 55th Anniversary of the 1965 Voting Rights Act. Speaker Stephanie A. Finley, former U.S. Attorney, Western District of Louisiana, will examine important voting rights issues in our history, state, and relevant issues of the day, as well as Department of Justice, Supreme Court, and state rulings relating to Voting in America. For more information, visit www.lsba.org/diversity.

Louisiana Bar Journal October / November 2020 196 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 196 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 197 Vol. 68, No. 3 www.lsba.org Crossword PUZZLE By Hal Odom, Jr. THE INNER CHILD

1 2 3 4 5 6 7 ACROSS DOWN

1 Female parent, informally (3) 1 Deg. often required for a CEO (3) 3 Action to establish who’s 2 Frequent cry from a younger 8 9 the dad (9) sibiling (2, 3!) 8 Like the Tea Party (7) 3 Male parents (7) 9 One under the age of 18 (5) 4 Roman “law” (3) 10 “___ Were the Days” (5) 5 Place d’___, French name for 10 11 11 It’s said to make the heart Jackson Square (5) grow fonder (7) 6 Usually nine to a baseball game (7) 12 A small amount or margin (3) 7 Rooms for newborns (9) 12 13 14 15 16 14 Can you ___ liar? (4, 1) 10 Legal responsibility for a child after 16 Take to the slopes(3) death or divorce of the parents (9) 17 Thing to read to the unruly (4, 3) 11 Another way to become a parent (5) 19 Notions; suggestions (5) 13 One who has quit school (7) 17 18 19 20 21 It was detonated at Bikini 15 Court-ordered support (7) Atoll (1-4) 18 Dark or brownish yellow (5) 22 Let kids out of the car, e.g., 20 Modern format for novels (5) at school; go to sleep (4, 3) 22 Major risk of drunk driving (3) 21 22 23 24 Another word for status at 23 Passing craze (3) issue in 3 Across (9) 25 Offspring, informally (3)

24 25 Answers on page 231.

SOLACE: Support of Lawyers/Legal Personnel — All Concern Encouraged The Louisiana State Bar Association/Louisiana Bar Foundation’s Community Action Committee supports the SOLACE program. Through the program, the state’s legal community is able to reach out in small, but meaningful and compassionate ways to judges, lawyers, court personnel, paralegals, legal secretaries and their families who experience a death or catastrophic illness, sickness or injury, or other catastrophic event. For assistance, contact a coordinator.

Area Coordinator Contact Info Area Coordinator Contact Info Alexandria/Sunset Area Richard J. Arsenault (318)487-9874 Monroe Area John C. Roa (318)387-2422 [email protected] (318)452-5700 [email protected] Baton Rouge Area Ann K. Gregorie (225)214-5563 Natchitoches Area Peyton Cunningham, Jr. (318)352-6314 [email protected] [email protected] Cell (318)332-7294 Covington/ Suzanne E. Bayle (504)524-3781 Mandeville Area [email protected] New Orleans Area Helena N. Henderson (504)525-7453 Denham Springs Area Mary E. Heck Barrios (225)664-9508 [email protected] [email protected] River Parishes Area Judge Jude G. Gravois (225)265-3923 Houma/Thibodaux Area Danna Schwab (985)868-1342 [email protected] (225)265-9828 [email protected] Cell (225)270-7705 Jefferson Parish Area Pat M. Franz (504)455-1986 [email protected] Shreveport Area Dana M. Southern (318)222-3643 Lafayette Area Pam Landaiche (337)237-4700 [email protected] [email protected] Lake Charles Area Melissa A. St. Mary (337)942-1900 [email protected] For more information, go to: www.lsba.org/goto/solace.

Louisiana Bar Journal October / November 2020 198 Vol. 68, No. 3 www.lsba.org DISCIPLINE Reports REPORTING DATE 8/3/20

REPORT BY DISCIPLINARY COUNSEL Public matters are reported to protect the public, inform the profession and deter misconduct. Reporting date Aug. 3, 2020. Decisions William Christopher Beary, New resignation from the practice of law in Orleans, (2020-B-00451) By consent, sus- lieu of discipline ordered by the Court Caleb Kent Aguillard, Eunice, (2017- pended from the practice of law for one on April 27, 2020. JUDGMENT FINAL B-2155) Suspended from the practice of year and one day, retroactive to Feb. 25, and EFFECTIVE on April 27, 2020. Gist: law for one year and one day, fully de- 2019, the date of his interim suspension, Failure to provide competent representa- ferred, by order of the Louisiana Supreme ordered by the Court on May 14, 2020. tion; scope of representation; lack of dili- Court on April 3, 2020. JUDGMENT JUDGMENT FINAL and EFFECTIVE gence; failure to communicate with client; FINAL and EFFECTIVE on June 17, on May 14, 2020. Gist: Committing a failure to safekeep property of clients or 2020. Gist: Respondent admitted he mis- criminal act reflecting adversely on the third persons; knowingly making a false used his client trust account, neglected his lawyer’s honesty, trustworthiness or fit- statement of material fact; failure to coop- clients’ legal matters, failed to communi- ness as a lawyer; and violating the Rules of erate in a disciplinary investigation; vio- cate with his clients, and failed to refund Professional Conduct. lating the Rules of Professional Conduct; approximately $15,000 in unearned attor- P. Michael Doherty Breeden III, New ney’s fees to his clients. Orleans, (2020-OB-00315) Permanent Continued next page

Legal & Judicial Ethics

William “Billy” M. Ross has over 15 years of experience defending lawyers and judges in disciplinary matters, advising lawyers on their ethical duties, and providing representation in legal fee disputes and breakups of law firms. He is committed to advancing the legal profession through his work for clients, involvement with the LSBA, and participation in presentations on ethics and professional responsibility. William M. Ross [email protected] 909 Poydras Street, Suite 2500 New Orleans, Louisiana 70112 (504) 523-1580 www.stanleyreuter.com

Louisiana Bar Journal October / November 2020 198 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 199 Vol. 68, No. 3 www.lsba.org engaging in conduct involving dishonesty, one year and one day by order of the by the District Court, instead advised her fraud, deceit or misrepresentation; and en- Louisiana Supreme Court on July 2, 2020. that the matter was pending. gaging in conduct prejudicial to the admin- JUDGMENT FINAL and EFFECTIVE Dina Fae Domangue, Columbia, (17- istration of justice. on July 2, 2020. Gist: Commission of a DB-083) Public reprimand by order Raymond Charles Burkart, criminal act (DWI, reckless operation, of the Louisiana Attorney Disciplinary Covington, (2020-B-00243) Permanently open container and resisting an officer). Board. ORDER FINAL and EFFECTIVE disbarred from the practice of law by Akello Patrice Dangerfield, New on June 17, 2020. Gist: Respondent never order of the Louisiana Supreme Court Orleans, (2020-B-0116) Permanently dis- met in person with her client and the only on June 12, 2020. ORDER FINAL and barred by order of the Louisiana Supreme communications with her client were by EFFECTIVE on July 6, 2020. Gist: Court on May 14, 2020. JUDGMENT phone or text message; respondent failed Conduct involving knowingly and inten- FINAL and EFFECTIVE on July 7, 2020. to promptly return a client file; and respon- tionally violating duties owed to his cli- Gist: Respondent violated duties owed to dent failed to cooperate with the Office of ents, the legal profession and the public, her client, the public, the legal system and Disciplinary Counsel in its investigation. causing actual and potential harm. the legal profession, causing actual harm. James A. Dukes, Springfield, (2020- P. David Carollo, Slidell, (2020-B- Felix Anthony DeJean IV, Baton OB-0597) Permanently resigned from 00450) Suspended from the practice of Rouge, (2020-OB-00457) Reinstated the practice of law in lieu of discipline law for a period of one year and one day, to the practice of law by order of the ordered by the Court on July 2, 2020. deferred in its entirety, subject to suc- Louisiana Supreme Court on May 26, JUDGMENT FINAL and EFFECTIVE cessful completion of a two-year period 2020. ORDER FINAL and EFFECTIVE on July 2, 2020. of probation, by order of the Louisiana on May 26, 2020. Hilliard Charles Fazande III, New Supreme Court on May 14, 2020. Charles L. Dirks III, Baton Rouge, Orleans, (2019-B-01918) Disbarred from JUDGMENT FINAL and EFFECTIVE (2020-B-0604) Consented to an the practice of law, retroactive to May on May 14, 2020. Gist: Mismanagement 18-month suspension by order of the 9, 2018, the date of his interim suspen- of client trust account. Louisiana Supreme Court on July 2, 2020. sion, by order of the Louisiana Supreme Susan Heard Crawford, Baton JUDGMENT FINAL and EFFECTIVE Court on Feb. 26, 2020. ORDER FINAL Rouge, (2020-B-0691) By consent, sus- on July 2, 2020. Gist: Respondent failed to and EFFECTIVE on March 12, 2020. pended from the practice of law for advise his client of the judgment rendered Gist: Neglected legal matters; failed to communicate with clients; failed to refund unearned fees and unused costs; practiced law while ineligible; pleaded guilty to fed- ATTORNEY & JUDICIAL DISCIPLINARY MATTERS eral bank theft charges; and failed to coop-

erate with ODC in its investigation. Don’t wait too late to end up on this page. George A. Flournoy, Alexandria,

(2019-B-1479) Suspended from the Call us for a free consultation: (504) 836-8000 practice of law for one year, with all but 30 days deferred, followed by one year of unsupervised probation, by order of the Louisiana Supreme Court on April 3, 2020. JUDGMENT FINAL and EFFECTIVE on June 16, 2020. Gist: Flournoy directed his secretary to improperly notarize a document and disobeyed the orders of a trial court. Joe’l Murph Freeman, Baton Rouge, (2020-B-0482) Public reprimand by Bobby J. Delise Jeannette M. Delise order of the Louisiana Supreme Court on July 2, 2020. JUDGMENT FINAL and EFFECTIVE on July 2, 2020. Gist: DELISE & HALL Commission of a criminal act (possession Attorneys at Law of marijuana). Laura Blair Naquin Green, for- 5190 Canal Blvd., Ste. 103 New Orleans, LA 70124 merly of Mandeville, (2020-OB-0825) (504) 836-8000 www.dahlaw.com Reinstated to active status subject to conditions by order of the Louisiana Supreme Court on July 8, 2020. ORDER FINAL and EFFECTIVE on July 8, 2020. She may now practice law in the state of

Louisiana Bar Journal October / November 2020 Vol. 68, No. 3 www.lsba.org 200

Louisiana. day, fully deferred, subject to a two- considered should respondent apply for Ronald David Harvey, Springhill, year period of probation, by order of the reinstatement from his 2020 revocation, (2020-B-0536) Consented to a six-month Louisiana Supreme Court. JUDGMENT making his previously deferred suspen- suspension from the practice of law by FINAL and EFFECTIVE on June 12, sion of one year and one day executory, order of the Louisiana Supreme Court on 2020. Gist: Criminal conduct (DWI). by order of the Louisiana Supreme Court June 22, 2020. JUDGMENT FINAL and Harold Louis Lee, Alexandria, (2020- on June 22, 2020. JUDGMENT FINAL EFFECTIVE on June 22, 2020. This peri- OB-472) Permanently resigned from and EFFECTIVE on June 22, 2020. Gist: od of suspension shall run consecutively to the practice of law in lieu of discipline Respondent has been adjudged guilty of the suspension imposed in In Re: Harvey, ordered by the Court on June 3, 2020. additional violations which warrant disci- 2019-01829 (La. 2/18/20), 289 So.3d JUDGMENT FINAL and EFFECTIVE pline and which may be considered in the 1000. Gist: Respondent neglected a legal on June 3, 2020. event he applies for reinstatement from his matter, failed to communicate with a client Otha Curtis Nelson, Sr., Baton Rouge, 2020 revocation, making previously de- and failed to promptly refund an unearned (2020-B-0140) Suspended from the ferred suspension of one year and one day fee. Respondent then failed to cooperate practice of law for one year and one day executory. with the ODC in its investigation of the by order of the Louisiana Supreme Court Stephen Michael Smith, New complaint filed against him. on May 1, 2020. JUDGMENT FINAL Orleans, (2020-B-0578) Consented to Bryan J. Haydel, Jr., Baton Rouge, and EFFECTIVE on June 17, 2020. Gist: suspension of one year, with all but 90 (2020-B-0728) Interimly suspended Respondent repeatedly filed frivolous mo- days deferred, followed by a one-year from the practice of law by order of the tions to recuse judges; neglected a legal period of probation with conditions, Louisiana Supreme Court on July 2, 2020. matter; and failed to communicate with a by order of the Louisiana Supreme Court ORDER FINAL and EFFECTIVE on July client. on July 2, 2020. JUDGMENT FINAL 2, 2020. Haydel may not practice law in Lucretia Patrice Pecantte, New and EFFECTIVE on July 2, 2020. Gist: Louisiana until further orders of the Court. Iberia, (2020-OB-00454) Reinstated to Respondent negligently facilitated the un- Darrell Keith Hickman, Alexandria, the practice of law, subject to a three- authorized practice of law and improperly (2020-B-00292) Suspended from the year period of probation, by order of shared fees with non-lawyers; negligently practice of law for a period of one year the Louisiana Supreme Court on May 26, handled his client trust account by failing and one day, with all but three months 2020. ORDER FINAL and EFFECTIVE to maintain complete records and quarterly deferred, subject to probation, by order on May 26, 2020. reconciliations, disbursing funds in round of the Louisiana Supreme Court on June 3, Roy Joseph Richard, Jr., Sunset, numbers and failing to withdraw fees as 2020. ORDER FINAL and EFFECTIVE on (2019-B-1747) Permanently disbarred earned; and negligently failed to provide a July 2, 2020. Gist: Failure to act with rea- by order of the Louisiana Supreme Court client with a prompt accounting of client sonable diligence and promptness; failure to on March 16, 2020. JUDGMENT FINAL funds held in trust. communicate; engaging in conduct involv- and EFFECTIVE on June 17, 2020. Gist: Kemic Alan Smothers, New Orleans, ing dishonesty, fraud, deceit or misrepresen- Respondent neglected legal matters; failed (2020-B-0244) Suspended from the prac- tation; and violating or attempting to violate to communicate with clients; failed to re- tice of law for six months, with all but 30 the Rules of Professional Conduct. fund unearned fees; practiced law while days deferred, following the active por- Mary Lee Holmes, Petal, MS, (2020- ineligible to do so; and failed to cooperate tion of suspension, respondent shall be B-606) Consented to a public reprimand with the Office of Disciplinary Counsel in placed on probation for a period of two by order of the Louisiana Supreme Court its investigations. years, by order of the Louisiana Supreme on July 2, 2020. JUDGMENT FINAL Jerry L. Settle, New Orleans, (2020- Court on June 22, 2020. JUDGMENT and EFFECTIVE on July 2, 2020. Gist: B-0531) Additional misconduct to be FINAL and EFFECTIVE on July 7, 2020. Respondent assumed the representation of Continued next page a criminal defendant in Louisiana and ap- peared on his behalf in a Louisiana court without first seekingpro hac vice admission. Christovich & Kearney, llp Kirby Dale Kelly, Shreveport, (2020- attorneys at law B-00118) Permanently disbarred by order of the Louisiana Supreme Court Defense of Ethics Complaints and Charges on June 3, 2020. JUDGMENT FINAL and EFFECTIVE on July 7, 2020. Gist: E. Phelps Gay Kevin R. Tully Conversion of client and third-party funds; failure to supervise subordinate attorneys H. Carter Marshall and non-lawyer staff; and failure to cooperate with ODC in its investigations. (504)561-5700 Ella D. Kliebert, Houma, (2020-B- 0514) On consent, suspended from the 601 Poydras Street, Suite 2300 practice of law for one year and one New Orleans, LA 70130

Louisiana Bar Journal October / November 2020 200 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 201 Vol. 68, No. 3 www.lsba.org Gist: Respondent practiced law while in- 1895) Public reprimand by order of on June 12, 2020. JUDGMENT FINAL eligible to do so; failed to comply with the the Louisiana Supreme Court on March and EFFECTIVE on June 12, 2020. Gist: minimum requirements of continuing legal 9, 2020. JUDGMENT FINAL and Respondent violated duties owed to her education; and failed to comply with all re- EFFECTIVE on June 17, 2020. Gist: clients by failing to promptly remit funds quirements of the Court’s rules regarding Respondent engaged in an inappropriate to clients and third parties and allowed her annual registration. and unprofessional verbal exchange with attorney’s fees to remain in her trust ac- Francis Spagnoletti, Houston, TX, opposing counsel during an appearance count. (2020-B-0712) Consent discipline; Mr. before a judge in open court. Tyrone F. Watkins, Gretna, (2020- Spagnoletti is not allowed to seek pro Alphonse M. Thompson, Jr., New B-0206) Probation revoked, previous hac vice admission before a Louisiana Orleans, (2019-B-1783) Suspended for deferred suspension of three months court for three years, ordered by the three years, with all but six months has been made executory, by order of Louisiana Supreme Court on July 2, 2020. deferred, followed by two years of the Louisiana Supreme Court on April JUDGMENT FINAL and EFFECTIVE unsupervised probation, and atten- 27, 2020. JUDGMENT FINAL and on July 2, 2020. Gist: Respondent ne- dance in the LSBA Ethics School, by EFFECTIVE on June 17, 2020. glected his clients’ legal matters; failed order of the Louisiana Supreme Court Thomas M. Yeager, Pineville, (20- to communicate with his clients; failed to on March 9, 2020. JUDGMENT FINAL CD-032) On consent, placed on su- promptly disburse client funds; and failed and EFFECTIVE on July 7, 2020. Gist: pervised probation for a period of two to supervise a non-lawyer assistant. Respondent’s neglect and failure to com- years by order of the Louisiana Attorney Marcus Spagnoletti, Houston, TX, municate violated duties owed to his client Disciplinary Board on July 22, 2020. (2020-B-0605) Consent discipline; Mr. and the legal profession. ORDER FINAL and EFFECTIVE on July Spagnoletti is not allowed to seek pro Connie P. Trieu, Gretna, (2019-B- 22, 2020. Gist: 8.4(d). hac vice admission before a Louisiana 1680) Suspended from the practice of court for three years, ordered by the law for a period of six months, deferred Admonitions (private sanctions, often Louisiana Supreme Court on July 2, 2020. in its entirety, subject to the condi- with notice to complainants, etc.) issued since JUDGMENT FINAL and EFFECTIVE tion that respondent shall attend the the last report of misconduct involving: on July 2, 2020. Gist: Respondent neglect- Louisiana State Bar Association’s Trust Rule 1.5(e) — Fees. ed his clients’ legal matters; and failed to Accounting School during the deferral Rule 4.2 — Communication with per- communicate with his clients. period, by order of the Louisiana Supreme sons represented by counsel. Ike Spears, New Orleans, (2019-B- Court on March 9, 2020. Rehearing denied

Advice and Counsel Concerning Legal C Judicial Ethics Defense of Lawyer C Judicial Discipline Matters Representation in Bar Admissions Proceedings pÅÜáÑÑI pÅÜÉÅâã~å C tÜáíÉ ääé www.sswethicslaw.com

Leslie J. Schiff Steven Scheckman Julie Brown White Damon S.Manning Over30 Years Experience Former Special Counsel Former Prosecutor, Former Investigator, Prosecutor Disciplinary Defense Counsel Judiciary Commission ('94-'08) Disciplinary Counsel ('98-'06) Disciplinary Counsel ('98-'14) 117 W. LandryStreet 650 Poydras Street, Suite 2760 11715 Bricksome Ave, Suite B-5 201 NWRailroad Ave, Suite 302 Opelousas, Louisiana 70570 NewOrleans, Louisiana 70130 Baton Rouge, Louisiana 70816 Hammond, Louisiana 70401 Phone (337) 942-9771 Phone (504) 309-7888 Phone (225) 293-4774 Phone (985) 602-9201 Fax(337) 942-2821 Fax(504) 518-4831 Fax(225) 292-6579 Fax(985) 393-1130 [email protected] [email protected] [email protected] [email protected]

Louisiana Bar Journal October / November 2020 202 Vol. 68, No. 3 www.lsba.org MEDIATION AND ARBITRATION of COMPLEX DISPUTES

Guy deLaup Larry Feldman W. Ross Foote E. Phelps Gay Mike McKay

Patrick Ottinger Mike Patterson Larry Roedel Marta-Ann Schnabel

Thomas M. Hayes, III has practiced in Monroe, LA for 43 years in the prosecution and defense of a broad spectrum of civil suits. He was trained as a mediator at the Straus Institute for Dispute Resolution at Pepperdine School of Law and joined Patterson in 2015. He has served as mediator in the resolution of employment, construction and other commercial disputes, personal injury and insurance claims, succession litigation, and professional liability claims (legal, medical and architect/engineer.) He has also served as arbitrator in cases involving professional liability, contract and construction matters and has been appointed as Special Master by state courts. He is a Fellow of the American College of Trial Lawyers, and a Senior Oﬃcer of the Louisiana State Law Institute.

BATON ROUGE | NEW ORLEANS | LAFAYETTE | SHREVEPORT | MONROE : 866.367.8620 : [email protected] : pattersonresolution.com Louisiana Bar Journal October / November 2020 202 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 203 Vol. 68, No. 3 www.lsba.org RECENTDevelopments BANKRUPTCY LAW TO TAXATION

Stat. 2776, may be modified pursuant tive agree to modify those benefits or a to Section 1114 of the U.S. Bankruptcy bankruptcy court orders a modification. Code. 11 U.S.C. § 1114(e)(1). If a debtor pro- Bankruptcy The Coal Act provides guaranteed poses a modification to the retirees’ rep- Law benefits for retired coal miners, which resentative and negotiates in good faith benefits are funded by premiums paid by but the representative refuses the pro- coal companies. The Coal Act contains posal without good cause, then a debtor two provisions to protect its benefits can seek court-ordered modification. 11 5th Circuit Follows scheme — the first annuls any transac- U.S.C. § 1114(f), (g)(1)-(2). In that in- tions with a principal purpose of evad- stance, a court shall order modification 4th and 11th Circuits: ing or avoiding liability under the Act, if it is necessary to permit the reorgani- Obligations Owed and the second provides that the liability zation of the debtor and assures that all Under the Coal Act May to provide funds under the Act is deter- creditors, the debtor and all of the affect- mined exclusively by the Act. While the ed parties are treated fairly and equitably Be Modified by Coal Act contains these safeguards, it and modification is clearly favored by 11 U.S.C. § 1114 does not expressly address a coal com- the balance of the equities. 11 U.S.C. § pany’s obligation to pay premiums if it 1114(g)(3). Holland v. Westmoreland Coal Co. (In seeks bankruptcy protection. The facts before the court were as fol- re Westmoreland Coal Co.), 968 F.3d Section 1114 of the U.S. Bankruptcy lows. In October 2018, Westmoreland 526 (5 Cir. 2020). Code was enacted four years before Coal Co. filed a Chapter 11 bankruptcy The U.S. 5th Circuit Court of Appeals, the Coal Act in response to a series of seeking to reorganize through the sale like the 4th and 11th Circuits before it, Chapter 11 debtors that unilaterally ter- of a majority of its assets by auction. has found that the obligations owed by minated their retirees’ health-care ben- Each bidder conditioned its purchase of debtors under the Coal Industry Retiree efits. Section 1114 requires that a debtor the debtor’s assets on the termination of Health Benefit Act of 1992 (known as continue paying promised retiree benefits successor liability for Westmoreland’s the Coal Act), Pub. L. No. 102-486, 106 unless the debtor and retiree’s representa- Coal Act obligations. Based on this,

Ronald E. Corkern, Jr. Brian E. Crawford Steven D. Crews Herschel E. Richard Joseph Payne Williams J. Chris Guillet

We're excited to offer a new program entitled Review Mediation. You can settle your case from the safety and comfort of your own office without the necessity of a formal session. Contact Kathy Owsley at 318-352-2302, ext. 116 for more information.

To schedule a mediation with Brian Crawford, please call Faye McMichael at 318-325-3200 or email Faye at [email protected]. For other panelists, please call Kathy Owsley at the Natchitoches location (318-352-2302 ext. 116) or email Kathy at [email protected].

Louisiana Bar Journal October / November 2020 204 Vol. 68, No. 3 www.lsba.org Westmoreland proposed to modify its preclusion did not bar the Trustees’ law- District Court against 30+ defendants, obligations under the Coal Act pursuant suit. and one in the 24th JDC against Jefferson to Section 1114. In response, the Trustees In addressing the merits of the case, Parish alone. Following the conclusion of the associated retiree plans (Trustees) the court found that the premiums paid of the Orleans suit, the Parish of Jefferson filed a complaint in the bankruptcy court by the debtor under the Coal Act were re- filed an exception of no right of action, seeking a declaratory judgment that the tiree benefits subject to modification -un pleading that La. C.C.P. art. 425 required Coal Act obligations are not retiree ben- der Section 1114. Therefore, like the 4th a plaintiff to allege all causes of action efits and, therefore, cannot be modified and 11th Circuits before it, the 5th Circuit arising out of the same transaction or oc- under Section 1114. Before the bank- affirmed the bankruptcy court’s ruling currence into a single suit, regardless of ruptcy court could rule, the 11th Circuit that Coal Act obligations may be modi- the parties involved, thereby precluding considered the same issue in a case be- fied by Section 1114 of the Bankruptcy the Jefferson Parish proceeding in light fore it (also involving the Trustees) and Code. However, the court clarified that, of the Orleans Parish litigation. determined that the Coal Act obligations to allow such modification, a court must The trial court denied the Parish’s ex- were retiree benefits that were subject make a finding that the principal purpose ception. Exercising its supervisory juris- to modification under Section 1114. of the transaction at issue is not to avoid diction, the 5th Circuit granted the writ, See, In re Walter Energy, Inc., 911 F.3d liability under the Coal Act. reversed the trial court and dismissed the 1121 (11th Cir. 2018). Two days after the action. Walter Energy decision, the bankruptcy —Heather LaSalle Alexis The issue initially came before the court issued an opinion consistent with Secretary-Treasurer, 5th Circuit following the denial of a the 11th Circuit’s ruling. Thereafter, the LSBA Bankruptcy Law Section previous exception by the Parish on the bankruptcy court certified its judgment Hinshaw & Culbertson, L.L.P. same grounds, but in which the Parish for direct appeal to the 5th Circuit. 900 Camp St., 3rd Flr. failed to properly introduce evidence. As a preliminary issue, the Trustees New Orleans, LA 70130 In a lengthy dissent to that denial, Judge argued to the 5th Circuit that the pay- Molaison had already struck at the merits ment obligations owed under the Coal of the writ. On this second writ, with the Act were taxes and, as such, there was evidence introduced, the court turned to no jurisdiction in Section 1114 to modify Civil Law the merits, and the court’s opinion repro- those taxes based on the Anti-Injunction and duced the text of Judge Molaison’s dis- Act’s prohibition on suits that seek to re- Litigation sent in its near-entirety. strain the assessment or collection of a Reviewing the trial court’s decision tax. The court, in siding with the 4th and de novo, the varying jurisprudence in- 11th Circuits, held that because bank- terpreting article 425 was examined. The ruptcy court is the only place where a 1st Circuit had previously examined the debtor can use Section 1114 to modify its Who Will Break the Tie? legislative history of article 425, inter- Coal Act obligations, the Anti-Injunction preting it to state the rule that a plaintiff Act does not bar an adversary proceeding Handy v. Parish of Jefferson, 20-0122 must assert all claims arising out of the to do so. (La. App. 5 Cir. 6/1/20), 298 So.3d 380. same transaction or occurrence, irrespec- Because the Trustees were also in- In this asbestos exposure case, plain- tive of the parties against whom they volved in the Walter Energy case, which tiff instituted two suits for the same cause may be asserted, or else they are waived. involved the same issue before the court of action, one in Orleans Parish Civil The U.S. 5th Circuit Court of Appeals regarding the ability to modify obligations under the Coal Act under Section 1114, the debtor argued the Trustees were barred from relitigating the identi- cal question in another judicial circuit. The 5th Circuit noted that the criteria for TULANE LAW SCHOOL CONGRATULATES invoking issue preclusion was present. However, the court found that because Chaffe McCall the case presented only a question of Irwin Fritchie law making, issue preclusion was inappropriate “both because the other court Urquhart & Moore that decided [the issue] was a fellow Phelps Dunbar intermediate federal court and because FOR REACHING 100% PARTICIPATION [the issues are] important ones [that] the IN THE 2020 LAW FIRM CHALLENGE! Supreme Court has not decided.” Id. at 532. Therefore, the court ruled that issue

Louisiana Bar Journal October / November 2020 204 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 205 Vol. 68, No. 3 www.lsba.org subsequently adopted that interpretation, varying violations in order to determine reasoning that the purpose of the rule was whether each violation could have caused to preserve judicial resources and prevent an injury. undue burden on parties by preventing Environmental Interestingly, the court noted in a duplicative litigation of issues. On the Law footnote that the Clean Air Act does not other hand, the 2nd and 3rd Circuits stat- cap the amount of penalties that can be ed that article 425 was a mere statutory claimed in a citizens’ suit, although parties reference to res judicata, and identity of typically use the per-day penalty cap used parties was therefore required. 5th Circuit Decision by the EPA in Clean Air Act cases. The 5th Circuit had not previously Complicates Clean Air addressed the issue, and the Louisiana 5th Circuit: EPA’s New Supreme Court has not either. Turning Act Citizens’ Suits to the canons of statutory interpretation, Interpretation of Clean Judge Molaison pointed out that the ar- The 5th Circuit ruled on this Texas- Air Act Permitting ticle as written does not require an iden- based Clean Air Act lawsuit brought by tity of parties, and to equate it with res environmental groups against the Exxon Process Is Entitled to judicata would render it superfluous, Baytown plant for thousands of reported Deference points consistent with the analysis in violations of the plant’s air-emissions per- Westerman v. State Farm Mut. Auto. Ins. mit. Environment Texas Citizen Lobby, In Environmental Integrity Project v. Co., 01-2159 (La. App. 1 Cir. 9/27/02), Inc. v. Exxonmobil Corp., 968 F.3d 357 (5 United States Environmental. Protection 834 So.2d 445. Thus, the 5th Circuit Cir. 2020). The district court had ruled in Agency, ____ F.3d ____ (5 Cir 2020), found that article 425 did not require an favor of plaintiffs, awarding almost $20 2020 WL 4686995, at *1 (a substituted identity of parties. million as a civil penalty. Exxon appealed opinion following an earlier opinion in The two suits, one in Jefferson and the and the 5th Circuit overruled the original May), the 5th Circuit considered yet another in Orleans, encompassed the same judgment based on the issue of standing. other Clean Air Act case involving the transaction or occurrence, and coinciden- The court first asserted that plaintiffs Baytown Exxonmobil plant. In raising a tally the claims were so logically related must establish standing as to each viola- challenge to a new Title V air-permit ap- that issues of judicial economy and fair- tion of the Clean Air Act, not just as to plication filed by Exxonmobil, environ- ness mandated that all issues had to be each broad claim. This meant that a stand- mental groups asked the EPA to object to tried in one action, rather than now bur- ing plaintiff had to prove injury for every the application on the basis that the under- dening the Parish with having to re-liti- complained-of violation of the emissions lying Title I preconstruction permit was gate issues of fault and causation already permit — which numbered more than invalid. The EPA noted that its new view addressed in the Orleans Parish suit. 16,000. The court agreed that plaintiffs had of Title V means that the Title V permit- Concluding that the trial court erred proven they were injured by the unlaw- ting process is not the appropriate vehicle in holding that article 425 was to be read ful emissions, as plaintiffs had provided for re-examining whether an underlying in pari materia with the identity of par- evidence of seeing flares, smelling odors preconstruction permit was issued val- ties requirement of res judicata and en- and experiencing respiratory symptoms. idly, and it declined to object. The plain- dorsing the 1st Circuit’s interpretation However, the court then required that the tiffs asked the 5th Circuit to review, and espoused in Westerman, the 5th Circuit injury be traceable to the violations of the court upheld the agency’s decision, granted the Parish’s exception and dis- the permit. Traceability of an injury to an using the Skidmore deference standard to missed the suit with prejudice. emissions event requires “something more conclude that the EPA’s interpretation of With the 5th Circuit now declaring its than conjecture . . . but less than certainty.” the Title V permitting program under the position, the circuits are split, and a tie The standard for traceability requires “evi- Clean Air Act was independently persua- breaker will be needed. dence that the defendant’s violations were sive and thus entitled to deference. The of a type that ‘causes or contributes to the court concluded by pointing out that the —Shayna Beevers Morvant kinds of injuries alleged by the plaintiffs.’” Title V permit application could be at- Secretary, LSBA Civil Law Id. at 369. Moreover, for small-magnitude tacked on its own merits or lack thereof, & Litigation Section events, the court found it was possible for but the Title I preconstruction permit Beevers & Beevers, L.L.P. the pollutants emitted to have dissipated could not be once again reviewed for va- 210 Huey P. Long Ave. before causing injury to any plaintiff. lidity at this post-construction phase. Gretna, LA 70053 Thus, the court ordered the matter remand- and ed so that the district court could evaluate —Lauren E. Godshall Ashton M. Robinson whether the claimed violations could have Member, LSBA Environmental Law Section JD 2020, Law Clerk caused the injuries claimed by the plain- Tulane Environmental Law Clinic Beevers & Beevers, L.L.P. tiffs. Now the district court is left with the 6329 Freret St. 210 Huey P. Long Ave. unenviable task of evaluating thousands of New Orleans, LA 70118 Gretna, LA 70053

Louisiana Bar Journal October / November 2020 206 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 206 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 207 Vol. 68, No. 3 www.lsba.org In re: Nelson, 20-0140 (La. 5/1/20), 295 46:2135 and 46:2136 were to be read in So.3d 922. pari materia and that the trial court had The Supreme Court suspended discretion to consider the entire history Family Nelson from the practice of law for of abuse, past and present, when deter- Law a year and a day as a result of his fil- mining whether to issue a protective or- ing frivolous and unsupported motions der. to recuse both trial judges and court of appeal judges in a community property Custody Child Support partition case. The court found that the baseline sanction was a six-month sus- Paille v. Newell, 19-1694 (La. App. 1 Greene v. Greene, 19-0528 (La. App. 5 pension, but due to Nelson’s prior dis- Cir. 7/8/20), 2020 WL 3840756. Cir. 5/28/20), 296 So.3d 1239. ciplinary history, deviated upward to The parties’ initial considered decree The court of appeal affirmed the trial a year and a day, which sanction thus awarded them joint custody of their court’s vacating of the parties’ previ- requires him to apply for reinstatement minor child and provided a physical ous 2017 consent judgment regarding before he could practice law again. custody schedule, but did not name a child support, and also affirmed its domiciliary parent. Acosta-Newell, the new child support award of $7,789 per Spousal Witness mother, then sought to modify that con- month from Ms. Greene to Mr. Greene. Privilege sidered decree to name her the domicili- The parties’ 2017 consent judgment ary parent and to clarify and provide ad- provided that there would be no cash In re: Subpoena, 19-0962 (La. 5/28/20), ditional physical custody arrangements. child support between the parties, but The parties reached a consent judgment that Ms. Greene would pay 100% of ____ So.3d ____, 2020 WL 3424310. The Louisiana Supreme Court held naming her domiciliary parent and es- the children’s school and extracurricu- tablishing a specific physical custody lar and medical expenses. Because no that the spousal witness privilege in Louisiana Code of Evidence article 505 schedule to fill in the gaps of the prior financial documents were exchanged, considered decree. Subsequently, Paille, and no proof of income from the par- is inapplicable in a grand jury proceeding investigating molestation of a juve- the father, filed to modify the consent ties was taken when the consent judg- judgment, seeking to be named domi- ment was entered in 2017, the court of nile. The court held: “Because the grand jury proceeding involves an allegation ciliary parent and to modify the physi- appeal found that the original judge cal custody schedule. The court first did not exercise his gatekeeping func- and investigation of sexual abuse of a child, we find the spousal witness privi- found that Bergeron applied because the tion as envisioned by Stogner, and, original decree was a considered decree. consequently, that judgment was void lege is abrogated by La. R.S. 14:403(B). Therefore, we reverse the ruling of the Paille argued that the intervening con- as a matter of public policy as it was sent judgment required the lower burden not based on the guidelines, no support district court which found the spousal privilege applied.” Therefore, the wife of proof to be applied, but the court of obligation was fixed between the par- appeal rejected that argument stating ties, and Mr. Greene’s de facto waiver could not assert the privilege and refuse to testify against her husband. that “the nature of the original custody of support was void and against public award dictates the burden of proof a par- policy. Her argument that he waived ty must satisfy when seeking to modify his right to present child support under Domestic Abuse a prior permanent custody award.” the 2017 consent judgment in exchange for her paying 100% of the children’s Aguillard v. Aguillard, 19-0757 (La. App. Council v. Livingston, 20-0208 (La. enumerated expenses was rejected un- 3 Cir. 7/8/20), ____ So.3d ____, 2020 WL App. 4 Cir. 7/15/20), ____ So.3d ____, der the Stogner rationale. 3818159. 2020 WL 4004889. This case addressed the Domestic The court of appeal’s stay order pre- Attorney Discipline Abuse Assistance Act, La. R.S. 46:2131, cluded a “review hearing” in this cus- et seq., and, particularly, La. R.S. tody matter while the stay order was In re: Whiddon, 20-0428 (La. 5/14/20), 46:2135 and that portion thereof provid- in effect. Moreover, the appellate court 296 So.3d 604. ing: “The court shall consider any and found that review hearings were im- Mr. Whiddon, an attorney, consented all past history of abuse, or threats there- proper in civil custody matters. to discipline by the Supreme Court of, in determining the existence of an immediate and present danger of abuse. to be publicly reprimanded for Paternity knowingly providing a false answer to There is no requirement that the abuse an interrogatory during discovery in his itself be recent, immediate or present.” The court of appeal found that La. R.S. Kinnett v. Kinnett, 17-0625 (La. App. 5 divorce proceeding. Cir. 8/6/20), ____ So.3d ____, 2020 WL

Louisiana Bar Journal October / November 2020 208 Vol. 68, No. 3 www.lsba.org ®

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Louisiana Bar Journal October / November 2020 208 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 209 Vol. 68, No. 3 www.lsba.org 4529828. mendation regarding the amount of the Andrews, the biological father of the delay damages owed. The owner then minor child, intervened in the divorce Fidelity, filed a third-party demand against the between Mr. and Ms. Kinnett, filing an Surety and project engineer, claiming that, based on avowal action to establish his paternity Construction the terms of the Engineering Agreement, of the child. After the trial court granted Law the project engineer was required to in- Mr. Kinnett’s exception of prescrip- demnify the owner for its negligence in tion/peremption, Andrews appealed. making the payment recommendation. In The court stayed his initial appeal and Supreme Court Clarifies response, the project engineer filed a pe- remanded the matter for the trial court remptory exception of no cause of action, to address the constitutionality of La. Actionable Third- which was sustained by the trial court. Civ.C. art. 198. The trial court found Party Demands in a In Couvillion Group, L.L.C. v. the statute constitutional. Andrews then Construction Dispute Plaquemines Par. Gov’t, 19-0564 (La. appealed the initial granting of Mr. App. 4 Cir. 12/11/19), 286 So.3d 1129, Kinnett’s exceptions as well as the trial Couvillion Group, L.L.C. v. Plaquemines the 4th Circuit reversed, finding that be- court’s ruling that the statute was con- Par. Gov’t, 20-0074 (La. 4/27/20), 295 cause the principal demand included the stitutional. The court of appeal reversed So.3d 400. request for determination that the owner the granting of the exceptions, finding A public owner contracted with a gen- is bound by the engineer’s recommenda- that Andrews’ avowal action was timely eral contractor and project engineer in tion, the third-party demand was proper filed. It then determined that it did not connection with a marina-construction and derivative of the general contractor’s need to address the constitutionality is- project. During the construction, the claims against the owner. sue. Judge Wicker, who wrote the ma- owner ordered the general contractor to The 4th Circuit then considered jority opinion, nevertheless also wrote temporarily stop work on a specific por- whether the owner had validly asserted a scholarly concurring opinion in which tion of the project. After several months, a claim for indemnity vis-à-vis the proj- she addressed her “deep lingering con- construction on that portion resumed, ect engineer. The court examined the cerns with the statute’s constitutional- and ultimately the parties achieved sub- indemnity agreement and found that ity.” The case is 31 pages long and de- stantial completion. Post-completion, it required the project engineer to in- serves careful reading. the general contractor sent a series of de- demnify the owner for “damages to . . . mand letters to the owner seeking dam- property,” which the 4th Circuit found —David M. Prados ages for the delay. The general contractor included economic-only losses. Thus, Member, LSBA Family Law Section also requested that the project engineer the 4th Circuit concluded that the owner Lowe, Stein, Hoffman, Allweiss review its delay-damages claim and had stated a valid contractual-indemnity & Hauver, L.L.P. make a recommendation to the owner. claim sufficient to withstand an - excep Ste. 3600, 701 Poydras St. The project engineer did so and recom- tion of no cause of action. New Orleans, LA 70139-7735 mended payment of the damages. The However, neither of these conclu- owner disputed the recommendation and sions survived review by the Louisiana refused to pay. Supreme Court. The general contractor subsequently First, the Supreme Court found that filed suit seeking delay damages and a the owner’s claims against the project en- declaration by the court that the owner gineer were too attenuated to the claims was bound by the engineer’s recom- against the contractor to be validly asserted via third-party demand. The high court reasoned that the project engineer was not a party to the contract between the owner and contractor, and that absent an allegation that the project engineer was in some way responsible for any of the delays, the owner’s allegation arising from the payment recommendation did not meet the connexity requirements for a third-party demand under La. C.C.P. art. 1111. Second, the Supreme Court found that the 4th Circuit’s interpretation of the phrase “damages to property” to include economic-only damages was in

Louisiana Bar Journal October / November 2020 210 Vol. 68, No. 3 www.lsba.org contravention of the plain, ordinary and insured and also indemnifying the Parish, Anti-Indemnity Act (the LAIA), is not generally prevailing meaning of that except in the instance of the sole negli- applicable to a construction contract en- term, and that, accordingly, the project gence of the Parish. Fleming procured tered into by a public body, and that the engineer owed no duty to indemnify for from Amerisure the commercial general applicable law is found in the Louisiana those types of damages. liability policy and from Alterra America Public Works Act, La. R.S. 38:2241 et seq. For those reasons, the Supreme Court Insurance Co. the commercial excess li- Specifically, the appellants argued that La. reversed the ruling of the 4th Circuit in ability policy. R.S. 38:2216(G) creates an exception that its entirety and reinstated the district Plaintiff, a Fleming foreman, was permits contractual provisions that require court judgment granting the project en- performing work at a lift station in part contractors to include public bodies as ad- gineer’s exception of no cause of action. of the sewerage system pursuant to the ditional insureds on their liability policies. contract when he was injured as a result The 5th Circuit disagreed. —Joshua D. Ecuyer of the failure of the locking arm on the The 5th Circuit reasoned that by includ- Member, LSBA Fidelity, Surety & hatch door. Plaintiff sued the Parish, the ing the phrase, “notwithstanding any pro- Construction Law Section Parish’s insurer, American Alternative vision of law to the contrary and except as Simon, Peragine, Smith & Redfearn, L.L.P. Insurance Co. (AAIC) and Fleming’s in- otherwise provided in this Section,” in the 1100 Poydras St., 30th Flr. surers, Amerisure and Alterra, because of opening sentence of La. R.S. 9:2780.1(C) New Orleans, LA 70163 their contractual obligation to defend and of the LAIA, the Legislature expressed its indemnify the Parish as a named insured. intent for La. R.S. 9:2780.1(C) to govern Louisiana Anti- Fleming’s insurers filed a joint motion defined construction contracts performed for partial summary judgment, asking the in Louisiana, notwithstanding other exist- Indemnity Act Applies trial judge to declare that the contractual ing laws to the contrary and subject only to Public Contracts indemnity and insuring agreements be- to the exceptions set forth in the LAIA. tween the Parish and Fleming “void, null, Further the LAIA does not specifically ex- Salathe v. Par. of Jefferson through and unenforceable” under Louisiana law. clude public contracts from its definition Dep’t of Sewerage, 19-427 (La. App. 5 The trial court granted summary judg- of construction contracts, and includes Cir. 7/15/20). ment, and the Parish and AAIC appealed. within its definition, the construction, re- The Consolidated Sewerage District On appeal, the Parish and AAIC con- pair and maintenance of highways, bridg- No. 1 of the Parish of Jefferson (Parish) tended that the trial court legally erred es, water lines and sewer lines, which and Fleming Construction Co., L.L.C. in finding that the contractual obligation traditionally involve a public entity as a (Fleming) entered a contract for replace- to defend and indemnify the Parish as a contracting party. ment or restoration of existing sewer named insured, required by the public Based on the forgoing, the court found mains in Jefferson Parish. The contract contract between Fleming and Jefferson that the LAIA applied to the contract. between the Parish and Fleming required Parish, was null, void and unenforceable As a result, the 5th Circuit affirmed the Fleming to procure certain insurance poli- under Louisiana law. Appellants argued trial court’s judgment finding that the cies naming the Parish as an additional that La. R.S. 9:2780.1, the Louisiana additional-insured provisions contained

Louisiana Bar Journal October / November 2020 210 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 211 Vol. 68, No. 3 www.lsba.org in the contract were null, void and unen- 1962. Five months later, on Aug. 10, 2018, President’s power to take action pursuant forceable, to the extent they can be inter- the President issued a second proclamation to a report and recommendation by the preted as requiring Fleming to indemnify increasing to 50% tariffs on imported steel Secretary is not a mere directory guideline, and procure insurance coverage for the from Turkey. Transpacific Steel filed suit but a restriction that requires strict adher- Parish’s own negligence, and dismiss- seeking refund of the additional 25% duties ence.” Id. at *3. ing, with prejudice, the claims against paid on the grounds that the Presidential Amerisure and Alterra, to the extent the proclamation (a) lacks a nexus to national European Union: policies could be interpreted as providing security; (b) fails to follow mandated statu- coverage for the Parish’s own negligence. tory timelines and procedures; and (c) sin- European Court of gles out Turkish steel products in violation Justice —Kaile L. Mercuri of the Fifth Amendment Equal Protection Member, LSBA Fidelity, Surety & and Due Process guarantees. Data Prot. Comm’r v. Facebook Ireland, Construction Law Section The CIT first addressed the threshold Case C-311/18 (July 16, 2020). Simon, Peragine, Smith issue of whether the Presidential proc- The European General Data Protection & Redfearn, L.L.P. lamation violated Section 232’s proce- Regulation (GDPR) restricts the third 1100 Poydras St,, 30th Flr. dural timelines. Section 232 requires the country transfer of certain digital data ab- New Orleans, LA 70163 Secretary of Commerce, in consultation sent an adequate level of data protection. with the Secretary of Defense, to issue the The European Commission has the author- results of its investigation no later than 270 ity to issue “adequacy determinations” re- days after initiation. The President must garding the adequacy of a third country’s International determine within 90 days after receiv- data-protection regime by reason of its Law ing the results whether he concurs with domestic law or its international commit- the report and whether he will adjust the ments. Without an adequacy determina- imports. The President must implement tion, data transfer from personal-data ex- his decision no later than 15 days from porters located in the EU is allowed only reaching his decision. The proclamation at if the exporters maintain adequate safe- U.S. Court of issue in this case was issued five months guards, including the adoption of standard after the President’s initial proclamation data-protection clauses, provision of en- International Trade adjusting imports of steel. Thus, the proc- forceable private rights and effective legal lamation was issued far beyond the 15- remedies. Transpacific Steel, L.L.C. v. United day temporal window allowed by Section This case involves the propriety of the States, No. 19-00009, Ct. Int’l Trade July 232. Rejecting arguments that Section U.S.-E.U. Privacy Shield Agreement to 14, 2020, 2020 WL 3979838. 232 grants the President authority to is- ensure data protection. The plaintiff, an The U.S. Court of International Trade sue “continuing proclamations,” the court Irish Facebook user, complained about (CIT) struck down a Presidential procla- found that “there is nothing in the stat- Facebook Ireland’s transfer of his personal mation doubling steel tariffs on imports ute to support the continuing authority to data to Facebook servers in the United from Turkey. On March 8, 2018, President modify Proclamations outside of the stated States, where the plaintiff contends the Trump imposed 25% tariffs on imported timelines.” Id. at *4. “National security is data is unprotected and subject to access steel after the Secretary of Commerce initi- dependent on sensitive and ever-changing by public authorities through surveillance ated a national security investigation under dynamics; the temporal restrictions on the in violation of European GDPR standards. Section 232 of the Trade Expansion Act of The Court of Justice ruled that U.S. law does not afford equivalent protection to JLAP Board president announces European data, primarily due to the potential access and use by U.S. public authori- job opening for Executive Director ties through surveillance programs. The court also found that U.S. law does not Shayna L. Sonnier, board president of the Louisiana Judges and Lawyers Assistance provide a sufficient cause of legal action Program, Inc. (JLAP), announces plans to hire an Executive Director. offering guarantees substantially equiva- “We are hiring an Executive Director. My hope is that you will take a look at lent to those required by E.U. law. the accompanying job description and forward it to anyone you know who may be qualified and interested. Perhaps that person is you! The position will remain —Edward T. Hayes open until filled; however, we are eager to find and bring on board our new leader. Chair, LSBA International Law Section Submit your résumé or CV, along with a cover letter outlining the ways in which Leake & Andersson, L.L.P. you meet the stated qualifications. You should email them to me, Shayna Sonnier, at Ste. 1700, 1100 Poydras St. [email protected].” New Orleans, LA 70163 Review the full job description at: www.lsba.org/goto/JLAPjobED.

Louisiana Bar Journal October / November 2020 212 Vol. 68, No. 3 www.lsba.org The 5th Circuit disagreed. Typically, (wartime) information set forth in the a federal district court’s decision to re- Rozel Report was not the first time that mand a case is not reviewable, but, in information was provided to defendants. Mineral this instance, because defendants filed Rather, the wells that were drilled during Law their removal based on the federal-officer the alleged wartime period, as mentioned removal statute, the 5th Circuit had au- in the Rozel Report, were also identi- thority to review it pursuant to 28 U.S.C. fied by plaintiffs in the initial pleading. § 1447(d). The appellate court found that Thus, the Rozel Report did not fall into Coastal Lawsuit defendants’ attempt to remove (the sec- the “other paper” category set forth in 28 ond time) was untimely, however. The U.S.C. § 1446(b)(3), and, therefore, de- Litigation; Removal; court explained that under the federal re- fendants removal was untimely. Federal Subject-Matter moval statute (28 U.S.C. § 1446(b)(3)), Defendants have been granted extra Jurisdiction defendants could remove the cases under time to file a petition for rehearing en two circumstances: (1) if the basis for banc of this decision. Parish of Plaquemines v. Chevron USA, federal jurisdiction is evident from the Inc., ____ F.3d ____ (5 Cir. Aug. 10, face of the initial pleading, then within 2020 Legislative Watch 2020), 2020 WL 4582196. 30 days of being served with the initial pleading; or (2) if the basis of federal ju- On Aug. 10, 2020, another major deci- Production Payments; Payment of risdiction is not evident from the face of sion was issued in the ongoing Louisiana Royalties (Act No. 76) Coastal Lawsuit litigation regarding the initial pleading, then 30 days after de- (Rep. Jean-Paul Coussan) — This whether federal district courts had proper fendant receives “an amended pleading, Act revised La. Mineral Code art. 212.21 subject-matter jurisdiction to hear the 42 motion, order, or other paper from which to remove some redundancy in the lan- cases filed by various Louisiana parishes it may first be ascertained that the case guage and to also expressly provide that in 2013. The U.S. 5th Circuit Court of is one which is or has become remov- it does not apply to unleased owners. The Appeals held that the cases should be able.” Here, the court found that removal new language of the Article is as follows: remanded to state court for further pro- was untimely because the World War II ceedings because the cases lacked federal question jurisdiction, affirming decisions from the Eastern and Western District Courts of Louisiana on the same issue. ERISA / LONG TERM Defendant-oil companies previously tried to remove the cases to federal court when they were first filed in 2013, DISABILITY CLAIMS but the federal courts hearing the matters (the Eastern and Western Districts of Louisiana) found that they did not (DENIALS / ADMIN APPEALS / FEDERAL COURT) have federal question jurisdiction, and remanded the cases to state court. Following a 2018 expert report, defendants again sought to remove the cases. In tatewide and this most recent bid, defendant-oil com- S , La tX panies attempted to remove on the basis of a representation made in an expert Over 28 yearS – av rated report by Plaquemines Parish (the Rozel Report) that the parishes’ cases against the defendant oil companies were based in part on defendants’ operations that took place during World War II, while J. Price McNamara Law Offices the companies were acting under the authority of the federal wartime agency Web: jpricemcnamara.com known as the “Petroleum Administration Email: [email protected] for War.” Defendants claimed that, based on that information, they were entitled to Baton Rouge: 225-201-8311 remove all 42 coastal lawsuits to federal court, relying on the federal-officer - re Metairie: 504-458-8455 moval statute found in 28 U.S.C § 1442.

Louisiana Bar Journal October / November 2020 212 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 213 Vol. 68, No. 3 www.lsba.org 1671 concerning voluntary dismissal.” first chest pain complaint of July 13. § 212.21. Nonpayment of production The resolution was enrolled on June 1, A medical-review panel decided payment or royalties; notice prerequi- 2020, and sent to the Secretary of State. that neither Dr. Rodgers nor the Center site to judicial demand. breached any standard of care. If the owner of a mineral production —Keith B. Hall Both Dr. Rodgers and the Center were payment created out of a mineral lessee’s Member, LSBA Mineral Law Section named in the ensuing lawsuit. In allocat- interest or a royalty owner other than a Director, Mineral Law Institute ing fault, the trial court found no negli- mineral lessor seeks relief for the fail- LSU Law Center gence by the doctor who treated Anthony ure of a mineral lessee to make timely 1 E. Campus Dr. on July 13 but did find liability on the or proper payment of royalties or the Baton Rouge, LA 70803-1000 part Dr. Rodgers and the Center, award- production payment, he must give his and ing damages for lost chance of survival, obligor written notice of such failure as Colleen C. Jarrott loss of enjoyment of life and funeral ex- a prerequisite to a judicial demand for Member, LSBA Mineral Law Section penses. damages. Baker, Donelson, Bearman, The issues before the appellate court Caldwell & Berkowitz, P.C. were whether a loss of chance was Ad Valorem Taxes (Act No. 368) Ste. 3600, 201 St. Charles Ave. “proven and/or quantified” and whether (Rep. Mike Huval) — This bill was New Orleans, LA 70170-3600 the trial court’s damage awards were du- designed to make ad valorem taxes fairer plicative. The appellate court began its and more predictable. This constitutional analysis by quoting the Supreme Court’s amendment would allow assessors to in- “seminal” loss of chance case, Smith v. clude the presence and value of produc- State, which recognized that: tion at a well when assessing its value for Professional ad valorem taxes. Liability [P]laintiffs [a]re not required to prove a “reasonable” or “substan- Carbon Sequestration (Act No. 61) tial” chance of survival. The issues (Sen. Sharon Hewitt) — This bill in loss of a chance of survival cas- paved the way for a new market in car- Loss of a Chance es are whether the tort victim lost bon sequestration in Louisiana. Refiners any chance of survival because have been encouraged to capture emis- Malbrough v. Rodgers, 19-0010 (La. of the defendant’s negligence and sions (like carbon) from the air, but the App. 3 Cir. 1/29/20), 290 So.3d 204, writ the value of that loss. The question regulatory framework around how to ac- denied, 20-0357 (La. 6/3/20), 296 So.3d of degree may be pertinent to the complish that and how to store it has been 1066. issue of whether the defendant’s unclear. This left companies uncertain as A 6-year-old asthmatic patient, negligence caused or contributed to where they can store and to whom they Anthony, was seen by a physician on to the loss, but such a tort-cause can sell the sequestered carbon. This bill July 13, with a one-week history of dai- loss in any degree is compensable paved the way for Louisiana to capitalize ly chest pain, moderate in severity and in damages. on its existing pipeline infrastructure to worsening. Medication was prescribed. store carbon. No additional testing was done. Id. at 210, quoting Smith v. State, 95- Anthony returned to the same medi- 0038, p. 6 (La. 06/25/96), 676 So.2d 543, Coastal Lawsuit Legislation (SCR 7) cal group (the Center) on Aug. 10 with a 546-47. (Sen. Sharon Hewitt) — This reso- complaint of shortness of breath once or In Smith, the court reiterated that the lution urged and requested that certain twice a week and was seen by a different plaintiff’s burden is to prove by a prepon- parish governments drop their coastal physician, Dr. Rodgers, who also noted derance of the evidence that the patient lawsuits against oil-and-gas companies. that the child “had had fever.” Asthma had a chance to survive and that the pa- The coastal lawsuits target more than 200 medicine was prescribed. No additional tient was deprived of “all or part of that companies — the majority of which are testing was ordered. chance, and must further prove the value small, independent operators who help On Aug. 15, Anthony was brought to of the lost chance, which is the only item provide more than 33,000 direct high- the emergency room with complaints of of damages at issue . . . .” Id., quoting paying jobs and $3 billion in wages. The fever and chest pain of a month’s dura- Smith, 676 So.2d at 547. resolution urged that “the local officials tion. Chest images led to a presumptive The defendants argued that there was in Cameron Parish, Jefferson Parish, diagnosis of Ewing Sarcoma, a bone no evidence of a loss or lessening of a Plaquemines Parish, St. Bernard Parish, cancer. The diagnosis was confirmed on chance of survival caused by the failure St. John the Baptist Parish, Vermilion Aug. 18, and chemotherapy began on to diagnose the inoperable cancer on Parish, and the city of New Orleans to Aug. 25. The treatment decreased the size Aug. 10 and that the evidence showed dismiss the coastal zone lawsuits, pursu- of the tumor, but metastasis had already that by Aug. 10 there had been metas- ant to La. Code of Civil Procedure Art. occurred. He died eight months after the tasis to Stage IV, which did not change

Louisiana Bar Journal October / November 2020 214 Vol. 68, No. 3 www.lsba.org by Aug. 15, i.e., because the cancer was ages. The trial court awarded $258,569, The judgment declared that Harrah’s inoperable five days earlier, causation designating $50,000 for Anthony’s loss owed state sales tax, as well as Louisiana could not be proven. However, the plain- of enjoyment of life, $200,000 to com- Stadium and Exposition District and tiff’s expert testified that the delay- “re pensate his mother for damages she sus- New Orleans Exhibition Hall Authority moved the high likelihood of Anthony’s tained and $8,569 for funeral expenses. tax (collectively occupancy taxes), on successful treatment” and that the failure The appellate court did not find any of all discounted and complimentary hotel to diagnose from July 13 to Aug. 15 re- the awards duplicative but did find the rooms furnished to patrons at Harrah’s duced his chances of survival from 70- trial court erred when it failed to combine New Orleans Hotel as well as certain 80% to 20-30%. Id. at 211. Furthermore, “all these separate items of damages into third-party hotels during the tax periods “it was logical to assume that the rapid a single lump sum award as per Smith at issue. change that can occur in tumor growth and its progeny.” Id. at 214. The appellate On appeal, Harrah’s asserted the in one-month time would certainly have court affirmed the judgment as amended. trial court’s interpretation of La. R.S. impacted the outcome in Anthony’s sur- 27:243(C)(1)(i)(2)(e) rendered its pro- vival rate.” Id. This led the court to de- —Robert J. David visions unconstitutional or raised grave cide that a reasonable factual basis ex- Gainsburgh, Benjamin, David, constitutional questions under the isted for the trial court’s ruling that Dr. Meunier & Warshauer, L.L.C. Louisiana Constitution insofar as its ap- Rodgers’ malpractice deprived Anthony Ste. 2800, 1100 Poydras St. plication to discounted or complimen- of a chance of survival. New Orleans, LA 70163-2800 tary rooms at both Harrah’s New Orleans The court noted that all the experts Hotel and third-party hotels. conceded that “earlier diagnosis is pref- The court dismissed Harrah’s argu- erable for overall outcome” but disagreed ment that La. R.S. 27:243(C)(1)(i)(2)(e) as to whether the five-day delay statisti- was ambiguous and not clear. The court cally made a difference. Id. The court found Harrah’s, as the casino gaming op- commented that the expert testimony Taxation erator, is mandated to pay room taxes “on made clear that the size, location and all discounted and complimentary rooms stage of the cancer were the determina- . . . at the applicable tax rates based on the tive factors for a chance of survival. But average seasonal rates for the preceding because none of the defendants obtained Discounted and year of hotels in the [Central Business any chest images, no expert could posit District (CBD)] and French Quarter.” the stage or size of the tumor on either Complimentary Hotel The court held that the trial court cor- July 13 or Aug. 10. Most agreed that the Rooms Are Taxable rectly concluded that “room taxes” refer- tumor was “probably localized” on July enced all taxes levied by the state and the 13 but had likely metastasized by Aug. Jazz Casino Co., L.L.C. v. Bridges, 19- City of New Orleans on the furnishing of 10. Nevertheless, the court decided that 1530 (La. App. 1 Cir. 7/29/20), ____ sleeping rooms. the evidence supported a finding that So.3d ____, 2020 WL 4355109. The court also found nothing in the Anthony’s physical condition changed in Jazz Casino Co., L.L.C and JCC plain language of Subsection (e) that those five days and that “the tumor was Fulton Development, L.L.C. (collective- either limited its application to lodging fast-growing and aggressive, more prob- ly Harrah’s) appealed a trial court judg- physically connected to the official gam- ably than not advancing from an early ment, granting a motion for partial sum- ing establishment or excluded third-party localized stage (I or II) to a metastasized mary judgment filed by the Louisiana hotels from its provisions. Room taxes stage (IV) within mere weeks or days, Department of Revenue (Department). are required to be paid by Harrah’s as such that every week could very well reduce the chance of survival.” Id. In determining the extent of damages, the court evaluated the survival rates but said that without any images to document the precise growth of the tumor during the five-day period, “a factfinder could, based upon the objective medical records and Anthony’s subsequent presentation, reasonably find that the cancer advanced in stages within that limited time period, limiting his chance of survival anywhere from 70 to 20%.” Id. at 213. The plaintiff requested a total award of $1,508,569 for all elements of dam-

Louisiana Bar Journal October / November 2020 214 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 215 Vol. 68, No. 3 www.lsba.org the casino gaming operator on all dis- State Grand Jury Can the subpoenas as harming the President’s counted and complimentary rooms at the reputation. It noted the President had applicable tax rates based on the average Issue Subpoenas for conceded that there was no reason he seasonal rates for the preceding year of Obtaining President’s couldn’t be investigated while in office hotels in the CBD and French Quarter. and that his objections were only with Mindful that businesses generally do Tax Returns in a State respect to additional distraction from not give their assets away, the court held Criminal Investigation his duties, anticipated stigma as a result the trial court correctly determined that of being the subject of criminal process consideration was present in Harrah’s Trump. v. Vance, 140 S.Ct. 2412 (2020). subpoenas and concerns of potential furnishing of discounted and compli- The President of the United States, harassment. The Supreme Court noted mentary hotel rooms to its patrons in acting on his own behalf, challenged a that grand jury secrecy rules prevent the exchange for the patron’s participation decision of the 2nd Circuit holding that stigma the President anticipated. in gaming activities at Harrah’s such that presidential immunity does not apply Finally, the Supreme Court rejected Harrah’s owed room taxes as set forth in and that a heightened showing of need the argument of the President regarding Subsection (e). The court noted the expert is not required to support the issuance of the heightened-need standard for three testimony of the Department’s witness a state grand jury subpoena. In this case, reasons: (a) a president is no different that Harrah’s provided their patrons dis- the President was contesting a grand than any other individual with regard to counted or complimentary hotel rooms jury subpoena issued by the New York private papers in a criminal investiga- in exchange for a statistically calculated County District Attorney to an account- tion; (b) there has been no showing that return or a theoretical win that Harrah’s ing firm for his tax returns. The U.S. heighted protection against state sub- anticipated receiving. Harrah’s own wit- Supreme Court affirmed the decision of poenas is necessary for the executive ness corroborated the Department’s ex- the 2nd Circuit. to fulfill his Article II functions; and (c) pert testimony by confirming that those The President contended that a sit- absent a need to protect the executive, to whom Harrah’s offered discounted or ting president enjoys absolute immunity the public interest in fair and effective complimentary hotel rooms were in a from state criminal process under Article law enforcement supports comprehen- database of 55,000,000 gamblers, which II and the Supremacy Clause of the U.S. sive access to evidence. As the Court included names, information on how Constitution, arguing that compliance noted, Article II and the Supremacy much was bet, the games played and the with such subpoenas would categori- Clause of the Constitution do not cat- frequency with which they bet. cally impair the performance of Article egorically preclude or require a height- The court affirmed the trial court’s II functions. The President argued that ened standard for the issuance of a state judgment, granting partial summary compliance with these subpoenas would criminal investigation subpoena to a sit- judgment in favor of the Department. distract him from his duties as a Chief ting president. Executive, that the stigma of being sub- —Antonio Charles Ferachi poenaed could undermine his leadership —Jaye A. Calhoun Member, LSBA Taxation Section at home and abroad, and that this by it- Member, LSBA Taxation Section Director of Litigation-General Counsel self would make him an easily identifi- Kean Miller, LLP Louisiana Department of Revenue able target for harassment. Ste. 3600, 909 Poydras St. 617 North Third St. The Supreme Court rejected all of New Orleans, LA 70112 Baton Rouge, LA 70821 these arguments. The Court did not view

YOUNG LAWYERS SPOTLIGHT Brett D. Sandifer misdemeanors and becoming the general counsel for the Baton Rouge felonies. Then, he Carpenter Health Network. worked as an assis- Sandifer has served as chair of the The Louisiana State Bar Association’s tant attorney general Baton Rouge Bar Association’s Pro Bono Young Lawyers Division Council is spot- for the Louisiana Committee since 2017. In 2020, he re- lighting Baton Rouge attorney Brett D. Department of ceived the Louisiana State Bar Association Sandifer. Justice Medicaid Young Lawyers Division’s Pro Bono Sandifer is currently the general coun- Fraud and Criminal Award for his pro bono legal service in the sel for the Carpenter Health Network Divisions before community. He also officiates high school, in Baton Rouge. Previously, he gained starting his own Brett D. Sandifer junior college and college football. In his experience as an assistant district at- private practice. free time, he enjoys playing golf, fishing torney in Calcasieu Parish, prosecuting He then worked as in-house counsel for and spending time with family and friends. Liberty Mutual Insurance Co. before

Louisiana Bar Journal October / November 2020 216 Vol. 68, No. 3 www.lsba.org GUARDING WHAT MATTERS.

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Louisiana Bar Journal October / November 2020 216 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 217 Vol. 68, No. 3 www.lsba.org Young LAWYERS CHAIR’S MESSAGE... SPOTLIGHT

area of subject matter. CHAIR’S MESSAGE ► Don’t be afraid to ask questions. ► Return phone calls and emails The Importance of Mentoring: promptly. ► Always be on time (or a little early). Sign Up for TIP ► Never go into a meeting without the ability to take notes. By Carrie LeBlanc Jones ► Own your mistakes. ► Employees who feel valued are the Don’t worry about a thing, ‘cause every Division (YLD) col- most motivated. little thing gonna be alright. leagues to share the ► Find a way to get involved with the —“Three Little Birds,” Bob Marley best tidbits of advice bar association. they have received: Mr. Shows was one of many mentors Sometimes the best advice can be ► Just because I’ve had during my legal career. My first found in the lyrics of a song. One of my you are admitted to job after law school was a judicial clerk- most cherished mentors, the late E. Wade practice law does ship in the 24th Judicial District Court for Shows, was a huge Bob Marley fan. He not mean you can Hon. Ralph Tureau. The lessons I learned shared his love for reggae music through- notarize documents. during my judicial clerkship were invalu- out the office (sometimes a little loud). You must be com- Carrie LeBlanc able — becoming comfortable in the Along with the music, he shared a mes- missioned by the Jones courtroom, knowing how to conduct my- sage with the attorneys and staff at Shows, Secretary of State be- self in a status conference, selecting a jury, Cali & Walsh — don’t worry because ev- fore you can notarize, www.sos. making closing arguments. I was able to erything is going to be alright. Wade was la.gov/NotaryAndCertifications/ observe different litigation styles and learn a wonderful boss, law partner, friend and BecomeALouisianaNotary/Pages/default. what was effective (and ineffective). My mentor. I consider myself blessed to have aspx. tidbit of unsolicited advice is to treat the learned so many lessons about life and the ► Treat your staff with respect. Staff judge’s staff with the utmost respect. If law under his watchful eye. can really assist young lawyers and are you are rude or disrespectful to the judge’s Recently, Louisiana welcomed its new- more willing to do so when you treat them staff, the judge will most certainly find out. est class of Bar admittees. Unfortunately, respectfully. I cannot reminisce on my mentors with- the 2020 admittees could not be sworn in ► Always grant courtesy to opposing out paying gratitude to Mary Catherine alongside each other in the presence of counsel, even if they will not return the fa- Cali. She is a true trailblazer for women the dignitaries of the Louisiana Supreme vor. Keep the high ground. attorneys. Her level of focus and commit- Court. Instead, 303 new attorneys signed ► Always cite authority. Don’t make ment to work is remarkable. She offered a self-administered oath and, just like the judge’s law clerk do your work. compassion and understanding and en- that, they began enjoying the privilege of ► Don’t procrastinate. couraged me to excel as both a mom and practicing law in Louisiana. I sincerely ► “Lead by Example.” an attorney. She often wished me good welcome each of our newest members of ► Under-promise and over-deliver. luck with my “second job” after a long day the Bar. It’s certainly an unusual and trying ► Don’t expect your support staff to at the office. Likewise, Mary Ann White time to join the legal profession. I encour- perform a task that you cannot perform demonstrated an incredible ability to bal- age each of the new admittees to seek out a yourself. You will not be able to provide ance life as an attorney, wife and mom of mentor or mentors at the beginning of this appropriate instructions or answer their four. Chuck Plattsmier has been a great new journey. The lessons you will learn are questions. Go ahead and file a few plead- friend and voice of reason when I was in more far-reaching than the law. ings yourself and walk something through the midst of making a major career deci- While reminiscing about my own men- the clerk’s office a time or two to be famil- sion. My current boss, Dr. Karen Lyon, tors and pondering on the opportunity to iar with the process. CEO/ED for the Louisiana State Board of mentor a new attorney, I asked a few law ► Find a niche and be excellent. Build school classmates and Young Lawyers a reputation as the go-to attorney for your Continued next page

Louisiana Bar Journal October / November 2020 218 Vol. 68, No. 3 www.lsba.org Chair continued from page 218 changes we’ve made as professionals have law. This is an excellent opportunity for Nursing, is a wonderful mentor and leader been for the better and will remain well Louisiana’s more seasoned attorneys to who inspires me to grow and succeed, and after social distancing and face masks. As give back to the profession. More infor- she supports my involvement with the part of the unprecedented 2020 Bar ad- mation on TIP Program is available on the Louisiana State Bar Association (LSBA). mission process, our new Bar admittees LSBA website, www.lsba.org/mentoring. Dr. Lyon demonstrates, through her ac- are required to participate in the LSBA’s I hope that both young and experienced tions, the importance of making employ- Transition Into Practice (TIP) Program. attorneys see value in mentorship and the ees feel valued. The program matches mentors with men- TIP Program and that the change prompted As we continue to pivot through the tees and imposes requirements for ad- by the pandemic is one that may continue pandemic, it is fair to say that some of the mittees to maintain eligibility to practice to benefit the profession for years to come.

ecret Secret Santa anta is coming to www.lsba.org/goto/SecretSanta town! Secret Santa Volunteers needed! Make a significant impact for appreciative children this holiday season! The LSBA/LBF Community Action Committee predicts a higher- than-average year of need based on the unprecedented circumstances of 2020. If you are in a position to help, the committee is inviting Bar members and other professionals to participate in the 24th annual Secret Santa Project to brighten the holidays for needy children.

Monetary donations are accepted (and tax deductible)! Visit www.lsba.org/goto/SecretSanta for more information and easy online donations. Contact Krystal Bellanger Rodriguez at (504)619-0131 or via email [email protected] with any other questions.

Name:______

Firm/Company:______

Mailing Address:______

City/State/Zip:______

Phone:______

Fax:______

E-mail:______

I would like to sponsor ______child(ren). Preferred age range (not guaranteed) ______(12 and under) To participate, fax this form to Krystal Bellanger Rodriguez at (504)566-0930.

Louisiana Bar Journal October / November 2020 218 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 219 Vol. 68, No. 3 www.lsba.org JUDICIALNotes By Trina S. Vincent, Louisiana Supreme Court JUDGE... RETIREMENTS... IN MEMORIAM

New Judge Campaign Oversight Committee for a Court and the Veterans Treatment Court term of office ending on June 23, 2024. and co-founded the state’s first re- 21st Judicial ► Adrianne Landry Baumgartner entry program. He served on the Rule District Court was appointed on July 1, by order of of Law and International Courts and Judge Elizabeth the Louisiana Supreme Court, to the Court Technology committees of the P. Wolfe was Louisiana Judicial Campaign Oversight American Bar Association, Judicial elected as judge, Committee for a term of office ending Division. Judge Hunter works as a 1st Circuit Court on June 23, 2024. visiting faculty member of the Harvard of Appeal, Division Law School Trial Advocacy Workshop. D, effective Retirements/Resignations He founded and serves as director of July 28. Judge the Allen Ray Bolin Trial Advocacy Workshop, educating and mentoring Wolfe earned her Judge Elizabeth P. ► Louisiana Supreme Court, bachelor’s degree Wolfe District 4, Associate Justice Marcus R. high school students in New Orleans. in 1983 from Clark retired effective July 1. He earned ► Orleans Parish Criminal District Southeastern Louisiana University and his bachelor’s degree in 1978 from Court, Division E, Judge Keva M. her JD degree in 1986 from Louisiana Northeast Louisiana University (now the Landrum resigned effective July 17. State University Paul M. Hebert Law University of Louisiana-Monroe) and She earned her bachelor’s degree in Center. She was elected to the 21st JDC, his JD degree in 1985 from Louisiana 1994 from Washington University Division F, in 2005 and served until her State University Paul M. Hebert Law in St. Louis, Missouri, and her JD election to the Court of Appeal. Judge Center. Prior to his election to the degree in 1997 from Tulane University Wolfe is married to David R. Wolfe and Louisiana Supreme Court, he worked Law School. Before her election to they are the parents of four children. as an assistant prosecutor in the district Orleans Parish Criminal District Court, attorney’s office and as a detective. He Landrum worked in private practice and Appointments was elected to the 4th Judicial District as a criminal law professor at Southern Court bench in 1996, where he served University in New Orleans. She worked ► Glenn L. Langley was until his election to the Louisiana as an assistant district attorney in reappointed, by order of the Louisiana Supreme Court in 2009. He was re- Orleans Parish in 1998 and became Supreme Court, to the Committee on elected without opposition in 2016. the first African-American woman in Bar Admissions for a term of office ► Orleans Parish Criminal District Louisiana to serve as Orleans Parish which began on May 1 and will end on Court, Division K, Judge Arthur L. District Attorney in 2007. In 2008, she April 30, 2025. Hunter, Jr. retired effective Feb. 1. He was elected to Orleans Parish Criminal ► L. David Cromwell, Dow earned his bachelor’s degree in 1981 District Court and re-elected in 2015, Michael Edwards, Stephanie A. Finley from Loyola University New Orleans both elections without opposition. She and William C. Kalmbach III were and his JD degree in 1984 from Loyola served as that court’s first African- reappointed, by order of the Louisiana University New Orleans College of Law. American female chief judge from Supreme Court, to the Committee on He was elected to the Orleans Parish 2018-19. Bar Admissions for terms of office Criminal District Court in 1996, where ► 16th Judicial District Court, which began on July 1 and will end on he served until his retirement. Prior to Division H, Judge Lori A. Landry June 30, 2025. his election to the bench, Judge Hunter retired effective July 2. She earned her ► Hardell H. Ward was appointed worked as a New Orleans police officer bachelor’s degree in 1985 from the on June 29, by order of the Louisiana assigned to the Urban Squad in the University of Southwestern Louisiana Supreme Court, to the Louisiana Judicial 1980s, later working as general counsel (now the University of Louisiana at Campaign Oversight Committee for a for the Orleans Parish civil sheriff. He Lafayette) and her JD degree in 1989 term of office ending on June 23, 2024. worked in private practice for 11 years from Southern University Law Center. ► Lewis O. Unglesby was appointed and served as a notary for the City of Before her election to the 16th JDC, on June 30, by order of the Louisiana New Orleans. While on the bench, Judge Landry served as attorney for Northwest Supreme Court, to the Louisiana Judicial Hunter presided over the Mental Health Louisiana Legal Service, Inc., in

Louisiana Bar Journal October / November 2020 220 Vol. 68, No. 3 www.lsba.org Shreveport, serving as supervising University of Houston and his JD degree Judiciary Commission of Louisiana, the attorney in the family law unit. She in 1982 from Louisiana State University Indigent Defender Board for the 16th later worked as an attorney at Edwards Paul M. Hebert Law Center. After Judicial District, the Louisiana District & Associates Law Firm in Lafayette. graduating, he clerked at the 1st Judicial Judges Association and the Louisiana In 1994, she served as assistant district District Court and served as president Council of Juvenile Court Judges. He attorney for the 16th Judicial District of McConnell & Slattery, A.P.L.C. He was elected to the 3rd Circuit in 1975 working as a sex crimes prosecutor in served as assistant district attorney, 26th and retired as chief judge in 1994. Iberia Parish until her election to the JDC, for Bossier and Webster parishes ► Retired 5th Circuit Court of 16th JDC in 2002. in 1985 and became a city attorney for Appeal Judge Sol Gothard, 89, died July ► 34th Judicial District Court, the City of Springhill, Cullen, Sarepta, 5. He earned his bachelor’s degree in Division A, Judge Robert A. Buckley Shongaloo and Cotton Valley in 1986 1953 from City College of New York, retired effective Feb. 1. He earned until his election to the Springhill City his master’s degree in 1957 from Case his bachelor’s degree in 1972 from Court in 2000. Western Reserve University and his JD Louisiana State University and his JD ► Retired 3rd Circuit Court of Appeal degree in 1962 from Loyola University degree in 1976 from Loyola University Chief Judge Edmond L. Guidry, 93, New Orleans College of Law. Prior to New Orleans College of Law. Before died June 20. He earned his bachelor’s serving on the bench, Gothard served in his election to the 34th JDC in 1993, degree in 1942 from Southwestern the U.S. Army, later working as a social Buckley served as an assistant district Louisiana Institute (later the University worker. He was elected as judge for attorney and an attorney for the St. of Louisiana at Lafayette) and his JD Jefferson Parish Juvenile Court in 1972 Bernard Parish School Board. degree in 1948 from Louisiana State and was re-elected without opposition University Law School. He served as a in 1979 and 1985. He worked as an Deaths city councilman, City of St. Martinville, adjunct professor at Tulane and Loyola from 1958-62. He was elected judge on universities. He was elected as 5th ► Springhill City Court Judge John the 16th JDC in 1968 and re-elected in Circuit judge in 1986 and was re-elected B. Slattery, Jr, 65, died July 7. He earned 1972. He served on the Judicial Council in 1990, where he served until his his bachelor’s degree in 1977 from the of the Louisiana Supreme Court, the retirement in 2005.

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Louisiana Bar Journal October / November 2020 220 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 221 Vol. 68, No. 3 www.lsba.org PEOPLE LAWYERS ON THE MOVE . . . NEWSMAKERS

Jones Walker LLP announces that Robert B. Phelps Dunbar, L.L.P., announces that LAWYERS ON (Rob) Worley, Jr. has returned to the firm as Warner J. Delaune, Jr. has joined the firm’s THE MOVE a partner in the Litigation Practice Group in Baton Rouge office as a partner. the New Orleans office. He also is a member Bryson Law Firm, L.L.C., announces that of the compliance and securities team. Attorney Christian N. Weiler of New Or- Brandon N. Juneau and Jessica Byrd leans has been confirmed as a judge on the Thibodeaux have been named partners Louisiana Gov. John Bel Edwards has United States Tax Court for a 15-year term. in the firm’s Baton Rouge and Covington appointed Ernest P. Legier, Jr. as commis- offices, respectively. sioner of the Louisiana Office of Alcohol NEWSMAKERSNEWSMAKERS and Tobacco Control. Daigle Fisse & Kessenich, P.L.C., announc- Richard J. Arsenault, a partner in the es that Katelin H. Varnado has joined the The Louisiana 2nd Circuit Court of Ap- Alexandria firm of Neblett, Beard & Arse- firm’s Baton Rouge office as an associate. peal announces that Lillian Evans Richie nault, was appointed to the National Board has retired as clerk of court and judicial of Trial Advocacy’s Complex Litigation Dwyer, Cambre & Suffern, A.P.L.C., in administrator after nearly 25 years of Specialty Program Commission. He also Metairie announces that attorneys Ryan service to the court. She will resume the spoke on litigation management at a Baylor M. McCabe and Laura C. Carroll have practice of law with her husband, C. Ver- Law School webinar, received an AV pre- joined the firm. non Richie, in Richie, Richie & Oberle, eminent rating from Martindale-Hubbell L.L.C., in Shreveport. and was nominated for inclusion in Who’s Johnson, Yacoubian & Paysse, A.P.L.C., Who in America. in New Orleans announces that Jeffrey Mouledoux, Bland, Legrand & Brackett, C. Brennan has joined the firm as special L.L.C., announces that Christopher B. Blake R. David, senior partner at Brous- counsel and T. Simon Menard has joined Prudhomme and Alejandro J. Rodriguez sard & David in Lafayette, was appointed the firm as an associate. have joined the firm’s New Orleans office to the Louisiana State Bar Association’s as associates. Insurance Committee.

W. Raley Alford III Richard J. Arsenault Jeffrey C. Brennan Blake R. David Warner J. Layne C. Hilton Delaune, Jr.

Brandon N. Juneau Allan Kanner Lynn M. Luker T. Simon Menard Kathryn W. Munson Thomas P. Owen, Jr.

Louisiana Bar Journal October / November 2020 222 Vol. 68, No. 3 www.lsba.org Layne C. Hilton, an associate at Kanner Micah C. Zeno, an associate in the New Michael R. Schneider, Dana M. Shelton, & Whiteley, L.L.C., in New Orleans, was Orleans office of Gordon, Arata, Mont- Susan G. Talley, Scott T. Whittaker, Rachel chosen to co-chair the Class Litigation gomery, Barnett, McCollam, Duplantis & W. Wisdom, Phillip A. Wittmann and Paul Committee in In re: Valsartan Losartan Eagan, L.L.C., received the “Top 40 Under L. Zimmering. and Irbesartan Products Liability Litiga- 40: Nation’s Best Advocates” Award from tion (D.N.J.). the National Bar Association. Lawdragon 2020 Baker, Donelson, Bearman, Caldwell Patrick C. Morrow, Sr., senior partner in the PUBLICATIONSPUBLICATIONS & Berkowitz, P.C. (New Orleans): Jan Opelousas firm of Morrow, Morrow, Ryan, M. Hayden, inaugural Lawdragon 500 Bassett & Haik, was appointed by Gov. John Best Lawyers in America 2021 Leading U.S. Bankruptcy & Restructuring Bel Edwards as a member of the Board of Stanley, Reuter, Ross, Thornton & Lawyers list. Supervisors of Louisiana State University Alford, L.L.C. (New Orleans): W. Raley Kanner & Whiteley, L.L.C. (New and Mechanical College, representing the Alford III, Lynn M. Luker, Thomas P. Orleans): Allan Kanner, Elizabeth B. 5th Congressional District. Owen, Jr., Bryan C. Reuter, William M. Petersen and Conlee S. Whiteley. Ross, Richard C. Stanley and Jennifer Kelly D. Perrier, a member in the New Or- L. Thornton; also Kathryn W. Munson, People leans office of Gordon, Arata, Montgomery, Ones to Watch 2021. Barnett, McCollam, Duplantis & Eagan, Deadlines & Notes L.L.C., was named 2020 Co-Landman of Chambers USA 2020 Deadlines for submitting People announcements (and photos): the Year by the Professional Landmen’s Gordon, Arata, Montgomery, Barnett, Association of New Orleans. McCollam, Duplantis & Eagan, L.L.C. Publication Deadline (Lafayette, New Orleans): Michael E. Feb./March 2021 Dec. 4, 2020 J.E. (Buddy) Stockwell III has been ap- Botnick, Bob J. Duplantis, Ewell E. (Tim) April/May 2021 Feb. 4, 2021 pointed by the Tennessee Supreme Court as Eagan, Jr., C. Peck Hayne, Jr., Cynthia A. Announcements are published free of the new executive director of the Tennessee Nicholson and Howard E. Sinor, Jr. charge for members of the Louisiana State Lawyers Assistance Program. Simon, Peragine, Smith & Redfearn, Bar Association. Members may publish L.L.P. (New Orleans): Denise C. Puente, H. photos with their announcements at a cost Conlee S. Whiteley, a partner at Kanner & Bruce Shreves and Douglass F. Wynne, Jr. of $50 per photo. Send announcements, Whiteley, L.L.C., in New Orleans, was ap- Stone Pigman Walther Wittmann, photos and photo payments (checks payable pointed to the Plaintiffs’ Steering Committee L.L.C. (New Orleans): Hirschel T. Ab- to Louisiana State Bar Association) to: in In re: Zantac (Ranitidine) Products Liability bott, Jr., Joseph L. Caverly, Noel J. Darce, Publications Coordinator Darlene M. Litigation MDL (S.D.FL) and is co-lead coun- Daria B. Diaz, Michael R. Fontham, Erin E. LaBranche, Louisiana Bar Journal, 601 sel in In re: Valsartan Losartan and Irbesartan Kriksciun, Wayne J. Lee, Paul J. Masinter, St. Charles Ave., New Orleans, LA 70130- 3404 or email [email protected]. Products Liability Litigation (D.N.J.). Laura Walker Plunkett, David C. Rieveschl,

Elizabeth B. Christopher B. Bryan C. Reuter Lillian Evans Richie Alejandro J. William M. Ross Petersen Prudhomme Rodriguez

Richard C. Stanley J.E. (Buddy) Jessica Byrd Jennifer L. Thornton Katelin H. Varnado Conlee S. Whiteley Stockwell III Thibodeaux

Louisiana Bar Journal October / November 2020 222 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 223 Vol. 68, No. 3 www.lsba.org NEWS UPDATE... LOCAL BARS... LBF

UPDATE LSBA Members Chief Justice Johnson is Featured Recognized by NBA Women Panelist on National NAWJ Webinar Lawyers Division Louisiana Supreme Court Chief Justice Supreme Court’s strategy implemented to Bernette Joshua Johnson was a featured deal with the pandemic. Her presentation Four Louisiana State Bar Association panelist on a July 22 National Association was titled “Louisiana Judiciary’s Response members were recognized by the National of Women Judges (NAWJ) webinar, to Ensure Access to Justice During the Bar Association’s Women Lawyers “Bridging the Justice Gap in a Pandemic.” COVID-19 Global Pandemic.” Her pre- Division with awards honoring achieve- The webinar was a resource for judges on sentation included a chronological record ments by women lawyers and judges mak- building strategies that prioritize access of the many Supreme Court orders regarding a difference throughout the country and to justice with a commitment to safety in ing operations of the state court judicial the world. the midst of the ongoing COVID-19 pan- system, correspondence to state judges and The members of the Louisiana legal demic. others offering guidance on issues such as community receiving 2020 awards were: Other panel participants shared judi- adult jail population, juvenile detention, ► Ebony S. Morris, with Garrison, cial strategies during the pandemic, in- domestic violence cases, evictions, etc., Yount, Forte & Mulcahy, L.L.C., Young cluding Chief Justice Debra L. Stephens, and press releases to keep the public aware Lawyer Award; Washington State Supreme Court; and of ongoing developments. ► Adrejia Boutté Swafford, with Justice Lucy A. Billings, New York State Additionally, the Court created and Christovich & Kearney, L.L.P., Minority Supreme Court. Administrative Judge maintained a dedicated COVID-19 page Partner in a Majority Firm Award; Lisa Walsh of the Appellate Division, 11th on its website to ensure a centralized loca- ► Judge Trudy M. White, 19th Judicial Judicial Circuit of Florida, was modera- tion for all information. For the first time District Court, Excellence in the Judiciary tor. NAWJ President and Orleans Parish in the 207-year history of the Louisiana Award; and Civil District Court Judge Bernadette G. Supreme Court, the Court held oral argu- ► Dr. Angela White-Bazile, executive D’Souza gave opening remarks. ments in June 2020 utilizing video confer- counsel for the Louisiana Supreme Court, Chief Justice Johnson, whose final year ence technology, which was livestreamed Hidden Figure Award. on the state’s high court has been mostly on the Court’s website. The awards were presented during the consumed with addressing COVID-19 Virtual Achievement Awards Reception challenges, presented the Louisiana on July 23, held in conjunction with the 95th annual National Bar Association Convention.

TAX & ESTATE PLANNING CLE How Lawyers Survive in this Business & Tax Environment Friday, October 23, 2020 • WEBINAR For more information or to register, visit www.lsba.org/cle

Louisiana Bar Journal October / November 2020 224 Vol. 68, No. 3 www.lsba.org Gary Moore David Thibodeaux Jim Christman Jill Knight Nalty Market President – Louisiana VP & Trust Officer VP & Trust Officer Business Development Officer Shreveport, LA Baton Rouge, LA Lake Charles, LA New Orleans, LA

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LOUISIANA • TEXAS • OKLAHOMA • ARKANSAS • MISSISSIPPI • ALABAMA Louisiana Bar Journal October / November 2020 224 Vol. 68, No. 3 www.lsba.org TENNESSEELouisiana Bar • JournalKENTUCKY October • / NovemberNORTH 2020CAROLINA225 • SOUTHVol. CAROLINA 68, No. 3 www.lsba.org • GEORGIA • FLORIDA LOCAL/SPECIALTY BARS

Attending the Lafayette Bar Association (LBA) Young Lawyers Section (YLS) installation ceremony were, from left, David P. Kobetz, Neuner Pate; Quincy L. Mouton, Neuner Pate; Katie B. Williams, Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards, L.L.P.; Kenneth P. Hebert, Broussard & David; Stuart R. Breaux, Southern Lifestyle Development Company, L.L.C., 2019-20 LBA YLS president; Carolyn C. Cole, attorney at law, 2020-21 LBA YLS president; John P. Graf, Anderson, Dozier, Blanda & Saltzman; Thomas R. Hightower III, Thomas R. Hightower Jr., A.P.L.C.; and Daniel J. Phillips, Oats & Marino. Lafayette Bar Association’s YLS Installs Officers, Chairs The Lafayette Bar Association (LBA) J. Derek Aswell, Broussard & David; Young Lawyers Section (YLS) installed its Treasurer Roya Boustany, 15th JDC Office 2020-21 officers on Aug. 6 at the Lafayette of the District Attorney; and Secretary Lafayette City Court Judge Frances M. Bar Association office. To provide a safe Jamí Ishee of Davidson Meaux Sonnier Bouillion, left, administered the oath of office environment during the COVID-19 pan- McElligott Fontenot Gideon & Edwards. to 2020-21 Lafayette Bar Association Young demic, in-person attendance was limited to Immediate Past President is Stuart R. Lawyers Section President Carolyn C. Cole. those being sworn in. Other section officers Breaux, Southern Lifestyle Development joined via Zoom for a “virtual swearing-in” Co., L.L.C. and the rest of the association was invited YLS committee chairs were installed, to watch the event via Facebook Live. including Awards & Grants Chair Katie Lafayette City Court Judge Frances M. Williams and member Dan Phillips; CLE Bouillion conducted the swearing-in of Chair Quincy L. Mouton and member the new president, officers and committee Ainsley Fagan; Community Service Chair Incoming Lafayette Bar Association Young chairs. Jessica Allain; Golf Tournament Chair Lawyers Section President Carolyn C. Cole, Installed were President Carolyn C. Jason Matt and member Chris Ortte; and right, presented an award to outgoing President Cole, attorney at law; President-Elect Health & Wellness Chair David P. Kobetz. Stuart R. Breaux at the Aug. 6 installation.

For more information or to register, visit www.lsba.org/cle

Louisiana Bar Journal October / November 2020 226 Vol. 68, No. 3 www.lsba.org LOUISIANA BAR FOUNDATION President’s Message Protecting Families During the Pandemic By 2020-21 President Harry J. (Skip) Philips, Jr.

ctober is Domestic Violence matters and other ► Metro Centers for Community Awareness Month. The resources. Advocacy (Jefferson; 504-837-5400). National Coalition Against ► Oasis (Lake Charles, Allen and Domestic Violence recently I am proud to re- Cameron; 337-436-4552). Oreported that one in three women in the port that this year ► Project Celebration (Many; 318- United States has experienced some form the Louisiana Bar 256-6242). of physical violence by an intimate part- Foundation (LBF) ► Safe Harbor (Covington and ner. According to the study “When Men awarded more than Slidell; 985-626-5740). Murder Women” by the Violence Policy $550,000 in grants ► Southeast Spouse Abuse Program Center, Louisiana is ranked second high- to domestic violence Harry J. (Skip) (Covington, Baton Rouge, Hammond, est in the nation for homicides related to agencies across the Philips, Jr. Marrero and New Orleans; 888-411- domestic abuse. Domestic violence cuts state. These agencies provide legal ser- 1333). across family, racial and socioeconomic vices for women and children including ► St. Bernard Battered Women’s lines — impacting individuals regardless a 24-hour crisis line; shelter for abused Program, Inc. (St. Bernard; 504-277- of race, age or economic stature. spouses and their children; legal services; 3177). education concerning domestic and dat- ► The Haven, Inc. (Houma; 800- Kelly’s Story ing violence; and establishing collabora- 915-0045). Kelly endured years of abuse at the tive relationships with law enforcement, ► The Wellspring Alliance for hands of her boyfriend. He berated her, judges, clerks of court and prosecutors. Families (Monroe; 318-651-9314). beat her and choked her. In the fall of As lawyers, we have an opportunity Acadiana Legal Services, (337)237- 2019, when she was several months preg- to help victims gain access to the legal 4320, and Southeast Louisiana Legal nant with their child, he threatened to kill system regardless of financial situation Services, (504)529-1000, also provide her. In fear for her life, she finally broke and to help break the cycle of violence in domestic violence services. off the relationship. their families. You can help by support- We know that during and after a di- Kelly believed it was important for ing the LBF. saster such as the COVID-19 pandemic, her child to have a relationship with his The LBF proudly supports the follow- civil legal aid needs are dramatically father, so she allowed him to have lim- ing domestic violence programs (with of- increased. Experts expect incidents of ited visitation. In April, with the stay-at- fice locations and hotlines listed): domestic violence will increase as the home order still in place, the child’s fa- ► Beauregard Community Concerns pandemic continues. Reports of domes- ther asked to deliver a gift to the child. As (DeRidder and Leesville; 337-462- tic violence tripled in China at the height soon as he arrived, he snatched the child 1452). of the pandemic, and police officers and and fled. He refused to answer her phone ► Catholic Charities of New Orleans/ survivor advocates across the United calls or respond to any of her attempts to Project SAVE (New Orleans; 504-310- States fear the same will happen here. contact him. 6827). Avoiding public spaces and working She called the police and was told they ► Chez Hope, Inc. (Franklin and remotely can help to reduce the spread of could not do anything without a restrain- Thibodaux; 337-828-4200). COVID-19, but, for some, staying home ing order from the court. With the help of ► D.A.R.T of Lincoln (Lincoln, may not be the safest option and can ex- a Southeast Louisiana Legal Services le- Jackson, Union, Bienville and Claiborne acerbate fragile relationships and volatile gal aid attorney, Kelly was able to obtain Parishes; 318-251-2255 or 888-411- situations. Added stress and financial a temporary restraining order and her 1333). strain may also be a factor in increasing baby was safely returned to her. ► Faith House, Inc. (Lafayette; 888- violence in the home. It’s critical for survivors of domestic 411-1333). Please remember to support the LBF. abuse like Kelly to know that legal help ► Family Justice Center of Central Go to www.raisingthebar.org to make is available for individuals experiencing Louisiana (Pineville; 504-866- 9554). a donation. We have an opportunity to — or at risk of — violence in their homes. ► Jeff Davis Communities Against make Louisiana’s civil justice system This help can include getting protective Domestic Abuse (Jennings; 866-883- more accessible to all, and we need your orders against abusers, family custody 2232). help.

Louisiana Bar Journal October / November 2020 226 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 227 Vol. 68, No. 3 www.lsba.org LBF Grant LBF Kids’ Chance Awareness Application, LRAP Application Week is Nov. 9-13 Available Online Every year, the Kids’ Chance com- workers killed or permanently and munity (now in 47 states) dedicates one totally disabled in a work accident. The Louisiana Bar Foundation’s (LBF) special week to raise awareness of the Applications for the 2021-22 academic grant application for 2021-22 funding is Kids’ Chance Scholarship Program na- year will be available online Dec. 1, now available online. The deadline for sub- tionwide. From Nov. 9-13, the Louisiana 2020. mitting grant applications is Dec. 1, 2020. Bar Foundation’s (LBF) Kids’ Chance For more info about LBF Kids’ The Loan Repayment Assistance Committee will send care packages to Chance: https://raisingthebar.org/pro- Program (LRAP) application for 2021-22 current Kids’ Chance scholarship re- grams-and-projects/kids-chance-schol- funding also is available online. The dead- cipients and work to raise awareness of arship-program. line for submitting the LRAP application is Kids’ Chance in Louisiana. For program guidelines: https:// Feb. 12, 2021. Want to help with Kids’ Chance raisingthebar.org/kids-chance-schol- For more information, contact Renee Awareness Week? arship-program/kids-chance-scholar- LeBoeuf at (504)561-1046 or email ► Donate company swag and gift ship-guidelines. [email protected]. Grant ap- cards to include in the Kids’ Chance Too young for college? Sign up for plications will be available online at: Care packages. “Planning for the Future” and, when the www.raisingthebar.org. ► Host a “Dress Down for Kids’ time is right, Kids’ Chance will make Chance Day,” with donors getting to contact: https://www.kidschance.org/ wear jeans to work for the day. planning-for-the-future/. Save the Date! ► Host a “Pizza Party for Kids’ If you have questions or want to Louisiana Bar Foundation Chance,” letting donors have a fun get involved with helping families of 35th Annual Fellows Gala pizza party at work while sharing Kids’ Louisiana workers killed or permanent- Chance information with them. ly and totally disabled in a work acci- Friday, April 23, 2021 The LBF Kids’ Chance Scholarship dent, contact Dee Jones at (504)561- Hyatt Regency New Orleans Program is for dependents of Louisiana 1046 or email [email protected]. Discounted rooms are available Thursday, April 22, and Friday, April 23, 2021, at $259 a night. To make a reserva- tion, call the Hyatt at 1(800)233-1234 and LBF Announces 2020-21 reference “Louisiana Bar Foundation” or go to: https://www.hyatt.com/en-US/ CPP and Committee Chairs group-booking/MSYRN/G-LARB. Reservations must be made before The Louisiana Bar Foundation an- Development Committee; Kerry A. Thursday, March 25. For more Gala in- nounced its 2020-21 Community Murphy, vice chair of Development formation, contact Danielle J. Marshall Partnership Panel (CPP) chairs and Committee; Professor Russell L. at (504)561-1046 or email danielle@ committee chairs. Jones, Education Committee; Alan G. raisingthebar.org. CPP chairs are Shannon Seiler Brackett, Finance, Investment, Grants Dartez, Acadiana; Teresa D. King, Committees; Amanda W. Barnett, Bayou Region; Linda Law Clark, Governance Committee; Matthew R. LBFAnnounces Capital Area; Elizabeth W. Randall, Richards, Kids’ Chance Committee; Central; Margaret E. Woodward, and Edmund J. Giering IV, Regional New Fellows Greater Orleans; Thomas M. Hayes Grantee Board and Staff Training IV, Northeast; Hon. Page McClendon, Committee. The Louisiana Bar Foundation Northshore; Paul L. Wood, Northwest; welcomed the following new Fellows: and Edwin F. Hunter III, Southwest. Committee chairs are Harry J. (Skip) Danielle N. Brown...... Shreveport Philips, Jr., Executive and Nominating Ebony S. Morris...... New Orleans Committees; Julie M. Lafargue, Building Committee; Deidre Deculus Sachida R. Raman...... Lafayette Robert, Communications Committee; Hon. Charles A. Smith...... Benton www.lsba.org/mentoring/ Charles C. (Chuck) Bourque, Jr., spotmentoring.aspx

Louisiana Bar Journal October / November 2020 228 Vol. 68, No. 3 www.lsba.org LBF Awards $8.7 Million for Civil Legal Aid The Louisiana Bar Foundation (LBF) ACADIANA First Grace Community Alliance ...... $17,000 recently awarded more than $8.7 million Acadiana Legal Services Corp...... $1,423,344 Frontline Legal Services ...... $50,000 in grants to assist women, children, the Catholic Charities Diocese Justice and Accountability Center elderly, people with disabilities, the newly of Baton Rouge ...... $57,750 of Louisiana ...... $50,000 Louisiana Center for Children’s Rights...... $40,750 unemployed and those facing loss of their Chez Hope, Inc...... $77,054 Faith House, Inc...... $37,524 Loyola University New Orleans homes with civil legal aid issues. The LBF Frontline Legal Services ...... $50,000 College of Law ...... $10,000 has partnered with local nonprofit civil Lafayette Parish Bar Foundation ...... $76,900 Loyola University New Orleans College legal aid organizations who serve the re- NO/AIDS Task Force dba of Law Wage Claim Clinic ...... $10,000 gions’ poorest citizens. CrescentCare ...... $17,750 Metro Centers for Community Advocacy...... $40,000 LBF President Harry J. (Skip) Philips, NO/AIDS Task Force dba CrescentCare...... $17,750 Jr. said, “In these unprecedented times, the BAYOU REGION The Pro Bono Project ...... $123,775 number of our citizens facing life-changing Acadiana Legal Services Corp. Southeast Louisiana Legal Services ...... $1,376,656 challenges increases every day. Through (St. Mary Parish only)...... $1,423,344 St. Bernard Parish Battered Women’s Program ...... $24,729 no fault of their own, more families find Catholic Charities Archdiocese of New Orleans ...... $66,000 themselves qualifying for civil legal aid Catholic Charities Diocese NORTHEAST and more civil legal issues are surfacing. of Baton Rouge ...... $57,750 Acadiana Legal Services Corp...... $1,423,344 Civil legal aid is a vital component of the Chez Hope, Inc...... $77,054 Catholic Charities Diocese of societal response to, and recovery from, Southeast Louisiana Legal Services (Lafourche Baton Rouge ...... $57,750 the current public health crisis.” and Terrebonne parishes only)...... $1,376,656 Catholic Charities of North Louisiana... $50,000 Access to civil legal aid makes the The Haven ...... $37,149 D.A.R.T. of Lincoln ...... $39,295 community stronger by helping people T.E.A.M.S. (Training, Education and avoid foreclosure, protect themselves from CAPITAL AREA Mediation for Students) ...... $25,000 The Wellspring Alliance for Families.....$60,654 domestic violence, gain custody of loved Baton Rouge Bar Foundation...... $100,775 Baton Rouge Children’s Advocacy ones and safeguard economic security. Go Center ...... $20,000 NORTHSHORE to www.raisingthebar.org to view a list of Catholic Charities Diocese Baton Rouge Bar Foundation ...... $100,775 grantees by services provided. of Baton Rouge ...... $57,750 Catholic Charities Archdiocese of New Grants in the statewide section serve Chez Hope, Inc...... $77,054 Orleans ...... $66,000 all 64 parishes. Acadiana Legal Services Frontline Legal Services ...... $50,000 Catholic Charities Diocese of Corp. and Southeast Louisiana Legal Justice and Accountability Center Baton Rouge ...... $57,750 Services serve multiple regions. of Louisiana...... $50,000 Frontline Legal Services ...... $50,000 Metro Centers for Community Justice and Accountability Center Advocacy...... $40,000 of Louisiana ...... $50,000 STATEWIDE GRANTEES NO/AIDS Task Force dba CrescentCare....$17,750 Access to Justice Commission...... $55,000 NO/AIDS Task Force dba Safe Harbor, Inc...... $18,000 Access to Justice Fund Grants...... $40,000 CrescentCare ...... $17,750 Southeast Louisiana Legal Services.....$1,376,656 Children in Need of Care ...... $3,100,672 Southeast Louisiana Legal Services...... $1,376,656 Southeast Spouse Abuse Program dba General Appropriations ...... $500,000 Southeast Advocates for Family Innocence Project New Orleans...... $85,000 CENTRAL AREA Empowerment ...... $16,270 Jock Scott Community Partnership Panel Acadiana Legal Services Corp...... $1,423,344 The Pro Bono Project...... $123,775 Grants...... $90,000 Beauregard Community Concerns, Inc...... $38,562 Youth Service Bureau of St. Tammany.....$25,000 Kids’ Chance Scholarships...... $35,000 Catholic Charities Diocese Lagniappe Law Lab...... $114,000 of Baton Rouge ...... $57,750 NORTHWEST Louisiana Appleseed ...... $144,000 Catholic Charities of North Louisiana.....$50,000 Acadiana Legal Services Corp...... $1,423,344 Louisiana CASA Association...... $10,000 Central Louisiana Pro Bono Project .....$37,775 Catholic Charities of North Louisiana..$50,000 Louisiana Center for Law & Civic D.A.R.T. of Lincoln ...... $39,295 Project Celebration, Inc...... $40,000 Education...... $35,000 Faith House, Inc...... $37,524 Shreveport Bar Foundation...... $54,775 LouisianaLawHelp.org and Probono.net.....$13,000 Family Justice Center of Central T.E.A.M.S. (Training, Education and Louisiana State Bar Association - Young Louisiana ...... $33,739 Mediation for Students)...... $25,000 Lawyers Division ...... $10,000 Project Celebration, Inc...... $40,000 Pro Hac Vice ...... $118,940 The Wellspring Alliance for Families ...... $60,654 SOUTHWEST Regional Grantee Board & Staff Training...... $7,500 Acadiana Legal Services Corp...... $1,423,344 Speak Out for Justice! Focus On GREATER NEW ORLEANS Beauregard Community Concerns, Inc...... $38,562 Civil Legal Aid ...... $3,500 Catholic Charities Archdiocese of Jeff Davis Communities Against Domestic Statewide Case Management System.....$8,000 New Orleans ...... $66,000 Abuse...... $24,337 The Advocacy Center ...... $58,750 Catholic Charities Diocese of Oasis A Safe Haven for Survivors of Domestic The Ella Project ...... $12,000 Baton Rouge ...... $57,750 Catholic Charities Archdiocese of and Sexual Violence...... $22,033 New Orleans – Project SAVE ...... $40,654 Southwest Louisiana Bar Foundation...$31,000 The Southwest Louisiana Law Center..$25,000

Louisiana Bar Journal October / November 2020 228 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 229 Vol. 68, No. 3 www.lsba.org CLASSIFIED ADS ONLINE AT WWW.LSBA.ORG CLASSIFIED NOTICES

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Louisiana Bar Journal Vol. 64, No. 5 413 Louisiana Bar Journal October / November 2020 230 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 231 Vol. 68, No. 3 www.lsba.org

0217_LBJ_JOURNAL_MAGAZINE.indd 413 12/20/2016 2:34:55 PM The Last Word

ness is a positive good. Asked whether he gets nervous during a big tournament, Tiger Woods answered: “Of course. If you’re not What, nervous on a day like this, you’re not alive.” Besides, do clients really want a lawyer who doesn’t worry? Do they want someone who acts like he or she doesn’t really care, who thinks things will simply work themselves out? I don’t think Me Worry? so. I recall the same Bill Christovich years ago, asked to weigh in on the pros and cons of a smart young associate, responding, again with a sigh: “He doesn’t suffer enough.” Translation: When the By E. Phelps Gay bell rings in court, you must stand up strong, confident and self- possessed, but, leading up to that point, it is okay to grind, worry “I’ve lived through some terrible things in my life, some of and, yes, suffer. which actually happened.” During a conference at Tulane University — a year or so ago, —Mark Twain (Attributed) pre-COVID, when masses of people gathered in college auditori- ums — former Secretary of State Madeleine Albright said she is s a young man, I had the good fortune to work side- sometimes asked whether she is an optimist or a pessimist. Her by-side with a talented trial lawyer by the name of response is always the same: “I’m an optimist . . . who worries.” William K. Christovich. To me, he seemed like a At the same time, clients do not want someone who over-wor- natural. He could walk into a courtroom, listen to tes- ries, who constantly stews and sweats and becomes so stricken timonyA from the opposing side, and, in an instant, focus on the one with fear and anxiety he or she cannot perform in court — or at the area where the witness was vulnerable, make his point quickly and negotiating table or in front of a computer drafting a critical brief cleanly, and then get out. Few people escaped the combination of due the next morning. his keen intellect, magnetic personality and unerring instinct for So where do we draw the line between constructive and de- what the situation demanded. bilitating worry — what the psychologists call “catastrophizing”? But, as someone said, appearances can be deceiving, and over Well, after 40-plus years at the Bar, my not-very-helpful answer is time I learned that what may have looked like a walk in the park I am not sure. But I humbly offer two suggestions. was often the product of intense preparation and not a little pre- First, to handle pressure you have to handle pressure. In short, trial anxiety. Every day at his desk, one could see him anxiously you have to do it. Try the case. Take the tough deposition. Make twirling his fingers in his hair. Occasionally, he bit his fingernails. the difficult argument. Volunteer to handle the risky transaction. One morning, as we were preparing to walk down to court to be- Offer to work all night to meet tomorrow’s deadline. Having sur- gin an important (and highly dangerous) trial, Bill looked at the vived the fire, you’ll be ready (or at least readier) for the next time. pad of time sheets on his desk, sighed and said he felt like writing Here, to further indulge my unfortunate habit of quoting people, down the following words for what he had experienced the night I could default to Teddy Roosevelt declaiming on those “timid before: “Eight hours: Worry.” souls” who never enter “the arena” and, therefore, know neither So we’re lawyers: we deal in trouble. That’s what we do. Part victory nor defeat . . . but you get the idea. of our value is that, supposedly, unlike other mortals, we are able Second, and this may be my only useful advice, you have to to confront difficult and worrisome problems and figure out how have a highly developed, perhaps even warped, sense of humor. to resolve them in a calm and sensible way. We are counselors, Things may go well — and yet things may not go well. You may clear-headed professionals who can handle pressure and not win, or you may crash and burn. I recall once telling someone I flinch. When the evidence from the witness stand is crushing our thought I might have made a very bad mistake which could land client’s cause, we maintain a poker-face. When, in response to our me in a lot of trouble. My friend, to whom in my shaken state first argument, the judge tells us “that dog won’t hunt,” we seam- I was looking for sympathy and support, replied: “Don’t worry, lessly shift to Argument No. 2, hoping that canine will run straight Phelps. If it all goes south, I’ll come visit you in jail.” to its prey. That cracked me up and calmed me down. So far, I have es- More succinctly, in the immortal words of Thurgood Marshall, caped incarceration. But, I worry, someday it might happen. t “Lose your cool, lose your case.” At the same time, worrying over your work is by no means a E. Phelps Gay is a partner and former managing bad thing. If you are thinking and worrying about what could go partner of Christovich & Kearney, L.L.P. He also is an wrong, you are, in my humble view, doing your job. It is not a arbitrator and mediator with The Patterson Resolution Group. A graduate of Princeton University and mistake to spend time preparing your response to a negative de- Tulane Law School, he served as 2000-01 president velopment that may never occur. (A friend of mine once said the of the Louisiana State Bar Association and as 2016- way to handle stress is to “out-organize it.”) And mere nervous- 17 president of the Louisiana Association of Defense Counsel. ([email protected]; Ste. 2300, 601 Poydras St., New Orleans, LA 70130)

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