May 1986
HugoL. Black 1886-1971
1986LAW DAY "Foundations of Freedom" '~t Union Bank, ire UXJrkhard to earn your tnJSt.'' - Henry A. Leslie President and Chlel E.xecutiveO lficcr
L'nion Uank wori-...,doselv wilh manv t\fab.una atto1nevs in lh e ad111inis11111icinuf 1n1s1s .'111dll:. lal c:,. 0Ltr invest men I capabiliti es ha\'e i nc:rPased tlr ..u11alicall y in lhC' pasl ,VP.al'hy Lhe acid ii ion of a state-of-I he-a11 con 11JLIICl'izccl sys tem . 1\ s ,\lahama 's lal'gest inclependc111 bank , wci conlm l all m11· i.nveslm en l p1'0eessing wi1hin 1he Tru st Depal'l 1m•11110 assure conslan l al ten I ion and e,;rn nplele conliclr•nl ialit.v for vow· clien ts. • \Ve in viteyuurques li uns .iboul Union Banl..'s 1nrs1 services. Our rxpPriP r 1eecllrtr sl ollicers will I><'glad to discuss any bu sine:,s. fi11.uwial or admjnis1r ._11i\l' m,pc•t·I of lhe services we prudcle .
I Ii tIC>11 BA.nK & TRUST: ...... 1;0 Co111111c:n-e St reel /\1 on tgo11wry. ,\lal>a111a:n; I ()..l 1205 J 265-820 I Tilley's ALABAMA EQUITY Second Edition by Nathaniel Hansford The author l'CCfiVt:dhis B.S. and LL.B. from the University of Georgia, his LL.M. from the University of Michigan. He is a member of the American, Georgia, Alabama, and TusdJoos:, Bar Assoeiatio11s.Mr. Hansfo1YIis che aucho,·of nu.ntcrouslaw review articlesand he ~f'\!cs as a lecturer for €LE. He has also served as .1 faculty member for the Alabama judicial College. He is currently j fcSS-Orof Law for the University of Alabama.
Nathaniel Hansford 's revision of Tillcy's classic treatise on Alabama equity: Keeps intact the original aut hor's supe rb comprehensive treat ment; Brings this area up to date; Rewrites the bq<)k'streatment to correspond with the Alabama Rules of Civil Procedure; and Each equitable remedy is a separate chapter. o 1985
For the practitioner who n eeds to know about equity pra ctice in Alabama.
~i:gularly $45.95 Special Introdu ctory Offer $39.95
Announcing . .. CANCER Causes and Methods of Treatment for Trial Lawyers Etiology; Diagnosis; Nutrition; Therapeutic Modalities • 198~ by John R. Mc Laren, B.S, M.D. This comprel\ensive NEW trea1ise was wrillen by expert John R. McLaren, B.S., M.D. ; Director of Radiation Therapy, Robert Winship Memorial C linic for Neopla stic Disease, Emory C linic; and Professo~ of Radio logy, Emory Universi ty School of Medicin e, Atlanta, Georgia. With contributions from numerous specialists, CANCER is a significa nt Source for non-oncologists, bo!h legal and medical. \ The book covers causative factors, nutrition, pathology, imaging of cancer, surgical treatment, radiation therapy , chemo1herapy , hyper1hermia , immunotherapy , and pediatric oncology. It contains over 100 illustra1ions, grap hs and tables. Glossa ries appea in selected chapters and at the end of the book. Frequent cross-references are made to relevant illustrations and sections. All of these features arc designed o clarify lhe discussion and faciliia1c comprehension of the subject whkh is very impor tant for this qu ickly developing , appos ite field. With CANCE R as a 1001, you will be represent ing your client from the most knowledgeable , up-to-date position possible - an advantage you can't afford to pass up! R egularly $99.95 Special Introductory Offer $89.95 For fast, efficient service call our toll-free WA TS: ... l' 1-800-241-3561 @CONTEMPORARY LITIGATIONSERIES
NE-W ~~~~~~~~~~~~~ FEDERALCRIMINAL TRIALS, by James C. Cissell, 1983 SCl'ENTlflC EVIDENCE, by Paul C. Giannelli and 9'35pages, hardbound ...... $50.00' Edward J. 1.mwinkelried, 1966 An essential courtroom manual for criminal trial practice. Appx. 1200pages, haJ"dbound...... $65.00' An excellent starting point for pretrial or appellate research. A A comprehensive new guide to a complex field. Ana practical, ready referenceto constitutional protections, federal lyzes each type of scientificevidence, surveying the scien criminal procedure, and the rules of evidence. tific state o( ihe art, as well as the statutes and case law governing the admission of evidence. Deals with issueson THE METHODS OF ATTACKINGSCIENTIFIC the forefront of the field, including chromatography, bat EVIDENCE, by EdwaJ"dJ. lmwinkelried, 1982 tered spouse synd rome, electrophoresis, hyPnoticmemory 547 pages, hardbound ...... $45.00' enhancement, radioimmunoassay, voicepnnts. " ... an excellentg uide to dealing with this crucialphase of a trial." - U.S. I.AwWrek. Describes a nd analyzes admisslbility SOOAL SCIENCE RESEARCHMETHODS FOR and weight attacks on numerous types of evidence including LITIGATION, by Donald E. Vinson and Philip K. drug identification, hypnosis, pathology, blood testlng, Anthony, 1985, 488 pages, hardbound ...... $45.00' psychiatry, fingerprints. " ... a practicala nd useful addition to the advocate's book EYEWITNESSID ENTIFICATION, by LawrenceTay lor, shelf." - Gregory P. Joseph, ABA/011rnnl . Surveys the ways 1982, 304 pages, hardbound ...... $40.00' the attorney can use and challenge social ~ Addresses the psychology involved, theapp lkable law, and science methods in litigation. Analyzes t the examinationt echniques used in conductingdirect or cross the role social science methods can play h{ examination. Covers scienti6c research in the areas of per in litigation support in areas such as - ception, memory and suggestibility, as well as discussing jwy selection, venue analysis. trial r ...... _.,, scientific truth detection techniques and pretrial and in strategy, exhibit design. , court identification.
THE MICHIECOMPANY 9;,.. 71 Forcustomer service con tact: JAMES R. SHROYER P.O. Box 346, Wilsonville , AL 35186 (205) 326-9899 Or call toll-free 1-800-446-3410 •plus lrhipping..handJing ;and sal e$ lllX where applicable! The Alabaana awyer • VOL 47 NO. 3 MAY 1986
Publi~l'd se~ ''"'" ,1 yt ,i, by The JJ.,b..:lus,.- B,u PO , Bo>.41 56 MOit~~ . Al 36101 Phot,(' i20S:l 269·151S r1e 1:obc-rl A. H1,1ff~tr--ld ftor On the cover ( ,1rol AM Smi ~ (<)".f'(dlt<,t The United States ~ fg.lfd Oubberk!y -.',V111,11P(lgCcf J!O, Postal Service hon. S0AR0 Of £0 110 l S P~t!C'lc.H . Cr.ive., Jr,, Hunt)o vHk • Clump I.~. 1, .. Mobile!• Jul.a Sml.'dsS(cwjn , ored former U.S. Su· B1rm!"{C~ • Fr«1k-8. P«lf , flcwfflCC.'• ,. Matt \\' ~ Ill', p,e,,1eCourt Just ice ~ 1:!lM.it,::h• C. S1ephm Trilnm!,e,. 6i,ml11J1"'1m• 5U'l.:.n Mu~o t . Black by ~~ ~ofa, Mot'l llf.()Mc,tv • Ml
1011,0.ty con • ltobfr 1 It. Kt.ic~ . B•miflll,hilm • f;;lf'i1h8. ntation1 see page 128 Norm,n , ,\\oalg<)fflCt)' • Cf'O\o'('f$, Mcleod, 6lM'l1t1J• of lhis Issue. 11.;im• R.obt!l1 G. E)da!C', b-dfldo , ,\>\Ol'ltgomcry OFFICERS Ji1mf!t l. Nonh, 8lrmTngh,1m, Prcsl The Work Product Doctrine .. 142
dl!fll • \ \'IViJl'II O. sc.ru~ 1,., ran P"')'l'll'1 P~fdm 1. dCC"I. HMold A.lbonoo , .4,!)dllllJSta., Vi« P•Cii• In the final installment of a two-part dm 1 • R.(-J;lnilldr H;Jmntr, Mnt11~,y,SecN11 :,ry series, Lee H. Zell outlin es the scope of the BOARD Of CO,\tM IS$10Nl;llS hi Clttul l, (dw~d P. Tumtir, I,., Ch,,iom • 1nd Citt1.111.J~"IY L lhorMOn, work product doctrine. H,l'(Jll!'>'!I~ • J rd Otu1h, ly,in RQbc-1non Jac:hon, Cl"V'Ofl• ~1h (i1cuit. Aldlito l ~. J1., ~ • ~h Cl1ru11, f1td 0, Ct11y, l1,11,~ • 6d, CIK'uit, W.it:rr r. CICM'l'KW('f,TU$C1 1Q()JII• 7'li 01tvl1,. H. \Virynel.OYc. An nl*'1 • U.:hClrruil,A.J , ~. O(Q 1..- • 91h Ottu!I, \Yllli11il'I0 . SC,usgs.a,- ,, ft P.t)'l!C"• 10th Ornir!, f,.incN a. Hill'(',I r., 8 im1,l'!$b,)M• I Ith Cireud, Rot!t'Jt M lailll, ., ,. Rofmce • 1:Z 1h Ctt<\llt. ~ C. C;is.s,dy, Eti~· l~'j pri'l • • 13th Circuil, 8t-n M.H1irrit, I t,. .\'\Oblte• I .i1h (it· ('... :, .. n,l c, llobel1 T \Vdt0n. S,,, l.fl.tx.'f• 1S.h Circuit.John 8. . .. ~. t,.,,""On l~ll'V • J61h Circuit. Lud1¢r D, Milr1in, Q(bdm • 11th01(' 111, AAf\Jld$ . M,lnltv, Ottnopol is • .j/ --.....--;...,;a.4; 18di On:1.111,()flYl'f P . Mc,td. ColumboMI., • 19'h Crtt1>11, lahn Holli.\Jad,)On. J,.. a..,,c,n • Xllh Chall1,,\.\ '.ad,-8illl· 11-y. Ooihlln • lh l (ittuil.; 8100X(i. G1111t?t1. 8rt1vo10I'!• ,Ul'ld CIN:1111,,J,q!Ol(t A!btmM, ~m • 23rd Circlffl, G.11)'C. I l.u(k,1by, H1,.1nu'o'IUe• 2~1h Circull. L t. CO!o,), Vt•rnon • 151hOrcv! t, " '('IJOl"IV1fl',QII , H.amlllon • 2661 C!r~>t,U, Bow,:11H. 1k,l »c'll, Phmh. C11y• 27th ClrC11ft, Ch..vltsR Haft', J1, Albcr1v1Ueo• 2tllfl Cift'Uil, I Don f(K(('I, Foley • 29th O,cult 8 . C1eg \Vood. T.)il.1*8,1 • ,J.():hCu('t,r,1 , 8. I t,,~flhtrso,1, Ol'IOOl'II"• lhl Otcuil. Gorm,1n R. joot',. , Shrfflt'l(:I• J:lnd Cirailt John 0.,1vid Kn•#\ 1, CuUrn.in • lltd Cittui1, Ecfw.ird \V ~wdl, Ct'llt'V-'• 34th Cirtuit, lt0fit'1 H Bcdrord.Sr ., Ri.AK'II~ Coping with Vocational Expert 'I\Uc • )Slh C!1(111I, \¥11'1dttl(, 0wM1, i\\Ol'IIONl11t•• The State Action Immunity l&dl 01n111,0 1.. MM:tul, Moulton • J 71hOttu it, rhiU.1,11 Testimony ...... •... 150 E. Ad.vin, Ir,, ()pr l,h • ~ Clt(\1111,lol,,n f" Procr<>f, Doctrine : a Reassessment .. . 136 The use of vocational expert testimony SC01tsbol'o • l91h Ci!CUit,Jimmy t. Aln;.:indr. , A~ CifNERAl INfORMATION ThcAl.tb.am,1Llw,-tt , (1S$N Governmenta l agencies generally have has become inc reasingly common in per OOOl-4187),ltlc ofhci, l l)Ul,fte.11fonol the Al,111,m,.1SU ic enjoyed immuni ty from federal anti trust 8.ar, l~ PllblK~ scveti 1in1~ ,I ~'1'-lrkl 1ht! l'I\Oflllln o( sonal inj ury lawsuits. How can a vocational l.it1',U11Y, M111c:h,.Mo1y, fuly, A"IP,ll,I, ~i>e, ,\1-cl laws. In recent decisions the United States expert be used as an effective litigation tool? N~ . VH:W):ind conctu,kln1C"x111et:~'CIi n. o1nJ The Alaboma Lawyer 123 President'sPage Torl reform 2. there should be rigorous enforcementof ne problem writing this message professionaldisciplinary code provisionspro to you is that I must do it well scribinglawye rsfrom filing frivolous suits and defenses,and sanctions shouldbe imposed 0 in advance of publication, and ,vhen thosepf'Ol/ isionsare violated; by the time you receiveyou r copy of The 3. theres houldbe moreeffect ive procedures Alabama uiwyer events wilI have oc and increasedfunding to strengthen medical curred I could not foresee. like all of you licensingand disciplinaryboards al the state level;efforts s houldbe increasedto establish I have given a great deal or thought 10 the effectiverisk managementprograms in the so-called "tort reform" bills considered deliveryof healthcare services; during the 1986 RegularSession of the 4. no Justificationexis ts for exempting Alabama legislature. As I write this, I medical malpracticeact ionsfrom the rules or have no w;ry of knowing whether that punitivedamages app lied in 1011litigation to package or bills passed or failed. My deter grossmisconduct; 5. notices of intent to sue,scree ning panels guess is they probablywill failduring this and affidavitsor non-ilwolvement are un session, and in my opinion, that package necessaryin medicalmalpractice actions: clearly should have failed. 6. no Justification exists for a special rule Those proposals represented a radical governingmalicious prosecution actions restructuring of our tort system. One bill brought by healthcare providers agai nst per sons suingthem for malpractice; would have required a •·beyond a reason- NORTH 7. trialcourts shou ld carefullysc rutinize the able doubr standard of proof in certain qualifications of personspresented as expens civil cases. This sort of legislation is simply irresponsible. to assurethat on ly thosepersons are permittedto testifywho , The other bills were not quite as bad, but their pa.ssage by knowledge,sk ill,experience, training or education,qualify is not justified by the facts. as experts; 8. the collateral sourcerule should be retained; third panies It is welI documented that insurancerates havenot come who havefurnished monetary benefits to plaintiffss hould be down in states adopting "tort reform:' The crisis, If there permittedto seek reimbursement out of the recovery; be one, is an insurance crisis. It arises from the practice, 9. contingent fees provideaccess to the courts, and no in past years,of insurancecompanies co mpetingfrant ically justification exists for imposing special restrictionson these for premium dollars when interest rates were at historic fees in n,edical malpracticeacl ions; and 10.t he use of structuredsettlements sh ould be encouraged. highs. The insurers today are reaping the results of these improvidentprac tices. N-rthe less, during 1985, property I do not agree with all these propositions of the and casualty insurance stocks rose by twice as much as American Bar Association and merely include them for the overall Standard & Poor's stock index. Moreover,it is your information. Incidentally, your board of commis undisputed the doctors' mutual insurancecompany in Ala sioners, at its last meeting,endorsed legislationto impra,,e bama has been extremely profitable. doctor discipline, an ABAproposal. The American Bar Association has studied this matter in great detail. Three separate commissionswere appoint Nonetheless, notwithstanding the ABA position and ed to investigate the area. The latest, the American Bar what I said above, I believe there is a public perception Association Special Committee on Medical Professional some change in our tort system is needed. The pressures Liability, concluded, among other things, the following: are simply too great. When the President of the United I. Theregulation ol medicalprofess ional liability isa matter States weighs in on the side of an extremist task force (or state consideration, and federalirM>lveme nt in thatarea report, Time magazine makes it a cover story,every other is inappropriate: major publication writes about the "liabilitycr isis;• the air- 124 May 1986 waves are filled wi th programs on the Judge Wright Law, Yale Law School; and Daniel J. "lia bil ity crisis," and so many and such The Lee County Bar Association Meador, Mon roe Professor of Law, Uni varied constituencies-no t just doctors, honored Circ uit Judge George "Spud" versity of Virginia Law Schoo l. but homebuilders, small business men Wright in ceremonies Ap ril 4, featuring Justice Black's law clerks partic ipated and wo men, municipal and co unty offi the chief justice as principal speaker. in the program, and the highlight of the cials- are calling for modifications in our Chief Justice Torbert's remarks about his two-day program was the presence of system, inevitably there is going to be long-time close friend were both humor Mrs. Elizabeth Black and the rest of the public pressure for change. ous and dign ified, perfect for the occa Judge's family. Therefore, I believe we will con tin ue sion. There ,vere many lawyers from From all reports it was a splendid to see legislative effons relating to our around the state, along wi th a number event. The University of Alabama, Presi liability system. Ma ny friends in the of appellate and circu it j udges. Jim dent Thomas, Dean Gamble and Profes plaintiffs' bar say not. They say, as noted 1-taygood, president of the Lee County sor Tony Freyer are to be commended for above, the facts do not supporl change; Bar, presented Judge Wright with a hand their efforts. It was tru ly appropriate that the fault lies not wi th our legal system some portrait, to be hung in Judge Alabama hono r one of its giants. but with the insurance industry, and wi th Wright's court room. (editor's note: Judge appropriate public education, the current Wright d ied Ap ri l 21, 1986.) Midyear Meeting clamo r simply will go away. Perhaps so. The Midyear Meeti ng of the bar was I certainly agree the facts do not support Arthur Goldberg held in Mo ntgomery March 19 and 20. the radical changes recently urged on On March 15, B'nai B'rith presented its Jim Sasse,of Montgomery was the chair our legislature or the proposals recom Great Americans Award to former Asso man of the committee planning the mended by the President's task force. ciate Justice of the United States Supreme meeting, a.nd he d id a splendid job. Reg W hat if I am right, though? What if the Court, Ambassador to the United Na gie and the staff performed in their usual publ ic outcry for change contin ues? tions and Secretary of Labor, Arthur J. outstanding manner. Shouldn't it be our responsibili ty as law Goldberg. As your president, I served as yers to be in the forefront of shaping any state chairman for the d inner. Ma ny law Commissioners' meeting change? Can't our present system be im yers attended, including former Alabama At your board of bar com missioners proved to elim inate abuses? I believe it State Bar President Sonny Hornsby and meeting. your commissioners made sev can be, and that we have a responsibili wife Judy. eral im portant decisio ns. First, they ty to the people of Alabama to participate agreed to petition the Alabama Supreme in fashioning any impl'O\a?ments eliminat Hugo Black Court for the establishment of an IOLTA ing existing problems, wh ile protecting Ma rch 16th, we attended a reception (Interest on Lawyers' Trust Accounts) the cherished fundamental rights of ac in honor of Associate Justice Will iam J. fund. The fund would be voluntary, the cess to our courts and a trial by jury. Brennan, held in connection with the purposes for wh ich moneys used would At recent legislative heari ngs, it be University of Alabama's Hugo Black Cen be precisely defined and it would be ad came apparent some groups involved tennial Celebration. The celebration con mini stered by your elected representa have become hysterical and paranoid . tin ued March 17th and 18th. The pro tives. Rowena Crocker of Birmingham Likewise, both sides have drawn a line gram included AssociateJust ice Brennan; and her committee members wor ked ex in the dust, unw illing to make any public former Associate Justice Goldberg; Chief tremely hard on this, and they deserve concession. In such circumstances, no Judge John C. Godbold and Judge Frank our thanks. reasonable compromise can be achieved M. Johnson, Jr., of the 11th Circuit; Judge Ralph Know les of Tuscaloosa, chair in a public forum. Certainly, more heat J. Skelly Wright and Judge Harry T. Ed man of the Taskforce on Judicial Evalua than light was shed in these hearings. wards of the District of Col umbia Circuit; tion, Selection and Qualifications, pre In my testimo ny on the tort reform and Chief Judge Truman Hobbs of the sented two subco mmittee chairmen, package, I recommended to the legisla Mid dle District of Alabama. Gene Stutts and Donald Sweeney, both ture that either it or the governor should There also were prom inent members of Birmi ngham. Stutts discussed a plan appoint a committee or task force repre of the press, among them Max Lerner of for the confidential evaluation of state senting all the constituent groups in the New York Postand syndicated col judges. The board approved the plan in volved to perform an in-depth study of umnist and author An thony Lewis from principl e and requested the committee the who le liabi lity area. If this study pro the New York Times. submit details regard ing the cost and ad d uces data call ing for legislative action, The follo wing scholars presented ministration of it. The com mittee hopes let the study group recommend reason papers: living Dillard, emeritus professor, to have a report for final ·action by the able solutio ns. Normally, I do not favor Princeton University; Gerald T. Dun ne, board before the annual meeting in July. these study groups. However, here, professor of law, St. Louis University Followi ng Sweeney's report, the board where the stakes are so high-not o nly School of Law; Paul R. Baier, professor approved the follow ing minima l stand for our profession but for the public of law, Louisiana State University Law ards for j udicial office. A judge should such an effort is justified . Center; A.E. Dick Howard, White Burkett be: (1) not less than 30 years old; (2) Above all, as lawyers, let us not forfeit Mille r Professor of Lawan d Public Affairs, licensed to practice law in Alabama; and our duty to lead in this situation. We are University of Virginia Law School; Guido (3) a law school graduate with at least fi-..e especially qualified to do this. Calabresi, dean and Sterling Professor of Continued on page 121 Tile Alabama Lawyer 125 ExecutiveDirector's Report Reflections on a Drunk Driver / / Itried to keep him off the free on bond because the city's appellate streets.• :' counsel wi!Sinvolved that day in another This phrase will remain em ca~ in another coun room. bedded in my memory for yea~. These There had been ano1her prior arrest word) were unered to me by a woman and convietion. As word of the driver's as I waited at Montgomery's Jackson previous alcohol-rela1ed offenses be Hospital, where Alex W. "Al" Jackson. came known throughout the city. the Jr., 1he seven-year-old son of one of the question, "How could he still have been bar's assislanrs general counsel, was be permined 10drivel", was asked by law ing maintained by life support equip yer and layman alike. ment In 1he Intensive care unit. The hurt and anger fell and expressed Al was a gifted youngster and wise be caused me to pull.my original column yond his years. He possessed a winsome abou1 commlnce work and ABA mem personality and ~ zes1 for life causing bership and askyou to reflect with me anyone meeting him for the first time Lo on our profession's need 10 examine a recognile him as special. system allowing a muhlple offender to HAMNER Al's parents were told his critical head rema,n behind a wheel, a threat to all inJury had resulted in brain death, ap who travel our highways and streets. proximately 15 minutes before this grief. Alabama has lhe finest court syStemin stricken woman spoke to me. She talked the nahon, but laymen do no1 fully un The image of lawyers and our role in about the 24-year-old man whose car derstand our system of justice or our 1he justice system should concern us all. struck Al the previous afternoon as he roles as ad\lOCa1es.I can 1ellyou fromthe I firmly believe we can take a giant step rode his bicycle home for supper. The comments I heard followingthis tragedy, 1oward greater public acceptance and driver had been drinking and, upon test the public is convinced something Is understandingIf our bench, oourt admin ing, his alcohol level was .16- legally wrong In the way DUI cases are han istrators and bar will work with legisla intoxicated. dled. A recent juror expressed disgust tors In commi1men1 Lo a critical review The problem of the drunk driver on 1he with the methods used 10 defend a DUI and revision of the laws on alcohol-re highways of America, on the roads of charge nnd declared the defense to be lated vehicular accidents. Alabama and on the s1ree1s of Mont "an Insult to 1he jurors' intelligence." There has to be a middle ground. I can gomery has been brought home to me All are aware or the more extreme crll· think of no greater memorial to Al in the most tragic way I can imagine, ics of our courts' handling ol DUI cases Jackson and other victims of drunk driv short of one or my sons' having been the and 1heunju st atracks upon judges who ers than conunlulng ourselves 10 finding victim. must act In accord with statutory law. 11. We can make a difference, and we This driver had been convicted of DUI likewise, I believe there are cases tha1 mus1. • as a result of an accident in August 1985 appear unduly delayed in reaching the with this woman. The same week in court for jud,clal determination. I would - Reginald T. Hamn er which this tragicevent occurred, shehad defend fo,cver 1hecons1itutiooal guaran gone 10 c1rcui1court. where the young tees of our B,11of Rights as I know you man appealed 1he conviction with hs would; however. 1histragedy convinced fl ne and jail sentence. The appeal had me Justice should be not only fair, bu1 been continued, and 1hedrive r remained swift and ccr1aln. 126 May 1986 is no doubting his sincerity nor the depth President'sPage of his convictions. MEDICAL EXPERTS Medical and Hospital Philip Gid iere, Jr., of Mo ntgomery and Continued from page 125 Malpractice A. Danner Frazer, Jr., of Mo bile represent Personal Injury ed the point of view of defense cou nsel Product Liability years' legal experience. The com miuee in medical malpractice cases and M. 1650 Board Certified highly plans to prepare implemen ting legisla Clay Alspaugh and Lanny S.Vines of Bir qualified medical exp,erts in all tion shor1ly. ming ham spoke for the plaintiff's side. specialties , nationwide and Alabama , to review medical At a luncheon meeting. we ,vere hon It was an interesting and provocative records and testify. ored to hear from the chief justice regard discussion of a controversial issue. We review, approve and guar ing proposed legislation provid ing fi. We also were hono red by greetings antee all reports. Flexible fee options from $150 nancing for a new ju dicial office build from two candidates for gO\-emor, Lieut~ Financial assistance: Alabama ing. No o ne can d ispute the crying need nant Governor Bill Baxley and Attorney Bar and ABA approved for new quarters for our appellate courts. General Charles Graddic k. Fonner Gov Experience: 1O years and The chief's proposal would provide for erno r Fob James and former Lieutenant 9,000 cases for 4.000 satisfied Alabama courts for the next century. I attorneys. Local references. GO\-emorGeorge McMill an had conflict FREE books by us. one with hope that by the date of this article this ing schedules. We appreciated the pres foreword by Melvin Belli. legislation w i II have passed. ence of Bill and Charl ie and enjoyed FREE telephone consultations with our Medical Directors. We had an excellent forum on medical their remarks. I hope that we wi II be able malpractice. Dr. Julius Michaelson, presi to entenain the next governor at our an Th e Me dical Quality Foundation dent of the Med ical Associatio n of Ala nual meeting in July. The American Board of bama and a family practitioner in Foley We also heard from the four con Medlcal 4 Legal Consultants for over 40 years, spoke first. Michaelson tenders for the office of attorney general: (703) 437 .3333 expressed his views ably, and while I District Attorney Jimmy Evans of Mont TOLL FREE disagree w ith hi m on some points, there gomery, Secretary of State Don Siegel- 1-800-336-0332 g-At.&as.ae, t& ded:(Xl(;e(;f to- tlie-inet1w-t;y ef .ru,1,r;/ .JI£,.. rvut .!PIM . ./ (I= '!Pa/.te,-fad! ·o-rv. .J!1u,,.yumer._y,./tlaoam.(b The Alabama Lawyer 127 man, Houston County Dis1ric1Altomey Tom Sorrells and G011ernorWallace's fomier legal advisor,Ken Wallis.Not sur prisingly.they all want 10 dean up toxic wastes and get criminals off the streets HUGO LA FAYETTE BLACK hardly the stuff o( contr011ersy.The dis cussion really boiled down to who could do the best lawyeringjob. They are im pressive candidate~. 1886-1971 Insurance Leg.11 malpractice insurance continues 10 be an CM!fridlngproblem. All I can say is that we are working on this matter as hard as we can. I wastold today your in surance committee plans to recommend the funding o( a professionalstudy of the The Uni,11rsityor Alabama Schoolof L..,.,v The next year.a one-day conference was feasibilityo( creating a capti\~ company. honored one o( iis graduates in February held, focusing on Black'syears of public wilh a two-dayconfe,ence. Ho.,~-er, this service In Alabama prior to his appoinl Ad.erllsing centennial celebrationor Hugo La fa)11ne ment ,n 1937 to the Supreme Coun. The Alabama Supreme Coun recently Black's binh was not the first. Among those making presentations "-ere ruled a lawyer must be permitted to ad Virginia Van der Veer Hamilton, profes venise the fact he is certified by the Na sor and univers,1yscholar in history,Uni lional Board ofTrlalAd-ocacy . The court In April 1984, during Law v\'eek activi versityof Alabama at Bim,ingham;David gavet he bar six months to draft proposed ties, awards were given in honor or the Shannon, commonwealth professor of advertising rule changes. There are basi United States Supreme Coun Justice. In his1ory, University of Virginia; J. Mills cally two approaches. One is to set up addillon, displays or Justice Black mem Thornton, 111, professorof history,Un iver our own certifying mechanism. The orabilia were unveiled. sity of Michigan; and Sheldon Hackney, other is to establish criteria which in president of the Universiiy of dependent certifyingboards or organiza. ~nnsylvania . tions must meet on order to satisfy Ala bama standards. I asked the TaskForce This year's ewnts Included an unveiling on Specialization, chaired by Carolyn of a U.S.postage stamp honoring Justice Duncan of Birmingham, to study this problem and come up with recommen Black and the final portion of the Cen dations for your board of bar com tennial, a tv.o-dayconference in March. missioners. During the 1986 conference, distin Obituaries guished iurlstS,jo urnalists and scholars Jefferson County lost two distinguished explored Black's contrlbulion 10 consti judges recently, Circuit Judge William tutional law while Associate Justiceor the Thompson and retired Orcuit fudge Wal U.S. Supreme Court, 1937-n. l,1ce Gibson. As I write lo you, I am saddened by the tragicdeath of seven-year-old Al Jackson, Justice William J. Brennan, Jr., U.S. Su the son or our own Alex and Mary Jack preme Court, delivered the keynote ad son. Al's needless death at the hands of dress, and others ca.,ired Black'ssuppon a drunken driwr is profoundly disturb of freedom of expression in America; his ing. Remember Alex and Mary in your impact on labor law; his decisions per prayers. • taining to debtor-creditor rights; his in fluence upon the traditionof judicial self restraint; his attitudes toward conslitu· - James L North tionalism; and his contribution to Amer Wzabelh Black ican Federalism. 128 May 1986 Among thcxe present during 1hese 1alks were Unl..ersity of Alabama President Joab L. Thomas, Uni,'ersity of Alabama School of LawDean Charles W. Gamble, die Honorable Frank M. Johnson and 1he Honorublo 10h11C. Godbold, chief judge of 1he 11thCircul l, U.S.Court of Appeals. Mrs. ElizabethBlack signed copies of Mr Justice and Mrs. Black: The Memorrs of Hugo L. and Elizabedi Black. The proceedings from lhe 1985 and 1986 conferences are 10 be published In ,l book, edllcd and forwarded by Tony A. Freyer, a professor at 1he University's School of Law and director of rhe cen- 1ennial honoring Justice Black. Beginning in th<>spring of 1983, approx ima1elySS0.000 was donared by 1heAl · abama Humanities Foundarion, National Endowment for the Humanities, Jus1lce Black's law clerks, Alabama Stale Bar. American Bor Foundation and Harvard I..JwSc hool. The Universityof Alabama I..Jw School Foundation con1rlbutecl nearly an equal amount Former law clerks of Black's, particularly Buddy Cooper, Jim North, Truman Hobbs. DavidV.mn and Mel Cle. Hugo I.. B1;1ck was born in Harlan (Clay Coumy), Alabama, February27. 1886. I-le grndua1ecl from 1he University of Ala bama School of Law in 1906, praa1clng firstin ruhL1ndand later in Birmingham. He was elec1ed to 1he United Slates Sen a1e on 1926and played significan1 roles in 1he establishment of the Tennessee Valley Au1horiiy and federal wage and hour laws. U.S.Supreme Court JusticeHugo l.1 Faycue Black Black was selec1ed in 1937 by Presidenl Franklin D. Roosevelt1 0 the U.S. Su preme Cour1. While an associate jusuce. Black 1ssurvi,'ed by his wife. Elizabeth (TheAlabama Lawyerthanks Glona Pur he ad,ocated separation of church and S. Black;children Hugo L Black,J~; Ster nell and TonyA . F,e\'l!rof the Uni,'ers1ty s1a1e,the enforcernen1of antitrust 13'~. ling F. Black; Josephine Black Pl?saresi; o( Alabama School of I.aw for th,m as racial del'egregauon and pro1ea,on of and Mrs. Black's son, Fred J. DeMeritte; sistance in preparing the information on First Amendmcnl righrs. and many grandchildren. Jusrice Black.) fhe ;1/Jbama Lawyer 129 BarBriefs Four th annual De vitt Award announced The Honorable William J. CampbelI , a federal judge for over 45 years, has been named recipient of the Devitt Dis• tinguished Service to Justice Award. The annual award is given to a federal judge nominated by members or the legal pro fession and deemed by the award com· mittee lo have contributed most to ad vance the cause of justice. Judge Camp Dickens offers new perspective bell will receive a $10,000 honorarium "If you compare prosecutors' argu and a specially engraved crystal obelisk ments in today's death penalty cases with at a presentation ceremony later this year. arguments used in the fictional 19th cen The awardco mmittee also announced tury English trials of Charles Dickens' Edward A. Tamm, recently deceased 24,450 legal Services cases closed in novels, you'll find that Dickens was upset Judge of the United States Cour1of Ap 1985 by the same things that tend to upset us peals in Washington,D.C. , will be a,,vard· Legal Services casehandlers in Ala today;·says Norman Stein, assistant pro ed posthumously a special Devitt Award bama and private lawyers representing fessor of law at the University of for his 37 years of leadership in the op Legal Services clients closed a total of Alabama. eration and improvements in the proce 24,450 cases last year, caseload iigures dures of the U.S. Circuit and Distrie1 Stein believes Dickens' works are ap indicate. Of that, 18,855 cases were propriate reading for "Dickens and ihe Courts in v\lashington,D.C. handled by Legal Services staff, and the The DevinAward , established in 1982, law;' a course he is teaching 10 some 20 rest were closed by privateattorneys. The third-yearl aw students al the University's is presented yearly 10 a federal judge, numbers by program are as follows: chosen by a panel of peers, on the basis School or Law. of his or her outstanding service 10 the BirminghamArea legal Services Cor· After almost three years of intense cause of justice. The award was created poration: 2,462 closed by staff and 548 study of law,a chance to look at law from in recognition of EdwardJ. Devitt, long closed by private attorneys; a broader perspective is especially im time Chief United States District Judge Legal Services Corporation of Ala· portant, he says. for the District of Minnesota who, in 38 bama: 13,690cases closed by staff and Dickens studied to be a lawyer,and le years or judicial service, made many sub 2,721 cases closed by private attorneys; gal themes and the image or lawyers are stantial contributions 10 the cause of Legal Services of North Central Ala· central to many of his books; his descrip justice. bama: 2,703 cases closed by staff and tion of trials let students look at the sys Previous recipients of the Devitt Award 2,326 cases closed by private attorneys. tem of justice from a different angle. are United States Circuit Judge Albert 8. LSNCA'spr ivate attorney caseload ap Maris of Philadelphia, United States Dis pears proportionally higher than the Among Dickens' legal themes are the trict Judge Walter E. Hoffmanof Virginia other programs because LSNCAr eports norms governing social interaction; how and United States Circuit Judge FrankM. all cases referred to private lawyers, in society views crime and treats criminals; Johnson, Jr., of Alabama. Chief Justice cluding fee-generating cases, criminal and how society distributes wealth and Warren Burger was honored by a Special cases and non-eligible clients, as part or privilege among classes. Award in 1983 for strong administrative its private bar involvement caseload. Textsfor the course include Dickens' abilities and inspiring leadership of the -Lega l Services Bulletin, novels ':ii Taleof Two Cities,'' "Great Ex federal and state court systems. January 1986 pectations" and "Bleak Hou se:' 130 May 1986 New bar section attempting Security Act and similar statutes and sub Top Medical Experts establishment mitting a report and recommendation as Free Case Evaluation Twenty-threeAlabama anorneys are at to disposit io n of the case to the United tempting the formation of a new bar sec States District Judge; (3) conduc t hear The odds againstyou winningyour medical malprac1ice :ic1ion unaided. tion dealing wi th animal cruelty matters ings and submit recommendations in ha arc almost 3 to I. as seen through the eyes of the law. In beasco rpus action s and prisoner peti· 111e odds are bc.tter1hun S 10 I tha1 order to establish a new section, at least tion s challenging the condit ions of their you will win any case deemed 100 members are needed. confinement; and (4) the conduct of pre meriiorious by JD.MD. Objectives includ e drafting and spon trial and discovery proceedings in any Whau,,•er your needs.JD.MD has soring legislation affecting cruelty and civil case on reference from a United the cxpcns. back·up services. and abuse to animals, funding the use of the States District Judge. The basic jurisdic paymen1op tionsto suit you and your client. Our oon1pensation is court system to fight this crime and us tion of the United States Magistrate is directly relatedt o our success in ing the law to promote a more humane specified in 28 U.S.C. §636. helping you. society through eli mination of unneces To be qualified for appointment an ap sary suffering of animals. plican t must: JO.MO PICKS UP THE For more information, contact Mark l. (1) be a member in good standing of ENTlRE MEDICAL SIDE OF YOUR CASE AND Rowe, 10th floo r, City Federal Building, the highest court of a state for at least five LEAVES YOU TO WHAT Birmingham, Alabama 35203-3758 or years; YOU DO BEST- THE LAW. James R. Foley, 223 East Side Square, (2) have been engaged in the active THAT'S THE WINNfNG Suite -C, Huntsville, Alabama 35801. practice of law for a period of at least five COMB INATION. years; (3) be competent to perform all the ~ ·.~ dut ies of the office; of good moral char For our co,nplerebrochure call Position available for full-time acter; emotio nally stable and mature; our toll-free number today United States Magistrate comm itted to equal justice under the There will be a vacancy for the posi law; in good health; patient and courte 1-800-225-JDMD tion of full-time Uni ted StatesMagistrate ous; and capable of deliberation and in the United States District Court for the decisiveness; Northern District of Alabama. The per (4) be less than 70 years old; and son appointed wi ll serve an eight-year (5) not be related to a judge of the term commencing in February 1987. district court. Duties of the office are both demand A merit selection panel composed of Wedo more ing and wide-ranging and include: (1) the attorneys and other members of the com thanprint the law conduct of all initial proceedings includ muni ty will review al I applicants and we putit ing acceptance of complai nts. issuance recommend to the judges of the di strict of arrest warrants or summon ses, issu court, in con fidence, the five persons it intoperspective ... ance of search warrants, conduct of ini considers best qualified. The court will tial appearance proceedings for defend make the appoin tment, following an FBI ... both In our law books and our ants informing them of their rights, im and IRS investigation of the appointee. computer data service posi,,g condil ions of release and admit An affirmative effort will be made to give Whethe r irs ALR . Am Jur. uses L Ed-01 VERALEX"". our ~ computer assistedlnrormatlon ting defendants to bail, appoin tment of due consideration to all qualified can rettlevaJsystem-your ro"a rch will go faster and moreeffic;:,enlly wilh L&wytr,Co-op in your llbrary. attorneys for indigent defendants and didates, including women and members Our law bOOkSend our compulerresearch service are made to meShwith each 01her and your n.ee(IS, , conduct of preliminary examination pro of minority groups. The salary of the posi Let your l CP roprosontallve show you w h&l's POSSAbleortd aflordabl6 in legal resea,eh. ceedings; (2) the trial and disposition of tion is $68,400 per annum. Mt,o'sw hat the l CP Total Client·Service t.lb r-arye offots lht AlabamaattOt'ney . federal misdemeanor casesw ith or with App lication forms and further informa LCP localized booksfor AJabama: out a jury where the defendant is will Alabama P• ttctfn Jury tns tru« lont-Ci YH tion on the magistrate position may be r,i,. Kll'ldbOOkfM Alablm.t La:"'Y"',s ing to consent to trial before the magis obtained from: LCP n1lio n1I boo k, : Atn J&K2d USCS trate; and (3) acceptance of grand ju ry AfftJl#f l&g ll formt 2d ~ f•I P1oce0u,a1 Clerk, United States District Court Am JINAt •dlno a. forms. L Ed Pr.Cbee f<>fms Ff The Alabama Lawyer 131 Ridingthe Circuits Calhoun County Bar Association In October John Fitzwater, chair courtroom, and Chief Justice C.C. The Calhoun County Bar elected man of the Co lbert-Lauderdal e "Bd' Tolbert, Jr., remarked on his ye.1rs the fol lowing officers to sen-e in 1986: Economic Association, spoke on of law practice and service with President: Andrew W. Boll, II economic change. Wright . Many circuit judges, personal Vice president: CharlesS. Doster Decembe r 4, the bar held its friends and county dignitaries were Secretary: Marcu'SReid Christmas party and in late February present. Treasurer:Patrick S. B 132 May 1986 Mobile County Bar Association Montgomery County Bar Association Alabama Supreme Court Chief The Montgomery County Bar Justice "Bd' Torbert shared the guest Associatio n Pro Bono Project speaker's table with Mobi le County recognized lawyers best exemplifyi ng Presiding Judge Ferrill McRae at the the spirit of pro bono service dur ing February monthly meeting of the 1985 at an awards banquet February Mob ile Bar Association. 27. JV'arch 21, the bar honored three of The Pro Bono Project is a joi nt ven its own for having practiced law for 50 ture of the legal Services Corporation years: 1\lber1 S. Gaston, Joseph N. of Alabama and the Montgomery Langan and J. Terry Reynolds, Jr. Each County Bar Association. The project was presented wilh a framed cer refers indigent clien ts to private prac tificate marking the occasion, and M r. tice lawyers who handle the cases, Gaston called it his "certificate of sur usually domestic relations matters, for vival:' Welcomed as guest speaker no fee. In 1985, 422 caseswere closed was James L. North, president of the by lawyers partici pating in the pro Alabama State Bar. In his speech he ject. I.SCA enti rely funds the project touc hed on the topics of malpractice as pan of its private bar involvement insurance and "to rt'' legislation. Torbert and McRae program. Project director Rob Reynolds pre sented plaques to lawyers contributing the most to the pro bono's success. Hono red were the law firms of Cameron and Cameron, Balch and Bingham, and for the second con secutive year, Copeland, Franco, Screws & Gill. The individua l attorney award went to Jimmy Pool. Shelby County Bar Association The Shelby County Bar held elec tions for 1986 officers and the follow ing were elected: President: William R, Justice, Columbiana Vice president: Conrad M. Fowler, Jr., Columbiana Caston, MBA Presidem Lattof, Langan and Reynolds Secretary: Bruce M. Green, Alabaster Treasurer:Pa1ric ia Fuhrmeister, Columbiana The bar passed a unanimous r=lu lion to support Judge Kenneth Ingram, 18th Judicial Circuit, who announced plans to seek retiring Judge Charles M. Wrights position on the Alabama Court of Civil Appeals. Talladega County Bar Association The fol lowing officers were elected by the Talladega County Bar: Pool, John Cameron of Cameron and Cameron, Thompson, Keith Norman President:Bill Thompson Vice president:William J. Will ing• of Balch and Bingham and fuel Screws of Copeland, Franco, Screws & Gil/ ham photo by Penny Weaver, LSCA Secretary/ueasurer: Julian M. King • The Alabama Lawyer 133 Committees Midyear meeting recap reports from 11 commiuees and rask The lirst is for development of a The bar's 1986 midyear meeting was forces and acted on five. method of non-pubI l e evaluation of productive and enjoyable for those par Montgomery attorney David R. Boyd judges. With the board's approval of its ticipating in il. Nineteen committees, was elected chairman of the board of bar initial proposal, 1he task force now will four sections, the board of commis examiners, succeeding Robert l. Potts, develop its plan in detail, estimate itscos t sioners, the Disciplinary Commission whose four-year term expires after the Ju a,,d return it for final approval. and the MCLEComm ission met. ly 1986 exam. Birn1ingham auorney Kir Second, the task force recommended Gubernatoria l candidates Baxley, by Sevier was elected examiner in wills, and the board approved the drafting of Graddick and Camp spoke Wednesday. trusts and estates, also a four-yeart enn. legislation to specify minimum residen Thursday, Chief Justice Torbert and at Those elections foll owed the recommen cy, age and experience requirements for tomey general candida tes Evans, dations of the Advisory Committee to all Alabama judicial candidates and ap Siegelman, Sorrells and Wallis spoke. the Board of Bar Examiners, Commis pointees. The recommended minimum Medical malpractice was the subject of sioner John 8. Scott, Montgomery, qualifications are a 12-month residency a three-hour seminar featuring Medical chainnan. in the slate, circuit or county of 1he Association of Alabama president Dr. After 1woyears' study, the Task Force judicial office,age not less than 30 years Julius Michaelson and attorneys Danner on IOLTArecommen ded and the board and five years' legal exper ience Frazer, ClayA lspaugh, Philip Gldiereand approved the adoption of an lnteres1on preceding election or appointment. Lanny Vines. lawyers' trust accounts program for the A law office management consultant Among the strictly social events were Alabama bar. Subject to the approval of was endorsed by the board, on the the Shakespeare Festival cocktail supper the Alabama Supreme Court, the pro recommendation of the Professional Wednesday night and the eye-opener gram will be voluntary,and funds will be Economics Committee, David Arendall, breakfast Thursday morning. distributed by the Alabama law Founda Birmingham, chaim,an. Effective im Thanks to Midyear Meeting Commit tion, for such charitable and educational mediately the following services are tee chairman James T.Sasser, v ice chair Jaw-related purposes as legal aid to the available:adm inistrativeaudit , word pro man Cliff Heard and members BillyH ill, poor. Jaw studenl loans, adminis1ra1ion cessing needs analysis and data process Joe Borg,T erry Childers,Gunter Guy,J im of justice, public education about the ing needs analysis. Forms for requesting Ippolito, Ed Raymon, Carol Jean Smith, law. public law libraries and a client consulting services may be obtained Jack Paden, Doyle Fuller, George Pan security fund. from law Office Management Project, tazis, Sammye Ray, Cindy Cochrane, Ifthe programi s approved by the court, Alabama State Bar, P.O. Box 671, Mont laura Calloway,Ri chard Garrell, Marda Alabama will become the 40th IOlTA gomery, Al 36101. Sydnor,Char lotte Clayton,Clar k Watson, state. Barm embers in1erested in learning Finally, the board authorized addi laura Crum and Rick Meadows (or a job more about IOIJA are referred to che in tional funds for processing and evaluat well done. Thanks also to the Mont fonnat·ive anicles by task force chainnan ing responses to the bar's indigent de gomery law firms providing meeting Rowena Crocker and secretary Stanley fense survey,cond ucted during March. rooms for 22 commiltee and section Weissman, published at 46 Alabama More ~1a11tw ice the number of e.,pected meetings. Lawyer 264 and 267 (1985). responses were received;the anticipated The Task Force on Judicial Evalualion, cost was exceeded by several hundred Board takes actio n on com mittee Election and Selection, chaired by dollars. The results of the surveywill be reports Tuscaloosa auomey Ralph I. Knowles, published in this journal In the near During its March 21 midyear meeting, made two recommendationsa dopted by future. MLP• the board of bar commissioners heard the board. 134 May 7986 1986 Annual Meeting July 17-19 Wynfrey Hotel, Riverchase Galleria Birmingham, Alabama This year's meeting includes a new format. Thursday, July 17,sectio n meetings wi ll be held 10-12a.m. and 2-3:30/3:30-5 p.m. The bench and bar luncheon, 12:30-2 Thursday, is to be preceded by a complimentary hospitality hour from 12-12:30. Thursday night's cocktail reception runs from 6-7:30 al the Wynfrey Hote l. This year's reception will not be a traditional cocktail supper as in years past. It is hoped the local bar members will utilize Thursday evening for such private parties and entertaining as they choose. Majo r emphasis will be placed on attendance at a Friday evening dinner (no head table, no tux) w ith a nationally prom inent speaker or entertainer. Friday, July 18, the Continuing Legal Education program, so popular since its institution, will be held all day. The alumni luncheons and breakfasts still wi ll be Friday, and the spouses' activ ities being planned by the Birmingham Bar Auxiliary will be at noon this day. Saturday, July 19, the bar w ill have its Grande Convocation, featuring an interesting array of speakers discussing issues of importance to Alabama lawyers and their families. The Annua l Business Meeting will be held prior to a noon adjournment The bar will attempt to arrange a jo int appearance of the Democratic and Republican nominees for the U.S. Senate. The conve ntion adjourns noon Saturday, and all activi ties will be held at the Wynfrey Hotel in the Riverchase Galleria. The Alabama Lawyer 135 TheState Action Immunity by John F. Mandt In exercising their police powers,sta tes frequently encourage, regulate and par ticipate in varying degrees in activities which, in the absence of the states' in volvement, would violate the federal an· titrust laws. For example, states regulate electric, gas and telephone monopolies and im pose noncompetitive pricing schemes in these and other areas of business activi ty. Although federal antitrust laws do not expressly excludes uch activitiesfrom the prohibitions of antitrust laws, the United StatesSupreme Coun recognized cenain restraints on competition are impliedly outside the proscriptions of antitrust laws because they are imposed by or other wise attributable to the stales' acting In their sovereign capacities. This form of antitrust immunily generally is referred to as "state action immunity:· In addition lo its obvious applications co craditional state-regulatedm onopolies, the scate action immunity doctrine has been applied in a variety of ocher sec tings. Recent cases considered the availability of state actien immunity in antitrust accions involving mocor com mon carriers, liquor dealers, real estate developers, title insurance companies: bar examinersa nd hospitals. Additional ly, a number of cases considered cheap plication of the doctrine to municipal regulation of taxicabs, ambulance ser vice, cable television and wrecker ser vice, and the provision of sewage, gar bage and other urility services by coun ties, municipalities and privatefi rms. The doctrine also has come into play in cases ... activities, which in the involvement, would violate photos by David Shanks 136 May 1986 Doctrine:a Reassessment challenging allegedly anticompetitive Co., 439 U.S.96 (1979);Cantor v. Deuoil These two decisions were premised on c The Alabama Lawyer 137 pelled motor carriers to engage in col ca/ standard is applicable only in cases their conduct need not be actively super lective ratemaking. against public defendants and not in vised by 1h e state 10 be immune under Although the state public service com cases against private defendants. 85 Parker. missionsargue d that collective. ratemak L.Ed.2dat 46. The courr also disagreed The plaintiffs in Town of Hallie were lng better enabled Lhem to function as with the lowercourt's holding that private townships localed adjacent to the defen ratemaking bodies, motor cartiers in conduct is only allributable to a state if dant Cityof EauClaire. The plaintiffsco n each state remained free to elect not to it is compelled by the state. The court tended the defendan1 violated the Sher participate in collective ratemaking and acknowledged that stale compulsion man Ac! by acquiring a monopoly over instead to submit individual rate pro may provide strong evidence that a state the provision or sewage 1reatmen1 ser posals. 85 L.Ed. 2d at 41 The parties has adopted a clearly articulated policy vices and illegallytying the provisionof also agreed that each staleac tively super to displace competition, but concluded those services to the provision of sewage vised the motor carriers' collective "the absence of compulsion should not collection and transportation services. ratemaking activities. 702 F.2d at 539 & prove fatal 10 a claim of Parkeri 111muni- The applicable state law authorized cities 11. 12 1y:·85 l.Ed.2d at 48 to construct and operate sewage S)'5tems Nonetheless, the United States con The supreme court's holding in and delineate 1he area within which tended that the motor carriers' collective Southern Motor Carriersclea rly reOects sewage service would be provided. The ratemaking activities constituted price the court's recognition that states often relevant state statutes did no! specifical I ixing. and the practice of collective deliberately employ private initiative as ly authorize the cities to tie the provision ratemaking was not immune under the an integral l)art or a regulatory scheme of sewage treatment seivices 10 other ser state action doctrine because the defen designed 10 replace competition with vices or to otherwise use their power to dants' anticompetitive conduct was not regulation. The court stated: delineate the area to be served in an an compelled by the various states. ticompetitive manner. Thus. through the self,interestedac The court of appeals agreed with the tions or privatec.ornn1on ca rrie~, 1he The court of appeals helc;I the government and held that the rate Statesmay achie><'the desiredbalan ce municipal defendant was immune from bureaus' conduct was not immune under betv,t?encolle<.1ive ratemaking and the antitrust liability under the state action the state action doctrine because none competitionrostered by individual sub doctrine. Because the applicable state missions.Consl,u ing theS hern1anA ct of the states compelled collective to prohibitco llective rate proposals sta1u1esauthorized cities 10 refuse to pro ratemaking. In reaching this conclusion, eliminatesth e freecho ice necessaryto vide sewage service to unincorporated the courl declared that the two-partMid ensure that these policiesfunction in areas, the court reasoned the state must cal standard was applicable only In ac the mannerintended by theT States. he have contemplated that anticompetitive tions against public delenclantsand not federal~ ntitruSIlaw s do not forbidt he effects might resuh from a refusal to to those against private defendants such Stares 10 adopt policiesthat pem,it , but serve. Accordingly, the court concluded do not compel, anticompetitive con• as the rate bureaus. See 702 F.2d at duel by regulatedpr ivate parties. the city's conduct was engaged in pur 539-40. suant to state authorization within the 85 LEc;l.2da l 47 (emphasis in origi The court also reasoned, however,that meaning of Parke, 700 F.2dat 383 The nal) According to the supreme courl, even if the Midcal standard were ap court of appeals also held the active state the premise or the lower courts' holding plicable to private defendants, the four supervision requirement of Midcal was - unless a state compels particular an1i states had no clearly articulated state 1101ap plicable to municipalities. Id. at compe1itive conduct lhe state has no in policy in favorof collective ratemaking 384. terest in I hat conduct-ignores the man· because motor carriers in each slate The supreme court agreed with the ner in which statesohen implement their could have chosen not to participate in court of appeals' conclusion that the state regu larory policies. If a slate's intention collective ratemaking. 702 F.2d at 539 of Wisconsin must have con1emplated a to replace competition witl1a regulatory ("IWJed o not see how a private pany can city's refusal to serve unannexed ilreas structure is clearly articulated, state ac- carry out a clearly articulated and affir could have anticompetitive effec1s. 85 1ion immunity should not be denied mativelyexpressed state policy when it l.Ed. 2d at 46 The court held the Wis simply because the state employedsome is left to the private party to carry ou1tha r consin statutes evidenced a clearly ar measure of private initiative in ils policy or not as he sees fit:') ticulated, affirmativelyexp ressed state regulatory scheme. According to the court of appeals, policy to displace competition with unless private anticompetitive conducl is State action immunity of public regulation in the area of municipal pro compelled by a state, the state's poli cy defendant s vision of se\Vageservices and plainly is merely neutral with respect 10 the con On the day the Soulhern Motor Car showed the 'Afisconsin "'legislature con duct in question and, thus, will not be riers decision was rendered, the supreme templated the kind of action complained frustrared by application or the antitrust court also decided Townof Hallie v. 0- of:" 85 LEd.2d at 32-33 (quoting City of laws. Under such circumstances, the ty of Eau Claire, 85 L.Ed.2d 24 (1985), LaFayettev. I.DuisianaPower & Light Co., court reasoned, the slate has not clearly aff'g 700 F.2d 376 (7th Cir. 1983). As a 435 U.S. 389, 415 (1978]) articulated its intention to displace result of that decision, it now is clear that The court also answered the question competition. municipalities are subject to a less reserved in footnote 14 of 1he Boulder The supreme court squarely rejected stringent state action immunity standard decision by holding that municipal con the court of appeals' view !l1at the Mid- 1han are private defendants, because duct, unlike privateconduct, need not be 138 May 1986 adively supervised by theo state in rder because the State's position ls neutral danger is that ii will seek to furtherp urely to be immune under the state action doc with respect to the city's conduct"); parochial public Interestsat the expense trine. 85 L.Ed.2dat 34 Thecourt hinted Grason E/ecuic Co. v. Sacramento of more overriding state goalS:' 85 but declined to decide that acti,,e state Municipal Ullllty Disltict. 770 F.2d833 L.Ed.2d at 34 (emphasis in original) supervision also would not be required (9th Cir. 1985); fndependenr Taxicab stands in cases against state agencies. 85 Drivers' Employeesv. Greater Houston The court's statement in stark L.Ed.2dat 34 n. 10 Tranlpo1t,.1tionCo., 760 F.2d607 (5th Cir. contrast to it AFFORDAB LE TERM LIFE INSURAN CE - FROM CO OK & AS SOCI ATES Four Alabama and Fede ral Trlal Practice Form Books Available for Immed iate Shipment •.. Compere these low non-smoker annual rates fo, non dtcren1ng oraoed p,em,um ttte: D ALABAM A AN O FEDERAL PLAINTIFF DISCOVERY FORMS MALE AGES saso.ooo $500,000 $1,000,000 25 250.00 455.00 870.00 D ALABAM A AN O FEDERAL MOTION 30 252.50 460.00 an .so FORMS 35 255.00 465.00 885.00 40 330.00 595.00 880.00 D ALABAMA ANO FEDERAL ORDER ANO 45 412.50 760.00 1,127.50 JUDGMENT FORMS 50 542.50 1,015.00 1,510.00 D ALABAMA ANO FEDERAL COMPLAINT 55 810.00 1,520.00 2.28 7.50 FORMS 60 1,3S5.00 2,535.00 3,790.00 65 2,372. 50 4.385.00 8,565 .00 Part of a ser ies of trial practi ce form books by (1moker"1 rat•• 1,llghtly higher) Robert Seller• Smith and Jo an McIntyre . Renewabft 10 age 100. Female ra1essame as males tout years younge, Ah co.«age prov,ded by comparues ,uoc1 The price of eac h of these books is $59.95 plus "A &Cltllen1 • by A.M !lest Co postage and handling. Fo< a wt111enquotation and policy descllpuon send your date ot bfnn anrJ emount of coverage oestroo 10 MADISON PUBLISHING COMPANY, INC. COOK & ASSOCIATES 223 EAST SIDE SQUARE 2970 COTTAGE HIL L ROAD • SUITE 201 HUNTSVILLE, ALABAMA 35801 MOBILE, ALABA MA 36606 (205) 533· 5040 (205) 476-1737 The Alabama Lawyer 139 lions by 1hc ~era l Trade Commission. government 10provide essential services actively supervised, bu1 not compelled, Nor is the pro1ection provtded by 1he and anract qualified persons to public of by the s1a1e. Under Town of Hallie, LGA applicable to cases commenced fice led 10the pas$agein late 1984of the mun,dpal conduct is immune under the before Oc1ober 24, 1984, unless "ii LocalG<,,.-emment Antilrusl Act of 1984, state action doctrine if the municipality's would be Inequitable not 10 apply [the P.L.98-544(c odified at 15 U.S.C.§3+36 actions are taken pursuant to a clearly ar· LGAIto a pending case."15 U5.C. §35(bJ (Supp. 1989))(lhe"LGA: 1. In general, the ticula1ed and affirmatively expressed The exisience of a jury ,-erdictor district LGAprotects local gCM?mmentsand of. stale policy. whether such acrions are coun judgmenl Is pr/ma fade evidence flcials thercol ading in an officialcapaci supervised by 1he state. tha1 the LCA is inapplicable. See id. ty against suits seeking treble damages, II is lmpona11110note, hO'.\ 411 North 101h S1ree1 Conclu sion John F. Mandt receivedhi s SI. Louis, Mi ss ouri 63101 By vinue of the supreme court's deci undergraduateckgree from rhe (314) 231-4477 sion in SouthernMotor Carriers, it now University of Alabama and law is clear 1ha1to be immune under the state degree from the University's School Ask abqur our rt/ert!11ctbook of Law. He is an associatewith Balch "lar/11 Wordsoml Phrases" action doctrine, the conduct of private defendants must be engaged in pursuanl & Bingham in Birmingham. 10 a clearly Mtkulated s1a1e policy a.nd 140 May 1986 Young Lawyers' Section n the last lew months 1he Ala Keith'seffo rts. Thanksto this commit bama Legislaturewas In regular tee, hundreds of young people have I session during an election year, had a honds-on experience wi1h the and a great deal of rhetoric and con legal sys1em, ac1ing as jurors, wit troversy existed. Not much has been nesses, bailllfs, lawyers, judges and accomplished toward opening 1he supreme court lus1ices. lines of communication between in Within the next year or so these dividualmembers ol 1hebar and other young people will actuallybe eligible professions. to serve as jurors in litigation, and The organized bar has made great Keith's commiltee gave them an Ol) sirides toward solving problems and portuni1yto panicipa1ein and under developing open communication stand the system much belier than wilh 01her professions, as has 1he many adults do, actually serving on J. Be rnard Brannan, Jr. Young lawyers' Sec1ionthrough iis furies. YLS President annual Conferenceon the Professions Younglawyers 1hroughou1 the slate held April 18 and 19 in Gull Shores, providingguidance and assis1anceto (or our lu1ure.Sec1io n members will Alabama. There, bar members could 1he students were Trip Walton, Au auend American Bar Assocla1ionaf be of servicet o a vast number of other burn; lewis Colley, Montgomery; filiate outreach meetings in Charles professionals,Includi ng the areas or Cleo Thomas, Anniston; George Day, ton, South Carolina, securing new medicine, nursing, engineering, phar Gadsden; RobertChi lders, Montgom ideas (or service to lhe public and 1he macy, psychology, dentistry and ery; Percy Badham, Birmingham; bar. Claire Blackand her Long-range others. The conference furtherprovid Lynne Riddle-Thrower, We1umpka; PlanningCommittee worked tireless ed open communication among all John Hay, Huntsville; LexaDowling, ly to prepare a plan for adoption to professions represented. Dothan; Randy Haynes, Alexander be presen1edat the annual July meet Topics provided by the YLSwere Ciiy;Jake Walker. Opelika; BessCox, ing. A course will be set creating ad 1hebasics ol adminisrra1ivelaw , dis Flort>nee; CeciliaCollins, Mobile; and di1ional Involvement in 1he section, covery in administrativeproceedings , Tommy Nettles, Tuscaloosa. enthusiasm and a general good feel 1he emergency suspensions of li Every member o( the YLSand the ongabout whal the YLScan do. censes, Informal senlement or con bar is indebted 10 them lor advising With 1heex 1ensive number of pro tested cases and 01hers. giving an and providing a One public service jects in which 1hesection is present overviewof the legal systemas it par- project. These effortsmake a tremen ly involved, and Jhe potential for ad 1I cular ly applied 10 controlled dous contribu1ion1oward insuring a dilional fu1ureprojects being Imple prolessions. positive Image In 1hecommun ity for mented with the help of 1heY LS ol 1he The YLS compliments Randy 1he bar. America,, Bar Association, we en Reaves lor the excell ent program and James H. Miller, Ill, again has done courage you 10become more active the smooth naiure in which the over a great Job os chairman or the CLE in 1he YLS.Now you should make all conference ran. lines of commun committee ror the YLS.On April 16 plans to let 1986-87 be a year to par ica1ionbetween 1heprofessions are a the Annual Bridge1he Gap seminar, ticipate in the ae1lviliesol the sec1ion. little more open, 1hanksto this fine offering" nuts and bolis" information To be an acuve member in a vibram project. to new bar admmees, was held in Bir professional associa1,on, contact KeithNorman needs to be congrat mingham. The program was well-at Claire Blacko1Tuscal005a, president ulated for the wonderful job he did tended. and an enthusiastic faculty elect of the Yl.S, and let her know you as chairman of 1he You1hlegislative gave valuablelnlormalion (or the tran wanl 10 help. She will be awaiting Jud,clal Program. Individual teams sition from law school to the practice your call. The hard work by each panicipallng 1hroughou1 1he stale o( law . Thanks 10 Jim for a job well member of the YLSexecu tivecommi1- were beuer prepared this year than done. 1ee makes II a pleasure for me 10 be ever before. They received assistance As this bar year comes 10 a close, involved, and t 1hlnkyou , 100, will from YLS members as a resull or effortsmust be made 10proper ly plan find ILr ewarding. • The Alabama Lawyer 141 TheWork Product Doctrine by lee H. Zell (The first hall of this article appeared in lhe March 1986 issue of the Lawyer. ) Developmen t of the doct rine The work product doctrine, firs1 an nounced by theS United tales Supreme Coun in Hickman v. Taylor,329 U.S.495 (1947).affords protection In appropriate circumstanros for documents and infor mation not otheiwise protected by the at tomey-client privilege. In Hickman, the coun extended a qualified immunity from disclosure lo written statemenis of witnesses, together with notes made by an auorney during intetvicws, under cir cumstances In which the material was developed In the course of preparation for possible litigation. The court held the materials were protected from disclosure because of the public policy "against in vading the privacyo f an auorney'sco urse of preparation:• 329 U.S. at 512 The court In Hickman noted the work product domine affordsonly a qualified immunity from disclosure. rather than a privilege: 'Where relevant and nonpriv ileged facts remain hidden in the attor ney's file andwhere production of those facts is essenlial to the preparation of one's case, discovery may properly be had." 329 U.S. at 511 The work product doctrine now is cod ilied in Rule 26(b)(3) of the Federal and Alabama Rules of Civil Procedure. The rule provides In pertinent part: A ()llrty may obtaind isc<1'1?ryof docu menis and tangible lhings otherwise discoverableunder s ubdivision(b)(l) o( this rule and preparedIn anlicipation ol liHg.:lllonor for 1rialby or for anOlhe, p;,nyor by or forthat 01her p;,rty's ~ rewnl.lti\11'(including his anomey.con sult.1n1, su~. lndemnito4insure,; 01 aaenUonly ""°"a showing 1ha1 the p;irty seclclngdlsco.-ery h .. subslantial neood lhe m.lleriahIn lhe prepar.ition ol his ca1e and that he is unablew ith out undue hardship10 obtainthe sut> stan1ialequivalent of 1hcma1erials by other means. In orderingdiscovery of such malcrfols when 1he required showingh as lx.oenm.icle, che court shall protec1ognln~1 disclos ure of the men- photo by David Shanks 142 May 1986 1allmpre«lon\ ,·onclu$ions,opinio ns, presentation of proof 10 equivalent dis 854, 865 (D.C. Cir. 1980). (Memoranda or les,1l1hcori cs ol an auomeyor olhe1 puta1ion.>Upiohn Co. v. United States, from regional counsel to auditors work lePl=IJIIW d a P,1f1Yconcerning ,he 449 U.S. 383 (1981)(doctri ne applies to ing in field office$,Issued in response to l,1,g.11ion. materials prepared for IRStax summons requests lo, Interpretations ol certain reg Elements of the doctrine proceedings)NarM v. Zlitz, 418 f.2d 633, ulations, "-ereheld to ha\oenoi been pre Documents and tangible things other· 636 [7th Cir. 1969)(doarine affotdspro pared 1nanticipation of litigation,except wise discoverable tection to documents prepared for patent when such memoranda were issued aher The doc1rine applies only to docu Interference proceedings) identification of a specific claim by or men1sand tangible ll1ings.Ford v. Phil Malerials may be found to have been againM 3 specific firm being audited.) ips Elecuonic:slnsuumems Gadinkle v. Arcata Na1ional Corp., 64 Co. • 82 F.R.D. "prepared ,n anticipation or litigation" F.R.D. 688 (S.0.N.Y. 1974) (In an action 359, 3GO(E.O. Pa. 1979) ("[B]yils own even though 1he preparation occurred by shareholders alleging a defendant terms, [Rule 26(b)(3)J perlilins 10 docu· before an action was filed. The rest is men1sand ll!nglble 1hings;• so that a11at whether. In light of 1he nature of the doc corporation's /allure 10 regis1er its shares lorney's unrecorded discussions with a uments, !hey "can fairly be said 10 have with the SEC,documents relating to an attorney'sopi nion leuer advisingthat reg wilness concerning the auorney's evalu been prepared or obtained because of a1lon of a case do not come within the the prospec1ofllllgarion:• Hercules, Inc. lslration was unnecessary were not pro rule.) tected by the ,-.ark produa doctrine. v ExxonCorp., 424 f. Supp. 136, 151 (D. Documents required to be produced in Notwi1hst,1ndingits express limila Del. 197n Seealso Sy/gahScee/ & Wire cluded intra-officememoranda bet\\1!en tions, ho,,-,.1he policy considerations Corp. v. lmoco-CiltewayCo,p., 62 F.R.0 . underlying the doc1nne ha\1!led courts 454, 457 (N.D. Ill. 19741,aff'd, 534 f.2d attorneysrep1esen11ng the corporation, a to prolect an anorney's unrecorded men 330 (7th Cir. 1976).("ti 1he prospect of memorandum outlining legal authority tal impressions and conclusions. See, litigation 1sidentifiable because of spec· for the opinion and an anomey's notes of telephone conversations with share e.g., In re Grand Jury Proceedings,473 iflc claims rhal hilllealready arisen, 1he F.2d 840, 848 (8th Cir. 1973)( atlomey fact tha1, al ~,e 11n,ethe documenl is pre holders' attorney.) could no1 be compelled to disclose his pared, liliga1ionis still a contingency has Documents rourlnely prepared in 1he recollections of conversa1ions with wit· no1been held to render [doctrine) inap ordinary course of business generally the nesses). Fordv. Ph/1/ps Elecuonics Instru plicable:, Fon1,1ine v. Sunflower Beef will nol satisfy "prepared i11an licipa, tlon of llligatlon" elemen1or the rule. See ments Co., 82 F.R.D.359, 360 (E.D. Pa. Carrier. IIIC,, 87 F.R.D. 89 (W.D. Me. 1979) (An attorney should be able 10 pre 1980) (sr,,1emen1Staken by defendant im v.t>sthemeceLtd. v; New HampshireIn s. vent lhe disclosure or his mental impres mediately after an accident were ob Co., 82 F.R.D. 702 (S.D.N.Y. 1979) sions ahhough no1embodied in a docu tained "in preparation for litigation;' (privilege did not apply to documents ment.) since they were obrained only after it was prepared by insurance company during Evenif all elements of the doctrine are dear who 1he plaintiff would be and a routine claim lm-estigationl.Abel In· sa1isfied,materials are not discOYerable what claims would be asserted) vestment Co. v. Unired States,53 f.R.D. ifoilier.vise shielded fromdiSC'0<1!fy (e.g., 485 (D. Nev. 19n) (IRSdocuments rou by virtue of an applic.ible privilege). litiga11on must ha\1! been "likely;' tinely prepared prior to institutionof any /\BA, Section of Lttlga1ion,The Auomey hol,'l!Vef,and not merely a #possibili1y.' action were nor prepared in anticipation Cliem P,ivilegc and rhe V.brk-Produa Burlington lndu.uies v. ExxonCorp., 65 of lit,gatlon. The documents were not Doctrine 68 (1983) F.R.D. 26, 42, 43 (D. Md. 1942)Accord prepared at the instrualon of an anorney, ingly, If the possibility ol litigation is did not contain legal 1heories of the case Prepared in anticipation of litigation remote, protection under the work pro and were nonadversarial. containing or for trial duct doctrine may not be available. See mauer subml1ted by the 1axpayer as well Ge11er,1lly,10 be protected by the work C0<1stal Statesc.,s Corp. v. Doe,617 F.2d as by 1hC!governmen 1.) But see Heide- product doctrine,I documen1s or 1angible materials must have been prepared or de veloped with a viewp toward roceedings which ,,re adver,arfalin nalure. See,The Special Masters' Cu/de/Ines for !he Res o/u1/onof PrwiletJ{.'Claims, United States v.Ame,,an Telephone& TelegraphCo., Cir. No. 74-1698 (0.0.C. Feb. 28, 1979) tee H. Zell rece,ved his undergraduate (cited In AB/\, Section ol Litigation, The degree from Co/umbraUniversi ty and his la\v degreefrom New \brk University.He Alromcy,C//entPrtwlege and the V.brk is a partner Tn 1he Birmingham firm of Producc Docmne 68-69 [1983D. (The Berkawitz, t.efkovits,Isom & Kushner. court defined litigation for purposes or the rule, as ",1 proceeding in a court or adminis1ra1ive 1ribunal In which the par lies have the righ1 1.0 cross-examine wit· nesses or to subject an opposing party's The Alnb,1mn Lawyer 143 brink v. Moriwaki, Civ. No. 51017-2 Sterling Drug, Inc. v. Harris, 488 F.Sup p. inability to obtain the equivalent with (Wash. S. Ct September 5, 1985). (A 1019, 1026 (S.D.N.Y. 1980) out undue hardship:') Some courts have statement made to the insurance carrier even suggested that such information can Discovery of work product materia ls subsequent to the accident was protected be obtained by an adversary,if at all, only from disclosure under rhe work product In order to obtain materials protected in the most narrowly defined circum doctrine where the statement was made by the work product doctrine, lhe party stances. See, e.g., United States v. Exxon by the insured. The court noted that the seeking discovery must demonstrate: (a) Corp., 87 F.R.D. 624 (D.D.C. 1980). (If insured has a contractual obligarion to a substantial need for the materials and work product consisting of an attorney's cooperate with the insurer and that to (b) an inability, without undue hardship, mental impressions and legal theories is refuse protection for such statements to obtain the materials (or their substan discoverable at all, it is only when the would frustrate lhe purpose of the doc tial equivalent) from other sources. activities of the auorney himself are di trine by discouraging rull disclosure.) An enhanced showing generally is re rectly at issue.) See also Sprock v. Peil, By or for another party or by or for quired in order to obtain "opinion;' as 759 F.2d 312 (3rd Cir. 1985). (Preparation that party's representative opposed to "ordinary" work producr. See for discovery Is protected by the work The doctrine extends to agents of an Upjohn Co. v. United States, 449 U.S. product doctrine; an adverse party ,vas not permitted to inquire about docu· attorney. United States v. Nobles, 422 383, 401--02(1 981). (Production of docu U.S. 225, 238-39 (1975) To be protected ments representing counsel's mental im ments used by the deponent to refresh from disclosure, however, documents pressions,co nclusions, opinions or legal his recollection where disclosure of the generated by an agent must have been 1heories cannot be compelled merely selected documents as a group reflected prepared at the request of the attorney. upon a showing of ''substantial need and "counsel's legal opinion as 10 the evi dence relevant both 10 the allegatior1Sin the case and the possible legal defenses:') Courts have not established precise guidelines for determining what consti COLUMBUSCLAIMED tutes "substantial need:' Such determin ations generally are made on a case-by. THE NEW WORLD case basis. See ABA,Section or Litigation, The Auorney-Client Privilege and the Work-Product Doctrine 77 (1983). "Substantial need" may be found, how ever,where informationcontained in the documents sought canno1 be obtained through any other means or where the only means available is through a hostile witness who refuses to provide the infor mation. See, e.g., Xerox Corp. v. Interna tional Business Machines Corp., 64 F.R.D. 367,389 (S.D.N.Y. 1974). (The par ty seeking documents demonstrated a substantial need upon a showing that witnesses providing information con tai11 ed in the requested documents had poor or insufficient recollection of events.) Copperweld Steel Co. v. Demag AND THOUGHT Mannesman-Bohler, 578 F.2d 953, 963 N.14 (3d Cir. 1978) (substantial need THAT WAS ENOUGH! shown where person providing the infor When Columblonded. he plo med o llog, mode o speech. mation contained in the requested doc lool 144 May 1986 formation con1.1inedin the materials egraph,Inc., 84 F.R.O. 286. 293 (D. Colo. Supp. 1146(D.S.C. 1974); Srix Producu. sought may be oblained through other 1979). ("Undue hardship" was shown Inc. v. United Merchants & Manufac me,ms.M,I~ v. Bell Helicopter Co., 385 where the pany seel The d irectory contains an alphabet ical and geograph ical listing of all members ol the Alabama State Bar, with their addresses and telephone num EmoryLaw Schoo l ls now acceptingapp liCotlcmsfrom full and p.orr-t1mc bers , comprehensive llstlngs students (or the Omduate (LL.M) Tax Progmmfor the academic year ol state and federal offlclala , 1986-87. Degreennd non-degree candidnre,ialik e mayattend classes. state bar Information , the Code of Professional Responslblllty Cou~ ofrering:sfor ,he full include: and mlacellaneous charts and Monday c,-cning:s: Wednesday evenings: fees. Taxationof Corporute Reorgani!arions Incomefrom Dt,positiol\$ of Pmp,rt) Subscr iptions are avallable at Taxanon of lniemar,onal Traruaaiom lnc:omcTaxation of Estates, Truot:s, an advance cost of $7.50 each. :,nd BcncOciaries Tuesday evenings, Advertising rates are available Esmtcand Gift Tnxarioll Thursday evenings: upon request . Srate ond Muhbtnre Taxation Tax Accounting Methods Tax Procedure PLEASE WRITE For more Informationand on oppl1co11on,ca ll or write: OR CALL : Office of Adm1ss1ons Margaret Lacey or EmoryUnl\ 'USICV Schoolof law Atlanra, Georgia30322 Ruth Strickland (404) 727-6801 Alabama State Bar P.O. Box 4156 Montgomery , AL 36101 205/ 269-1515 EMORY The Alal;>.lmaLawyer 145 OfficeAutomation Consulting Program The Professional Economics Commit com passes the procedures present, to a and the local ju risdict ions in whi ch the tee of the Alabama State Bar has received greater or lesser degree, in all firms, large fir m may practice. It ei ther can be an as approval or its recommended consultant or small, general or specialized practice. sessment of lhe suitab ility of existing to serve the lawyers of Alabama in eval It includes telephony; copying. dictating. word processing equipment or an opi n uating their office (unctions and equip filing. typing (or word processing), ac io n of the most suitable type orequ ip ment needs. count ing. docketing and billing and col men1 lo acquire. The committee first gained board ap lectio ns (manual or automated). The term "equipment'' is taken to be proval in 1985 of a recommendation 1ha1 Equipment, proced ures and the sup the sum of a micro-processor-based the slate bar offer the service to lawyers port staff perfom1ing them are examined. piece of hardware used in con junct ion and law firms. David Arendall, chair of Recom mendations are oriented tov,,ard w ith appropriate wo rd processing soft the Professional Economics Committee, simp lifi cation, consistency and efficien- ware. (Note that the great rr.ajority of and Timot hy Corley of Birmingham word processing ,oendors have absolute served as the ad hoc subcommittee ly no idea what a floating foot.note or bring ing this new service to frui tion. table of citation s is, much less the soft Prospective consultants were interviewed ware to deal with these requirements.) wi th the idea that with proper financial An action plan recommending appro support a consultant migh t be added to priate hardware and software (if applica the headquarters staff; however, the al- ble), as well as ancillary applications that 1erna1iveof endo rsing a consultant who can be suppo rted in a word processing wou ld work through stale bar headquar environment (such as docket control and ters proved more practical. The person calendering), will be presented verbally selected Is Paul Bornstein of O ffice on the occasio n of the end of the on-site Technology Associates, Inc., in Atlanta. visit and subsequently in writ ing. Bornstein holds bachelor's and mas ter's degrees in physics and operations The Data Processing Need s Analysis research, as well as the CMC (Certified This examines functions that can, and Management Consultan1) appellation in some cases should, be automated. from 1he lnslilule of Management Con Conversely, not everything that can be sultants. He is o ne of only two office automated should, particu larly if the automation consultan ts ad mitted to function is not well structu red, or is per membership in that organization. Born formed so Infrequently as to be cost In stein has 17 years' experience as a effective (li tigation support, for example). management consultant, inclu ding three Particular emphasis is placed on time as ~1e admin istrative di rector of an inter and disbursements accoun ting and bi ll national consulting organization and lWO ing and col leeri ons, where the return on as MIS di rector of a major manufacturer. investment is generally most favorable. In 1980,he founded his own practice and Combining one's data and text process speciali zes in office automation, with a ing needs on a single processor is con Paul Bornstein majo r emphasis in the legal field. sidered. Interface with one of the legal The bar's consultant is an independent research services (Lexis, IM!sdaw) wi ll be practitioner, engaged exclusively In the cy. Particular emphasis is placed on rime explored If the firm cur rently utilizes office automation field, and has no finan and disbursemen ts accoun ting and such a service. The ancillary tasksof con cial interests in any vendors or suppliers. bil ling. Oict of interest resolution, general ledger He does not accept fees, gratuities or An action plan is presented to the Orm, account ing, docketing and calendering considerations from them. both verbally on the occasion of com will be examined. An action plan will be The three available initial services and pleting the on-site visit and subsequent presented detail ing the suggested con a brief description of each follow: ly in writing . figuration (hardware and software) as well as suggested vendors, estimated The Administrative Audit The Word Processing Needs Analysis costs and anticipa ted benefits. This is an overview of the existing ad This is a look at the problem of getting A schedule o( fees and expenses has mi ni strative practices In the firm, words on paper, in an efficien t manner been agreed upon and Is effective whethe r or not they are automated. It en- and in the format requi red by the (i rm through June 30, 1987. 146 May 1986 Expenses SCHEDULEO F FEES, The consultant is reimbursed(o r lodg fidence, and a finn may terminate the TERMS AND CONDITIONS ing and meal expenses while engaged engagement at any time without cause, A,,g_cos,/ with an account, as well as the least ex with the understanding all undisputed Finn S'rzt' ftt I S 50000 S"'-'500.00 pensi,-etransportation between Atlanta fees and expenses will be paid to the 2-3 Sl..000.00 ~ and the attorney'soffice. T ransportation state bar within live (5) days. 4-5 Sl.50000 $333.00 generally will be by automobile (at 33 Scheduling will be coordinated by the ~ S2,000.00 Sl07.00 8-10 S2,500.00 Sl77.00 per mile). When the consultant under Alabama State Bar, and all billing and o .....10 S250.00 takes consecutive engagements within remittance will be handled through the the same week, he will prorate the 'Numberof lowyorso nly (excluding of counsen bar. 0 Dura1lon rclen 10 the plannedon -premise lime transportation cost l:ietween the firms Lawyers In Alabama have been asking and does llOt Include time spent by thec onsultant involwd. forth is assistance, and the board of com In his Q\vn o(Ocewh ile preparing documentation The consultant will treat all informa missioners Is pleased to make it availa .1ndrt-c.on,mcnd n1lons. tion and documents of the firm in con- ble. • ------REQUEST FOR CONSULTING SERVICES OFFICE AUTOMATION CONSULJING PROGRAM Sponsored by Alabama State Bar THE FIRM Finn name------1\ddress ------City ------Zip ------Title ______Telephone It------ _ Contact person ------Number o( lawyers------paralegals _ __ _ _ secretaries others _ _ _ _ Olflces in other cities? ______ ITS PRACTICE Prae1ice Areas (Of.) litig.ilion Maritime Corporate Real Estate Collecdons Estate Planning Labor Tax Banking Number of clients handled annually ______Number of matters presently open ------How often do you bill/ ______Number of matters handled annually------EQUIPMENT Word processing equipment (if any>------ Data processing equipment (if any)------ Dictation equipment Of anyl------ Copy equipment (if any>------ Telephone equipment------ PROGRAM Of. ol emphasis desired Admin. WP Needs DP Needs Audit Analysis Analysis Preferred time (1) W/E ______(2) W/E ______ Mali this request for service to the Alabama State Bar for scheduling. Send to the attention of Margaret Boone, Executive Assistant, Alabama State Bar, P.O. Box 671, Montgomery, Alabama 36101. The Alabama Lawyer 147 cle opportunities 20 tuesday 29-30 ALABAMAPOSTJUDGMENT COLLEC· ANATOMYOF A RATECASE TION LAW Washington, D. C. Montgomery Flnancinl 1\ccounting Institute Professional EdL,catlon Systems Credits: tS,6 Cost: $950 Credit$: 6.3 Cost: $85 (201) 568-0246 1-800-826-7155 16 friday 21 wednesday HOW TO SERVECLIENTS THROUGH ALABAMAPOSTJUDGMENT COLLEC- THEEFFECTIVE USE OF PARALEGALS TION LAW Birmingham Birnungh,1rn Birm,ngham B,11Association ProfessionalEduc,uion Systems Cost: SlO Credns: 6.3 Cost: S85 (205) 251-8006 1-800-626-7155 17 saturday 23 friday 5-6 MUNICIPALLAW CO NFERENCE DOMESTIC RELATIONSLAW CONSTRUCTIONCONTRACTS Riverview Plaza, Mobile Birmingham San Francisco Alabama League of Municipalities Birmingham Bar Associabon PractisingLaw Institute Credit~: 6.6 Cost S40 Credits: 3.2 Cost: S20/memoors; 1212)765-5700 (205) 83-1-3656 S2!ilnonmemoors (2051 251-800& 19-25 27-28 11-21 SOUTHERNREGIONAL TRIAL AD· LABORLAW AND LABOR UTILITYFINANCE AND ACCOUNT- VOCACYPROGRAM ARBITRATION ING FOR ATTORNEYS SMU Sc:hool of L1w,Dallas Hihon Inn, Dallai Washington, D. C. National Institute (or Trial Advoc;acy Southwes1e111L!lgal Founda 1ion finant lal Accounting lnstlwte Credits: 65.0 Cost $1,250 Cost: $625 Credits: 15.6 Cost: $950 (612) 644-0323 (214)690-2377 (20 1) 568-0249 29-30 13 friday LAND USE LAW ALABAMALEMO N LAWLITIGATION \>\'e;twardH,hon. Anchorage Mobile Amencan lnstttute of Certified Planners Nahonal BusinessInstitute Credits: 12.5 CoSt: $235 Credits: 6.6 Cost: S96 (312) 955-9100 (715)835-8525 148 May 1986 16-20 23-27 11-12 ADVANCED LABORAND EMPLOY· ENVIRONMENTALLITIGAT ION FINANCEAND ACCOUNTING FOR MENT LAW Universily or Colorado, Boulder LAWYERS tJnive(si!y of Colorado, Boulder ALI-ABA /Via,~ Hopkins Internacional, San Al l-ABA (215) 243-1600 Francisco (215) 243-1600 Southern Methodist UnlverSicy Credits: 9.9 Cost: $360 (214) 692-3336 18-20 23-27 AMERICANINSTIT UTE ON FEDERAL FEDERALS ECURITIESLAW 12-13 TAXATION Stanford I.aw School, Palo Ah.o Amerocan lnMitute on FederalTaxation ,\Ll-,,\BA HOW TO READANO INTERPRET Wynfrey Hotel, B,rmingham (215) 243-1600 MEDICALREPORTS Credits: 20.6 Cost: $300 Marina Beach Hotel. Los Angeles (205) 251-1000 Medi-Legal Institute Credits: 13.5 Cost: $400 27 friday (818) 995-7189 20 friday PROBATEPRAC TICE ANO PROCEDURE Birmingham 17-19 POST-TRIAL MOTIONS IN CRIMINAL Birmingham Ba, Association Credits: 3.2 ANNUALMEETING PRACTICE Wynf,...,, Hotel, Brrmingham Birmingham (205) 251-8006 Alabama State Bar Birmingham Ba, Association (205) 269-151S Credits: 1.0 Cost: SlO (2051 251-8006 27-29 PRODUCTSLIABILITY 19-26 20-21 Four Season, Hotel, Toronto Professlon,11Educa clon Systems, Inc. Credits; 14.4 Cost. $345 INSURANCE COUNSELTR IAL FINANCEAND ACCOUNTING FOR 1-800-826-7155 ACADEMY LAWYERS College lhn Conference Center, Boulder Embassy Row Hotel, Washington International A;sociation of Insurance Southern Methodist University Counsel Credits: 9.9 Cost: $360 () 12) 368-1494 (214) 692-3336 21-22 29-4 25 friday CHECKLISTFOR SHAREHOLDER ANATOMYFOR LAWYERS ADVANCEDTRIAL ADVOCACY AGREEMENTS Sheraton, Seattle University of Colorado, Boulder Birmingham Medi-Legal Institute Nauonal lnscnucefor Trial Advocacy Birmingham Bar Association Credle.a 13.S Cose:S4 00 Credhs: 43.0 Cost: Sl,150 Credits: 1.0 Co,i: SIO (818) 995-7189 (612) 644.0323 (205) 251·8006 • The Alabama l.d,vyer 149 Copingwith VocationalExpert by Paul R. Lees-Haley Altomey.;hand ling personal injury and wo(kcrs' com1:>ensationcases are con· fronted with a growing body of slipshod te)tlmony by vocational experts. Profes sional groups (such as the American Board of Vocational Exper1s,h eadquar tered In Nashville) are making excellent efforts to Improves tandards in this field, but until they are successful in doing so, anorneys need instruction to cope with vocational testimony. Use of a rebuttal witness is not the on ly solution. One ahemati-e is to ha\1!the recordsexamined by a sophisticated ex pert , 10 learn of errors and omissions and obtain an outline for the deposition. An other is to become more knowledgable ~bout vocationaleva luations and waysat torneys overlook oppo rtunities to assure .____ ,. just decisions. Following is an outline of the correct procedure for performing vo cational evaluations involving lost earn ings and an Identification of common er rors made by attorneys for each step in the vocational evaluation poocedure t __I _ _ _ ' - Who performs vocational impairment I ratings, and a comment on their I strengths and limits Most vocational expert opinions are rendered either by psychologists or grad uates of vocational rehabilitation and counseling programs. A few are rendertod by physicians, especially psychiatrists. As a gcncr,11 rule of thumb, vocational re habilitation counselors ha,,eless educa tion nnd more job placement experience th,:inphy sicians and psychologiS1s.Psy chologislShave more in-depth awarene55 of relevant 1es1ingprocedures, and lhey ha\1!more scientific training. Physicians offer 1he mOSlwidely used expertise on physical Impairmentand no usefulknow ledge of scientific \Oeational testing or job marke1. In some uneducated com n,unlLies,testimony by a physician still carries a feudal aura of correctness, re g.,rdless or 11s merits. 150 May 1986 fami I iar to most attorneys and a mo re O n deposition, attorneys routinely ask, rapid ly growi ng field of liti gation. Ex "Doctor, could that inju ry have been amples of such include post-traumatic caused by X?"but they seldom pursue in stress d isorder, neuropsycholog ical defi detail questio ns such as: Testimonycits, psycholog ical injury, psychic trauma, (a) 'What percentage of patients of the anxiety reactions, phobias and dep res same age, race and sex already have sim sion. ilar conditions?" How loss of earning capacity should be (bl "How many symptoms unrelated to A psychologist's impairment opin ions calculated, and where attorneys ignore this type inj ury did you ask about, to see are usually first enco untered in a report the facts if the plaintiff was just endorsing most of discussing psychological testing, inter the symptoms you mention ed, wi thout To answer the fundamen tal question, views and the medica l and wo rk histo regard to reality?" "What is the life time earnings loss of this ries. A physician's op inion may appear in (c) "How certain are you that this ac indiv idual?" certain data must be collect the form of a letter expressing a general cident caused this injur y?" ed and correct procedures followed. disabil ity opinion or a chec klist of op i (d) 'What other causes would be These steps are: nions abo ut lifti ng, bending, etc. (a phys equally valid alternative explanations for (a) measuring the physical or mental ical capacit ies evaluation). A vocationa l the origin of such an injury or ill ness?" injury; rehabilitation counse lor's report typ ical (b) detining pre- and post-injury (e) "Tell us in detail the evidence you ly refers to the physician's or psycholo employability; used as the basis for conclu ding that this gist's opin ion, relates that opinion to the (c) computing earningsi rnpairn1en1; accident caused this inju ry." (d) calculating lifetime earnings loss. plaintiff's viability in the labo r market (0 "Wha t training or cont inu ing edu Each step poses unique problems for at and concludes with a statement of the cation have you had on detecting mal torneys, as o utlined below. percentage of vocationa l impairment. ingering?" Measuring the mental or physical in A careful reading of their reports and The blan ket statement frequently seen jury -The foundation of the earnings im statements in depositions cou ld reveal in reports by physicians, vocationa l ex pai rment evaluation is the opin ion of many of these experts (especially M.D .s) perts and psychologists, that the "patient eithe r a physician or a licensed psychol co nsisten tl y ga ther on ly meage r is totally disabled;' usually is incorrect ogist (or psychiatrist), depending on evidence about the plain tiff's prio r func and irrelevant. Surprisingly few vocation whether the inj ury is physical or psycho tioning and prior di sabilities. They rare al experts and psycholog ists, and almost logica l. The physician or psychologist ly obta in outside cor roboration of the no physicians, have studied the earnings should state as clearly as possible what plain tiff's self-report, and when they do, impai rment literature in detail-not that the plainti ff can no lo nger do, as a result it is from interested pa,ties-usually the this inhib its the expression of such opin ol the injury, that he cou ld do before the immed iate family. It is a rare expert who io ns. Their testimony quickly crumbles injury, and how long the plaintiff will not realistica lly assesses cause-and-effect under a cross-examination prepared w ith be able 10 do these things. issues in litigation; the norm is to make the assistance of an expert who actually Physiciansare by far the most common a thin ly disguised assumption that the lit knows how these procedures wor k. source of op in ions about a person's im igated event did or did not cause the in On deposition, if expert opin ions are pairment. Psychologica l claims are less j uries, and no! to further probe. to be used to establish earnings loss, they Termsto Know Earnings impairmen! (also called re I ished by the Amer ican Medical Associ could perfor m before, times 100. It is ex duced earnings capacity, impai red earn ation Committee on Rating of Mental pressed as a percentage. ings capacity, loss of earning capacity): and Physical Impairment), or the Manu Disabi lity: This is a general term, in this An earnings impa irment evaluation de al for Or thopaedic Surgeons in Evaluat context most commonly applied to work termi nes the loss of earning capacity re ing Permanent Physical Impairment, pub activ ities which previously could be per sulting from an injury or ill ness. This lished by the Ame rican Academy of O r formed, but can no lo nger be handled rating must be calcu lated in orderto ob thopaedic Surgeons. This type of rating as a result of an inj ury or ill ness. "D is tain a valid lifetime earnings loss, in is the source of phrases like "15 percent ability" is a wo rd w ith many faces, often cludi ng those offered by econom ists. to the body as a whole:' confused with the terms above. It ranges Medical impair ment: A medical impa ir from inab ility to perfo rm a specif ic pro ment rating is a percentage prod uced in Vocational impai rment (emp loyabi lity, fession (in certain insurance cases) to in accordance w ith procedures outl ines in residual employability) : The numbe r of ability to perform any gainful employ references such as the Guides to the Eval job s a person can perform after an inju ry ment at all (statutory use in social securi· uatio n of Permanent Impairment (pub- or ill ness divided by the numbe r he ty cases). The Alabama lawyer 151 must be translated or phrased in relevant their reportsconli m,s that in general they, not work al a specific previousjob or do terms.The extent ol medical and psycho 100,do a clearly inadequaoejob, primar customa,y heavy ,vork. logical imp.1irmencassociated with an in ily because most do not even bother to Disability Is a relative condilion, per )u,y does not accurately reflect the ex cry. They appear at deposi1ionswith no taining 101he Individual's ability lo com tent ol loss ol eamings capacity. In fact, more10 offer than remarkslike, • 1did not pete in 1hecurrenl labor market in a de the extent ol psychologicaland physical 1hinkthe plainuff was malingering; "In fined area. Usually a vocational expert impairmentand the earningsimp.1innen1 my opinion, he wasnot exaggerating;or will use the state, county Of a SO.mile may be radically different. "The plalnliffseemed like a sincere per radius ol the pla1n11frslocale as 1he rele For example, ,none recent case a phy son lo me.• De1ailedexamina tion of the vanl labor market. A fact never men sician said the plaintiff had a 25 percent procedures behind such s1a1ements will tioned Is If 1heeconomy changes, !he dis medical impairment, and a vocational quickly reveal most experts do not even abili1y changes. expert said he had a 65 percent 1.0Cation know how 10 evaluate ror malingering. For e> Fbdr . ·¥=:~ UNITEDC OMPi\NIES FINANCIALCORPORATION REALLYGOOD NEWS Here's a lender making 20 year loa ns with FIXED interest rates . Not variable , FIXED FOR 20 YEARS Commercial - Investment loans, first mortgages_ Properties : Office buildings, shopp ing centers . light industrial. New constr uction, rehab . properties. or existing buildings. Bankers : We ca n provide Forward Commitments . up to one year in advance , for permanent loans to cover your construction loans. United Compan ies ls a one-bllllon dollar, linanclal company listed on AMEX. Andrew T. Graybar, CCIM Phone : Southcrett Bldg., Suite 201 (205) 979-0367 1025 Montgomery Highway Blnnlngham, AL 35216 152 May 1986 are sponsoring programs to auract senior Using current medical terminology Every economist's report is different. citizens to work. Help-wanted ads spe and procedures, as defined in the Amer They use different discount rates, in cifica lly solic it retired or o lder ican Medical Association's Guides(O the cluding zero. They make different as employees. Evaluation of Permanent lmpairmen!, sumptions about future growth in real The testimony of a nonpsychological 2nd Edition, a large percentage of the earnings. They do not all use the same vocational expert almost invariably is U.S.,vor king population could sustain a life or worklife expectancy tables: They based upon a reviewof medical records substantial medical impairment rating make different claims about historical in and an interview, with minimal, inade without affecting their capacity to earn terest rates and inflation rates. They use quately performed testing. Psychologists, money. This fact is not widely known, computer programs containing formulas as a result of their scientifictraini ng, do but it is easy to demonstrate and direct they cannot explain. Not uncommonly, a far superior job of testing (in compari ly addresses a key issue in litigation they make programming and computa son to psychiatrists,w ho do almost none, where earnings loss is important. tion errors. and nonpsychologistvocat ional experts, A common error is being buffaloed by The bottom line is that the correct ap who do simpler tests with inadequate "vocational impairment'' percentages as proach to evaluating earnings impair training in the rationale of the tests they ii they were percentages of reduction of ment is a scientific one which can be ex administer). Howeve~a remarkable num earning power,which they most certain plained clearly to the court. Instead of ber of psychological vocational reports ly are not. \.bcational experts are testify meeting this standard, attorneysare per contain errors in test administration and ing about 70 percent, 80 percent and 90 mitting serious technical errors. These interpretation. Testing errors are so fre percent vocational impairment ratings occur most often in one of two forms: (1) quent one should never accept a report and residual employability figures, with· admitting the testimony of self-styled without having it reviewed by an inde out being challenged, despite the fact vocational experts using procedures pendent expert. that these figures are close to meaning which do not pass the Frye test (Frye v. Calculating earnings impairment less as a measurementof dollar damages. United States, 1923) of general accep This is the moment one computes the Calculating lifetime earnings loss-At tance in the field, or which are simply answer to the question, "How much was this point, and not before,a n economist's erroneous"howlers" from a technical the earning power of this individual re opinion becomes meaningful. The econ point of view,a nd (2) failingto solicit the duced/" Looking at the jobs the individ omist can extrapolate the pre- and post appropriate testimony to confirm or dis ual could perform pre- and post-injury, injury earnings capacity and the differ confinn the alleged loss. These errors are the earnings impairment rating is devel ence between the two, build in various so easily avoidable they will be consid oped. In essence, it is a ratio of the aver assumptions and calculate the lifetime ered laughable mistakes, if not malprac age wages of the jobs availableto the in earnings loss and the net present value tice, as soon as they become more gen dividual after the injury and before. of that loss. erally recognized. The solutions are to This procedure is not as simple as it Lazy or uninformed economists will become aware of these errors, have vo sounds. Using the latest and best meth render opinions on flimsy data, such as cational expert reports critiquedby .an in ods, surprising outcomes result. Some W-2s.Many legal magazines contain ad dependent expert, obtain suggestedd ep times an individual's eaming capacity ap vertisements giving good examples of osition guidelines from an experienced pears to be greater after an injury than economists offering budget-rent opinions witness and, when necessaryan d reason before, because the injury reduces the on lifetime earnings loss, based on earn able, use a rebuttal witness. • capacity to perform low-paying jobs ings history alone, without considering without affecting higher-payingpe rform psychological and vocational factors. REFERENCB ance. Many judgment calls enter into One example is the Ph.D. economist F,ye v. Unit~ $r.)tfS, 293 F, 101.l (O.C. Cir, r92JJ these calculations. On the surface, this who used W-2sas the basis for asserting tc<-1-HJlcy. P ('9-BS.VOnt The Alabama L,wyer 153 AboutMembers, Among Firm s ABOUT MEMBERS al the board's February meeting. He the format,on of a partnership under Jerry Lee Hicks, a Huntsville at is a graduate•of 1he Uniwrsity of Ala the firm name of Thomas and Huth torney, recently was named "Boss of bama. where he also received his law nance, with offices a1 1410 Second the Ye.1r" by the Hunlsville Legal degree. Gen1ry ,vasap1JOin1ed to the Avenue Eas1, P.O.Box 1056,Oneonta, Secre1aries Assocla1ionat !heir Fourth personnel boardby Lieu1enantGov Alabama 35121. Phone 205/625-3973. Annual Bosses' Nigh1 Celebra1ion. ernor Bill Baxleyfor the lerm expiring February 1, 1~88. Charles N. McK•nig hl and Eugene Joseph W. Adams• announces his A. Seidel are pleased 10 announce withdrawal from the law firm of Stea Mary Anne Thompson,• a graduale they havejoined In the formalion of gall & Adams and 1he removal of his of Auburn Uniwrshyand Cumberland a partnership under 1he firm name of office 10 960 Eas1Andrews Avenue, School of I.aw, is nC1'Vthe assislant McKnight& Seidel, 503 Government P.O.Boll 1487. Ozark. Alabama_ Phone general counsel for administration in Sueet, P.O. Box2103, Mobile, Alabama 205/77-l-5533. the executi,e ofitce of 1hepresident in 36652-2103. Phone 205/433-2009. Washing1on,D.C. Before joining Rea gan's ~taft, she set\,ed as a political a~ Mannon G. Bankson,• Jr., is pleased The law firm of• Franso n, Dearing poinlee for Tran~poriationSecretary 10 announce the opening of his law and Aldridge, P.A., is pleased to an Elizabe1hDole. officeal 404 Sn= S1ree1,Suile B, Ox nounce J. Keith M. Sands has become ford, Alabama. Phone 205/831-1422. • a member or 1hefirm, which will con Michael E.Jones, former ly ofTurner tinue the prac1ice of law under lhe Jerry M. Vander•hoef, TuS 154 May 1986 The law firm oi McDaniel, Hall, Alber! J. Tully will continue his law Alabama 35203, 205/326-0591, and Parsons, Conerly & Lusk, P.C., takes praaice, as a sole p,actihoner, at 701 Suite Nine, 4509 Vall(')d.ileRoad, Bir pleawre in announcing John M. Fra Comme,ce Building.P.O. Bo ~ 47,Mo m,ngham, Alabama 35243. Phone lJey, Jack . Hall, Jr., and David L Mc bile, Alab,mia3660 1. Phone 205/432- 205/991-6367. Alister haw be<;ome associated with 8863. Ralph C. Holberg. Il l, and Joel tl\e form. Offices are located at 1400 F. Danley announce the formation of Thomas E. Brya•nt , Jr., and J. Gor financial Center, Birmingham, Ala a partnership under the name of Hol don House, Jr., are pleased to an bama 35203. Phone 205/251-8143. berg and Danley, 701 Commerce nounce the continuation of their prac BuiI d ing. P.O.Bo x 47, Mobile, Ala tice of lawa s Bryant& House,a nd the Alabama Gas• Corporation 1s bama 36601. Phone 205/432-8863. continued association of Mark R. Ul pleased to ,1nno\1nce J. David Wood • mer and S. Rosemary de Juan with ruff, Jr.1 has joined Its legal depart The l.rwfi rm of Corley,Moncus, By. the firm. Office, are located at 212 menL Offices arel ocated at 2101 Sixth num & DcBuys, P.C., is pleased to an First Southern Federal Building. P.O. A\1!nue North, Birmingham, Alabama nounce Walter C. Andrews, Ill, and Drawer 1465, Mobile, Alabama 35203. Phone 205/326-2629. Gene W. Gray, Jr., have become 3&633. Phone 20Sl4l2-46n. members of the flml, and Robert L Ralph C. Holberg.• Jr., Albert J. Barnell has become an associate of Jerry W. Schoel•, Richard F. Ogle Tully, Ralph C. Holberg. Ill , and Joel the 11ml . and lee R. Benton announce the for F. Danley announce the dissolution of mation o( a partnership under the ilnn the law firm of Holberg. Tully, Hol Stephen B. Griffin• and Lindsey J. name of Schoel, Ogle and Benton, berg & Danley. Ralph G. Holberg. Jr., Allison are plea~ to announce the and DCouglas J. enteno has become will continue his law practice, as a association ~1f WIiiiam RandallMay in associated with the Orm, with offices sole practltiont'r, at 701 Commerce the f, rm of Crilfln, Allison & May, at Third Fl1>0rWa tts Bullding, 2008 Building. P.O. Box 47, Mobile, Ala with offia><;at BradfordBu ilding. 2025 Third Ave,,u«.>No nh, Birmingham, Al bama 36601. Phone 205/432-8863. Second Avenue North, Birmingham, abama 35203. Phone 205/324-4893. Wherethere's a will... Nowthere's an easierway. AmSouthBank 's newWII and TrustRl!m Book prOllidesa complete and up,te>dalecomplatioo of wil and 1rustfOIITIS to makeyour job easier and laster. In addition, extensive convnentaries are helpfulin the design and m pjemenlationof various estate plans. These lorms relied EATA, TEFAA and recen1revisions i n the Alabama Probate Code and wil be updated periodically10 i nsure continuing accuracy. Toorder your set ol w.i and Trust Form Books, send your check for $95.00 payable 10AmSouth Bank NA 10the TrustDivision at any of the addresses below, or contact lhe AmSouthEs tate and TrustP lanning Aepresen1a1ive in your area. ft alllll:!.,,u ...._. AmSouthBank N.A. AmSouthBank N.A. ~In P.0 . Box1128 P.0 . Box389 Anniston, AL35201 Gadsden, AL 35902 236-8241 543-3000 AmSouthBank NA AmSouthBank N.A. P. 0 . Box11426 P. 0 . Box'!IJ7 Binmgham. AL 35202 Huntsvile. Al 35804 326-S390 AmSouthBank NA AmSouthBank N A. P. 0 . Box 1628 P. 0 . Box 1488 Moble. Al 36629 Decatur.A L 35601 694-1575 353-0941 AmSou1hBank N.A. AmSou1hBank N.A. P. 0 . Drawer431 P. 0 . Box 1 l'!IJ Montgomeiy,AL 36101 Do1han,AL 36302 834·9500 793-2121 The Alabama Lawyer 155 LegislativeWrap-up by Robert l. Mcc urley, Jr. Lawyersand the legal profession were under heavy at Registration of Foreign Judgments-($. 429, sponsor: tack during the 1986 RegularSess ion that adjourned April Senator SteveCoo ley; H. 494, sponsor: Representative Jim 1986. CampbelI ) Thirty states have adopted the "Uniform En A coalition of 54 medical and business groups sought forcement of Foreign Judgments Act;' including our neigh changes in Alabama's civil damage laws by pushing for bors, Tennessee, Mississippi and Florida. This bill permits passage of a package of "tort reform" and "medical mal the filing of a foreign judgment with the circuit court. Thir· practice" bills. It is unlikely major revisions will become ty days after notice, the judgment is enforceable as any law this year, but it appears this is only the beginning of other Alabama judgment. "tort re(orm:1 The board of bar commissioners approved and presented Presently, the House of Representatives has 11 lawyers; to the legislature a bill increasing the size of the board. if the trend continues there will be even less attorneys in This bill gives one additional commissioner for every 300 the legislature after the election primary June 3, 1986, and attorneys in any circuit. It further provides that election general election November 4, 1986. of the state bar president wilI be by mail rather than by Although 800 bills were introduced in the House and popular vote of those in attendance at the Annual Bar 600 In the Senate, relatively few bills of statewide con Meeting. (H. 742, sponsor: Representative Jim Campbell) cern will become law.Fou r bills were prepared by the Ala The appellate court system asked the Legislature to ap bama Law Institute. prove a bond issue to build a new judicial building. This Administrative Procedure Amendment s-T he Ad facility will be on the town side of the Capitol and house ministrative Procedures Act amendments (H. 316, spon the Alabama Supreme Court, Courts of Civil and Criminal sor: Representative Jim Campbell) represent a "clean-up'' Appeals, the law library and the Administraiive Office of bill to the 1981 Act effective since October 1, 1983. This Courts. bill clarifies existing law and represents 26 changes sought by 11 agencies enabling them to better comply with the • Administrative Procedure Act Uniform Transfers to Minors-(S. 514,s ponsor: Senators Ted Little and Ryan deGraffenried; H. 539. sponsor: Rep resentative Michael Onderdonk) This bill expands the pre sent Uniform Gifts to Minors Act, currently allowing gifts to minors of cash, stock and insurance proceeds, to in clude gifts of real and personal property. (See January 1986, The Alabama Lawyer.) Robert L. McCurley, Jr., Redemption of Real Property- ($. 438, sponsor: Senator is the director of the frank Ellis;H. 493, sponsor: RepresentativeJ im Campbell) Alabama Law Institute at The present law can be deciphered only by reading the the University of statutes, Ala. Code § 6-5-230 through 6-5-243, and cases Alabama. He received interpreting them. This revision clarifies the order and his undergraduateand priorityof redemption and allowable charges,and provides law degreesfrom the that commercial ventures may be foreclosed through a University. judicial foreclosure and thereby not be subject to the one year redemption period. (See January 1986, TheAlabama Lawyer.) 15& May 1986 Recent Decisions by John M. Milling, Jr., and Rick E. Harris that the defendant was found to be alleging that Southern Roof, the sub Recent Decisions of the sane when examined at Bryce. contractor, imprope rly applied sheet Alabama Court of Criminal This was improper conduct by the rock and damaged its motel. Jehle Appeals prosecutor requi ring a third trial Slauson filed a third-party complaint because questions may not assume against Southern Roof claiming in factsnot in evidence. The written find demnity if it were determined to have Written expert findi ngs inadmissi ings of the lunacy commission were breached its contract wit h Sho-Me be ble and may not be used to im not in evidence, nor could they have cause of work actually performed by peach live expert testimo ny been placed in evidence; they were Southern Roof. Both Jehle-Slauson hearsay.T he prosecution was not per and Sho-me filed motions for sum Crosslin v. Siate, 8 Div. 245- mitted to prove by way of impeach mary judgment, and both motions Crossli n was convicted twice of capi ment what it could not prove direct were eventually granted by separate tal murder, despite a defenseof insani ly, that is, the contents of the wri tten orders on the same day. Sho-Me ap ty. He had been examined at Bryce expert report. pealed and the supreme court re Hospital shortly after his initial arrest, Since the contents of the report versedthe summary judgment in f.M>r and a '1lunacy commission" subse were not in evidence, it also was im of Jehle-Slauson and dismissedthe ap quently found him capable of stand proper for the prosecution to argue peal as to Southern Roof for lack of ing trial and understanding right from those facts in closing argument. standing to appeal. wro ng at the time of the offense. Subsequently, Jehle-Slauson filed a During his second trial, a defense Recent Decisions of the Rule 60(b)(5) motion to set aside the expert testified the defendant was Supreme Court of Alabama summary judgment in favor of South psychotic and suffering from post Civil ern Roof, and the trial court granted traumatic stress syndrome related 10 the motion. Southern Roof filed a peti his service in Vietnam. The lunacy tion for writ of mandamusa nd alleged com mission report was never in Ci vil procedu re • • • that since both summary jud gments troduced, nor did any of the psychi Rul e 60(b)(5) "pr ior j udgment" were entered on the sarne day, the atric experts who found the defendant requirement explained judgments were entered contem to be sane testify. Ex parie: Southern Roof Deck Ap poraneously and neither judgment On cross-examination of the de plicators, Inc. (In re: Sho-Me Motor can be characterized as "prior' to the fense expert, the district attorney Lodges,I nc. of Alabamav. Jehle-Slau other within the purview of Rule repeatedly attempted to impeach him, son Construction Co.), 20 ABR 1253 60(b)(5). using the wr itten findings of the (February 7, 1986)-S ho-Me, a motel Rule 60(b)(5l provides that the court lunacy commission. During sum owner, sued Jehle-Slauson, the gen may relieve a party from final judg mation, the district anorney argued eral contractor, for breach of contract ment where "a prior judgment upon The Alabama Lawyer 157 which ii Is based has been reversed or dlans of the person and property of her stances when no guardian is mentioned otherwise vae.11ecl.... • In an apparenl sewn.year-old child, Daniel. Tne Smilhs In the wlll or when lhe deceased dies in case of first Impression in Alabama, lhe petitioned 10 have the wili admitted 10 testate. Therofore,the father is entitled to supreme coun disagreed quoting from a probate after1helr appoinlfnenl as1esra retain custody of his son but lhe estate FounhOrtt1h Coun of AppealsG1Se. The men1ary execu1ors. Daniel, by and otlhe child, including any sums recei,-ed supreme coun noled lhal • 'prio( in Rule through his father;Ronald Tribble, oppos from his mother's estate, is 10 be main 60(bJ(S)refers no1 only 10 prior in time ed the petition and asked 1hecourt 10ap tained and supervised by his grand· but also to prior as a maner of legal sig poin11he father ildminislratorad /item 10 parents, the Smiths. nificance~ pursue the 1esta1rix'swrongful death Executors and administrators ... The summary judgmen1 in favor of claim. The 1es1a1rlxand Ronald Tribble circuit court has jurisdiction to Jehle-Slauson rendered summary judg were divorced at the time of her dealh, hear wm contest until probate menl in fovorof Soulhem Roof appropri and the fa1her had been awarded custody court renders final judgment ale since, al 1ha1 point, 1here was no of 1helr child. admitting will to probate longer an ac1lon wilh respect to which The irlal court issued letters testamen Steele v, Sullivan, 20 ABR 1231 Jehle-Slauson could seek indemnity.Re tary appointing the Smiths executors (February7. 1986)-Sullivan filed a peti· versal of the gran1or summary judgment under the will pursuant 10§26-2-23, Ala. rion wilh the probate coun 10 probate a In favorof Jehle-Slauson is legally signif Code 1975, bul appointed the father will. A hearing was subsequently held, icant to the summary judgment in favor guardian of the esta1e of the minor son and the petirioner called witnesses 10 or Southern Roof, and lhe 1rialcoun did pursuant to §2f>.2-22,A/a. Code 1975. p,o ...e the will. not abuse its d,scretion in granting the The trial coun held that the father was While testimonywas being reduced 10 motion. enlitled to lhe prc 158 May 1986 doe s not effect a severance of in· terests to exclude coverage under lhe complete d op erat ion s exclusion American us, Iron Pipe Co. v. Com EverybodyWants merce and Industry Insurance Co., 20 ABR 751 (December 20, 1985}-Ameri can Cast Iron Pipe Company (ACIPCo) was insured by Commerce and Industry ToBe Creative. (C&IJunder a general liability policy. American Valve, a totally-owneds ubsid When you think about i~ time is the mostva luable iary of ACIPCo,a lso was an insured. American Valve's empl~ was In commodity my companybas t o sell. Soth e moretime I jured on American Valve's property as a have,the morebusiness J can do . That'swhy I chose resuh or a malfunctioning conveyor sys the professionalsat Creative L easing to handlemy tem manufactured by ACIPCo.The em ployee sued ACIPCo and C&I denied transportationproblems. coYerage based upon the "completed They'retrained, highly-skilled go-getters who designed operations h.u:ards" exclusionwhich ex the perfectplan to meetmy company'sneeds. Their cludes c The Alnbama L.iwyer 159 cause of §lJA-11-161, A/a. Code 1975,and proved the report was published with ac provides that review of a petition forcer granted summary Judgmencs in favor of tual malicP. tiorari by the Alabama Supreme Court or the defendants. The supreme cou rt Venue •• • dinarily will be confined 10 the facts affirmed. agent' s ph ysical pr esence not ne· stated in the opinio n of the intermediate Section 13A-11-161 provides that "the cessary to find that a corporation appellate cou rt. If a petitio ner is dissat· publication of a fair and impartial re is doing business isfied with the statement of facts in that port •.. of any charge of crime made to Exparle: Reliance Insurance Co. (In re: opinion, he must file a request for rehear any. .. pub lic body or officer . .. shall be A./.Morris v. Reli,,nce Insurance Co.), 20 ing specifically asking the court lo adopt [conditionally) priv ileged... :• The Su· ABR 1072 (January 31, 1986)- Reliance a different statement of facts. If the inter preme court noted that although this stat· filed a petition for writ of mandamus LO mediate appellate court simply affirms ute had not been construed by this court, require the trial coun 10 transfer the case the trial court witho ut an opin ion, then it was merely a cod ification of the com fron, Lawrence County to Jefferson or the supreme court wi l I have no facts mon law as reflected in Restatement Randolph County. upon which to review a certiorari peti· (Second) of Torts, §611 (1977). Reliance wrote a payment and perfor tio n, and the petition will be automati The supreme cou rt stated the policy mance bond for a contractor who per cally denied. This was Grear's fate. behind the privilege is that the public has formed wo rk in Randolp h County. Reli While the court merely reiterated lhis a strong interest in receiving information ance and the contractor-principa l were long-standing rule in this opinion, recent in order to " monitor the conduct of its sued on the bond in Lawrence County. ABRs are full of summary affirmances in governmen(' and its personnel, such as Reliance is a foreign corporation qual criminal casesin which Greari s the only law enforcement officers. ified to do business in Alabama, and il cited authority. Apparently, many attor The supreme court found that since the argued venue was not proper in Law neys remain unaware of the conse news report at issue was a fair and accu rence County because Reliance was no t quences of ignoring Rule 39(k). This rate report of statements made to the pol doing business by agent in Lawrence could result in tragic and disastrous ice in the course of an investigation, the County when suit was flied. (Article XII, events. report was, therefore, co,1ditional ly priv §232, Ala. Constitution 1901) The Court of Crim inal Appeals is, in ileged under §13A-11-161 unless it was Respondent maintained §232 does not a word, overburdened. It cannot possibly require the physical presenceof an agent issue a wri tten opin ion in every case it in the county where suit is brought, In is required to handle and, therefore, fre other words, a foreign corparatio n may quently resorts to issuing 'j\ffirmed- No Richard Wilson be doing business in a cou nty e,,en Opin ion" decisions. When this happens, though there was no agent in the coun it is mandatory for appellate counsel & Associates ty. The supreme court agreed with the wi shing to further appeal to file a request respondent. for rehearing accompanied by a Rule Registered The supreme court stated a foreign cor 39(k) motion. Failure to do so will be fa. Professional poration may be doing business in a tal to a later pelit ion for wril of certiorari. county with in the meaning o( a venue Court Reporters statute even though not presentby agents Any conversation with a suspect which might lead to incriminatin g 132 Adam s Ave nue and notwi thstanding that such business may entirely Interstate in character. statement s is an inter rogation • • • Montgomery , A laba ma 36104 be Furthermore, the term "agent'' is express evid ence of affir mativ e waiver of 264-6433 ly mentioned on ly with respect to service Miranda rights requ ired before in of process. Here, Reliance had written criminating state ment may be bonds for other princi pals who per pla ced in evidence formed work in Lawrence County, and this was more lhan minimally suffi cient Ex Parte:Coy PatrickCrowe , 20 ABR to enable the trial court to fi nd that Reli 667 (December 13, 1985)-Crowe was SAVE 30-60% ance was doing business in Lawrence convicted of murderi ng a deputy sheriff. * * * County. Evidence was introduced at trial of a con USED LAW BOOKS versation occurring between an FBI agent * * * Recent Decisions of the and the defendant w hile the de(endanl • West • Lawyers Coop • Harrison Supreme Court of Alabama was being transported from the scene of • Matthew Bender• Callaghan • Others Criminal the arrest to headquarters in Nashvill e, WE BUY - SELL - TRADE Tennessee. Failure to comp ly wi t h rule 39(k) During the drive downtown, the de Law Book Exc han ge al ways fatal to the further appeal of fendant asked the agent whether he P. 0. Box 17073 a "no opinion " affirma nce woul d be returned to Alabama. The Ja ck sonvill e, FL 322 16 Ex Parle: Albe rt Grear, 20 ABR 651 agent indicated that he probably would, 1-800 -325-6012 (December 13,1 985) - Rule 39(k) of the and the defendant replied he was afraid Alabama Rules of Appel late Procedure to return 10 the state. The agent said, 160 May 1986 'What about that deputy you wasted The Supreme Court held that seizing according to the court of criminal ap there?';a nd the defendant responded, "I the leaf and taking it 10 palice headquar peals,rendered Cherry's convictio n void. can't bring him back or do anything ters was the act of a law enforcement of. The supreme court reversed,h olding a about that nc:,w;'hung his head in re ficer and not a private citizen. Since there court may take judicial notice of the of morse and said he expected to get li fe was no warrant, probable cause or con fice or capacity of the signer of a docu in connection with the killing. sent, evidence of the plants growing in ment, even if the title does not appear Crowe's conviction was reversedon the Kennedy's apartment shou Id have been on the face of the document. grounds that introduction of evidence of suppressed.(Note: Perhapsthe outcome this conversationviolated the defendant's of this case would have been different Miranda rights. The conversation clear had the police officer not seized the ly occurred w hile the defendant was in marijuana leaf but instead gone to po Recent Decisions of the custody, raising the issueo f whether Mi lice headquartersand made out an affi Supreme Court of th e United randa was strictly observed. The conver davit in support oi a search warrant.) States sation was also an Interrogation with in the meaning of Miranda, becausei t con-· More Dison sisted of "words or actions on the part What to do when a client wants to of the police that the police should know Ex Parte: Stateof Alabama (Re: Cherry commit perjury are reasonably I ikely to elicit an incrim v. State)- tn Cherry v. State,(re ported in inating response from the suspect;' this column in January 1986) the Ala Nix v. Wh iteside, 54 U.S.LW. 4194 When the agent said, "What about that bama Court of Criminal Appeals held (February26, 1986)-The defendant was deputy you wasted?'; he engaged in an that a uniform traffic ticket must contain: convicted of second degree murder de interrogation just as if he had asked the the signatureof the officer; the signature spite a plea of self-defense. While pre question, "Di d you kill the deputy?" of the person administering the oath to paring for trial, the defendant had con Since the defendant had been subject the officer; and the title, agency or ca sistently told his lawyer that he had not ed to a custodial interrogation, his state pacity of the person administering the actually seena gun in the victim's hand. ments to the FBI agent were not admis oath. A week before trial, he told his lawyer, sible at his trial unless the state proved In this case,th e magistrateadmi nister for the first time, that he had seen some he had waived his Miranda rights. The ing the oath to the arresting officer failed thing metallic in the victim'sh and. When fact that the defendant initiated the con to affix her title to the traffic ticket, which, questioned further by the lawyer, the de- versation was not a showing of waiver nor was the fact that the defendant ulti mately made an incriminating statement. Off-duty police officer not a private citi:zen when he discovers and seizes in crimin ating evidence ••• TH INK Fourth Amendment mu st be observed Ex parte: Mary Alice Kennedy, 20 ABR 1382 (February 14, 1986)-An off-duly police officer. working as a part-time pest STRUCTURE exterminator, was admiued to Kennedy's apartment by her landlord. There was no When you have a personal injury case, THINK STRUCTURE. evidence that she consented to this ad That's right. Think struc tured settlement as an alternative to a mission. While there, the police officer lump sum settlement and maximize the cash available for the noticed what appeared to be three mar claimant at the lowest possible cost to the defendant. Call now for ij uana plants. He pulled a leaf from one of the plantsa nd took it to the police lab ideas on what creative use of U.S. Treasury securities and oratory for analysis. The leaf was mari annuities can do for your settlement needs. juana. The issue for review was whether the off-duty officer was acting in his capaci Lamar Newton ty as a law enforcement officer or as a private citizen when he removedth e leaf Southern Structured Settlements, Inc. from Kennedy's apartment. As a pal ice 1200 Bank for Savings Building officer, his actions are circumscribed by Birmingham , Alabama 35203 the FourthAmend merit. As a private cit 205-328-2666 izen, he is not limited by warrantor prob able cause requirements. The Alabama Lawyer 161 (endanl said he needed ro 1es1ify he had assistance of counsel when he Ac:cord,ng 10 RobertS,1h e Confronta seen a gun ln 1he vie1im'shand to bu1- 1hreatened his client whh exposure ii the tion Clause requiresa showing that a wit 1ress his self-delense case. client aucmpted 10 commit perjury. In a ness' live 1es1imonyis unavailablebefore /\J 1ha1point, hos l~r told him: he rare unanimous decision (the opinion the prior S\\Omtestimony of 1ha1witness could not allow the defendant to testify was nor unanimous) the coun held that may be Introduced rn a criminal trial. falsely; ii the de/'endan1tried 10 testify the defense lawyer'scondue1 did no( vio Now, howl!\er, a prosecutor may intro falsely it 'M>Uldbe the li!W)-e(sduty to late the Sh SMITH-ALSOBROOK & ASSOC . EXPERTWITNESS SERVICES KDA AONKRA. M O JHYC.TM:lATo,t • nreconsulnng • Rlmlllroexplosions ~ • Trafficaccident reconstruction • KRAMER DETECT IVE AGENCY, INC. 00 Me a1'1C • c , uMIHAL • l,..OUSTIIIAL BOBBYD . SMITH, B.S., J.O., Presldenl ,,.. , 1205 ) 556·6053 P ,O . BoX~$G P.O. Box 3064 Opelika , Al 36803 (205) 749-1544 ~ 4 HOU!lit 5Eff V1C·E TutC At.OOSA, AL 35"03 162 May 1986 DisciplinaryReport Disbarment Suspension • Dothan lawyer Harold E. Hayden was ordered d isbarred • Mobi le lawyer Charl es J. Fleming was suspended from the by the Supreme Court of Alabama, effective Ma rch 4, 1986, practice of law for a period of two years, effective August 2 2, based upon October 4, 1985, findings of the Discip linary Board 1964, by order of the Supreme Court of Alabama, dated Feb· of the Alabama State Bar. Hayden was found guilty of misappro ruary 19, 198&. The supreme court's order was entered pur priating funds belong ing to a clie nt, issuing a worthles s nego. suant to Fleming's guilty plea to d isciplinary charges filed tiable instrument to the cl ient, forging the signature of a notary against him by the Grievance Committee of the Mob ile Bar publ ic on a power of attorney from the clien t and, finally, ly Association, charging hi m w ith eight cases of misappropr ia ing to the Grievance Committee of the Hous ton County Bar tion of funds and o ne case of ill egal drug possession. (ASB Associatio n during its investigation of the matter. (ASB 64-660) 84-490 & 84-501) • A new feature of the Alabama Stale Bar Annua l Meeting! [)Feedback LITI GA TION SECTIO N M EETIN G Thur sday, l uly 17, 1986 10 a .m .- noon Social Security Disabi lity Act Wynfre y Hotel, River chase Gall eria, Birmingham Watford v. Heckler "Feedback" in the March 1986 issue of All bar members arc urged 10 auend. A/ab.1maLawyer dis cusses the November A CLE programand election or officersa re on the agendafor this firs11 nee1ing 1985 article enti tled " Recent Develop of 1heAlabama StateBar's Liligation See1ion. Approval of 1hesec tion by the board ments Concerni ng Eligib il ity for Social is expec1edthi s mon1h. Security Disabil ity'.' Althoug h Jenny L. You do not have to be a membert o attend1 he meeting;ho1,vever , more than Smith provides useful informatio n that 100 Alabama lawyershave joined and more are eagerly sought. Our goals are 10: was not present in the November article, (1) providea lorun1 \Yhere all trial attorneysmay meet and discusscomn,on she makes one very significant error. problems; Ms. Smith states, " No attorney may be m undertake an exiensive cducaiional program 10i mprove the compe1ency of awarded an amount [of attorney's fees) in 1het rial bar; and excess of twenty-five % of the cla imant's (3) improve the efficiency, unifom,ity and economy of li1iga1ionand work 10curb abusesor the judicial process. past-due benefits. 42 U.S.C. §406(b) Annual dues are $15. All lawyers in1eres1edin improving !heir skills as litigator.; Therefo re, the quest ion beco mes and advocates:are urged to join. Pleasefill out the applic.:1tion below and send whether the claimant pays the attorney's ii wilh your check for $ I 5 payable 101hc Alabama Staie Bar Li1iga1ion S The Alabama Lawyer 1&3 Opinionsof theGeneral Counsel by William H. Morrow, Jr. wl1h him are also prohibited:' QUESTION: Canon 19 of 1he old Canons oi Professional Elhics of ri,e "If, after a law firm under takes employment in con American Bar Association provided: templated or pending litigation, it becomes obvious one 'When a lawyer is a witnessfo r his client, exceptas to mere- member ought to be called as a witness on behalf of the ly formal mallers,such as the auesta1ion or custodyof an ln client, but at the time of the trial this member has strumenl and the like, he should leave the trial of the case withdrawn from the firm and is no longer associated to other counsel.Except ,vhen essentia l to thee nds of jus1ice, therewith, are the remaining members ethically precluded a lawyer shouldavoid testify ing in coun in behalfo( his client." from conducting the trial?" We arrive at the conclusions expressed in the answer here- inabove for at least two reasons. ANSWER: First, there is no rule of law or evidence disqualifying an The attorney who has wi1hdrawn from the firm and will attorney as a witness on behalf of his client because the at teslify cannot try the case, but remaining members are not torney is conducting the trial of the case. McElroy'sAlabama precluded from the trial of the case. Evidence, 1hird edition, contains the following statement, "A Two formal and several informal requests for opinions posed counsel in the case being tried is not disqualified, on that the foregoing questions. accoun t, to be a witness;• citing Quarels v. Waldron, 20 Ala. 217 (1652), Morrow v. Parkman, 14 Ala. 769 (1646) and DISCUSSION: McGehee v. Hansell, 13 Ala. 17 (1946). Any disqualification Erhical Consideration 5-9 provides: o( an attorney to act in ihe dual rules or advocare and witness "Occasionallya l awyeri s calledupon to decidein a l),lnlcular is found only in the Code of ProfessionalResponsibili1y of case whetherh e will be a witness or an advocate. If a lawyer 1heAlabama State Bar. is both counsel and witness, he becomes more e.aslly im Numerous opinions of courts eluded the fact that an at peachable for Interest and thus may be a less effectivewit torney lrying a case for a client is not incompetent as a wit ness.Con\'erse ly,the opposingco unselmay be handicapped ness on behalf of his client. In the case of "'blk v. Wolk, 333 in challenging the credibility of the lawyer when 1helawyer also appears as an advocate in the case. An advocate who N.Y.Sup p. 2d 942 (1972)th e court observed: becomes a witness is in the unseemlyand ineffective posi • • • tion of arguing his own credibility.The roles of an advoca1e "A 1rialcou nsel testifyingo n behalfol his own clienti s a com andof a ,vitnessare incons istent;the function of an adYocate petent witness.He is nol disqualifiedas a witnessby reason is to advanceo r argue 1he cause of another, while that of a o( the fact that he is lhe trial attorney.' witness is to state facts objec1ively;• In the case of Benneu v. Commonwealth, 234 Ky. 333, 28 Ethical Consideration 5-10 in pan provides: S.W. 2d 24 (1930) the court staled: "Problems incident to the lawyer-witness relationship arise •;o.sto his testifyingin the case, it may be said in generali hat, at differentstages; they rela te either1 0 whe1her a law)oersho uld in the absence of a disqualifyingint erest. an attorney has accept employmentor should withdraw fromemployment alwaysbee n regardedas a competen1 witnes5for his clicnr!' Regardlessof when the problemarises, his decision is to be See also People v. Guerrero, 47 C.A. 3rd 441, 120 Cal. Rptr. governed by the same basic considerations." 732 (1975), Sheldon Electric Co., Inc. v. Blackhawk and Disciplinary Rule 5-102(A)p rovides: Plumbing Co., Inc., 423 F. Supp. 466 (1976). "(A) I(, afterundemik ing employmenl in con1emplated or pen Second, although DR 5-102(A)s peaks or 1he withdrawal of ding litigation, a lawyerlearns or it Is obvious that he or a "his firm'' when a lawyer must testify on behalf of his client, lawyer in his firmoug h1to be called as a witnesso n behalf some courts in considering motions requiring withdrawal of his client, he shall withdrawfrom the conduc1of 1he trial have refused to require the withdrawal or an entire finn and his firm if any, shall not continue representation in the trial, except 1ha1h e maycon tinue 1he representationand he because one member of the firm ought 10 testify on beha lf or ~ lawyer in his firm may testi(y in the circumstancesenu of his client. In refusing to disqualify an entire nrn, because merated in DR 5-101(8)(1)1hrough (4) . one membe r ought to testify on behalf of the firm's client, Section (7) under "Definitions" provides: the court in Greenbaum- Mountain Mor(8ageCompa ny v. "Unless1h e contextotherwise requires. whefe\oer in these rules PioneerNationa l Tille InsuranceCompany, 42 1 F.S upp. 1348 the conduct of a lawyeris prohibited, all lawyersassocia 1ed (1976) stated: 164 May 1986 In fairness 10all parti<:$, and to the iudodal system, we believe that Opinionsof theGeneral Cou nsel in 1h1scase the trial will nOI be 1.1,n1edby ~!lowing Mr. Robins' firm, r.Rher1han Mr. Robms hlmwll,10 conduct the futurecourse of this litigation. The rationalebehind unonS, ;is applied to the •Oefefl ALABAMA BAR INSTITUTE FOR NOTICE CONTINUING LEGAL EDUCATION The Alabama Supreme Court has before it 25th ANNUAL TAX INSTITUTE for its consideration a proposed Temporary Ju ne 5, 6, 7, 1986 Rule of Criminal Procedure, styled "Rule 20, This w>Slltulowij l b The Aldbam,oLawyer 165 1986Midyear Meeting 1 Alabama S1,1te Bar Board of Commissionersmeets Wednesdaya.m. 2 CommissionerHuckaby reports on ba, commission reapponion menr leglsl,,rlon. 3 Gubemarorial forum-Alabama SrareBar PresiclentNorrh opens luncheon 6 Al Vreeland, LSCAboard member, and 4 LertleLane Norrh and LanieRay. Claue Black, p,es,denr-electof rhe Young mond admire the sculpture at Lawye1)'Sec1ion, were among Tuscaloosa Wednesday p.m. 's Shakespeare 5 JimSasser, Mic/year Meeting chairman, lawyersattendln8 the Midyear Meeting and feslfval cockra/1supper. 1elaxeswith John Robertson. eye-openerb1eakfas1 Thursday a.m. 166 May 198b 8 /u/lus Michaelson,M .D., presidentof1he MedicalAssociallon oiA/abama, addresses rhe meet111gw,rh respect ro physicians' concerns 7 Cllff 1-feardof MontgomeryIntroduces rhe program ar "The La1vye,and rhe Medical Malpracr,ce C,Is/s" fo,um. 11 Philip Ctdiere ... 10 Lawyers' views on the medical ma/practice crisis as presented by Lan ny Vines . . 9 David Boyd oi Montgomery,c haim1an~lee1 of rhe board of bar examiners, par1icipa1es in rile cu:que sr,on-and-answe, session. 12 Danner Frazer. .. 13 and Clny Al$paugi1 Conrinued Tile Alabama La.,yer 167 1986Midyear Meeting CQnlinued 111Alabama Supreme Court Chief Justice Torbert addresses Midyear Meeting Thursday luncheon on status of new judi cial building 15 President North meets with attorney general candidates, left to right , Evans, Wallis, Siege/man, North and Sorrells 16 President North adjourns Mont gome ry portion of Midyear Meeting 18 Charles H .B. Vaucrosson (top center), who arranged the Comparative Law seminar fol/c,wing attorney generals' forum for Alabama lawyer s, at the speakers' lun cheon 17 Brian Smedley, Q.C., discusses the Bermuda court system with those 73 In 19 /left to right, background) Alton R. Brown, Luellen Jones and Liz Cassady visit with attendance at the Bermuda extension of Teressa Grant and the Wor. Granville Cox, senior magistrate ,n Bermuda (far right the '86 meeting. foreground}. 168 May 1986 20 John Cooper (right) visits w11h Don Reynolds ot Monrgomery (/ell! and Bob 21 CommissionersJoe Cassadyand Corman /ones, along wi1h Mike Booker, 011/on of Anniston during a break of LB. (eld and Carney Dobbs, on lhe 1erraceof the PrincessHore/, overlooking Cooper's presentation on legal aid in Hamllton Harbor Bermuda. I _, 23 Archie Reevesand EdgarSte wart, two of !he largecontingent of Selmaat1orneys 22 Jenelle Marsh, assisram dit<'Clorof lhe Alabama Bar lnsliwre fo, CLE,and makmg lhe Bermudalrip, s1rol/on the hole/ Mrs. Jerry(Ea rline) Wood of Monr.gomeryvis,t the M,1r1t1meMuseum in Bermuda. terrace during a conference break. • The Alabama Lawyer 169 Memorials Ames, Mortimer Parker, Jr.- Selma MERRILLWILMORE DOSS Admiued: 1956 Died: February 5, Merri11 W Doss, de1.0ted father and 1986 husband, lawyer, civic leader and work Barnell, George Elbert, Jr.-Florence er, died September 30, 1985. Merrill was Admiued: 1951 Died: December 7, a native of 1-tartselle, Morgan County, 1985 Alabama, born August 6, 1914. Bounds, Russell Hampton-Mobil e He graduated from the University of Admitted: 1984 Died: March 18, Alabama in 1940, then served his coun 1986 try in the United S1a1es Air Force, from Conway,Timothy Michael, Jr.- Birming· which he retired in the mid-1960s with ham the rank of lieutenant colonel. Admitted: 1949 Died: February 20, He commenced the practice of law in 198& 1;ar tselle in 1946,and for many years his Embry, Frank B.-Pell City life was synonymous with the practice of Admiued: 1913 Died: January 31, law in that city. 1986 Merrill was instrumental in forming the Garrett, Theodore Watrous-Grove Hill Hartselle Industrial Board, being a char Admitted: 1939 Died: March 11,1986 ter member of the same, and ser.,ed ii Lusk, Marion Fearn-Guntersville well as its secretary for many years. 1;e Admitted: 1918 Died: January 2, 1986 also served the board as auorney un Marlin, James Floyd-Dothan til the tim e of his death. He helped to Marion F. Lusk of Guotersvill e, Ala Admitted: 1948 Died: January 2, organize the Hartselle Chamber of Com merce and served it as its president. He bama, died January 2, 1986, at the age 1986 of 89. He began the practice of law in Prestwood, Roger Austin-Andalu sia servedas president of the Morgan Coun ty Bar Association. Merrillwas a member 1918 with the law firm of Lusk & Lusk. Admiued: 1940 Died: January 25, He was a graduate of Marion Institute, 1986 of the Hartselle Rotary Club from 1946 until the time of his death and was Marion, Alabama, and attended the Raymon, Harry David-Tuskegee Universily of Alabama and the Universi Admitted: 1936 Died: February 11, president iMhe late ·sos.In August 1985 he was named a Paul Harris Fellow, the ty of Virginia. Marion was admitted to the 1986 bar in Alabama in 1918and New Yorki n Rosser, Claude Pernell, Jr.- St. Louis, highest honor bestowed upon a member 1927. Missouri of the Ro1<1ryCl ub. Such has been award ed to only four members of the Hartselle Marion enjoyed the intellectual chal Admitted: 1978 Died: January 30, lenge of lhe practice of law. He was 1986 Rotary Club. Merrill was a devoted member of the learned in the law and possessed of high Stambaugh, George Michael-Mont ethical standards, a dynamic personali gomery First United Methodist Church of Hart selle, serving it in practicallywery capac ty and a love for his family, his friends Admitted: 1973 Died: February 13, and his state and nation. 1986 ity, including being chairman of the board of trustees, on the administrative He loved his profession and its mem board and ~,e building committee and bers. Despite the great demand for his constantly on calI for any service need law practice, he served his profession ,velI. On many occasions, he was con These notices are pub Ii shed im ed by the church. sulted by young lawyerswith novel and mediately after reports of death are re He was a de1.0ted father and his chil difficult problems, who came 10 him for ceived. Biographical information not ap, dren, Robert M. Doss, Diana D. Spark man and Jean D. Kerr, survive, his wife his help. He was never 100 busy to listen pearing in this issue will be published at anc:lprovide constructive advice. a later date if information is accessible. having died several years ago. We ask you promptly report the death of He was a de1.0ted,able and conscien Marion was past president of the an Alabama attorney to the Alabama tious lawyer. He was constantly con Marshall County Bar Association (1936- State Bar,and we would appreciate your cerned with his clients' problems and a 1937)and serwd as a member of the edi assistance in providing biographical in loyal servant to the practice of law. torial staff of Lawyers Cooperative Pub formation for The Alabama Lawyer. The Morgan County Bar Association lishing Company, Rochester, New York, extends to his family its deepest sym in 1923-1925. He was mayor of the City pathy in their great loss. of Gunlersville, Alabama. from 1920- 170 May 1986 1922,being 1he younges1 mayor in 1he Osborn. i-te was educated in local the Yearin Duval County, Florida; reci history or lhe 1own. schools and The Un,versityof Alabama. pient of Freedom Foundation's George The Alabama St11eBar has los1one o( receiving a J.D. deg,ee In 1939.As a stu Washing1on Medal of Honor; Lhe BoY ilSgreat members, nnd all who knew him denl, he servedas secretary to 1he regis Scouts of American Sil,-er Buffalo; 1he (eel deeply our loss al his death. \<\~ ex trar, manager of 1hc Deba1e Team and Sal,' The AlabamJ L~wyer 171 American Colleges (1977-78) and desig Russell served as an assistant attorney John Jackson Sparkman became a nated Oulslanding Young Man of Amer general for the State of Alabama from member of the Huntsville-Madison ica in 1980. 1939 to. 1943, and represented Morgan County BarAssocia tion in 1924 after his After law school Claude clerked for County in the State Senate from 1946 to graduation from the University of Ala Alabama Supreme Court Justice Reneau 1950, and in the House of Represenia bama with tl1e degrees of Bachelor of Almon, later practicingwi 1hthe law Omi tives from 1950 to 1954 where he was Arts,B achelor of Lawsa nd M.1ster of Arts. of Prestwoodand Rosserin Montgomery, cha I rman of the Waysa nd Means Com· He enjoyed a successful solo practice be Alabama. At the time of his death he had miuee and Adminis1ra1ion Floor Leader. fore joining the partnership of Taylor, joined the law firm of Weier, Sherby, His early leadership and innuence in the Richardson and Sparkman. Sparkman Hockensmith & Schoene in St Louis. establishment of the Tennessee Valley proved himself an able trial advocate and Claude was secretary-treasurer of the TechnicalSchool which has evolved in- office counselor, while taking a leading Administrative Law Section of the Ala 10 John C Calhoun Community College role in the civic affairsof this communi bama Staie Bar (1979-1984),ch airman of is recognizedby die naming of one of the ty until 1936, when he was elected 10 the Commiltee on Sections of lhe Ala campus buildings in his honor. Congress. bama State Bar (1984), co-chaim1an of Russell served his country in Worid Sparkman served five terms in the !he CLECom mittee of the Montgomery War II as a NavalIntell igence Officer,par House of Re1>resentatives, makingan out County Bar 11984)and director of 1he ticipating in combat landings 011i slands standing contribution through his service Cumberland Law Review Foundation in the Pacific Ocean. on the House Military Affairs Committee (1984).In 1985, he received the pro bono He was a devoted and lovinghus band and as Majority Whip to the victory of award from the MontgomeryCou nty Bar and father, married to the former Ann our armed forces in World War II. for mosl service from a small law rirm. TIiiery of Decatur, and leaving at his In 194 6 he achieved the unique dis In addition to Claude's accomplish death two daughters, Mary Ann Banks tinction of being simultaneously re ments, he was a unique individual, a and Elizabeth Gilchrist, and a son, No elected 10 the House and the Senate, to genuinely wonderful human being pos ble J. Russell, Jr. He was a Christian fill the expired term of Senator John sessing unlimited devotion 10 his wife, gentleman, faithful and loyal to his God Bankhead. Senator Sparkman served 32 children and friends, as well as an un and to his church of which he was an of )"i?arst in he Senate, longer than any other bridled enthusiasm for life. Those who ficer and leader for many years- Alabamian, until his relirement In 1979. knew him Cannot help but remember The senator achievedgrea t prestige in the wilh fondness his seemingly endless en Senate, serving as chairman of both the ergy,whether channeled toward pulling Banking.Housi ng and Urban Affairsa nd ior his Tar Heels and his Yankees,p lead the Foreign Affairs committees and was ing his client's case or showing the love instrumental in the enactment of legis he had for Rand)"i?,Blake and Courtney. lation broadening home ownership, Claude truly never met an enemy or left championing small business and aiding a person untouched by his character, his agriculture. kindness and his intense willingness 10 No1wi1hstanding acclaim that he share his lime and his talents. earned throughout this state, nation and Claude is survi,,ed by his wife, Randye the entire world, including nomination Rosser,a member of the Alabama State by the Democratic party in 1952 for the Bar, and their two children, Blake and Vice Presidencyo f the United States,and Couriney Rosser.A memorial fund has his acknowledged in1ellec1ual brilliance been established a1 Cumberland School and his great political success, Senator of Law in his memory. Sparkman alwaysremaine d a man of the people, compassionate and caring, work ing timelessly in behalf of his district, NOBLE JEFFERSON RUSSELL state and nation. Noble J. Russell,a memberand former Upon his retirement from the Senate, president of the Morgan County BarAs Sparkman renewed his membership in sociation, died September 12, 1985, in the bar and resumed the 1>ractice oi law, Decatur, Alabama. ln partnership with his grandson, Taze His practice of law, lasling 50 } 172 May 1986 book contains six ficcionalizd script s on to assista cl ient in perjuring himself. Ac· First Amendment copiess ud1 as libel, air cordi ng 10 chis survey, mo st lawyers Et Cetera scenity, group libel, the selection and re agree. More than three-quarters do not ten1·ion of school library books, the rela think Whiteside was denied effective as tio nship between national security and sistance of counsel (78 percent). free expression and the confidential ity Comp lete survey results were pub Publi c interest law of news rePOrters' sources. Each script is lished in the February issue of the ABA Con1rary 10 reporls of public ln1eres1 fol lowed by a legal memorandum, a Jouma I. law's decline, ii is flourishi ng, according mini-course on relevant case law and the to an unpubli shed survey by che Alliance history behi nd each issue. Post mortem for Juscice, a Washingcon, D.C.. public in Copies are available for $4.95, plus $2 Do you always remember everything terest law research organizat ion. handling for mult iple copies, from the needing to be done immediacely after a Although Reagan admin is1r.a1ion bud ABA Order Fulfillment-468, 750 Nonh client has died? Listen to this audiocas get cuts and general economic stagna Lake Shore Drive, Chicago, 11lino is 60611. tion have taken their toll, says the poll, sette, and be confident yau have taken publ ic interest legal groups have expand che necessary ini tial posemorce m es1a1e ed both in number and attorney emp lay Victims' rights book plann ing steps. ees and in the issues 1hey address and The American Civil libenies Union New York Ci ty attorney Edward S. clie nts they serve. In 1969, only 15 non released a new volume in Its handbook Schlesinger provides step.by-step instruc· profit public interest law centers address series, tilled The Righrsof CrimeVictims. 1lor1s on how and when to: assist in mak ing civil rights and health and safety con Written by two New York ACLU lawyer ing funeral arrangements; meet w ith de cerns existed, emp loying less than 50 volunteers, the 440-page book is called cedent's relatives to d iscuss the admini lawyers. By the end of 1975, 92 centers the first comprehensive guide to state stration of a decedent's est.ite; handle hired nearly 600 attorneys. By the end and federal laws aiding the victims of and secure a decedent's assets prior to of 1985, those figures had grown to 159 cri me. Using a question-and-answer for probate; and rake pre-probate steps to In and 900, respecli vely. mat and wri uen in lay language, the sure the orderly administration of an With the increase in center activities, book cowrs all important legal consider estate. Also provided is guidance explain public financial support has compensat ations of cri me victims, from par1icipat· ing to family members the duration and ed for the decrease in federal funding. In i,1g in trials 10 restitution for damages suf costS of the estate's adm inistration and 1983, $105A millio n was contri buted to fered during the crime. recommendi ng a psychocherapeuticco n publ ic interest legal organizations-a The book is available from local ACLU sultation 10 bereaved individuals. sum equal 10 .3 percent of the mo re than chapters. Thi s 90-minute audiocassetce (order $35.5 bill ion spent for private legal ser numbe r M651) is available for $15, plus vices 1ha1yea r. Over.all income for public Client's perjury $2.40 postage and handling. Interest law from 1975 10 1983 rose 85 Whac should a criminal defense lawyer To order please call 1-800-CLE-N EWS percent after inflat ion . Hawever, since the do when a client intends 10 commit per (outside of Pennsylvania). In Pennsyl number of groups also expanded, 1he av ju ry? The U nited Stales Supreme Coun vania call 215/243-1650 or write to ALI erage income per group increased only heard argumenc on this issue on Novem ABA at 4025 Chestnut Street, Philadel two percenl since 1979 and actually ber 5, 1985, in the case of Nix v. phia, Pennsylvania 19104. d ropped 33 percent per group after in Whiteside. flation since 1975. In a recenc LawPoll survey, a major ity of lawyers (71 percent) said a lawyer First Amendmen t handbook should withdraw, 17 percent said a law AIDS Speaking & Wriclng Truth: Communi yer should tell the client that any perjury Three cri tical individua l rights con ty Forumson (Ile Fim Amendment is an will be revealed to che coun, seven per cerning persons with Acqu ired Immune American Bar Association handbook in cent though t the lawyer should inform Deficiency Syndrome (AIDS) were exam tended for use in public education pro the court only after perjury has been ined in the February issue of the Menral grams on constitutio nal guarantees of committed and four percent said the law and Physical Disability I.aw Reporcer. freedom of expression. The handbook is yer should not do anythi ng. In Pan II of ''l\ lDS As a Handi capping designed 10 coincide wi lh the 250th an Accord ing to Michael Franck, chair Condi tion:' che focus is o n federal and niversary of colonia l printer John Peter man of the ABA Special Commi ttee on state discrimination sra1u1es, publicly Zenger's trial and acqui ttal on charges of Implementation of the Model Rules and funded enti tlemen 1s and possible limit s seditio us libel. principa l aud,or of che ABA's amicus on decisionmaking that severelydisabled Published by the ABA'.sCommission on curiae brief in Whiteside, the Sixth AIDS patients may face. i>ublic Understanding Abou t ~1e law, the Amendmenc does nol obliga te a lawyer Pan I of che anicle , published in De- 174 May 1981> cember, focused on disabi lity related For more informat ion concerning the concerns regarding public health ques AIDS controversy, please con tact the tions. Mental and Physical Disability Law MCLENews The Reporter will act as a clear Reporter, 1800 M Street, N.W., Washing inghou se for key legal developmenl5 in ton, D.C. 20036, 1202) 331-2240. • this emerging field of disabil ity law to by M ary Lyn Pike help service providers, lawmakers, the Assistant Executi ve Di recto r courts and the pub lic deal wi th these controversial issues. Etc.P roposed MCLE rule and regulation changes adopted Ma rch 21,the board of commissioners approved changes in the MCLE rules and regulations. Changes in the regulations IMPORTANT NOTICE \vent in to effect immediately; the rule changes \\/ere forwarded to the Supreme Professional Liabi lity Insureds Court of Alabama for its consideration. with See 47 Alabama Lawyer 114 (1986) for details. American Home Assurance Company March Commi ssion meeting The MCLE Commission met March 21 Lawyers' professional liability insurance for errors and omissions in Montgome ry and took the followi ng underwritten by the American Home Assurance Company is now actions: admi nistered by Insurance Specialists, Inc. Insurance Specialists, 1. Granted a waiver of the 1985 CLE re Inc. has offices in Birmi ngham and Atlanta, and information, ser quirement to a sight-impai red, retired vice and renewal applications are available statewide by telepho n attorney; ing 1-800-241-7753. 2. Discussed and ratified approval of two seminars, after giving the approval Although rates have risen substantially, the American Home by mail ballot and telephone poll; Assurance Company has provided dependab le coverage in 3. Approved half credit for a seminar Alabama and nationw ide for many years. on systematizing and automating estate planning being offered by the Mobile Bar Association; 4. Approved, with several conditions , a bankruptcy seminar offered 10 attorneys .. and savings and loan personnel by the . . -, 1. 1-- ,tl,il_LJ __ ..,_ Alabama League of Savings Institutions; 5. Declined to waive the evaluation re ABA STATE DELEGATE quiremen t for the American Bankers .._, .... - •11----.--·"-•i.- Association; 6. Decli ned to waive the evaluation re Election Results quirement for the Federationof Insurance May 2, 1986 ;...... :._::::::.=._:::::.7::..:....:.=~~ ··- "--....,.... __ -· ..···- ..-_ ...-- Counsel; 7. Received the report that more than N. Lee Cooper 99 percent or those subject to the 1985 CLE requirement had complied; and 1,305 8. Heard it reported that 66 attorneys Ma ury D. Smith were certif ied to the Disciplinary Com -- 694 mission for noncompliance with 1985 re quirements. T1velvewere indiv iduals wilh .., ,- ··-:-::------sufficient carryover credi ts from 1984 -~- Ballots Ma iled 3,864 who had not submitted the 1985 forn,. Ballots Returned 2,054 Seven were attorneys certified for non compl iance in one or more preceding years. ·--...._, __ ..___ ... ~~ ... !:;::.-::_-::=."'• :x I ~ ;.. / • The Alabama Lawyer 175 ClassifiedNotices SERVICES FOR SALE FOR SALE:So uthern Reporters 1 and 2. Call or write John F. Proctor, P.O. Box EXAMINATION OF QUESTIONED TRIAL NOTEBOOK: Saveti me, money, 267, Scottsboro, Alabama 35768, (205) Documents: Handwri ting, typewri ting frustration-w in more lawsuits. Wood 574-3444 and related examinations. Internation grain plastic 3-ring binder with 14 plas ally court-qualified expert wi tness.D ip tic coded index pages and 104 pages lomate, American Board of Forensic MISCELLANEOUS of wo rksheets category. Complete Document Examiners. Member: Amer by notebook $49.95; or send for free bro ican Society of Questioned Document ATIORNEY JO BS: Nati ona l and chure. Write: American Legal Tech, Examiners, the International Associa Federal Legal Employment Report: A Inc., P.O. Box 229. Independence, tio n for Identificatio n, the British For monthly detailed listing of hundreds of Missouri 64051, (816) 836-1935. ensic Science Society and the Natio nal attorney and law-related jobs with the i\ssodati on of Criminal Defense Law U.S.G overnment and other publid pri· yers. Retired Chief Document Examiner, vate employers in Washington, D.C.. USA Cl laborator ies. Hans Mayer Gi· throughout the U.S. and abroad. $30-3 dion, 218 Merrymont Drive, Augusta, months; $50.6 months; $90-12 months. Georgia 30907, (404) 860-4267 ,!&ryerSend check to Federal Reports, 1010 Vermont Ave., N.W., #408, MEDICAL MALPRACTICEPeer Review Washington, DC 20005. Attn: AB. (202) Foundation: Ten years of experience. BAR 393-3311 Visa/MC 2,000 physicians all board certified. DIRECTORY Comprehensive reviews in 48 hours. Fees reasonable. No charge for tele EDITION pho ne consultations. 'A'ork product re is seeking subscribers and Don't let your ports unbiased, tremendous success advertisers for Its 1986 issue to rate. Phone 1-305-394-3311or wri te Dr. be published in August . AlabamaLawyers James Fleming, 2 Royal Palm Way, Suile 2101,8-0ca Raton , Florida 33432. The directory contains an get worn, torn or alphabetical and geographical thrownaway. LEGAL RESEARCH HELP: Attorney listing of all members of the with sevenyears' ex perience in legal re Alabama State Bar , with their search/writing. Access to University of addresses and telephone num Alabama and Cumberland libraries, bers, comprehensive listings Order a binder Westlaw available. Prompt deadline ser of state and feder al officials, (or two!) vice. $35/hour. Sarah Kathryn Farnell, state bar Information , the Code 112Moore Buildin g, Montgomery, Al of Professional Responsibllity abama 36101, phone 277-7937. No and miscellaneous charts and at $6.50each representation is made about the quali fees . ty of the leflillservices to be performed from: or the expertise of the lawyer perform Subscriptions are available at ing such services. an advance cost of $7.50 each . Advertis ing rates are available The WANTEDTO BUY upon request. AlabamaLawyer ALABAMA REPORTS volume #81 through current volume. Contact Bet PLEASE WRITE P.O.Box 4156 ty Byrd, Librarian, Hand, Arendall, et. OR CALL: al. 432-5511. Margaret Lacey or Montgomery,AL Ruth Strickland WANTED TO BUY:A labama legislative Alabama State Bar 36101 materials, including acts, House and Senate journals, attorney general's P.O. Box 4156 or call reports. Contact Erin Kellen, P.O. Box Montgomery , AL 36101 306, Birmingham, Alabama 35201. 205/ 269-1515 (205)269-1515 Phone (205) 251-8100. 176 May 1986 UNDERSTANDING THE LEGAL MIND It is a special mind, one that: • Must be pre cise • Must be able to adapt to each new case • Must be ready for change We understand the legal mind. We are precise, we are adaptable and geared for those last-minute changes. We've gotten this way in 75 years of working with attorneys . You'll like wor king with us. BIRMINGHAM PRINTING AND PUBLISHING 130 SOUTH 19TH STREET 205 /251-5113 Financial and Legal Prinlin g Professionuls You will find Alabama state law and federal law easily with these West publications . They work together to give you fast, reliable access to the opinions and law you need. They sort it au outl Contact your West representative for mora lntormallon : MICHAEL 0. GOODSON L. JAMES HANKIN S P.O. Box 17334 P.O. Box 36336 Montgome,y,Al 36117 Birmingham, AL 35236 --·-· Phone:205/ 277-1 914 Phone: 205/ 320-62•0 ,, ~ ST PUBLISHINGCOMPANY ___ " SOW.KelloggBtvd . - - -;:I P.O. Box ~526 • Sl Paul , MN551~-0526 O 1984Wes t PubU&hlno Co . ...-::-......