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Divorce. Alimony & Child Custody w I Forms 2nd Ed. by Mccur ley & Davis c,1988
Evidence by Schroeder. Hoffman & Thigpen e1987
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Law of Dam ages 2nd Ed. by Gamble ~1988
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MAY1991 Volume52, Number 3 Pubbhld NYen ttrnN • .,ear (the sawnin mue• • ON THE COVER: Spring heralds new growthas epitomizedby daisiesand other bof diredo,y oc>lian) by The,._,,,. Sme 8¥ . P.O. Box415e, Mon,-,y. Alabom,36101. wildflowersin a rield in MontgomeryCounty. Pi,01ob/lJ.1~c ... ,,.,,., /,/o,J/pO""'ll Phone (205)261f.1515. FAX {205) 269•1501.
RabonA. Hu- ...... - ...... -...... Edi10< INSIDE THIS ISSUE: SUsanShlroc:k o.PIOla .AtlOdawEdtot Alternati ve Dispute Resoluti on: An Intr oduction Malgarel I.Mpny ~ - Bg Jack Clarke...... _ ...... 126 8C*d ol Edlklri Cnticshlr.'t fr h ~ ~ ~ ~7). IN olftOtl putiicataond lt'e AIAOlrNSallt e.. 11putlWIIIICI N'V9t! llnlef .t l'Nf ~ .. 1M NIIOMti9 U.,..,• ~ Mwe"I IIIMt I ~ tor$t.5 l'IIOl'ftl ot ~ . ,__, (at bar ditwclDty ...... ,,_ M.ardl.W.,. ./1,#f, """"'°"·w NowfllNf: V... wl ..o. I ; • • c,w .,_." IN UMllt ~ #Id S20 1* ,-, OliltliOeCl1lt ~in ..... ~- IICM of l')t ...... MCWa19Jra,e ti N 00.0 OC..,,._09oW'9flltlowd ofw:ac I I UMlo S-... 0,, "8 ~ Sta S.. •t$ 0.... Al'W'Uf. OI .. ~a.lat. Sc -z5 ...... ,.. S.. Bl,....._...._nw AIIDil,M i..,,..• 11W1OI ._ ~..,...... ,...... ,°'SnO't ...... S;S...... b • ~$15ofNlfl*...-dStt .,clew••n.~~ .cw- doftlCII,..,...,.~...,dlli!l pouot. IOI 1M jw'Nl1 WIG $1$ to, ... dffOo,y Ste, .. t.ai.,..u-, 04"* e; b \»,..1 , AO~ rwlN ... Dt turnlihtd wc,o,.~ ~ OC1PYii car•~~ ltlCi onctdasspc1111191PICI a1 ~ . Allblma mwartcelv9 lffl!OV•I hom in. Ol'Jiotof 0.,,.,111Counlel. b.11 pt,lblicsllon fllfeln di:,es '* '*""Iffy f'!!CllyeflOOfsemeni OI _,.. cwOCM:I« serv1m onet«I, Postmastor: Stnd tlddtfiS c;hanges to Tho Alanama ~ 199• lht Aiaolma S&aieea, , Allrlgh 11 r•1M'td , Lawyer. P.O. Bo• '156 . Mon'9omery. AL:lelOI . 114 / May 1991 THEALABAMA LAWY ER THE ALABAMALAWVER May 1991 / 115 PRESIDENT'S PAGE want to share with you a rea.l success story- the be a part. If a lawyer does become a part of lhe program, a IOLTAprogra m of the AlabamnState Bar. simple form is taken to the lawyer'sbank and the bank does Weall learned in law school lhal a lawyer is ethi· the rest, remitting interest earned on the lawyer's lru5l ac DJcally prohibited from comminglingfunds being held count on a monthly or quarterly basis. No charge is made to for a client with the lawyer'sptr.;onal or firm accounts.A sep the lawyerucept what is authorizedto come out of the inter arate trust account must be established as a repository for est. client funds. Wealso learned that it is unethical for lhe trust The AlabamaI.aw Foundation, Inc:.was organized to be the account to bear interest which goes to lhe lawyer. because recipient or IOLTAfunds. It is a 50l(c)(3) charitable. tax-ex that, in effect, is takinga client's money. empt organizationwhich is authorizedto give grants of these ft Is usually impracticalto set up separate interest-bearing funds ror the following purposes:t o provide legal aid to the accounts for the benefit of numerous clients whose money Is poor, provide law student loans. providefor the administra being held for only a fewday s. It ls equally Impractical to at· tion of justice, provide law-related education to the public, tempt to account for small amounts of help maintain public law libraries. help interest due to separate clients whose maintain a client security fund, and moneyis commingledin a single trust help maintain an inquiry tribunal. accounLSo . client:$' funds which were Al present, 3,257 Alabamaattorneys being held by lawyersfor distribution, are participating in IOLTA.This repre· with occasional exceptions for large sents 62 percent of those eligible to amounts held for significantperiods of participate. This is now generating lime. were lumped together In non-in nearly Sl,000,000a year to be used for terest-bearingtrust accounts. the foundation's charitable purposes, In the 1970s, with lhe adlll!ntof in all al no cost to the participati ng terest-bearing checking accounts. a lawyers. thought began to take hold in parts of The Alabama I.aw Foundationis gov lhe legal community.While each sepa erned by a boardof trustees made up of rate lawyer's trust account might not Alabama lawyers. Ben Harris is the be able to generate a great deal of in foundation'spresidenL Thert Is a full terest , a combination ol accounts time executive director, Tracy Daniel, could. and lhal money might be put to who works out of state bar headquar good use. Since lawyerswere ethically w. Harold Albritton, Ill ters. The foundationreceives grant op- prohibited from taking the Interest, plications which are referred to the and since with most accounts it wa.s Grants Committee, chaired by llarry impractical to provide for interest lo go to the clients, why Camble and composedof lawyerswho are not trustees. The not let trust accounts bear interest with the interest being committeestudies each application and makes recommenda used for charitablepurposes related to lhe law?IOLTA (Inter tions to lhe board of trustees. Annually.the board reviews est on Lawyers' Trust Accounts) wasborn. these recommendationsand makesgrants of IOLTAfunds . The first IOLTAprograms wert emblished in Australiaand In lhe short time that lhi$ program has been in operation canada. followedclosely by lh e first U.S.program , adoptedin the results have been truly amazing.The follov.~ngare a few Plorida In 1978and made operationalin 1981 after the suc of the things that now exist in Alabamathat in all probability cessful defenseof court challenges.The programs have since would not if it were not for IOLTA. spread to elll!rystate. The Capital RepresentationRes ource Center, which wa5or In 1984,A labama State Bar PresidentWalter Byars appoint · ganized in 1988 with former GovernorAlbert Brewer as its ed a task force to study IOLTAand develop a plan for our first president, assists attorneyswho are appointed to capital state. The task force wenl to "'Ork, and in 1986 its chairper cases in the post-conviction stage. lt has headquarters in son, Rowena Crocker Teague. presented a proposal to the Montgomery, where its full-time director, BryanStevenson . board of commissioners. The commissioners approved the and fi\'t staffattorneys monitor capitalcases and are a,..iilable plan and submitted it to lhe supreme court. In May 1987the to help appointed lawyers throughout lhe state with their AlabamaIOLTA program was appl'O\'tdby the Supreme Court specialized expertise. While lhe center now receives funds of Alabamaand it becameaperational in January 1988. from severaladditional private a.nd gQ\oernmenlal sources. its Our program is an opt-out program, which means that seed money, which made the organiiation possible. came lawyerswho for some reaso,, do not wish to participate may from IOLTA. inform the state bar of that fact and they are not required to Appointedattorn eys in capital cases in the pre-trial stage 116/ May19 91 THEALABAMA LAWYER no,v have two investigators available to them through the School of Lawand is nclditionally supported by slntc appropri MitigationProgram of the AlabamaPris on Project. funded by ations. With a full-lime director. Jan Loomis. the center IOLTA. servn as a resource, research and training center to promote The problem of child abU5ehas received much attention Jaw-relatededucation in Alabama.ILs current programs in from Lhe foundation. Examples of current programs made clude the tiaining of teachers, the providingof resource ma possible by JOLTAg rants include prosecutors assigned lo lhe terials to teachers, and the sponsorship of drug education Child AdvocacyCenter and the TuscaloosaChildren 's Center programs In the schools and programs aimed at combating and Montgomery County's Court-AppointedSpecial Advocate ju,oeniltdelinquency. program through which volunteers au assignedto work as a Public law libraries throughout the state have bendited link betweenabused children and U,ecourt. from JOLTAfunds, ranging from lhe installation of an auto It is the foundation's preference to provide funds to orga mated catalog system in lhe supreme court law library to the nize a worthy program and to assist ll until il can become purchase of fax machinesand other equipment for numerous self-sufficient.raU,er than being U,e sole source of continued county libraries. funding.An excellentexample of this is the Court Appointed Other projects which are currently underwayin our state Juvenile AdvocateProgram of Madison County, which has because of IOLTAfunding include the co-sponsorship of a volunteers who act as advocatesin the court cases of physical conference on literacy by lhe Alabama State Bar Tusk l'orce ly and sexually abused children so that children will have a on Illiteracy,cha ired by LynneKitchens; Alabama Public T ele constant figurewhile they are in the court systemand not be visionspots and a series on Constitutionalissues producedby shunted from one person lo another. This program WM made the AlabamaState Bar Law Day Committee,chaired by f'red possible by an JOLTAgrant but now can support Itself McCallum;a liabilityguide for volunteers of non-profit orga through a local tax.Th e foundationrecently app roved a grant nizations published by the ASB Young Lawyers' Section/ to start a similar program for juvenile delinquents in Madison Montgomery County YoungLawyers; U,e YMCAYouth Judi County. cial Program; and an outreach program of the AlabamaDis Domesticviolence is another problem which has received abilities Ad\'Oeae)IProgram LOinform disabledAlabamians in special attention from the foundation. IOLTAfunds allowed SC\oeralrural counties of their legal rights. Birmingham's YWCAFamily Vio lence Center to hire an advo There have been many other JOLTA-funded programs, but cate to appraise domestic abuse victims o( their rights and this will give a sense of what is being accomplishedwith these help guide them through the legal process. A new grant to funds. the same center will be used to hire a part-time coordinator Look at what law)'erscan do! Wilh the =lfish efforts of to train and dinct ,'Olunteerslo help perform lhis function. volunteer lawyerswho have been willingto contribute other The AlabamaCoa lition Against Domestic Violencewi ll use wise billablehour s to servinga s lMk forceme mbers,co mmis IOLTArund s to organize workshopsexp laining laws relating sioners. Grants Committee members, trustees and officersof to domesticv iolence to judges and attomeys. Sevenattorneys the Alabama Law Foundation, and the willingness or 3.257 ha,oebttn hired with JOLTAfunds by LegalServices organiza lawyers to fiU out a simple form to convert their trust ac tions in various parts of the stale to specialize in the handling counts to IOLTAaccounts. we have done \\'Onders. of domesticvio lence cases. This is not an authorized use for This is a project which should make every lawyerin Alaba lhe organizations' government funds and is made possible ma swell with pride. To all who have contributed to its suc only by these grants. cess, and to all who may,on reflection,decide to do so in the As previoU51yreported in this column, it Is IOLTAfunding future, I givemy heartfelt thanks. Wtll done! • which brought lhe AlabamaState BarVolunteer Lawyers Pro gram into being. The culmination of a study by the bar's Committee on Access to LegalSe rvices, chaired by Ken Bat HENDERSON PRIVATE INVESTIGATIONS tles and earlier by AnneMitchell, this program now has full a MATRIMON14Ul>OMESTIC SURVEILLANC E lime coordinator,Melinda Waters, and will be housed in the elCpandedbar building in Montgomery. The program "~II •lndepll\ Reid Ropcns work with existing urban pro bono projects and expandthem • Photograph,cEvJcfence into rural areas. IOLTAfunds are also being used in local pro ffi• Courtroom Tos1lmony bono programs sponsored by the Mobile and Montgomery c ,oN FIDEHTU.L • DISCREET Countybar associations. LICENS ED • BONDED In 1989,the AlabamaCtnter for Law & CivicF.ducation was PO BOXSS391 (35 255) 991 -0044 establishedv.•ilh seed money from IOLTA.The center is In full Dlglt•I b H pe r t , 1521-3029 operation In facilities based at and donated by Cumberland THEALABAMA LAWYER May 1991/ 117 EXECUTIVEDIRECTOR'S REPORT CLIENTSECURITY FUND his year mark.sthe 20th anniversaryo f the state censed at the time of the misappropriation, these claims are bar's first attempt to establisha viable Client Se likely to be denied. One of the claims could conceivablybe I] curity Fund. Initially, the fund was created with a debtor-credJtor relationship unrelated to an attorney a seed grant from the AlabamaState Bar Foun client relationship. dation and an expectationof sustaining the fund through A now-deceasedattorney was the subject of a claimwhich an annual voluntary contribution from each member of the was denied in 1990. The client actually sought to assert a bar. Our initial claim wiped out the fund, and had the malpracticeaction against the fund which is clearly not in Birmingham Bar Association not paid half of that claim, tended. 1\voclaims med for inaction predatedlhe rules and the injured client would have not been made whole. A vol the CSE'. untary funding mechanismcould not Unfortunate ly, 1991 has begun sustain such an effort, and Alabama with the assertion of claims totalling then was one of only a few states Sl52,820.33. One now-deceased at· without a fund. torney is responsiblefor $128.000 of In 1987, al the request of the Ala this total. While still practicing, he bama State Bar, the Supreme Court closed two house sales and kept the of Alabamaadopted rules for a CSF money intended to pay off existing that included a mandatory assess· mortgages. The CSF liability, under ment of every lawyer holding an ac the rules, is a maximum of $20,000 tive license to practice on January I per claim or, in this instance , of each year in the amount of $25 un $40,000. It would appear two other til the lawyer had paid $100 into the claims totalling slightly over $2,200 CS~~The 1991 statements have been will be paid. One attorney is already mailed, and, to date, 3,501 lawyers disbarredand took a SJ, 500 fee while have paid their assessment in full. closing his practice. The other ap Payment number four was due from pears to be a failure to pay over col another 1,945members by March31. lected funds. That attorney has since Our cur rent fund balance is Reginald T. Hamner left Alabama. $646,593.97. Another 1991 pending claim totals 1\venty-lhreeclaims have been as $16,000, but preliminary investiga serted against the fund. In 1989, one tion indicates there is no basis for attorney repaid the client the money wrongfully taken, the claim. even though he was no longer practicing law. The fund paid Initially, there was significant resentment toward the another client $2,000 which had been stolen by a lawyer fund. No small number of dissidents doubted the need for who wasno longer practicingand the bar was unable lo lo It. Prom the above disclosedclaims , it is easy to see those cate. The other claim, for Sl ,462, predated the rules and dishonest among us hurt the entire profession. Most of the was not cognizable. The attorney involved has been dis claimantscan ill affordto be victimized. barred for other offenses. The president-elect of the bar chairs the CSF Claims One attorney is responsiblefor nine pending files. He is Committee. It will be meeting soon to review pending the subject of disciplinaryproceedings and not engaged in claims. the practice of law.Al l of the claims, which total approxi It is hoped the fund is on a sound footing for years to mately $2,300,represent retainers where no work was ever come. It draws interest monthJy. Please review tl1e CSF undertaken. The attorney involved indicated his intention Rules which appear in the new bar directory. History has to repayall claimants but has not done so. shown that in those states with long-standingCSP activity, Aclaimant was repaid $2,000fo r another 1990 file by the this is a meaningfuland positivemethod to help the profes attorney who has subsequentlybeen disbarred. Claims to sion's image when those among us do harm through a dis talling $5,180are pendingagainst another suspendedattor honest act. ney.who took the client's money even though he was sus Each claim is required to be documentedand then is in- pended. Inasmuch as the rules require the attorney be Ii- vestigatedto ensure that a misdeedhas occurred. • 118 I May1991 THE ALABAMALAWYER Essential Publications For The ALABAMA LAWYER New From The Michie Company Alabama Law of Eviden ce , by Joseph A. Colquitt , is the most practical and up·lt> date reference on Alabama evidence . Carefully organized, this book makes it easier to find the Alabama evidence law applicab le to your case. It contains stat utes, rules, a dis cussion of pattcm jury instructions , citatio ns to leading cases, the Federal Rules of Evi dence , and the newly adopted Rules of Criminal Procedure. Approx . 650 pages, hard· bound, C1990, The Michie Company ...... S85 .oo · Famity Law In Alabama: Pra cti ce and Pro ced ure , by Rick Fcrnambucq .ind Cary Pate, is a working tool for the domestic practitioner , useful from the first client interview through enforcement of awards and agreements . This book blends practic•I applications with analysis of legal principles, and sets them in the context of everyday problems faced by lawyers and their clients. Completely up-to-date, the book encom passes the late st changes in Alabama family law . 657 pages, hardbound, Cl 990, The Michie Company ...... $65. 00• Alabama Rule s of Criminal Pro ce dure , by Justice Hugh M,,ddox, is the first treatise to provide coverage of the new Rules to be cHeclive January 1991. The book con tains each of lhe Rules in full, the official comm ents of the Advi sory Comm ittee, and the au thor's section -by-sectio n analysis. He provides practice gu idance with hints, pointers, somple forms, and a case preparation checklist Approx . 1100page s, hardbound, C1990,The Michil' Company ...... - ...... $75.00* Alabama Tort Law Handbook , by Micha el L. Roberts and Gregory 5. Cusin,ano, Contrib uting Editor , gives Alabama attorneys the legal basis and practice information to evaluate claims and win for their clients . Covering all torts which arc actionable under Alabama law, it provides up-lo-date analysis of Alabama statutes and case law hold· ings . The book offers practice guidance , and includes checklists and sample complaints. 1065pages, hardbound , Ct 990,The Michie Company ...... S7s.oo• nu; MICHIECOMPANY 4Cv l' l Bl t,ttt I(, ll~ t Hl l Olli ()I ALAl!AMA 1:-or more information1 contact your sales representative: JIM SHROYER P.O. Box 346 • Wilsonville , AL 35186-0346 (WS) 326-9899 Or call The Mkhlc Company loll-free 1,800-562-1215 ·Plu1 talc$ tax v.•herc.npp llrablc. THEALABAMA LAWVER May 1991/ I 19 LEGISLATIVEWRAP -UP By ROBERTL. McCURLEY,JR. UCCARTICLE 2A LEASES he LawInstitut e has approved A lease Is a contract, subject to con sales. Insofaras Article 24 draws on ana 3nd presented to the Legisla· tract law construction and enforcement logues from Articles 2 and 9, the opera ture a new article to the Uni principles.And. in Alabama,leases have tion or many Article2A provisions willbe Ill form Commercial Code. Bob been construed and enforced in a man immediatelyaccess ible to those already Fleenorchaired the committee with Pro ner generally consistent with contract t'amiliarwith the commercial law in the fessor Peter /\Ices serving as the slate. Issues of lease contract formation, draftsperson. The following lawyers performance and det'ault are generally served on the committee: Douglas T. treated by Article2A provisionsthat are Arendall. Hamp Boles,Andy Campbell, basedon Article2 analogues;issues con Ralph Franco. John 8. Givhan, Bill cerning the priority of claims 10 lhe Hairston. Jr .. Neil Johnston, Jim Kline· lease property draw. for the most part, feller. Barry Marks. Elbert H. Parsons, on Article9 analogues. Jr., JosephStewart. and MikeWaters. The leaseis closer in spirit and form to The followingreview of the pending the sale of goodsthan lo the creation or bill is lllken from the committee's draft a security lnteresL While parties to a with commentary. lease are sometimes represe nted by Promulgated in 1987bA y the merican counsel nnd their agreement is often re Law Institute and the National Confer. duced Lo a writing, U1eo bligations of the ence or Commissioners for Uniform parties are bilateral and the commonlaw State Laws.Article 2A of the UCCis the of leasing is dominated by the need to f'irst comprehensives tatutory formula· preserve freedomof contracL Thus, the lion of the personalproperty leasing law. drafting committee of the UniformAct In the tradition of the resiatementsand principles. There has been, however,a concluded that Article2 wasthe appro the UCC,Article 2A does not so much dearth orcase law applyingcontract law priate statutoyyanalogue. create personalproperty leasing law as it to leasu. Therefore, transactors have The drafting committee or the Uni· codifiesthe bctter practicesin this gl'OI,~ been left with little guidance in formu form Act then identified and resolved ing areaof lhe commerciallaw . Thearti lating the contours or their lease trans severalissues critical to codification: cle also continues the commerciallaw's actions. While general contract princi vindicationof freedomof contract prin· Scope ples developedin other contextsare cer l'he scopeor the Articlewas limited to ciples. assuring the parties to a lease tainly competent lo address and resolve leases (Section 2A-102). There was no transaction that they may. for the most a broodarray or leasing issues. it is less need to Include leases intended as secu part, tailor the statute to the exigencies clear that the general contract law is the rity, I.e.. security inlerest disguised as of particul,1rtrans.,ctions. best source of guidance for determining leases, as they are adequately treated in The committee took into account the controversies invo lvlng considerations Article9. Further, even if leasesint ended existing bodiesor law in considering the rundamentalto the commercial law. as security ,~ere included, the need to efficacyor lhe formulations effectedin To address the vacuum of guidance. preserve the distinction would remain, the proposeduniform law. the Alabamacourts havereferred to Arti as policysuggests treatment significantly cle 2 of the UCC."Sales". as a source of differentfrom that accordedleases. law to govern controversies involving RobertL personalproperty leases. Defi nitio n of lease M cCurtey , Jr. Article9 of the UCC,·Secured Trans Leasewas definedto excludeleases in - L l.1cOri,y J, • lhe o, ec,o, cl .,,. actions·, insofaras it concernsthe rights tended as security (Section2a -103(ll[jl). Ah>bama and liabilitiesof P<,rties.... ~th interests in Ci\'enthe litigationt o date, a reviseddef .. .,,.~ Law'""ct Alabama He roc:ervec the same personalproperty, also supplies inition of securityin terest wassuggested h11 unclergradl>SW-and a source or law that would be available for inclusion in the act. (Section 1· I.awoog,oes trolTI lha for use by analogylo leasetransactions. 2011371).This revision sharpens the dis Unlvo,t,1y In Alabama, UCCAr ticle 9 governss e tinction between leases and security in cured transactionsand Article2 governs terests disguised as leases. 120/ May 1991 l'HB ALABAMALAWYER FIiing Sale and leaseback Damages The lessor was not required to file a fi. Sale and leasebacktransactions are be Many leasing transactions are predi- nancing statement against the lessee or coming increasingly common. A number cated on the parties' ability to stipulate take any other action to protect the less or state statutes treat transactionswhere an appropriate measure or damages in or's interest In the goods (Section 2A- possession is retained by Lheseller as the event or default. The rule with re 30I). The refined definition or security fraudulent per se or prima faciefraudu spect to sales of goods (Section2-718) is interest will more clearlysignal the need lenL That posilion is not in accordwith not sufficiently Oexibleto accomodate to file to potential lessor or goods.Those modern practiceand, thus, is changed by this practice. Consistent with the com lessors who are concerned will file a pro the article "if the buyer bought for value mon law emphasisupo n freedom to con tective financing statement (Section 9- and in goodfaith" (Sectio112A ,308[31). tract, the article has created a revised rule that allows greater flexibilitywith 408). Remedies respect to leases of goods(Section 2A- The article has not only providedfor Warra nties 504[1 )). All or the express and implied war lessor'sremedies upon defaultby the les Though the Alabamaact occasionally ranties of the Arllcleon Sales (Article2) see (Sections 2A-523 through 2A-53J), may differ in Its formulation, the act is but also for lessee's remedies upon de were included (Sections 2A-2.lO through generally consistent with the approach 2A-216), revisedto reflect differencesin fault by the lessor (Sections 2A-508 of the UniformAct. with regard to the lease transactions.The lease or goods is through 2A-522).This is a significantde critical issues. sufficientlysimilar to the sale or goods to parture from Article 9, which provides justify this decision. Further. many remediesonly for the secured party upon Anyonewishing a copy or this proposal courLSha\'e reachedthe same decision. default by the debtor. This differenceis may obtain one by writing Bob McCur compelled by the bilateral nature of the ley, Alabama Law Institute , P.O. Box Certificate of tltle laws obligationsbetween the partiesl o a lease. 1425.Tuscaloosa. Alabama 35486. • Many leasing transactions involve goods subject to cutiricate of title statutes. To avoid conflict with those statutes, this article is subject to them (Section 2A-104lllla)). You can't get closer to the issues than this. Consumer leases Al Lawyers Cooperative Publishing,we know Manyleasing transactions in,,o l\'e par our •n•lytial leg.alresearch syitem is not ties subject to consumer protect ion complete wilhout one vital link- our treld statutes or decisions. To a\'oid conflict representatives. They know what's •vailable, with those Jaws,this article is subject to what's affordable, and what N)IOurces will be of the greatest value to your pracllce, given your them to the extent provided in Section needs and markeL 2A-104(ll(c) .ind (2). l'urther, certain consumer protections have been incor Rightnow , your loal reproscnl.ltlve is ready to poratedin the article. help you get the most from our integral.Nflibra ry for Alob.lm•practice- from AI.Rto Am Juror uses to us L Ed. Finance leases Ifyou want to be in charge, talk to a representative who's in touch with your Certain leasingtransactions substitute need,. Contact your local representativedlrcclly, o r call 1-800-527-0430. the supplier or the goodsfor the lessor as the party responsibleto the lessee with respect to warranties and the like. The definition or finance lease (Seclion 2A J 03[J Jfgl) was developed to describe Iii these transactions. Varioussections of EdOorpn Chrli,IM Ell THE ALABAMALAWYER May1991 1 121 BAR BRIEFS ASA nominates 11 persons to which time jury summonsesw ere served control for Alabama's 39 two-year col board of governors on each senior student. legesand also oversees all vocalional ed Eleven persons were nominated In Prior to the trials each day, the entire ucation,ad ult education. teacher ln-su February 1991 to serve on Lhc Boardo( group or seniors was given an orienta vlce centers and children'sand adult re· Governorso( the AmericanBar Associa tion talk by a memberor the association. habilitationservices in the state. tion. which represents 380,000lawyers who explainedthe purpose of Law Day. Shepardwas admitted to the Alabama nationwide. the theme of this year's observance,and State Bar in 1979. The nominees were selected during how the associat;onwas makingth!$ ob the 1991ABA Midyear Meeting in Seal· servance. Johnson and Lazenby chose n tie. Their nameswill be presentedfor a In addition to the trials, members of Alabama Chief Justice Sonny Hornsby vote when the association convenes for the association participated on radio talk recently named Circuit Judge Leslie C. its 1991 annual meeting in Augtist in At shows al two radio stations in the coun Johnson of r lorence as administrntive lanta. The 33-member board or gover ty. director or courts for the slate or Alaba nor.1meets five Limes a year and oversees ma. Johnson will rill the vacancy left managementand admini5trationo( the Friend elected when former director Allen Tapleybe ABA.Terms on the board of governors Edward M. came director of The Sentencing Insti last thttt )'eaTS. Friend, U l of tute in Montgomery. Among the Sirole & Per Judge Johl150n nomineesis Cary mull, P.C. has was serving as C. Huckaby o( been electedto a presiding Judge Huntsville, Ala second term as or the 11th Judi· bama. Huckaby chairperson or cial Circuit when was president o( the Birmingham chosen. Johnson t he Alaba ma Area Chamber of has, been a cir State Bar from Commerce. The cuit judge since 1988-89 and is Friend Chamber repre 1977. Prior to with the llrm of sents 4,700 membersin Jefferson,Shel that, ht was a Bradley. Arant, by,Walker. SL Clairand BlountCOWlties. J°"""°" special circuit Rose & White. He was admitted to the Friend is a graduate of the University judge, a deputy district attorney and in state bar in 1962. of Alabamaand the University'sSchoo l the privatepractice of law. of Law. Johnson is a 1967 graduate or Vander Escambia County Bar Assocla• biI l University, and a 1969 graduate of tlon receives award Harris e lected Cumberland School or l..'lw.I n 1979 he The Escambia County Bar Association James D. Horris, Jr.. formerly a part received his master of law degree from recentlyreceived not .ice from the Ameri ner in the Montgomeryfirm or Harri$ & the Universityof Mississippi,and in 1984 can Bar Associationthat it had been se Harris,has been elected presidentof the he earned a master or science degree in lectedto receivea Certificateof Recogni BowlingCreen -Wamn CountyBar Asso criminal justice from the Universityof tion in the ABA's 1990 Law Day U.S.A. ciation. Harriswas also a memberof the Alabama. PubllcService Award competition. AlabamaHouse or Representativesfrom Johnson's extra judicial service in Accordingto WilliamR. Stokes,Jr., of 1970-78. cludesserving as chairpersonof the judi f;vergreen, who is president of the bar He currently is a partner with the r,rm cial system's Employee Appeals Board association, activities included havinga ll of Harlin & Parker in Bowling Green, from 1987-90;as a memberof the Prison area high school seniors participate in Kentucky,an d a colonel in the USAR. Review Tusk ~'orce since 1987; as chair the trial of two criminal cases. These tri person or the State llecords Retention als were held April 30 and May 1, 1990. Shepard elected Committees ince 1985; as a member of The trials were of defendants charged TazewellT. Shepard, Ill was sworn in the State Information System Review with drivingunder the inRuenceor alco as a new member of the AlabamaState Committeesince 1989; and as chairper hol; the derendants and their attorneys Board of Education in January. He re son or the Community-BasedSentencing consentedto be tried by these sl1Jdents. cei.,.ed62 percentof the total vote. PolicyTosk Force, a position whi' h he Members or the association went to The board of education implements accepted la.styear at the request of the each school the week prior to the week education laws and sets academicstan chiefjustice. or Law Dayto speak with the seniors. IL dards for all elementary and secondary The primary duty or the Administra was arrnnged for a deputy to go also. at public schools. It acts as the board or tive Director of Courts is to assist the 122 / May199 1 THEALABA MA u\WVER chiefjustice in his duties as the ildminis Gaede elected lrati\'e head or lhe judicialsystem by see In the January issue or The Alabama ing lo it that the business or the courts or Lawyer. It was reported lhat Edward P. this state is attended to with proper dis Myerson has been elected as the ''first patch and court docketsare not permit member from the state of Alabama··to ted to become congested and that trials the American College or Construction and appeals are not unreasonably de Lawyers.Unfortunately , that information layed. was not completelycorrect. Birmingham John L. Lazenby,the circuit clerk or atlorney A.H. Gaede, or the firm or Elmore County, has been appointed Bradley. Arant, Rose & White, was also deputy adminislralived irector of courts. selected in the same group or 41 allor Launby sel'\oedas circuit clerk for El neys corutiluting the inauguralgroup of more County Fellows. The Lawyer regrets this omis since I 982. Prior sion. to thal, he served Questions About as assistant cir Smith elected Court Rules? cuit clerk and John Joseph Smith, Jr. o( Birmingham magistrate. ",as selected recentlyas a member or the Lazenby has Labor Panel or the AmericanAmitration Get Answers Fast beenpresident of Association. Smith bassel'\'td as an arbi Using Your Own PC! the State Associ trator since 1983 and is also a member ation of Clerks or the Labor Panel of the ~·ederalMedi a The Alabama Court Rules arc now and llegislers tion and Conciliation Service. Me was ad available on PC-Qlmpatible diskette. twice and earned lhe association 's mitted to the state bar in 1970. Pecform exllaustivc searches of the President's Award three times and its Rules basedon any word or phrase Ambassador"sAward once. or your choice. State-of-the-art He is a memberor the NationalAssoci software makes our program easy to a lion of Court Management and has use on your PC. Supcr- fastl Up served as the following: chairperson of to-the-minut c rule changes availnble the State Court Cost CollectionCommit · through convenient update program. let: member of the system's L.egislati\'e Requires an rBM PCl)CT/AT or Council. the Weighted Caseload Com mittee and the Child Support Forms compatibile. Min. 5121<, 2MB free Committee; member of the facultyof the disk space (PC/AT- compatible Alabama Judicial College; and vice-chair recommended). of the AlabamaCriminal Justice Infor mation SystemCommission. v Rules of Appellate Procedure " Rules of Criminal Procedure• AAA-CPA educates v Rules of Civil Procedure• The American Associationof Allomey Also ... Certified Public Accountants is attempt v Ethics AdllfsoryOpi nions Ing to educate the public regarding the v Alt)/. Gen'JAdllfscxy Opinions organization and its purpose. it was Portra it needs Id enti fication v call for complete list & prices. formedove r 25 years ago by the joining The AlabamaSupreme Court Library or Californiaand NewYor k state associa needs the help or the citizensof Alabama .,ntroductory Offer: $49 plus $6 tions which had begun independently.I t identifying Lhe portrait above, which is (Tax/Shipping) for set of throo rules. now has membership in all 50 states and includedin the library collection. Copy protected. Specify s.2s·or 3.s• several foreigncountries. In their efforts to update the portrait disk format Umited time offer. Membership1$ l imited to those indi coUectlon.library officials believe they Make checks payable to me/cooper viduals who hold licenses a.s attorneys have successfully identiliedall portraits Consuftlng, Inc. and as certified public accountants, al· except lhis one. All efforts to dale to though a majorityo r the members prac identifyIt havebeen unsuccessful. tice primarily In one discipline or the If anyone can idenlily the picture, JuriStar~ other. The organization represents the please contact Bob Warren of the Alaba melcooper Consulting, Inc. Interestsof dually qualifiedprofessionals ma Supreme Court Llbrnryal (205) 242- P.O. Box 210187 on national and state levels. 4347 or write Supreme Court and State Montgomery, Al 36121 For more informationabou t MA-CPA. Law Library,Judicial Building.445 Dex (205) 272-5444 contact Joe Brotherton at (206) 325- ter Avenue, Montgomery, Alabama 3537. 36130,ATTN : BobWarre n. • THEALABAMA LJ\WYEll May 1991/ 123 ABOUTMEMBERS, AMONG FIRMS ABOUT MEMBERS AMONG FIRMS Richard D. Home. formerlya partner Sandder, Sandefer & Frands, P.C. The nrm or Gaiser & Barineau an in the rirm of Hess, Atchison & Home. announce$ that Wllllam H. Roe has be nounces that Leslie R. Barineau has announces that he is reloc;iting his of come a partner in Lhe firm. Offices are joined the firm as a partner. Officesare fice to One Sout h Royal Street, 4th located in Mountain Brook, Pinson and localed al 2021 Third Avenue, North, Ooor.M obile, Alabama, and will be prac Oneonta, Alobama. P.O.Box 531144,Bim1ingham. A labama ticing as Richard D. Rome, Attomey Colee & Tucker anno unces th e 35253.Phone (205)251-2392. 2380. at-Law.Phone (205)432-4421. change of the ftrm name to Colee.Tuck Drew, Eckl & Farnham announces Sharon D. Hindman has become as er & Cromer. P.C. The firm also an that Lucian CIiiis, Jr. has become asso sociated with First State Bank of nounces that Terry M. Cromer has be ciated with the firm. omces are located Fn.oldin Countyas general counsel. Of come a partner. with offices in Binning. at 880 West Peachtree Street. P.O. Box fices are located at 1000 Highway 43. ham and Lteds. Alabama. 7600, Atlanta, Georgia 30357. Phone North. P.O. Box 1223, Russellville,Al The ornce of Robert A. Jones, Jr. an (404) 885-1400. Cillisis a 1977admittee abama35653. Phone (205)332-5600. nounces that La\'eme Davis has become to the AlabamaState Bar. Richard T. Davis announces the a partner in the firm. and Joan Y. Davis Hand. Arendall, Bedsole, Crea,•es & opening of his officeat 3800 Colonnade has become an associate, and Lhe firm Johnston announce LhalJ. Burrus Riis, Parkway,Suite 650, Birmingham,Alaba name is now Jones & Davis, P.C.Offices Thomas C. lllcCroskey and Harry S. ma 35243. Phone (205)969-3433. are localed al 1205 North 19th Street, Pond, IV have become associated with L.F. Hllbers announces that he has Birmingham, Alabama 35234. Phone the Orm, Officesarc located in Mobile, relocated to The MayfairCen ter, 3401 (205)324 -6021. Alabama, and Washington,D.C. The ftrm of Lyons, Pipes & Cookan Independence Drive, Suite A, Home Coale, Helmsing, Lyons, Sims & wood, 1\labama 35209-5620. The mail nounces that Joseph J. Minus. Jr. has Leach announces that the name or the ing address continues to be P.O. Box become a member of the firm. Offices Orm has been changed to Helmsing, 19393, Homewood, Alabama 35219- are located at 2 North RoyalStreet, Mo Lyons. Sims & Leach. P.C., and that bile, Alabama36602. Phone (205) 432- 9393. Phone {205) 871-1939. Harwell E. Coale. Jr. remains of cowt· Steven R. Sura announces the re 4481. set to the firm. The mailing address is moval of his olrice to 655 Main Street, The firm of Rushton, Stakely. John P.O.Box 2767, Mobile,Alabama 36652. P.O.Box 4. Montevallo.Alabama 35115- ston & Carrdt , P.A. announces thal Phone (205)432 -5521. 0004. Phone (205) 665-121l. (An E911 Frank J. Stakelyand WlHiamS. Hil),'Des have become members of lhe firm. Balch & Bingham announces lhal T. street renumbering program c.11usedthe Kurt MIiier,J, Thomas Fn.ncis, Jr. and Offices are located at 184 Commerce change, but the office'sphysiCAI loc.11tion TimothyJ. Trncyhave become partners. remains unchanged.) Street, Montgomery, Alabama 36104. Phone (205)834-8480. Offices are located in Birmingham . Theresa A. Tkacik announces the Montgomery and Huntsville, Alabama, opening of her new officeat 2162 High Ernest O. Spencer. Ill , John Foster and Washington, D.C. 'fyra, John C. Crecink, Jr.. Kathy L. Ma way 31 South, Pelham, Alabama35124. Capell, Howard, Knabe & Cobbs, Phone (205) 987-9126. rine and Linda K. McKnighta nnounce the formallon or a partnership in the P.A., announces that H. Dean Mooty, Jr. Douglas K. Dunning, P.C. announces name of Spencer, Tyn. , Crecink, Marine has become a member of the firm, and the relocation of his omce to 1659 Gov & McKnight.Offices are locatedin Jack that W. Holt Speir, Ill , Jim 8. Grant, ernment Stred, Mobile,Alabama 36604. son. Mississippi.and Tusc.11loosa,Alaba· Jr .• Pet.er M. Cronon. Chad S. Wachter. Phone (205)473,2666. ma. and Ellen lit. Hulings have becomeas Tony S. Hebson announces the relo BUI Bowman and Kirk S. Samelson sociatedwi th the firm. Officesare locat c.11tionor his offices to 1250 Park Place announce that Prank S. Dodge has ed at 57 Adams A,•enue, Montgomery. Tower, Birmingham, Alabama 35203. joined their firm, and the firm will be Alabama36104-4045 . Phone (205)322 -2022. known as Bowman, Samelson, & The firm of Greene, Buckley,Jones & Harmahlnder Singh Bagga, Ph.D., Dodge, P.C. Dodgeis a 1977 admittee of McQuec n announces that James C. announces the opening of his office at the Alabama State Bar.Offices are locat Frenzel has become a member of the 3800 Colonnade Parkway. Suite 100, ed at 540 N. Casc.11deAvenue, Suite 102, firm, and 8. Kyle Childress , H. Lee Birmingham, Alabama 35234. Phone Colorado Spr ings. Colorado 80903. Pruett, Leslie C. Ruiter. Rose E. Goff, (205)967--1649. Phone (719) 634-5100. and H. Worthington Lewis have become 124 / May 1991 HIE ALABAMALAWYER associates of the firm. Officesare located partnership in the name of Fliegel & ward E. Blair became associated with at The Hurt Building, 50 Hurt Plaza. Hodges, with officesl ocated at 2026 Sec the firm in October 1990.Offices are lo Suite 1300, Allanla. Georgia 30303. ond Avenue, North, Suite 1101. Birm cated at 132 West Holmes Avenue, Phone (404) 522-3541. ingham, Alabama 35203. Phone (205) Huntsville, Alabama 35801. Phone (205) The firm of Boyd. Pate & Femam 328-2644. 533-2410. bucq, P.C. announces that Randall W. George ~I . Barnett and Tameria S. Sirote & Permull announces the Nicholsbecame associated with the firm, Driskill announce that Claude E. Bund opening of its office in Montgomery. effectiveApril I, 1991.Offices are located le)•. ru has withdrawnas a partner in the Fredrick Simpler, Jr. has joined the firm al 2801 UniversityBoulevard, S uite 302, firm or Barnett, Hundley & Driskell, and and will manage lhe new office.Tempo Birmingham, Alabama 35233. Phone that the firm name has been changed lo rary officeswill be located at 207 Mont (205)930-9000. Barnett & Driskell, with offices located gomery Street, l2th floor, Bell Building, Box The firm of Redden, Mills & Clariean at 431 Gunter Avenue,P.O. 93. Gun Montgomery.Alabama. nounces that Maxwell H. Pulliam has tersvllle, Alabama 35976. Phone (205) The firm also has offices in Birming. become associatedwith the firm. Offices 582-0133. ham, Huntsvilleand Mobile. are located al 940 l'irst Alabama Bank Robert Burdine, Jr., Keith M. Collier First Alabama Bank of Birmingham Building, Birmingham. Alabama35203. and Gregory Keith Burdine announce announces that Paula D. Levitthas been Phone (205)322-0457. the formation of a partnership to be made a personal trust officer. She Is a known as Burdine, Collier & Burdine, graduate of The University of Alabama Parsons & Ebtrhardt announces that with officeslocated at 412 ~·irst Federal the firm's street address has changed School of Law and the Southern Trust Building, Florence, Alabama 35630. School.She is a member of the Alabama from 11l Jefferson Street to AmSouth Phone (205)767-5930. Center, Suite 70:l. Huntsville, Alabama State Bar and the Birmingham BnrAsso· 35801. The mailing address remains the Hogan, Smith, Alspaugh, Samples & elation. same. Pratt, P.C. announces that Ron Crook, Walter Henley, P.C. announces that Don Word and Rick Stnl1on have be Clifton E. Slaten has becomea member The firm of While, Dunn & Booker come members of the firm. Officesare announces that Linda G. Flippo is now o( the firm. and the firm name has been located at 2323 Second Avenue, North, changed to Henley & Slaten, P.C., effec associatedwith the firm. Officesremain Birmingham, Alabama 35203. Phone at 1200 First Alabama Bank Building. UveOc tober 25, 1990. Orficesa re located (205)324-5635. 1 -800-223-2535. at 2101 Bridge Avenue. Northport, Al Birmingham. Alabama 35203. Phone (205)323-1888. Gayle H. Gear announces her associa abama 35476. Phone (205)339-5151. tion with the Law Offices o( William MarkG. MonUeland Algert S. Agrico The Law Ofnces of Bert P. Taylor an M. Dawson, effectiveFebruary I, 1991. la, Jr. announce the formation of their nounce that WIiiiam F. Smith. IJ has be· Officesare located at Park Place Tower, firm, Montiel & Agricola,P.C . . with of come associated with the firm. The 2001 Park Place, North, Suite 490, Birm fices at 407 South McDonough Street, firm's address is 300 North 21st Street, ingham, Alabama 35203. Phone (205) Montgomery,A labama 36104. The mall 710 Title Building, Birmingham, Alaba 323-6170.Gear is a former law clerk to ing address is P.O. Box 11576. Mont ma 35203. Phone (205)252-3300. ChiefJudge Sam C. Pointer, U.S.District gomery. Alabama 36111-0576. Phone The firm of Scholl & Scholl an Court, Northern District of Alabama. (205)832-9900. • nounces that Jon M. Turner, Jr., former The nrm of Russell, Straub & Kyle ly of Prince, Baird, Tomer & Poole, P.C. announces that Cynthla Lee Almondh as of Tuscaloosa, has become associated become an associate of the firm. Offices with the firm. Officesare located at H4 are locatedal 804 Bank Street, P.O.Box RichardWilson Office Park Circle, Suite 315, Birming 327, Decatur, Alabama 35602. Phone ham. Alabama35223. Phone (205) 871- (205)353-7641. & Associates 6004. The firm of W. Troy Massey, P.C. an Registered Douglas I. Friedman, P.C. announces nounces lhat Sandra Holston Lewis,for lhal John M. Pennington has become mer assistant district attorney. has be Professional associated with the firm at Suite 535, come associated with the firm. Offices Court Reporters 2000-ASouthbridge Parkway, Birming are located at 4216 Carmichael Court. 17 Mildred Street ham, Alabama35209. Phone (205) 879- North. Montgomery. Alabama. Phone 3033. (205)272-<1083. Mon1gomery,Alabama 36104 Michael M. f'liegel and David Elliott The firm of Lammons & Bell an 264-6433 Hodgesannounce the formationo( their nounces that Miles L. Brandon and Ed- TIIE ALABAMALAWYER May 1991/ 125 ALTERNATIVE DISPUTE RESOLUTION AN· INTRODUCTION By JACKCLARKE he purpose of this article is SOMEADR negotiated settlement, for example, a to discussAl ternative Dispute 2 less favorable outcome than might be I] Resolution or "ADR'', the fea PROCEDURES obtained in cour t, must be weighed tures or some of its forms, Negotiation has been, and continues against the advantage that the settle and the potential for its application by Lobe, a routine professionalactivity f or ment is binding only if agreed to. Alabama lawyers. ADR essentially is a many lawyers. One may ask why it group of procedures designed to settle should be viewed as part of ADR. The an ediation and arbitration , disputes. It may be vieweda.~ a continu swer is that interest in finding ways to from lime to time, have um of settlement techniques ranging resolve disputes outside of courtrooms been combined in a pro 1 from the consensual processesof nego resulted in serious study of the negotia cess kno,\1n as 'n1ed-arb'' tiation, mediation and other neutral as tion process.' Realization of the potential min labor and so me commercial disputes. sisted. binding-only-if-agreed-tosystems for resolvingprob lems both before and The parties empower the med-arbiter to to the adjudicative procedures of arbi after the filingo f complaints, realization act as a mediator and, if no settlement is tration and privatejudg ing. that negotiatingskills ca n be studiedand reached, to arbitrate the dispute. The The techniques of ADRare not new learned,a nd realization that in some sit processh as been criticizedas confusing phenomena. It is likely that human be uations a lawyer can best servehis or her essentially differentro les in that as a me ings began negotiating only shortly after client by negotiatinghave led to the ad· diator, the neutral is likelyto hear infor they began communicating. rew lawyers dition of negot iation courses to law mation which if presented to a regular would claim to be unfamiliar with nego school and continuing legal education arbitrator would be found irrelevant but tiating settlements. Arbitration has been curricula. The Alabama State Bar Com which the med-arbiter will be unable to used to resolve commercial disputes for mission on MandatoryContinu ing l..egal ignoreif calledu pon to arbitrate U1e dis hundreds of yearsand after World War n Education, for example, has approved pute.' became the most commonly accepted negotiation courses for CLE credit for a Aclosely related c riticism is that there procedure to resolve grievanceswhic h number of years. Interest in negotiation Is in med-arb "a considerable risk that arose under collectivebarga ining agree within the business community is evi the more clever or sophisticated partici ments.' And agreementsto arbitrate oth denced by the regular appearanceo f ad pant may distort or manipulate the me er types of disputes are common today. vertisements in some publications for diation in order to innuence the media But the current interest in ADRis rooted negotiationsem inars. tor's opinion" in the event of an arbitral in the litigation explosionwhich began Negotiating a settlement has all the decision.' Sometimes a good mediator in the 1960s. One responsewas a search client benefits associatedwith agreeing has to let a party know that its expecta foral ternativesto courts. to a mediated settlement mentioned by tions are unrealistic. A med-arbiter may Keith Watkinsand Noah Punderburgin be less inclined to engage in that func their article beginning on page 133. Ne tion in order to avoid being perceived as Jack Clarke gotiation maxin1izes control of a client's communicating his or her arbitral deci JackClarke lS n gradu• destiny.I n the event or an early negotiat sion ahead of lime. a1e or 100University of Now MexicoSchool ol ed settlement. no third party, neither On the other hand, an experienced Law and a lormetasso judge nor jlll')Inor arbitrator nor media proponentof med-arb argues that even if ciateprolos.sor ol lhe tor nor other neutral, is given an oppor a settlement is not reached during the Unlvef$l)'ot Alabama SC:h0olof l aw He be tunity to influence the final decision. mediation phase,t he differences between gan arburaungIi, l9 14, Early negotiation of a settlement not on the parties will have been so narrowed and forthe las t ten ly minimizes litigation-related costs as during that phase that a more reasoned yoarshas practiced al mosLe.x.clt1s1voly .i arbl · discussedb elow, but also avoidslhe cost and more predictable result is likely in 1ra1,on and medlal!Ofl In of a neutral's services.A nd, again as in med-arb than in typical arbitration. He 1987 he wa-sawa rded I.he\\f hltl\OyNonh Soyrnou, , the case of a mediated settlement, any contends lhat parties in med-arb know Sr Al'b1t1at10nMed al by lhe AmericanA rbltra11onAs ~ soclallOl'l disadvantages one might perceive in a or come to realize that in the event they 126 / May 1991 THE AI..ABAMA LAWYER do not honestly confide in the med-ar themsel\'esand may be set out in a pro and if the parties' representatives'nego. biter during the mediation phase, they cedural agreement, but al the core of a tiations are unsuccessful,to give his or run the risk of the arbitration decision mini-trial are presentations by the par her opinion regarding the likelyres ult if they wish to avoid.' It must be remem ties· lawyersof their best cases in a pre the case should go lo trial. With this in bered, of course, that participation in determined amount of time to a panel, formation, the parties' representatives med-arbis consensual;absent an agree usually or three persons. The mini-trial maycontinue their negotiations.' ment. a lawyer's client cannot be re· is most often used to resolve business A major advantageof the mini-trial is quired to participate in the process. One disputes; the typical panel consists of that it places primary responsibilityfor subject to oocovered in any agreement high level representativesof the parties settlement in the hands of the parties to participate in med-arb would be the and a neutral advisor.The parties' repre themselves. From the perspective of a selection of the med-arbiter.One would sentativesusually are persons who ha,oe business client, the client regains con certainly e~ercise considerable care in not previouslybeen inlJOl\•td in creating trol of businessdecisions from its lawyer. the selection of a med-arbiter.I t should or trying to resolvet he underlyingdis From a lawyer'sperspect ive, a mini-trial, also be noted that a non-jury trial or ar pute but who have al least persuasive while providingan opportunityto make bitrationwherein the judge or arbitrator powerregarding settlement a client's best case, allows reliance on attempts to mediatea settlement before the opposing party to act as reality's renderinga decisionis functionallyiden agent. Counsel for the opposing party tical to med-arb. Such a judge or arbitra should educate clients regarding the tor may be lessskilled as a mediatorand ... at the core of a strengths of the opposing party's case less awareof problemsinherent in such mini-trial are and the weaknessesof its O\\'fl. mediation than a person specificallyse Cost and lime savingsare advantages lectedas a med-arbiter. presentations by the of the mini-trial. While the costs of A variation on med-arb popularizedby preparing for and presenting a mini-trial ProfessorStephen 8. Goldbergof North parties' lawyers of an substantial, lawyers' fees and related western UniversitySchool of Lawlo re their best casesi n a expenses are generally much less than sol\'edisputes under labor contractspro the fees and expenses associated with vides that in the event mediation fails, pre-determineda mount completingdiscovery and trying a case. the mediator issues an advisory, non Moreover, in the event the mini-trial binding opinionrega rding the likelyout of time to a panel, does not result in a settlement, most of come of the dispute.' The process uli · usually of three persons. its C05tswill be recO\oerablein the reduc lizes mediators experiencedin arbitrat tion of trial preparation expenses. ing labor contract gtievances.This pro Achievinga quickerend to a disputemay cedure has nil the advantages of media present an even more important litiga tion and med-arb, includingan earlyex Each party usually retains discretion tion cost reduction. Por example, while pert opinion, yet avoids the problems regarding how it will use its allotted the right to use or the obligationto pay perceivedwith med-arb. I( eithe_rparty time. A party's presentationmay consist substantial sums of money and/or the belie--esthe mediator'sadvisory opinion entirely of commentsby its laW)•ersimi right lo manufacture a major product resultedfrom his or her considerationof lar to an appellate argument or it may are in doubt, the orderly and profitable inappropri~te evidence. that party may consist of such comments coupled with operationof a businessmay beextre mely simplydecline to be bound by the opin the presentationof any type of evidence, difficult. In a worst-case scenario the ion. Althoughthis processhas bee_n used including views of pertinent areas. Be pendencyof a major lawsuitmay ha,oea primarilyto resol..-edisputes under col cause rules of evidencedo not apply.tes negative impact on a business' credil lectivebargaining agreements, i t should timonial evidence tends to be narrative worthiness.Al a minimum, considerable be useful In other arenas in situations under informal questionJng.The proce amounts of executives'Lime will have to whereinthe mediatorhas not only medi dural agreement may providefor rebut be divertedfrom running the businesst o ation expertisebut also expertisein the tal and/or informal cross-enmination preparingfor trial Early settlement of a area of the dispute. and even for questioning one party's dispute through a mini-trialwill reduce lawyerby the other's. The goolor any mi these e~enses, ofcourse .' erhaps becauseof its non-de ni-trial presentation Is lo communicate scriptivename, the "mini-tri the strengths of one's client's case and arly Neutral Evaluation or al" processis sometimescon the weaknessesof the other party's in a ENE, a procedure typically fused with that or the sum short time. The parties' representatives made available through a mmary jury trial described by Robert W. on the panel and the neutral advisormay court, was not designed pri- Bradford, Jr. In his article beginning on ask questions during the presentation. m111ari ly to facilitate setllements but, page 150.As Bradfordpoints out. a sum Followingthe presentation, the parties' rather. to reduce litigation costs." ENE maryjury trial hasmany of the earmarks representati,u negotiate to resolvethe utilizesthe servicesof 1JOluntttrlaW)'ers of a trial; a mini-trialmay look less like a dispute. The neutral advisor may be expert and respectedin particular fields real trial. The precise procedures or a called upon not only to chair the mini to meel with parties and lheir lawyers mini-trial are determined by the parties trial but also to mediate and facilitate, and give them a frank assessment of the THEALABAMA LAWYER Ma>•1991 / 127 value of their cases. Althoughassigned ment and disagreement, ENEa lso focus the process to determine what he con by the court, the ENE evaluator'sopin es discovery. siders a fair settlement." Some trial ions are confidential and may not be judges-with the consent of the par submittedto the court without the con nother court-annexed ADR ties-conduct settlement conferencesof currence of both parties. ENE requires process is the settlement casesover which they will preside.u In the presenceof lawyersand clients, or in conference. Rules I 6 of the other courts in which settlement con the case of a corporate client, the pres EJPederal and AlabamaRules of ferences are frequently used, il is CUS· ence of someone with decision-making CivilProcedure for some time have pro ternary for someone other than the authority.Both sides make brief presen vided for pretrial conferences.Although judge who will hear the ca.'leto preside tations. and the evaluatorasks questions Lhe federal rule more clearly refers to over Lheconference. u lo Identifyboth common ground and the selllemenLa .s a proper topic or discus During a settlement conference the areas of disagreement centra l to the sion. the discussionof settlement possi judge or magistrate will provide the case. Outside lhe presenceof the parties bilities clearly falls within the' scope of lawyersand, perhaps more importantly, and their lawyers, the evaluator then Alabama Rule 16. their clients with feedbackregarding the writes his or her assessmentof the case The settlement conferenceas an ADR strength of their cases. Such an ap and, if appropriate, ascribes a range of procedure is generally perceivedas be praisal should be especiallyhelpful to a damages. The evaluator returns to the ing quite differentfrom the pretrial con lawyerrepresenting a client with grossly conference,and '"ithout rewaling his or ference many lawyers and judges are unrealistic expectations. Such an objec her evaluation,asks if the parties would used to, however.The settlementconfer tive appraisal also should assist the like to further dl$c:usssettlement. If so. ence discussed herein contemplates a lawyerin evaluatingthe settlement po they may do so. If the parties opt lo not judge's or magistrate's. or in an ei Afford able Term Life Insurance LaserPrinter Toner from Coo k & Associates Compare 1h- low non smoker annual ra1es for non, CartridgesRecharged decreasing, )IUrly renewable 1erm msurance: MALE AGES $250,000 SS00.000 $1.000.000 0on, throw 25 248.00 455.00 845.00 awayyour 1oner 30 248 .00 455.00 845.00 c::anridscs...they 35 255.00 460 .00 875. 00 Cll1 be refillcd 40 298 .00 5'15.00 1.0 Renewable 10 age 100 Fem.lie ra1 .. sarrw as males SIX yurs younger. All c 128 / May 1991 THE ALABAMALAWYER true in negotiationand e-1-eryother con rary judge'sjurisdiction O\'CJ' a caseter ably expect that a temporary judge sensual ADRprocess, lhe parties may minatesat the same time an activetrial would not accept such an appointment explorea much widerrange or remedies judge's would,an d the parties to a case unless he or she could devote sufficient lhan wouldb e possible in a typical trial. heard by a lemporary judge have the time to the case to closely monitor pre This is true in more complex cases same right of appeal they would have trial procedures,Includ ing discovery, to where the parties will likelycontinue to had if the casehad been heard by an ac schedulehearings and a trial within rea do business with each other. It is also tive judge. Temporaryjudges are com sonable periods of lime and conduct true in simplercases as evidenced by the pensatedby the partiesat rates mutually them as scheduled.and lo rendera deci potentialfor the use or a structured set agreeable to !hem and lhe temporary sion expeditiously aficr trial. tlement to resolve a personal injury judge. Private judging, along with other claim. The presence of the judge or Private Judging has the advantageof formsof ADR,has been criticizedas cre magistratenot av:tilablein negotlalions allowing litigants to choose the third ating a "rich man's justice".'' The criti betweenthe parties' counsel should fa partywho will decidetheir dispute.This cism, if it has any validityal all, must be cilitate the parties· continuing to talk can be very advantageous In complex levelednot only al privatejudging and through points which might otherwise cases. As in arbitration, lawyers and ADR,but also al the judicialprocess. In prevent settlement. clients on all sides will knowthe tempo our state courts other than probate, the rary Judge'stechnical background: esti· value of one's claim determinesLhe ap he last ADRprocess to be dis mations of the extent to which a judge propriatecourt for filing in th~ first in cussed here, private iudging willha\-e to be educatedbefore he or she stance, and in many civil appeals lhe [I (or •rent-a-judge"}, popular could reasonablybe expectedto under amount of the judgment appealedfrom ized In California,cou ld not stand the dispute shouI d be easier and determinesthe first appellate court. The be used to decide a case in Alabama more accurate. As in arbitration, pro minimum dollar limitation necessary withoutconstitutional amendment." Al· ceedingsbefore a temporaryJudge are for a federal court to exerciseits diversi tention paid to private judging else private, but unlike arbitration, private ty jurisdictionmak .es the presentationof where coupled with the potential for judging enables parties to use all the many smallerclaims difficultif not im constitutionalchange here warrant in procedurescommon to a trial and retain possible. Furthermore, the removal of clusionof privatejudging in this discus the right lo appealthe decisionreached. some cases from trial courts' docketslo sion. Underthe CllliforniaConstit ution Especially In jurisdictions with crowded those or temporaryj udges cannot havea and Rule 244 or the ClllifomlaRules or dockets,private judging should result in negativeimp.1ct on parties whose cases Court, parties to a dispute may agree quicker decisions.Parties could reason are not removed. On the contrary,such that their case be presided over by a temporaryjudge. " A stipulationto U5e a temporary judge must be in wrlling, must set out Lhename and address of lhe proposed temporary Judge, and POSITIONS AVAILABLE must be submitted to and approvedby the presidingor supervisingjudge of the The Alabama State Department of Educa11onrs seeklng candidates to appropriatecourt; the proposedtempo fill a llmllednumber of vacancies on the Early InterventionServices ros rary judge must consent to the appoint ter of Impartial hearing officers. Anorneys selected for lhese vacancies ment and take an oath of office.A tem will serve as hearing oflicers in matters prescribed under the Individuals poraryj udge has Lhc same authority rel with DisabilitiesEduoatlon Act, 20 U.S.C. §1471, et. seq., and 34 C.F.R. ative to Lhecase for whichhe or she was Part 303. appointedas a sitting Judgeand has the To qualify as an impartialhearing officer.an applfcanl may nol be pc)\\,-erto administer that case until its an employee of any agency or program involved in the provision of finaldetermination. Absent a stipulation Early InterventionServices or care ol children eligible for Early Interven to the contrary, proceedings before a tion Services and may not have a personal or professional interesl that temporary judge are conducted In ~c would conflict with his or her objectivity In lmplemenllng the complaint cordancewith all rules and procedures resolution process Impartial hearing officers are assigned 10 hear cas applicable to trials before regular es on a rotating bashi. Hearing officers are compensated on an hourly judges.But, apparently as a result of lhe fee baSls and are entitled to per diem and mileage 1naccordance with atm~here or moodof accommodation slate rules and regulations. Those applicants selected willr eceive 1raln- among counselwho agree to lhe use of 1ngby 1heState Deparlment of Education prior te hearing assignments. a temporary judge, stipulations to alter one or more procedures, for eX11mple,to Applicants interested In applying for these vacancies should sub closely regulate discoveryor alter the mit a description ol his or her educaUonaJbackground and experience custolllaJ)'order of proof. are common. 10 Lamana Lucas, Director, Division of Rehabilitation Services, 2129 Trialsand hearingsmay be conductedin East South Boulevard,Montgomery, Alabama 36111-0586. Applications counsel'soffice or the tempora,;•Judge's should be submitted no later than June 28, 1991. ofrice or in public courtrooms. A tempo- THEALABAMA LAWYER May 1991/ 129 removals can only allow regular judges producing settlements, a reasonable pie, settling a dispute by negotiation pri more time to attend to Lhe remaining lawyer would probably conclude that or to the filing of a complaint not only cases. The amount of time made avail "the jury is still out" on that question.• will maximizelaWYe rs' fee and direct lit able will vary directlywith lhe complex igation costs savings but will a.lsom ini ity of the case removed.Removing =es ut quantity of settlements is mize time lost to prepare for litigation to temporary judges also has a favorable not the only criter ion by and may completelyavo id the negative impact on the utilization or other re which ADRsho uld be evalu effectsof the outcome of a lawsuit's be sources of regular trial courts. As noted ated. Some studies suggest ing uncertain for some period of time. above,tem porary judges are compensat mthat ADR procedures produce results Al the other extreme, Lhe only such ed by the part ies and not from tax which are more acceptableto the partic savings which result from settlement of monies; the salaries of judges and other ipants than the results of litigation." It a case after it has gone to a jury are court personnel whose services wouId should not be surprising that a client those associatedwith any appeal which otherwise be used to attend a case pre finds a settlement in which he or s he might otherwise have been taken. Be sented to a temporary judge are saved participated to be more agreeable than cause of U1e greater similarities of arbi for applicationto remainingcases. even an identical settlement imposed by tration and private judging to regular The private nature of private judging trials, savings derived from the use of also has been criticized." It is said that ADRadju dicative procedures tend to be matters of public importance ought to less than those which flow from the be resolved in public and that private .. . to the extent a consensual processes. Nonetheless. the judging denies public access and public use oi such adjudicative processestends kno1vledge. This criticism ignores the decisionreached in the to produce savings for clients." lasl fact that in virtually all civil actions privatejudging process minute rescheduling of cases becauseo f wherein all parties in interest are repre docket congestion is rare, and the ex sented (thus excluding actions in family is likely to have an penses associated with repreparing for courts wherein the court itself retains trials are avoided.LaWYers us ing private the obligation to assure that lhe inter impact beyond that judging o~en agree to limited discovery, ests of children are protected), trial particularcase and thereby effectin g savings for their courts routinely enter judgments which clients. Although discoveryis generally effectively adopt settlements between the parties to it, not providedfor in arbitration. its use In the parties. Similarly, federal and Alaba commercial arbitration is not uncom ma statutes provide for the entry of privatejudging is mon." Even when permitted, discovery judgments in accordance with arbitra not secret. in arbitration is usually (but not always) tion awards." Certainly arbitration is at less extensiveand therefore less expen least as "secret" as private judging. sive U1anwould be had for a comparable Fina lly, to the extent a decision case in a court. The amount of time reached in the private judging processis some third party, including a jury. The savedby a dispute's being resolved more likely to have an impact beyond that consensual ADRp rocedures and, t,o a quickly through ADR depends on the particular case and the parties to il, pri lesser extent, the adjudicative proce time a case typicallytakes to reach trial vate judging is not secret. ILis unlikely dures of arbitration and private judging and will vary from one jurisdiction to that a temporaryjudge's decision would are less formal and fearsome to clients another. have precedential effect unless and until than trials. On the other hand, a client in mediation or some other essentially that decision was affirmed on appeal. s suggested above. lime sav- Decisions of temporary judges are ap non-testimonial process may feel de 1,.,A 1ings can be maximized by pealable in the same manner that deci prived of the opportunity to vent his or early use of a consens ual sions of regular judges are; the appeal her feelings against the opposing party ADRprocedure , but even if process of temporary judges' decisions is by testifying in court. But a skillful set one opts for an adjudicative ADRproce as public as that of regular judges'. tlement judge or other neutral Lhird dure some such savings are likely.That party may perceivet hat providingone or relatively speedy decisions are likely anoth er person an opportunity to ex. when parties use a private judge was EVALUATION press his or her feelings will facilitate previouslyd iscussed. Although entirely settlement and provide such an oppor crediblerepo rts of counter-examplescan OFADR tunity. be heard, on the average, cases should Unfortunate ly, the absence of ade Savings to clients possible from the be resolved more quickly in arbitration quately controlled studies leaves open use of a mini-trial were previously dis than in courtroom litigation. This is es the question whether consensual ADR cussed. All ADRprocedu res can produce pecially true where the arbitrator or procedures produce more settlements the same types of savings.The amount agency responsible for administering than would otherwise occur." Despite of such savings in any settled case will the case is experienced in case manage anecdotal evidence that non-binding depend upon the type of ADRprocedure ment. In short. use of ADRis likely to ADRp rocedures "work" in the sense of used and when it is invoked. Por exam- result in significantsavings for clients. t30 I May1 991 THEALABAMA LAWYER awyers must be concerne d tion). the effects of the use of such a nother factor favoring a law not only with their clients' procedureon contingent fee income will firm's offering ADRservices [I pocketbooks but also their be positive. Becauseea rlier decisionsare is th e acquisition of new own. Lawyers may reason likely, earlier payment is likely. And, to clients." That ADRis avail abale and that its use may reduce the wst ably ask if use of ADR will work to their the extent discovery is diminished, use financialdetr iment. The impact of a set of an ADRadjudicative procedure wil I of litigation is becoming well-knownin tlement reached through ADRon the increase the rate of compensation de business circles including corpora te fee of a lawyer handling a case on a con rived from a single contingent fee and boar drooms and offices of general tingent fee basis is no different Lhan the free the lawyer involved to work on an counsel. More than 500 of the country's impact of any other settlement. Assum other case. largest corporations have subscribed ing no change in Lhes ettlement figure Positive effectsof ADR on Lhe gross in to a pledge to consider the use of ADR over time and a settlement in excess of comeo f a lawyer workingo n a caseon an before commencing litigation against zero, earlier settlement results in the hourly rate fee basis are more difficult to another pledge subscriber." Selection lawyer's being compensated sooner and identify. Earlier settlement and less work of a firm in part because it included ADR increases his or her rate of compensa mean fe.wer billable hours, and if one as among services offered and requests tion per lime. Use of a consensual ADR sumes a constant hourly rate the resu!t is by clients for evaluation of their cases process does not change the trade-off less income from a givencase . If one fur for resolution by ADRhave been report involvedin money damages settlements. ther assumes a finite amount of legal ed." ln other words, Lhe legal services The chance for a significantly higher re work available, the result may be reduced marketplace may coerce law firms into coverya t some future date is given up in gross income. On the other band, at least offering ADRservices. If law firm X's exchange for a sum certain to be paid one law firm hasalte red the assumption offering ADRserv ices threatens law firm within the near future. Assuming identi re.gardinga constant hourly rate and has Y's client base, Y may feel compelled cal outcomes from the use of adjudica begun premium billing for ADR ser to offer the same type of services. In tive ADRprocedures and trials (an as vices." The rationale underlying the short. client pressures may force even sumption many lawyerswo uld disagree higher rate is the additionalva lue to the reluctant law firms to offer ADR ser with especiallywith respect to arbilra- client of ADRserv ices. vices. The Alabama State Bar • Sponsored Insurance Programs . * F AMJLY TERMLIFE .features benefits for both eligible members, spouses, children and employees. * M .AJOR ME01CALL'1S1JRANCE provides benefits for both eligible individuals and firms of 3 or more up to $1,000,000. * Hos1•rTALINDEM NL1Ypay s daily benefits up to 500 days with a maximum of $200 per day. Acceptance Guaranteed to eligible members under age 60 who are either working or attending school full-time. .. MEDI CARE SUPPLEMENThelps pay bills Medicare covers only partially; also some bills Medicare doesn't pay at all. * D1sAB11,1-rvL '-'COMEfeatures "Your Own Specialty" definition of disability. "' OFFICEOVEJUJF -ADEXP E.'IS&r eimburses your eligible business expenses. Benefit Levels to $10,000 per month available to eligible members under age 60 who are engaged in full-ltimepractice and not on full-time duty with any of the armed forces. ,------(detaoh and mail)------, I For additional information contact ALABAMA STATE BAR I I Insurance Specialists, Inc. Ploase send mo information about 111eAsso ciation Group Plan checked; I I Suite 135 [ I Family TermLi fe [ J MedicareSopplement I · R d [ I Hospital Indemnity [ I DisabffityIncome I I 2970 Br and ywme oa ( I Major MedicalInsurance I ) Office Ove,head Expense I Atlanta, Georgia 30341 I I 1-404-458-8801 Name I I 1-800-241-7753 Toll Free Number Address I J J -800-458-7~46 Fax Number . City/State/Zip I I (Representanves located statewide) I Business Telephone Birthdate ____ _ L------~ THE ALABAM;\ LAWYER May1991 I 131 ou may ask whether ADR is The last questions to be addressedare assist in the administration of ADRpro appropriate for all cases. The how can a la,~yerbecome more familiar cedures. The oldest and best known of simple answer is "No". f'or with ADRand how can he or she obtain such not-for-profit organizations is the II example, except in those ju the servicesof a mediator or other neu AmericanArbitration Association which , risdictions wherein private judging is tral? The AlabamaState Bar has estab despite its name, offersa full range oi al available, a client who needsa preceden lished a Task Force on Alternative Dis ternative dispute resolution services. A tial interpretation of a new clause in a pute Resolution. The task force can pro number of Alabama lawyers (and non frequently used contract form will likely vide a bibI iography on ADRto lawyers lawyers) have been trained as neutrals be best served by use of a summary who ask for it. and are willing to provide such ser judgment or other pretrial, case disposi vices. To date , in Alabama there are tive judicial procedure. Other examples ome members of the Lask no licensing or minimum training of cases inappropriate for resolution to force and other lawyershave or experience requirements necessary ADRcould be given.A full discussionof expressed their willingness for a person to act as a mediator, arbi the limits of all ADRprocedures is be to address bar and business trator or other third-party neutral, but yond the scopeo f lhis article. But unless EJlgroups regarding ADR. A number of parties considering using a person as a a lawyeris familiarwith AOR,he or she profit and not-for-profit organizations neutral may certainly inquire about his cannot fairlyevaluate its potential to ef offer ADReducationa I courses and/or or her training and experience in that ficientlyreso lve a client's case. maintain lists of neutra ls and/or will arena. • Footnote s l S Goldborg . E. Green & F. Sander. Dispute coosent 10 the (µOundrules at,aad or time C8!ifornfa. In PractJoo811d Pers()IJCbve, 4 ADRR FlttsoJuoon3 (1985) [herelnafler clled as Dispv10 12, Id. al 13 {BNA) 157, 160 (May 10, 1990). RoscM/ool, Theto Is some ovldence that Judges·partia1pation 20. f'()( an analysisol a study ol !he elfitff!ncy, etfec:· 2 Most ot the formsor ADA reforreato ., u,ls aructe 1n p1etna!con !ereoces neg.atlvctyll'l tluences 1he liveness, and aocep1abo.ll1yof ENE In one COUtl are dfscusscd In groator detail In ()'spu1eResohl clea1!ngol casefL Seo Nole, Heilems.nBrewing seeLev lne, EarlyNoutral Evall.Jation · The Second tioo. Co Inc. v Joseph Dot Cotpo,al•'on: DoHfll'ng tl19 Phase,1989 J, Dis. Res, 1 FOi'a repofl on Iha 3 A seminal book In lho moefarnstudy of negotia· PerimoUlfSof Judicial lnvotvemenrIn l/le Settle effectivenessand accepta.btlltyol ch!ld custoay Hont. 10 resolve confiicls ts Goufng to Yos by ment Process.5 Ohio SLJ . on Dir. Res. 115, 137· mediation In anocheroour t see Convnen1. CtJJld Roger Ash01 and Wllllam Ury hrst pubhshed In 38 ( 1989). Cvstody Medlatn)(I: A PrOJ)<>SedAlterna11ve to 1981 anct published in pepert>ackIn 1983, 13. Remarks by Wayne D. Srai: d, Magls1rate. Llliga1ion, 1989 J Dis Res 139, 147•55. For a 4 F1.11ter. Collecllvo&rgai'nillg and tho Atbitrswr, ln U S 0 1sttt01 C<>urt!or tne Northe.,n Di:stnot of oriel surrvnaryof lhe ltiera.rurec egard"tng the et Collective 8a1gaining 8nd the Atb1tratof:s Aole, California,., Pract,c.oand PerspectiVtJ, 4 AORFt fec!lveness and elf!c iency or modlat,on soe Proceedings o! U'IB15th Annual Moo-ling. National (BNA) 157, 1S9{May 10, 1990) Toma.Inand lulz . A Model tor Court- AMe,tfJd Academy ol M>ilratO 132 / May1991 THE ALABAMALAWYER MEDIATION IN ALABAMA By KEITH WATKINSand J. NOAHFUNDERBURG INTRODUCTION The mediatordoes not take sidesnor does he/sheattempt to "I woulduse mediation,but none of my clients' caseswould formulate the solutions. A mediator is not a decision-maker be right for mediation."This hypotheticalquote could have and cannot imposea solution on any party; what the mediator been uttered by a majority or the members or the Alabama does is facilitate discussionbetween the parties. A mediator Stale 13ar.Maybe you do have such a case and do not even attempts to get the parties to realize their common Interests know it. Perhaps it is the case that just will not go away,or and bargain cooperatively to find a solution to their dispute the one in which your client "botched"the deposition.It may which maximiz~ to the fullest extent possible the goals and be the one in which your client will play poorly beforea rural objectivesof each party. Jury, or the one in which unreasonable expectations have overtaken your client. .Maybeit is the case that is quickly MEDIATION DISTINGUISHED FROM reaching the financiallimits or your client's ability to litigate. ARBITRATION AND CONCIUATION or a casebuilt on the testimony of an admittedlyunreliable The terms mediationand arbitrationare frequentlyconfused witness. Whether it is ''the mother or all battles" over .0083 by laypersonsand lawyersas beingsimilar processes.and some acres or swampin a land line dispute or a personalin jury case people even think they are synonymous.They are similar in with problems on both sides.n il lawyershave had caseswhich some respects.but the)' are not synonymous. Both arc non-ju seem to defy movement,usu ally for lack or motivationby the dicial methodsfor resolvingdispu tes. The essentialdifference client. attorney or both. Mediationmay be just the solution lo betweenthe two is that mediationattempts to resolvea dispute the case sufferingfrom the malaise or legallethargy. through a cooperativeproblem-solving approach by the parties Medialion hasmany applicationsbeyond "problem" cases. It while arbitrationresolves a dispute in a privateadwrsarial pro has been used successfully and effectivelyfor many years ceeding. One commentator distinguishes the two as follows: throughout the UnitedStates in a widerange of disputes.both "Theone (mediation!im'Olves helping people decide for them, large and small. As an Alabama(a,..,yer, have you ever consid selves.the other (arbitration)im'Olves helping people by decid ered mediation as a possible recourse in any case? Chances ing for them.na are, you have not. Has a judge ever suggestedor encouraged Arbitration is a non-judicial fact-findingand adjudicatory mediation in a case you are handling? Probablynot. Should process.Parti es to a disputepresent their factsand arguments mediationbe promotedamong the Alaoamabench and bar as to an arbitrator, or panel of arbitrators, who U1enre r.olve lhe a viable,errective method or resolvingcases? Absolutely. dispute by applying to the facts the statutes. regulations or This article is designed to focus the attention o( Alabama rules which govern the controversy.The decisionby the arbi laWYersand judges on the advantagesoffered by mediationin trator is usuallydrafted in writing and givento the parties. Ar resolving dispul, s. Although mediation has been in use for bitration may be binding or non,binding.If binding, the deci, mallyand informallyfor many )'earsacross the country,media sion rendered is usually the final decisionresolving the dis tion has not )'el enjoyedwidespread use in Alabama.This arli· pute. If non-binding.the parties ha,-eavailable whate-u post cle addresses,,,hat mediation Is and is not, why and how It arbitralionrelief is providedby the contract, regulationor rule works.and why il should be givenan opportunityto prove its whichauthorized the arbitrationprocess. worth. Conciliation is another proces.s Involving a neutral party which is somelimesconfused with mediation.Common ly used in the domesticre .lations context.conciliation is an attempt to MEDIATION DEFINED assist the parties in re~lving the marital differencesIn order Mediationis the processthrough which a neutral third par to save the marriage relationship. Conciliators are usually ty assists parties to a dispute in reaching a mutually accept court emplO)•eesand havesome pawersto makeinterim orders able agreement as to some or all or the issues in dispute.The to presen-ethe integrity of the family.By contrast. domestic neutral third party, the mediator.presides O\'tr a sessionor se relationsmediators are not trying to 5a\-ethe marriage,though ries of sessions with the parties to facilitate discussion de that result would not be discouraged.Mediators work to re signed to identify issues. reduce misunderstandings,clarify duce the hostilitybet\,•een the parties lo enable the parties to priorities. explore areas or potential compromise and ulti negoliate or create a better atmosphere for a lasting agree, matelyfind points of agreement.Simp ly put, a mediator helps ment. Theydo not, however,forma lly attempt to get the par Uie parties find their own solutions to their problems. lies back together. THEALABAMA LAWYER May 1991/ 133 APPLICATION instance, suppose you represent a businessmanwhose partner A. Situations in which mi,dlation works has provided the partner's spendthrift son extensive credit without your client's knowledgeor assent. The son lands in a Most attorneys, especially non-specialists, could find in drug treatment facility and out of sorts with his father while their files an active case in which mediationwou ld work well. The followingare a fewpossible exa mples: the businessen ds up with an uncollectible account receivable. The father refuses to make the debt good, and your client is 1. Time-critical disputts which "cannot wait" for judicial ready to sue to collect the debt. Neither partner really wants decision. such as a dispute over the quality of goods manufac to liquidate the business,but communicationsbetween them tured under an executorycon tract when time and sequenceor delivery are essential to the buyer. have reached an impasse.Your cl ient may understand that the father was concerned about his son, but he resents that his 2. Cases involving a continuing relationship, such as do partner would do something underhanded,no matter how im mestic relations cases, controversiesamong partners or busi portant the reason. ness associates, disagreementsamong beneficiaries of an es· This scenario presents a classicexamp le of a case which can tate, disagreements among family members in any type of benefit from mediation. Litigation would not allow the parties matter, and neighbors embroiled in a contest over a boundary to vent their underlying feelingsand then work constructively line. to overcome lhe problem. By working toward an agreement 3. Cases in which both sides are fearfulo f a court's decision, with its all-or-nothing effect for one side, because each side in private, the parties are more likely to reach a negotiated settlement and preserve both their relationship and the busi has some problems in obtaining certain victory. The. common type of case is the small-lo-medium personal injury suit in ness. which the plaintiff was probably speeding and the obviously B. Situation , in which mediation mll.)Inot work negligentdefendant is a popular local personalityor perhaps a large employer of potential jurors and their families.I n these J. Mediationmay not be appropriateor effectivein all types types of cases both parties havesomething to gain, and little if of cases. Mediationwou ld generally be inappropriate in cases anything to lose, by mediating. involvingp rimarily issues of law.Med iation also may be diffi 4. Cases in which one or more parties has an underlying, cult in cases involving highly technical matters, although hidden agenda. Frequentlythere are feelingswhich need to be sometimes mediators trained in the area or expertise involved expressed,or perhaps one party has a need for vindication.Por in the controversycan be used effectively. 2. Mediation would probably not be appropriatein domestic disputes in which one of the parties is dominated by the other party. This may especially be true in cases involvingspousal WE SAVE YOU R abuse. While the presence of attorneys may help balance the TIME ... power between the parties, many abused spouses would bar gain awayp roperty or other rights just to avoidfuture abuse. ~amen 3. Mediationmay also be um\/orkable,v hen a client is un Now legal researchas sistance reasonable by nature and unwilling to work toward settle is available \vhen you need iL. ment. L E G A L wi1hou11he necessi1y of Resea rch adding a full-time associmeo r ADVANTAGES OF MEDIATION clerk. I. Time savings-Med iation usually resolvesa case more quicklythan litigation.Not only is the caselifeshorter , but the Wilh access10 1 he Sime Law Libraryand Wes1law,we amount of time required of a party is lessened. This can be providefos1 aod efficienlservice . For deadlinework. we particularly important to clients residing great distances from can deliver infom 1ation to you via com n1on carrier. the forum or businessexecu tives or professionals. FedemlExp ress. or FAX. 2. Cost savings-C omplaints by parties in all types of dis Farnell LegalR esearch examines 1heissues 1horoughly putes over the high costs of attorneys fees and costs of litiga lhrough quulilyresearch. brief writing and analysis. tion have become commonplace. Mediationoffers the advan tage of resolvingthe dispute without engaging in a full-scale Our n11esare $35.()0per hour. with a three hour trial. While the savingsin legal fees are obvious,there may al n1ini1nu1n. so be, dependingon how early mediation is attempted, lower costs of discoveryand fees for experts. For Research Assistance contact: The success rate of mediation in totally resolvingdisputes is Sarah Kathryn Farnell high. Even if all issues are not resolved,med iation may bring 112 Moore Building the parties closer to an ultimate settlement or result in agree Montgomery, AL 36104 ment on some or the disputed issues. Perhaps an even more important cost savingsis the savingsof future litigation costs. Call (205) 277·7937 Parties in mediation create their own solutions as opposed to the solution being imposed by a court or other third party. 134 / May 1991 THE ALABAMALAWYER They are, therefore, more likelyto be satisfiedwith the results When disputants reach their own agreement, greater satisfac and willing to abide by the terms of the agreement. This re tion ensues, not only with the result, but with the processon d duces the need for post-settlementlitigation brought about by its participants. This would seem to be an added benefit for non-compliancewith a court order. the bench and bar as a whole, considering the oft-repealed 3. Preserving relationships-Another important advantage barbs of lhe public and press about lawyersand the judicial or mediation is that it is a more effect.ive method or preserving system. Additionally.in principle at least, removinga greater relationships than thal created by the general atmosphere of number of matters from the docketsby alternative methodsof litigation. This is particularly desirable when the parties will dispute resolution should free the courts to handle the re have a continuing relationship. as in child custody disputes, maining caseloadIn a more timely,efficient fashion, again re land line contests between neighbors and disagreementsbe sulting in higher public satisfactionwith, and confidencein. tween business partners. Meeting with a neutral fact-finder. the system. under the format described below, also allows a venting of feelingsby the parties in a manner not availableor practicalin court. Mediation is an effectiveprocess for defusingemotional DISADVANTAGES OF MEDIATION issues in a dispute. I . Loss of control of decision-making- The disadvantages 4. Reality tullng-Another acl\-antageis that mediaiioncan or mediationare more perceivedthan real. The most common ptrmil unreasonableparties , and in some cases, unrta$0nable misconception is that someone else is making a decision for attorneys, to engage in some · reality testing". A client with the clienL This simply is not true. The mediatory process, if wlld expectationsaboul the measure of damages lo which he successful, results In the parties reaching their own agree is entitled may be brought down to earth in a face-to-faceses ment. lf not successful,the parties are back to the full range sion with the other side. of litigation possibilitieslo resolve their dispute. 5. Public goodwill-Mediation increases the level of indi 2. Lou of inc_ome for laW)-ers-Another perceived disad· \11dualclient and overallpublic satisfactionwith the legal pro vantage is that lawyerswill not be able to bill as much per ces.~.II has been said. "... (t)he common law is hostile to matter. This is not necessarilytrue because most civil cases compromises: decisions are all-or-none, winner take all."' settle during the course of preparing the case. and mediation This always places the interests of one, and often both, parties is just another means to that end. Even in those instances al a high level of risk if litigation is followedto its natural end. where fees are less, lhc lawyer may not be at a disadvantage. NEW ABICLE PUBLICATJON LEGAL ETHI CS IN ALABAMA by ProfessorHarry Cohen and ProfessorRichard Thigpen $45.00 LEGAL ETHICS 1N ALABAMA examines each of the sections of the new Alabama Rules of Profos, sional Conduce in light of casclawand bar opinions interpreting the Rules. This book 1san essential reference for every Alabama law firm. In Fall 1991 ABICLE will present a series of seminars on the new Alabama Rules of Professional Con duct. Faculty will conduce an In-depth analysisof che new Rules. Watch your mail for announcements of these upcoming seminars! ABICLE, Box 870384, Tuscaloosa, Alabama 35487-0384 l-800-627,6514 or 205-348-6230 THEAl.ASAMA u\WYER May 1991/ 135 The time saved by an expedient resolution of one case should through the lawyer's time spent in negotiation. The simple leave more time availablefor other pending cases. Finally.the fact is that some cases only can be resolvedto the client's sat possible loss of fees may be largely overcomeby the increased isfaction by a trial beforejudge or jury. level of client satisfactionachieved. The client who pays less 4. Uncertainty about procedures- Mediationin Alabamais wouldcertainly be expectedto speak kindly of the lawyerwho still in its infancy. Lawyersand judges are not yet sold on the savedthe client money through the use of mediation. process as an improvementover tried and true methods of ne 3. Increased costs for clients- Mediation is not a panacea gotiated settlement and trial. This lack of support tends to for all disputes.Just as all cases are not settled, all cases which stymie the potential growth of mediation as an effectivetool go to mediation wiJJnot be resolved. An unsuccessful media in a broad range or cases. In the same vein, the bench and bar tion will produce increasedcosts for the client and additional are not sufficientlyeducated about the process to play their time ,vhich the client will have to devote to the case. This respectiveroles, hampering the ability of mediation to operate should not be an indictment of the prOGessbut should reflect efficiently. Judges are not trained to identify cases in which instead on the unwillingnessof clients to settle some disputes. mediation would be an appropriate «suggestion" to counsel Mostcases which eventually go to trial are generallyprecede d and lawyers may take a more adversarial approach than is by extens.ive effortsby the lawyerslo settle the case. [f media called for in the mediation process, thus reducing its effective tion were not attempted. the same costs might be incurred ness. WhatEve eeds -depth book pertaining solely to employment discrimination law and its impact on Alabama practitioners ... Employment Discrimination In Alabama by John J. Coleman, UI Recently published, Employment Discriminationin Alabamaco vers up-to-the-minute case Jaw-incl uding the recently enacted Ameri cans with Disabilities Act The book also covers such topics as th~: • Civil Rights Act of 1990 • Veterans Reemployment Act • EqualPay Act • Title VII of the GvilIDghts Act • And many more Name Plcasesendme copiesal$79.95eachp lus$2,00po,tage&hand ling((ora tot31of$81.95).Amountcndosed$. ___ _ Mail t·o: S011tJ1t-.m University Press1 130 S. 19th Street, Bfnnf,.gl,am, Alabanu135233. 136 I May1991 THEAl.f\BAMA LAWYER THE MEDIATION PROCESS-HOW IT WORKS be better off resolving a dispute with a tenant for less than the A. General Issues owner might receiveat trial in order to keep the tenant for a l. Qualificationsof mediators-Who serves as a mediator? longer period of time. 1'he qualifications of mediatorsvary greatly from state to state. 5. Confidentiality-C onfidentiality of statements made by In general, mediators are not exclusively lawyers or exclusively parties during mediation is imperative to promote open and non-lawyers.Some states do restrict mediators to personsw ith frank communication betweenthe parties. If a mediator could either a legal backgroundor training in a specific field, such as be compelledt o testify at a subsequent trial between the par psychology,counse ling or social work. Most states also have ties, the parties might be unwilling to disclose any information some minimum requirements for the amount of training in which could be used against them. Moststates which have me mediation techniques mediators must have before being li diation statutes either provide for the confidentiality of the me censed,cert ified or otherwise officiallyrecognized by the state. diation proceedingso r create a privilege between each party Alabama, however, is one of the fewstates which has not dealt and the mediator as to disclosures made during medial.ion. with the issue of mediator training. Therefore,mediators must Alabama does not currently have a confidentiality statute, be selected by the parties on a case-by-case basis. but the state bar's Task Force on Alternative Dispute Resolu 2. Costs of mediation- The cost of a mediator's services tion is studyingthe issue and expectsto proposesuc h a statute varies depending upon the type of matter being mediated, and for considerationb y the board of bar commissioners. the background, training and experience of the mediator, and whether the mediation is public or private. Manysta tes now 8 . Summary of the mediation proceH have a court-connectedmed iation program, frequentlyi n do The precise manner in which mediation sessionsare carried mestic relations matters but also in a wide range of other legal out dependson a variety of factors. Court-connected programs areas, which are subsidized by state or local funds. Costs vary may vary slightly from private mediations, and private media widelyfrom a low of $20 per person for mediation in domestic tions may differ depending upon the training of the mediator cases in Mississippi' to as much as $20,000 in complex com and the type of case involved. The court-connected programs mercialcases.• are frequentlycond ucted at the courthouse or in some other 3. Length of mediation- There is no certain limit to media dispute resolution center. Private mediations may be conduct tion sessions. Liken egotiation, how long it takes dependsupon ed in the mediator's office or some other neutral location. The the complexityof issues and the willingnesso f the parties (and following example, however,is fairly representativeof the me sometimes their lawyers)to bargain. A simple dispute may be diation process. resolvedin 'an hour or less. More complex cases may take ten Mediations generally begin with the mediator's giving an to 20 hours to complete. While there are not many reported opening statement which explains the mediation process and statistics on the average length of mediation sessions,at least the ground rules under which the mediator and parties will one source reported an average of 4.4 to 12 hours for media agree to operate. Each party then is given the opportunity to tions in domestic relations cases.' The number of separate give a statement of issues and a summary of the facts of the sessionsand the length of each session also will depend upon case. At the conclusion of the statements of the parties, the the style or technique of the mediator and the desires of the mediator will summarize the claims and positions and obtain parties. any clarification necessary to be sure that he/she has a fair 4. Participation by lawyers- One fear of lawyersshou ld be grasp of the relationships, issues and facts. put to rest; mediationdoes not necessarilym ean that lawyers The mediator then conducts the caucus process.Th e parties will be precluded from the mediation sessions.Most programs ordinarilyw ill be separated, and the mediator will speak indi do not ban lawyersfrom sitting in or participatingin the medi vidually with each party. Then, either the mediator will con ation sessions. In fact, in many mediationslawyers are very ac duct "shuttle" diplomacy between the two parties, who are in tively involvedin the process. Some mediation programs do separate rooms, or the parties will reconvenein one room and excludela wyers from being physicallypresent during the me commence the bargaining process. In the shuttle approach, diation sessions. These programs, however, generally allow the mediator carries the varioussuggestio ns and proposalsb e lawyersto be close by and alwayspe rmit the parties to recess tween the parties until either an agreement or impasse is the session at any time to consult with the party's lawyer.Many reached. When the parties are in the same room, the mediator lawyerschoose not to attend and leave the negotiating up to serves as a moderator,allowing the parties to engage in some the client. head-to-head negotiation and, at times, serves as a facilitator One problemwith having lawyerscond ucting the mediation of ideas generated by one party for consideration by the other bargaining is the inability of many lawyersto adapt to the Jess party. adversarial nature of the mediation process. Lawyerstrained as When an agreement is reached, the mediator generally re advocatessome times find it difficult to bargain cooperatively duces the agreement to writing and both parties sign the writ· as opposed to defeating the other side. While lawyersshould ten agreement. The agreement normally is not enforceable zealouslyr epresent their clients, they also should be sensitive until it has been officiallypresented to the court and adopted to the client's true desires and needs. For instance, the client or ratified by the court. Occasionally, the mediator is re,quest may prefer less money now in exchangefor a more stable and ed to monitor the agreement for a period of time to ensure Jong-lasting agreemenLThe owner of a shopping center may compliance by the parties. THEALABAMA LAWYER May 1991I 137 AMERICAN PLAYHOUSE PRESENTS THE MEDIATION PROCESS IN ALABAMA THE STORY OF A number of lawyersi n Alabama have been using mediation CLARENCE DARROW for some time. Also, more and more lawyers and others are FRIDAY, JUNE 7 AT 9 P.M. seeking training as mediators. The increased use of mediation nationwide, coupled with the heightened interest in media Clarence Darrow'sname Is legendary In the annals of the tion techniques in Alabama, led Lhe Alabama State Bar lo Americanlegal system from the late I ll\h centucy1h1ough the charge the Task Force on Alternative Dispute Resolutionslo early d~des of the 20th cenw,y He has been portrayedon study the issue of mediation and make recommendations lo stage and screen by such famoosand respectedactors es the state bar about how to proceed in this area. In 1990,the Spence 138 / May199 1 THEALABAMA LAWYER (e) The court shall neither inquire nor receive inforrna· CONCLUSION lion about the positionsof the parties to, the facts elicited Regardlessof whether lawyersagre .e in principlewith media in, or the responsibilityfor termination or failure of the tion, a number of pressuresare coming to bear on the Judicial mediation.' systemwhich mandate considerationof new means ror resolv ing disputes.~ AlabamaSupremt Court's lime standardsfor Each party may bring legal counsel to the mediation ses disposingof caseswill make mediation more attractlvt in our sions and any party unrepresentedby counsel may bring a rep busiest circuits. In federal courts, each federaldistTitl court resentativeof his/her choice. The mediationsessions are pri· has been required by the CivilJustice llefom, Act,' passed in vale; persons besides the partles andtheir representativescan late 1990, to examineways to improvetime ly resolutionof cas only attend with the permissionof the other partles and the es before those courts. Each district court is required by the consent of the mediator.There is no stenographicrecord taken act to developa c1viljustice expenseand delayplan. The courts of the mediationproceedings. must appointadvisory g'rOups to study methodsto reducecosts The mediator'sfee shall either be agreedupon by the parties anddecrease delays in the completion or cases.The act specifi or set by the court. The cost of fees and other necessaryex cally encourages advisorygro ups to consider the utility of al l)(!nses.such as travel and other expensesof the mediator.will ternativedispute resolutionmethods Includingmediation. mi be borne equallyby the parties unless the parties agree other ni-trials and summaryjury trials. wiseor lhe court orders otherwise. Clearly,mediation offers advantages in many typts of cases for resolvingdisputes quickly, less expensivdy and \\~th greater satisfaction by the parties in lhe present and in the future. J . Noah Fund erbu rg Manyor the disadvantagescan be overcomeby the growthand J, NoahFundof'burg te rvesas as.soolo1.1d ..ec:10, ol I.heUmver11ry O I AlabamaSchool 0, LewQ.nleal Pn> development of a broad-basedmediation program in Alabama. Sclloolollawnlo,am Ho,.•,en __ o•ldul:a ol n ., u-,.,,r•.. _ flenecting upon public dissatisfaction, the ever-increasing number or disputes. the length orcivil docketsand decreasing S New reference manual on WESTLAW published The Fourlh Edilionof the WESTlAWReference Manual. whk:h updates databases, commands and search tech niques for WESTlAW, West Publishing Company's computer-assisted legal research se1Vlce,has 1ust been published. The over 500-page manual includes new informationon Shepard's PreView,EZ ACCESS,the options directory, how to search 1he attorney field In case law and administrativedocuments, how 10search stale and federal slatutes and rules. how to use WESTlAWas a cltator. and how to use gateway services In legal research . Over 70 new quick-reference sheets. which describe the con1ents of individual databases and how to use them. have been added as well as an expanded mdex and a more detailed table of contents. For mo re Informat ion , ca ll 1-80().WESTLAW. THE Au\BAMA LAWYER May1991 / 139 • M·E·M·O·R·I·A·L·S • rence-LauderdalelndustTial Expansion Committee.lie \\'a$ responsiblefor the restoration of the W.C. Hancy Home and the devtlOJ)mentof Pope'sTavern. He was the first chnirperson of the TennesseeValley t;xhibit Commission and was involvedIn lhe planning and early conslruction or the Renaissance Tower and TVA museum. He was founder and first president of the Al GEORGEWI LLIAM MCBURNEY abama Mountain Lakes Association W.RAMSEY M CKINNEY and served on the AlabamaAutomo George W. McBurney of Florence, w. RamseyMcKinney died December Alabama, died August 11, 1990, at bile AssociationBoard of Directors.He 6. 1990,in the prime of his life and le was a member of the First Presbyteri Baptist Memorial Hospital in Mem gal career;and an Church of Florence and a past phis. Tennessee. He \\,as 73 years old. \Yhueas. the MobileBar Association chai~rson of lb board oi deacons. He spent much of his early life in desires to remember his name and rec His name has been entered in the Tuscaloosawhere hfs father was a pro ogniu his significantcontributions to Bookof Colden Deedsof the Florence fessor al th~ University of Alabama our professionand to this community: ExchangeClub. School of Medicine.lie was admitted Now, Lherefort. be it known, that Survivors include his wife; two t-0the Al~bamaState Bar in 1940, fol McKlnne)•was born in Montgomery. lowing graduation from the Universi brothers. Dr. Robel't P. McBurney of Alabama,October 19, 1941. He attend Memphis,and Charles W.McBumey of ty's School of Law. lie practiced in ed the Virginia Military Institute and Columbia, Tennessee; and several Tuscaloosaprior to WorldWar IL Dur Vanderbilt Universll)' where he re nieces and nephews. including Shaler ing the war, he attained the rank of ceived his undergraduate degree with S. Roberts, ll 1,nttorney and director of major while serving with the 30th In· honors in 1962, having earned admis the l'lorence Housing Authority. fantry Divisionin Europe. sion to Phi BetaKappa. He receivedhis Following his marriage to Martha Robert L Marshall.attorney aad refer law degree from the Universityof ".'ir· ence librarian at the Universityof Al Robertsof Florence,he began practice ginia Law School in 1965, at which abama School of Law, Marjorie with the Florencefirm of McBumey& time he moved to Mobile and joined Roberts,a Virgin Islandsattom4:Y, and Coleback.He later joined the firm of the firm of Hand. Arendall. Bedsole. Charles W. McBumey,Jr., a Flonda at Poellnitz. Cox. McBumey & Jones, Crell\oes& Johnston.Ramsey was a dis tome,1. fTomwhich he retired several years tinguished member of that firm from An·endowed scholarship fund in his 1965 to the dey of his untimely death. ago. . name has been establishedat the Uni A skilled lawyer,his interest was m He waswidely recognized by the bench ,oersityof AlabamaSchool of law by an real estate developmentand the devel and bar 3.5 an outsUindingpractitioner opment of the florence community. anonymous gift from a member of his in securities (llldcorporate law.He was law school class. An editorial in the He brleOyserved as vice-presidentof a founder and director of the Bank of Florence 7'imesDolly stated that, First Federal Savings and Loan Ass-0ei Mobile and Its holding company,Mo "Friends remember him as unselfish, ation of Florence. He developed nu bile NationalCorporat ion. always Interested in improving rlo merous residential and commercial Ramseywas also active in civic and rence" and "as n civic leader who cap properties. community affairs throughout his ca tured the spirit of volunteerism need His greatest contribution. however, reer. He was p.1stdirector of Wilmer ed to move a community forward." J came from the use of his legal training Hall and an active member of Trinity remember him as a next-door neigh and inspiring leadership in the civic EpiscopalChurch, where he sen'l!don bor and one of the best friends I've ev developmentof Florenceand north Al the vestry.as treasurer and senior war er had. He was a skillful lawyer,a great abama. He wasinstrumental in the de den. He is survivedby his wife,Virginia leader and a truly man-elousman. His velopment of Joe Wheeler State Park K. McKinney. and three daughters. and Turtle Point Yacht and Country judgment and zeal for d~loping ~e Shannon Amanda McKinney, Holly community \\'ere outstanding. He will Club, where he served as a founding Stuart McKinneyand Christen Walton be greatly miMed. member and first presidenLHe served McKinney. as president of both the Florence William N. Mllchell Champluo11s, Jr. Chamber of Commerce and the Flo- Plorence,Alabama President,Mobile IJar Assoc iation 140 I May1991 THE ALABAMALAWYER Armbrechl served as director of many business and civic organiza FEES CHARGED tions, including the Industrial Devel FOR CERTAIN opment Board of the City of Mobile; COURT Point Clear, Inc. (formerly known as Grand Hotel Company): the Mobile PROCEEDINGS Area Chamber of Commerce Founda According to United States tion. Inc.; the Dauphin Island Proper Marshals Walter J. Bamberg , ty Owners Association: Southern ln Middle Distriel of Alabama, and dusl ries Corporation; the Mobile Thomas C. Greene , Northe rn WILLIAMH. AllMBRECHT,JR. County roundation for Public Higher District of Alabama, lhere has Education; the Mobile Industria l been a change In lees charged William H. Armbrecht, Jr. died in Parks Board;Title Insurance Compa for certain court proceedings. Mobile,Alabama, Pebruary 2. 1991. ny of Mobile; Lake Fort.st, Inc.; Lake The following schedule of fees ll is the desire of the MobileBar As Forest Utility Corporation; Lake For and commissions became ef sociation to recognize and memorial est Property 0-.mrs Association:Dia fective April 1, 1991, in accor ize his e.~ceptionalrecord as a promi mondhead Manufacturing, Inc.; and dance with 28 1921(b) . nent attorney, distinguished citizen. use the United J>undof MobileCounty. Payment of service fees prior and honored civic and communit-y Armbrecht was a member and to service of process will be re leader. lruslee of SL Paul's EpiscopalChurch, quired. Armbrechtwas born in Mobile. Ala a member of the Mobilel Tl fE ALABAMALAWYER May1991 / 141 OPINIONSOF THE GENERALCOUNSEL By ALEX W.JACKSON* ue stion : communicating with the public. With The Commission also must consider Must a lawyer or law firm recent amendments to the ethical rules whether an attorney, operating under a operating under a tra de governing lawyeradvertising, it has be trade name, should continue use of that name, such as "AAALega I come permissiblefor Alabamalawyers to trade name in connection with all per mClinic", includ e that trade name in all render legal services under a "trade missible communications made pur permissiblecommunications made pur name", as long as the name of one or suant to the rules. In our opinion, it is suant to Canon 2 of the Codeof Profes more lawyersrespons ible for the content both reasonableand proper for an attor sional Responsibility or Rule 7 of the of the communication relating to those ney, operating under a trade name, to Rules of ProfessionalCon duct? services is a part of, or accompanies,the continue to utilize that trade name in all use of a trade name. permissiblecommunications, including letterhead and businesscar d communi ~~;:'~~~(a) of the Rules of cations,a nd also in legaladve rtising per ProfessionalConduct states The purpose of all mitted by the rules. D in pertinent part as follows, The purposeof all bar regulationof at to-wit: bar regulationof torney advertisingcon tent is to protect the public and ensure that information "Rule 7.5*** attorney advertising (a) A trade name may be used by a about legal services, and communica lawyer in private practice if it does not content is to protect tions made by lawyersabout services, are imply a connection with a government truthful, non-deceptiveand informative. agencyor with a public or charitable or the public and insure The rules directly address misrepresen ganization and is not otherwise in viola that informationabout tations made by both commission and tion of Rule .1 or Rule 7.4. " omission (Rule 7.l(a)I. In our opinion, 1 legalservices, and for an attorney to practiceun der a trade Rule 7.1 says in pertinent part as fol name and hold himself out under a trade lows, to-wit: communications name in one instance, and then to aban don that trade name when it suits his "Rule 7.t••• made by lawyers convenience, creates an omission that A lawyershall not make or cause to be about servicesare falls below the standard mandated by made a false or misleading communica Rule7.J. tion about the lawyeror the lawyer'sser truthful, non-deceptive Accordingly, not only must an attor vices.A communication is false or mis ney, practicing under a trade name, in leading if it: and informative. clude in all permissiblecom munications the name of a lawyerresponsib le for the (a) contains a material misrepre content of the communication,but it is sentation of fact or law, or omits a fact Accordingly, the aforenamed (mythi our opinion that lhis rule also requires necessaryto make the statement consid cal) "AAALegal Cli nic" is permissible, as that the connection betweenl awyerand ered as a whole not materially mislead long as any communicationsregarding trade name be consistent and uniform ing; . .. " servicesrendered by "AAA", such as per such that the connection becomesinsep missible advertisements,letterheads or arable and a part of all publiccommuni awyers are permitted to ad business cards (all being communica cation made on behalfof either. A lawyer vertise and to communicate tions permitted pursuant to the rules), using a trade name has made an election [I with the public regarding le include not only the name ··AAALegal and, thereby, has determined how he ga I services in a variety of Clinic", but also lhe name of a lawyerre must be identifiedi n publiccomm unica waysincl uding, but not limited to, pub sponsible for the content of the commu tions. Ii is trade name has become his lic mediasuch as a telephone directory, nication. In the context of "AAAL egal firm name, by choice, and his use of this legal directory.newspaper or other peri Clinic", such a communication might trade name precludest he use of any oth odical, outdoor display, radio. television, state "AAAL egalClin ic, John Doe,Attor er firm name or trade name in permissi mailedci rculars, brochures, or ·'Shapero ney". Such a listing is not the only form ble public communications.John Doe,of letters". ln addition, lawyersma y, and by permissible.b ut is merely illustrative of the mythical' 'AAA Legal Clinic", cannot tradition do, utilize business cards and the connectionbetween trade name and havean alternate identityas a partner in letterhead/legalsta tionary as a means of attorney name requiredby the rules. "Doe, Roe & Moe,Attorneys ", unless the 142 / May19 91 THE ALABAMALAWYER usage is "Doe. Roe & Moe, Attorneys, tage in 'Yellow Page-directory listings all contexts and all permissible public Wa A.f\ALegal Clinic". will have to be consistent in the use or communications. Application or this The use or the trade name, together that trade name in all permissible com standard wnl insure that the bench. the with the name or the lawyer,i n pleadings munications. To allow the use or a trade bar and the public will be afforded com and the like is a mailer be)IOnd the scope name In one context. while lo permit its plete and accurate information regard· of this opinion, but it is nonethelessour omission in all other respects,would be ing the lawyer or law firm offering leg;,I opinion that, unless otherwise precluded to makea sham or the rule and permit services, and that everyone will know by court rule. the use of the trade name misleading communications, either by with what lawyer and what entity Lhey should be carried forward into such the use of the trade name in one context are dealing. pleadings and all permissible communi or by its omission in another. Consisten IR0-90-1001 • calions regarding the same. cy and uniformity are the only remedy, A further effect of this opinion will be and It is our opinion that a trade oame, •Jackson now Is In private practice in that lawyers or law firms who have once adoPted.and once used in connec M011tgomerg,but serred as assis/(ltlt(11.""'1'• adopted trade names selected or de tion with communications 1,~ththe pub al counselfl)r ths AlabamaState Bar for ten signed to provide an alphabetical advan- lic pursuant Lo Rule 7, must be used in 011do half gl!tlr.f. Amendments to the Rules of the JUDI CIAL AWARD OF MERIT NOMINATION S United States Court of Appeals DUE for the Eleventh Circuit The Board ol Commissioners ol Following receipt and consideration of comments 10 the proposed amendments the Alabama Slate Bar will receive to the Rules of the United States Court of Appeals for the Eleventh Circuit. the nominations for the state bar's Judl aal Award ol Merit through May 31. Court has determinedto adept the following additionalrevisions to the Rules. Pur· Nominatlonsshould be preparedand suant 10 28 U.S.C. @2071(e), these additional amendmentsshalt take effect on mailed 10 Reginald T. Hamner, Sec· April 1. 1991, at the same time as the other changes to the Rules. (The additions rotary. Board ot Bar Commissioners, are in bold type, and deletions are ltned through.) Alabama State Bar. P.O. Box 671. 1. Add the following parenthetical 10 the first sentence of the 1.0.P. titled ·Exten· Montgomery,Alabama 36 101. slons of Time· which accompanies FRAP 26: (e.g., court dockets or calendars The Judicial Award of Merit was which establiShInsoluble confloCIS, medlcal evidence of IUness). establishedIn 1987. and the first re cipients were Senior United Stales 2. Add an 1.0.P.to accompany FRAP 28: Briefs In ConscJidaJedCases. Uriless Dislrict Judge Seybourn H. Lynne the parties otherwise agree or the court otherwise orders, the party who medthe and retired Circuit Judge James 0 . first notice of appeal shall be deemed the appellanl lor purposes of FRAP 28, 30, Haley. and 31. and the accompanying circuit rules. The award Is not necessarily an 3. Add the following sentence et the end of paragraph 4 of 11th Cir. R. 32-3: The annual award. It may be presented court may reject or require recompositionol lhe brief lor failure to comply. to a jutlge whether state or lede,al 4. Revise the second sentence ol the t.O.P. totted"Time for Orel Argument" coun. trial or appellate. who Is det&r· mined to have contributed slgnlll· which accompanies FRAP 34: +y~leell1·2Q llliAwte e. The time specllled is per side cantly to the administration of jus1ice i&~BffF1 itte8. In Alabama. The recipient Is present· 5. Revise !he first sentence ol lhe t.O.P.tit led "JudocialC ouncil" which accompa· ed with a crystal gavel bearing Jhe nies FRAP 47: The Judicialcouncll establishedby 28 U.S.C. @332 is composed of state bar seal end 1he year ol pre aJJjie,El,ge& el 1 ~9 89WR iR fe8Wla• 9&lP19 69M98 plws stH 9istA&lJW~ BI ,raJAwffRIFI sentation. tRe eireijil nineteen members: one active Judge lrom each of the nine district Nominations are considered by a courts. nine active circuit judges, end the circuil chief fudge. three-member commiltee appointed by the presldenl of the state bar 6. Add words In bold type and strike words thal are tined through In sentences 4 which makes a recommendation to and 5 of revised Addendum IV. Sedlon (d)(2): the board of commissionersw,th re Unless approved in advance by this court, the dostnctcoun is no1authorized to spect to a nominee or whether the appoint counsel on appeal to represent a defendant who was represenled in the award should be presented in any districtcourt by retained counsel without first condUC1Jngan in-<:amerareview of given year. the financial circumstances ol 1hede fendant and of the fee ammgements between Nominationss hould include a de· the detendants and relained trial counsel. .A,pplleallaAel er Appol ntment ol counsel railed biographical profile ol the nom· on appeaJiA ew eh elre1:JffislaAeee may be FRadeby lillRg requestedIn thlscourt by lnee and a narrativeoutaning the slg· filing an appropnatem otion supported by an affidavit whlChsubstantially complies nilicant con1rlbution{s)the nominee with FoNn 4 onthe Appendix 10the FRAP Rules. has made to the administration of Justice. Nominations may be sup· 7. Stnke the lest sentence of Addendum V, Section (d)(3): ~awAael &Rail "lie poned with letters ol endorsement &1e1eRf:19titleA If F 9'tti19&te919 Ille e e Byt Re paFtyI A tAfJltlAg: THE AL\BAMA LAWYER May1991 / 143 I OPPORTUNITIES The followingprograms have been approved by the Alabama Mandatory Continuing Legal Education Commissionfor CLE credit. For information regardingothe r availableapproved programs, contad Diane Weldon,administrative assistant for programs, al (205) 269-1515,and a complete CLE calendar will be mailed to you. MAY 28.JUNE 1 7 FRIDAY Judges Speak Out and Listen Advanced Workers' Compensa tion Crand Hotel, Point Clear lo Alabaiu Tulane LawSchool Huntsville 15 WEDNESDAY Credits:12.5 I Cost:S500 NationalBusiness Institute, Inc. Ma,io.rLand UH Law1 (504)865-5900 Credits:6.0 I Cost SI08 lo Alabama (715)835 -8525 tluntsvillt 30THURSDAY NationalBusiness Institute, Inc. Criml nal Law 8-13 Credits:6.0 I Cost:S 108 Atlanta Trial Sldlli College: (715)835·8525 AtlantaBar Association Premier Trial Advocacy Credits:6.0 I Cost:S95 Miami Associationof TrialLawyers 17 FRIDAY (404)521 -0781 1'rial Advocacy lo Alabama of America (202)965-3500 Montgomei;• MAY 31..JUNE 1 National BusinessIn stitute, Inc. Health Law 12-14 Credits:6.0 I Cost:$108 PineMountain. Ceorgia ERISA Baslce (715)835·8525 AlabamaB.1-r Institute for CLE SheratonGrande. Los Angeles Credits:6.0 AmericanBar Associalion 17 -18 (205)348 -6230 Credits: 20.0I Cost:SSOO OU&Cu (312)9SS.6195 Tuscaloosa City and County Governments AlabamaBar Institute (or CLE OrangeBeach 19-21 Credits: 6.0 AlabamaBar Institute for CLE Hu.a.rdou, Wute LiUgatlon (205) 348-6230 Credits:6.0 Hoteldel Coronado,Coronado, CA (205)348 -6230 FederalPublications , Inc. Annual Seminar on th e Cuff Credits:16.3 1Cost: $925 SandeslinBeach Resort, Destin (202)337 - 7000 AlabamaBar Institute for CLE Credits:6.0 (205)348-6230 JUNE JULY 21 TUESDAY 4TUESDAY M~or Land Vie Law1 11 -12 inAJabaiu Advanced Worlcen' Compen.ntion ERISA Worbhop Mobile in Alabama Denver Birmingham NationalBusiness Institute, Inc. PensionPublications of Denver.Inc. Credits:6.0 I Cost:S108 NationalBusiness Institute , Inc. Credits: 13.0 Credits:6.0 I Cost:S108 (715)835-8525 Cost:$390 (715)835-8525 (303) 759-1004 22 WEDNESDAY M~or Land UH Law1 6-8 18-21 In Alabama 1'aJCSeminar Annual Convention Montgomery OrangeBeach PerdldoBeach Hilton. NationalB usiness Institute, Inc. AlabamaBar lnstilute for CLE OrangeBeach Credits:6.0 I Cost: Sl 08 Credits:10.0 AlabamaState Bar (715)835-8525 (205)348 ,6230 (205)269 -1515 144 I May1991 Tl IE ALABAMALAWYER M • C · L • E NEWS A brief look at Continuing Legal Education in 1990 By KEITH NORMAN ... .,.., ·.....- ·--- .... ,,·- ··- ·__ ••• ·-· · c·- ··- FIGURE I FIGURE 2 .9'.._ .... •• - ~ .. :ti .. m . III.u . 1...... ·-.. a...... -• ------FIGURE 3 FIGURE 4 In l 990. the Mandatory Continuing F'igure I indicatesthe ten top subject matter areas o( CLE Legal EducationCommission rev iewed courses based on the total number of courses offered, while a total of 2,645programs ~eking CL£ Figure 2 shows the lop ten subject matter areas based on accredillltlonwith 2.574 programs be· lawyerattendance hours . ing accredited. 0( the 2.645 programs Over54 percent of all CLEprograms accredited In 1990were offered, 406 were offered by in-stale held in the ten cities listed in Figutt 3. sponsors and 2.239 by out -of-state Final ly. in 1990.6 ,188o r 99 percent of the lawyerssubject to sponsors, 15perunl and 85 percent re the CLE rules and regulationscomplied with the MCLERules spectively.Yet, si~ in-state sponsorsac and Regulationsin a timel)•fashion or fileda deficiencyp lan as Keit h Norman counted for 52.3 percent of the total permitted under Rule 6 of the rules and regulations. Only 43 CLE hours attended by state bar mem- lawyers'names ,vere certified to the Disciplinary Commission bers in 1990. for noncompliance.(Figure 4) TMEALABAMA LAWYER May 1991 / 145 ALABAMA STA TE BAR ANNUAL11EETING JULY 18-21, 1991 ORANGE BEACH IN1HE •••••••••• •••••••••••••••••••• LAWPRACTICE Learn tactics for using technology to increasethe productivity and efficiency for your practice. • Discover how lawyers employ the latest document assembly, databasespread she et and substantive applicationsin their work. • Learn the latest in technology systems and how to decide what is right for you . • A three-hour symposium- what everyl awyer should know about computers-w ill cover the basics of the entry level microcomputer-what you need and do not need and what it costs; what you should expect from wordprocessing, timekeeping, accounting, etc., software; how many software packagescan you use effectively-which ones should you choose, where do you get servicean d support and many other subjects. Workshops: Among the several workshops to be offeredwi ll be how to select a law officemanage ment consultant, computer kindergarten - a primer for those who have little or no knowledgeof computers, document assembly, and free LEXIS... trai ning. 146 / May 1991 THE ALABAl"IALAWYER e ALABAMA STATE BAR OFFICE OFTHE PRES IOENT Dear Alabama Lawyer: ALABAMA STATE BAR 1991 IS DIFFERENT! IT'S THE BEACH! ANNUALMEETIN G The decisiont o hold the 1991Annual Meeting of the state bar on the Gulf at the PerdidoBeach Hilton dictates a new pre-registrationprocedure to maximizeour use of this beautifulproperty. Wemust registerearly to ensure the bar's exclusiveoccupancy of the Hilton.The additionof the inauguralAlabama State Bar OpenGolf Tourna ment also necessitatesan advancedreg istration. A more detailedprogram of the educationalopportunit ies, our legal technology expo,and the best-ever entertainment social itineraryw ill be mailed in earlyJ une. At that time you will be able to order tickets to all of the convention events.A sneak previewof some of the programac tivities is includedin this mailer. --- islll( The pre-registrationfee applicablethrough May31 is $100.After that date LAWPRACTICE the 1991Annual Meeting registration fee will be $125.Your room request must be accompaniedby the appropriateconvention registration fee. Use one registration form per attorney. The golf tournament will be playedon the PerdidoBay Golf Course on Friday,July 19, and will be limitedto the first 72 registrants.Will Matthews of Ozarkis tournament chairman. The PerdidoPals children'sprogram will be availableto registeredhotel guests only during the con vention.Th is programp rovidesorganized children's activities d uring the day - as well as evening hours with meals included. Registered hotel guests will have on-premisesparki ng preference. The activitiesbegin Thu rsdaymorning, Ju ly 18, and willconclude with the Hilton'sJazz Brunch on Sunday,July 21. Hotel rooms need to be reservedearly. Pre- registrantswill receivean order for tick eted eventsprior to the generalconvention mailing in earlyJune. Yourearly registration will facili tate a smooth 1991annual meeting. Weare operatingunder severespace constraints, and this early planningwill make for a smootherand happierevent for all. W.Harold Albritton, Ill President TH" ALABAMALAWYER May 1991 / 147 ALABAMASTATE BAR ANNUALMEETING July 18-21, 1991 · Perdido Beach Hilton· Orange Beach P·R·E · V·I·E·W Group Breakfasts• Alumni Luncheons • AlabamaLaw Institute -~ne- LAWPRACITCE Sand, Sun & Saltwater· Fishing, Golf & Tennis • and more I Thurada,y, July 18 Friday , July 19 7:30 p.m. 8:30 a.m. • Noon 7:45 • 8:30 a.m. Dinner and Entertainment Section ShowcasePrograms* ComputerKind ergarten "AnEvening with Shearen Elebash" 12:30 p.m. Breakfast Benchand Bar Luncheon 9:00 a.m. • Noon Sa turday , July 20 Hon. Jerry L. Buchmeyer PlenayySession• 8:00 a.m. CommitteeBreakfast Featuresc omputer hands-on U.S. Oistrid Judge,Dallas, Texas demopresented by RobertP. 9:30 a.m. • Noon JudgeBuchmeyer is a noted Wilkins and RichardT . Rodgers GrandeConvocation• humorist and heardon National ImpairedLawyers Program PublicRadio . 1:30 p.m. Tee Time ChiefJu stice Hornsby 2:00 · 3:00 p.m. GolfTournament VolunteerLawyer Program Section BusinessMeetings limited lo 72 players AnnualBu siness Meeting 2:00 • 3:00 p.m. 7:30 p.m. 'UI • 3:00 • 4:30 p.m. LawOffice W orkshops* Harold and Jane's Club '91 Bench/BarBeach Olympics ComputerUsage/Law Office Dinner,Oancin' & Cabaret FamilyFun on the Beach ManagementConsultants Mandy Beason,vocalist 7:30 • 9:30 p.m. 3:00 • 5:00 p.m. Suoda,y, July 21 ReggaeBeach Par ty Section BusinessMeetings Jazz Brunch ALABAMA STATE BAR G LF TOU Al E T Friday,Jul y 19, 1991 / Perdido GolfClub EXPO • Field limited to 72 players Thursday, Friday, • Basedon handicaps • Shotgun start at 1:30p.m. & Saturday • Menplay from men's tees. Hilton Exhibition • Ladiesplay from ladies' tees. Hall • Teamsestablished by committee • Each playerdrives; players selecl best driveand so on REFRESHMENTS until ball is holed out. PRIZES • Prizeswill beawarded to winning teams and for closest to pin on selectedpar 3 holes on Saturday night. Tl JURSDAY: 8 :30 a.m. · 4:30 p.m. SOX LUNCHWILL BF <;~R\1m. l'RIDAY:8:30 a.m. • 4:30 p.m. ENTRYF EE: $50.00 SATURDAY:8:30 a.m. • 1:00p.m . (Includes1 12cart, greenfee, & lunch) 148 / May 1991 THEALABAMA LAWYER AI.Al .. ,,.4 iTAtl IAl A~1JALME»OO Alabama State Bar Annual Meeting July 18-21, 1991 / Orange Beach, Alabama ADVANCEREGISTRATION Please Print - One Form Per Lawyer-Registrant I Registratio n fee must accompany this form. Make check payable to Alabama State Bar. Mailregistra tion form and check to: 1991Convention, AlabamaState Bar. P.O. Box 671, Montgomery.AL 36101. Pre-registration formsMUST BE RECEI\IED NO LATER THAN M AY31, 1991. Cancellations with runrefunds may be requested through noon, Friday. July 12, 1991. --• -- L\WPRACTICEFor information concem ln®l1tntion . call (205) 269 -1515. Name ______ttUil U to •PP't.Uon , onw"tlonb, 1dgd Phone (Business) ------(Home) ------Ad~ess------ State _ _ _ ZIP ___ _ City ------Name ofSp0useorOther Guests ______t1111 ii lo lPl)Ur on con,-ention b:idltf) Registration Fee (if received by May 31, 1991)...... $ 100.00 $______Colr Scramble (complete entry form below) ...... $50.00 $______Total Due Alabama State Bar...... S ------Appropriatepaymmt must accompanvregistration fonn; payment bg check is requested. ENTRYFO RM FOR GOLF SC.RAMBLE Name ______All pre-registr011ts will receivea n advance mailer Address ______ticket order form for other conuention acliuities af. terJune 1, 1991. City ______State _ _ ZIP __ _ _ Phone (Business) ------(Home) ______D Check here for free LEXIS" training . Member Club ______(Trainingsessions limited to the first 50 USCAHand icap Index _ ____ CHIN#______attomegswho register.) ..---··---- HOTELRESERVATIONS Alabama State Bar Annual Meeting I July 18-21, 1991 I Perdldo Beach Hilton To ensure that you receive the guaranteed room rate or SI06 you must reserve your room no later than June 16, 1991.Requests received after this date will be based on availability and regular rack rates will apply. Return This Form To The Alabama State Bar • DO NOT MAlL TO HOTEL • Name ______ Address ______Phone (Bus.) (Home) ------City ------State ZII' -- --- Arrival Date _ _ __ _ Departure Date ___ _ _ No. orRooms _ _ No. o( Adults_ _ No. or Children _ _ Children's Names ------Special Requests ______Rates are for single or double occupancy. Add SIOr or each additional adult in room. (Children Stay Free in Parent's Room.) In order lo confirm this reservation request. a dep0sit equal to one night's room rate ($106) is required. Please enclose your check. made payable to Perdido Beach Hilton. or provide credit card information below: Card Name Card No. ------ExP, Date Signature ______ Can«llation PollC)~ Should cancellation or this reservation be necessary, there will be no penalty provided the reservations office is notified no later than 4 p.m. three days prior to arrival date. Should cancellation occur after this time, or if lhe hotel is not noti fied or cancellation, the dep0sit will not be refunded. Check-In Time is 4 p.m. Check-Out Time is Noon. THE ALABAMA LAWYER May 1991 / J49 THE MINI-TRIAL AND SUMMARYJURY TRIAL By ROBERTW BRADFORD,JR. he mini-trial and the sum giving rise to iL The SJT aids objectivity man's problem to be solved in a busi mary jury trial are designed by presenting litigants with a non-bind nesslike manner by persons who may be [I to aid parties in objectively ing verdict from a randomly chosen ju much more skilled and nexible in nego ana lyzing their positions ry. Confidentialityof the processmay be tiating than are legal counsel and who and resolving a controversy short of a assured by an agreement between the certainlyhave a better grasp of what is in lengthy trial which would be costly to parties or by court order.• the best long-term interest of the.Jr com the litigants in terms of legal fees. ex panies. penses, time and the uncertainty of the THE MINI-TRIAL The mini-trial process c.1n be under final outcome. Both are effectiveforms The mini-trial is a procedurewhich al stood best by considering a situation in of alternative dispute resolution which lows the parties to quickly present their which it was successfully ulilized. Its give litigants the opportunity to present "best case'· as a prelude to settlement first widely recognized application in their best case in a short period of time, discussions. The mini-trial is possibly volved a complex patent infringement usual ly in one-half lo two days. The best suited for complex Litigation which case betweenTe lecredit. Inc., the owner beauty of these proceedings is that nei is factually difficult for the layman to of a number of patents relating to com ther is binding and if a resolution is not easily understand. It has been utilized puterized check verification and charge possible, the parties may proceed to a most frequently in patent, antitrust, gov authorizations systems, and TRW,Inc ., full trial. ernment/contractor, and other complex the manufacturer of a number of such There is a major difference between litigation. The mini-trial format is useful systems for banks and retail outlets.• Af the two. A mini-trial is generated by an in preserving an ongoing relationship ter three years of preparationand the ex agreement between the parties and is between the parties by avoiding the penditure by both sides of several hun outside the judicial process. An SJT is "bloodletting" and animosity which of dred thousand dollars in legal fees, tradi ordered by the court. ten accompanyfull- blown litigation. tional dollar negotiations had failed. The mini-trial and the SJ'f are partic A successful mini-trial is a voluntary, Counsel and management of the parties ularly beneficiali n cases which are un- confidential and non-binding procedure. developed the mini-trial concept. 1i ke ly to sett le, will require large It consists of an informal summary pre The procedure consisted of a six-week amounts of pre-trial preparation, and sentation before top management repre pre-presentation schedule U1at provided will require a lengthy trial. Both aid the sentatives by the lawyersan d experts for for an expedited, limited exchange of parties in overcoming entrenched per each party. A rebuttal and questions con documents, short depositions of key wit ceptions regarding the merits. The mi cerning the presentation follow.T he pre nesses and the exchange of position pa ni-trial accomplishes this by making a sentation is presidedover by a jointly se pers and exhibits. During the six-week presentation to executives of the liti lected "neutra I advisor" or moderator pre-trial period,a ll non-essentialjudicia l gants who haveno t been "tainted" by in who. if desired, advisesthe parties as to pre-trial discoverywas postponed.Br iefs volvementin the suit or the controversy the strengths and weaknesses of their in the form of short introductory narra positions. After the presentation, the tive statements were exchangedand pro representat ives for the parties meet, vided to the neutral adviser beforehand. RobertW , without counsel, to discussthe possibili The procedure culminated in a two Bradford , Jr. Rob0t1W SradJo,d,..k ty of settlement. day mini-trial. At the mini-trial, the for is .a memberof 11le The purposeof the mini-trial is to per mal rules of evidence were suspended. M°" IQOmetyfirm of HIii, mit executives or other knowledgeable Each side orally presented its best case HIii,Cane r, Franco. C 150 I May 1991 THE ALABAMALAWYER problems he beJieved existed for each ADRis "mini-trial by contract·. Con and say, "Let's try something like side. tracts could require the parties to partic· this?" I think that's a goodquestion . After the presentation, i( a settlement ipate in a mini-trial procedure in the I think ii is a sign o( weakness to did not occur during the initial meeting event o( disagreements during the call up the other side and say, "Do o( the corporate representatives, the course o( the contracL IL is not clear if you think we might be able to do neutral adviser was to pen a non-bind such contractual provisions are legall1• something about this case?" and ing opinion regarding the relative enforceable. then engage in tradiliona l sellle strengths and weaknessesor the pnrties' In appropriate situations, the use of a ment discussions ....) do not think p0sltionsand the likely outcome al trial. mini-trial has grent potentialand is basi it's a sign o( weaknessto call up the The two management teams were to cally risk-frt(?.Pro(essor Eric D. Greene other side and say. ''We think our meet again after reviewingthe opinion case is great and we're willingto put to diKuss settlement. This process was on our case in four hours or for an not necessary.Immediately after the mi hour and txp()ISe it to )'Ourcross ex• ni-trial ended, representatives o( TRW For the mini-trial to amination and your questions i( and Telecredil met privately without )'OU0 II put on your case and we'll do lawyers and within one half-hour re be successful, counsel the same thing. Let's bring our chief solvedthe dispute. and parties must be executiveofficers down and let Lhem For the mini-trial process to be suc listen and then let them negotiate. I( cessful, counsel and parties must be imaginative and flexible they can't decide it, you pick the imaginativeand flexiblein tailoring the person, pick a ret ired judge." ... ! wide variety or available procedures to in.t ailoring the wide think that's a sign o( strength. I their particular situation. Whilea mini· variety of available don't think there's any risk there. trial may eliminate a lengthy trial, it re Judicial Conference-Federal Circuit, quires intensive preparation. Otherwise, procedures to their JOOF.R.D. 499 ,517 CJ983). corporate representatives will not have There is no need to teeter on the sufficient Information upon which lo particular situation.. brink ora mini-trial; plunge in. There is base a wise decision.To avoid problems, llttle to lose and much lo gain ln the the procedure to be utilized should be process.' spelledout in detail in an agreement be succinctly summarized reasons for uti tween the parties. Modelagreements re lizing a mini-trial in appropriatecircum THE SUMMARY garding mini-trial procedures are avail stances: able from the AmericanArbitration As Why should not anyone lake ad JURY TRIAL sociation. vantage o( a process like this in a The SJT is a judicially ordered proce· There are many variations o( the mi case that they have in which they dure which providesa no-risk, non-bind ni-trial. The parties may agree to make are al an impa.sswith the other side ing method by which the parties may ob the decision o( the neutral observer and they both have a goodfaith be tain the thoughts of jurors on the merits binding. A binding mini-trial may be at lief in their case? I can't see any rea o( their case in an abbreviatedproceed trnclive when the issues between the son ,vhy you shouldn't try it. It's vir Ing normally lasting from one-half lo parties are very narrow and the (acts are tually risk-free. First or all, all of the two days. Unlike mini-trials, SJTs have not seriously disputed. A binding mini Lime and money that you put into been ulllized in cases ranging from per trial is especially use(ul i( the jurisdic preparing for this concentrated mi sonal injury lo contract disputes.' SJTs tion permits the use of a "'privatejudge". ni-trial. and it requires a great are most often utilized in suits which In California, litigants may avail thtm amount or preparation, is Cullyre will in\'01\'t lengthy trials and in which selvesor a provisionor the Code or Civil CO\'erableif the case does not sellie settlement appears unlikely becaust or Proetdure, Parag-raph638, that permits and Yougo lo trial. Youprepare your the often mutually unrealistic expecta litigants lo have their c-ascheard pri· case in the same way,You Just boil il lions or the parties as to Lhepotential o( vately and quickly by a judge o( their down lo the crux issues which is a liability and/or the probable verdict choosing.Appea l rights are preserved. beneficial process In its own righL range. A mini-trial also may be conducted It's confidentialan d inadmissible so Although normally utilized in large within the regular litigative process, you don't give up anything that can cases. the SJT could be useful in techni rather than secretly and apart from the be used against you at trial. With the cally complexsuits in which the amount court. by utilizing the court's powers rules or diKovery the way they are in controversyoften does not ,xceed the under F.R.C.P. 53 (Masters). or the today,)'OU can't hide very many sur cosl o( full-blownlitigation. Small con court's authority to appoint a neutral prises anyhow.l( )'Oil have a chance struct ion claims are an example. To expert on disputed issues. Rule 16 or the o( savingsubstantial money for your avoid expense, the parties could agree Federal and AlabamaRules o( Civil Pro client, it seems that it would be that the SJT decisionwould be binding. cedure arguably is broad enough lo per worth the risk in virtually any case. The SJT was developed in 1980 by mit such a procedure. I'm asked, is il an indication o( Judge Thomas D. Lambros, a federal Another permutation or this form of weakness to call up the other side (umtinucd Of/ page 15.1) THEALABAMA LAWYER May 1991/ 151 DISCIPLINARYR EPORT Disbarment s ordered pursuant to Rult 20(a). Rulesof On February 1, 1991. Daphne lawyer Mobilelawyer S. Robert Brooks, Ill DisciplinaryProcedure of the Alabama James Harold Swed waspublicly cen was disbarred by order or Lhe Supreme State Bar.(ASB t.o. 91-01) sured for having violatedDR 1-102(A)(6) Court of Alabama,sa id disbarment effec Birmingham lawyer Elalne McDuffie and OR 2-111(8)(2) or the Code of Pro tive March 20, 1991.The disbarment or was suspended from the practice of law fessional Responsibility oi the Alabama Brookswas basedupon his conviclionin in the St.ate or Alabama for a period or State Bar. Sweet was discharged by a lhe MobileCounty Circuit Court of lhefl 90 days, with automatic reinstatement, chent who "'as dissatisfiedwilh his rep or property in the first degree. (Rule by order of the Supreme Court or Alaba resentation or the client in a civil sulL 14(bl 90-02) ma dated March 5, I 991. Said suspen Nonetheless, Sweet liled a pleading on Sylacauga attorney James J, Clinton sion, effective the date of lhe order, was behalf of the client three days after he was disbarred by order or lhe Supreme based upon McDuffie'splea of guilty to wa.~discharged. Court or Alabama.effeclive 12:01a.m .. disciplinary charges pending against The client flied a complaint wilh lhe February 12, 1991. The disbarment or her, specifically, that she engaged in stale bar. which requested Swtet to Clinton was based upon his conviction conduct that adverselynRected on her explain his having filed a pleading or various violationsor the Code or Pro fitnessto practice law. for the client after having been dis fessional Responsibility of lhe Alabama Said conduct involved McDuffie's charged. Despite repeated requests. sent State Bar.(ASB No. 86-234) preparinga will for a male client where by certified mail and personally served The Supreme Court or Alabama en in she was designated as the txecut:rix on him by the sherirrs department, tered an order January 22. 1991, disbar and sole primary devisee, and also her Sweet failed to provide the state bar ring Birmingham lawyer Be.rt L. Lind preparation of a will for said client's with any explanation of his behavior. bergh, effective 12:01a. m., January 22, molher, lhal will including a provision (ASBNo. 90-331) 1991, based upon Huie 14(b), flutes of that the entire residual esl:lltewould go On February I, 1991, Richard Lee Disciplinary Enforcement, disbarment to McDuffiein the event the son prede Taylor was publicly censured for will order or the DisciplinaryCommission. ceasedthe mother. CASBNo. 89-662) ful misconduct, conduct adversely re (ASBNo. 88-02) In an order dated February 4, 1991, Oecting on his fitness to practice law. the Supreme Court or Alaoomasuspend willrutneglect or a legal matter entfll$t· Suspen sion ed Montgomeryattorney Cerald Oscar ed to him, and lnte:nlional failure to car Eddie Lee Lewisha s been temporarily Wallace from the practice or law for a ry out a contract or employmententere d suspendedfrom the praclice or law,pur period or 91 days,said suspension to be Into with a client for professional ser vices. suant to Rule 20, Rules or Disciplinary come effective F'ebruary 4. 1991. Said Procedure,effective March 15, 1991. suspension was based upon Wallace's Taylor was retained and paid by a having been previouslyconvicted of two Columbus, Ohio, resident to review a Mobile attorney John A. Courtnt>' relonycounts involving moral turpitude. will and advisethe client as to her rights was temporarily suspended by order or (ASBNo. 89-03) under the will. Taylor did not communi the Disciplinary Commission or the Al cate 1"ilhthe client about the matter for abama State Bar. The suspension was Publi c Cens ure 13 months, during which period he Ig On February l, 1991, Mobile lawyer nored an inquiry from the ChiefJustice Riclunl O. Yet,-ertonwas publicly cen of the Ohio Supreme Court and two in Notice of sured for having engaged in conduct quiries from the GrievanceCommittee Investigation that Is prejudicial to the administration or the Birmingham Bar Association. (ASB No.90-2) James Stephen Oster , or justice, in violationof DRJ -102(A)(5) or the Code of ProfessionalResponsibili whose whereabollls are un Dlsclplina ry Proc ee ding s known, must answer the com ty. Yelvertonderended a client on rob plaint filedagainst him within 30 bery charges,and falselyrepresented to James Stephen Oster, whose where days of May 20, 1991, or the the jury, the prosecutor nnd the court abouts are unknown, must answer the factual allegations contained In that the whereaboutsor an alibi witness Alabama Stale Bar's formal disciplinary lhe complaint sha ll be deemed were unknown. and that he would need charges wilhin 28 days of May20, 1991, admitted and submittedto the to read for the jury lhe prior testimony or, the reafter, lhe charges contained DisciplinaryCommission of the or that witness given at the preliminary therein shall be deemed admitted and Alabama State Bar hearing in district court. In fact. Yelver appropriate discipline shall be imPoSCd in ASB No. 91-132. ton knew lhe whereaboutsof the witness against him in ASBNos. 88-426.89-186 and had served the witness with a sub and 89-405 before the Disciplinary poena. (ASB No. 89-189) Boardof the AlabarnaState Bar. • 152 / May1991 THEAu\BAMA L\IYYER The Min i•Trial and SJT.' See, e.g.. Arabian-AmericanOil may voluntarilyconsent to an SJT if the Summary Jury Trial Co. u. Scarfone, 119 F.R.O. 448 (M.D. court approves. Co,1tinurdfrom f)O!J TELEPHONEEQUIPMENT NOTICE Buy - Sea• lnstal • Repair The sponsors of the Young Lawyers' Section Golf AT&T, BELL, ITT, EXECUTONE,etc. Tournament at the Annual Seminar on the Beach • 5 Button Mertin· $150 • are Commonwealth Land rrtte Insurance Co. One Year Warren Tl and First Alabama Bank. 1-800-239-5655 The sponsors were listed incorrectly ln the program brochure mailed out by the (() WARREN TELECOM , INC. Alabama Bar Institute for CLE. Hwy. 280 E. Childersburg THE ALABAMALAWYER May 1991/ 153 PROFILE CLARENCE MERILTON SMALL, JR. President-elect, Alabama State Bar, 1991-92 Pursuant to the. AlabamaState Bar's ed Stales Army Artillery Corps. from rules governing the election of the pres 1956 to 1958 and 1oashonorably dis ident-elect, the followingb iographical charged. sketch is provided of Clarence Merilton In 1961,he joined the firm of Rives& Small, Jr. of Birmingham, Alabama. Petersonwhere he is now a senior part Small is lhe sole qualifying candidate ner. for the positionof president-electof the Small is a memberof the Birmingham AlabamaState Bar for the 1990-91term. Bar Association,Alabama State Bar and Clarence M. Small, Jr. was bom July AmericanBar Association.He is a mem 24, 1934 in Birmingham,Alabama_ He ber of the bar of the Supreme Court of recei\'td his undergraduatedegree from the UnitedStates. Auburn Universityin 1956and law de· In 1989,Small was electeda Fellowof gree from the University of Alabama the American Bar Foundation, whose Sc:hoolof Law in 1961,graduating with membershipis limited to one-third of l honors. He is a member of Omicron pe1·centof the lawyers in the Uniled Della l(appa and Farrah Order of Ju States whose professional. public and risprudence. private careers hove demonstratedout Small servedas an officerin the Unit- standing dedicationto lhe welfareof the communityand the tradillonsof the le gal profession. He is a member of the As.sociationof Trial Lawyersof America, International Associahon of Defense Counsel and the Alabama Defense l.a1Y)>ersAssociation. Small was elected president of the Birmingham Bar Association in 1979. He also served as chairperson of its Grievance and Law Day commiltees, president of ils YI.S. a member of the executivecommittee and other com mittees. I-le was a member of the AB/\ House of Delegatesfrom 1.983 to 1990. He was appointed by lhe Supreme Court of Alabama to serve on the court's Appellate Rules Committee and the Committee on Alabama Rules of Evi dence. Since 1985. Small has been listed in the "The Best l..aW)·ersin America." He currenUysu1-es as a memberof the far· rah Law Society Board of Trustees and Offering Solid Tr ust Service Since 1901 as a member of the JeffersonCounty Ju James C. fb,.ihomc. Jr. Executh-cVice l>rc,.ldrn1 dicial Commission, nominating candi dates forjudgeships in JeffersonCounty. Meis married to the formerJean Rus· I UNION BANK& TRUST COMPANY sell, and they have three children. They 00CO MMERCE STREETI MONTGOMERY. AIAllAMA I ~2 40226.5I Ml(MBER A)IC are members of Brookwood Baplisl Church. • 154 /May 1991 TMEALABAMA LAWYER The Mini -Trial and pare an effectiverebuttal to evidenceor COOIOjnt reiootffl'llndtd SJT ptQQ!dl.us. Summary Jury Trial 7 ~ 1iev•allO bNl'\ raisea aoo.rt the court's cross examination.' 1uNlf ty co 1'9Qljlt9 ell ,..,, surrvnc;wl8CI tor ·tadi · Qnuinuedfrom pape 1S3 The future use of the SJTwill depend ltOnll"IJ"I _..,..,_on •-tosY ano on the proclivityof various courts to re tM pccenri4JYelltotoOuS eff«:t, ol 1h11o«acbCO quire such proceedings in an effort to - .. - ··- Tl'e NorleTI Otsll1cl parties may agree to make it so. ol O,,,o naa - '""' ·fode THE Au\BAMA LAWYER May1991 / 157 j udges, of all things. should be electedin th is? Or turn it the other way live judiciary, it does not have to be a a partisan election. Not long ago, a Mo around."' partisan election. What are the issues In bile newspaper. in its "Opinion" section, Do nol take if from us, though, take it a partisan election? Free trade? Arms asked its readers: "In an effort to keep from a fine elected judge himself,former control? Tux reform? Military prepared politics out of the state judiciary,s hould Justice Pelham J. Merrill of the supreme ness? Our judges have no business being all candidates for state couTtj udgeships court: voted in, or voted out, based on those have to run as independents instead of If a judge in Alabamahad never questions, which have little if any rele running as Democrats or Republicans? been a politician, and had been a1r vance to the judiciary. Why or why not?" All the readers' an pointed to his position, he immedi We are fooling ourselves if we think swers published were that judicial elec ately becomesa creature of politics. that our citizens are making knowledge tions should be nonpartisan, and this He must win nomination by his own able choices in our partisan judicial elec· one catches the flavor: politicalparty, and then stand for re lions. Listen to one former Missouri Yesl I believe all judges, whether election in November.In strong two Supreme Court Justice: elected or appointed, should be in party states. fine Republican judges r was electe d in 1916 because dependent.S uppose you have to set have been defeated in a Democratic Woodrow Wilson "kept us out of tle a case in Court and you are a sweep, and fine Democratic judges war." I was defeatedi n 1920 because dyed-in-U1e-wool Democrdt, and the have been defeated in a Republican Woodrow Wilson "did not keep us Judge is a dyed-in-the-wool Republi sv,1cep.2!1 out war." In bot h elections , not can, the other party is a Republican Mostli kely the overwhelming majority more than five percent of the voters and his lawyer is a Republican. of the citizens feel that way,i f they think knewI was on the ticket." Would you feel safe in a setting like about il. If we are going to have an elec- The obvious reason is that except maybein rural counties, most votersj ust do not know their judges. There have not been any studies here, but promptly after the 1954 elections, the Bar Associa tion of the City of New Yorke mployed a well-known pollster to make a public opinion analysis in all parts of NewYork HELPING State, including NewY ork City, a smaller city (Buffalo) and a semi-rural area . Their results showed that: • not more than 1 percent of those INESSESpoll ed in NewY ork City could remember the name of the man who had just been elected to that state's highest judicial post; FOR • in Buffalo, not a single voter polled could remember the name of that judi cial officer; and • in the rural area, only 1 percent re· membered.'' Arewe different in Alabama? Maybe so For 50 years attorneys,mo rtgage lenders, builders and for circuit judges and probate judges in realtors have called on us to help dose on their real estate some rural counties, but ask a layperson transacl'ions- commercial or residential. to name four of U1e justices of U1e Alaba ma Supreme Court. It is no reflection on Some say it's becausewe 're prompt.Others say ir's the sitting justices that most citizens because we're dependable. iv\ost, however, say it's because have never even heard of most of them. with 50 years Lilt he business, we know what we're doing. A judge performs his work in the court Lf you're in need oFti de insurance in the next 50 years room or in chambers,an d not on televi· sion. That very trait, though, makes or so. caJJu s. We'll be here. them "ground zero" for partisan sweeps. Lft here is a ''Bush Sweep"i n 1992, Al abama's judiciary may well have a judi ~ cial train wreck. ls there something in Mississippi Valley Title InsuranceCompan y the water of Alabama that makes us take 1-lome Onice: J ackson. ,\ \i~sissippi.J 15 Tombigbee.P. O. Dra,ver2-128 no action until there is a train wreck? l-601-9G9-0222 Let's fix this now. Why should any Al abama judge be voted in, or voted out, 158 / May 1991 THE ALABAMA LAWYER because the Tomaha111kmissile worked that continuesto have partisanpolitical elation and the AlabamaDist rict Judges extraordinarily well. our soldiers were Judicialelections . Association, and to the ChiefJustic e of wonderful.so me Democratsin Congress 2. Nonpartisanelecti ons should help the AlabamaSupreme Court. for their 1,•ere timid, and severalnational televi· reduce the cost of elections and help m ~ewand considertion. sion newsmen havebeen jerks? Judicial ameliorate the demeaning necessity of Now.therefore. the Boardof Commis competence and judicial careers ought judicialcandidates and slttingjudgesac sionersor the AlabamaSwte Bar resolves not to dependon that kind of thing. cepting, and evenseeking campaign con as follows: The Board of Bar Commissionersof tributions from l~wyers,p otential liti· Be it resolved. that the Boardor Com the AlabamaSta te Bar is doing Its part. ganlsand specialIn terests. missionerso f the AlabamaState Baris in On December 14, 1990.it adopteda res· 3. Judicial decision-making is not a favor of the nonpartisan election of olution, reprintedat the end of this arti political function and party affiliations judges to the appellate,c::ircuil and dis cle, favoring adoption or nonpartisan should not be a fact or in determining trict courts in the State or Alabam.1,and el«tlo n or judges. the qualificaliOt\$of a candidatefor judi recommendsand encouragesthe Legis Alabamadeserves better than we have cial office.nor shoulda judgebe behold lature of the State of Alabamat o passan now. So do our judges. Tulkto your leg en. or give the appearanceof being be act at the next session of the Alabama islators about it; they will listen to their holden, to a politicalparty by reason of l.egislalure making nonpartisan the county's lawyers.Tell them you want its support of his candidacy. electionof judgest o these positions. nonpartisane lection of Alabamajudges, 4. Nonpartisan elections should en Oc it further resolved, lhal u copy of if weare going to electour judges. courage quality candidatesl o run for a this resolution be sent to the Alabama Otherwise,we mayall besorry, and in judicial officethat olher\\•isewould nol Circuit Judges Associationand the Al· pretty short order. offerthemse lvesas candidates; and abama District Judges Association.and Whereas.the wk force deemsit advis to the Chief Justice of the Alabama RESOLUTION able for a copy of this resolution to be Supreme Court, for their review and Adopted by the board of commb· stnt to the AlabamaCircuit Judges Assa- their consideration. • •lonua December 14, 1990 Whereas,th e AlabamaS tale Footnot es 15, ci.-, V -(No 9().757) U.S V - 1 See {IOttorallyBIQ"NOII, 8onch and 8aPol ,'rt Ala· (No 00·132), and Hou$lon Lawyo,s A1tn v Bar appointed a 1'•skForce on bama. 33 Alo Lew 58 (1972) Attotnwy Get1fN8Iol To.a$ (No 9().813), 11118 1 50 Judicial Selection (r om its ? Thls Is 1no 11111 blfl Tn1 1( Fo,co on Jua!claJ US LW 3500(U.S Jan 1991) Se!ecltOtl, c:ur,entlychal,oct by Rooen Oenl'ldton. 10 Ul"ICJOttno 1965 voung R,gfllS Aet 11111m, on1wo n membership, and that task force has re and v,ce,.enei,ocrby caro1 Sue Nel&Ol"I. a.noitem ntao o,1n1r 10 be a.pproved by tho JiJfllCt "1M 1Gun,e. llolpocl OUI Dy OtllW Rodden (tc,me, 0.1>11111,,..,1,"' made lhe sublect ot <*let tlCrY ported to the boardof commissionersfa · ....,_ In Ille Urt~ Sla:n 01U>CI c..,,i lot voring the nonpartisan election or cna,,pe,sor,) , J,rn a.,so,,, R,clwd Ogle Oa'MI BagweU (lorm1, v1t•·cha~person) . Judge I .. Osl1ld "' Columbia °"'ta>, 1or... - judges 10 the judicialo fficei.o f the appel OtOl,;Owherl H can take ~ • dty and 00 fO CnarlesO- - .. - -- · 8.ttntl'IO'f'\8ffl :o 11'\ttl we d By PERCYBADHAM Alabama young lawyers are on the move! Thisarticle is dedicatedlo the localyoung lawyerorganizations throughout Alabamathat are making a differencein their communities. There are four established local organ iz3lions: Birmingham Young Lawyers, Mon tgomcry Young Lawyers, Mobile Young Lawyers and Percy B•dham West Centra l Young l,awyers (includes a four•countyreg ion between Birmingham and Decatur). We are in the processof establishingthree new lo cal affiliates:Huntsvill e (MadisonCoun• Frontrow, Ml to right:Duane Wilson, Jim Sasser.Les Hayes,Jav Smith, RussellEo.,on. Lou ty), NorthwestA labama and 1\1scaloosa. ro Crum.Percy &dham, Amy Slayden,and KeithNorman. &ck row:Hal We.,/,Charles ,\n Theselocal org;,ni7.allons elect their own dcrson.Rcbccc_a Br,qa11. Jomes Allderson, Sid Jackson,Judson Wells,Frank Polls,trip Wa/1011, officersand carry out local service pro John Ncmdon. Borrg Ragsdale,Buddy Smilh. RobertBough . and Fronk Wood.,or1. jects. In February, the Alabama State Bar solid foundali on for fulure cooperation Vice-president...... Fe"is Richey YoungLawyers' Section t:xecullve Com betweenthe localYLS chapters. Secretory...... Tim Smi//1 mittee held its quarterly meeting al The Point Clear meeting emphasized Treasurer...... Robert Bough Point Clear,Alabama. The committeeIn· the need for statewide communication Assistanttreasurer ...... Betsv Champlin viled lhe presidentof each localaffiliate and the sharing of projectsand ideas. In The BirminghamYLS was involvedin to attend lhe meeting for lhe purposeof recognitionof those needs. I will high se\.oeralprojecu: a band party for the Al· opening up statewide communication light the officersand specificprojects or abama EpilepsyFoundation ; meals and among thesevarious groups. The meet· each of the localaffiliates. scholarship program for the downtown ing provided a forum for exchanging firehousemission program: a SK race to ideasand discussingthe needs of >'Oung Birmingham YLS raise money to send underprivileged lawyersthroughout the state. The meet President...... John Herndon children to camp: a YLSspeaker·s bu ing was a tremendous successand laid a President-41/ect...... Peter &wig reau; and a new lawyersseminar orga nized lo orient new lawyers to all as· peels of practiceat the courthouse. Montgomery YLS President...... Lauro Crum Vice-president...... Les Hoyes Secretary-treasurer.... Chorlle Anderson The Montgomery YLS Is heaviJy In volved in an AlternativeSentencing Pro gram. This project recently receivedna /.,oca/afflliate omcers: Les Nayes, Montgomc1'JI: Charlie 1l 11derson.Monlgomery; laura Crum, tional recognitionby placing first in the Montgomer.v:Russell Eason, /lalevuil/c; Johr11/erndon, Birmingham; Duane Wilson, ABA/YLD1989 -90 awards of achieve. 71.,sca/oosa:Frank Polls, Fl01·cncc: Jim Roburls,Mobile; and Judson Walls , Mobile. ment competition.This project Involves 160 I May1 991 THEALABAMA LAWYER pladng people convictedof non-violent crimes in temporaryor permanentjobs as an alternative to jail. Initially. the The Prepnrt!simplt! or eomp/1!-twills ;,, MontgomeryYLS. along with volunteers Alabama minlllt!Swit II AJtpmeys·Computer Net from Montgomery'sretired community. work softl\YJfl'. 17tt!state·Spt!cific sel'\'ed as liaisons~1\\-ttn the employer WillsLib9"4'1 .... programsask multiplt!·choit:t!and fi/l and the program. 1,ater, the Mont in-tllt! -bla11kques1io11s, thl!l1 compose gomery YLSfocused on solicitingaddi tailon,d doc111rre111s.. 1,ich cnn be edit· tionaJ employers to participate in the Expe~stems ed "1th your IBM-compatible ""rd program. To~mble pmct!ssi11gsoftwnre . Userfriendly, no commo11d.rto team. Moblle YLS DocQJJlents nu.~\V lll(jl..lbrory•s whit• \" Briet)'Of pmvision." President...... James V.Roberts, Jr. lncl11d~: Vice-president...... Mark C. Wolfe • Scil:lnncdi~posit lon.sof • Gran1lr1gan J i:.cc:rci,cor • ~1urhalIJl:tlucllun tru~ts Secretary-treasurer.... .Judson W. Wells pcr!lon.11tffcct..; und rc;i lty ~·crs ora,ppo in1111cn1 w11h QTIPprovisio.n.s • Ca,hIJcottut. \ b • Credit equ ...-alr:nq' 1rull\ • Purch1tscof annuities Overthe pastyear, the MobileYLS has • 0.hcnyJ""d dl,po$i1ions . sponsoredor cosponsoredthe following Tbt pro,trD 111s Also prtpart: activities: • Uv,,._ w1lldccWII~ • FamilyUtt afftd2'111i • fuu:cu1lvn dleckli"b I. Anti-drug musages on local radio • ~'t." of .1U('lrt1cy • As$ct $Umm.lJ1CS • Otcnl in&crvi.cwquot1onna,res stations aimed specifically at local TheWill , Ubnuy « onlyonca(~-·ric lil•1,11<>by N:N , onchlci"'Ilnttt vi. .. Trusu; school children; 11... ,.. Condo and Com1 Rtal Eswt SaksContfllCU: om..•ndSt°" Ln.w Riders: S« Lt•"': Umllod Part....i,ips: C-1 MnrtpatS!llttd, orT""': Bu,b1ts1 Saks: Sopara 2. Annualgolf and tennis tournament lion AJt't'r«Mn{j.;Sh•nhokler Agrttmm.ts: and m0tt. and dinner. Only $200 <'ach , \\i th fr ee update, for th ~ first )ear. 3. With the ExecutiveCommittee of LheASB YLS. a party on the USSAlaba C•ll lkrn•« WIiliams•• 800-221-2972. Specify514" o r JW disk. ma ballleship in Mobile during the state 6l While S1.. NewYork , folY IOOIJ bar's annunl meeting; E)(celslor-Legal,Inc :· (800)22 1·2972FAX (212)43 1-5111 4. With the BoySco uts, a LawExp lor ers Posl. conductingnine meetingsdur ing the school year.Thi s programis run by young lllwyersand has approximately 120participants; and 5. Participated In the United Way Campaign,donating S500 in 1990. Don't Risk A Valuation We-St Central YLS Penalty. Introduce President...... Russ Eason Pastpresident ...... Kim Chaney Your Clients to Business The WestCentral YLS, in conjunction with the Cullman County Bar Associa· Valuation Services. tion, sponsoreda seminar on appellate John H. Davis111, PhD, MAI, SRPA, ASA, presidento f Business practice. tn February 1990, Alabama Valuation Servicesln c., is the onlydesignated ASA BusinessVal Su11remeCourt Justice John Patterson uation appraiser in Alabama. BusinessValuation Serv ices provides conducted a seminar on criminal appel consultation by the hour,appraisal repon:s and experttestimony late practice. in casesof: AmySlayden is leading the Huntsville group, !'rank Potts, the Northwest Al D Esrateplanning D Bankruptcyproceedings abama group. and Duane Wilson, the D Esraceserclemenc D Mergersor acquisitions Tuscaloos.igroup . D Marimldis.solutions D Buy-sellagreemenis The localaffiliates are very involvedin D Rccapiralimrions D Dissidents rockholdersuiis their respective communities, and de D EmployeestOCk ownership serverecognition and thanks for their plans time and effort. There are some great things being Conmct John H. Davis ill, PhD, MAI. SRPA, ASA done by Alabamayoung lawyers. I en 4 Onioe Pork Circle • Sui1e 305 • Birmingham, Alabama 35223 courage you to Like the time to get in P.O. Box 530733 • Birmingham. Alabama 35253 volved. Please contact your local leaders. (205) 870-1026 and make a difference! • THE ALABAMALAWYER May 1991/ 161 a,_ '''"'"' BUILDINGALABAMA'S I ' COURTHOUSES CLEBURNE COUNTY COURTHOUSE By SAli1UELA. RUMORE,JR. The following continues a history of Jllabama's county courthouses /heir origins and some of the people who contributed to /heir growth. The Alabama Law1•r plans to run one county's story in each issue of the mag azine. If you haoo any photographs of eorly or present courthouses, please forward them to: Somuel A. Rumore, Jr., Miglionia, & Rumore. 1230 Brown Marx To,uer, Birmingham, Alabama 35203. he area lhal is now Cle burne County came under the control of the United States by the Creek Indian Dcession of 1832. ln December of that year. several counties in Alabamawere created from these lands. Amongthese were present-day Calhoun, Talladega and Randolphcounties. The first settlers soon camefrom Georgiaand the Caroli nas. Land records show settlements as ladega.The act establishingthe county BowlingGreen lo the Battle of franklin. early as 1834.In 1835.five brothers of appointedcommissioners to organizeiL He waskilled in an assault al Franklin, the Edwardsfamily from North Carolina These commissionersset an election in Tennessee,on November30, 1864. His establishedEdwardsvil le. July J867. The communilies of Ed name was suggestedfor the new county In the 1840s.gold was discovered in wardsville,Story and Salem vied to be by Jere Smilh of Oxford,Alabama. the area and the territory surgedwith a come countyseat. Edwardsvillereceived William Edwards, one of the Cive gold rush. Boom townssuch as Arbaca the highest numberof volesand was de brothers who scllled Edwardsville,do cooch ee and Chulafinnee appeared claredthe winner. nated land to the newcounty for the site overnightas prospectorscame to claim CleburneCounty was named for Gen or the courthouse. A public square was their fortunes. However. no sizeable eral Patrick R. Cleburne. Cleburne was laid out. and a log building was con amount of gold was found and soon the born in Ballncog,Ireland, in 1827. the structed.Court was held as earlyas April gold rush in Californialured away Al· son or a doctor. He receiveda good edu 15, 1868. The courthousebuilding con abama's prospectors. Boom towns be calion and. al age 22, entered the tained only one large room. Each comer came ghost towns in what was to be BritishArmy. He sen-eeluntil he was 25. was dividedinto "stalls" for use by the comeCleburne County. He later came to Americaand practiced officials. Following the War Between the law in Helena, Arkansas. This log courthouseser\'ed the county Stales, the Alabamalegislature created With the outbreak of war, Cleburne for approximatelyl J years until a two several new counties. On December6, volunteered as a colonel in the 15th story red brick buildingwas erected. Its J 866, Cleburne County was created ArkansasInfantry. Within two years, he dimensionswere approximately60 feet principally from Calhoun Countywith a rose lo the rank ormajor general. He by 40 feel with a T-shapedha ll on the portion taken from Randolphand Tai· servedwith the ConfederateArmy from first noor, and a larger courtroom and 162 / May 1991 THt: ALABAMALAWYER antechamberson the second Ooor.The miles away. In the general election or Henin began in early 1907. The town bricks for lhis building were made on 1906.Edwardsville ran a slate of county held a great celebration July 4 of that the site. officers pledged to retaining the court year when the cornerstone was laid. IL Around 1883.the Lownof Henin was house. Howe\-er,the candidatesfavoring was reported that some 3.000people at established in Cleburne County. It was Henin aUwon by an averageof 85 votes. tended the ceremony.This e--entmarked named for Or. WilsonL Henin, an early As late as July 1907, a mandamus re the end of the courthouse batlle in Cle settler whose family has been very questinga recount was still pending. burne Countywhich one reporter called prominent in Alabamapolitics o,-er the The battle continued when officialsin ·one of the hardest fought politicalbat years. Dr. Heflin was the father of J. Edwardsville refused to turn over the tles ever waged In any county in the Thomas ("Cotton Tom") Henin, United county records to the officialsin Henin. slate." States Senator from 1920Lo 1 931. Pres A group from Menin.deciding that selr The CleburneCoun ty Courthouse was ent AlabamaSenator HowellT. Heilinis help was the best help, wenl to get the planned In the Neoclassicalstyle of ar the great-nephew of the town's name records themselves. They were able to chitecture by Charles W. Carlton, who sake. carry off about hair of the coun ty also designed the neighboring Clay In 1905.a group of Henincitizens be records.They found the other half were CountyCourthouse. I Lwas completed in gan a movement to remove the court burned. either accidentallyor in spite. 1907 by the ~·.a.Hu ll Construc tion house from F.dwardsville to Mellin.On Edwardsvillenever recoveredfrom the Company.The brick structure is approx March 16 of that year, they presented a election loss. It still exists today but imately 145 feel long. It has a triple petition to Governor WilliamJelks re has only a few hundred residents. The arched entrance supporting Ionic questing an election on the question of courthouse building later was used as columns. The building has a metallic mo\!ing the courthouse lo Heflin. a school until 1961. It then was sold domedbell tO'ol-erwith four clockfaces. GovernorJelks ordered the election.but Lothe Town of Edwards\!illeand served In 1938, two two-story wings were this order precipitateda legalbatlle that as its city hall. In September 1964, added to th~ courthouse. Horace M. went all the way to the Alabama the almost 90-year-old building was Weaverwas the architect, and Ogletree Supreme Courl to decide whether the completely gutted by a fire. The town ConstructionCompany was the builder. election wouldtake place. lost all of Its records and office equip On June 22, 1976,the CleburneCounty The people of Edwardsvilleknew that menL Courthousewas named lo the National their thriving town would wither if it Construction of a new courthouse at Rcsiistero r Historic Places. • was no longer the county seat. They produced a petition which purported Lo wilhdr~wLhe signatures of 170 persons 1r------who had previouslyrequested the gover nor to call a county seat election.Final ly.on NO\.'tmber29 , 1905,in the caseof State ex ,vi. Broll'nv . Porteret al, 40 LANDTECH86 So. 144. 145Ala. 541. the supremecourt ruled that the election could take place. Real Estate Settlemen t System On December11 , 1905.Henin won the Forl.Aser or Matrix Printers election by 88 votes out of about 1,300 casL More litigation ensued but HeOin won on each occasion. • HUD 1 Automatic Calculation s l'or one year (oll owingthe county seat • Checks & Escrow Accounting election, ~:dwardsville rerusedto give up • Word Processor · Spell Check the courthouse Lo Its neighbor eight Policies & Commitments Deeds & Mortgages • Data Base Reporting (SQL) Samuel A. Rumore, Jr. • On Site Training Available SlmAIAAlmlt& . Jt • I graduo!e ol 11,e 1Jn. ~ol~Dame $1,495 .00 ond ... u,..,.,..:y ol ~ - --- - ~ --oil.awHo_ .. b,no,ng AlabamaState Bar's LAND TECH Famly Law Scaoonand CORPORATION (407) 833- 0454 --"'"'""., p,m,ce '"s tm;ng,, nam~ uhthe 1,rmof Mlgl.cnloo& Rllmort , Rumenw asrecen tly elOOted 303 Cuaranty Building • 120South OUveAvenue • West PolmBeach, FL 33401 to 18NOu thobnt commotslonet lcw 1M 1D1h Circun p!aco numl>Orlout THE ALABAMA1..AWYER May 1991/ 163 HONOR ROLL BetweenMorch J and Jlpril BenjaminF . Beckhrun,Ill BruceAllen Burttr.un RonaldAlnn Davidson /5, J99/, /hcfollo1uingat- TravisMassey B•clsolt Jamesl06 164 / May 1991 THE ALABAMALAWYER WalterW. Furner Fndtrick CeorgeI lelrnsing David'lruman Hyde, Jr. MichaelD. Knight AntonHenry Gard<, Jr. Howard Ray Henderson f;cll TIIE ALABAMA LAWYER May 1991/ 165 f'red Jester McCallum, Jr. John TwoheyNatter AnthonyJ . Piazza Jerry DeanRoberson Brian PatrickMcCarthy DonaldL . Newsom RufusDempsey Pitts Charles 8dward Robinson Caine.1C. McCorquodale Morace Earl Nix.Jr . Harry Searing Pond, IV WilliamC. Roedder, Jr. Douglas L. McCoy Joel M. Nomberg Jerri• ClarencePorch RobertMerritt Rogers ThomasGranville Mccroskey RobertMcKim Norris, Jr. John FinleyPorter, Ill John WesleyRomine. Jr . Jerry Arnold McDowell Thomas BerryNorton, Jr. E. MaronaPosey Charles D. Rosser Theron 0. McDowell,Jr . TaborRobert Novak, Jr . DeborahGuthrie Powell Robtrt MudsonRouse EdmundCody McGarity, Jr. RobertW. O'Neill Joseph BenjaminPowell Patricia BoydRumore ValL loyd McGee Caine O'Rear,Ill James R. Prall, !fl SamuelA. Rumore.Jr. WilllamH enry McCowen,Jr. MaryJane Oakley Arlie DalePrice RobertJ ackson Russell.Sr. T.Bruce ~ 1cCowin Jerry BrantleyOglesb)• Joseph VictorPrice , Jr. WilliamJohn Russell. Jr. Lester L. McIntyre Robert AustinSapp MarionAsh ley McKalhan Warren Clea Sarrell.Jr. Robert H. McKenzie Joseph M. Sarto CephasKnox Mclaney, Ill Joseph E.Sawyer , Jr. Philip Ben Mclauchlin, Jr. Vernon Nell Schmitt Davidllruce McLean DeborahClee Sciascia GeorgeD. H. McMillan.Jr. Irene Feagin Scott Henry WardMc.'1illan, Jr. John B. Scott, Jr. Judith LouiseMcMillin Euel 1\ugustus Sere"''· Jr. John Lee McPhearson James Robert Seale Sandra KayMeadows Robert M. Seale AugustineMeaher, 11 1 Jon RodneySedlak DavidH. Megiani$$ GilbertPorterfield Se lf VonGeorge Memory John WilfordSelf Michael V. Mignano,Jr. Thomas Darrington Lynn Christie Miller February : Forming columns for second to third floor Semple, Jr. William HayesMills JacquelynEudell Shai a AnneW. Mitchell Arthur WootenOrr Robtrt FranklinPrince John Waller Sharbrough, Ill Christopher MarloweMitchell CharlesWayne Ow 166/ May 1991 THE ALABAMALAWYER John DavidSnodgrass Wllll~mCecil \l'nlktr LouisChltrles Wright Drake& Pierce John SeymourSomerset HowardP. Walthall James PrnnkWyMt , Jr. England& Bivens Paul L. Spain J;,mesRichard \Vallon Davidll oyceWylie Finkbohner,Lawler & Olen Michael£dw.ird Spar kman Junhong Wang Ntwm:1nManly Yeilding. Jr . Hamilton. Butltr. Riddick. AndraDonell Spilrlu JamosJ. Ward.Jr. Brant AllenYoung Turlton& Sulin"" ThomasWinston Starlin l..a1<1onTuylor Ward, Ill Paul Arthur Young.Jr. Hare & Hare Joseph DavidSteadman WalterGregory Ward ThomasJtffery Young Hartley.lllckman & RUJSell Hem)• B.Steagall, 11 Elias Calvin Watson, Jr. ThomnsN. Younger Holberg& 1lolberg RodericG. Steakley S. A. Watson.Jr. Alex WIiiiamZoghby London,Yancey & Elliott CyrilVaughn Slelzenmuller WllllamWadsworth Watu. Ill Cuy AnthonyZoghby McElyy& Ford WilliamGuy Slevtru James HOUSlonWeaver, Jr. Mcfiddm L)'Otl.Willoughby Carol Har"'-,ck Stewart &Rowe James C. Slivender,Jr, Mill THE ALABAMALAWYER May 19911167 RECENTDECISIONS By JOHNM . MILLING,JR., DAVIDB. BYRNE,JR. and WILBURG. SILBERMAN Five-thousand-dollar justice §1821(a)(l) includes prisoners unless UNITED STATES In re Vivian Berger, 494 U.S. _ they are otherwise excepted in the SUPREME COURT (1990). In ruling on a petition for fees statute. by court-appointed counsel in Sarne v. Parks, the Supreme Court doubled to Federal grand Jury subpoenas Tax prosecution - S5,000 the amount it pays for represen - a broader brush the intent element tation of indigents under the Criminal UnitedStates v. R. En/erprises,I nc., et Cheekv. UnitedSta tes, No. 89-658 59 Justice Act of 1964, 18 U.S.C. al, No. 89-I436, 59 U.S. LW4077 (Jan US LW 4049 (Janua ry 8, 1991). In §3006A(d)(2). uary 22, 1991). The Governmentcan ob Cheek v. United States. the Supreme The petitioner. Berger,sought fees un tain enforcementof a grand jury subpoe Court ruled lhat even though an airline der the Capital Defendant's ~·ee Provi na duces tecum wiU1outhaving to estab pilot filed no tax returns for four years, sion of the Anti-Drug Abuse Amend lish, as it must do for trial subpoenas un he committed no "willful" violation of ments Act of 1988, which allows com der UnitedStates v. Nixon, 418 U.S. 683 the tax laws if he genuinely thought he pensation to counsel in an amount "rea· (1974), that the documents sought will was not liable for income tax on l:tis pi sonably necessary"to insure competent be relevant to the criminal investigation lot's salary.Justice White, writing for the representation. and admissible at trial. In a unanimous Court, held that a good-faith misunder The Judicial Conference of the United opinion authored by Justice O'Connor, standing of the law or a good-faith belief States has recommendedpayment of be the Court said Federal Rule of Criminal that one is not violating the law negates tween S75 and S125 per hour in federal Procedure l 7(c), which allowsa court to willfulness. whether the claimed belief habeas corpus proceedings involving quash a subpoena if compliance would or misunderstanding is objectively rea capital defendants. The Court, however, be "unreasonable or repressive", ade sonable. concluded that a nat payment of $5,000 quately restrains the grand jury's inves Statutory willfulnessprotects the aver would insure competent representation tigative authority. age citizen from prosecution for inno of capital defendants before that Court A federal grand jury in the Eastern cent mistakes made due to the complexi District of Vi.rginia was investigatingin ty of the tax laws. UnitedStates v. Mur Prisoner entitled to terstate transportation of "adult" materi dock. 290 U.S. 389. The requisite intenl witness fees als. The grand jury subpoenaed th ree required for conviction is the voluntary, Demarestv. Manspeaker,No. 89-5916, NewYork companies owned by one man intentional violation of a known legal 59 U.S. LW4047 (January 8, 1991). De· for corporate records and other materi duty. marest was an inmate in a state correc als. The District Court refused to quash Cheek could have broad, long-range tional facilitya t U1e time he testifiedas a the subpoenas on relevancegro unds, but implications. By stressing the prosecu witness in a federal criminal Lrial pur the Fourth Circuit quashed the subpoe tion's burden to prove that the defendant suant to a writ of habeas corpus ad testi nas for records of two of U1ecompanies . had the specific intent to violate the law, ficandum issued by the district court In ln so doing, it applied the Nfron stan the Supreme Court reinforced the fre accordancewith 28 U.S.C.§1825(a) . De dards and found no evidence that either quent claim by white collar defendants marest requestedthe clerk to certifythat of the companieshad ever done business that they had no idea that their conduct he was e.ntiUedlo fees as a witness. His in eastern Virginia. violated any law. By a six-to-twomarg in, request was denied. The court of appeals In laying the groundwork for the the Court agreed ,~ith Cheek, holding affirmed,ho lding that while §182l's lan Court's opinion. Justice O'Connor ob that the jury was instructed improperly guage was unqualified, other evidence served: that the defendant could negate willft~ revealedthat Congressdi d not intend to The Grand Jury occupies a unique ness only if his belief that he had no tax permit prisoners to receive witness fees. role in our criminal justice system. liability was objectivelyreasonable. Jus The Supreme Court reversed the Tenth It is an investigatorybody charged tice White's majority opinion noted that Circuit. with the responsibilityor determin in most circumstances, ignorance of Lhe ChiefJu stice Rehnquistheld §1821 re ing whether or not a crime has been law is no defense. However,he continued quires payment of witness fees to a con committed. Unlikethis Court, its ju that in viewof the complexityof the fed victed state prisoner who testifies at a risdiction is predicated on a specific era I tax system, ''Congress has ... federaltr ial pursuant to a writ of habeas case or controversy;the Crand Jury softened the impa.ct of the common law corpus ad /eslificandum. The statute's can investigate merely on suspicion presumption by making specific intent terms make virtually inescapable the that the law is being violated, even to violate the law an element of certain conclusion that a "witness in attendance just because it wants assurance that federalcrim inal tax offenses." at any Court of the UnitedStates" under it is not United States v. Morton 168 / May1991 THEALA BAMALAWVER Sall Co., 338 U.S. 632, 642-43 could consider that prior inconsistent The court of criminal appealsh eld thal (1950). The function of the Grand testimony as subslantiveevidence upon the HCN lest satisfied the standards for Jury is lo inquire into all informa whichii couldbase a conuidion.As a re the admissibilityor novel scientific evi tion that might possibl~·bear on its sult. the Jury found Hooper guilty on dence set out in Frge u. /JniledSlates, invtstigalion until it has identified both counts. 293 F.1 013 (C.A.D.C. 1923), but that the an offense or has satisfieditself that The court of criminal appeals r~uc Sblte's failure lo lay a predicate shOl•ing none has occurred. As a necessary tanlly reversed Hooper"s convictions that the test's reliabilityor the scientific consequence of ils investiga tory since they wereconstrained to followthe principle.s upon which it is based ren function. the Grand Jury paints with supreme court's earlier cases which held dered the admission of evidence regard a broad brush. A Grand Jury investi that prior inconsistent statements could ing that test error. However,the inter gation is not fully carried out until never be used a.s substantive evidence. mediate appellate court held that the er every available clue has been run Lester u. Jacobs, 212 Ala. 61~. 618. 103 ror did nol require reversal of Malone's down and all witnesses examined in So. 682,686 (1925). conviction because the other evidence every proper way to find if a crime Justice Maddox. writing for the major supporting his conviction was "over has been committed . . . ity, changed the rule. observingtha t: whelming." A Grand Jury subpoena is thus much It Is clear lo us that the modern Justice Almon, writing for the majori different from a subpoena issued in the trend is to allow a prior inconsistent ty. reversed,specifically noting that: context of a prospective criminal trial, statement to be used as substantive This Court hasnot been presented where a specificoffense has been identi evidence, provided, of course. that with sufficient evidence regarding fied and a particular defendant charged. the prior inconsistent statement was the HCN test's reliability or its ac In a portion of her opinion. joined by given under oath. wassubject to the ceptanceby the scientificcommuni only a majorityo! the Justices, O'Connor penalty of perju~·. and was made at ty lo determine if the court of crimi declared that a grand jury subpoena is tTial, hearing, or other proceeding, nal appeals correctly determined enforceableunless •no reasonable possi or in a deposition. This modern that the test meets the Frye stan bility"is found lo exist that the materials trend is in line with Federal Rule of dards. See Sides v. Stale, (Ms. 89· requested would yield something rele· Evidence 801 .•. 1349, Nov. 16. 1990) _ So.2d vanl lo the criminal investigation. She In accord wilh the modem trend, Jus _ (Ala. 1990). acknowledged the "difficu It position" a tice Maddox held: Justice Almon went on to note that grandjury subpoena recipient is in, but We think that It is lime that this the problem created by the improper ad emphasized that such a subpoena is pre Courl changed our rule; therefore, mission of the MCN evidence is due to sumed lo be reasonable. She concluded aner examining the record. consid the scientinc nature of the test and the that the District Court properly ordered ering lhe arguments of the parties, disproportionate impact it might have enforcement of the subpoenas in this and reevaluating the rule against us had on the Jury's decision-making pro case in the face of the recipient's "blan ing prior inconsistent statements as cess.In light of those considerationsand ket denial"of any link to Virginia. substantive evidence, we hereby changethat rule. Wehold that a pri· or inconsistent statement of a wit SUPREME COURT ness who take5 the stand and is Advn11ce to J11ris- n new level of law office OF ALABAMA a,,ailable for cross-examinationmay be used as substanlh•e evidence if nutomnti o11. lhe prior statement was given under The future in law Prior Inc onsi stent statement oath subject lo the penalty of per office automation is rule changed jury al a trial, hearing, or other pro unfolding and Juris Hooper u. Sta/a, 25 ABR71 1 (Decem ceeding, or in a deposition. All previ has emerged as the ber 14, 1990). Hooper was initially con ous decisions of this Court to the .t ,,; · leader ln full-featured victed of two counts of second degree contrary are herebyover ruled. softwa.re for 1 rape of his d.1ughter.On appeal of those 1 I today'$ advanced convictions, the court of criminal ap Fry e sta ndard applied to ad technology sys tems. peals reversed the convictions because mission of HON result s Juriso ffers Timdc«ping and the prosecutor had asked improper ques Malone v. Citg of Silverhill, 25 ABR Billing,M anagement Reporting, tions of character witnesses. The case 331 (N0\1:mber 16, 1990). Malone was Trust Accounting, and more. was retried. and at the retrial, Hooper's convicted of driving under the influence Join us in the pursuit of excel daughter recanted her story. The State of alcohol. His conviction was affirmed lence. Write or call yourJuris questioned the daughter about her pre by the court of criminal appeals. The Authorized Dealer today. vious testimony, and, thus, introduced supreme court issued the writ of certio into evidence all of her prior testimony rari to determine if the admission of evi concerning the alleged sexual abuse. The dence of I torizontal Gil7,eNystagmus test trial court, at the request of the State, results, without a proper predicate, was specifically Instruct ed the jury that it harmless error. Tl IE ALABAMALAWYER May 19911169 the possible adverse effect of the erro the objection. Richards appealed, and the 1990). Elliott was inj ur ed when he neous admission or the HGN test evi supremecourt reversed. slipped and fell In a storage area. He dence could have had on Malone's right The supreme court noted that the ele claimed that the railroad had negligent· to a fair trial , the supreme court re ments o( the privilegeare set in C. Cam· ly failed to provide him a safe place to versedtm court or criminalappeals. bit, McElrog 's Alabama Euidence work by allowinga foreignsubstance on §388.01 (3 ed. 1977).as follows: the noor and by inadequately light · Evld enc-"acts" may be privi • ( I J Where legal advice of any kind is ing the storage area. The railroad raised leged under §12·21· 161 sought (2) from a professionallegal a dvi contributory negligence as a defense la"V Brice Richards, etc. u. Lennox sor in his capacityas such, (3) the com to diminish damages. Elliott requested Industries. Inc., 25( ABR 601 December munications relating to that purpose, (4) a jury charge on assumption of risk. 7, 1990). Richardsnl ed a products liabil made in confidence (5) by the client, (6) but the charge was refused. Neverthe ity action agalnsl Lennox contending he are at his instance permanently protect· less, the court instru cted the jury on was injured In an explosion caused by a ed (7) from disclosure by himselr or by contributory negligence and charged defective valveasse mblyi n a gas furnace. the legal advisor, (8) except the protec the jury that assumpti on of the risk Al trial. Lennox called Robertson, a for· tion may be waived. is not a defense in a PELAcas e. The mer law clerk to Richards' attorney, to The supreme court stated that Robert· railroad objectedto the court's mention teslifythat he saw the valve being tested son's testimony regarding the "acts" he ing assumptionof the risk because it did before it wasremoved from the furnace, performed represented communication not raise the defense of assumption of that he removedthe valveand that it was from lhe Richards (as his clients) to risk. The jury rendered a verdict in El not broken, and that he returned the Robertson( as law clerk of Carmon) and liott"sfa,'Or, and the railroadappealed be ,•alve to Carmon's office. Carmon \\'aS that after careful analysis of DR 4-101, cause the court instructed the jury on Richards' attorney and Robertson was Rules o( Disciplina ry Enforcement assumption of risk. The supreme court employed by Garmon at the time. (1974), and new Canon 4, AlabamaRules affirmed. Richards objected to the testimony,con of ProfessionalConduct, the "acts" v.'ere The court noted that assumption of tendl ng that § 12-21-161. Alo. Code privilegedcommunicatio ns and protect the risk is not a defense in a FELAcase , (1975)rendered him incompetent totes ed by §12-21-161. and that th e United States Supreme tifybeca use his knowledge was a "matter Court has stated that the phrase "as or thing, knowledge of which may have FELA-ssumptlon of risk sumption of risk" is a hazardous legal been acquired rrom lhe client" and was charge harmless error Looith at Is bound to create confusion thereby protected under the attorney Illi nois Central Gulf Roi/rood Compo and, therefore, should be discarded. The client privilege.The trial court overruled nv u. E/11011. 25 ABR 797 (December 21, supreme court, however,n oted that the Family La,v Section, Alabama State Bar Divorce - On the Beach V The Alabama Family Law Section Summer Seminar wilJ be held Satur day, June 8, 1991 al Gulf State Park, Gulf Shores, Alabama. There will be an Early Bird Social Friday, June 7, 1991 at the Park from 6:30 p.m. to7:30 p.m. The meeting will begin on Saturday, June 8, 1991 at 8:30 a.m. and will conclude at 1:00 p.m. Activities are planned for Saturday afternoon and evening for members and their families. Thirty (30) rooms have been reseived for member reseivations. Please make your reservations early. Look forward to seeing you there! 170/ May 1991 THE ALABAMALAWYER majorityof the courts have held that an Tort - fraud , "justifiab le signedwas a provisionthat the customer inslructlon that assumptionof the risk is reliance," replaces acknowledgesthat the seller has not rep not a defenseis harmless error when the "rea sonable reliance " resented that the car has not sustained court correctly instructs the jury on the Horris, etc. 11, M&S Toyota, Inc., 24 damagesprior to its purchase. effect of plaintifrs contributory negli ABR4654 (September 28, 1990). Harris Approximatelyfour months after the gence. In this case, the court correcUy purchased a used Toyota from TO}'Ola purchase, Harris was in an accidentand instructed the jury on contributory neg City. The car had been in a wreck and a shop repairmandiSCO\-tred that the car ligence.and the error was harmless er the driver's door had been damaged, re had been damagedand repairedprior to ror. paired and repainted. Harris testified Harris' purchase, despitewhat the sales that prior to his purchase of the car, a person told him. llarris flied suit for lnsuranc&-no right ToyotaCity salesperson orally told him fraud, and the jury rendered a verdict in of subrogation untll that the c.ir had never been in an acci his favor. Toyota appealed and argued Insured Is made whole dent. llowever, included in the provi that Marris could not reasonablyrely on Powell, e tc. u. Blue Cross-Blue Shield sions of the sales contract that Harris the salesperson's statement in light of of Alabama,25 ABR945 (December28 . 1990). Powell was permanently injured in an automobile accident, and Blue BOOXS BXGftOYIR S, ttsLBOP Cross paid her medical e.,penses of ap proximatelyS27.000 under a group poli Civil AcliiPDI at Lav in AlAbaN, Second Edition $69 . 00 Xllll.JLl~. ,1, ••99• tloc.l.U:des poc~•t p•rta) cy that covered her. Powell sued the drh-tr of the other car and claimed Civil Action, at. Lav in AJ.aboM, t,,o pock•t ,-ne 27,50 206 P•V- • S7 million a.s damages. Powell settled the claim for the $100,000 policy limits Eaultf~1:::aez:1eaand ExtraordinaryWelti 60.00 1 of the other drh•er's liability insur xa• ll-t, SJI P•9•• Cinclv~• pock• t part. • ) ance policy.Blue Cross sought subroga Bauitable Bemedle,and Cxtroordio&rvwrite 30 . 00 tion for the money it paid for medical in AlObOM, 1,,0 poc ket: part• expenses. The trial Judge ruled that 1,1 P•9• • Blue Cross was entitled lo recover the Triol Proctioo and Procedurein Alabomo 65.00 full amounl under the terms of its poli xxKv11, Sl 4 P•9•• cl nc lude• pocket parta) cy even though the court acknow trlol Practise and Procedureln Alabama 25 .0 0 ledged Lhe SI00,000 recovery "does not 1,11 pock•t par~ • , 111 pages make the plaintiff whole". Powell wo,k1r·1 Cemnon,aclonfor on- th~-Job tn1urlte 69 . 00 in Alabau appealed. and the supreme court re u.x, JSO p,aqea versed. The supreme court noted that the law Tho Chott Pf the Chlacra and The Stowaway- A 19.95 Gho•t-Ship Sut.a.rine Story; And Plctu,r,: of Hl4Y&Y of subrogabon. conventionalor legal, is llllnd 1941-43, laoth are l.ntr...igvlpg •Ad 1.nt• rt v 1M, basedupon equitableprinciples. Namely, Tho Sultan· I Cold· ,\ World Vlr 1.1 aui.t.rl.D.e r.av• • 19 . 95 (I) the Insured should not recovertwice ttM •~ltan of arunei • • 901.d; • put l• pllC•ted by for a single injury, and (2) the insurer crev IIUlben a nd lat.e:r l • found by a ai.nd.a9b .. faaily, vbo a• •• h :. t:o fou:od &tJ i.ndu..at:tla.l. empl-r.. should be reimburseJ for payments it made that, in fairness. should be borne Sub PUtY• Kct..od· • lnt:1-t • •tory ot aen1c• ln. 19 . 95 world war t J: coabat •ubmar.i.n••. '!ht.. aay i. tb• by the wrongdoer.Therefore. the insur· be•t 1ubmarlne book of the YAr, er's obligation wos lo make the insured tho Triol1 of Pot, ADIllustrio us Member of 19. 95 whole, but no more than whole. Al tho Crl1aloalnar , ,. • •ri •• ot 1ntri9u 1nv t.rtala ot rat, a colorful lirnlftghan crlninal l•vy•r· Th• r• though the Blue Crossco ntract entitled •~• d•tl9htful oh~~act•ri za t!ona, cour-t.toom dramaa, Blue Cross lo subrogate and recoverthe d•t•il• about n1qht11f•, plua myatery . money it paid, the supreme court de· the P:ott.omStorie,. 21 tnt •r•• tla9 atorl• • about 19.95 dined to enforce the contract and held uu ... ·, duat:y coal ain • cuipa. H.uyu• clu .. LC.a. that BlueCross had no right of subroga. lion unless and until the insured is made ------ORDERPR.OH: whole for her loss. Calculation of the M.anch•ater Presa, P. o . Box 550102 , alrai..ngha.a, AL 35205 loss requires the finder of fact to consid· PROVl DB YOUR: tr all elements of that loss. including. but not limited to, damages to property, ADDR&SS:NAHB•------______--______------____ _ medical expenses, pain and suffering, loss of wages, and disability. Punitive CLTY, S1"AT! , ZIP: ______damagesare not an element of compen· CHeCK ftNCJ.,OSBD: ___ _ _ CREOI'l' CARD I: sation and may not be includedin a cal EXPIRATION DAT.~&-,------culation of the plaintifrs loss. THE ALABAMALAWYER May 1991 / 171 the aforementionedsales contract provi of death rather than the residenceof the straints on a prOSuthat rm very proud to be here this Venue - §6-3- 7 , Ala. Code week. And rm very proud to represent BANKRUPTCY (1975) determine s venue of this case.rm not obligedto try ang case wrongful death actions that I don1 want to try. fin command Ex parte W.S.Newell, Inc. (Re:lewis, ed by the law of Alabamaas a District Exceptions to discharge-proof as administrator. etc. u. 1¥.S.Newe ll, Allomey to prosecute the guifly and Grogan v. Gamer, __ 111 Sup.Ct. Inc.). 24 ABR 4903 (September 28. pro/ed the innocent. 654 (January 15. 199 t ). The United 1990). Mrs.Lewis was killed in an auto· Mr. Hess: Now.If the Court please, I States Supreme Court unanimously mobile accident in TullapoosaCounty. object to that argument. ruled upon the matter of proofnecessary Approximatelyone montll after the acci· Mr. Copeland: That's highly im Loe xcepta debt fromdischarge under the dent, Mr. Lewis,administrator of Mrs. proper ... exceptions listed in §523(al of the Lewis· estate, moved from Tallapoosa Mr. Hess: Due to that deliberate mis· BankruptyCode. There had been differ County lo Macon County. Lewis then conduct,Jud ge, we movefo r a mistrial. ences in the various circu its as to flied a wrongful death action against The Court:Moti on denied. whether the proof was "a preponderance Newell in Macon County stating that On appeal. Quinlivanargued that the of evidence"or "clearan d convincingevi Newellhad negligently constructed the prosecutor's remarkswere so prejudicial dence". The 11th Circuithad adoptedt he highwayand caused the accident.Newell as to deprivehim of a fair trial. The court latter. filed a motion for change of \'enue from of criminalappeals agreed. In the Crogancase the creditor had re MaconCounty to TullapoosaCounty, ar In an excellentopinion. Judge Tuylor covered a fraud judgment in a Kansas guing that in a wrongful death action. surveyed the decisions of the United stale court. Kansas law required only venue should be based on the county of States Supreme Court and the federal "preponderance or evidence". In the lhe residenceof lhe deceased al the time appellate courts which place special re- Bankruptcy and district courts , the 172 I May 1991 THEALABA MA LAWYER debtor took the position thal bankruptcy fraudjudgments to ha\'e a judgment dis §365 of lhe Bankruptcy Code allows a law required clear and convincing evi charged, bul while in other jurisdictions debtor-in-possession to assume a lease dence of Lhe fraud. b ut these courts heJd the fraud judgment could not be dis only if it cures the defaulto r providesad that the judgment was non-discharge. charged. equate assurance that it will do so; i( able, stating lhal lhe stale court judg. there is to be a waiverof a right alJo\,,-ed Retent io n of collateral by menl, based upon "preponderanceof evi by statute it must be unequivocal. The Chapter 7 debtor dence",operated as collateralestoppe l on Court stated lhal the agreement con In re Robert Lesley Hunter. Jr.. et al. the issue. The Eighth Circuit reversed, tained no express waiver and, therefore, 121 8.R. 609, IJankr. (N.D. Ala. 1991). stating thal the creditor must show fraud the landlord retained its administrative The Court held that a Chapter 7 debtor, by clear and convincingevidence . eiq,e.nseclaim for the post·pelition pre not in default wilh a secured loan at On appeal, the Supreme Court held assumption rent. time of filing a petition, was entitled lo that the question of the validity of a retain collateral and continue making Dischargeability of mlllt ary claim is governed by stale law but lhal Installmentpayments un less the creditor retirement benefits to the dischargeabilltystandard is a matter could show lhal it was Lherebypreju ex-spo use of federal law. Judge Stewns, in writing diced. The debtor had purchased a mo In re CharlesSommen•il/e , 122 B.R. the majority opinion, staled that the bile home prior to bankruptcy. In lhe 446 (M.D. Ala. 1990).The husband and smndard of proof for dischargeabilityex bankruptcy petition, the mobile home wifedivor ced in Texasin November 1989. ceptions in l l U.S.C. §523(nlis the ordi· was listed with a mar ket value of The husband nnd present wife filed a nary "preponderance of the evidence" S28,000.The secured lender filed proof Chapter 7 casein lhe MiddleDistrict or standard. In reaching his conclusion, he of claim for ilPllrOximately$69,000. The Alabamaon 1\pril 1990. Tot TexasW\'Orce said that a final consideration was thal debtor did not reaffirm. decree providedthat lhe husband would lhe preponderancestandard will permil The lender Oled a Motion for Relief pay 40 percent of military retirement exception from discharge of all fraud from Stay on the ground that it was not benefits to his ex-spouse. In the hus claims which creditors had successfully adequatelyprotected and that there was band's Chapter 7, he contended that this reducedto judgment; tbal it wouldbe in· no equity in the property. The debtor obligation dischargeableas not consistent with Congressionalintent to was meet· subsequentlyobtained discharge of per· Ing requirements of TiUe11 , §523(a)(5), construe the exceptions to allow some sonal liabilityinc luding the obligation lo since it was nol alimonyor support bul debtors in some juris dictions facing the secured lender on the mobile home. In the nature of a property settlement. On a motion by lhe lender to require The Bankruptcy judge. in relying on ------~ John M, the debtor to redeem or surrender, the Fifth and Eighth Circuit cases, held lhal 111111"11, J r. Court stated that Bankruptcy Code the facts gi,-erise to a trust relationship; JoM ~ M ltfflg, Jr, IS• member of 1h1 h,m ot §521(2)(A) allowed the deblor four op· the ex-husband receives the monthly HIii. Hill, Carie,, Ftanco. lions, namely (I) retain the collateral as pension chec ks as a construc tive Ccl• ~ Black in l ong as it is not in default: (2) surrender; lrusteee bolh as a pre· and postbank Mon--,Holsa gr-.., Sc,r.ng... (3) redeem under §722; and (4) reaffir ruptcy petition obligation to pay such ~-lllOU.- · mation. The Court, admilting that there benefits to the ex-wife.The Court held s,iy al Alllboma School is a split in case law on the issue, held the trust obligations to be dischargeable o1La w M1!hnO~ s lha clvil poruonol lt\e that the better view is that the debtor under I I U.S.C.§523(a)(4) an d that the dec:JSlont may retain lhe collateral as Jong as it government should resume the pay continues payments;the high rate of de ments lo lhe ex-wifeaccord ing to the di· Dav id 8 . preciationin the particular type item is a \'Orce decree. Byrne , Jr. risk assumed by creditors dealing in David a eyr.-., Jr, ,s a Right to trial by jury graduolo ol the Unlver· items of this type. aity of Alt11:IOlna, wtiere In bankruptcy "8 tllOl!.YOdboCI'\ his ~ Business rentals as The United States Supreme Court in clergt~ and lirN administrative expense langenkamp 11. CA. Culp,2 3 C.B.C.2d degr1IIII He •• n,em. l,gon's Casuals Company, Inc., 20 973. 111 Sup.Ct.330, (1990). laid to rest berhrm .,of lllORob.t0 - n &Be lser B.C.D.303 (S.D.Ala. 1991). In a Chapter lhe question of whether a creditor who and co!lflrt !tie erlmlnal I l case, u,e landlord agreed with the has filed a proof of claim is entitled to a po11lonof lllO -· debtor not to object to debtor's assump jury trial should any subsequent action Wilbur 0 . tion of the lease if debtor would keep fu. arise concerning said party. The Silberman lure rent current. The Court approved Supreme Court held lhal once a proofof W~borO $J1*man , al the lease assumption based upon the claim is filed. the creditor hns subjected the e.i m1noi,amfirm of Gordon, Slloe,mon. agreement. l.ater, the lessor moved for itself to the equitabl e power of the Wigg,,,. & 0, 11<1$. payment of pre.assumption rent as an Bankruptcy Court and, therefore, if a administrat ive expense, to which the trustee or debtor-in -possession later -'Y ...... ---:yolf.lobaml debtor objected, stating that lhe landlord brings a voidabletransfer action against ande 11neo "ii taw had waivediL~ right to lhe default being such creditor. there is no entillemenl lo degreot romlh e Umve1- cured. The 13.mkruptcyjud ge ruled thal a Jury trial • sll)"I Sclloo1al Law THEAu\BAMA LAWYER May 1991/ 173 CLASSIFIED NOTICES RATES: Members: 2 lree llst!ngi per bar memberpe, calendaryear EXCEPTtor "~on wanted'"or "pOsitionotte red" tis1ings-$35 pe,i-insenlonol 50 wordso r less, S.50 per addltional wotd; Nonmembers: $35 per insenlonOI 50 wOtdsor lie$&, $.50 per add,lional word. Classlrled copy and paymentmust be receivedaccording 1 0 I.hefoflo wlng publishingschodu!o : July ·91 IQut - May 31 deadlll'lt: September '91 lssue - deadlineJuly 31: November '91 Issue - deadlne Sep1ember30. No deadlineexi.ensions w!llbe made. Senddasstfied copy and payment payablo 10 TheAlabama Lawyer. 10 : AlabamaLowyer Cla$$1fied$. c/o Margaret Murphy. P.O. Box 4, 56. Montgomery.Alabama 36101 FOR SALE Position Offered: Attorney jobs , na David Godofsky , C&B Consulting tional or federal legal employment report Group, a Corroon & Black compa, Highly regarded monthly detailed l1s1ing ny, 1927 1st Avenue, North , Birm• For Sale: Save 50 percent on your law of hundreds of allorney and law-related Ingham , Alabama 35203. Phone books . Call National Law Resou rce , jobs with the U.S. Government and olher (205) 323 •7000. America's largest law book dealer. Huge public/private employers in Washington, inventories, Low pnces. Excellent quality D.C .. throughout the U.S. and abroad Your sallsfactlon absolutely guaranteed Service : Wronglul death, personal in $32-3 months . $55-6 months . All new Also , call America 's largest law book jury. Expert actuaries will 1estlfyto value dealer when you want to sell your un Jobs each Issue. Published since 1979. of lost luture earnings in wrongful death needed books. Call for your free , no Federal Reports , 101 o Vermont and personal Injury cases. Fellows ol So obll gati on quotes , 1-800-279- Avenue , N.W., 1408-AB, Washing ciety of Actuaries Expenenced In court 7799. National Law Resource. ton , DC 20005 . Phone (202) 393 · Can assist in design of sll\Jc1Uredseltle 3311 . Visa/MC. ment. Call David Godofsky, C&B For Sale: 1990 set of Alabam11 Cod11- Consulting Group, a Corroon & $550 Contact Scott Ford , 3017•1 SERVICES Black company, 1927 1st Avenue , Highland Avenue, South , Birming North , Birmingham , Alabama ham, Alabama 35205, or phone 35203. Phone (205) 323-7000. (205) 251-8566. Service: Pharmacy consultanl available lo provide assistance In pharmacy relal· Service: Traffic engineer. consultant/ex For Sala: Model Rules of Prolessional ed matlers. Consultant has law degree pert witness. Gradua1e, registered, pro Conducr. personal copies now available and graduate training In pharmacy, phar· fessional engineer. Forty years' experi lor $5 (Includes postage). Mall check macy license and Is member ol Alabama ence Highway and city des,gn. 1ralfic to P.O. Box 671, Montgomery , Al· Stale Bar Contact Vance L. Alexan control devices, city zoning Write or call abama 36101. Pre-payment re• der at P.O. Box 59276, Birming quired. for resume. lees. Jack w. Chambliss , ham, Alabama 35259, or phone 421 Bellehurst Drive , Montgom • (205) 991-7291. No representation is e,y, Alabama 36109. Phone (205) POSITIONS OFFERED made about /he quality of th11legal s11r 272-2353. vices to be performed or /he expertise of Position Offered: Birminghamcompa , the lawyer performing such services Service: Legal research help. Experi, ny wishes to retain an on-site attorney. enced attorney, membe r of Alabama Compensation will include monthly re Service: Medical malpractice and per State Bar since 1977. Access to stale law tainer and contingency of lees from law sonal injury, record review and invesli library . WESTLAW avai lable. Prompt sui1s. Office space and personnel provid gation . Peggy Smith Anderson, deadline searches . We do UCC· 1 ed. Excellenl opportunity for recent law Health Care Consultants , can pro searches . $35/hour. Sarah Kathryn school graduate or attorney wishing to vide a detailed repon on the slrengths Farnell, 112 Moore Building, expand existing pract ice . Call Bob and weaknesses ot your medical record. Montgomery , Alabama 36104. Morgan at (205) 322-4110. Medical research outlining 1he standard Phone (205) 277-7937. No represen ol care and assislance in obtaining ap tation is made 11boul1/le quality of the le· Position Offered: Non-practicing at· propriale medical experts is included as gal services to be perlormed or 1h11ex torney and ex -Algebra teacher have pan of the work produci. Twenty years' pert ise of 1he lawyer performing such Jound proven way to build a passive, slx experience In the health care industry. ligure annual income without a boss, em· seNlces. Respond to 15 Spinnaker Lane, ployees or debt. Seeking three burned New Orleans , Louisiana 70124. ou1 or bored attorneys to diversify Into Service: Examination of questioned Phone (504) 288-5760. our business. Send resume to The documents. Handwriting, typewriting and Paradigm Group, 9390 Research related examinations . Internationally Boulevard, Suite 400, Austin , Service: Divorce cases, pension ex cour1-qualofiedexpert w11ness. Diplomate, Texas 78759. No representat ion is pert. Pension acluary wlil determine pres American Board of Forensic Document made about the quality of the legal ser ent value of accrued pension rights . Examiners. Member: American Socie!y ol vices 10 be performed or the expert ise of Standard fee for written valuation . In Questioned Document Examlnets, the In the lawyer performing such services cour t testimony Jor hourly lee . Call ternational Association Jor Identification, 174 / May 1991 THE ALABAMALAWYER the British ForensicSC1e11C8 Society and The Sports Lawyers Association Is attempting to further attorneys ' and the National Association of Criminal De the public's awareness ol the organization and its mission through educa fense LaWyers. Retired Chief Document tion . The Association, founded in is a non-profit. internationa l pro Examiner, USA Cl Laboratories. Hane 1976. Mayer Qld lo n, 218 Merrymont fessional organization of lawyers . It welcomes the participat ion of all Dri ve , Augu eta, Georg ie 30907 . members of the legal and educational commun ities whose common goal Phone (404) 86C>-4267, is the understanding , advancement and ethical practice of sports law. Service : Medical/dental mafpraclice The Association Is headquartered In Racine, Wisconsin . II is directed expens. OUr expens successfully testify tn Alabama G1a11sprev,ew of you, medi by President John Wendel. a member of The Florida Bar, practicing in cal records . Affidavits super-rushed . Lakeland, Florida. Healthcare Auditor •, In c., P.O. Box 2207 , St. Peteraburg , Florida For more lnformallon about its mission, seminars, newsletter or mem 33742. Phone (813) 579-8054. bership requirements. call (414) 632-4040 or write 2017 Lathrop Avenue , Racine, Wisconsin S340S. Service : Cerlilled forensic document D> THEALABAMA LAWYER May 1991/ 175 Governor Proclaims Law Day U.S.A. • STATE OF ALABAMA ID PROCLAMATION Alabama BY THE GOVERNOR GovernorGuy Hunt WHEREAS. May 1st is Law Day U.S.A. in the United States of proclaimedMay l, America: and l991,as Law Day WHEREAS, the Un iled States ha s been the citad e l of individua l U.SA. in Alabama. l.iberty and a beacon of hope and opportuni ty for more than 200 years Theproclamation to many millions who ha ve sought our shores: and draftingand signing WHEREAS , the foundation of individua.l freedom and libert ·y is was coordinatedby the body of the law that gove rns us: and members of the WHEREAS. the Constitution of the Un ited Sta tes and the Bil l of Rights are the heart of that body of law. which guarantee s us many AlabamaState Bar's freedoms - inc luding freedom of religiou s belief, freedom to have and Law Day Committee hold property inviolate. freedom of assembly. Freedom of speec h, as a part of the com freedom of press, freedom of petition and due process of tJ1e law among others: and mittee'scontinuing WHEREAS, this year mark s the 34th annua l nationwid e activitiesto promote observance of Law Day, and the Congress of the United States and the public'sapprecia the Presiden t by off ic ial proc lamat ion hav e se t aside May I as a tion of this day of special day for recognition of the place of law in American life: nationalrecognition. NOW, TH"EREFORE, I. Guy Hun t, Governor of the State of A labama , do hereby proclaim May 1, 1991 as LAW DAY U.S.A . in Alabama and call upon all citizens, schoo ls. businesses, club s and the news me GIVEN UNDER MY HAND. and the Grea t Seal of the Governor 's Office at the State Capito l in the City of Montgomery on this the 28th day of March. 1991. 176/ May 1991 THE ALABAMALAWYER REGISTER· TODAY! ALABAMA STATE BAR 1991 IS DIFFERENT! ANNUAL~TING IT'S THE BEACH! • Group Breakfasts JULY 1 8- 21 , 1991 • Alumni Luncheons • AlabamaLaw Institute • Sand, Sun & Saltwater • Fishing, Golf & Tennis and more ! Learn tactics for using technology to increasethe productivity and efficiencyfor your practice. Discover how lawyersemploy the latest document assembly, database spread sheet and substantive applicationsin their work. Learn the latest in technologysystems and how to decide what is right for you. GOLF TOURNAMENT Friday, July 19, 1991 I Perdido Golf Club •••••••••• • Pield limited to 72 players • Based on handicaps •••••••••• • Men play from men's tees; ladies play from ladies' tees. •••••••••• • Teams established by committee • Each player drives; players select best drive and so on until ball is holed out. ALABAMA STATE BAR EXPO ----- INTIIB ----- Thursday, Friday, & Saturd ay Hilton Exhibition Hall LAWPRACTICE REF RESHMENTS • PRIZES For more informa tion and registrati on forms PERDIDOBEAC H HILTON see pages 146-149 in this issue of ORANGEBEAC H The AlabamaLawyer. Hon, Fr•ri: fl, John