ALSO INSIDE: Annual Meeting • New Lawyers Admitted to the Bar Diversity Award and Spotlight Award Recipients Announced

Volume 90 — No. 8 — October 2019

Appellate LAW

contents October 2019 • Vol. 90 • No. 8

THEME: Appellate Law Editor: Luke Adams FEATURES PLUS 6 Interlocutory Appeals in Oklahoma: 44 Annual Meeting What, When and How 65 OBA Diversity Awards By Chase McBride By Telana McCullough 12 Reconsider Your Motion to Reconsider: 69 New Lawyers Admitted to the Bar How Post-Trial Motions Affect Your 72 Lambird Spotlight Award Winners Civil Appeal By Bevan Graybill Stockdell and 75 2020 Committee Sign-up kimberly Withiam Carlson 18 Appealable Orders: Asking the Key Questions By Ann Hadrava 24 Proper Practice on Certiorari: Avoiding Common Pitfalls and Crafting Better Arguments By Kyle Rogers and John Holden 30 Practical Tips for Civil Appellate Brief Writing in Oklahoma State Court By Susan Beaty and Kellie Laughlin 36 Building a Better Brief: Using Each Section of Your Appellate Brief to Make Your Case By Jennifer M. Warren 40 Trials and Tribulations From the Appellate Vantage Point PAGE 44 – Annual Meeting By Judge Jane P. Wiseman DEPARTMENTS 4 From the President 76 From the Executive Director 78 Law Practice Tips 82 Ethics & Professional Responsibility 84 Board of Governors Actions 90 Oklahoma Bar Foundation News 92 Young Lawyers Division 94 For Your Information 95 Bench and Bar Briefs 96 In Memoriam 98 Editorial Calendar 99 What’s Online 104 The Back Page PAGE 72 – Spotlight Award Winners From The President Changes to MCLE Hours Proposed By Charles W. Chesnut

LEARNED IN BIOLOGY CLASS that living things legal education programming. A member Iadapt and evolve, or they cease to exist. The same can be survey has revealed that members con- said for businesses and organizations, and even for systems sider CLE as the most important service within organizations. One of those systems that has been the OBA provides. It is vitally import- adapting and evolving over the years within the Oklahoma ant the OBA continues to make quality, Bar Association is continuing legal education (CLE). affordable programming available to its A primary respon- members. Since 1986, sibility of any unified the OBA has been (mandatory) bar asso- the market leader in ciation is to assist the After a thorough analysis of CLE in CLE in Oklahoma. Supreme Court in the While still the mar- regulation of the legal Oklahoma, a task force is making ket leader, its market profession. Another is share decreases each to serve its members recommendations for changes, year. There are over and the profession as 1,000 CLE providers a whole. which are reflected in a resolution available to OBA In Oklahoma, a members. A good portion of the OBA’s to be considered at the upcoming number of those pro- assigned task to aid vide credit hours at the court is fulfilled House of Delegates. no charge or provide through the Mandatory programming that is Continuing Legal Education (MCLE) Commission, chaired much less expensive than the OBA. The by Mike Mordy of Ardmore. The MCLE administrator budget reveals that revenue from CLE, is Beverly Petry Lewis, who has been although still one of the OBA’s primary the supervisor of MCLE for more revenue sources, has decreased each than 30 years and does a superb job. year since 2015. It has decreased mark- MCLE Commission rules currently edly since 2005. require that each OBA attorney who It was because of these and other is actively practicing law must obtain factors that I felt it was important to 12 hours of CLE each year with one undertake a thorough analysis of CLE in of those hours consisting of ethics. Oklahoma. As a result, the Continuing The theory is that CLE leads to Legal Education Task Force was created more knowledgeable, competent and to examine all aspects of CLE program- effective lawyers, which improves ming including types of programming, legal professional standards and delivery methods and value to members. leads to increased public confidence The real issue was whether the OBA in the legal profession. needs to be in the CLE business, and if President Chesnut practices in Miami. One of the ways the OBA serves so, how should it best be structured to [email protected] 918-542-1845 its members is by providing quality produce maximum effectiveness. (continued on page 81)

4 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2019 Oklahoma Bar Association. Statements or opinions expressed herein are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Volume 90 — No. 8 — October 2019 Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. JOURNAL STAFF BOARD OF EDITORS Advertisers are solely responsible for the JOHN MORRIS WILLIAMS MELISSA DELACERDA, Stillwater, Chair content of their ads, and the OBA reserves Editor-in-Chief the right to edit or reject any advertising copy [email protected] LUKE ADAMS, Clinton for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected CAROL A. MANNING, Editor AARON BUNDY, Tulsa by the Board of Editors. Information about [email protected] submissions can be found at www.okbar.org. CASSANDRA L. COATS, Vinita MACKENZIE SCHEER Advertising Manager PATRICIA A. FLANAGAN, Yukon BAR CENTER STAFF [email protected] John Morris Williams, Executive Director; AMANDA GRANT, Spiro Gina L. Hendryx, General Counsel; Richard LAURA STONE Stevens, Ethics Counsel; Jim Calloway, Director Communications Specialist VIRGINIA D. HENSON, Norman of Management Assistance Program; Craig D. [email protected] Combs, Director of Administration; Susan C. SCOTT JONES, Oklahoma City LAURA WOLF Damron, Director of Educational Programs; Communications Specialist SHANNON L. PRESCOTT, Okmulgee Beverly Petry Lewis, Administrator MCLE [email protected] Commission; Carol A. Manning, Director LESLIE TAYLOR, Ada of Communications; Robbin Watson, Director of Information Technology; Loraine Dillinder Farabow, Peter Haddock, Tracy Pierce Nester, Katherine Ogden, Steve Sullins, Assistant General Counsels OFFICERS &

Les Arnold, Julie A. Bays, Gary Berger, BOARD OF GOVERNORS Debbie Brink, Melody Claridge, Cheryl CHARLES W. CHESNUT, President, Miami; Corey, Nickie Day, Ben Douglas, Dieadra Florence, Johnny Marie Floyd, Matt Gayle, LANE R. NEAL, Vice President, Oklahoma City; SUSAN B. SHIELDS, Suzi Hendrix, Debra Jenkins, Rhonda President-Elect, Oklahoma City; KIMBERLY HAYS, Immediate Past Langley, Jamie Lane, Durrel Lattimore, President, Tulsa; MATTHEW C. BEESE, Muskogee; TIM E. DECLERCK, Renee Montgomery, Whitney Mosby, Enid; MARK E. FIELDS, McAlester; BRIAN T. HERMANSON, Tracy Sanders, Mackenzie Scheer, Mark Ponca City; JAMES R. HICKS, Tulsa; ANDREW E. HUTTER, Schneidewent, Laura Stone, Krystal Willis, Norman; DAVID T. MCKENZIE, Oklahoma City; BRIAN K. MORTON, Laura Willis, Laura Wolf & Roberta Yarbrough Oklahoma City; JIMMY D. OLIVER, Stillwater; MILES T. PRINGLE, Oklahoma City; BRYON J. WILL, Yukon; D. KENYON WILLIAMS JR., Oklahoma Bar Association 405-416-7000 Toll Free 800-522-8065 Tulsa; BRANDI NOWAKOWSKI, Shawnee, Chairperson, OBA FAX 405-416-7001 Young Lawyers Division Continuing Legal Education 405-416-7029 Ethics Counsel 405-416-7055 The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, General Counsel 405-416-7007 except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln Lawyers Helping Lawyers 800-364-7886 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid Mgmt. Assistance Program 405-416-7008 at Oklahoma City, Okla. and at additional mailing offices. Mandatory CLE 405-416-7009 Board of Bar Examiners 405-416-7075 Subscriptions $60 per year that includes the Oklahoma Bar Journal Oklahoma Bar Foundation 405-416-7070 Court Issue supplement delivered electronically semimonthly. Law students registered with the OBA and senior members may subscribe for $30; all active members included in dues. Single copies: $3

Postmaster Send address changes to the Oklahoma Bar Association, www.okbar.org P.O. Box 53036, Oklahoma City, OK 73152-3036.

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 5

Appellate Law Interlocutory Appeals in Oklahoma: What, When and How By Chase McBride

N INTERLOCUTORY ORDER IS AN ORDER WHICH IS NOT ‘FINAL,’ does not “A culminate in a judgment [and] leaves the parties before the tribunal to try the issues on the merits...”1 An interlocutory appeal is an “appeal of an order in a case that has not reached its conclusion in the trial court.”2

In order for an interlocutory „„ Orders granting a new trial or „„ An order certifying or refus- order to qualify for an interlocu- vacating a judgment on any ing to certify an action to be tory appeal, it must either “(a) fall ground,4 maintained as a class action, within a class of interlocutory „„ An order granting or refus- „„ Orders found in section 721 of orders appealable by right or (b) be ing the discharge, vacation or the probate code (not includ- certified by the trial court for modification of an attachment, ing final accounting or distri- immediate (prejudgment) review „„ An order granting or denying bution orders)7 and because it affects a substantial part a temporary injunction (except „„ Orders made under 12 O.S. of the merits of the controversy.”3 where the injunction was §1879 involving Uniform The first type of interlocutory orders granted via an ex parte hear- Arbitration Act.8 are specifically listed in the statutes. ing) or an order that grants or The second are up to the discretion refuses to discharge, vacate, Commencement of Interlocutory of the trial judge to certify but often modify or refuses to discharge Appeals Qualified by Statutory Right involve issues of law that may need a temporary injunction,5 A party must commence the to be resolved prior to the court „„ An order granting or refusing interlocutory appeal by filing a determining the outcome of the to discharge, vacate or modify petition in error (along with 14 copies), case. Note: the deadlines of the two a provisional remedy which an entry of appearance and pay- types of appeals are different. affects the substantial rights ing the filing fee to the clerk of of a party,6 the Supreme Court within 30 days TYPE I – ORDERS „„ An order granting or refusing of the interlocutory order being QUALIFYING FOR AN the appointment of a receiver filed in the trial court.9 INTERLOCUTORY APPEAL (except where the receiver The petitioner shall use Supreme AS A STATUTORY RIGHT was appointed at an ex parte Court Form No. 5, Petition in Error.10 A party has a statutory right to hearing), If a cross or counter appeal is filed, appeal the following district court „„ An order directing, refus- claimant shall also use Form No. 5.11 interlocutory orders pursuant to ing, vacating or refusing to Using the Supreme Court Form Oklahoma Supreme Court Rule vacate the payment of money No. 6, Response to Petition in 1.60 and 12 O.S. §993: during litigation (except where Error, the appellee shall file their granted at an ex parte hearing), response and entry of appearance

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 7 within 10 days of the appellant’s Court will not review the issue [The Supreme Court’s] power to petition in error.12 of the interlocutory order as “the review certified orders clearly The record shall be designated order [goes] beyond appellate is confined to those which and prepared in the same manner cognizance.”20 Furthermore, it is deal with prejudgment issues as an appeal from a final order unlikely that an issue that could on the merits of a controversy. located in Supreme Court Rules have been appealed via an interloc- Certification and review 1.28-1.34.13 If transcripts are ordered, utory appeal will be reviewed until of an interlocutory order is the notice of completion of record a final judgment is entered by using impermissible when … a dispo- shall be filed within 60 days of the a collateral attack method such as a sition on the merits had already filing of the interlocutory order.14 writ, therefore failing to make the been effected.26 The appellant’s brief in chief timely appeal may delay in getting shall be filed within 30 days from an appeal ruling on the issue if one Even if a district court certifies the date of the notice of comple- chooses to further into the litiga- an order for interlocutory appeal, tion of record being filed with tion.21 There is no authority “permit- the Supreme Court may still the clerk of the Supreme Court.15 ting a party to delay timely review refuse to hear the appeal.27 “If the The appellee’s brief in chief shall of an appealable interlocutory deci- Supreme Court assumes jurisdic- be filed within 20 days after the sion until a time determined more tion of the appeal, it shall indicate appellant’s brief.16 advantageous to its interest.”22 in its order whether the action in In cases involving the trial the trial court shall be stayed or court’s refusal to vacate the TYPE II – ORDERS CERTIFIED shall continue.”28 appointment of a receiver, the BY THE DISTRICT COURT FOR The Supreme Court may also appealing party shall post in the INTERLOCUTORY APPEAL recast the interlocutory appeal in trial court an appeal bond in an Any interlocutory order not order to review it if an interloc- amount fixed by the trial court appealable by right under the utory appeal is filed improperly. within 10 days from the date of statutes that affects a substantial The court recently recast a certified the order being reviewed.17 part of the merits of the case may interlocutory order to a petition to All Supreme Court Rules found be appealed when the trial judge assume original jurisdiction in an in Rules 1.1 through 1.39 also certifies that an immediate appeal appeal dealing with subject matter apply to interlocutory appeals from the judge’s order may materi- jurisdiction of a district court in allowed by statutory right when ally advance the ultimate termina- order to issue a ruling.29 The court they are consistent with the rules tion of the litigation.23 “The order recast the petition because it deter- discussed above inclusively.18 must affect a substantial part of mined that issues of subject matter the merits of controversy and be jurisdiction do not typically involve When to File Interlocutory Appeals certified by the trial judge that an merits of the controversy.30 Qualified by Statutory Right immediate appeal may materially A party does not waive their advance the ultimate termination COMMENCEMENT OF right to have appellate review of of the litigation.”24 The Supreme CERTIFIED INTERLOCUTORY a final judgment by not filing an Court has “said the term ‘merits’ ORDERS interlocutory appeal at the time includes the real or substantial When a party has an inter- the interlocutory order is entered. grounds of an action or defense, locutory order they believe may An aggrieved party may secure and excludes matters of prac- qualify for a certified interlocutory review of every preserved prejudi- tice, procedure, and evidence.”25 appeal, the party should request cial error committed at nisi prius in Additionally: the district judge to include in their the course of proceedings which written order proper language precede an appealable decision.19 A proceeding to review a that the court certifies that the However, if it is an issue that certified interlocutory order interlocutory order affects a sub- your client wants to attempt to must comply with the terms stantial part of the merits of con- ensure to get an appellate ruling of 12 O.S. 1981 §952(b)(3) and troversy and that the court certifies to help address future cases, it Rules 1.50-1.56. The provisions the interlocutory appeal. Some is smart to file the interlocutory of §952(b)(3) plainly require that cases the request is made orally appeal at the first opportunity. an interlocutory order to be cer- and written into the proposed If the interlocutory order is sub- tified for [the Supreme Court’s] order, others it is made through sumed by another order or the review affect a substantial part a filed Application to Certify for case is dismissed, the Supreme of the merits of the controversy. Immediate Interlocutory Appeal.31

8 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL For certified interlocutory orders to be appealed, a petition for certiorari must be filed within 30 days of the date the certification is filed in the trial court wherein the trial court certifies in writing that an immediate review may materially advance the ultimate termination of the litigation.

An uncertified interlocutory order as commenced when the petition of the record and a statement of the is not an appealable order, unless it is filed and costs are paid.37 Upon reasons why the order should be is statutory right.32 the commencement, both the peti- reviewed in advance of final judg- Example model language to tioner and respondent shall file ment signed by the trial court shall include in a certified interlocutory entry of appearances.38 be attached to the petition.45 order is: “The court finds that this Pursuant to Rule 1.301, the Respondent shall have 15 days order affects a substantial part petitioner must use the Oklahoma after the filing of a petition for of the merits of this controversy Supreme Court Form No. 7, Petition certiorari to file a response.46 The because (fill in the blank with the for Certiorari to Review Certified respondent shall use Oklahoma issue of specific case). Therefore, an Interlocutory Order.39 Filing a Supreme Court Form No. 8, immediate appeal from this order petition in error instead of a peti- Response to Petition for Certiorari will materially advance the ulti- tion for certiorari to review certified to Review Certified Interlocutory mate termination of the litigation. It interlocutory order has resulted in Order.47 Like the petition, the orig- is therefore ordered that pursuant dismissal of an appeal and later pre- inal and 14 copies of the response to 12 O.S. 952(b)(3), this order is cer- vented a review of the same issue to the petition shall be filed.48 tified for an immediate appeal.”33 after final judgment.40 “Because [the The record shall be prepared For certified interlocutory appellant] elected to seek appellate in the same manner as that pre- orders to be appealed, a petition review of the trial court’s [interloc- scribed for perfecting an appeal for certiorari must be filed within utory] order through the certified from a final judgment or final 30 days of the date the certification interlocutory order procedure, he order of the district court, except is filed in the trial court wherein is bound by that choice and the that petitioner for certiorari shall the trial court certifies in writing consequences of failing to properly file and serve petitioner’s designa- that an immediate review may pursue such relief.”41 tion of instruments to be included materially advance the ultimate The petition for certiorari shall or portions of the evidence to be termination of the litigation.34 This refer to the party seeking review transcribed, within 10 days after time limit cannot be extended as “petitioner” and to the other this court grants certiorari.49 The and an opportunity to properly parties as “respondents.”42 The record shall be ready within 30 days appeal an interlocutory order may caption of the petition for certiorari from the certiorari is granted be lost.35 The filing of a motion shall correspond with the sequence unless good cause is shown.50 for new trial, reconsideration, in which the designation of the Petitioner shall file a brief in re-examination, rehearing or to parties appeared in the trial court chief within 20 days of the notice vacate the interlocutory order case.43 The original and 14 copies of of completion of record being shall not extend the 30 days.36 The the petition shall be filed.44 A con- filed.51 The respondent’s answer proceeding for review is regarded cise statement of the pertinent parts brief is due within 10 days of the

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 9 52 filing of the petitioner’s. The peti- the appeal even after a party tried 12. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.63(b). tioner may file a reply brief within to fix the issue through an order 13. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.64. 14. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.64. 53 five days of the answer brief. nunc pro tunc and asked the court 15. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.65. to recast the appeal.59 16. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.65. 17. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.66. EXAMPLES IN CASES 18. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.67. Orders overruling a motion for CONCLUSION 19. Berryhill v. Rhodes (In re Berry), 2014 OK 56, P40 at ¶40. summary judgment do not qualify Interlocutory appeals are a 20. City of Tulsa v. Raintree Estates I, Inc., for an interlocutory appeal even if method to get an opinion from 2007 OK CIV APP 41 at ¶6. 54 21. Halliburton v. Williams, 1933 OK 637 at the judge certifies it. Furthermore, the appellate court before having ¶10 – A “writ will not be issued on account of summary judgment of less than to wait until the completion of the the inconvenience, expense, or delay of other remedies, but will be granted where the remedy all the issues in a cause is beyond case. Recognizing when it is an available is insufficient to prevent immediate injury the reach of review unless it falls option and knowing the proper or hardship to the party complaining, particularly in criminal cases.” into a class of interlocutory orders procedure to file each type is key 22. City of Tulsa v. Raintree Estates I, Inc., that are appealable by right or is to adding it to your arsenal of 2007 OK CIV APP 41 at ¶6. 23. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.50, certified for an appeal in advance litigation strategies. see also 12 O.S. §952(b)(3). of final judgment.55 24. Lay v. Ellis, 2018 OK 83 at ¶22. 25. Sommer v. Sommer, 1997 OK 123 at ¶6. Courts have discretion over 26. Pierson v. Canupp, 1988 OK 47 at ¶11. many issues at the district court ABOUT THE AUTHOR 27. 12 O.S. §952(b)(3). 28. 12 O.S. §952(b)(3). level. Disagreeing with a court’s Chase McBride is an attorney at 29. State ex rel. Bd. of Regents of the Univ. of ruling does not immediately qual- Ritchie, Rock, McBride & Atwood Okla. v. Lucas, 2013 OK 14. 30. State ex rel. Bd. of Regents of the Univ. of ify for an interlocutory appeal. A Law Firm with locations in Pryor and Okla. v. Lucas, 2013 OK 14. court’s refusal to allow a party to Shawnee. He is a general litigation 31. Cleveland County CJ-2017-21 entitled amend their pleadings does not fit attorney who primarily practices Fox v. Mize et al., Defendant Van Eaton Ready Mix, Inc.’s Application to Certify the Court’s July 6, into any category of interlocutory business, property, family and 2017 Summary Order for Immediate Interlocutory order appealable by right.56 An criminal matters. He received his Appeal and for Concise Statement by this Court Pursuant to Oklahoma Supreme Court Rule 1.52. order appointing a substitute arbi- J.D. from the OU College of Law, as 32. Panama Timber Co. v. Barsanti, 1980 trator and staying further proceed- well as an MBA and Certificate in OK CIV APP 18; see also DLB Energy Corp. v. Oklahoma Corp. Com., 1991 OK 5. ings pending arbitration is not an Law and Entrepreneurship from OU. 33. Modeled after the Amended Order interlocutory appealable order.57 Sustaining Cimarex Energy Co.’s Motion to Dismiss and Certification of Interlocutory Appeal filed on Keep in mind that interlocutory ENDNOTES June 13, 2016 in Canadian County CJ-2015-569 appeals apply to orders that do not 1. State ex rel. Bd. of Regents of the Univ. of entitled ’Benedetti v Cactus Drilling et al.” Okla. v. Lucas, 2013 OK 14 at 2. 34. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.51(a). resolve all the issues in the case 2. The Wolters Kluwer Bouvier Law Dictionary 35. Id. See also City of Tulsa v. Raintree regardless of at what point in the Desk Edition – “Interlocutory Appeal.” Estates I, Inc., 2007 OK CIV APP 41. 3. Eason Oil Co. v. Howard Eng’g, Inc.,1988 36. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.51(b). case the order is issued. Post judg- OK 57 at ¶5. 37. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.51(c). ment orders may still qualify for an 4. Pryor v. Mid-West Investigations & Process 38. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.51(c). Serving Inc., 2000 OK CIV APP 22. An order 39. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.52(a). interlocutory appeal if certified by vacating a judgment is an interlocutory order 40. Brown v. Brown, 1994 OK CIV APP 29. the trial judge and the order does not appealable by right. 41. Id. at ¶6. 58 5. Enron Oil & Gas Co. v. Worth, 1997 OK 42. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.52(a). resolve all the post judgment issues. CIV APP 60. A permit holder, which sought 43. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.52(a). Do not attempt to appeal an to conduct mineral tests, was entitled to a 44. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.52(a). temporary injunction against surface interest 45. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.52(b). interlocutory order as a final order. holders to enjoin their interference with the tests 46. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.53. The two appeals have different pro- because the right to test was a severable interest 47. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.53. of a mineral owner; the order first denying the 48. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.53. cedures and the appellate court will temporary injunction was appealable by right. 49. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.54(a). make you follow the proper proce- 6. Dee v. Horton, 2012 OK CIV APP 80 at ¶7 – “A 50. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.54(c)-(d). dure regardless of what the order is ‘provisional remedy’ is a remedy granted only as ... 51. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.55. ancillary or auxiliary to proper equitable relief, that 52. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.55. titled. This could be costly. Masking is, such relief is a provisional remedy granted only in 53. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.55. or mistaking an interlocutory order connection with an action for some other purpose.” 54. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.50. 7. In re Estate of Nation, 1992 OK 91. An 55. Reams v. Tulsa Cable Television, Inc., as a final order for appeal purposes application to share in the assets of a decedent’s 1979 OK 171; See also First Bank of Okarche v. has failed. The Supreme Court has estate as omitted children was an interlocutory Lepak, 1998 OK 46. order appealable by right. 56. Lawson v. Boston Chrysler, Plymouth & dismissed appeals brought as a 8. Fleming Cos. V. Tru Discount Foods, 1999 Dodge Inc., 1981 OK 26. final appeal when all issues before OK CIV APP 18. Appeal of a trial court’s order which 57. Ditto v. RE/MAW Preferred Properties, vacated a previous stay of arbitration order and 1993 OK CIV APP 152. the trial court were not resolved. directed that the action proceed in district court was 58. Sommer v. Sommer, 1997 OK 123; See The court determined that if any an interlocutory order that was appealable by right. also Willoughby v. City of Okla. City, 1985 OK 64. 9. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.61. 59. City of Lawton v. Int’l Union, Local 24, issues remain, the order and appeal 10. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.63(a). 2002 OK 1. is interlocutory. The court dismissed 11. 12 Okl. St. Chap. 15, Appx. 1, RULE 1.63(a).

10 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL

Appellate Law Reconsider Your Motion to Reconsider How Post-Trial Motions Affect Your Civil Appeal By Bevan Graybill Stockdell and Kimberly Withiam Carlson

FTER A JUDGMENT, DECREE OR FINAL ORDER IS FILED, the unsuccessful party Amay appeal that decision to the Supreme Court of Oklahoma and/or seek post-trial relief from the trial court. While a post-trial motion is not a jurisdictional prerequisite for filing an appeal, often the unsuccessful party elects to first or concurrently ask the trial court to review its own appealable order.1 This article addresses three types of post-trial motions: 1) motions for new trial, 2) motions to vacate or modify, and 3) motions to recon- sider and, specifically, how the rules governing these motions may affect your civil appeal.2

MOTIONS FOR NEW TRIAL impossible to prepare a record for diligence have been discovered Motions for new trial are an appeal.4 before but are discovered more governed by 12 O.S. §§651-658. A A new trial motion must mean- than ten (10) days after the judg- motion for new trial must be upon ingfully apprise the trial court ment, decree, or appealable order written grounds filed at the time of the reasons for which relief is was filed.”8 A party may file an of making the motion.3 Section 651 sought, and lack of specificity in amended motion for new trial sets forth nine grounds upon a motion for new trial typically asserting new and independent which a motion for new trial may waives the issue for appellate grounds for granting a new trial, be based: 1) irregularity in the review.5 However, lack of speci- but only if the amendment is filed proceedings which prevented the ficity in the motion may be cured within 10 days of the judgment, moving party from having a fair where the record shows that, “at decree or appealable order.9 In trial; 2) misconduct of the jury or the hearing on that motion, the addition, the moving party may a prevailing party; 3) accident movant, without any objection from not raise allegations of error on or surprise; 4) excessive or inad- the opposite party, precisely iden- appeal that she did not raise in equate damages; 5) error in the tified each point of law which is her motion for new trial.10 In other assessment of the amount of fairly comprised in the general alle- words, if a party files a motion for recovery; 6) that the verdict, report, gations of the defective motion.”6 new trial, the grounds generally or decision is not sustained by A motion for new trial must be must be asserted within 10 days to sufficient evidence or is contrary to filed within 10 days of the judg- warrant consideration of the issues law; 7) newly discovered material ment, decree or appealable order by the trial court and to preserve evidence, which could not, with “[u]nless unavoidably prevented[.]”7 the issues for appellate review. reasonable diligence, have been If more than 10 days have passed discovered and produced at trial; since the filing of the final order, a 8) error of law occurring at the petition for new trial may be filed trial; and 9) when, without fault of but only where “the grounds for a the complaining party, it becomes new trial could not with reasonable

12 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL MOTIONS TO VACATE preventing the party from prose- or (6) must be filed within three OR MODIFY cuting or defending; 8) for errors in years.16 A motion or petition to a judgment against an infant; and vacate based on §1031(9) must be Motion to Vacate Pursuant 9) for judgment for more than due filed within one year.17 A void to 12 O.S. §1031 to plaintiff when defendant was judgment, decree or order may Within 30 days of the filing of not given notice.12 When asking be vacated at any time.18 the judgment, decree or appealable the trial court to vacate a judgment order, a party may file a motion based on any of these statutory Term-Time Motion to Vacate asking the trial court to correct, grounds, the moving party should Pursuant to 12 O.S. §1031.1 open, modify or vacate its own be clear and specific. The moving A party may also file a motion decision pursuant to 12 O.S. §1031.11 party needs to state that the motion to vacate or modify a judgment or Section 1031 provides very specific to vacate is pursuant to §1031 and order within 30 days pursuant to grounds upon which a judgment the specific subsection. 12 O.S. §1031.1 and the trial court’s may be vacated or modified: If the moving party is asking term-time authority to vacate or 1) when a new trial is granted; the trial court to vacate a judg- modify its own decisions.19 The 2) where the defendant had no ment after 30 days, “proceedings trial court can vacate or modify actual notice of the action; 3) for to vacate or modify the judgment, the judgment for practically any mistake, neglect, or omission of decree, or appealable order shall reason during this 30-day time the clerk or irregularity in obtain- be by petition.”13 Typically, the peti- period.20 If the moving party is ing the judgment or order; 4) for tion must be verified by affidavit.14 invoking this authority, she does fraud in obtaining the judgment Proceedings to vacate or modify a not need to identify statutory or order; 5) for erroneous proceed- judgment, decree or order for the grounds enumerated in 12 O.S. ings against an infant or person grounds mentioned in §1031(4), §1031 to support her motion.21 of unsound mind; 6) for the death (5) or (7) must be commenced of a party before judgment; 7) for within two years.15 A motion or unavoidable casualty or misfortune petition to vacate based on §1031(3)

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 13 MOTIONS TO RECONSIDER [I]f timely filed, a “motion to motion and the trial court’s treat- If a party files a “motion to reconsider” may be treated as ment of the motion, depending reconsider” and the order dispos- a motion for new trial under on the correctness of its analysis, ing of that motion is appealed, the 12 O.S. §651 (if filed within ten may complicate the issues on appellate court will undoubtedly (10) days of the filing of the appeal. Further, although judicial note that “[a] ‘motion to recon- judgment, decree, or appealable treatment as a motion for new trial sider’ does not technically exist order), or it may be treated as a and the extended time to appeal within the statutory nomencla- motion to modify or to vacate a seem favorable, a practitioner may ture of Oklahoma practice and final order or judgment under unknowingly limit the issues for procedure.”22 This admonishment the terms of 12 O.S. §§1031 and appeal if she fails to raise issues in has been largely ignored. Post- 1031.1 (if filed after ten (10) days a “motion to reconsider” deemed trial motions titled “motion to but within thirty (30) days the functional equivalent of a reconsider” are routinely filed. of the filing of the judgment, motion for new trial.29 Linguistically, a “motion to decree, or appealable order).24 A smarter strategy is to be reconsider” may be an accurate specific and consistent with the description of the relief sought. “A motion seeking reconsid- title of the motion and its contents Essentially, the moving party eration, re-examination, rehear- and substance, including the relief wants the trial court to reconsider ing or vacation of a judgment or sought and the grounds for such its own judgment, decree or final final order, which is filed within relief.30 For example, rather than order; determine it made an error; 10 days of the day such decision filing an elusive “motion to recon- vacate that decision; and rule in was rendered, may be regarded sider,” the moving party can seek her favor. But, as discussed below, as the functional equivalent of a the same relief by filing a motion filing a “motion to reconsider” new trial motion, no matter what for new trial, pursuant to 12 O.S. comes with some risk. its title.”25 However, this rule “is §651(6), or a motion to vacate or permissive, not mandatory, and modify, pursuant to 12 O.S. §1031 SUBSTANCE AND applies only if the substance and or §1031.1. If counsel is deliberate CONTENT CONTROL content of the motion contains about what post-trial relief is being The trial and appellate courts indicia of a new trial motion.”26 sought, she can retain control by must look to the content and In other words, by filing a knowing the rules that apply and substance of a post-trial motion, “motion to reconsider” or other understanding how the post-trial rather than the title given to it, mistitled motion,27 the moving motion affects the appeal. to determine how the motion is party is leaving it to the trial and treated.23 A “motion to reconsider” appellate courts to determine TIMING ISSUES will be treated as either a motion what type of post-trial motion An appeal to the Supreme for new trial or motion to vacate: was filed.28 There is no certainty Court of Oklahoma must be as to how the courts will treat the commenced by filing a petition in error within 30 days from the date the judgment, decree, or appeal- able order is filed with the clerk of the trial court.31 Generally, the same timing issues arise whether a motion for new trial, motion to vacate, or motion to reconsider is A smarter strategy is to be specific and filed. The clock starts ticking for both the time for filing post-trial consistent with the title of the motion and its motions and the time to appeal when the judgment, decree, or contents and substance, including the relief final order is filed.32 Title 12 O.S. §990.2 requires close attention. sought and the grounds for such relief.

14 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL Post-trial Motion Filed the nonmoving party may appeal CONCLUSION Within 10 Days from that order within 30 days.43 Appellate courts will take the Regardless of whether it is a path of least resistance to most motion for new trial or a motion to Post-trial motion filed efficiently decide an appeal. She vacate, if the motion is filed within after 10 days can do that by dismissing an 10 days33 after the judgment, decree The filing of a motion for new untimely appeal or narrowing or final order is filed, the time to trial or motion to vacate after 10 days the reviewable issues. By making appeal does not start to run until does not suspend the time to informed, strategic decisions about an order disposing of the post-trial appeal from the underlying post-trial motions and following motion is filed.34 In other words, decision.44 If an appeal of the the applicable rules and proce- the filing of a post-trial motion underlying decision has already dures, practitioners can secure full within 10 days suspends the time been commenced and a post-trial appellate review on the merits. to appeal. If a post-trial motion is motion is filed more than 10 days filed after the trial court announces after the filing of the final order, its decision but before the judgment the appeal is not rendered pre- ABOUT THE AUTHORS is filed, the motion will be deemed mature.45 The moving party is Bevan Stockdell and Kimberly filed when the judgment is filed required to advise the Supreme Carlson are staff attorneys to and receive the benefit of addi- Court that the motion was filed.46 Judge E. Bay Mitchell, III on the tional time to appeal.35 If a post-trial motion is filed first Oklahoma Court of Civil Appeals. If an appeal of the underlying and then later the underlying deci- Collectively, they have more than decision has already been com- sion is appealed, the appellant is to 13 years of experience serving the menced when the motion is filed, advise the Supreme Court that the appellate courts. Ms. Stockdell the appeal becomes premature. motion is pending in the petition graduated with honors from the The appeal may be dismissed.36 in error.47 The trial court is permit- OU College of Law. She serves on If the trial court disposes of the ted to rule on the post-trial motion the OBA YLD Board of Directors post-trial motion before the appeal while the appeal is pending.48 The and is chair-elect for ReMerge is dismissed, the appeal may be trial court’s order disposing of the of Oklahoma County, a female saved by filing a supplemental post-trial motion will likely be diversion program. petition in error.37 If the appeal filed while the appeal is still pend- Ms. Carlson graduated summa is dismissed as premature, the ing. When the trial court disposes cum laude from the OCU School appellant may file a new petition of the motion, the successful party of Law and received her B.F.A. in in error within 30 days of the deci- is to then advise the Supreme drama from OU. Previously, she was sion on the motion.38 If an appeal Court of the trial court’s decision.49 a term law clerk at the Oklahoma of the underlying decision is not If the trial court denies the Court of Criminal Appeals. pending when the motion is filed, post-trial motion and an appeal of an appeal cannot be commenced the underlying judgment is pend- ENDNOTES until an order disposing of the ing, the moving party may appeal 1. See 12 O.S. 2011 §991(a). 2. This article does not address other post- 39 motion is filed. from that order by filing a new trial motions, including motions for judgment If the trial court denies the post- or amended petition in error.50 If notwithstanding the verdict and motions for attorney fees, costs or interest. The discussion trial motion, the moving party may the moving party did not lodge a is limited to civil appeals from Oklahoma district appeal from the judgment, decree timely appeal of the underlying court decisions. 3. 12 O.S. 2011 §654(A). or final order, from the ruling on decision and appellate jurisdiction 4. 12 O.S. 2011 §651. Motions based on the motion or from both within over that decision has been lost, she subsections (2), (3), (7), or (9) must be supported 40 by affidavit. 12 O.S. §654(B). 30 days. It is most efficient to appeal can still separately appeal from the 5. See Horizons, Inc. v. Keo Leasing Co., 1984 from both by filing one petition in final order denying the post-trial OK 24, ¶6, 681 P.2d 757, 759 (language challenging 51 judgment as “contrary to the prevailing Oklahoma error. However, separate petitions in motion within 30 days. If the trial law as reflected in applicable cases and statutes” error are permitted.41 The moving court grants the post-trial motion deemed insufficient to preserve anything for appeal); see also Slagell v. Slagell, 2000 OK 5, ¶¶4, party/appellant should attach as and the judgement is vacated or 6, 995 P.2d 114 (motion for new trial stating only “Exhibit A” to the petition in error modified, she may appeal from the that “the decision of the court is not sustained by the evidence, and is contrary to the law of the both a certified copy of the underly- order disposing of the post-trial State of Oklahoma” was insufficient and required ing judgment, decree, or final order motion within 30 days.52 dismissal pursuant to Horizons). and a certified copy of the order 6. Horizons, 1984 OK 24, ¶7, 681 P.2d at 759 (emphasis original). 42 disposing of the motion. If the trial 7. 12 O.S. 2011 §653(A). court grants the post-trial motion, 8. 12 O.S. 2011 §655; see id. §651(7).

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 15 9. See Malicoate v. Standard Life and Acc. and rested on grounds available under 12 O.S. §651 32. While not within the scope of this article, Ins. Co., 2000 OK CIV APP 37, ¶15, 999 P.2d 1103; as motion for new trial); see also Horizons, 1984 OK it is critical to know when there is an appealable see also Nat’l Educators Life Ins. Co. v. Apache 24, ¶4, 681 P.2d at 758-59 (same). order. See 12 O.S. 2011 §§696.2-696.3. Lanes, Inc., 1976 OK 121, ¶8, 555 P.2d 600, 602 28. It should be noted appellate courts have 33. Holidays, weekends and other days (new and independent allegations of error cannot treated “motions to reconsider” filed within 10 the clerk’s office is closed are excluded when be considered if filed beyond statutory 10-day days as motions for new trial without providing calculating the 30 days for appeal. See 12 O.S. period for filing new trial motion). any discussion of the substance and content of 2011 §2006(A). 10. See 12 O.S. 2011 §991(b); Slagell, 2000 the motion. See, e.g., Whitaker v. Hill Nursing 34. See 12 O.S. 2011 §990.2(A). OK 5, ¶8. Home, 2009 OK CIV APP 41, ¶10, 210 P.3d 877, 35. See 12 O.S. §653(C). 11. See 12 O.S. 2011 §1031 and 12 881 (treating a “motion for reconsideration” as the 36. See 12 O.S. §990A(F)(1). O.S.Supp.2013 §1031.1(B). legal equivalent of a motion for new trial); Sien v. 37. See id. 12. See 12 O.S. §1031. Sien, 1994 OK CIV APP 159, ¶¶3-4, 34, 889 P.2d 38. See 12 O.S. §990A(F)(2). 13. 12 O.S. §1031.1(C) (emphasis added). 1268, 1274-75 (finding 12 O.S. §991(b) applied to 39. See 12 O.S. §990.2(A). 14. See 12 O.S. 2011 §1033. “motion to reconsider” filed before the judgment). 40. Id. 15. See 12 O.S. 2011 §1038. 29. See 12 O.S. §991(b); Whitaker, 2009 OK 41. See Okla. Sup. Ct. R. 1.22(c)(2). 16. Id. CIV APP 41, ¶10; Sien, 1994 OK CIV APP 159, 42. Okla. Sup. Ct. R. 1.301, Form No. 5. 17. Id. ¶¶34-5. There is no statutory equivalent for 43. See 12 O.S. 2011 §952(b)(2); 12 18. Id. motions to vacate. See Bohm, Inc. v. Michael, O.S.Supp.2013 §993(A)(8); Okla. Sup. Ct. R. 19. See 12 O.S. §1031.1(B); Schepp v. Hess, 2002 OK CIV APP 60, n.2, 46 P.3d 1286 (“[A] 1.60(a)-(b); Okla. Sup. Ct. R. 1.20(b). 1989 OK 28, ¶¶7-9, 770 P.2d 34, 37-38. party filing a motion to vacate is not specifically 44. See 12 O.S. §990.2(B); Okla. Sup. Ct. R. 20. See 12 O.S. §1031.1(A); Schepp, 1989 OK limited by statute to raising, on appeal, only the 1.22(e); see also Neumann v. Arrowsmith, 2007 OK 28, ¶9, 770 P.2d at 38. grounds asserted in the motion to vacate, as is 10, ¶¶8-9, 164 P.3d 116 (treating untimely motion 21. See Schepp, 1989 OK 28, ¶8, 770 P.2d the case with new trial motions pursuant to 12 for new trial as “functional equivalent” of a motion at 38. O.S. 1991 §991(b).”); see also Bank of Am., N.A. v. to vacate pursuant to 12 O.S. §1031.1). 22. Smith v. City of Stillwater, 2014 OK 42, Morris, 2014 OK CIV APP 91, ¶5, 338 P.3d 138 45. See 12 O.S. §990.2(B). ¶10, 328 P.3d 1192. (Fischer, J., concurring in result) (“No similar rule 46. Id. 23. See Kerr v. Clary, 2001 OK 90, ¶7, 37 limits the issues that may be raised in an appeal 47. Id. P.3d 841. from an order granting or denying a motion to 48. See Okla. Sup. Ct. R. 1.37(a)(3). 24. Smith, 2014 OK 42, ¶10, 328 P.3d 1192. vacate.”). Accordingly, the practitioner also risks 49. See 12 O.S. §990.2(B). 25. Horizons, 1984 OK 24, ¶4, 681 P.2d at 758-59. unknowingly waiving issues for appeal if she 50. See 12 O.S. §952(b)(2); 12 O.S. §993(A)(8); 26. Reeds v. Walker, 2006 OK 43, n.4, 157 P.3d files a motion to vacate deemed the functional Okla. Sup. Ct. R. 1.26(a). 100; see also Kerr, 2001 OK 90, ¶¶7-8 (treating a equivalent of a motion for new trial. 51. See 12 O.S. §952(b)(2); 12 O.S. §993(A) “motion to reconsider” filed within 10 days as a 30. See SIT, SL v. Tulsa Turbine Engines & (8). In an appeal from an order granting or denying motion to modify where “[i]ts content and substance Aircraft, LLC, 2013 OK CIV APP 97, n.3, 313 P.3d a post-trial motion, the reviewing court does were not the indicia of a motion for new trial”). 1035 (rejecting argument “motion to vacate” filed not look to the original judgment, but rather the 27. A post-trial motion filed within 10 days and within 10 days should be treated as a motion correctness of the trial court’s response to the titled “motion to vacate,” may also, depending on for new trial because moving party specifically post-trial motion. See Kordis v. Kordis, 2001 OK the content, be treated as a motion for new trial. See invoked 12 O.S. §1031.1 as grounds for vacating 99, ¶6, 37 P.3d 866. Bushert v. Hughes, 1996 OK 21, n.3, 912 P.2d 334, default judgment). 52. See 12 O.S. §952(b)(2); 12 O.S. §993(A)(8); 335 (treating “motion to vacate” filed within 10 days 31. See 12 O.S.Supp.2017 §990A(A). Okla. Sup. Ct. R. 1.60(a)-(b); Okla. Sup. Ct. R. 1.20(b).

16 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL

Appellate Law Appealable Orders: Asking the Key Questions By Ann Hadrava

18 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL HE OKLAHOMA SUPREME COURT REVIEWS INCOMING APPEALS for Tjurisdictional purposes. This is also known as the court’s inquiry into its appellate jurisdiction.1 Whether you are a practitioner who is filing your first appeal or a practitioner who regularly files appeals, you may find it helpful to know how an appeal crosses the court’s jurisdictional hurdle. It involves asking the three questions below.

THREE KEY QUESTIONS 3) Does the order fall within when appealing from the adjudi- While there are different types one of the four categories cation of a post-trial motion, the of appeals, this article focuses on a of appealable orders? order disposing of the motion general civil appeal from a district • Interlocutory orders must also be memorialized in court order. Obviously, for other certified as immediately conformance with these statutory appeals you will want to consult appealable by the trial requirements.12 the Oklahoma Supreme Court court pursuant to Secondly, 12 O.S. §990A(A) Rules and applicable statutes.2 12 O.S. §952(b)(3);8 provides that an appeal must be With each general appeal the • Interlocutory orders commenced by filing a petition in questions for the court are: appealable by right error within 30 days of the date 1) Is there an order prepared under 12 O.S. §993(A) the judgment, decree or appealable in conformance with 12 O.S. and Okla. Sup. Ct. R. 1.60;9 order prepared in conformance §§696.2 and 696.3? In other • Orders properly certi- with 12 O.S. §696.3 is filed with words, is the order properly fied as final orders pur- the clerk of the trial court. This memorialized?3 suant to 12 O.S. §994(A); is a jurisdictional requirement.13 2) Is the appeal timely and Oklahoma Supreme Court Rule commenced? • Final orders.10 1.21(a) states: “The date of filing of • 30-day requirement for a judgment, decree or appealable regular appeals pursu- First and foremost, the order order with the clerk of the district ant to 12 O.S. §990A;4 appealed must be properly memo- court shall be presumed to be the • 20-day requirement for rialized. 12 O.S. §696.2(A) provides date of the district court clerk’s file workers’ compensation that after the granting of a judg- stamp thereon.” This is explored petition for review;5 ment, decree or appealable order, in more detail below. • 40-day requirement for it shall be reduced to writing in regular counter-appeals;6 conformance with 12 O.S. §696.3. TIMING AND NOTICE and Section 696.2(D) provides exam- • For other types of ples of what does not constitute How Post-trial Motions Filed in appeals check the an appealable order. The most District Court Affect Appeal Time court’s rules.7 common order the court sees is Post-trial motions filed within the “minute entry” which is not 10 days of the judgment’s filing. an appealable order.11 Remember 12 O.S. §990.2(A) provides that a

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 19 post-trial motion filed within 10 days for new trial beyond the 10-day 2) 12 O.S. §696.2 requires of the filing of the judgment, period does not extend the time service of the final order decree or final order serves to to appeal from the original judg- on the appellant; and extend the time to appeal the same ment.18 Unfortunately, we see this 3) court records do not reflect beyond the 30-day time period.14 happen occasionally. If you intend service of the order on appel- If a post-trial motion is filed within to appeal the original judgment lant within three business 10 days of the judgment, §990.2(A) and intend to file a post-trial days of the filing of the order, provides that “an appeal shall not be motion, review your timelines the petition in error may be commenced until an order dispos- carefully. Determine whether filed within 30 days after the ing of the motion is filed with the your post-trial motion was (or will earliest date on which court court clerk.” If the decision on the be) filed within 10 days. Prepare records show a copy of the post-trial motion is against the mov- accordingly. When in doubt, go order was served. ing party, the moving party may ahead and timely appeal the orig- appeal the judgment, the order on inal judgment.19 You can always 12 O.S. §696.2(B) requires a file- the post-trial motion or from both file a second appeal of the order stamped copy of the judgment to orders within 30 days of the order disposing of the post-trial motion. be served by the party (or counsel disposing of the post-trial motion. or judge) who prepared the order Sometimes we see a petition in How to Calculate the 10-Day Period no later than three days after its error filed before the trial court for Post-trial Motions filing. A “certificate of service must has disposed of a post-trial motion 12 O.S. §2006(A)(1) applies to time be filed with the court clerk.”21 filed within 10 days of the judg- calculations of post-trial motions. Consider these provisions every ment. Under such circumstances, Except for a few noted exceptions, time you file an appeal. Determine the appeal may be dismissed §2006(A)(1) provides that when whether your appeal may be by the court as premature.15 (A the period of time prescribed or affected by these provisions. As premature appeal may also occur allowed to perform an act is less discussed below, even without a when an appeal is taken from than 11 days, intermediate legal certificate of service appeal time is an order which is not properly holidays and weekends “shall be triggered by actual notice. If you are memorialized.) However, keep in excluded from the computation.” unsure, always assume your time to mind the appellant may cure the Oklahoma Supreme Court Rule appeal is triggered by the filing of initial prematurity of the appeal 1.3 prescribes the same method for the judgment. Misinterpretation can by timely filing a supplemental computation of any time period result in an untimely filed appeal. petition in error after the filing of of less than 11 days. To determine Fleshing out §990A(A) with the final judgment and before the whether a post-trial motion is filed Tidemark, Whitehall and Cedars. appeal is dismissed. Under 12 O.S. within 10 days of the judgment’s The court has fleshed out 12 O.S. §990A(F)(1) such an appeal “shall filing, the court will count “working §990A(A)’s three-day mailing not be dismissed” as premature. days” as the court reiterated late requirements in three key Post-trial motions filed more last year in Christian v. Christian.20 decisions. In 1998, in Tidemark than 10 days after the judgment’s Exploration, Inc. v. Good22 the court filing. Conversely, 12 O.S. §990.2(B) Filing of the Judgment, Service dismissed the appeal where there provides that if a post-trial motion Within Three Days, Actual Notice was no dispute appellant received is filed more than 10 days after the 12 O.S. §990A(A) and 12 actual notice of the appealable judgment, decree or final order is O.S. §696.2(B). 12 O.S. §990A(A) event more than 30 days before filed with the clerk of the district requires an appeal to be com- the filing of the appeal.23 court, it does not extend the time menced within 30 days of the Fourteen years later in Whitehall to appeal the original judgment.16 filing of a judgment, decree or Homeowners, Ass’n v. Appletree Both in substance and for purposes appealable order. This is straight- Enterprise,24 the court held that of appeal time, adjudication of a forward. However, this period when actual notice occurs later than post-trial motion filed more than may be affected by the three-day three days after filing of the order, 10 days after the filing of the mailing requirements. I say, may but before the proof of notice is judgment “is an independently be. Pursuant to the second part of filed, the time to appeal will com- appealable post judgment event.”17 §990A(A): mence from the date that actual It is crucial to remember that a 1) if the appellant did not pre- notice of the appealable event trial court’s discretionary extension pare the judgment, decree, occurred. The court in Whitehall of time for the filing of a motion or appealable order; remarked that there was “an utterly

20 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL silent record” as to when the order you participated in preparing the §952(b)(2) and Oklahoma Supreme was served on appellant.25 order for purposes of the statute, Court Rule 1.60.33 An appeal from In 2013, the court decided State assume the appeal time is trig- an interlocutory order appealable by ex rel. Okla. Dep’t of Transp. v. gered by the date the order is filed. right must be commenced within Cedars Group, LLC.26 As in Whitehall 30 days of the filing of the memo- there was no certificate of service CATEGORIES OF rialized order. However, a party’s filed but, as opposed to Whitehall, APPEALABLE ORDERS failure to appeal from an interlocu- there was no dispute appellant tory order appealable by right does received actual notice of the Certified Interlocutory Orders not prevent the party from asserting judgment within three days of A party can appeal an interlocu- error in the order in an appeal from its filing. The court held in that tory order, when not appealable by a final judgment in the case.34 instance the date of the filing of right, pursuant to 12 O.S. §952(b)(3). the judgment triggers the running The order must affect “a substantial Orders Certified as of the 30-day time period.27 part of the merits of the contro- Final Pursuant to 12 O.S. §994 Get to know these cases. They versy” and the district court judge A judgment as to one but less each have different and nuanced fact must certify “that an immediate than all claims or parties in an patterns which makes the analysis appeal may materially advance the action is not an appealable final of the court very helpful in sorting ultimate termination of the litiga- order unless the judgment is certi- out §990A(A)’s mailing provisions. tion.” Certified interlocutory orders fied by the trial court under 12 O.S. They will guide you in determining (CIO) typically present a pure legal §994(A). The order must contain the whether the 30-day time to appeal question that would affect the express determination by the trial may be extended because of defects merits of the controversy.29 The court court that there is no just reason for in service of the order. has defined this term as the real delay and direct the order be filed Participation in the prepara- or substantial grounds of action or as a final judgment.35 Bear in mind tion of the order. The court in defense as distinguished from mat- that if an unadjudicated claim aris- Tidemark concluded that because ters of practice, procedure or form.30 ing out of the same transaction or the attorney for appellant partic- The court does not consider juris- occurrence as the adjudicated claim ipated in the preparation of the dictional issues31 and evidentiary remains, the trial court lacks the order the mailing provisions of rulings32 to fall within the definition power to enter a final order.36 12 O.S. §990A(A) did not apply of merits of the controversy. To determine whether an order and the filing of the judgment is properly certified under §994(A), triggered the time to appeal.28 The Interlocutory Orders the court will also look at the inter- court has not explicitly defined Appealable by Right relationship between the legal and to what extent “participation in A party may seek review from a factual issues of the resolved and the preparation of the order” will class of interlocutory orders that are pending claims and the equities trigger §990A(A)’s mailing require- appealable by right. These orders and efficiencies implicated by the ments. If you are not sure whether are listed in 12 O.S. §993, 12 O.S. requested piecemeal review.37

A judgment as to one but less than all claims or parties in an action is not an appealable final order unless the judgment is certified by the trial court under 12 O.S. §994(A).

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 21 Final Orders other reason. If you find yourself 5. See Okla. Sup. Ct. R. 1.100. A final order is one that affects on the receiving end of a show 6. See Okla. Sup. Ct. R. 1.27(a). 7. It is always good to double-check what type a substantial right when such order cause order, don’t panic. Consider of appeal you have because some are governed in effect determines the action.38 it your opportunity to cure any by specific statutes and appellate rules other than those applicable to those mentioned above. An interlocutory order, on the apparent deficiencies by filing an 8. See also Okla. Sup. Ct. R. 1.50 to 1.56. other hand, does not preclude a amended or supplemental petition 9. See also Okla. Sup. Ct. R. 1.60 to 1.67. 10. See 12 O.S. §953. See Okla. Sup. Ct. R. party from proceeding further in in error or to provide the legal basis 1.20 for examples of final orders. the case, nor does such an order for why the order is appealable.44 11. See supra note 3. 39 12. Corbit v. Williams, 1995 OK 53, ¶8, 897 “prevent a judgment.” The best P.2d 1129. Though an order might meet all the way to think about this is: subject Author’s Note: The referees of the other requirements of 12 O.S. §696.3, a court minute is not an appealable order or judgment. to certain exceptions, trial court Oklahoma Supreme Court are central 13. Davis v. Martin Marietta Materials Inc., orders which leave issues or claims staff whose duties include preparing 2010 OK 78, ¶1, 246 P.3d 454, 454. Except for the timely filing of the petition in error (including to be determined or parties in the memoranda for the court analyzing notice to adverse parties) all other steps in case are not final unless certified the facts and law in the assigned case. perfecting an appeal are not jurisdictional. 40 12 O.S. §990A(E). as such by the trial court. These are confidential and not discov- 14. Id. The court has established a erable. This article is derived from a 15. 12 O.S. §990A(F)(1); Okla. Sup. Ct. R. 1.26(c). helpful two-prong test for finality: CLE presentation prepared and given 16. In the Matter of K.S., 2017 OK 16, ¶9, 1) whether the order con- by Referee Kyle Rogers and me to 393 P.3d 715, 717; see also Okla. Sup. Ct. R. 1.22 (tracking the language of §990.2). clusively determines the the OBA Appellate Practice Section. 17. Central Plastics Co. v. Barton Indust., Inc., question presented; and This article is meant to be a general 1991 OK 103, ¶2, 818 P.2d 900 (order) (citing overview only. Always consult the Schepp v. Hess, 1989 OK 28, 770 P.2d 34); Carr v. 2) whether the order prevents Braswell, 1989 OK 52, ¶9, 772 P.2d 915, 917 the aggrieved party from relevant statutes and appellate rules (holding that the appeal of original order was further proceeding in the if you plan to file an appeal. untimely, but appeal of denial of motion to vacate was timely); Yery v. Yery, 1981 OK 46, ¶9, 629 P.2d 41 action. 357, 360 (addressing an appeal from an order disposing of a motion to vacate filed more than 10 days after the original judgment and limiting For instance, an order com- ABOUT THE AUTHOR appellate review to issues raised in the motion). pelling arbitration and staying Ann Hadrava is a referee at the 18. See Davis, 2010 OK 78, ¶1(3), 246 P.3d at 455. further proceedings in the district Oklahoma Supreme Court. Prior 19. If it turns out your appeal is premature court is a final, appealable order,42 to coming to the court in January and the appeal is dismissed as premature, under 12 O.S. §990A(F)(2) you may file a new petition in as is an order granting or denying 2017, she was in private practice, error within 30 days of the filing of the appealable disqualification of counsel.43 focusing mostly on appellate work. order or within 30 days of the notice of dismissal, whichever date is later. Ms. Hadrava graduated in 2002 20. 2018 OK 91, ¶7, 434 P.3d 9 (because the Unsure Whether an Order Is from the OCU School of Law. time limit prescribed by 12 O.S. §653(A) is only 10 days, weekends, legal holidays and days when Appealable? Go Ahead and Appeal the court clerk is either closed or closes early, The law on final and interlocu- ENDNOTES must be omitted when computing deadline for 1. Stites v. Duit Const. Co., Inc., 1995 OK filing a motion for new trial); see also Davis, 2010 tory orders is too vast and varied 69, ¶8 & n.10, 903 P.2d 293, 297 (reaffirming OK 78, ¶1, 246 P.3d at 455 (only post-trial motions to get into more detail in this arti- court’s history of decisions holding inquiries into filed within 10 “working” days will extend time to appellate cognizance may be made sua sponte appeal the same beyond the 30-day jurisdictional cle. If you are not sure whether an at any stage of the proceedings); Cate v. Archon limitation.) order is appealable, always assume Oil Co., Inc., 1985 OK 15, ¶10 n.12, 695 P.2d 1352, 21. This statute requires that service be in 1356 n.12 (“This court must inquire into its own accordance with the provisions of 12 O.S. §2005; that it is and timely commence jurisdiction as well as to the jurisdiction of the see Neumann v. Arrowsmith, 2007 OK 10, ¶4 n.3, your appeal. If the appeal is dis- court from which the appeal is taken, regardless 164 P.3d 116, 117 (using three business days as of whether it is raised by the litigants.”). calculation). missed for lack of an appealable 2. For example, see Okla. Sup. Ct. R. 1.85 22. 1998 OK 67, ¶5, 967 P.2d 1194, 1195-96. order, you will have the opportu- (appeals from the Corporation Commission), Rule 23. The court held the filing of the certificate nity to bring a subsequent appeal 1.100 (Workers’ Compensation Commission), Rule of service is not the appealable event. The court 1.125 (Tax Commission). dismissed the appeal because it was filed more in accordance with the rules. 3. Minute orders, orders directing one to than 30 days after the filing of the order appealed, prepare a journal entry, order sheets and verdicts and more than 30 days after the order was mailed are not properly memorialized. See Mansell v. to appellant. The order was mailed to appellant JURISDICTIONAL QUESTION? City of Lawton, 1994 OK 75, 877 P.2d 1120; Corbit v. within three days, but there was no certificate of DON’T PANIC Williams, 1995 OK 53, 897 P.2d 1129; Aven v. service filed until months later. Reeh, 1994 OK 67, 878 P.2d 1069; Brown v. 24. 2012 OK 34, ¶12, 277 P.3d 1266, 1269. The court will seek to resolve Green Country Softball Ass’n, 1994 OK 124, ¶12, 25. Id. at ¶7. jurisdictional questions by asking 884 P.2d 851; Chamberlin v. Chamberlin, 1986 26. 2013 OK 99, ¶8, 320 P.3d 23, 25. OK 30, 720 P.2d 721. An order titled Summary 27. Id. the appellant to “show cause” why Order meets the requirements of §696.3 so long 28. Supra note 23, at ¶6. See also Cedars, the appeal should not be dismissed as the order is reduced to writing, signed by the supra note 27, at ¶6 (observing same). judge, contains a proper caption and contains the 29. See Martin v. Phillips, 2018 OK 56 for lack of an appealable order, as disposition and relief awarded. (addressing whether a defendant’s Alford plea untimely, as premature or some 4. See Okla. Sup. Ct. R. 1.21. can establish tort liability for the same acts).

22 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL See State ex rel. Bd. of Regents of University of brought against the estate by a third-party. The order in the case is treated as a request for Oklahoma v. Lucas, 2013 OK 14, 297 P.3d 378, for court found the trial court’s mid-probate order reconsideration of an intermediate ruling. “A a thorough discussion of the CIO standard and declaring the sale a nullity was a true “judgment” motion to reconsider an interlocutory order what constitutes a claim affecting the “merits” because it resolved issues separate from the anterior to judgment is not a §1031 motion of the controversy. In Lucas, the court observed main probate action. See Okla. Sup. Ct. R. 1.60(h) to vacate unless made so by the terms of the a claim based upon a lack of jurisdiction is (interlocutory probate orders appealable by right). statute.” Id. at ¶14. usually considered to be a claim not affecting The order in Williams was an “end-of-the-line 41. Hammonds v. Osteopathic Hosp. Founders the merits of the controversy. To the extent the disposition of all issues” between a stranger to Assn., 1996 OK 54, ¶3, 917 P.2d 6. The issue jurisdictional issue in the case could be construed the estate who was neither an heir, beneficiary in Hammonds was whether the sanctions as intertwined with the merits, the court noted the or fiduciary under the will and the estate. Thus, order against a nonparty to the case was a university’s motion to dismiss should be treated Williams stands for the proposition that an final, appealable order. Because the order in as a motion for summary judgment. Okla. Sup. order under 58 O.S. §721(10) can be the “final Hammonds was an end-of-the-line disposition Ct. R. 1.50 states no CIO will be considered if taken determination of the rights of the parties in an of matters between the nonparty (Sellers) and from an order overruling a motion for summary action” which must be immediately appealed. Hammonds, ancillary to the main litigation, the judgment. Hence, the court concluded certiorari 35. In the absence of such certification, the order was final under 12 O.S. §953. review was improper. See id. at ¶11. See also order “shall not terminate the action,” and the 42. 12 O.S. §953; Oklahoma Oncology & Sommer v. Sommer, 1997 OK 123, ¶6, 947 P.2d 512. appeal will be dismissed. Dotson v. Rainbolt, 1992 Hematology P.C. v. US Oncology, Inc., 2007 OK 30. Flick v. Crouch, 1967 OK 131, ¶15, 434 OK 101, ¶2, 835 P.2d 870. 12, ¶17,160 P.3d 936. P.2d 256 (quoting Providential Development Co. v. 36. Liberty Bank and Trust Co. of Oklahoma 43. Arkansas Valley State Bank v. Phillips, U.S. Steel Co., 236 F.2d 277, 280 (10th Cir. 1956)). City, N.A. v. Rogalin, 1996 OK 10, ¶10, 912 2007 OK 78, ¶8, 171 P.3d 899. See also Miami 31. Id. P.2d 836; DeLuca v. Mountain States Financial Business Serv’s, LLC. v. Davis, 2013 OK 20, ¶17, 32. Ellison v. Ellison, 1996 OK 64, ¶5, 919 Resouces Corp., 1992 OK 30, ¶1, 827 P.2d 171. 299 P.3d 477 (order denying disqualification of P.2d 1. 37. Oklahoma City Urban Renewal Auth. v. City counsel is a final order which is immediately 33. See also 12 O.S. §952(b)(2), which gives of Oklahoma City, 2005 OK 2, ¶17, 110 P.3d 550. reviewable on appeal). the court jurisdiction to review an order which 38. 12 O.S. §953; Okla. Sup. Ct. R. 1.20. 44. For example, when an appeal appears discharges, vacates or modifies or refuses to 39. DLB Energy Corp. v. Oklahoma Corp. premature, the court will allow a reasonable discharge, vacate or modify a provisional remedy Comm’n, 1991 OK 5, ¶7, 805 P.2d 657. period for the appellant to secure a final or or grants, modifies, vacates or refuses to grant, 40. Jones v. Tubbs, 1993 OK 118, ¶6, 860 P.2d otherwise appealable order so the appeal can modify or vacate an injunction, grants or refuses 234 (order granting default judgment on actual proceed. If the issue is timeliness, explain the to grant a new trial or vacates or refuses to vacate damages but reserving punitive damages not a legal bases for why the appeal should proceed. a final judgment. final appealable order). This court in Andrew v. Remember, facts not in the record must be 34. See 12 O.S. §952(b); Okla. Sup. Ct. R. Depani-Sparkes, 2017 OK 42, ¶15, 396 P.3d supported by affidavit. This is especially 1.40(f) and 1.61, but see Williams v. Mulvihill, 1993 210, reiterated that a motion to reconsider or important in sorting out when an order is mailed. OK 5, ¶2, 846 P.2d 1097. Williams involved a claim vacate which challenges an earlier intermediate

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 23 Appellate Law Proper Practice on Certiorari: Avoiding Common Pitfalls and Crafting Better Arguments By Kyle Rogers and John Holden

ETITIONING THE SUPREME COURT OF OKLAHOMA for certiorari review of an Popinion of the Court of Civil Appeals is a common part of appellate practice.1 This article aims to provide litigants and attorneys with some guidance on what they should and should not do as part of the certiorari process in order to maximize the chances of obtaining their desired outcome. The article provides a short summary of the Supreme Court’s certiorari procedure, provides suggestions on how best to comply with the court’s certiorari rules, sets out common pitfalls to avoid and discusses what to include in a petition for certiorari.

A BRIEF NOTE ON PROCEDURE randomly assigns the petition for what the court considers import- The Supreme Court will certiorari to a justice to present in ant in filings on certiorari and what deny your petition for certiorari.2 conference. Each justice reviews it wishes litigants to avoid. An Well, maybe not always, but that the certiorari briefing and referee’s attorney or litigant should com- is perhaps the best way to view memorandum. The court confer- ply with all formatting and form your chance of success on certio- ences and votes to grant or deny requirements, stress the reason the rari before the court. The court’s the petition for certiorari; there court should grant certiorari, raise decision to grant certiorari to review must be five justices who agree to all issues the court should con- a Court of Civil Appeals opinion is grant certiorari. If the court grants sider on certiorari and be concise. entirely discretionary.3 It takes five certiorari, it will normally issue an We touch on each briefly. justices agreeing there is a special order the same day. A justice in the or important reason why the appeal majority voting to grant certiorari is Comply With All Formatting should be addressed again.4 So, how assigned to write the opinion. The and Form Requirements can a litigant or attorney get the court’s assignment is confidential. Rule 1.179 sets out detailed attention of the court on certiorari? It Once the justice has completed the requirements for page limits, size may first be helpful to understand opinion, the justice places it back and spacing. All litigants and how the court processes petitions on the court’s docket where the attorneys should be aware of these for certiorari once filed. justices conference and vote on the requirements and conform to them After briefing is completed,5 opinion. The court normally pub- when drafting and filing petitions, the referee’s office will review the lishes its opinions on Tuesday. answers and replies on certiorari. petition, response and reply. A Font size and line and margin referee will draft a memorandum FOLLOW THE COURT’S RULES spacing tend to be the require- to the court, analyzing the parties’ ON CERTIORARI ments parties most often push. The arguments and recommending The petition for certiorari, court may strike petitions, answers whether the court should grant answer and reply are governed or replies that do not follow these or deny certiorari. The court then by Rule 1.179. This rule illustrates formatting rules. Additionally,

24 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL formatting the petition or answer in smaller font, with smaller mar- gins, or in less than double spacing makes the filing harder to read for its intended recipients – not the best strategy when certiorari is entirely discretionary.

Stress the Reason the Court Should Grant Certiorari Rule 1.178 provides examples of the “special and important rea- sons” the court may consider in choosing whether to grant certio- rari.6 We examine those reasons in more depth later. While not exclusive, those examples indicate the character of reasons which the court will consider. The reasons justifying the court’s review on certiorari should be outlined in accordance with Rule 1.179(a) and should be stated accurately, briefly and clearly.7 A litigant or attorney should also tie those special and important reasons into the argu- ment throughout the petition.

Raise All Issues the Court Should Consider on Certiorari It is important for litigants and attorneys to include all necessary issues they wish the court to con- sider on certiorari. All issues to be considered by the court on certio- rari must be raised in the petition

OCTOBER 2019 | 25 if they were decided by the Court matters material to the questions Copying and Pasting Your Prior Brief of Civil Appeals; issues not raised presented is a requirement in a Certiorari is not meant to be a will not be considered.8 However, petition,12 litigants should avoid third bite at the proverbial apple. A if the Court of Civil Appeals did extraneous facts and unnecessary common mistake in petitions is a not decide all of the properly citation to the record on appeal. party simply repeats all arguments preserved and briefed issues, the Unless directly relevant to one of made before the Court of Civil Supreme Court may – should it the criteria set out in Rule 1.178, Appeals. Appellate attorneys should vacate the opinion of the Court certiorari filings are not the place to avoid this practice as it is not only of Civil Appeals – address such assert the Court of Civil Appeals unnecessary as it does not follow undecided matters or may remand or the district court incorrectly Rule 1.178(a), but the petition includes the cause to the Court of Civil weighed certain facts or made the opinion from the Court of Civil Appeals for that court to address.9 incorrect factual findings. Appeals. The court can pretty easily deduce those arguments from the Be Concise Discussing the Merits of the Appeal opinion.13 The Supreme Court does Rule 1.179 uses the term concise Litigants and attorneys should not consider prior appellate briefs, four separate times.10 The court not address the merits of the appeal the record on appeal, petitions for appreciates brevity and clarity – so in filings on certiorari but rather rehearing or other motions filed much so that a party’s failure to should limit their arguments to the in the appeal when examining a present the petition with accuracy, reasons in favor of or against the petition for certiorari.14 Litigants or brevity and clarity is a sufficient court granting certiorari set out in attorneys may be tempted to then reason to deny the petition.11 Rule 1.178. Similarly to the court’s reurge failed arguments hoping to Extraneous language and argu- distaste for rearguing the facts, a find a receptive audience with the ment should be avoided; hyperbole is frowned upon. As with all legal writing, attorneys and litigants should provide structure to their argument and tie points together in a coherent and succinct fashion.

PITFALLS TO AVOID ON CERTIORARI The court only grants certiorari for appeals when a majority of the justices agree a petition presents special or important reasons. The court has spelled out four of those reasons in Rule 1.178(a) as to why it may grant certiorari, but these reasons are neither controlling nor determinative to the court. Here are some notable pitfalls we see in many petitions that attorneys or litigants should avoid altogether.

Seeking a Second Review of the Facts discussion of the merits should be court. This is a poor strategy and Do not reargue the facts in the included only as necessary to pro- most likely a missed opportunity to petition. A party is entitled to only vide proper context for the reasons engage the court on certiorari. Rule one review of the factual findings. for certiorari review. While it may 1.178(a) expresses exactly how the Certiorari is entirely discretionary, prove difficult to ignore the merits, court wants to use its discretionary and the Supreme Court rarely litigants or attorneys should keep authority to grant certiorari – not entertains a petition because a in mind the spirit of the rule – an by re-examining past arguments party contends factual findings examination for the reason that but considering novel legal issues are incorrect. While a concise certiorari is appropriate before the or conflicts in Court of Civil statement of fact containing the Supreme Court. Appeals’ divisions.

26 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL THE CONTENTS OF probably not in accord with appli- The Supreme Court’s THE PETITION cable decisions of this Court or Supervisory Power Rule 1.178(a) is not an exhaus- the Supreme Court of the United The final reason for certiorari tive list of reasons for certiorari,15 States.”20 Anecdotally, this is per- is rarely invoked by the court in but the rule seeks to impart on haps the most commonly invoked published opinions, “[w]here the litigants or attorneys that certiorari reason for certiorari and the most Court of Civil Appeals has so far should present compelling legal commonly rejected petition. departed from the accepted and issues worthy of the court’s writ Common examples of petitions usual course of judicial proceed- of certiorari. Parties filing petitions invoking the rule that get denied ings or so far sanctioned such for certiorari commonly make two include the argument that the procedure by a trial court as to mistakes. The first, ignoring Rule Court of Civil Appeals incorrectly call for the exercise of this Court’s 1.178(a) entirely. Do not do this. applied the standard of review on power of supervision.”23 There are It is a disservice to the client and summary judgment or that the not hard and fast examples in the the court. The second, forcing the Court of Civil Appeals applied authors’ experience, but the rule’s petition’s argument into two or controlling precedent to a slightly plain language perhaps provides three of the reasons outlined in different set of facts. Rule 1.178(a)(2) the best example, a blatant misap- Rule 1.178(a). This second strategy is not an invitation to make these plication of court procedure or an many times weakens a petition as arguments. Instead, a litigant or outcome far outside the normal the reasons in Rule 1.178(a) were attorney should highlight how the course of judicial proceedings. not written to build upon each Court of Civil Appeals’ decision other. A petition that argues the grossly misapplied controlling CONCLUSION court is faced with a novel legal precedent, how the decision could The best advice the authors can issue and that the Court of Civil lead to misapplications down leave to a litigant or attorney for Appeals failed to apply precedent the road and how the controlling drafting a petition for certiorari is many times creates a contradiction precedent cannot (or can) be distin- to be concise, accurate and clear in your arguments. We encourage guished from the current appeal. and focus on the court’s stated rea- a party to select one of the reasons sons for granting certiorari in Rule in Rule 1.178(a) to make the stron- Conflict Between Divisions 1.178(a). If a litigant or attorney gest argument on certiorari.16 Keep of the Court of Civil Appeals applies that advice to the petition, in mind the court values brevity in The court’s third stated reason he or she will have a better chance the certiorari process. for certiorari is “[w]here a division at getting the justices’ attention of the Court of Civil Appeals has and at achieving the desired out- A Novel Legal Issue rendered a decision in conflict come in the certiorari process. The first special and important with the decision of another divi- reason for certiorari is “[w]here the sion of that court.”21 This reason is Authors Note: Kyle Rogers and Court of Civil Appeals has decided fairly self-explanatory, yet many John Holden are referees for the a question of substance not here- litigants and attorneys simply Supreme Court of Oklahoma. They tofore determined by this court.”17 cite two or three Court of Civil can be reached at 405-556-9354. More commonly recognized as Appeals’ decisions without further Procedural questions regarding peti- a question of first impression or explanation. If Rule 1.178(a)(3) is tions for certiorari or other appeal- novel legal issue.18 Additionally, the basis for the certiorari petition, related issues the referee’s office in our personal view alone, Rule explain the conflicting opinions handles are welcome. Referees’ duties 1.178(a)(1) can include questions of in detail. Many times, these lower include reviewing petitions for cer- substance in an area of the law that appellate court decisions differ in tiorari, requests for stays pending is changing or has significantly key ways and a litigant or attorney appeal, petitions for certiorari certified changed but the court has yet to fails to highlight the differences or interlocutory orders, applications to address that change.19 explain why the differences do not assume original jurisdiction, including matter. A repeated example where judicial disqualifications, challenges Failure to Follow the Supreme Court has invoked to legislation, initiative petitions and Controlling Precedent Rule 1.178(a)(3) is where divisions referendums and civil prisoner filings. The second reason the court of the Court of Civil Appeals have lists for certiorari is “[w]here the issued conflicting opinions inter- Court of Civil Appeals has decided preting the same statute.22 a question of substance in a way

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 27 ABOUT THE AUTHORS (1) Where the Court of Civil Appeals has decided a question of Kyle Rogers is a referee for the substance not heretofore Supreme Court of Oklahoma. He determined by this court; (2) Where the Court of Civil Appeals has previously served as a staff attorney decided a question of substance in for Supreme Court of Oklahoma a way probably not in accord with applicable decisions of this Court or the Justice Steven Taylor and practiced Supreme Court of the United States; law with Rhodes Hieronymus Jones (3) Where a division of the Court of Civil Appeals has rendered a decision in Tucker & Gable. He is a graduate of conflict with the decision of another the OCU School of Law. division of that court; (4) Where the Court of Civil Appeals John Holden is a referee at the has so far departed from the Supreme Court of Oklahoma. Prior accepted and usual course of judicial proceedings or so far to assuming that role, he served for sanctioned such procedure by a several years as a Supreme Court trial court as to call for the exercise staff attorney. He is a graduate of of this Court’s power of supervision. Boston College Law School and 16. There are times when a Court of Civil Duke University. Appeals opinion may present two or more reasons for certiorari, like the Court of Civil Appeals not applying this court’s precedent and other conflicting Court of Civil Appeals’ opinions. ENDNOTES Different issues on appeal may fall within different 1. This article examines petitions for certiorari reasons for certiorari. We encourage a litigant or governed by Oklahoma Supreme Court Rules attorney to focus on the best reason for certiorari 1.178 to 1.181, not the court’s other certiorari given the court’s emphasis on brevity. bases or other constitutional ground for granting 17. Okla. Sup. Ct. R. 1.178(a)(1). certiorari. See Okla. Sup. Ct. R. 1.50 to 1.56; Okla. 18. See McDaneld v. Lynn Hickey Dodge, Inc., Const. art. VII, §§4 & 5; Ingram v. Oneok, Inc., 1999 OK 30, ¶1, 979 P.2d 252, 253. 1989 OK 82, 775 P.2d 810. 19. For example, in Wood v. Mercedes-Benz 2. Over the last three years, the Supreme of Okla. City, 2014 OK 68, 336 P.3d 457, the Court has granted only 17% of the petitions for court granted certiorari to address “the tripartite certiorari filed with the court. classification system of assessing landowner 3. Okla. Sup. Ct. R. 1.178(a), 12 O.S. Supp. liability for injuries sustained on the property.” 2013, app. 1; 20 O.S.2011, §30.1. Id. ¶5, 336 P.3d at 459. In the opinion, the court 4. Okla. Sup. Ct. R. 1.178(a); 20 O.S., §30.1. recognized a now-more commonly recognized 5. See Okla. Sup. Ct. R. 1.179(c), 12 O.S. exception to the open-and-obvious doctrine Supp. 2013, app. 1. where a landowner should foresee possible harm 6. Okla. Sup. Ct. R. 1.178(a). to an invitee as a result of an open-and-obvious 7. Okla. Sup. Ct. R. 1.179(b). condition. See Martinez v. Angel Exploration, 8. Okla. Sup. Ct. R. 1.180(b); Hough v. LLC, 798 F.3d 968, 975-76 (10th Cir. 2015) Leonard, 1993 OK 112, 867 P.2d 438. (“Wood appears to represent a significant shift in 9. Okla. Sup. Ct. R. 1.180(b); Hough, 1993 OK Oklahoma premises liability law.”). 112, 867 P.2d 438; Yocum v. Greenbriar Nursing 20. Okla. Sup. Ct. R. 1.178(a)(2); see Harris v. Home, 2005 OK 27, ¶16, 130 P.3d 213, 221. David Stanley Chevrolet, Inc., 2012 OK 9, 273 10. Okla. Sup. Ct. R. 1.179(a) & (c); see also Okla. P.3d 877. Sup. Ct. R. 1.179(a)(2) (“An outline of the reasons for 21. Okla. Sup. Ct. R. 1.178(a)(3); see Evans & review as suggested in Rule 1.178, expressed in the Assocs. Utility Servs. v. Espinosa, 2011 OK 81, terms and circumstances of the case but without 264 P.3d 1190 (examining conflicting divisions’ unnecessary detail.”); Okla. Supreme Court Rule opinions on a workers’ compensation statute). 1.179(b), 12 O.S. Supp. 2013, app. 1 (“The failure to 22. Evans & Assocs. Utility Servs., 2011 OK 81, present with accuracy, brevity and clarity matters ¶0, 264 P.3d 1190, 1192; Bernal v. Charter Cnty. essential to a ready and adequate understanding of Mut. Ins. Co., 2009 OK 28, ¶4, 209 P.3d 309, 311. the points requiring consideration will be sufficient 23. Okla. Sup. Ct. R. 1.178(a)(4). reason for denying a petition.”). 11. Okla. Sup. Ct. R. 1.179(b). 12. Okla. Sup. Ct. R. 1.179(a)(3)(a). 13. This may seem obvious, but attach a copy of the Court of Civil Appeals’ opinion with the petition for certiorari. Okla. Sup. Ct. R. 1.179(a)(5). 14. Okla. Sup. Ct. R. 1.179(d). 15. Rule 1.178(a) provides as follows:

A review of an opinion of the Court of Civil Appeals in the Supreme Court on writ of certiorari as provided in 20 O.S. § 30.1 is a matter of sound judicial discretion and will be granted only when there are special and important reasons and a majority of the justices direct that certiorari be granted. The following, while neither controlling nor fully measuring the Supreme Court’s discretion, indicate the character of reasons which will be considered:

28 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL

Appellate Law Practical Tips for Civil Appellate Brief Writing in Oklahoma State Court By Susan Beaty and Kellie Laughlin

HEN SUBMITTING AN APPEAL TO THE OKLAHOMA SUPREME COURT, Walways look first to the Oklahoma Supreme Court Rules.1 The answers to a large majority of technical questions – when to file, what to include and where to submit – are included in the rules.2 Here we offer helpful tips for attorneys submitting appeals from final orders of district courts, with particular emphasis on appellate brief writing. The guidance provided herein is intended only as a “starter kit” for submitting an appeal and is not a comprehensive or exhaustive review of the rules. We include additional advice regard- ing style and tone in appellate briefs with the intention of providing insight into effective advocacy at the appellate level.3

GETTING STARTED – TO BRIEF OR NOT TO BRIEF: these appeals, written briefs are THE PETITION IN ERROR ACCELERATED APPEALS not permitted unless the appellate Every appeal begins with UNDER RULE 1.36 court gives leave.8 filing a petition in error.4 Rule 1.21 Before addressing appellate While not having to prepare includes the filing deadlines for briefing, we first address a feature briefs in accelerated appeals may appeals of various types of cases. of appellate procedure that may come as a welcome reprieve to Appellants are required to attach cause some to breathe a sigh of many practitioners, there are three exhibits to the petition in relief: briefs are not required for instances in which counsel may error: 1) a copy of the appealable every appeal. In fact, many civil still wish to submit briefs to the decision from which they are appeals are decided without the aid court. The existence of a compli- appealing, 2) a one-page summary of extensive written arguments and cated issue of law might be reason of the case; and 3) a list of issues to are instead adjudicated according to request leave to file a brief. A be raised on appeal.5 Appellees are to the accelerated appeals process party seeking leave of court to file similarly required to attach a one- enumerated in Rule 1.36. briefs must do so by motion, and page summary of the case to the The accelerated appeals process no briefs may be attached to the response to the petition in error. is available in three categories of motion.9 The Supreme Court main- The forms for the petition in error appeals: 1) rulings on motions tains discretion in determining and response to petition in error for summary judgment under whether to grant leave to file briefs are found in Rule 1.301.6 District Court Rule 13; 2) orders in an accelerated appeal. The court granting dismissal for failure to clerk will not accept briefs in an state a claim; and 3) orders grant- accelerated appeal unless the ing dismissal for lack of personal court so permits.10 In the interest or subject matter jurisdiction.7 In of conserving client and attorney

30 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL resources, counsel should not attempt to submit briefs in an accel- erated appeal without first seeking and receiving leave of court. In all appeals not governed by the accelerated procedure, briefs are required.11 However, because briefs are not normally permitted in accelerated appeals, the petition in error is especially important in listing the issues on appeal and presenting a brief overview of the case.12 In an appeal where briefs are submitted, the exhib- its attached to a petition in error serve as only a preliminary over- view of the forthcoming briefs. In an accelerated appeal, how- ever, the one-page summary of well as mailed to all parties.17 The Rule 1.28(b) gives direction for the case and the list of issues on appellant’s designation of record what items should be designated appeal are the only opportunity must be filed with the Supreme as well as what items may not for persuasion. Of course, as we Court clerk either at the time the be designated, both with an eye will highlight regarding briefs, petition in error is filed there or toward limiting the record to items the summary of the case is never a at the time the designation of relevant to the issues on appeal. place for bare legal argument. Still, record is filed in the district court, First, the rule directs parties to des- a prudent attorney will utilize the whichever is later.18 The designa- ignate only those instruments filed permitted single page to not only tion of record must be mailed to in the case which are pertinent. To present the facts and procedural the other parties and filed in the reiterate this limitation, the rule history, but also highlight the most district court either concurrently states, “[N]o designation of record important issues of fact and law. with or prior to filing the petition which generally includes the entire in error in the district court. If you trial court record shall be filed BEFORE YOU BRIEF – have designated any transcripts, without order of the Chief Justice.” DESIGNATING THE you must also give the designation Rule 1.28 also allows trial courts RECORD ON APPEAL of record, along with the cost of to penalize parties who designate Essential to any successful appel- preparing the transcripts, to the excessive or unnecessary portions late brief is citation to a record sup- court reporter. Within 20 days of of transcript.22 porting your claims of error.13 The the filing of the appellant’s des- Second, the rule expressly Oklahoma Supreme Court Rules ignation, the appellee must file a states which items shall not be provide for the record on appeal counter-designation of record.19 included in the record: to be created by the parties filing a The form for the designation and designation of record. The appel- counter-designation is the same: The record on appeal shall not late court’s review is limited to the Form 11 in Rule 1.301.20 Where include the following unless instruments included in the record the parties are in agreement as upon order of the trial court or on appeal. 14 To be included in the to which instruments should be appellate court, or unless the record on appeal, those instruments designated for the record, they document is specifically drawn must be designated by the parties.15 may file a single stipulated desig- in issue by the appeal: subpoe- Indeed, “all parties to an appeal nation of record within 10 days of nas, summonses, certificates must designate a record.”16 Rule filing the petition in error.21 Rule of service, returns and accep- 1.28(a) sets out thorough instruc- 1.33 explains how and when the tances of service, and procedural tions for how to properly desig- district court clerk assembles the motions or orders (e.g., continu- nate your record for appeal. designated record and files it with ances, extensions or time, etc.). Your designation of record the Oklahoma Supreme Court Depositions filed but not offered must be filed in the district court clerk for consideration with your or admitted into evidence must and in the Supreme Court, as briefed argument. be excluded from the record on

32 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL appeal. Materials which were not summary of the record on appeal. record will likely include an expla- before the trial court at the time The summary of the record is the nation of each instrument and why of the decision appealed are not second section of the brief, follow- it is relevant. The summary of the properly part of the record on ing the index: record prepares the reviewing court appeal without order of the trial to better understand the allegations court of the appellate court.23 The brief of the moving party of error presented later in the brief. shall contain a Summary of the Transcripts of hearings or Record, setting forth the mate- WRITING THE BRIEF – trial are often designated for the rial parts of the pleadings, pro- WHAT’S THE ISSUE? record in order to show alleged ceedings, facts and documents In beginning to draft an appel- errors. Where the parties have not upon which the party relies, late brief, one of the most import- requested a court reporter or paid together with such other state- ant tasks is also one of the most for a transcript, the rules allow the ments from the record as are difficult: identifying the issue(s) parties to file a narrative statement necessary to a full understand- on appeal. in lieu of a transcript.24 That rule ing of the questions presented As mentioned above, the first provides specific procedures for to this Court for decision.26 place in which an appellant lays obtaining the trial court’s approval out the issues on appeal (also before a narrative statement may The summary should be a referred to as “allegations of error”) be filed with the Supreme Court direct and accurate explanation of is in an exhibit attached to the clerk. If you do not have a tran- the procedural history of the case; petition in error, consisting of script, it may be well worth the in other words, it should explain a bullet-pointed list of issues to effort to prepare and file a narra- how the case was initiated and be raised.27 Of course, all issues tive statement to present a record how it got to the appellate court. raised before the appellate court supporting your claims on appeal. Statements in the summary of must have first been considered When deciding which instru- the record must be supported by and resolved by the trial court ments to include in the designa- reference to the record. Where a below. 28 Additionally, though an tion of record, parties should be party intends to assert error in the issue is raised in the petition in mindful of the applicable standard admission or rejection of evidence error, it is waived if later omitted of review as well as the issues or or testimony, the testimony shall from the brief.29 Similarly, an issue errors alleged. Both will help par- be set out in the summary of the raised in both the petition in error ties determine which pleadings, record with citation to the record. and the brief, but for which no testimony or exhibits will best Where a party intends to assert authority is given in support, may support their claims on appeal. errors in the jury instructions, also be waived.30 In the event that A case governed by a clear and the challenged instructions must you unintentionally omit an issue convincing standard may well be included in the summary of from the petition in error, how- require more of a record than one the record or in an appendix to ever, you may 1) file an amended determined by any competent evi- the brief. petition in error, if the brief has dence, although the type of errors The summary of the record not been filed; 2) seek leave to file alleged also impacts the record is not the place for argument an amended petition in error, if the necessary to allow review of those or contentious language. In the brief has already been filed; or errors. In briefs, “[q]uotations from summary of the record, the 3) simply include the omitted issues the record must be accurate, in reviewing court wants a clear and in the brief.31 The appellant’s brief- context, and reference the pages in accurate view of what happened. in-chief will be deemed to amend the record where they appear.”25 Rule 1.11(f) expressly directs the the petition in error to include any Necessarily you will want to des- parties to include separate prop- additional issues on appeal, so long ignate any instrument you intend ositions of error later in the brief, as the issues were considered and to quote from in your brief. not in the summary of the record. resolved by the trial court.32 No Additionally, it is unnecessary to issue may be raised for the first WRITING THE BRIEF – include detailed explanation of time in a reply brief.33 SUMMARY OF THE RECORD parts of the record not relevant to Still, the greatest difficulty Once you have your assembled the questions presented on appeal. arises not in determining where record and are ready to draft your Where you have diligently limited to list the issues on appeal, but appellate brief, look to Rule 1.11(e) the record to relevant instruments, in determining what issues to (1) as a guide for drafting the however, your summary of the include. Supreme Court Rule

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 33 1.11(f) provides that in appellate FINAL THOUGHTS – to muddy the waters with puffery briefs, “[t]he main contentions of PLAY NICE, KEEP IT SIMPLE or legalese. Distill it down and the parties must be set forth in The tone with which an appel- keep it straightforward. separate propositions” and author- late argument is written can be ity supporting “each proposition nearly as important as its sub- CONCLUSION must follow the statement of the stance. When writing an appellate The appellate court reviewing proposition.”34 Rule 1.11(f) essen- brief, attorneys must walk the fine a trial court decision is bound by tially requires that a brief be well line between maintaining persua- the record presented, the applicable organized and issues be clearly sive value and sounding overly standard of review and relevant delineated. You should therefore argumentative. As in trial practice, authority. Focusing on these things ensure that every proposition is lawyers in appellate practice can in a clear, direct and simple fashion clear and distinct from the other stifle their own effectiveness by is your best bet. Plainly state how main contentions and that sup- communicating in an excessively the trial court erred, accurately porting argument and authority adversarial manner. Not only does state where the error is shown in properly follow the appropriate this undermine the general goal of the record, explain why your client assertion.35 civility in the legal profession, but is entitled to relief and always use Occasionally, for fear that a it also detracts from the overall the Oklahoma Supreme Court viable issue might be forfeited on effectiveness of the brief. A quick Rules as your guide. appeal, some attorneys adopt a rule of thumb would be to gen- scorched earth approach in listing erally omit words describing the and briefing issues on appeal. opposing party or the lower court. ABOUT THE AUTHORS While it is important to include With limited space for argument Susan Beaty is a staff attorney for and support every major conten- in a brief – only 30 pages37 – it is Judge Kenneth L. Buettner of the tion for which there is merit, it best to preserve every word in Oklahoma Court of Civil Appeals. is also your duty to judiciously furtherance of your argument. She is a member of the OBA select and identify the issues Finally, when drafting an Appellate Practice Section and a raised.36 Though a party might appellate brief, remember to keep member of Oklahoma City Rotary list all possible issues on appeal it simple. Though the idea of Club 29. She is a graduate of the in the list of issues attached to the drafting an argument directed to OU College of Law. petition in error, the brief should the highest court in the state may Kellie Laughlin graduated from represent a more carefully crafted conjure impulses to delve into the OU College of Law in 2018, and distilled argument. As fea- the nuances of complicated legal where she served as an editor of sible, you should seek to present inquiries and employ lofty legal the Oklahoma Law Review and only a few main questions in your jargon, the best briefs are those competed in moot court. She brief. Avoid conflating and con- which capture the arguments as is currently a staff attorney to fusing issues. A more intentional succinctly and simply as possi- Judge Kenneth L. Buettner of the selection and identification of the ble.38 An effective brief acts as an Oklahoma Court of Civil Appeals issues prior to drafting the brief instruction manual guiding the in Oklahoma City. may help avert trouble. court in the correct application of the law. As such, there is no need ENDNOTES 1. The Oklahoma Supreme Court Rules are found in Appendix 1 to Chapter 15 of Title 12 of the Oklahoma Statutes. 12 O.S. Supp. 2013 Ch. 15 App. 1. We cite to the Oklahoma Supreme Court Rules hereafter by citing simply to the appropriate rule number (e.g. “Rule 1.1”). 2. Special procedures regarding specific types of appeals from orders other than a The tone with which an appellate argument final order from a district court, such as those from the Corporation Commission, Workers’ Compensation proceedings, Tax Commission, is written can be nearly as important as etc., are laid out with particularity in the rules. 3. The opinions expressed herein are the authors’ alone and do not represent the view of any its substance. court or member thereof. Judicial and professional opinions may differ regarding the persuasiveness of advocacy tactics addressed herein. 4. Rule 1.23(a)(1). 5. Rule 1.301 (Form 5). 6. Id., (Form 5)(form for petition in error), (Form 6) (form for response to petition in error).

34 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL 7. Rule 1.36. 19. Rule 1.28(c). Bear in mind that subsections 34. Rule 1.11(f). 8. Id. 1, 2 and 3 of Rule 1.28(b) include different deadlines 35. Mazzio’s Corp. v. Bright, 2002 OK CIV 9. Id. for filing the designation of record in three specific APP 45, ¶¶18-19, 46 P.3d 201 (striking and 10. Id. types of appeals. denying consideration of portions of petitioner’s 11. Rule 1.10(a)(1). 20. Rule 1.28(b), (c). The rule notes that a brief for failure to properly enumerate and support 12. Choate v. Lawyers Title Ins. Corp., 2016 different form will be used when the Oklahoma issues on appeal). CIV APP 60, ¶54, 385 P.3d 670 (citing Siemens Uniform Case Management System is in effect. 36. See Tenth Circuit’s Practitioner’s Guide Fin. Servs., Inc. v. MTG Guarnieri Mfg., Inc., 2012 This article does not address procedures under (9th Rev., January 2018), Part VI(C)(2): OK CIV APP 1, ¶8, 269 P.3d 36). that future scenario. 13. Hamid v. Sew Original, 1982 OK 46, ¶6, 21. Rule 1.28(g). The statement of the issues or questions 645 P.2d 496 (“Legal error may not be presumed ... 22. Rule 1.28(b), (g). presented for review requires careful selection from a silent appellate record.”) (also explaining 23. Rule 1.28(b). and choice of language. The main issue should that, absent a record affirmatively showing error, 24. Rule 1.30. be stressed and an effort made to present the appellate court presumes that the trial court 25. Rule 1.11(j)(1). no more than a few questions. The questions did not err). 26. Rule 1.11(e)(1). selected should be stated clearly and simply. 14. Rule 1.33(d) (“The record on appeal shall 27. Rule 1.301 (Form 5). A brief that assigns a dozen errors and treats consist only of those portions of ‘the entire trial 28. Rule 1.26(a); Dumas v. Conyer, 1968 OK each as being of equal importance when some court record’ properly designated by a party to 165, ¶20, 448 P.2d 835. are clearly not lessens the stronger arguments. the appeal or ordered by the appellate court.”). 29. Rule 1.11(k)(1); Mangum Oil & Gas v. As Justice Frankfurter once said, a bad 15. Id. Mayabb, 2016 OK CIV APP 48, ¶15, 378 P.3d 1225 argument is like the clock striking thirteen, 16. A notable exception to this rule is in cases (citing Peters v. Golden Oil Co., 1979 OK 123, ¶3, it puts in doubt the others. governed by the accelerated procedure outlined 600 P.2d 330)(waiving issues raised in petition but in Supreme Court Rule 1.36. In those cases, the omitted from brief ). 37. Rule 1.11(b). parties themselves gather and file the record on 30. Id.; Badillo v. Mid Century Ins. Co., 2005 38 See Justice Ruth Bader Ginsburg, Gillian appeal, rather than designating a record to be OK 48, ¶62 n. 18, 121 P.3d 1080 (citing State Metzger, Abbe Gluck, A Conversation with Justice prepared by the district court clerk; though the ex rel. Dep’t of Human Servs. v. Baggett, 1999 Ruth Bader Ginsburg, 25 Colum. J. of Gender & L. record submitted still must be certified by the OK 68, ¶12 n. 5, 990 P.2d 235) (recognizing an 6 (2013) (“But one thing about writing a brief. You district court clerk. Rule 1.36(g). exception to waiver of an issue unsupported by have to keep it simple. You have to remember that Additionally, in the unusual case in which authority where the issue is well taken, but finding judges are overwhelmed with reading cases briefs ... questions of law may be determined without that an unsupported issue was not subject to the [N]ever write a sentence that has to be read again reference to the trial court record, the parties may exception and was therefore waived). to be understood.”). file a statement in lieu of a record on appeal. See 31. Rule 1.26(a). Rule 1.31. 32. Rule 1.26(b) (citing Jackson v. Okla. Mem’l 17. Rule 1.28(b). Hosp., 1995 OK 112 ¶5, 909 P.2d 765). 18. Id. 33. Id.

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 35 Appellate Law Building a Better Brief Using Each Section of Your Appellate Brief to Make Your Case By Jennifer M. Warren

HE ABILITY TO WRITE PERSUASIVELY IS THE APPELLATE PRACTITIONER’S Tmost important skill, particularly given that most appeals are decided without oral argu- ment. In an Oklahoma civil appeal, you only have 30 pages to make your case,1 so it is imper- ative that you incorporate persuasive writing strategies into each section of your brief. Below are several suggestions for ensuring that your appellate brief is built to persuade.

THE INTRODUCTION Claiming that its arbitration agreements,” Perry v. Thomas, The best appellate briefs not only agreement is more “consumer 482 U.S. 483, 492 n.9 (1987), the present compelling legal arguments, friendly” than others despite FAA does not preempt it. they also tell compelling stories. its class-action ban, AT&T From reading AT&T’s brief, Your arguments will be more mem- seeks to transform a factbound one might think California orable, more powerful and more state-law question of uncon- had struck out on its own in its convincing if the reader is engaged scionability into a question of approach to the enforceability by a captivating story that helps federal preemption. But the of class-action bans. In fact, them appreciate the significance of question whether a contractual courts applying the general the case and understand the roles provision offends generally contract law of at least twenty of the parties. Although it is not applicable state law is a matter States have held that provisions required by the Oklahoma Supreme that the Federal Arbitration purporting to bar consumers Court Rules,2 you should always Act (FAA) leaves to the States, or employees from pursuing consider opening your appellate so long as state law does not classwide relief in any forum brief with a compelling introduc- discriminate against arbitration may be unenforceable. If tory section that presents the story … The California courts, like California’s highest court has of your case. Some cases more easily many others, have applied gen- distorted its own common law, lend themselves to captivating eral contract law to hold that as AT&T contends, then so have story-telling than others, yet class-action bans in adhesion the highest courts of Alabama, even the driest or most techni- contracts that effectively excul- Illinois, Massachusetts, Missouri, cal case can be made interesting pate defendants from liability New Jersey, New Mexico, North with the right presentation. Take, are unenforceable, without Carolina, South Carolina, West for example, this excerpt from a regard to whether the bans are Virginia, and Washington. brief written by experienced U.S. part of arbitration agreements. So too have courts applying Supreme Court advocate Deepak Because the applicable state law the law of Arizona, Delaware, Gupta, which manages to generate does not treat arbitration agree- Florida, Georgia, Michigan, a compelling narrative out of a ments “in a manner different Ohio, Oregon, Pennsylvania, and case concerning preemption and from that in which it other- Wisconsin. Even if the fidelity of statutory interpretation: wise construes nonarbitration these courts to state common-law

36 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL principles were relevant to the contain a Summary of the Record record will not go unnoticed by issue of FAA preemption, it “setting forth the material parts of the court. Balance is important would be an unprecedented the pleadings, proceedings, facts here – if the statement of facts is incursion on State sovereignty and documents upon which the too argumentative or misleading in for this Court to conclude party relies, together with such any way, your otherwise valid legal that so many States have been other statements from the record as arguments may be discounted.7 untrue to their own law.3 are necessary to a full understand- You should also strive for ing of the questions presented.”4 Of clarity when summarizing the By using punchy language and course, all facts stated “must be sup- record, particularly for cases that providing context, the brief conveys ported by citation to the record.”5 involve complex factual situations a sense of urgency and righteous- The summary of the record or technical terminology. Unlike ness that transforms an otherwise sets out the facts, and the facts the attorney who is intimately dull topic into an interesting case. must be accurate but that does familiar with every nuance of Like Mr. Gupta does above, not mean they have to be boring. the lawsuit, the appellate court is your introduction should present Treat the summary of the record approaching the case with a fresh the relevant facts and convey the as an opportunity to expound on set of eyes. Thus, it is necessary theme of your case in a way that the compelling story you set up in to lay out the facts of the case in a is persuasive, yet accurate and the introduction. The key here is way that is clear and easy to fol- balanced. Moreover, by providing to present the relevant facts, while low. To do so, make liberal use of context, highlighting choice facts at the same time highlighting the headings, incorporate visual dia- and framing your legal argument facts (or absence of facts) that sup- grams such as timelines or maps in a compelling way, the introduc- port your theme of the case and when appropriate and use the real tion can also start to counteract any your legal arguments.6 Remember, name of the client rather than the assumptions the reader may harbor. however, that while you should generic “appellant” or “appellee.” strive to present the facts in a way Stylistically, avoid legalese, exces- THE SUMMARY that is persuasive and compelling, sive acronyms, clumsy sentence OF THE RECORD accuracy and completeness are the structure and wordiness. In one Oklahoma Supreme Court Rule most crucial components. Taking of his more well-known opin- 1.11(e) requires each civil appeal to liberties when summarizing the ions, Chief Justice John Roberts

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 37 demonstrates how using short, including nothing more than a your legal argument. An appellate clear sentences and direct lan- bare recitation of the standard of brief should always comply with guage provides a compelling yet review. Instead, explain how the the court’s rules and represent clear summation of the facts: standard of review functions and your best very work. then show the court throughout North Philly, May 4, 2001. your arguments section that you THE CONCLUSION Officer Sean Devlin, Narcotics have satisfied it.11 Every appellate brief should Strike Force, was working the include a pithy and powerful morning shift. Undercover THE ARGUMENT conclusion. This is your last oppor- surveillance. The neighbor- It is axiomatic that an effec- tunity to present your case to the hood? Tough as a three-dollar tive argument section must be court, so be bold! Reiterate the story steak. Devlin knew. Five years well-written, accurate when char- of your case in the most memorable on the beat, nine months with acterizing the law, fair in its treat- and compelling way possible and the Strike Force. He’d made ment of the facts and respectful of confidently (but succinctly) reassert fifteen, twenty drug busts in the lower court’s ruling. The best your main arguments. the neighborhood. appellate briefs will also be concise Every section of an appellate Devlin spotted him: a lone and focused. Resist the tempta- brief is an opportunity to educate man on the corner. Another tion to include every conceivable and persuade the court regard- approached. Quick exchange argument that could be made, oth- ing your case. Take no section for of words. Cash handed over; erwise you risk overshadowing a granted and use every opportu- small objects handed back. winning argument.12 Instead, select nity to make your case. Each man then quickly on his your arguments carefully, orga- own way. Devlin knew the nize them in a logical manner and guy wasn’t buying bus tokens. ensure that each is meticulously ABOUT THE AUTHOR He radioed a description and supported by citation to authority.13 Jennifer M. Warren is an attorney Officer Stein picked up the In presenting your arguments, at the Rudnicki Firm, where she buyer. Sure enough: three bags pay particularly close attention practices commercial litigation and of crack in the guy’s pocket. to how you craft your headings. is a member of the firm’s Appellate Head downtown and book him. In addition to being required by Practice Group. She is an adjunct Just another day at the office.8 the Oklahoma Supreme Court professor at the OCU School of Law Rules,14 setting out your argu- and a graduate of the OU College of While you may not want to be ments in separate propositions Law and New York University. quite as cinematic as Chief Justice provides you with another oppor- Roberts in your summary of the tunity to advocate for your client. ENDNOTES record, you should nevertheless Headings and subheadings grab 1. See Okla. Sup. Ct. R. 1.11(b). 2. See Okla. Sup. Ct. R. 1.11. strive for the same level of clarity the reader’s attention and set the 3. Brief for Respondents at 1-2, AT&T Mobility and directness. tone for the remainder of the sec- LLC v. Concepcion, 563 U.S. 333 (2011), No. 09-893, 2010 WL 4411292 at *1-2. tion, so they must do more than 4. See Okla. Sup. Ct. R. 1.11(e). THE STANDARD OF REVIEW simply introduce an abstract legal 5. Id. 6. Judge Stephen J. Dwyer, Leonard J. A strong appellate brief will not topic. Each heading should pro- Feldman, Ryan P. McBride, “How to Write, Edit, only recite the standard of review, vide a persuasive summary of the and Review Persuasive Briefs: Seven Guidelines from One Judge and Two Lawyers,” 31 Seattle it will also be used to persuade. main arguments. In crafting your U. L. Rev. 417, 418 (2008). The “standard of review provides main headings, best practices 7. Id. 8. Pennsylvania v. Dunlap, 555 U.S. 964 (2008). the degree of deference the deci- usually dictate that you should 9. Fields v. Saunders, 2012 OK 17, 278 P.3d sion under review should receive,” state the conclusion you want the 577, 581. 10. Joi T. Montiel, “Your Appellate Brief: An and that deference should be used court to reach and relate the key Obstacle Course for the Court or A Clear Pathway to your advantage whenever possi- facts and reasoning supporting to Your Conclusion,” 73 Ala. Law. 344, 346 (2012). 9 11. Dwyer, supra at 420. ble. If the standard of review is that conclusion. 12. Alex Kozinski, “The Wrong Stuff,” 1992 favorable to your position, empha- Finally, do not discount the B.Y.U. L. Rev. 325, 327 (1992). size it throughout your arguments. importance of proper spelling, 13. See Okla. Sup. Ct. R. 1.11(k). 14. See Okla. Sup. Ct. R. 1.11(f). If the standard of review is not grammar, citation and formatting. favorable, confront it head on and Poor writing or improper format- explain why it is not fatal to your ting will distract the reader and case.10 In either situation, avoid undermine the persuasive force of

38 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL

Appellate Law Trials and Tribulations From the Appellate Vantage Point By Judge Jane P. Wiseman

WAS AMAZED WHEN I FIRST BECAME AN APPELLATE JUDGE to discover how Ilittle I knew from my trial judge experience about how to avoid getting reversed on appeal. As a trial judge, I got opinions stating: “This is an appeal from a decision by Judge Jane Wiseman – other grounds for reversal include...” Now I suppose it may depend, from your vantage point as a lawyer, on whether you want to keep the trial judge from committing reversible error or you want to introduce some to have something on appeal if your case is going south. I can’t say I’ve ever seen the latter situation, but I’m sure it’s not unheard of.

So now, as an appellate judge, I to endear you to the judge, I’m sure, KEEP IN MIND: ‘MATTERS commend the following 11 precepts but nevertheless an interesting NOT FIRST PRESENTED to your attention. question. I’m not sure how it would TO THE TRIAL COURT ARE be received, but I certainly wish I’d GENERALLY EXCLUDED DO NOT NEGLECT THE been more cognizant of how my FROM CONSIDERATION STANDARD OF REVIEW decision would be reviewed when BY AN APPELLATE FORUM’ 1 Not infrequently, we see I was on the trial bench. “An issue not presented to briefs without any mention of the the trial court for decision will Standard of Review (SOR). Please MAKE SURE YOU HAVE not be considered for the first don’t pick the one you think will AN APPEALABLE ORDER time on appeal.”2 We will refuse help you the most. Every appellate When we give you a chance to address propositions of error opinion that I’ve ever seen has a to keep your appeal alive and on appeal that have not been reference to the applicable SOR, tell you in detail how to do it (by decided by the trial court, which so you might as well show us that actually getting a final/appealable of course makes our job easier. you’re on the same page as we are order), I would suggest that it’s This principle does not apply to on that subject. I guess an inter- not the most advisable practice to grounds raised by an appellee esting question would be whether argue with us about who has juris- to affirm the trial court because there might be times in the trial diction and then make us dismiss an appellee may obtain affir- court when mentioning how the your appeal so you can spend mance of the order appealed on trial court’s ruling on a given ques- another $200 to refile. Chances are, any basis, whether argued to the tion might be reviewed on appeal. if you get a show cause order, it’s district court or not, the appellate “You have great discretion on this something you need to go back court not being bound by the issue, Judge, so don’t abuse it.” Or, to the trial court for in order to trial court’s reasoning, and the “The law on this point is clear, assuage our concerns about our appellate court may affirm on Judge, and as a question of law, appellate jurisdiction. any proper legal theory.3 Which, this will be reviewed de novo on I may add, is another reason appeal so we’ll have another shot at not to haggle too much over the getting it right.” Clearly designed form of the order or judgment,

40 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL i.e., whether it contains the trial court’s reasoning or basis for its decision. If it’s right, it’s right for whatever reason, and if it’s wrong, we might appreciate the trial court’s reasoning, but it will still be reversed.

BE ALERT TO THE CONCEPT OF ‘INVITED ERROR’ We have recently had several cases raising this specter of “invited error:”

Parties to an action on appeal are not permitted to secure a reversal of a judgment upon error which they have invited, acquiesced or tacitly conceded in, or to assume an inconsis- tent position from that taken in the trial court. As we recog- nized in Union Texas Petroleum v. Corp. Comm’n, this is a well- settled rule which emanates from the very heart of the pur- pose served by an appeal. “To allow such a traverse in theory at the appellate level thwarts the very basis of the appellate process.”4

So, if you object to a witness sponsoring an exhibit or offering an opinion and the objection is overruled, how far can you go, in cross-examining the witness, before it becomes invited error if you venture into territory not

THE OKLAHOMA BAR JOURNAL I cannot stress enough the much-neglected importance of the pretrial order on appeal.

covered on direct? I won’t say of employing post-trial motions, me to allow such parties another this issue comes up frequently, particularly 12 O.S. §651 motions chance, particularly when they but I just alert you to it as a for new trial. Aren’t you con- have not had their day in court potential pitfall. cerned that you’ll inadvertently on the merits. Anyway, that’s leave out an applicable ground “Wiseman on 1031.1” for what RECORD ON APPEAL and be precluded from raising it’s worth. The next is a very specific it on appeal pursuant to 12 O.S. recommendation pertaining to §991(b)? This states, “If a motion PRETRIAL ORDERS the record on appeal. In cases for a new trial be filed and a new I cannot stress enough the involving lengthy transcripts or trial denied, the movant may not, much-neglected importance of the multi-volume transcripts – divorce on the appeal, raise allegations of pretrial order on appeal. This is cases with numerous or compli- error that were available to him at the script that the parties and the cated property division issues the time of the filing of his motion trial court should be following at being foremost in mind – please for a new trial but were not therein trial. We shouldn’t have to guess have the court reporter include asserted.” Make sure you cover all whether a certain issue, theory a word index. We spend a lot of the ground needed. of recovery, witness or exhibit time searching the record for constitutes a surprise on which every mention of a specific sub- MOTIONS TO VACATE reversal is sought. Sloppiness in ject or topic, and the word index UNDER 12 O.S. §1031.1 the preparation of the pretrial would be an invaluable time saver. We have had a rash of recent order can have unpleasant conse- If we had the new uniform case cases involving the trial court’s quences on appeal, for instance management system (still in the refusal to grant motions to vacate if we have to guess whether the works), it would change some of default judgments pursuant to exhibit listed by plaintiff is the that with online searchable docu- O.S. §1031.1. Perhaps this is the same one defendant now seeks to ments, but, as you can well imag- wrong audience to address this have admitted under the all- ine, reading hundreds of pages to, but if you are urging such a encompassing categorical listing of briefs and transcripts, whether motion, I think it’s worth pointing on defendant’s pretrial exhibit in hard copy or online, is phys- out to the trial court that, with list, “All of plaintiff’s exhibits.” ically challenging, if not down- abuse of discretion being the SOR right debilitating. If you make on such issues and the court’s JURY INSTRUCTIONS our review of your case easier by discretion being so broad and Ignore these at your peril. If showing us, or at least making wide-ranging under §1031.1, it is you don’t actually designate the it possible for us to find all the much easier to abuse one’s discre- instructions you contend are places in the record where the tion in denying such a motion to erroneous or if you fail to ensure contested issue or subject is men- vacate than it is by granting it. I’m they are included in the record, tioned, you increase your chances not sure why we are having such it can be fatal to this portion of of success. an outbreak of these denials – maybe your appeal. We have had some it’s due to illness and fatigue – the recently in which we could not MOTIONS FOR NEW TRIAL trial courts are just sick and tired determine whether there had been It would be interesting to know of putting up with defaulting error in the giving or denying of your views on the advisability parties – but it seems easier to certain instructions because the

42 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL record was silent on their content. CONCLUSION ABOUT THE AUTHOR Make sure a written copy of your I’ll end with a quote from Jane P. Wiseman is a judge of the requested instructions that were Judge Alex Sanders, formerly the Court of Civil Appeals in Tulsa. denied is filed in the case, the trial chief judge of the South Carolina She received her J.D. from the court has marked them “denied” Court of Appeals, who said, “More TU College of Law. In 1977, she and you’ve made your record in simply put, appellate courts in this was appointed a special judge for the instruction conference with state, like well-behaved children, Tulsa County. In 1981, the governor the court. do not speak unless spoken to and appointed her a district judge do not answer questions they are where she was assigned to the ATTORNEY FEES not asked.” I hope this has been Family Division and then to the Civil AND COSTS ON APPEAL helpful both at the trial and appel- Division. As a trial judge, she tried Although several years ago late levels. Thank you for wading close to 1,000 jury trials. In March a change was instituted to the through this! 2005, she was appointed to her appellate rules regarding requests current position by Gov. Brad Henry. for costs and attorney fees (Rule Author’s Note: This article was

1.14) – they must now always be by written as continuing legal education ENDNOTES separate motion – this is still vio- material presented at the 2019 OBA 1. Jernigan v. Jernigan, 2006 OK 22, ¶26. Solo & Small Firm Conference. 2. Northwest Datsun v. Okla. Motor Vehicle lated with astonishing frequency. Comm’n, 1987 OK 31, ¶16. The change to a separate filing 3. McMinn v. City of Oklahoma City, 1997 makes it easier to ensure that these OK 154, ¶11. 4. Samedan Oil Corp. v. Corporation Comm’n, applications are addressed and 1988 OK 56, ¶7. not overlooked, which they could easily be when raised in only one sentence in an appellate brief. If they are not requested by separate motion, they will either be denied or refused consideration as not in compliance with Rule 1.14.

REFERENCES TO THE TRIAL JUDGE My final note is to be kind to the trial court – professionalism is also paramount at the appel- late level. It serves no purpose to berate the trial court for its per- ceived shortcomings – your points should be made using the record and your brilliant legal argu- ments. Those former trial judges now on the appellate bench can read between the lines, and we can remember being excoriated in appellate print by unhappy attor- neys on the losing end at trial. So, at least soften the tone and avoid adjectives in describing the judge’s conduct – let it speak for itself and use compelling precedent to show the error complained of.

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 43 HIGHLIGHTS

SPEAKERS AND CLE CLE: Cannabis Potpourri Join a host of experts on Wednesday for a pre-Annual Meeting CLE program. Sarah Lee Gossett Parrish has put together an excellent program taught by a diverse group of experts from both the local and national arena. Topics include the stages of legal marijuana enterprise, medical marijuana use at work, defending criminal charges, intellectual property and more. (7 MCLE credit hours) CLE: The Malpractice of Hunches, The Future is Now and Cyber Ethics Start Thursday morning with luncheon keynote speaker Ed Walters, CEO and co-founder of Fastcase, who will present “The Malpractice of Hunches – Data Analytics to Serve Clients and Run a Successful Firm” followed by a discussion panel “The Future is Now – What You Need to Know,” with OU College of Law Director of Technology Innovation Kenton Brice, OBA Management Assistance Program Director Jim Calloway, author and lecturer Mark Robertson and Ed Walters. The morning program will conclude with OBA General Counsel Gina Hendryx and Jim Calloway discussing “Cyber Ethics – Legal Ethics in a Digital Age.” Annual Meeting registrants receive an additional discount on this program. (3 MCLE credit hours including 1 hour of ethics)

Delegates Breakfast Kick off the last day of the Annual Meeting with a generous breakfast and a presentation by retired NFL ref- eree Walt Coleman. Like most judges and lawyers, as a referee for more than two decades, Mr. Coleman has been no stranger to unpopular decisions. As “one of the most maligned yet anonymous men in the world,” he will present a humorous view of “Turning Boos into Cheers: How Effective Are You?” The breakfast will be a ticketed event, free for delegates or only $30 for nondelegates.

SOCIAL EVENTS President’s Reception Join President Chuck Chesnut on Wednesday evening to catch up with friends from around the state at the President’s Reception. The event is free with Annual Meeting registration and complimentary buffet and drink tickets will be provided.

44 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL Midtown Pub Crawl After the President’s Reception, join your friends and colleagues for a fun trip up to Midtown on the Oklahoma City streetcar! The event is free with Annual Meeting registration and participants will be provided an all-day streetcar pass good through midnight Wednesday and a map of pubs providing specials and discounts for the event. Co-hosted by the Young Lawyers Division and the Oklahoma Bar Association. Sponsored by LawPay.

Out of This World Party Join your peers for an Out of This World party Thursday night. Set your dance moves to stun and unwind in a ballroom far, far away from a day of meetings and presentations. Not into dancing? Enjoy lounge seating and a knockout view of downtown Oklahoma City at sunset, plus capture fun memories with your friends and colleagues in the far-out photo booth. A complimentary buffet and drink tickets will be provided. Co-hosted by the Oklahoma Bar Association and Oklahoma Bar Foundation.

BAR BUSINESS AND MORE Committee and Section Meetings Many committees and sections will hold important meetings in conjunction with the Annual Meeting. For a full list of times and locations of all meetings and events, see the schedule page at www.okbar.org/annualmeeting.

Annual Luncheon On Thursday, hear CEO and co-founder of Fastcase Ed Walters present “Real Intelligence About Artificial Intelligence” and learn about practical applications of automation and legal tech. Plus, OBA Award recipients will be honored at the event. Annual Meeting registrants receive a discount. Sponsored by the OBA Family Law Section.

General Assembly and House of Delegates The most important association business of the year takes place Friday morning – OBA award presentations, updates from judicial and OBA leaders, recognition of new leadership and consideration of resolutions. Resolutions in bill format must be received by Executive Director John Morris Williams by Oct. 15.

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 45

EVENTS

All events will be held at the Renaissance Oklahoma City Convention Center Hotel unless otherwise specified.

WEDNESDAY, NOV. 6 THURSDAY, NOV. 7 FRIDAY, NOV. 8 CLE: Cannabis Potpourri CLE: The Future is Now – Delegates Breakfast Oklahoma Law School What You Need to General Assembly Alumni Luncheons Know and Cyber House of Delegates Committee and Section Ethics – Legal Ethics Meetings in a Digital Age President’s Reception Committee and Section Midtown Pub Crawl Meetings Hospitality Suites Annual Luncheon Out of This World Party Past Presidents Dinner Hospitality Suites

NOTICE OF MEETINGS Committees listed below will meet at the times specified for each on Thursday, Nov. 7, in Room 6 (street level) of the Convention Center, 1 Myriad Gardens, Oklahoma City, Oklahoma, in conjunction with the 115th Annual Meeting.

CREDENTIALS COMMITTEE | RULES & BYLAWS RESOLUTIONS COMMITTEE | 9-9:30 A.M. COMMITTEE | 10-10:30 A.M. 10:45-11:45 A.M. Committee members are: Committee members are: Committee members are: Chairperson Chairperson Luke Gaither, Henryetta; Chairperson Judge Richard A. Molly A. Aspan, Tulsa; Kendall A. Sykes, Kimberly K. Moore, Tulsa; Emma Woolery, Sapulpa; Roy D. Tucker, Oklahoma City; Peggy Stockwell, Payne, Tulsa; and Jeffery D. Trevillion, Muskogee; Billy Coyle IV, Oklahoma Norman; Clayton Baker, Jay; Oklahoma City. City; Nathan Richter, Mustang; and M. Courtney Briggs, Oklahoma City; Ron Gore, Tulsa. and Mark E. Fields, McAlester.

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 47 2019 HOUSE OF DELEGATES

Delegate certification should be sent to OBA Executive Director John Morris Williams. The list below was up-to- date as of time of press.

COUNTY DELEGATE ALTERNATE Adair Co...... Joe D. Adair Alfalfa Co. Atoka Co. Beaver Co...... Todd Trippet...... Abby Cash Beckham Co...... Avery “Chip” Eeds...... Brian Henderson Blaine Co...... Daniel G. Webber...... Vicki Williams Bryan Co...... Chris D. Jones...... Pat Phelps Caddo Co...... Jason Glidewell...... Kyle Eastwood Canadian Co...... Austin Walters...... Ashton Handley Rene’e Little...... Judge Khristan Strubhar Jennifer Bridgforth...... Michael Denton Nathan Richter...... Justin Holliday Carter Co...... Michael C. Mordy Cherokee Co...... Grant Lloyd Jerry Moore Choctaw Co...... J. Frank Wolf III...... Jon Ed Brown Cimarron Co...... Judge Ronald L. Kincannon...... Judge Christine Larson Cleveland Co...... Holly Lantagne...... Amy Pepper Julia Mill Mettry...... Judge Lori Walkley Christopher Lind...... Don Pope Peggy Stockwell...... Jama Pecore Rebekah Taylor...... Cindy Allen Alissa Hutter...... Kristi Gundy Rod Ring...... Betsy Brown Judge Thad Balkman...... David Swank Kristina Bell...... Andy Hutter Jan Meadows...... Evan Taylor Gary Rife...... Rick Sitzman Micheal Salem...... Dave Stockwell Donna M. Compton...... Blake Virgin Judge Michael Tupper...... Greg Dixon Richard Vreeland...... Lucas West Jeanne Snider...... Judge Scott Brockman Judge Steven...... BonnerBeth Stanley Emily Virgin...... Tyson Stanek Judge Jeff Virgin...... Tina Peot

48 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL COUNTY DELEGATE ALTERNATE Rick Knighton...... John H. Sparks Holly Iker...... Catherine Butler Ben Odom...... Dave Batton Coal Co. Comanche Co...... Dietmar Caudle...... Christine Galbraith Robin Rochelle...... Julie Alsbrook Tyler Johnson Cotton Co. Craig Co...... Kent Ryals...... Leonard Logan Creek Co...... Judge Richard A. Woolery...... Sheri Eastham Carla R. Stinnett...... Sean Downes Custer Co...... Dana J. Hada...... LynnLawrence Housley Delaware Co...... Clayton M. Baker...... Christianna Wright Dewey Co...... Celo Harrel...... Rick Bozarth Ellis Co...... Judge Laurie E. Hays...... Joe L. Jackson Garfield Co...... Russell Singleton...... Tim DeClerck Philip Outhier Patrick Anderson Garvin Co. Grady Co. Grant Co...... Judge Jack D. Hammontree...... Steven A. Young Greer Co. Harmon Co...... David L. Cummins...... Judge W. Mike Warren Harper Co. Haskell Co. Hughes Co. Jackson Co. Jefferson Co. Johnston Co. Kay Co...... John R. Andrew...... Michael R. Vanderburg Alex Mustain...... Brian Hermanson Kingfisher Co...... Matthew R. Oppel...... Andrew E. Karim Kiowa Co. Latimer Co...... F. Nils Raunikar...... David K. Hale LeFlore Co...... Amanda V. Grant...... Nicholas E. Grant Lincoln Co. Logan Co. Love Co...... Kenneth L. Delashaw...... Richard A. Cochran Major Co.

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 49

COUNTY DELEGATE ALTERNATE Marshall Co. Mayes Co...... Judge Shawn Taylor...... Chase McBride McClain Co...... G. Thorne Stallings...... Lysbeth George McCurtain Co...... Judge Kenneth Farley...... Emily Maxwell Herron McIntosh Co...... Cindy M. Dawson...... Caleb A. Harlin Murray Co...... Mark Melton...... Rebecca Johnson Muskogee Co...... Roy Tucker...... Bret Smith Matthew C. Beese...... Larry Vickers Noble Co. Nowata Co. Okfuskee Co...... Judge Maxey Reilly Oklahoma Co...... Michael W. Brewer...... Ray Zschiesche Shanda McKenney...... Katherine Mazaheri-Franze Judge Don Andrews...... Bob Jackson Judge Trevor Pemberton...... Curtis Thomas John Coyle III...... W. Brett Willis David Cheek...... Coree Stevenson T. Luke Abel...... Cynthia Goble Judge Ken Stoner...... Zane Anderson Angela Ailles Bahm...... Bradley Davenport Jeff Curran...... C. Scott Jones Will Hoch...... Veronica Laizure Monica Ybarra...... Benjamin Grubb Kelli Stump...... Amber Martin Judge Philippa James...... Kristin Meloni Daniel G. Couch...... Susan Carns Curtiss David Dobson...... Tracey Mullins Kristie Scivally...... Peter Scimeca Thomas F. Mullen...... Daniel G. Webber Jr. Cody J. Cooper...... Justin Meek Mariano Acuna...... M. Courtney Briggs Richard Rose...... Lorenzo Banks Judge Barbara Swinton...... Travis N. Weedn Judge Richard Ogden...... Gary W. Wood Mack Martin...... Rachel Morris Timothy J. Bomhoff...... Hailey Hopper Lauren Barghols Hanna...... David McKenzie Edward M. Blau...... Ronald Shinn Chris Deaton...... Miles Pringle John Heatly...... Kendall Sykes Samuel Fulkerson...... Matthew B. Wade Okmulgee Co. Osage Co. Ottawa Co...... Chuck Chesnut...... Becky Baird Pawnee Co...... Jeff Jones...... Carl Birkhead Payne Co...... Jimmy D. Oliver...... Michael O’Rear Halli Martin...... Ashley Roche Amanda Lilley Pittsburg Co...... James Bland...... Eli Bland Pontotoc Co...... Dale Rex...... Lacie Lawson T. Walter Newmaster Pottawatomie Co...... Brandi Nowakowski...... Kevin Lewis Pamela Snider...... Michele Freeman Pushmataha Co...... Judge Jana K. Wallace...... Charlie Rowland 50 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL

COUNTY DELEGATE ALTERNATE Roger Mills Co. Rogers Co...... Matt Tarvin...... Judge Kassie McCoy Justin Greer Jennifer Kern Seminole Co...... Bill Huser...... Jack Mattingly Jr. Sequoyah Co. Stephens Co...... Carl Buckholts...... E.J. Buckholts II Texas Co...... Douglas Dale...... Cory Hicks Tillman Co. Tulsa Co...... Judge Martha Rupp Carter...... Trisha L. Archer (Ret. Judge) Millie Otey...... Bruce McKenna Molly Aspan...... Melissa Taylor James c. Milton...... David A. Tracy James R. Gotwals...... Richard White Judge Linda Morrissey...... Philip D. Hixon James R. Hicks...... Deborah A. Reed D. Faith Orlowski...... Jim Proszek Gerald L. Hilsher...... Taylor A. Burke Julie A. Evans...... C. Austin Birnie D. Kenyon Williams...... Michael P. Taubman Matt Farris...... Scott V. Morgan Linda Van Arkel Greubel...... John D. Clayman Kenneth L. Brune...... Michael Esmond Amber Peckio Garrett...... Trevor Hughes Kara Pratt...... Clint T. Swanson Natalie Sears...... Georgenia A. Van Tuyl Kimberly K. Moore...... Cassia Carr Stefanie S. Sinclair...... Ryan Fulda Jack L. Brown...... Jill Walker-Abdoveis Kara M. Vincent...... Brenna N. Wiebe Tamera A. Childers...... Grant A. Carpenter Megan Beck...... Lizzie Stafford Eric L. Clark...... Johnathan Rogers Sean McKee...... Matt Matheson Sabah Khalaf...... Kim Schultz Ashley R. Webb...... Aaron C. Tifft Justin B. Munn...... Ephraim Alajaji J. Christopher Davis Karen K. Wilkens Wagoner Co...... Richard Loy Gray Jr...... Eric W. Johnson Ben S. Chapman Washington Co...... Tanayia Hubler...... James Fletcher Daniels Les Reynolds...... Richard A. Mitchell Washita Co...... Judge Christopher S. Kelly...... S. Brooke Gatlin Woods Co...... Jeremy Bays...... Jesse Kline Woodward Co...... Erin Kirksey...... Kyle Domnick

DELEGATE ALTERNATE Oklahoma Judicial Conference...... Dist. Judge Justin P. Eilers...... Dist. Judge Shawn S. Taylor Assoc. Dist. Judge Thomas K. Baldwin....Assoc. Dist. Judge David R. Bandy Special Judge Lydia Y. Green...... Special Judge Sheila Stinson

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 51 2020 OBA BOARD OF GOVERNORS VACANCIES

Nominating Petition deadline was 5 p.m. Friday, Sept. 6, 2019

OFFICERS Supreme Court Judicial NOTICE President-Elect District Eight Pursuant to Rule 3 Section 3 of Current: Susan B. Shields, Current: Jimmy D. Oliver, Stillwater the OBA Bylaws, the nominees for Oklahoma City Coal, Hughes, Lincoln, Logan, uncontested positions have been Ms. Shields automatically becomes Noble, Okfuskee, Payne, Pontotoc, deemed elected due to no other OBA president Jan. 1, 2020 Pottawatomie and Seminole counties person filing for the position. (One-year term: 2020) (Three-year term: 2020-2022) Terms of the present OBA Nominee: Michael C. Mordy, Nominee: Joshua A. Edwards, Ada officers and governors will Ardmore terminate Dec. 31, 2019. Supreme Court Judicial Vice President District Nine Current: Lane R. Neal, Oklahoma City Current: Bryon J. Will, Yukon (One-year term: 2020) Caddo, Canadian, Comanche, Nominee: Brandi N. Cotton, Greer, Harmon, Jackson, Nowakowski, Shawnee Kiowa and Tillman counties (Three-year term: 2020-2022) BOARD OF GOVERNORS Nominee: Robin L. Rochelle, Supreme Court Judicial Lawton District Two Current: Mark E. Fields, McAlester Member At Large Atoka, Bryan, Choctaw, Haskell, Current: James R. Hicks, Tulsa Johnston, Latimer, LeFlore, Statewide McCurtain, McIntosh, Marshall, (Three-year term: 2020-2022) Pittsburg, Pushmataha and Nominee: Amber Peckio Garrett, Sequoyah counties Tulsa (Three-year term: 2020-2022) Nominee: Michael J. Davis, Durant

52 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL OKLAHOMA BAR ASSOCIATION NOMINATING PETITIONS (See Article II and Article III of the OBA Bylaws)

OFFICERS BOARD OF GOVERNORS Supreme Court Judicial President-Elect Supreme Court Judicial District No. 9 District No. 2 Michael C. Mordy, Ardmore Robin L. Rochelle, Lawton Michael J. Davis, Durant Nominating Petitions have been Nominating Petitions have filed nominating Michael C. A Nominating Resolution from been filed nominating Robin L. Mordy for President-Elect of Bryan County has been filed Rochelle for election of the Oklahoma Bar Association nominating Michael J. Davis Supreme Court Judicial Board of Governors for a for election of Supreme Court District No. 9 of the Oklahoma one-year term beginning Judicial District No. 2 of the Bar Association Board of January 1, 2020. Oklahoma Bar Association Board Governors for a three-year term of Governors for a three-year beginning January 1, 2020. A total of 389 signatures term beginning January 1, 2020. appear on the petitions. A total of 27 signatures appear on the petitions. Supreme Court Judicial Vice President District No. 8 A Nominating Resolution has been received from the follow- Brandi N. Nowakowski, Joshua A. Edwards, Ada ing county: Comanche County Shawnee Nominating Petitions have been Nominating Petitions have filed nominating Joshua A. Member at Large been filed nominating Brandi N. Edwards for election of Supreme Nowakowski for Vice President Court Judicial District No. 8 of Amber Peckio Garrett, Tulsa of the Oklahoma Bar Association the Oklahoma Bar Association Board of Governors for a Board of Governors for a Nominating Petitions have been one-year term beginning three-year term beginning filed nominating Amber Peckio January 1, 2020. January 1, 2020. Garrett for election of Member at Large of the Oklahoma Bar A total of 59 signatures A total of 36 signatures Association Board of Governors appear on the petitions. appear on the petitions. for a three-year term beginning January 1, 2020.

A total of 53 signatures appear on the petitions.

OCTOBER 2019 | 53 2019 TRANSITIONS

2019 President 2020 President Charles W. Chesnut, Miami Susan B. Shields, Charles W. “Chuck” Oklahoma City Chesnut is a sole prac- Susan Shields is a share- titioner in Miami. He is a holder with McAfee & Taft third-generation Oklahoma and practices in the areas of lawyer. He was born and estate and family wealth plan- raised in Miami and upon ning, estate and trust admin- graduation from high istration, business planning school, he attended OU and charitable organizations. where he received his bach- Ms. Shields was born elor’s degree in business in Bartlesville and earned administration in 1974. He graduated from the OU her B.A. with honors from Stanford University in College of Law in 1977. His main areas of practice 1986 and her J.D. from the UCLA School of Law in are real estate, probate and estate planning. 1989. After law school, she practiced with a large San He is a member and past president of the Ottawa Francisco law firm for several years and then returned County Bar Association. He served as U.S. magistrate to Oklahoma in 1991. judge (part-time) for the U.S. District Court for the She is a member of the Oklahoma County, California Northern District of Oklahoma from 1983-1987 and and American bar associations. From 2009-2012, Ms. was a temporary panel judge for the Oklahoma Court Shields served on the OBA Board of Governors. In 2014, of Appeals in 1991-1992. He is a past member of the she served as vice president of the OBA. She served as OBA YLD Board of Directors, a Benefactor Fellow of Oklahoma Bar Foundation (OBF) president in 2013 and the Oklahoma Bar Foundation, was a Trustee of the as an OBF Trustee from 2007-2014. She is a former OBA OBF from 1993-2000 and served as OBF president in Estate Planning, Probate and Trust Section chair, chair 1999. He also served on the OBA Board of Governors of the Board of Governors Budget Committee and a from 2009-2011. He is a member of the Real Property former member of numerous OBA committees. Law, Estate Planning, Probate and Trust and Law In 2005, 2010 and 2015, Ms. Shields was a finalist Office Management and Technology sections and for The Journal Record’s Woman of the Year Award. has been a member of a number of OBA committees. She has received numerous awards including the He is active in his community having served as a Outstanding Pro Bono Lawyer Award from Legal Aid member of the Miami Board of Education for 17 years of Western Oklahoma, OBA Earl Sneed Award and and as its president for a number of those years. Mona Salyer Lambird Spotlight Award. He is a member of and past president of the Miami She served as OCBA director from 2014-2016 and Chamber of Commerce. has been a frequent speaker on a variety of estate He is married to Shirley Murphy Chesnut and has planning, probate and nonprofit topics for OBA CLE four children and one grandson. and other seminars. She has also taught as an adjunct professor at the OU College of Law and has served on the boards of a number of local nonprofit organizations.

54 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL 2020 NEWLY ELECTED He is involved in his community where he is an BOARD OF GOVERNORS active member of the First United Methodist Church. Mr. Mordy serves on the Board of Directors of the Pursuant to Rule 3, Section 3 of the OBA Bylaws, Ardmore Habitat for Humanities, Dornick Hills Golf & the following nominees have been deemed elected Country Club, is a Trustee of the Southern Oklahoma due to no other person filing for the position. Memorial Foundation and was a long-time member of the Ardmore YMCA Board of Directors. President-Elect Michael C. Mordy, Ardmore Vice President Michael C. Mordy is a Brandi N. Nowakowski, fourth-generation attor- Shawnee ney who practices law in Brandi N. Nowakowski is Ardmore with the firm of a senior associate with the Mordy, Mordy, Pfrehm & law firm of Stuart & Clover Wilson PC. He graduated in Shawnee. She focuses with a BBA from OU in 1977, her practice on probate, with a J.D. from the OCU adult guardianship, estate School of Law in 1980 and planning and real property that same year was admit- matters. She, her hus- ted to the Oklahoma Bar Association. He began band, Chris, and their two his legal career as an assistant district attorney at sons, Ethan and Zachary, reside in Shawnee. Ms. the Oklahoma County District Attorney’s Office and Nowakowski received her BBA in management from from there went to work for an oil and gas firm in OU, where she graduated magna cum laude in May Oklahoma City. He has practiced law in Ardmore 2006. She received her J.D. from the OU College of since 1985, where his current practice focuses on Law in May 2010 and was admitted to the practice of commercial and banking litigation, oil and gas law law before all Oklahoma state courts in September and ad valorem tax litigation. He is a member of 2010. She was later admitted to practice before the the United States District Courts for the Eastern, United States District Court for the Western District of Western and Northern districts of Oklahoma and Oklahoma. Additionally, she additionally serves on the the U.S. Court of Appeals for the 10th Circuit. Supreme Court of the Absentee Shawnee Tribe. Mr. Mordy is the current chairman of the Oklahoma Ms. Nowakowski has actively served on the YLD Judicial Nominating Commission, of which he has Board of Directors since January 2012, having served been a member since 2013. He serves on the MCLE as the District 8 director, secretary, treasurer, chair- Commission and is a past member of the Clients’ elect and chair. In addition, she has served as YLD Security Fund Committee and a past Trustee of the Community Service Committee chairperson since Oklahoma Bar Foundation. He served on the OBA 2013. She enjoys working with the many attorneys Board of Governors from 2004 to 2006 and was vice who make our bar association great! She has also president of the board in 2008. previously served on the OBA Law Day Committee

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 55 and the Credentials Committee for the OBA House of has presented CLEs on the topics of guardianship law Delegates from 2012-2018. Additionally, she served and appellate procedure in tribal courts. His articles on the Clients’ Security Fund Task Force and the OBA have been published in the American Indian Law Budget Committee. Review and the Oklahoma Bar Journal.

Supreme Court Judicial Supreme Court Judicial District Two District Nine Michael J. Davis, Durant Robin L. Rochelle, Lawton Michael J. Davis is an Robin Rochelle is a sole assistant professor of crim- practitioner performing fam- inal justice at Southeastern ily and criminal law services Oklahoma State University. in southwest Oklahoma, With a decade of experi- residing in Apache. He is ence in higher education a graduate of San Diego compliance, Title IX and School of Law in 1988 and employment law, he has obtained his accounting conducted internal investi- degree from OU in 1984. gations across the state to assist colleges and univer- He interned in Washington, D.C., with U.S. Sen. David sities in their compliance with disability access laws, Boren in 1985. After practicing nearly 20 years in Title IX regulations and employment related matters. southern California, he returned to Oklahoma to be He received his J.D. from the OU College of Law near family. He is a past president and vice president in 2010 and was awarded the OBA Maurice Merrill of the Comanche County Bar Association, a member Golden Quill Award for his 2018 article “Disability of the Chickasaw Nation Bar Association and for- Accommodation in Higher Education.” He has served mer member of the U.S. Air Force. He is a frequent as a past president of the Durant Rotary Club and speaker for U.S. Law Shield on gun rights. He is also is an active member of the National Association of a board member of Childcare Inc., a nonprofit that College and University Attorneys. provides a safe and educational environment for all children. He is married and has three grown children Supreme Court Judicial who are pursuing their continuing education in college District Eight or graduate school. Joshua A. Edwards, Ada Joshua A. Edwards is an Member At Large attorney in private practice Amber Peckio Garrett, Tulsa with James “Rob” Neal. He Amber Peckio Garrett practices in the areas of is a solo practitioner with criminal defense and family Amber Law Group in Tulsa. law. He grew up in the small Ms. Peckio Garrett has community of Weleetka 16 years’ experience in per- and attended OU for both sonal injury, civil litigation his undergraduate and law and family law. She received school. He received his B.A. in criminology in 2007 dual bachelor’s degrees and obtained his J.D. in 2010. in economics and political Following law school, Mr. Edwards and his wife, science from Southeastern Amanda, moved to Ada where he began his career as Oklahoma State University. She received her J.D. from an attorney. He is a member of the Pontotoc County, the TU College of Law in 2003 where she currently Chickasaw Nation and Seminole Nation bar associa- serves as a member of the alumni board. tions. He is a past president of the Pontotoc County Ms. Peckio Garrett is admitted to practice in all courts Bar Association and is active in the Ada Lions Club, in the state of Oklahoma and before the U.S. District where he serves as vice president. Court for the Eastern, Northern and Western districts of Mr. Edwards is currently an associate examiner for Oklahoma and the U.S. 10th Circuit Court of Appeals. She the Oklahoma Board of Bar Examiners, and he has is an active member of the American Bar Association, volunteered as a scoring panelist for the OBA High American Association of Justice, Oklahoma Association School Mock Trial Program for the past five years. He for Justice and the Tulsa County Bar Association.

56 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL Ms. Peckio Garrett is a current Trustee of the for Diversity Center of Oklahoma Inc. and Rebuilding Oklahoma Bar Foundation where she serves on the Together, OKC. Grants and Awards Committee. In addition, she cur- He graduated from the OCU School of Law in 2013 rently serves as the chairperson of the Law-Related where he received the 2013 Dean’s Service Award Education Committee. Ms. Peckio Garrett has served from Dean Valerie K. Couch. He is also a 2005 grad- the OBA as the youngest ever chairperson of the uate of Texas Christian University where he received Women in Law Committee, as a Lawyer Advertising his B.S. in news-editorial journalism from the Bob Task Force member, Young Lawyers Division Board Schieffer College of Communication. of Directors member for Tulsa, Professionalism Mr. Haygood resides in Oklahoma City with his Committee member, Solo and Small Firm Conference partner, Marty, and their pug, Carlos. When they Planning Committee member and on the MCLE aren’t catching some rays at Lake Eufaula, they can Commission. She is a graduate of the inaugural be found spending time with family and friends, 2008-2009 OBA Leadership Academy. exploring the OKC food scene or traveling. Ms. Peckio Garrett is a frequent moderator and presenter of continuing legal education for the OBA and other professional organizations. In addition to her work with the OBA, she also serves on the pro bono attorney panel for Legal Aid Services of Oklahoma for Tulsa and surrounding counties working with at-risk women and families. Ms. Peckio Garrett lives in Tulsa with her fiancé C. Alex Stodghill and their beloved pugs, Woody and Bulliet. She is a sustaining member of the Junior League of Tulsa.

OBA YLD Chair Jordan Haygood, Oklahoma City Jordan Haygood has been a member of the OBA Young Lawyers Division board for five years and is currently the co-chair of the OBA YLD Membership Committee, the OBA YLD liaison to the OBA Disaster Response and Relief Committee and OBA Law Schools Committee and a member of the OBA Health Law Section. He is cur- rently serving young lawyers on a national scale for Oklahoma as a voting member for the American Bar Association YLD House of Delegates. Mr. Haygood is currently an in-house attorney for SSM Health – Oklahoma where he is responsible for assisting the regional general counsel in oversee- ing and managing legal affairs for SSM Health St. Anthony Hospital – Oklahoma City, Shawnee and its operating entities. Mr. Haygood is admitted to practice in the United States District Court for the Western District of Oklahoma and certified to practice in the United States Bankruptcy Court for the Western District of Oklahoma. He currently serves as a board member

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 57 2019 OBA AWARD PRESENTATIONS

Wednesday, Nov. 6 Law School Luncheons

Outstanding Senior Law School Student Award OCU – Laurie Schweinle, Holdenville OU – Taylor J. Freeman Peshehonoff, Ada TU – Vic Wiener, Santa Fe, New Mexico Thursday, Nov. 7 Annual Luncheon

Award of Judicial Excellence for excellence of character, job performance or achievement while a judge and service to the bench, bar and community Retired Judge Patricia G. Parrish, Oklahoma City Liberty Bell Award for nonlawyers or lay organizations for promoting or publicizing matters regarding the legal system Karen Keith, Tulsa Golden Gavel Award for OBA Committees and Sections performing with a high degree of excellence OBA Legislative Monitoring Committee Joe Stamper Distinguished Service Award to an OBA member for long-term service to the bar association or contributions to the legal profession William H. Hoch III, Oklahoma City Alma Wilson Award for an OBA member who has made a significant contribution to improving the lives of Oklahoma children Eugenia “Genie” Baumann, Edmond Neil E. Bogan Professionalism Award to an OBA member practicing 10 years or more who for conduct, honesty, integrity and courtesy best represents the highest standards of the legal profession Judge Dana L. Rasure, Tulsa John E. Shipp Award for Ethics to an OBA member who has truly exemplified the ethics of the legal profession either by 1) acting in accordance with the highest standards in the face of pressure to do otherwise or 2) by serving as a role model for ethics to the other members of the profession Ed Abel, Oklahoma City

58 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL Friday, Nov. 8 General Assembly

Outstanding County Bar Association Award for meritorious efforts and activities Kay County Bar Association Oklahoma County Bar Association Hicks Epton Law Day Award for individuals or organizations for noteworthy Law Day activities Ray Vaughn, Mounds Earl Sneed Award for outstanding continuing legal education contributions Kathryn McClure, Lawton Outstanding Young Lawyer Award for a member of the OBA Young Lawyers Division for service to the profession Nathan Richter, Mustang Outstanding Service to the Public Award for significant community service by an OBA member or bar-related entity Oklahoma County Bar Association Young Lawyers Division Award for Outstanding Pro Bono Service by an OBA member or bar-related entity Corry S. Kendall, Altus Maurice Merrill Golden Quill Award best Oklahoma Bar Journal article John Holden, Oklahoma City Cody Brooke Jones, Edmond Ashley Ray, Newcastle Kyle Rogers, Oklahoma City

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 59

[NOTE: Layout of this page can be changed/updated match other pages’ layouts (but the registration page needs to be white/a light color so they can write on it if they need); these colors aren‘t the ones you need to use, they’re just to show where we’d like corresponding color headings.] REGISTRATION REGISTRATION

Shoot for the moon with your law practice this year! Join your peers for great speakers, great events and good times with great friends at this year’s Annual Meeting. See what’s included with your Annual Meeting registration below. Plus, choose from optional CLE courses with nationally recognized speakers and add-on luncheons. What’s included in your Annual Meeting registration: Conference gift: On Legal AI by Joshua Walker, a book that looks at how to leverage practical legal automation and how to avoid falling prey to its dangers Wednesday President’s Reception and Midtown Pub Crawl events, including an Oklahoma City Streetcar all-day pass for Wednesday Thursday evening social event OBA continental breakfast and hospitality refreshments daily Discount on registrants’ Annual Luncheon ticket and Thursday’s CLE

HOW TO REGISTER

Online Mail Phone Fax/Email Register online at OBA Annual Meeting Call Mark at Fax form to www.okbar.org/ P.O. Box 53036 405-416-7026 or 405-416-7092 or email annualmeeting Okla. City, OK 73152 800-522-8065 to [email protected]

DETAILS

Location Hotel Cancellation Activities will take place at Fees do not include hotel Full refunds will be given through Renaissance Oklahoma City accommodations. For reservations Nov. 1. No refunds will be issued after Convention Center Hotel (10 N at the Renaissance Oklahoma City that date. Broadway Ave) or Cox Convention Convention Center Hotel, call Center (1 Myriad Gardens) unless 405-228-8000 (toll-free: CLE Materials otherwise specified. 800-468-3571) and reference the You will receive electronic CLE materials in advance of the seminar. Parking OBA, or go to www.okbar.org/ Parking will be available in several annualmeeting. A discount is Special Needs lots and garages at or near Annual available on reservations made on Please notify the OBA at least one Meeting activities. See a map at or before Oct. 15. week in advance if you have a special www.okbar.org/annualmeeting. need and require accommodation. Name

Badge Name (if different from roster) Bar No. Email Address City State Zip Phone Name of nonlawyer guest Check all that apply: Judiciary Delegate Alternate

Meeting Registration On or before Oct. 15 Oct. 16 or after Check the box next to your choice. Member New Member* Member New member* *New members sworn in this year $75 $0 $100 $25

MEETING REGISTRATION SUBTOTAL $

CLE Check the box(es) next to your choice(s). Wednesday On or before Nov. 1 Nov. 2 or after Cannabis Potpourri 7-hour program covering stages of legal marijuana enterprise, medical marijuana $150 $175 use at work, defending criminal charges, intellectual property and more.

Thursday On or before Oct. 15 Oct. 16 or after The Future is Now – What with Annual Meeting without Annual Meeting with Annual Meeting without Annual Meeting You Need to Know and registration registration registration registration Cyber Ethics – Legal Ethics in a Digital Age $50 $100 $75 $125 3-hour program, includes 1 hour ethics CLE SUBTOTAL $

EVENTS & LUNCHEONS Midtown Pub Crawl with Wednesday OKC Streetcar Pass Only available to Annual Meeting registrants and their guest (check all who are attending) Lawyer Guest OU College of Law Luncheon # of tickets at $45 $ TU College of Law Luncheon # of tickets at $45 $ OCU School of Law Luncheon OCU luncheon registration is available by calling 405-208-7100. Annual Luncheon with meeting registration # of tickets at $50 $ Annual Luncheon without meeting registration # of tickets at $60 $ Delegates Breakfast for nondelegates and alternates # of tickets at $30 $ Delegates Breakfast for delegates (no charge) (check if attending as a delegate)

EVENTS & LUNCHEONS SUBTOTAL $

PAYMENT Check enclosed: Payable to Oklahoma Bar Association TOTAL COST $ Credit Card: Visa Mastercard American Express Discover

Card #: CVV# Exp. Date Authorized Signature

Awards OBA Diversity Award Winners Announced By Telana McCullough

HE OBA DIVERSITY He served as an Oklahoma AWARD RECIPIENTS TCommittee is set to host its corporation commissioner, by Member of the Judiciary Ada Lois Sipuel Fisher Diversity appointment of Gov. Brad Henry Awards Dinner Oct. 17 in Oklahoma and prior to that appointment was Judge City. The event will feature a key- elected to consecutive four-year Philippa C. note address from OCU School of terms as Oklahoma County com- James Law Dean Jim Roth. missioner. He is a member of the Judge Dean Roth Oklahoma, Kansas and American Philippa C. is the 13th Bar Associations and is a past pres- James has been dean of the ident of the National Association exceedingly OCU School of of Civil County Attorneys. instrumental Law. He is an The theme of this year’s dinner in revising alumnus of the is An Emphasis on Inclusion: Why the Oklahoma OCU School of Diversity Should Not Stand Alone. City Municipal Court System, and Law, earning During the dinner, six individuals as a result, created a more readily his J.D. in 1994. and organizations will be honored available procedural process to He also holds with the Ada Lois Sipuel Fisher better comply with the law. This graduate certificates from Harvard Diversity Award in recognition of process expansion fosters not University’s Kennedy School of their efforts in promoting diver- only an opportunity for a judicial Government, the United States Air sity and inclusion in Oklahoma. hearing for all persons alleging War College’s National Security their inability to pay their fines, Forum at Maxwell Air Force Base fees and court costs, but also, it and the Institute of Public Utilities allows the court to better serve the at Michigan State University. Previously, Dean Roth was a director at the Oklahoma City office of Phillips Murrah law firm, THE 2019 ADA LOIS SIPUEL FISHER where he provided leadership DIVERSITY AWARDS DINNER to the firm’s Natural Resources Department and chaired the Clean Energy Practice Group. In addition, Thursday, Oct. 17 Dean Roth serves as president of A 6-8 p.m. New Energy, LLC, an energy con- The Oklahoma Judicial Center sultancy focusing on energy policy 2100 N. Lincoln Blvd., Oklahoma City and energy developments through- out the region and the United Featuring a keynote presentation from the OCU School Law Dean States, representing regional and Jim Roth. Tickets available for $40 at tinyurl.com/alsfdiversity. national energy companies and foundations.

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 65 community and make a difference from English to Spanish and works as a video producer/editor in the lives of those in extreme need. Vietnamese to better serve the for Fox News and the other is a Judge James presides over public. junior business major at OU. many of the Rule 8-Indigency hearings which presently totals Attorneys Tiece I. 32 per month. In April, May and Ruseal E. Dempsey June 2019, the Rule 8-Indigency Brewer Tiece hearings conducted by the court Ruseal E. Dempsey resulted in 3,678 cases being pre- Brewer is serves as the sented by impoverished defen- an assistant Criminal dants and $882,486 in fines and attorney Justice Act court costs being suspended. general with (CJA) resource Customer service coupled with the Oklahoma counsel for the ability to work with and serve Attorney the Office of people up and down the socio- General’s the Federal Public Defender in the economic ladder is becoming a Office. She is assigned to the Civil Western District of Oklahoma. In significant aspect of the court’s Rights Unit. Prior to joining the this role, she appoints and assists business. Accordingly, Judge James Office of the Attorney General, the Federal Public Defender’s works closely with the municipal she worked as an assistant gen- Office and CJA (court-appointed) court’s community relations coor- eral counsel with the Oklahoma attorneys in their representation dinators, the Municipal Counselor’s Department of Agriculture. of indigent defendants. Prior to Office (Criminal Justice Division) Ms. Brewer is also a judge advo- her current position, Ms. Dempsey and the Oklahoma County district cate currently serving as a defense worked as a policy analyst with judges to resolve cases in a timely counsel for the 245th Trial Defense the Oklahoma Policy Institute manner. Judge James’ collaboration, Services team. She is a major in before accepting a judicial law foresight and diligence has been the Oklahoma Army National clerk position with Judge Vicki instrumental in advancing and Guard and has been awarded Miles-LaGrange, former chief and broadening the criminal justice the Army Commendation Medal, senior judge of the United States reform efforts implemented within Army Reserve Component District Court in the Western the Oklahoma City Municipal Court. Achievement Medal, The National District of Oklahoma. Judge James also serves as Defense Service Medal and The Ms. Dempsey earned a B.S. in a member of the Oklahoma Army Service Ribbon. general business from OSU and County Criminal Justice Advisory Ms. Brewer earned her a master’s in health administra- Council. She works closely with Bachelor of Science in chemical tion from the OU Health Sciences other key stakeholders to fashion science from Xavier University Center. She also graduated from a more fluid and seamless justice in Cincinnati. She received her the OCU School of Law and system. Successes thus far not J.D. from the OCU School of Law is admitted to practice law in only include the aforementioned in 2003, where she graduated Oklahoma. Rule 8-Indigency hearings but with honors, magna cum laude. In addition to her professional also work with the OCPD led to Ms. Brewer is a member of Alpha work, Ms. Dempsey is actively a reduction in Oklahoma City’s Kappa Alpha Sorority Inc. Ms. involved in several professional, daily inmate population and Brewer is also a member of the civic and social organizations. improved the court’s jail booking OBA Environmental Law Section She is the current president of the and release process. This pro- and Access to Justice and Diversity Oklahoma City Association of duced substantial resources and committees. Lastly, she is an active Black Lawyers and Alpha Kappa monetary savings for the stake- member of the Oklahoma Women Alpha Sorority Inc. Sigma Sigma holders as well as increased the Lawyers’ networking events. Omega Chapter. Further, she is safety of jail staff and inmates. During her spare time, she also the immediate past chair of the Other improvements include an assists others in the community OBA Diversity Committee and enhanced website, new court pro bono with a variety of legal served two terms as the National records management system, cus- issues including immigration and Bar Association Region X director. tomer service surveys and a vari- fair housing issues. She also serves as a Trustee for ety of brochures and critical court Ms. Brewer is a mother to two the Oklahoma Bar Foundation forms that have been translated amazing boys, one currently and participated in the OBA 6th

66 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL Leadership Academy. In 2017, Organizations (supporting parents and families), she was honored with the OBA Ogletree ODWIN (women’s initiative) and Outstanding Young Lawyer Award. Deakins ODBAR (the African American Ogletree business resource group). Sheryl S. Deakins is In 2018, Ogletree cultivated Sullivan a labor and relationships with numerous orga- Sheryl S. employment nizations committed to improving Sullivan has law firm with 56 offices through- diversity in the legal profession, practiced law out North America and Europe. including forming a new relation- in Oklahoma Ogletree opened its Oklahoma ship with the ACC Foundation, City for over City office in January 2017. The which provided diverse attorneys 40 years. firm currently has nine attorneys with opportunities to network Focusing her located in Oklahoma City, with with in-house counsel. Ogletree legal practice plans to continue expanding in completed 31 diversity and inclu- on dissolution of marriage, guard- this market. sion surveys, responded to over ianship, probate and estate plan- Professional development 30 client requests for proposals ning matters, she has also served opportunities abound at Ogletree requiring diversity metrics and/ as a mediator and a collaborative Deakins and are integrated or initiatives and won diversity law practitioner. During her seamlessly with their approach and inclusion awards/recognition legal career, she has been active to diversity – diversity of gender, for their efforts, including earning in the Family Law Section of the learning style, race, background, Gold Standard Certification from OBA and Oklahoma County Bar thought and more contribute to the Women in Law Empowerment Association (OCBA), the OCBA a vibrant and inclusive environ- Forum (WILEF). Lawyers Against Domestic Abuse ment where attorneys can thrive Recognizing the increasing and the Oklahoma Academy of professionally. Ogletree Deakins’ requests by clients to advise Collaborative Professionals. Professional Development and them on diversity and inclusion As an Oklahoma City native, Inclusion Department sponsors best practices, Ogletree Deakins her volunteer experience has been national diversity and inclusion championed the creation of a new primarily in the areas of public events and memberships across the practice group, the Diversity and education, women’s and children’s U.S. to benefit the firm and all of its Inclusion Practice Group. The issues and advocacy, domestic practicing attorneys. Sponsorships group supports clients in design- abuse and sexual assault education include organizations such as ing, implementing and enhancing and prevention and interfaith and American Bar Association (ABA) their own diversity and inclusion intercultural dialogue. A co-founder Commission on Women in the initiatives and provides a range of of the Women’s Interfaith Group Profession, Hispanic National Bar services from advice and coun- in Central Oklahoma, she is sec- Association (HNBA), National sel to legal compliance work and retary of the Interfaith Alliance Association of Women Business engagement surveys. Foundation of Oklahoma, on the Owners (NAWBO) and Human Advisory Board of the Dialogue Right’s Campaign. Save Black Institute Oklahoma City and initi- Ogletree also has six busi- Boys ated the annual Diversi-Tea, pro- ness resource groups (BRGs) that Save Black viding a forum for participants of support the firm’s recruitment Boys (SBB) many cultures to interact in a social efforts as well as the professional OKC was setting. An active member of St. development, retention and designed to Paul’s Episcopal Cathedral and the advancement of the attorneys who raise aware- Episcopal Diocese of Oklahoma, she participate. BRGs also serve as ness and consciousness about is currently president of the dioce- informal networking and business the state of black children in the san Episcopal Church Women. development units for the firm. Oklahoma City area. The statistics She is a graduate of Vassar The six groups are: ODAlliance about the rampant murders and College and the OU College of (supporting LGBT attorneys), recidivism in black communities Law and is married to Dr. C. Blue ODA3 (the Asian-American busi- are well-known facts, but rarely Clark, who currently teaches at ness resource group), ODAdelante do people actually attempt to pro- the OCU School of Law. They (the Hispanic/Latino business actively impact change like SBB have one adult son, Sanger Clark. resource group), ODFamily OKC. This powerful organization

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 67 seeks to rebuild the minds of black themselves without judgement or children and young men. The ulti- explanation. It dedicates time to mate goal is to restore black boys educate and implement standards, in the area and help them find and accountability and goals. All the focus on their greatness. while, SBB OKC gives back to its SBB OKC has hosted several community with the boys in the free, successful programs. SBB program to help foster a sense of OKC has hosted college and community within the area. career preparation, anti-bullying SBB looks to make a tangible initiatives, sex education, driver’s impact while promoting real education, negativity detox sem- change in the OKC community. inars, single mother awareness readiness training, gang interven- tion and prevention, community ABOUT THE AUTHOR service in OKC, career trainings Telana McCullough chairs the and tutoring. OBA Diversity Committee and is SBB OKC is a program that a staff attorney at the Oklahoma focuses on creating an environ- Department of Education in ment for young black boys to be Oklahoma City.

68 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL Bar News New Lawyers Admitted to the Bar

OARD OF BAR EXAMINERS Sean-Michael O. Brady Philip Malcolm Chandler BChairperson Thomas M. Danielle LouAnn Brand Bryan Gregg Cleveland Wright announced that 231 appli- Wynne Elizabeth Brantlinger John Thomas Cleveland cants who took the Oklahoma Bar Leslie Kathleen Briggs Molly Kester Clinkscales Examination on July 30-31 were Connor Evan Brittingham Braxton Ayn Coil admitted to the Oklahoma Bar Amanda Renique Broussard Katherine Rose Colclazier Association on Tuesday, Sept. 24, Rachal Alexandria Brown Bradley Evan Congdon or by proxy at a later date. Taylor Nicole Brown Leslie Catherine Corbly Oklahoma Supreme Court Chief Abby Sue Broyles Stephanie Leigh Coulter Justice Noma Gurich administered Rebecca Ann Bryan Casey Anne Crook the Oath of Attorney to the candi- Isaiah Nathaniel Brydie Lauren Elizabeth Crudup dates at a swearing-in ceremony at Brian Tyler Burkhardt Jose Dan Cruz Guajardo the OCU Henry J. Freede Wellness Adam Riley Burnett Joshua Cooper Davis Center & Abe Lemons Arena in Sarah Katherine Capps William Hunter Dodson Oklahoma City. A total of 307 Frank Danilo Cardoza Brenda Lyda Doroteo applicants took the examination. Kimberly Savannah Carris Alexandra Jordan Dossman Other members of the Oklahoma Cordal Lee Cephas Collin Aaron Duel Board of Bar Examiners are Vice Jacqueline Humphrey Chafin Gabriel David Dunbar Chairperson Juan Garcia, Clinton; Robert Black, Oklahoma City; Monte Brown, McAlester; Tommy R. Dyer Jr., Jay; Nathan Lockhart, Norman; Bryan Morris, Ada; Loretta F. Radford, Tulsa; and Roger Rinehart, El Reno.

The new admittees are: Maryam Adamu Delia Addo-Yobo Alexandra Grace Adkins Dana Marie Whitlock Ashcraft Darren Wiley Barr Justin Gregory Bates Tyler James Bean Jordan Lynn Berkhouse Thomas David Bernstein Shea Alexander Bielby Gregory Allen Bissonnette Amanda Rae Blackwood Joshua Paul Blair Seth Ryan Blanton New admittees hear from bar leadership during the swearing-in ceremony.

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 69 Emily Joyce Dunn Braden Mark Hoffmann Garrett Sean Lam Sarah Elise Ebright Lindon Thomas Hogner Lauren Margaret Langford David Dwayne English Bailey Paul Hollabaugh Alyssa Neil Lankford Christine Ann Evans Mychelle Martin Holliday Melissa Ann Lantz Emily Jane Evans Mitchell Thomas Holliman Kara Kathleen Laster Madeline Nicole Farris Dillon James Hollingsworth Casey Robert Lawson Ashley Dawn Fetter Joe Dawson Houk Katherine Paige Leach Emily Jill Fry Peyton Storm Howell Amber Noel Leal Emma Grace Foster Gandhi Elaine Kramer Hsieh Taylor Laurence Ledford Hardik Gandhi Tamara Erin Hurd Shelby Nicole Limburg Angela Willow Ganote Dereck James Hurt James Edward Littlefield George Edward Gibbs Joshua Dale Hutchins Alan Justin Looney Donald Eugene Gies James Christopher Irwin Connor Jordan Mace Randi Nicole Gill Austin Tyler Jackson Ashley Elena Maguire Alyssa Marie Gillette Aubrey Erin Jaffe-DeClercq Micah Gabrielle-Joye Mahdi Christopher Joe Gnaedig Kristen Nicole James Michael Scott Major Matthew Paul Gomez Caitlyn Suzanne Jennings Mackenzie Anne Malone David Bryan Goodpasture Chasse William Alexander Jerson Matthew Daniel Mangru Elizabeth Elyn Govig Amanda Christine Jespersen Garrett Lane Marshall Larry Alan Grizzle Jim Varughese John Adrienne Marie Martinez Emily Elizabeth Grossnicklaus Kyle Drew Chance Johnson Allison Joanne Martuch Trent Daniel Guleserian Victoria Anne Johnson Scott Allen May Brody Park Gustafson Dallas Lee Jones Collin Norman McCarthy Alexander McCay Hall Meilani Camille Kaaihue Maecey Jae McClain Myrenda Ralene Hancock John Ramsey Kalka Calandra Skye McCool Jacob Arneal Hansen Greg Stephen Keogh Ashley Nicole McCord Benjamin Jerome Hartman Deni Shane Ketterman Heather Anne McFarlain Alison Rebecca Hausner Lina Khalaf Sarah Ann McManes Jessie Kathleen Heidlage Lauren Elizabeth Kiefner Peter Eamon McVary Jonathon Wesley Herndon Katelyn Michelle King Cheyenne Michelle Meckle Chantelle Lynette Hickman-Ladd Prescott Edgerly Kiplinger Morgan Lee Medders Meghan Luanne Hilborn Cheyenne Janea Konarik Zachary Taylor Megee Benjamin Rogers Hilfiger Eric Thomas Krampf Allison Nicole Meinders Alexander Elias Hilton Gerald Sinclair Lalli Kelly Michelle Middleman

YLD Chair Brandi Nowakowski addresses new admittees.

70 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL New lawyers take the Oath of Attorney. Dane Harrison Miller Alexander Matthew Price Robert Earl Stevens Andrea Lynne Mills Clinton Bryce Privett Natalie Elizabeth Stewart Joshua Caleb Mills Haley Marie Nix Proctor Caleb Robert Stiles Garrad Duane Mitchell William Kyle Puckett Elissa Rae Stiles Phoebe Bess Mitchell Lacy Beth Pulliam Marshall Leavy Stone Garrett Logan Molinsky Sohail Punjwani Taylor Alexandra Stovall Madison Claire Mosier Kassidy Taylor Quinten Megan Kathleen Szukala Chandler Meshele Moxley Ashley Morgan Ray Stephanie Rene Timmermeyer Ann Marie Mudd James Brian Rayment Claudia Blake Toellner Maegan Christine Murdock Cassity Beatrice Reed Paul Anthony Tortorici Bryan Adam Myers Shelby Lynn Rice Cole Jordan Trippet Hayley Blair Myers Reann Elizabeth Richards Dillon McCaleb Turner Robert Chad Nelson Brandon Douglas Roberts Sonja Lea Rae Turner Sydney Lee Nelson JulieAnn Michelle Robison Justin Tyler Valentine Robert William Norton Kayla Marie Rochelle Scott Rachal Verplank John Maxwell Nowakowski Taylor Frances Rogers Daniel Martin Vigilius Slate Wayne Olmstead Thomas Edward Rogers John Lawrence Wagener Brandon Thomas Orr Stephanie Rhiannon Rush Austin Lee Watford Stephan Alexander Aaron Owings Joya Christiania Nicole Rutland Taylor Kaye Weder Hayley Nichole Kathryn Parker Lezel Brianna Safi Sarah Rose Weitekamp Christopher Salvador Pena Ani Sargsyan Kaimbri Blayne White Lashandra Annette Mandy Jo Schroeder Cameron Martin Williams Peoples-Johnson Khaki Alaine Scrivner Sandra Grace Williams Nicholas James Pierson Jacob Dakota Scroggins Zachary Eaton Williams-Kupec Amber Dee Plumlee Margaret Mary Sine Chase Andrew Winterberg Robert Anthony Pomeroy Ashlyn Miller Smith Aaron William Wright Montrel Dominique Preston Collen Loren Steffen

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 71 Women in Law Committee Mona Salyer Lambird Spotlight Award Recipients to be Honored

HE SPOTLIGHT AWARDS health law career was writing the She and her husband Robert Twere created in 1996 to annu- amicus brief on behalf of many enjoy hiking in the Ozarks with ally honor five women who have Oklahoma health care organiza- their two dogs, wine tasting distinguished themselves in the tions and associations to allow trips to California and paddling legal profession and who have Medicaid expansion to be put down the Buffalo River in their lighted the way for other women. to a vote of the people in 2020. Wenonah canoe. The award was later renamed to She is a founding member and honor 1996 OBA President Mona past president of the Oklahoma Brita Salyer Lambird, the first woman Health Lawyers Association and Haugland- to serve as OBA president and one has also served as chairman of the Cantrell of the award’s first recipients, who OBA Health Law Section multiple Brita died in 1999. times. She is serving as the City Haugland- This is the 23rd year for the of Tulsa Parks Board chairman Cantrell is a awards to be presented by the and on the Board of Trustees for trial lawyer OBA Women in Law Committee. Gilcrease Museum. She also serves who practices Award winners will be honored on the boards of The Oklahoma primarily Oct. 25 at the Women in Law Academy, Community Service in products Conference in Oklahoma City. Council, Tulsa Animal Welfare liability defense and family law Commission and the Advisory litigation. She represents clients in Teresa Board for the Tulsa Chamber of all aspects of family law, includ- Meinders Commerce. She serves as a Trustee ing divorce, complex business Burkett for the Potts Family Foundation valuations and asset and debt Teresa and the Tulsa Community College apportionment, division of retire- Meinders Foundation. A member of ment and pension plan assets, Burkett has Leadership Oklahoma, Class custody, visitation, child sup- been a health XVIII, Ms. Burkett has served in port, alimony, guardianship and care lawyer numerous leadership roles with Hague Convention matters. She in Tulsa for that organization. also frequently handles pro bono 28 years. She In 2015, she was recognized litigation, has been a volunteer is a partner in the Healthcare with Leadership Tulsa’s Paragon advocate for Legal Aid Services of Practice Group of Conner & Award. She is a recipient of the Oklahoma and has served by court Winters LLP, which she founded Tulsa County Bar Association’s appointment as guardian ad litem. when she moved her practice from Golden Rule Award and the OBA’s Upon graduating from law a litigation boutique in 2007. She Golden Quill Award. For the past school in 1987, she worked as an earned her undergraduate nurs- two years, she has been an hon- associate with a Tulsa-based law ing degree from OU in 1982 and oree as one of Oklahoma’s Women firm for two years before transi- worked as a cardiac care regis- of the Year, a prestigious honor tioning her practice and serving tered nurse through law school. recognizing women making a sig- as assistant attorney general for She received her J.D. with honors nificant impact professionally and the state of Oklahoma from 1989 from the OU College of Law in in their communities on behalf of to 1994. As the state’s lead envi- 1985. A recent highlight of her the state of Oklahoma. ronmental attorney, she practiced

72 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL in environmental law litigation in returned to private practice with Doneen administrative proceedings, state the law firm of Eldridge Cooper Douglas Jones courts and federal appellate mat- Steichen & Leach and then joined Doneen ters. In one particularly high-profile McAfee & Taft when the two Douglas Jones case, Arkansas et al. v. Oklahoma, 503 firms combined in 2011. She is a is a partner U.S. 91, 16 (1992), she represented graduate of the National Institute at Fellers the state first on appeal to the U.S. of Trial Advocacy (NITA) and the Snider where 10th Circuit Court of Appeals from founding chairman of the OBA she started in a decision of the Environmental Environmental Law Section. She 1979 as a legal Protection Agency and subse- is currently serving her second intern. Her practice focuses primar- quently on appeal to the U.S. five-year term as a member of ily on business litigation, lender Supreme Court as counsel with the Oklahoma Department of liability defense, representation of Attorney General Susan Loving Environmental Quality board. creditors in bankruptcy cases and and Assistant Attorney General During this tenure, she has been loan documentation. She obtained Robert Butkin. elected twice as chairman of her Bachelor of Arts from OU Her prior career experience the board. and received her J.D. from the OU also includes serving as executive College of Law. She is the co-chair- director of the Oklahoma chap- person of the Oklahoma County ter of The Nature Conservancy Bar Association Law-Related from 1994 to 2000. In 2000, she Education Committee and loves presenting programs to elementary and junior high school students. She is an active member of the 2019 WOMEN IN LAW CONFERENCE Ruth Bader Ginsburg American Inn of Court, where she is a past Friday, Oct. 25 president and attributes the inn of 9 a.m. – 4 p.m. court experience with enriching Renaissance Waterford OKC Hotel her professional career and cre- ating lasting friendships. One of 6300 Waterford Blvd., Oklahoma City the highlights of her legal career was meeting Justice Ginsburg. She Featuring a keynote address by Marcia Coyle, chief Washington has been honored with the Journal correspondent for The National Law Journal, programming Record Leadership in Law Award includes sessions on LGBT rights under Title VII, nonprofit board and the Ruth Bader Ginsburg service and a panel of judges hosted by Supreme Court Chief American Inn of Court John Shipp Justice Noma Gurich. A total of 6 credit hours, 1 of which may Award for Professionalism. She be applied toward ethics requirements. sponsors a table at the YWCA’s The early bird registration deadline is Oct. 20 and costs $150 for Women Who Care Share and is an the full conference. Register online at tinyurl.com/womeninlaw2019. active member of her church where she teaches religious education to seventh- through ninth-grade

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 73 students and serves on the Finance of Directors and chairs the club’s Tracking and Researching the Committee. She loves to travel service projects groups. Stock Market (STARS) program. and enjoys skiing. She is married A graduate from Georgetown She graduated from OSU and to Glenn Jones and they have two University’s School of Foreign taught at Red Rock Public Schools sons, Bryan and Josh, and two Service, she studied at the London for four years prior to attending grandsons, Grady and Oliver. School of Economics. She earned law school, where she was co- her J.D. with high honors from director of the Title VII ESEA Suzanne George Washington University, project. She received her J.D. from Mitchell where she was awarded Order of the OU College of Law in 1981. At Suzanne the Coif, served as an editor on its OU, she was selected as a member Mitchell has law review and a member of the of the Oklahoma Law Review. served as a Moot Court board. Before coming to the Securities U.S. magis- She is a member of Leadership Department, she was in private trate judge in Oklahoma City, Class XIV and practice for four years. She is an the Western former chair of the Oklahoma active member of the Oklahoma District of Visual Arts Coalition. She and her County Bar Association, serv- Oklahoma husband, Sam, have four children. ing on the CLE committee and since February 2013. She chairs participating in the Law-Related the district’s Criminal Justice Act Z. Faye Education Committee. She is a Panel Selection Committee. She Martin Morton member of the OBA Government also serves on the Court Assisted Z. Faye and Administrative Law Practice Recovery Court, a federal re-entry Martin Morton Section and has participated in court that provides an intensive, has practiced planning its CLE programs. She treatment-focused program to law on behalf of was privileged to be involved in assist recently released nonvi- the Oklahoma reviving the Judge Arthur Lory olent offenders to reintegrate Department of Rakestraw luncheons, now known into society. She also chairs the Securities for as the OK Lawyer luncheons. Administrative Office of the U.S. 35 years and She is an active participant in Court’s Magistrate Judge Advisory now serves as general counsel. the General Counsel Forum of Group. Her professional expe- During her tenure with the depart- Oklahoma state government. rience includes serving as an ment, she has been involved in Married to Jim Morton for over appellate practitioner at the U.S. all areas of securities regulation, 40 years, she is the proud mother Attorney’s Office in the Western including civil and administrative of Jake and grandmother to Max, District of Oklahoma, as senior enforcement activities, registration Connor and Lucy. She is an active law clerk for former U.S. 10th and exemption of securities and member of the Ridgecrest Church Circuit Judge Robert H. Henry licensing of securities professionals. of Christ and has taught in its chil- and as a corporate and securities She also has been involved in the dren and ladies’ programs. attorney at McAfee & Taft. areas of business opportunities, Judge Mitchell served as presi- investor education, subdivided dent of the Oklahoma City chapter land sales and takeover offers. She of the Federal Bar Association participated in drafting the pro- for 2017-18 and currently serves posals submitted to the Oklahoma as vice president for the Tenth Legislature that resulted in the Circuit for the FBA nationally. She Oklahoma Uniform Securities Act received the Outstanding Chapter of 2004 (OUSA), was instrumental Leadership Award for her service. in drafting the rules to implement She has been named a master of OUSA and co-authored an article the William J. Holloway American published in the Consumer Finance Inn of Court and served as the Law Quarterly Report concerning inn’s president for 2018-19. She also OUSA. She also served as counsel serves as an Oklahoma County in the establishment of the depart- Bar Association board member. ment’s investor education outreach, She sits on Rotary Club 29’s Board Invest Ed®, to include the Students

74 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL Bar News OBA Committee Membership – Please Join Us!

OW IS THE TIME TO JOIN develop referral and mentoring it has provided me with many None or more of the OBA relationships with lawyers from benefits to my law practice, for standing committees as a part all across the state. which I am grateful. It is also a of your membership in the OBA. Most committees allow meet- wonderful way to give back to our Committees cover a wide range of ing attendance by conference call, legal profession. Even if you have subject matter and topics. so your geographical location does only a little time to spare, we can Why join a committee? Being a not matter in terms of participa- use your help. Please join us. committee member, along with sec- tion if you are not able to make Joining a committee is easy. Go tion membership, is one of the best each meeting in person. In addi- to www.okbar.org/committees and ways to get more involved with the tion, some OBA committees are click “Committee Sign Up.” I will OBA. Committee membership pro- devoted to service to the commu- be making appointments soon. vides ways to get to know lawyers nity in which we live and practice, and judges who may have very dif- which in turn helps enhance the ferent backgrounds, interests and image of our profession within experiences from you and offers an the community. opportunity to make friends, get I have served on many OBA Susan B. Shields, known in the legal community and committees over the years and President-Elect

To sign up or for more information, visit www.okbar.org/committees.

„„ Access to Justice „„ Diversity „„ Member Services Works to increase public access to Identifies and fosters advances in Identifies and reviews member benefits legal resources diversity in the practice of law „„ Military Assistance „„ Awards „„ Group Insurance Facilitates programs to assist service Solicits nominations for and identifies Reviews group and other insurance members with legal needs selection of OBA Award recipients proposals for sponsorship „„ Professionalism „„ Bar Association Technology „„ Law Day Among other objectives, promotes and Monitors bar center technology to Plans and coordinates all aspects of fosters professionalism and civility of ensure it meets each department’s Oklahoma’s Law Day celebration lawyers needs „„ Law Schools „„ Rules of Professional Conduct „„ Bar Center Facilities Acts as liaison among law schools and Proposes amendments to the ORPC Provides direction to the executive the Supreme Court „„ Solo and Small Firm Conference director regarding the bar center, „„ Lawyers Helping Lawyers Planning grounds and facilities Assistance Program Plans and coordinates all aspects of „„ Bench and Bar Facilitates programs to assist lawyers the annual conference Among other objectives, aims to foster in need of mental health services „„ Strategic Planning good relations between the judiciary „„ Legal Internship Develops, revises, refines and updates and all bar members Liaisons with law schools and monitors the OBA’s Long Range Plan and „„ Communications and evaluates the legal internship related studies Facilitates communication initiatives to program „„ Women in Law serve media, public and bar members „„ Legislative Monitoring Fosters advancement and support of „„ Disaster Response and Relief Monitors legislative actions and reports women in the practice of law Responds to and prepares bar on bills of interest to bar members members to assist with disaster victims’ legal needs

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 75 From the Executive Director Another Dog Movie By John Morris Williams

HE ART OF RACING IN pet, especially a dog, will prolong wellness issues. Having a dog Tthe Rain is in theaters now. I one’s life and improve quality of life. is not the answer for everyone. could not make myself go see it. The Nov. 17, 2017, edition of Time Although they promote exercise, I read the book. It ends like all magazine even suggested that dogs reduce stress and bring some dog movies, sort of. I won’t ruin may provide some immune-boost- great moments of joy with uncon- it for you if you have an interest. ing benefits for adults. Of course, ditional love, not everyone can The twist is that it is narrated by if mine narrated a book, life expec- have a dog. You must have the time the dog. There is even legal stuff. tancy here might go down a bit. and space to give them a good life Not pleasant legal stuff. Actually, Not saying whose, just saying. as well. But, with or without a pet, some evil, nasty kind of legal stuff. We as a profession are being one must also give oneself the time Again, I will leave it to you to see forced to look deep into our and the space to have a good life. the movie or read the book. Often times I have said I divide the world between people who cried when old Yeller died and those who did not. Family lore has it that at about age 3 I had to be hauled out of the theater uncon- solably sobbing. We must have gone to the equivalent of the dollar movies since the movie came out a year before I was born. To this day I still can’t watch it. The twist on the narration in The Art of Racing in the Rain made for an entertaining read. While reading the book, I prayed a bit that my dogs would never write a book. I think I’d probably come off as a bit silly and at times strict. We don’t sit on the furniture or get on the beds. They would report they get called variations of their names and that for a while Duke (the hyperactive dachshund) was in danger of having his last name changed to “you little…(exple- tive).’’ Since then one of us has mellowed, and it wasn’t him. So why am I writing about dog movies and even my own pack. A recent study reveals that having a Wallis and Duke

76 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL Too many studies have Getting a pet is a personal concluded that as a profession we decision. Not taking care of your- have too much stress and abuse self is also a personal decision. The substances and suffer mental ill- latter potentially can affect a lot of ness at rates significantly greater people and have some unfortunate than the general public. None of public consequences. Whether the us are above becoming one of the narrative is written by your pet or statistics. The loss of a job or a by you, be sure to include some major economic set back, a change lines that you did things to protect in relationship status, the illness your wellbeing for yourself, the or death of a close family mem- people that love you and the clients ber are things that unexpectedly that depend upon you. happen to many people. Add that Duke and Wallis say, “Hey.” to the stresses the “winner/loser” environment of practicing law and it can have disastrous conse- quences on lawyers and their practice – a spiral that is often hard to come out of. Statistically, white males over To contact Executive Director 50 are most prone to depression Williams, email him at johnw@ and suicide. That fact alone should okbar.org. make us take pause since that demographic also represents the majority of lawyers in America. Just another reason why diver- sity is a good thing. Being around a bunch of other depressed peo- ple doesn’t seem like a good thing either. So, I suggest broadening one’s social and work circles to include people who at least statis- tically are less prone to depression might be helpful. (No science that I know of. Just seems like a good idea.) In fact, I purposely set out to include nonlawyers in my circle of close friends. The effort was well worth it. Even a couple of close doctor friends aren’t too bad to have to put up with.

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 77 Law Practice Tips Safe in the Clouds By Jim Calloway

AFE IN THE CLOUDS” safe” because of the possibility of lawyer’s ability to represent “Ssounds peaceful and dreamy, a user making a mistake or falling clients (e.g., by making a device unless of course you have a fear for a scam. The device might fail or important piece of software of falling. or there might be a breach from an excessively difficult to use). Lawyers, for better and for outsider. This lack of 100% certainty worse, are trained to examine of safety applies to data on all of So, the lawyer who wants to use everything with an eye toward fear your connected devices, including cloud computing tools is guided of falling, or more accurately, fear computers, tablets and phones. by the determination of whether of failing. This starts in law school The Oklahoma Rules of the tool is reasonable. It is always with the high-pressure Socratic Professional Conduct (ORPC) rec- good lawyerly advice to read the method, high-stakes single exams ognize this as do the ABA Model Terms of Service, particularly as and class ranking. In law practice, Rules of Professional Conduct. to under what circumstances, if at there is an important need for criti- ORPC Rule 1.6 (c) states that “a all, your data can be accessed by cal examination skills, whether it is lawyer shall make reasonable the provider.1 “Could that oddly drafted contract efforts to prevent the inadvertent However, for the lawyer who provision harm my client?” or “Are or unauthorized disclosure of, or doesn’t want to use cloud comput- they trying to gain an advantage unauthorized access to, informa- ing tools, my response is that these with that ambiguous phrase?” tion relating to the representation tools are safer – and why wouldn’t Among the most frequently of a client.” Comment 16 to that you want to use safer? asked questions I receive from rule provides, in part: I should note that there are Oklahoma lawyers are questions unsafe ways to implement any about cloud computing. This The unauthorized access to, technology tool, including those in has been true for several years. or the inadvertent or unautho- the cloud. If done correctly, cloud Lawyers are concerned about the rized disclosure of, information computing can be viewed as out- risks of using cloud computing relating to the representation sourcing your data security needs because these data security risks of a client does not constitute a to someone more qualified while seem hard to appreciate and quan- violation of paragraph (c) if the also making accessing your data tify for those untrained in infor- lawyer has made reasonable quicker and more convenient. mation technology. efforts to prevent the access Is my data safe in the cloud? or disclosure. Factors to be OUTSOURCING YOUR Can other people see my data in considered in determining the DATA SECURITY the cloud? Is it safe to keep my cli- reasonableness of the lawyer’s Today we are at a time where ents’ data in the cloud? Are there efforts include, but are not the major cloud service provid- legal ethics concerns about keep- limited to, the sensitivity of the ers can essentially guarantee an ing client data in the cloud? information, the likelihood of impenetrable vault.2 A service The answers to these are clear, disclosure if additional safe- like Amazon Web Services (AWS), as far as I am concerned. Your dig- guards are not employed, the Microsoft Azure or Google Cloud ital data is safer in the cloud. cost of employing additional Platform can provide this for you Safer. safeguards, the difficulty of – a data “fortress” which is not Digital data on any device you implementing the safeguards, going to be breached by a hacker. own connected to the internet in and the extent to which the (Most cloud computing provid- any way cannot be deemed “100% safeguards adversely affect the ers lease space from one of those

78 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL primary hosts.) The challenge is employee made errors allowing the is destroyed by natural disaster you oversee the drawbridge and attack. This is newsworthy because along with the backups you have the gate – along with everyone and it is so rare. If your office network is been methodically creating and everything that you allow access. crippled by ransomware or mal- storing in your office, burglary In other words, you are as ware, the attack is generally not or a hard drive or server dying secure as your most careless user going to make the leap to encrypt unexpectedly. and, if you have other online your data in the cloud. Another set of risks associated services connected to your vault, So, what about not keeping with not using the cloud is that the you are depending on them to be your data in the cloud? lawyers and others employed by secure as well. The careless user is still your the law firm are in charge of dig- The challenge is training that security risk, but the consequences ital security. If you have full-time most careless user— the one who from that person’s mistakes are IT staff, that’s one thing, but if you keeps the passwords on Post-its arguably worse. Click on an are doing it yourself or have a local near the workstation, takes the infected file or bad link and the contractor who comes to the office company laptop home and lets the office network may be encrypted only when you call with a prob- kids play on it or clicks on attach- with ransomware or just destroyed lem or you need new hardware, ments or links in emails from with some other malware. There you likely have a less qualified everyone, known or unknown. is an increasingly smaller chance security officer than the engineers That person is your greatest vul- you can pay the ransom and and security experts on the staff nerability. A few lawyers might recover your data. Normally the of a cloud provider around the even admit it is them. best outcome is being down for clock. You won’t be aware if some Recently, one cloud hosting a few days, paying an outside new threat emerges while you company was itself a victim. Insynq consultant and only losing the are asleep or during a two-day was the target of a ransomware data created after your last backup jury trial. It’s up to you to select and malware attack in July 2019. was saved. A firm that isn’t doing and keep updated your firewall, Insynq specializes in providing regular backups may experience anti-virus and other security tools. cloud-based QuickBooks account- more catastrophic damage. Keeping software updated is often ing software and services, so many Other dangers of not using automatic. However, if your credit accounting firms found themselves cloud computing are risks we can card is compromised and the offline for time ranging from hours all easily understand: the office card’s number changed, mistak- to days. Apparently some Insynq (and equipment) catches fire or ing a security provider’s renewal

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 79 CONCLUSION Cloud computing is a critical part of most law firm operations now. In the future, more law firms will make use of cloud-based automation tools and virtual Taking reasonable steps to protect your clients’ assistant services in their practice workflows and operations. Even confidential information is your ethical obligation, lawyers who consider themselves low tech often use cloud-based but keeping the law firm operational is important email services like Gmail. Some Office 365 tools require online for the law firm’s interests as well as the clients. access. So, it will be increasingly difficult to avoid the cloud. This is not to say one cannot decide to keep your copies of completed cli- ents’ estate plans in offline storage “bounce” notice for an advertise- CONSENT or that handling a divorce case ment could expose your law firm Do you have to inform your where the opposing party regu- to the risk of out-dated protections. clients of data stored in the cloud larly attends hacker conventions and obtain their consent? All of might not require special mea- LAW FIRM DOWN TIME the jurisdictions that have issued sures. However, all business tools Let’s discuss “down time.” ethics opinions on the issue of will increasingly be cloud-based Taking reasonable steps to protect lawyers using cloud computing going forward. your clients’ confidential informa- have found it to be ethical, as long tion is your ethical obligation, but as law firms take “reasonable keeping the law firm operational care” when implementing a cloud Mr. Calloway is OBA Management is important for the law firm’s service. Only a few states have Assistance Program director. Need interests as well as the clients. opinions discussing obtaining a quick answer to a tech problem In August in Oklahoma City, client consent and those do say or help solving a management we had what some called an it is not routinely necessary but dilemma? Contact him at 405-416- “inland hurricane” with straight- could be in certain sensitive situ- 7008, 800-522-8065 or jimc@okbar. line winds recorded at 95 mph. In ations. There’s no direct authority org. It’s a free member benefit! the aftermath, some were without on point in Oklahoma. My advice electrical power for several days. is including a reference to cloud ENDNOTES A law firm without power is data storage in your attorney- 1. Some believe the best plan is an encryption scheme where only the law firm has access and challenged. To reach cloud-based client engagement agreement and if the login credentials are forgotten or lost, all tools, one only has to locate power always make certain new clients data will be irretrievably lost. Others believe there ought to be some way a lawyer can retrieve a anywhere, along with internet read that agreement before sign- lost password or a judge could order that an access. I’ve heard of law firms tem- ing. If clients have any concerns appropriate individual be allowed access to a deceased lawyer’s files. porarily without electricity send- or questions, they can be 2. For readability, I am using some absolute ing people home to work remotely addressed at that time. terms in this column but the “not 100%” rule applies to all of them. Even for the ones that or opening up shop in a partner’s It is also noteworthy that actually are 100% today, there might be a new home. If all of your data and tools Comment 16 to Rule 1.6 also development tomorrow. are powerless in the office, that provides: “A client may require approach is much less effective. the lawyer to implement special Even though the cloud is safer, security measures not required a law firm should still do data by this Rule or may give informed backups. You keep data in the consent to forgo security measures cloud, but not all of your software. that would otherwise be required A backup can restore a worksta- by this Rule.” tion to operating order.

80 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL From the President

(continued from page 4) Information was submitted on the Legal ethics and professionalism Jack Brown of Tulsa served as credits required in other states and CLE programs will address the Code task force chair and President- different methods of obtaining of Professional Conduct and tenets Elect Susan Shields of Oklahoma credit. Although the task force did of the legal profession by which City served as co-chair. Task force not reach a consensus on increas- a lawyer demonstrates civility, membership was comprised of a ing the total number of credits, it honesty, integrity, fairness, compe- blue ribbon representation of law- did note that several states require tence, ethical conduct, public service yers from across the state, in addi- more credits and allow credit to and respect for the rule of law, the tion to many OBA staff members. be earned by self-study and other courts, clients, other lawyers, wit- This year the task force met delivery methods. (Last year, nesses and unrepresented parties. monthly from January to June with the Oklahoma Supreme Court Mental health and substance use the June meeting conducted jointly amended the MCLE rules to allow disorders programs will address with the MCLE Commission. The all 12 hours to be obtained online.) issues such as attorney wellness task force discussed a wide range The task force ultimately and the prevention, detection and/ of topics involving CLE. decided to leave the total number or treatment of mental health disor- As a result of its meetings, and in of required credits at 12 per year. ders and/or substance use disor- an effort to have CLE in Oklahoma However, it did decide to recom- ders which can affect a lawyer’s continue to evolve to best serve its mend the adoption of a new defini- ability to provide competent and members, the task force recommended tion of legal ethics and to increase ethical legal services. action on the following matters: the requirement of one hour to two hours of legal ethics credits per year. BOARD ACTION „„ Targeted CLE programs for There is a resolution before the At its August meeting, the new lawyers House of Delegates this year that Board of Governors voted to „„ Greater coordination with provides effective Jan. 1, 2021, of recommend passage of the joint sections and committees on the 12 required instructional hours resolution going to the House of CLE programs of CLE each year, at least two hours Delegates to amend the MCLE „„ An increase in the number of must be for programming on legal ethics requirements, expand the mandatory legal ethics credits. ethics and professionalism. Of definition of legal ethics under the (Don’t get excited. The total num- the two required hours of con- existing MCLE regulations and ber of CLE hours required will tinuing education on legal ethics require an additional legal ethics remain the same.) and professionalism, one hour credit each year. If passed, this will each year may be for program- give OBA members greater oppor- There was lengthy discussion ming on either legal ethics and tunity for educational programs on increasing the overall num- professionalism, legal malpractice that address serious issues that ber of required CLE credits that prevention, and/or mental health impact the legal profession and the continued over several meetings. and substance use disorders. public. This resolution will be pre- sented to the House of Delegates at its Annual Meeting and upon its passage will be submitted to the Supreme Court for approval. The task force ultimately decided to leave the A copy of the Continuing Legal Education Task Force total number of required credits at 12 per year. report, along with the Executive Summary, is available online at However, it did decide to recommend the www.okbar.org. If you would like to be better informed about adoption of a new definition of legal ethics and the work undertaken by the task force, the scope of its discussions to increase the requirement of one hour to two and the results reached by it, go online and review the report. It is hours of legal ethics credits per year. well worth your time.

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 81 Ethics & Professional Responsibility Final Thoughts By Joe Balkenbush

S I REFLECT UPON MY LAWYER WELL-BEING many responsibilities that must Atenure as ethics counsel at While considering what topics be coordinated and that doesn’t the Oklahoma Bar Association to present in this final article, include our responsibilities at for the last few years, my first the single most important topic home. It is imperative that we thought was regarding how I have encountered is lawyer make time to ensure we are much I have learned about the well-being. Lawyer well-being physically, mentally, emotion- Rules of Professional Conduct has reached the level of a cri- ally and spiritually healthy. and how much I didn’t know sis. We have had at least four Sometimes a seemingly insignifi- when I took the position. I have Oklahoma lawyers take their cant event can send us to a place spoken to thousands of lawyers own life in the last few months. no one wants to go. and given them advice regarding Those are just the ones we know The incidence of mental health their ethical conduct and pro- about. There have been other and addiction issues, along with vided them with a legal basis lawyer deaths, but the cause of the simple fact that so many for that advice. death was not provided. lawyers are overwhelmed by Being a lawyer isn’t easy. It the combination of personal never has been. There are so and career responsibilities, have

NEW ETHICS COUNSEL

Norman attorney Richard Stevens has joined the OBA as its new ethics counsel. Most recently he was a solo practitioner following his retirement from the District 21 District Attorney’s Office in 2016 after 33 years as a prosecutor. He received both his B.A. (1978) and J.D. (1982) from OU. He is a member of the OBA Criminal Law Section and the Rules of Professional Conduct Committee. Mr. Stevens served on the Professional Responsibility Commission and as an at-large governor on the OBA Board of Governors from 2013-2015. He is an active member of the Cleveland County Bar Association, having served on its Executive Committee from 2010-2012. He has been active with both the OBA and the Cleveland County Disaster Response and Relief committees and the OBA Lawyers for America’s Heroes Program. Have an ethics question? It’s a member benefit, and all inquiries Richard Stevens are confidential. Contact him at [email protected] or 405-416-7055; 800-522-8065. Find ethics information at www.okbar.org/ec.

82 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL reached the level of becoming On a personal note, I have an epidemic. We must not only very much enjoyed serving as take care of ourselves, but we your ethics counsel for the past must, as a profession, take care of few years, but the time has come each other. If you see a friend or for me to pass the responsibil- colleague who you think might ity of helping fellow lawyers to be having problems, have the someone else. Richard Stevens courage to talk to them about it. is a seasoned practitioner who So often the simple act of reach- is very familiar with our ethical ing out to someone can actually rules and is available to give you save a life. If you see something, excellent advice. say something.

LAWYERS HELPING Mr. Balkenbush served as OBA LAWYERS ASSISTANCE ethics counsel from March 2015 – PROGRAM COMMITTEE September 2019. The OBA LHL Committee was created decades ago. There are ENDNOTE literally hundreds of OBA mem- 1. Oklahoma Rules of Professional Conduct, tinyurl.com/profconduct. bers who volunteer their time to help other lawyers in need. LHL is not just for alcoholics or drug addicts. The program provides services to any OBA member who is experiencing physical, mental, emotional, psychological and/or financial issues. As an OBA member benefit, the ser- vices provided are free and are confidential per Rule 8.3 of the Oklahoma Rules of Professional Conduct.1 The hotline number for LHL answered 24/7 is 800-364-7886. Additional information regard- ing LHL can be found on the LHL webpage at www.okbar. org/LHL or by contacting the OBA Office of Ethics Counsel at 405-416-7055. Salute! (a gesture of respect)

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 83 Board of Governors Actions Meeting Summaries

The Oklahoma Bar Association Board REPORT OF THE Conference and Tulsa County Bar of Governors met Friday, July 19, via PAST PRESIDENT Foundation meeting. Governor telephone conferencing. Past President Hays reported McKenzie reported he taught a she attended the Solo & Small one-hour CLE course on criminal EXECUTIVE SESSION Firm Conference, OBA Family jury trials and has been involved The board voted to go into exec- Law Section monthly meeting in the organization and formation utive session to discuss pending and received the report from the of the Oklahoma Association of legislation. They met and voted to Women in Law Committee. Criminal Defense Trial Lawyers. come out of executive session. Governor Morton reported he BOARD MEMBER REPORTS attended the Solo & Small Firm REPORT OF THE PRESIDENT Governor Beese reported Conference and Legislative President Chesnut reported he he presented at the Oklahoma Monitoring Committee meeting. attended and gave the welcome Municipal League Medical He presented a CLE program and at the OBA Solo & Small Firm Marijuana Workshop and attended the Oklahoma Criminal Conference in addition to working attended the OBA Solo & Small Defense Lawyers Association on Annual Meeting details. Firm Conference and Muskogee Criminal Defense Institute. County Bar Association meeting. Governor Pringle reported he REPORT OF THE Governor DeClerck reported presented CLE and attended the VICE PRESIDENT he attended the Solo & Small Solo & Small Firm Conference. He Vice President Neal, unable Firm Conference and received also attended the July Legislative to attend, reported via email he reports from the very busy Monitoring Committee meeting attended the Solo & Small Firm Disaster Response and Relief and a Financial Institution and Conference. Committee, which responded Commercial Law Section social to help Oklahomans who were event. Governor Will reported REPORT OF THE victims of the extensive flooding he, together with Governor PRESIDENT-ELECT that occurred recently. Governor Nowakowski and past YLD President-Elect Shields reported Hermanson reported he took Chair Nathan Richter, competed she attended the Oklahoma Bar part in the District Attorneys in the Oklahoma Bar Foundation Foundation Lip Sync Battle fund- Council Executive Board meeting Rock the Foundation Lip Sync raising event, attended and pre- and presided at both the District Contest. Governor Williams sented a CLE program at the Solo & Attorneys Council board meeting reported he attended the Solo Small Firm Conference and contin- and Oklahoma District Attorney & Small Firm Conference, OBA ued work on planning for next year. Association board meeting. He Professional Responsibility attended the Solo & Small Firm Tribunal annual meeting and REPORT OF THE Conference, Kay County Bar Tulsa County Bar Foundation EXECUTIVE DIRECTOR Association dinner meeting, Board of Trustees meeting. Executive Director Williams Oklahoma District Attorney reported he attended the Solo & Association summer conference REPORT OF THE YOUNG Small Firm Conference, monthly and ODAA annual banquet, at LAWYERS DIVISION staff celebration and YLD board which he passed the gavel and Governor Nowakowski meeting. He drafted the CLE Task officially become past chair of the reported she attended the Solo & Force Report and hosted a judicial DAC and past president of the Small Firm Conference, conducted delegation from the Republic of ODAA. Governor Hicks reported the YLD Midyear Meeting and North Macedonia. he attended the Solo & Small Firm participated in the OBF Rock the

84 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL Foundation event. She said the next month. Governor Pringle The Oklahoma Bar Association YLD board will meet tomorrow said the Legislative Monitoring Board of Governors met Friday, to assemble bar exam survival Committee will hold its Legislative Aug. 23, at the Oklahoma Bar Center kits, and YLD representatives will Debrief on Aug. 22 at 2 p.m. at the in Oklahoma City. attend the upcoming national bar center. Topics and speakers meeting in San Francisco. She are all confirmed, but they are REPORT OF THE PRESIDENT reported a Wills for Heroes event still working on the legislative President Chesnut reported he in Vinita is tentatively set for panel. Jari Askins will moderate. attended the Southern Conference of mid-September. Governor Morton was asked to Bar Presidents, National Conference assume liaison responsibilities for of Bar Presidents, ABA House of BOARD LIAISON REPORTS Governor Hutter. Past President Delegates and delegates dinner held Governor Fields said the Hays said the Women in Law in connection with the ABA Annual Bar Association Technology Committee will hold a mixer Aug. 13 Meeting in San Francisco. He also Committee met at the Solo & in Tulsa and Oklahoma City. attended the OBA Bar Facilities Small Firm Conference. Governor Committee meeting, OBA Disaster DeClerck talked to Disaster REPORT OF THE Response and Relief Committee Response and Relief Committee GENERAL COUNSEL meeting and Tulsa County Bar Chair Molly Aspan about the General Counsel Hendryx Association annual luncheon. influx of requests for legal advice reported a written report of PRC He made appointments to as a result of the flooding. A total actions and OBA disciplinary mat- various committees. of 43 requests for legal advice were ters from May 31 to July 12 was sub- received with 17 of those requests mitted to the board for its review. REPORT OF THE handled. He said more volunteer VICE PRESIDENT lawyers are needed. Governor JUDICIAL NOMINATING Vice President Neal reported Beese volunteered to recruit vol- COMMISSION ELECTION he attended the OBA Legislative unteers to handle any Muskogee RESULTS Debrief. County needs. Executive Director Executive Director Williams Williams said he will contact Ms. reported James Bland of McAlester REPORT OF THE Aspan. Governor DeClerck said ran unopposed for the District 3 PRESIDENT-ELECT the Communications Committee position, and David L. Butler of President-Elect Shields reported will meet July 29 to review the Lawton won the election for the she attended the SCBP, NCBP and consumer brochures being printed District 4 position. Their terms ABA delegates meetings held in and to develop a procedure for will expire 10/1/2025. San Francisco, OBA Legislative their annual review. Governor Monitoring Committee Legislative Williams said the Diversity CLE TASK FORCE REPORT Debrief and July Oklahoma Bar Committee offered a CLE seminar Executive Director Williams Foundation Board of Trustees yesterday. He encouraged board reported the MCLE Commission meeting. She met with Dean Roth members to submit nominations has approved the task force’s recom- and [rofessors Couch and Blitz for the committee’s Ada Lois mendation, which was circulated to at the OCU School of Law and Sipuel Fisher Diversity Awards, board members via email. The rec- attended a luncheon for OCU law which are due July 31. Governor ommendation will be on the board students during the bar exam. Beese said the Legal Internship agenda for the August meeting. She also worked on committee Committee is putting forth pro- appointments and other planning posals to be on the board agenda for next year.

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 85 REPORT OF THE minutes, visited with Chair Dick that were appreciated by those EXECUTIVE DIRECTOR Pryor about the committee’s work taking the exam. YLD board Executive Director Williams and future considerations and members will meet Saturday, reported he attended the National participated in a conference call Sept. 14, in Vinita in conjunction Association of Bar Executives with Disaster Response and Relief with a Wills for Heroes event. meeting, SCBP and NCBP meet- Committee Chair Molly Aspan, She described how lawyers work ings in San Francisco, staff budget Executive Director Williams and individually with veterans and meeting, Legislative Monitoring President Chesnut. Governor first responders to prepare wills Committee meeting, Audit Fields reported he attended the and other legal documents as a Committee meeting, Bar Center OBA Audit Committee meeting. community service. She attended Facilities Committee meet- Governor Hicks reported he the OBA Awards Committee ing, Legislative Debrief, Allen attended the National Conference meeting in addition to the ABA Smallwood’s annual bench and of Bar Foundations in San Francisco, YLD Assembly, ABA House of bar event and YLD board meeting. OBA Audit Committee meeting, Delegates and Oklahoma delegate He conducted interviews for ethics Tulsa County Bar Association dinner in San Francisco. counsel and heroes program coor- meeting and TCBA annual dinator, participated in the Disaster luncheon. Governor Morton BOARD LIAISON REPORTS Response and Relief Committee reported he attended the Legislative Governor Morton said the conference call, worked on Annual Monitoring Committee meeting, Bench and Bar Committee Meeting preparations with LawPay Bench and Bar Committee meet- formed a subcommittee to cre- on its streetcar event sponsorship ing and OBA Legislative Debrief. ate guidelines for social media and worked on litigation. Governor Oliver reported he utilization. Governor DeClerck attended the OBA Audit Committee said the Disaster Response and REPORT OF THE meeting and Payne County Bar Relief Committee volunteers PAST PRESIDENT Association monthly meeting. had difficulties reaching disas- Past President Hays reported Governor Pringle reported he ter survivors, but all people who she attended the OBA Awards attended the Oklahoma County Bar requested legal advice from the Committee meeting, OBA Women Association’s Briefcase Committee OBA have been helped. He said in Law Committee meeting, OBA meeting, OCBA Striking Out the Communications Committee Audit Committee meeting, OBA Hunger fundraiser, OBA Audit is reviewing four consumer Family Law Section monthly Committee meeting and OBA information brochures and will meeting, OBA Family Law Section Legislative Committee Legislative implement a plan for annual Annual Meeting planning meeting Debrief. Governor Will reported he review of all brochures. Governor and Tulsa County Bar Association chaired the OBA Bar Center Facilities Pringle said the Legislative annual luncheon. In San Francisco Committee meeting and attended Monitoring Committee held its she attended the ABA Annual the OBA Audit Committee meet- Legislative Debrief yesterday with Meeting, SCBP, NCBP and OBA ing. Governor Williams, unable to about 120 people attending. He Oklahoma delegates dinner. She attend the meeting, reported via said those participating on the coordinated the Mona Salyer email he attended the OBA Diversity legislative panel did an excellent Lambird Spotlight Award nomina- Committee meeting. With Judge job. Past President Hays said the tions, voting and awards. Martha Rupp Carter, he co-authored Professionalism Committee met the Gary C. Clark Award article for and is working on a CLE semi- BOARD MEMBER REPORTS the Tulsa County Bar Association’s nar. She reported the Women in Governor Beese reported annual awards luncheon and the Law Committee held a mixer in he attended the OBA Audit Tulsa Lawyer magazine. As a TCBF August and a clothing drive in Committee meeting and Muskogee Trustee, he inspected progress of both Oklahoma City and Tulsa. She County Bar Association meeting. repairs and the restoration of the oversaw voting for Mona Salyer Governor DeClerck reported he TCBF bar building. Lambird Spotlight Award winners, coordinated with the Garfield and she announced the winners County Bar Association presi- REPORT OF THE YOUNG who will receive their awards at dent to host a Lawyers Helping LAWYERS DIVISION the upcoming conference. Lawyers presentation to the county Governor Nowakowski bar association, reviewed OBA reported last month YLD board Communications Committee members assembled survival kits

86 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL REPORT OF THE approved the proposed amend- being the OBA’s sections. The GENERAL COUNSEL ments. The proposed amendments MCLE Commission looked at other General Counsel Hendryx will be published in the Oklahoma states that include mental health reported on a case recently filed Bar Journal, eNews and on www. and wellness in CLE program cur- in the U.S. District Court for New okbar.org with a 60-day comment riculum. Mr. Brown said the task Jersey wherein the OBA is a named period before being submitted to force recommends a rule change defendant, and she shared details. the Supreme Court for its approval. to expand the definition of legal A written report of PRC actions ethics to include legal malpractice and OBA disciplinary matters AWARDS COMMITTEE prevention and mental health and from July 12 to Aug. 16 was sub- RECOMMENDATIONS substance use disorders. The task mitted to the board for its review. Committee Chairperson Kara force also recommends increas- Smith reviewed the commit- ing from one to two hours for LICENSED LEGAL tee’s recommendations for OBA programming on legal ethics and INTERNSHIP COMMITTEE Awards to be presented at the professionalism. The guidelines for ANNUAL REPORT OBA Annual Meeting. No award programming were described. Committee Chairperson Terrell recipients were recommended Monks said previous Supreme for the Fern Holland Courageous RESOLUTION NO. ONE Court Justice Combs asked the Service Award and Trailblazer CLE Task Force Chairperson committee to look over rules and Award. The board approved the Jack Brown reviewed the joint regulations that would allow committee’s recommendations. resolution submitted to the interns to be more involved in OBA House of Delegates by the law school legal clinics in support CLE TASK FORCE CLE Task Force and Mandatory of access to justice efforts. There FINAL REPORT Continuing Legal Education are issues with some states not Task Force Chairperson Jack Commission to amend MCLE providing background reports as Brown praised task force members ethics requirements. A question required by Oklahoma rules. Also, who were presented with statis- was raised about the redlined an addition to Rule 2.1A is being tics and disciplinary information text, which was resolved. The requested to allow any member of that relates to education as part board approved the resolution the Oklahoma judiciary, not just of the research they reviewed. He with a do pass recommendation Oklahoma Supreme Court jus- said task force recommendations for it to be adopted. tices, to swear in academic interns. include programs targeted to new Questions were asked. The board lawyers and noted delivery meth- approved the report that will be ods of CLE have changed from pri- submitted to the Supreme Court. marily live seminars to increased online utilization. Revenue contin- AMENDMENTS TO RULE 2.1A ues to drop as a result of compe- AND REGULATION 7 OF THE tition – with a major competitor RULES OF THE SUPREME COURT ON LICENSED LEGAL INTERNSHIP Committee Chairperson Monks called the board’s attention to the redlined changes that are being requested. An amendment to Mr. Brown said the task force recommends a rule Regulation 7 would require fingerprint-based and name-based change to expand the definition of legal ethics to criminal history, sex offender and violent offender searches include legal malpractice prevention and mental from the Oklahoma State Bureau of Investigation and remove the health and substance use disorders. requirement for background reports for each state in which the student has resided for a period of one month or longer. The board

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 87 AMENDMENT TO LHL Foundation treasurer and APPOINTMENT OF COMMITTEE & SECTION committee member, introduced COMMISSION TO ACT GUIDE, APPENDIX 2 Committee Co-Chairperson UPON GRIEVANCE CO-SPONSORSHIP Jeanne Snider and committee AGAINST PRC MEMBER OF SEMINARS member Ben Rogers. Ms. Snider President Chesnut recom- CLE Task Force Chairperson said bar members are not taking mended the appointment of Jack Brown said a change in section advantage of the free services Deborah A. Reheard, Eufaula; co-sponsorship policy is being and LHL Foundation grants. William R. Grimm, Tulsa; and recommended that would strongly Committee participation has Stephen D. Beam, Weatherford, encourage sections to co-sponsor dwindled because of a lack of to a commission to act upon a a CLE program with the OBA activity in requests for mentors. grievance against a Professional every two years. Sections not co- After reviewing the ABA rec- Responsibility Tribunal mem- sponsoring with OBA CLE would ommendations, the committee ber. The board approved the be required to coordinate with prepared a proposal that includes appointment. the department. More details to 1) establishing a more formal expand options for the sections and structure for the lawyer assistance OKLAHOMA INDIAN LEGAL to share revenue were added. The program, 2) increasing funding SERVICES APPOINTMENT board approved the policy amend- and 3) hiring a full-time director. President Chesnut recom- ment effective immediately. Mr. President-Elect Shields said one mended the appointment of Brown was thanked for his work. of her priorities next year will be Christine C. Pappas, Ada, to the Lawyers Helping Lawyers complete the unexpired term AUDIT COMMITTEE Assistance Program incorporat- of G. Blake Jackson expiring REPORT AND APPROVAL ing wellness. It was noted the 12/31/2019. The board approved OF 2018 AUDIT REPORT Budget Committee will meet soon, the appointment. BY SMITH CARNEY and it was the consensus that Auditor Leah Logan reviewed funding needs to be a long-term EXECUTIVE SESSION two changes to the report: 1) addition commitment. It was determined a The board voted to go into of statements showing total dues increase was not an option. executive session, met and voted expenses with and without donor Discussion followed about fund- to come out of executive session. restrictions and 2) addition of a ing options, and it was decided a footnote on liquidity and avail- suggested donation of $20 for the NEXT MEETING ability. She reviewed the controls program should be included in the The Board of Governors met used and said it is an unqualified donation line item on annual dues in September, and a summary of report, which reflects no problems. statements. Problems with poor ser- those actions will be published in She said the report was given to vice from the current assistance pro- the Oklahoma Bar Journal once the the Audit Committee last week. gram vendor that staffs the hotline minutes are approved. The next As Audit Committee chairperson, were shared that have occurred board meeting will be at 10 a.m. Governor Oliver said the commit- since the vendor was acquired by Friday, Oct. 18, in McAlester. tee reviewed the report and voted another entity headquartered in to submit it as presented. The Chicago. Options were discussed. It board approved the report. was decided the best strategy is to form a subcommittee and meet with LAWYERS HELPING LAWYERS Executive Director Williams to plan ASSISTANCE PROGRAM the next step. COMMITTEE PROPOSAL President Chesnut summa- APPROVAL OF rized the program and explained OUT-OF-STATE TRAVEL its current funding. He said the Executive Director Williams said resources they have are insuffi- policy requires board approval for cient. The ABA Commission on OBA Practice Management Advisor Lawyer Assistance Programs Julie Bays to attend the October conducted a study of Oklahoma’s 2019 ABA Law Practice Division fall program and has made recom- meeting in Portland, Oregon. The mendations. Peggy Stockwell, board approved the travel request.

88 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL

Bar Foundation News Scholarship & Award Highlights

MAURICE H. MERRILL AWARD

What are your short-term and long-term goals? My short-term professional goals are likely the same as most rising 3Ls. I wish to secure a job, graduate and pass the bar. My short- term personal goal is that I would love to take a trip somewhere tropical after graduation. My professional and personal long-term goals are relatively the same. I want to stay happy, learning and moving forward.

What made you decide to attend law school? In high school, I had a few teachers tell me that law school was something I should keep in mind. I heeded their advice, and in college I began paying attention to what a career in law could look like. Ultimately, I decided a law degree can open many doors career-wise and provides an opportunity to serve others. Ashley Ray Are there any laws or social rules that completely baffle you? Hometown: Newcastle I am a little perplexed by the third-party doctrine in criminal pro- cedure. Essentially, if one turns over information to a third party, Law School: OU College of Law then he or she no longer has a reasonable expectation of privacy of that information. This doctrine was first created in 1976, so it will Graduation 2019 be interesting to see how or if it changes in the context of our dig- Date: ital world where it may be impossible to socially navigate without sharing information with third parties. What field of Estate Planning, law are you Real Estate, What historical figure inspires you and why? studying: Corporations I am inspired by the life and achievements of Abraham Lincoln. His integrity and humility are key traits I aspire to reflect in my Undergraduate: OU personal and professional life. Finance, summa Undergrad What is the most important thing you have learned in law school cum laude with Major: or undergrad? distinction I have learned the importance of a quote from one of my favorite Graduation movies, which is to “have courage and be kind.” 2016 Date:

90 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL W.B. CLARK SCHOLARSHIP RECIPIENT

What are your short-term and long-term goals? I look forward to leveraging my skills in science, business and the law to protect the ideas of America’s best and brightest minds and strengthen the economy of our nation. I also look forward to expanding my art collection!

What made you decide to attend law school? My career has been focused on helping others, and a law degree will enable me to do that at a higher level. I also admire the tangi- ble, results-driven nature of the profession.

Are there any laws or social rules that completely baffle you? It still amazes me that a federal “right to try” bill was met with so much resistance. Thankfully, it was signed into law. Andrew Kirby What historical figure inspires you and why? Hometown: Ponca City Theodore Roosevelt – I’m inspired by his character and accomplishments. Law School: OU College of Law What is the most important thing you have learned in law school Graduation 2020 or undergrad? Date: Law school has given me a new appreciation for the role that lawyers have played in shaping the history of our nation. What field of law are you Intellectual Property studying:

University of Central Undergraduate: Oklahoma

Undergrad Biology Major:

Graduation 2006 Date:

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 91 Young Lawyers Division Pumpkin Spice and Everything Nice By Brandi Nowakowski

T’S FALL, Y’ALL! That means WILLS FOR HEROES joined by the members of the Lee Ifootball, pumpkins and sweater For example, our successful Coats Law Firm who graciously weather. Despite cooler tem- Wills for Heroes service event hosted us. I am so grateful to peratures, the YLD has been originated with the ABA YLD. everyone who made this event busy heating up. For instance, This worthwhile community ser- a success and especially to all of in August the YLD Executive vice project provides basic estate those brave men and women who Committee attended the American planning to first responders such put their lives on the line, serving Bar Association Annual Meeting as police, fire and EMS. On Sept. others day in and day out. in San Francisco where we repre- 14, the OBA YLD once again pro- sented Oklahoma at the ABA YLD vided this service, volunteering NEW MEMBERS Assembly. It was a great oppor- both our time and expertise to the Next, we welcomed our newest tunity for us to connect with our first responders in Vinita. Several colleagues at the swearing-in cere- counterparts from across the coun- members of the YLD board, along mony for the new admittees to the try. The ABA and these young with a few other generous lawyers, Oklahoma Bar Association. After lawyer leaders provide an invalu- headed to northeast Oklahoma to the swearing in, the YLD hosted able source of advice and ideas in prepare basic wills and powers of a reception for all of the newly law practice, professional involve- attorney for these very deserving admitted lawyers, their families ment and community service. men and women. We were also and friends.

ANNUAL MEETING With that, we set our sights on the biggest event of the fall: OBA Annual Meeting! The 2019 Annual Meeting will take place Nov. 6-8 in Oklahoma City at the Renaissance Oklahoma City Convention Center Hotel and Cox Convention Center. This event is packed with CLE and networking opportunities for everyone! In addition to the business portion of the conference, evenings at Annual Meeting offer a relaxed atmosphere to kick back and socialize with fellow lawyers. This year, Wednesday eve- ning will offer the President’s Reception followed by a Midtown Join the YLD for a pub crawl via OKC Streetcar as part of the OBA Annual Meeting. Pub Crawl complete with street- Photo credit: EMBARK car rides. We’ll cap the night off

92 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL Attending the ABA Annual Meeting in San Francisco are (from left) Dylan Erwin, April Moaning, Brandi Nowakowski and Jordan Haygood. with hospitality suites including Annual Meeting is what you make Ms. Nowakowski practices in our very own YLD-hosted suite. it. Come, make the most of Annual Shawnee and serves as the YLD Thursday will feature the Out Meeting and YOUR bar associa- chairperson. She may be contacted of This World Party and another tion! We hope that you’ll join us at [email protected]. Keep night of hospitality suites, includ- and can’t wait to see you! up with the YLD at www.facebook. ing the ever-popular suite of the com/obayld. YLD. Those of you who have ELECTIONS attended know what a great time Last but certainly not least, Annual Meeting can be. Those taking place at Annual Meeting is who haven’t attended simply the November YLD meeting and don’t know what you’re missing announcement of the YLD election out on! Anytime I ask friends or results! Electronic ballots went colleagues why they have never out on Oct. 1 and the deadline to attended, I hear the same excuses: vote is 5 p.m. Friday, Oct. 25. All they don’t know anyone, they candidates and open positions aren’t in bar leadership, it’s only were highlighted in last month’s for “tall building lawyers,” etc. Oklahoma Bar Journal and are Rest assured, in the YLD suite, online at www.okbar.org/yld/ there are no strangers – just food, elections. Please check out the drink, music, friends and fun! elections for your district and It’s a great opportunity to meet at-large representatives and don’t people, build relationships and forget to cast your vote! We look reconnect with friends from across forward to seeing you at Annual the state. Like so many things, Meeting!

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 93 For Your Information

JUDGE JOHN KANE APPOINTED TO OKLAHOMA SUPREME COURT IMPORTANT UPCOMING DATES Gov. J. Kevin Stitt has appointed Judge John Don’t forget the Oklahoma Bar Kane IV of Pawhuska to the Oklahoma Supreme Center will be closed Monday, Court. He will fill the vacancy for District 1 which Nov. 11, in observance of Veterans was created when Justice John F. Reif retired. Day. The bar center will also Judge Kane served as district judge for the be closed Thursday and Friday, 10th Judicial District in Osage County since 2005, Nov. 28-29, for Thanksgiving. presiding over tens of thousands of cases. Remember to register and join us “Judge Kane’s extensive record serving the for the OBA Annual Meeting to be 10th Judicial District and his broad support in held in Oklahoma City Nov. 6-8. the community, and from across the state, speak toward his qualifications to join the highest court in John Kane Oklahoma,” Gov. Stitt said. “He is an accomplished OBA MEMBER RESIGNATIONS judge with a reputation for fairness and a passion to ensure the legal sys- The following member has tem is serving the needs of the people.” resigned as members of the associ- Judge Kane has served in many capacities throughout his career, includ- ation and notice is hereby given of ing president of the Oklahoma Judicial Conference, from 2013-2014, presid- such resignation: ing judge-elect of the Northeastern Judicial Administrative District in 2019 and as presiding judge of the Oklahoma Court on the Judiciary in 2019. Dochele Burnett He received his J.D. from the OU College of Law in 1987 and began his OBA No. 10749 career as an attorney at Kane, Kane & Kane Law Offices PC, a law firm P.O. Box 30603 founded by his father and grandfather in Pawhuska. Midwest City, OK 73140-3603

Jean Elizabeth Giles 2020 PROPOSED BUDGET HEARING OBA No. 22811 Pursuant to Article VII, Section 1 of the Rules Creating and Controlling 5327 Washington Blvd. the Oklahoma Bar Association, Susan Shields, president-elect and Budget Indianapolis, IN 46220 Committee chairperson, has set a public hearing on the 2020 Oklahoma Bar Association budget for Thursday, Oct. 17, at 10 a.m. at the Oklahoma Bar Center, 1901 N. Lincoln Blvd., in Oklahoma City. Budget details will be published in the Oct. 12 Oklahoma Bar Journal court issue.

LHL DISCUSSION GROUP HOSTS NOVEMBER MEETING “Reasonable Expectations at the Holidays” will be the topic of the Nov. 7 meeting of the Lawyers Helping ASPIRING WRITERS TAKE NOTE Lawyers monthly discus- We want to feature your work sion group. Each meeting, on “The Back Page.” Submit articles always the first Thursday of related to the practice of law, or the month, is facilitated by send us something humorous, committee members and a transforming or intriguing. Poetry licensed mental health professional. The group meets from 6 to 7:30 p.m. at is an option too. Send submissions the office of Tom Cummings, 701 N.W. 13th St., Oklahoma City. There is no of about 500 words to OBA cost to attend and snacks will be provided. RSVPs to onelife@plexisgroupe. Communications Director Carol com are encouraged to ensure there is food for all. Manning, [email protected].

94 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL Bench and Bar Briefs

ON THE MOVE KUDOS

Joshua K. Hefner has joined the Mark A. Yancey was named Kyle Sweet was appointed to firm of Ryan Whaley Coldiron chief learning officer for the U.S. the Board of Directors of the Jantzen Peters & Webber PLLC Department of Justice Office of Collaborative for Accountability as an associate and Gerard F. Legal Education. He received his and Improvement, a program Pignato has joined the firm as of J.D. from Cumberland School of at the University of Washington counsel. Mr. Hefner received his Law at Samford University in College of Medicine. Mr. Sweet is J.D. from the OU College of Law in Birmingham, Alabama, in 1986. the only defense attorney on the 2011 and will practice in the area board. He received his J.D. from of general insurance defense. Mr. Keith F. Givens has joined the OU College of Law in 1997. Pignato received his J.D. from the firm of Mansell, Engel & Cole. He OU College of Law in 1984 and practices primarily in insurance Raymond E. Penny Jr. received practices in the area of complex coverage, bad faith and personal Region II Prosecutor of the Year insurance litigation. injury matters. Mr. Givens received award at the Association of his J.D. from the OU College of Law Oklahoma Narcotics Enforcers ban- Matthew R. Rison, Aaron F. W. and an LL.M. from the London quet. Mr. Penny formerly served Meek and Kevin T. O’Shields School of Economics in London. as deputy director of the Gang have formed Rison, Meek & and Organized Crime Protection O’Shields PLLC. The office is Benjamin Aycock has joined the Unit in the Tulsa County District located at 428 NW 5th St., Ste. B, Tulsa-based firm of Henry + Dow. Attorney’s Office where he worked Oklahoma City, 73102. They will He practices primarily in large with Tulsa Police, Homeland focus on oil and gas title examina- marital estate and divorce cases. Security, DEA Task Force agents tion on lands in Oklahoma and Mr. Aycock received his J.D. from and the FBI in an effort to reduce other states and can be reached the TU College of Law in 2006. trafficking drugs and weapons in at 405-724-7444. the Tulsa area. Moura A.J. Robertson has joined Steven K. Balman has joined the the Tulsa-based firm of Doerner, Brian Hermanson was awarded firm of Shook & Johnson PLLC. Mr. Saunders, Daniel & Anderson LLP the Oklahoma District Attorneys Balman received his J.D. in 1981 as partner. She practices primarily Association Scales of Justice for from the University of Texas School family law and mediation. Ms. his work as the association presi- of Law in Austin, Texas. He prac- Robertson received her J.D. from dent for 2018-19. Mr. Hermanson tices complex business litigation, the TU College of Law in 1992. received his J.D. from the OU civil appeals and probate litigation. College of Law in 1978. Sutton Smith Murray has Monica Y. Ybarra has joined TBS joined the Tulsa-based firm of Judge Gerald A. Williams was Factoring Service LLC as corpo- Smakal Munn PC. Ms. Murray awarded the Justice Michael D. rate counsel. She received her J.D. received her bachelor’s degree Ryan Award for Judicial Excellence from the OCU School of Law in from Vanderbilt University in by the Public Lawyers Division 2014. Ms. Ybarra currently serves Nashville, Tennessee, and her J.D. of the State Bar of Arizona. He on the Oklahoma County Bar from the UCLA School of Law received his J.D. from the OU Association Board of Directors in Los Angeles. She also holds a College of Law in 1989. and as the OCU School of Law Master’s of Fine Arts from TU. Alumni Association chair.

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 95 In Memoriam

amuel Thomas Allen III of harles E. Cheatham of and received numerous awards for SSapulpa died Aug. 2. He was COklahoma City died Aug. 22. his service. Memorial contributions born April 13, 1923. In 1943, he He was born Nov. 10, 1949, in may be made to the OSU General left college to serve as a lieu- Stillwater. Mr. Cheatham received Athletics Fund through the OSU tenant junior grade in the U.S. his J.D. from Harvard Law School Foundation, 1219 PMB, Stillwater, Navy through the remainder of in Cambridge, Massachusetts, 74078, or to Stillwater Cancer World War II. Mr. Allen received in 1979. He spent 40 years work- Center, Attn: Vicki Branstetter, his J.D. from the OU College of ing in banking law. Memorial 1201 W. 6th Ave., Stillwater, 74074. Law in 1950. His career began contributions may be made to as an assistant county attorney the Oklahoma Medical Research illiam M. Northcutt of before he spent some time in pri- Foundation. WTulsa died Aug. 20. He was vate practice, where he remained born March 30, 1934, in Decatur, for the duration of his career. alter R. Gaidaroff of Arkansas. He received his J.D. Mr. Allen was appointed by Gov. WOklahoma City died Aug. 21. from the TU College of Law in Bellman as a special judge of the He was born Oct. 18, 1950, in 1960 and began his legal career as Supreme Court to help resolve a Chickasha. Mr. Gaidaroff received a legal assistant for the Oklahoma backlog of cases in the early 1960s. his J.D. from the OCU School of Supreme Court before working for In 1981, Chief Justice Irwin named Law in 1981. the City of Tulsa Legal Department. him a special judge of the court of Memorial donations can be made appeals. Memorial contributions udge Robert Hert Jr. of Stillwater to the Scout Resource Center, 4295 may be made in memory of Mr. Jdied Aug. 26. He was born South Garnett Rd., Tulsa, 74146. Allen to the charity of your choice. June 21, 1944, in Colorado Springs, Colorado. Mr. Hert received his ohn D. Board of Amarillo, Texas, J.D. from the OU College of Law in Jdied March 11. He was born 1969. He worked in private practice March 3, 1935, in Oklahoma City. in Stillwater until 2011. From 2005 Mr. Board received his J.D. from to 2007, Mr. Hert was the contract the OU College of Law in 1962 administration law judge for the and was president of his class. His Office of Administrative Hearings, career included time spent practic- Oklahoma Department of Human ing in Woodward, Amarillo and Services. In 2011, he became special Guymon. In 1985, while living in district judge of Payne and Logan Guymon, he served as Oklahoma counties, where he remained until Bar Foundation president. Memorial earlier this year. Mr. Hert earned contributions may be made to BSA the rank of lieutenant colonel in Hospice of the Southwest. the United States Army Reserves

HOW TO PLACE AN from you. Sections, committees, Submit news items to: ANNOUNCEMENT: and county bar associations The Oklahoma Bar Journal are encouraged to submit short Laura Wolf welcomes short articles or news stories about upcoming or recent Communications Dept. items about OBA members and activities. Honors bestowed by other Oklahoma Bar Association upcoming meetings. If you are an publications (e.g., Super Lawyers, Best 405-416-7017 OBA member and you’ve moved, Lawyers, etc.) will not be accepted as [email protected] become a partner, hired an associate, announcements. (Oklahoma based taken on a partner, received a publications are the exception.) Articles for the December issue must promotion or an award, or given Information selected for publication be received by Nov. 1. a talk or speech with statewide or is printed at no cost, subject to national stature, we’d like to hear editing and printed as space permits.

96 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL

2019 ISSUES NOVEMBER DECEMBER Indian Law Starting a Law Practice Editor: Leslie Taylor Editor: Patricia Flanagan [email protected] patriciaaflanaganlawoffice@ Deadline: Aug. 1, 2019 cox.net Deadline: Aug. 1, 2019

2020 ISSUES JAUNARY AUGUST Meet Your Bar Children and the Law Association Editor: Luke Adams Editor: Carol Manning [email protected] Deadline: May 1, 2020 FEBRUARY Family Law SEPTEMBER Editor: Virginia Henson Bar Convention [email protected] Editor: Carol Manning Deadline: Oct. 1, 2019 OCTOBER MARCH Mental Health Constitutional Law Editor: C. Scott Jones Editors: C. Scott Jones & [email protected] Melissa DeLacerda Deadline: May 1, 2020 [email protected] Deadline: Oct. 1, 2019 NOVEMBER Alternative Dispute APRIL Resolution Law Day Editor: Aaron Bundy Editor: Carol Manning [email protected] Deadline: Aug. 1, 2020 MAY Diversity and the Law DECEMBER Editor: Melissa DeLacerda Ethics & Professional [email protected] Responsibility Deadline: Jan. 1, 2020 Editor: Amanda Grant [email protected] Deadline: Aug. 1, 2020

If you would like to write an article on these topics, contact the editor. 2019–2020 EDITORIAL CALENDAR 2019–2020 EDITORIAL

98 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL WHAT'S ONLINE

Registration Bar Business Register by mail, fax or online! It’s important to know what’s going on in Walk-ins also welcome. your organization! Read up on resolutions, www.okbar.org/annualmeeting/ House of Delegates info and get to know the registration candidates for next year’s officers and Board of Governors before the Annual Meeting. www.okbar.org/annualmeeting/ barbusiness Hotel Info Registration does not include hotel accommodations. The deadline to take advantage of the discounted room rate OBA Awards booked through the hotel website is Oct. 15. Congratulations to this year’s tinyurl.com/AMhotel OBA Award winners. www.okbar.org/annualmeeting/awards

CLE OBA CLE programs are being offered all Program of Events day Wednesday and Thursday morning. This year’s lineup includes luncheon speaker Sign up to learn about the stages Ed Walters, Delegates Breakfast speaker Walt of legal marijuana enterprise and Coleman, several great CLE opportunities, artificial intelligence, data analytics the President’s Reception, Midtown Pub and legal ethics in a digital age. Crawl, OBA section events and more! www.okbar.org/annualmeeting/cle www.okbar.org/annualmeeting/program

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HANDWRITING IDENTIFICATION POSITIONS AVAILABLE POLYGRAPH EXAMINATIONS Board Certified State & Federal Courts Diplomate - ABFE Former OSBI Agent OKLAHOMA BAR ASSOCIATION HEROES program Fellow - ACFEI FBI National Academy is looking for several volunteer attorneys. The need for FAMILY LAW ATTORNEYS is critical, but attorneys Arthur Linville 405-736-1925 from all practice areas are needed. All ages, all counties. Gain invaluable experience, or mentor a young attorney, while helping someone in need. For more information EXPERIENCED LANDMEN EXPERIENCED IN OIL or to sign up, contact 405-416-7086 or [email protected]. AND GAS MINERAL INTEREST VERIFICATION AND VALUATION IN OKLAHOMA. Our services include status of title, verifying quantum of interest WATKINS TAX RESOLUTION AND ACCOUNTING and performing requisite title curative, if needed. In FIRM is hiring attorneys for its Oklahoma City and order to determine the value of a particular interest Tulsa offices. The firm is a growing, fast-paced setting we research land records, records of the Oklahoma with a focus on client service in federal and state tax Corporation Commission and any additional resources help (e.g. offers in compromise, penalty abatement, which would provide information relative to pooling innocent spouse relief). Previous tax experience is bonuses, lease bonuses, development and leasing not required, but previous work in customer service activity. Our verification and valuation reports have is preferred. Competitive salary, health insurance and been routinely utilized by probate attorneys, estate 401K available. Please send a one-page resume with planning attorneys and those attorneys requiring this one-page cover letter to [email protected]. information for litigation. Contact Edward Reed at Centennial Land Company, 405-844-7177, Ext. 102 or DURBIN LARIMORE & BIALICK PC has an excellent [email protected]. opportunity for attorneys with 5-7 years of litigation experience. Those candidates with employment, oil and JSLegalWritingServices.com: for small firms who need gas and/or environmental law experience a plus, but not assistance. brief writing for federal and state courts. required. Generous benefits package and competitive Discovery document and medical records review. Over salary. Please send cover letter, resume and references to 15 years of experience. Phone: 405-513-4005. Email: [email protected]. [email protected].

THE OKLAHOMA BAR JOURNAL OCTOBER 2019 | 101 POSITIONS AVAILABLE POSITIONS AVAILABLE

ESTABLISHED, AV-RATED MIDTOWN TULSA LAW WELL-ESTABLISHED AV PLAINTIFF’S PERSONAL FIRM SEEKING ASSOCIATES with 0 to 5 years of INJURY AND MEDICAL MALPRACTICE FIRM seeks experience to assist with insurance defense practice. lawyer with at least two years litigation experience. Great growth potential. Excellent benefits. Send resume Submit resume, writing sample and law school to “Box CC,” Oklahoma Bar Association, P.O. Box 53036, transcript to “Box KK,” Oklahoma Bar Association, P.O. Oklahoma City, OK 73152. Box 53036, Oklahoma City, OK 73152.”

DURBIN LARIMORE & BIALICK PC has an excellent INVESTIGATOR. OFFICE OF THE GENERAL COUNSEL, opportunity for attorneys with 5-7 years’ experience OKLAHOMA BAR ASSOCIATION. Applications are in corporate, real estate, business and commercial law. now being accepted for a position as an investigator Those candidates with commercial litigation, probate for the Office of the General Counsel, Oklahoma Bar and estate administration experience are a plus. Association. The investigators review allegations against Generous benefits package and competitive salary. members of the bar which may involve violations of the Please send cover letter, resume and references to rules of professional conduct. Duties include interviewing [email protected]. witnesses, reviewing legal documents and financial statements, preparing reports and testifying at disciplinary NORMAN BASED LAW FIRM IS SEEKING SHARP, and reinstatement hearings before the Professional MOTIVATED ATTORNEYS for fast-paced transactional Responsibility Tribunal. Applicants should have a degree work. Members of our growing firm enjoy a team from an accredited university or comparable work atmosphere and an energetic environment. Attorneys experience, possess excellent writing skills and be able to will be part of a creative process in solving tax cases, work independently. Some travel may be required. Law handle an assigned caseload and will be assisted by enforcement, accounting, legal or investigative experience an experienced support staff. Our firm offers health strongly preferred. Salary negotiable, depending upon insurance benefits, paid vacation, paid personal days and credentials and experience. Excellent benefits including a 401K matching program. No tax experience necessary. retirement, health and life insurance. Resumes and cover Position location can be for any of our Norman, OKC or letters should be submitted by Oct. 24, 2019 to Gina L. Tulsa offices. Submit resumes to [email protected]. Hendryx, General Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152 or electronically to [email protected]. The Oklahoma Bar Association is an JENNINGS TEAGUE, AN AV RATED DOWNTOWN Equal Opportunity Employer. OKC LITIGATION FIRM whose primary areas of practice are insurance defense, products liability and transportation defense, seeks an associate attorney with 5-10 years of experience. The position will encompass all phases of litigation, including pleadings and motion practice, discovery, depositions, investigation, research and trial. Compensation commensurate with experience. Please submit cover letter, resume, writing sample and references to [email protected].

102 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL

The Back Page The Moral of That Story Is… By Holly Cinocca

ARLY IN MY LEGAL CAREER attorney questioning her was clearly just “flopped right on in,” cracking Eas the new “lady D.A.” for a stunned and began quizzing her a rib and bruising herself all over. rural county, I was preparing for a as to how a person manages to fall The attorney paused for a bit and hearing by reading through a depo- into a trash dumpster. Well, she was then asked, “Had you been drink- sition transcript. This one made taking the trash out of her motel ing?” Answer: “Yeah, I was pretty me laugh out loud. A middle-aged room to the dumpster. messed up.” Well, that explains woman claimed her husband She says, “Well, I was wearin’ a lot. The moral of that story is abused her, but as it turns out, she flip-flops, and I tripped just as I whisky and flip-flops don’t mix. also admitted to having bruises was gettin’ up to the dumpster.” A couple days later, I received from “falling into a dumpster.” The She said she crashed into it and another police report and photo- graphs that made me burst out laughing. An older couple with a very manicured lawn lived next door to a lady who worked long hours and failed to mow her lawn for a couple of weeks. The older couple reported her to the city, and the city told her to mow her lawn or pay a fine. The next day the couple left for a few hours, and when they returned, there were freshly mowed “crop circles” right in the middle of their front yard. The pictures were hilarious, you could see where the mower came from next door, made a big doughnut circle, then went back next door. The older couple was furious and filed a police report, saying their lawn “was ruined for the entire season!” I wasn’t sure what I was sup- posed to charge her with – criminal mowing? I think that’s the best passive-aggressive behavior I’ve ever seen. I guess the moral of that story is be careful who you report to city code enforcement!

Ms. Cinocca practices in Tulsa.

104 | OCTOBER 2019 THE OKLAHOMA BAR JOURNAL