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Limitations on Measuring Appellate Justice with Statistics and Inference January 2013 | Volume 74, Number 1 POINT: Justice Must Satisfy the Appearance of Justice— A 10-year Review of the Alabama Supreme Court’s Treatment of Jury Verdicts in the Plaintiffs’ Favor Page 18 COUNTERPOINT: Limitations on Measuring Appellate Justice with Statistics and Inference Page 28 Attorneys Insurance Mutual Telephone 205-980-0009 of the South® Toll Free 800-526-1246 Fax 205-980-9009 200 Inverness Parkway Birmingham, Alabama 35242 www.AttyslnsMut.com 2013SPRING CALENDAR CLE ALABAMA NEW! 5TH EDITIONAVAILABLE NOW! ~ Advancing your practice ALABAMAPROPERTY RIGHTS AND REMEDIESBy JesseP. Evans 111, author ALABAMAPROPERTY RIGHTS AND REMEDIEShas long been knownas oneof the leading works on AlabamaRea l Propertylaw. 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City & CountyGovernment Rightsand remedies that involvea debtor-creditor relationship, such PerdidoBeach Resort, Orange Beach asjudgment liens , fraudulenttransfers, va riousl iens, andmortgages are coveredin PartFour. Part Five has chapters on eminentdomain , publicimprovements , zoning,and dedication,vacation and subdivi­ sionregulation. Tables and an indexare included. CLEAlabama is pleasedto announcepublication of the new Fifth LIVESEMINARS edition, available in a hardbound,two-volume set for $195.00. Registerat CLEalabama.comor call 800.627.6514or Visit CLEalabama.comto purchaseyour copy online or you may 205.348.6230for more information. call our office at 205.348.6230or 800.627.6514. CAN'TATTEND IN PERSON? THE UNIVERSITY OF Checko ut our other opportunities. ALABAMA Webcasts: Manyof our springseminars will be webcast. SCHOOL OF LAW Watchthe seminaras it happens from yourow n computer! On-line: Visit CLEalabama.comfor 24/7 accessto over200 onlineseminars and teleconferences. Registernow at CLEalabama.com 28 January 2013 | Vol. 74, No. 1 18 48 FEATURES 12 Note from the Editor We Are Listening! By Gregory H. Hawley 18 POINT: Justice Must Satisfy the Appearance of Justice— A 10-year Review of the Alabama Supreme Court’s Treatment of Jury Verdicts in the Plaintiffs’ Favor By Rhonda P. Chambers 28 COUNTERPOINT: Limitations on Measuring Appellate Justice with Statistics and Inference By Marc James Ayers 33 ASB Fall 2012 Admittees 44 Alabama’s Version of Daubert— A Legislative History By the Honorable Ben H. Brooks, III and K. Megan Brooks 48 Exploring Wantonness ON THE COVER By William E. Shreve, Jr. 56 BOOK REVIEW: The Heflin-Torbert Judicial Building in Montgomery at dusk Quest for Justice: Defending the Damned –Photo by Robert Fouts, Fouts Commercial Photography, By Richard S. Jaffe Montgomery, www.photofouts.com Reviewed by William N. Clark www.alabar.org | THE ALABAMA LAWYER 5 Gregory H. Hawley, Birmingham..........................Chair and Editor ADVERTISERS ALABAMA STATE BAR [email protected] 415 Dexter Avenue Linda G. Flippo, Birmingham .....Vice Chair and Associate Editor Montgomery, AL 36104 [email protected] ACDLA.............................................................25 (334) 269-1515 • (800) 354-6154 Wilson F. Green, Tuscaloosa........Vice Chair and Associate Editor FAX (334) 261-6310 [email protected] www.alabar.org Margaret L. Murphy, Montgomery.....................Staff Liaison and The University of Alabama ALABAMA STATE BAR STAFF Director of Publications [email protected] School of Law ............................................63 Executive Director.........................................Keith B. Norman Director of Personnel and Operations................Diane Locke ASB Foundation Assistant/ Robert A. Huffaker, Montgomery...Chair and Editor, 1983-2010 AlawLife .....................................................32 Executive Assistant ......................................Ann Rittenour Director of Information Technology ..............Dolan L. Trout Programmer ...................................................Larry D. Pratt BOARD OF EDITORS Attorneys Insurance Mutual Website Administrator ................................Willie Murphy Marc J. Ayers, Birmingham • LaVeeda M. Battle, Hoover • Jennifer M. Information Systems Manager...............O. Hunter Harris Bedsole, Birmingham • Gregory C. Buffalow, Mobile • Henry L. (Max) of the South..................................................2 Cassady, Jr., Fairhope • Rhonda P. Chambers, Birmingham • Lisa D. Assistant Executive Director.................Edward M. Patterson Cooper, Mobile • T. Charles Fry, Jr., Birmingham • Amy M. Hampton, Director of External Relations Alexander City • Walter E. McGowan, Tuskegee • Jeffrey R. McLaughlin, and Projects................................................Christina Butler Guntersville • J. Bradley Medaris, Pelham • Joi T. Montiel, Montgomery • Birmingham School of Law .....................77 Assistant Director of External Relations Anil A. Mujumdar, Birmingham • Sherrie L. Phillips, Montgomery • T. Dylan Reeves, Birmingham • Marc A. Starrett, Montgomery • Jason B. and Projects .................................Mary Frances Garner Tompkins, Birmingham • Brian A. Wahl, Birmingham Administrative Assistant for External Relations CLE Alabama...............................................4 and Projects...............................................Marcia N. Daniel OFFICERS Director of Regulatory Programs .......................Angela Parks Phillip W. McCallum, Birmingham ...................................................President MCLE Administrative Assistant ..............Carol Thornton Anthony A. Joseph, Birmingham .............................................President-elect Cain & Associates Engineers...................30 Membership James R. Pratt, III, Birmingham.............................Immediate Past President Christina D. Crow, Union Springs.............................................Vice President Administrative Assistant...................Cathy Sue McCurry Keith B. Norman, Montgomery..........................................................Secretary Regulatory Programs Katherine R. Brown, Birmingham...........Young Lawyers’ Section President Cumberland School of Law .....................21 Administrative Assistant............................Doris McDaniel BOARD OF BAR COMMISSIONERS Director of Communications ...................................Brad Carr 1st Circuit, Ronnie E. Keahey, Grove Hill• 2nd Circuit, Jerry L. Thornton, Hayneville • 3rd Circuit, Christina D. Crow, Union Springs • 4th Circuit, Jana Director of Publications..........................Margaret L. Murphy Russell Garner, Selma • 5th Circuit, Robert Simms Thompson, Tuskegee • 6th Davis Direct ...............................................71 Director of Admissions ...........................Dorothy D. Johnson Circuit, Place No. 1, Terri Olive Tompkins, Tuscaloosa • Place No. 2, R. Hays Admissions Administrative Assistants.........Crystal Jones Webb, Tuscaloosa • 7th Circuit, William H. Broome, Anniston • 8th Circuit, Phil D. Mitchell, Decatur • 9th Circuit, W. N. (Rocky) Watson, Fort Payne • Sonia Douglas 10th Circuit, Place No. 1, Leslie R. Barineau, Birmingham • Place No. 2, S. Greg J. Forrester DeBuys, III.............................32 Financial Administrator ......................................Gale Skinner Burge, Birmingham • Place No. 3, George M. (Jack) Neal, Jr., Birmingham • Financial Assistant/Scanning Operator ...........Kristi Neal Place No. 4, Robert G. Methvin, Jr., Birmingham • Place No. 5, Augusta S. Dowd, Birmingham • Place No. 6, Teresa G. 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