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Theme: Legal Research & Writing pg. Editor: Erin Means 383 contents Feb. 14, 2015 • Vol. 86 • No. 5 De partments 324 From the President 343 Editorial Calendar 387 From the Executive Director 389 Law Practice Tips 392 Ethics/Professional Responsibility 393 OBA Board of Governors Actions 397 Oklahoma Bar Foundation News 400 Access to Justice 404 Young Lawyers Division 405 Calendar 406 For Your Information 408 Bench and Bar Briefs 410 In Memoriam 412 What’s Online 416 The Back Page Features 327 Paragraphs and Indentation: Formatting for Persuasive Writing By Collin Walke 333 George Orwell’s Classic Essay on Writing: ‘The Best Style Handbook’ for Lawyers and Judges By Douglas E. Abrams 341 From Rough-Hewn to Refined By Bryan A. Garner pg. 370 Oklahoma’s Marketable- Product Royalty Rule 345 Effective Legal Writing: One Judge’s Perspective Plus By Retired Judge Wayne Alley 370 Clarifying Oklahoma’s Marketable- 349 Writing Tips for a New Associate Product Royalty Rule By Melanie Ruhgani By John Burritt McArthur 353 Legal Research Tips for Practitioners 383 Oklahoma’s Promise: OBA Pilot By Sabrina A. Davis Project to Reach Out to Less 359 Appellate Brief Writing: Advantaged Students What Not to Do By Lori Rasmussen By Tamala Boyd 385 Legislative Monitoring Committee 365 Better Living With Citations Kicks Off Its Efforts By Jason McVicker By Duchess Bartmess

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 323 FROM THE PRESIDENT

‘Great Charter’ Exhibit to Visit Capitol By David Poarch

As 2015 unfolds in the coming months, we all will be recourse to impartial judgment the called upon to remember and reflect upon the importance of the barons had no meaningful recourse, rule of law as we collectively acknowledge three important and they revolted. Our own Supreme anniversaries. Two of these events are uniquely significant to us Court scandal in 1965 is a stark as Oklahomans — the Oklahoma City bombing 20 years ago reminder of the dire consequences and the Supreme Court bribery scandal 50 years ago. The other that can result when this basic con- is a seminal event in the history of the Western world and a cept is forgotten or ignored. concept that we hold dear: that no one is above the law. All are Likewise, our concepts of “due intertwined and of particular significance to us as lawyers. process of law” are directly related Next month our association will cosponsor to the words “by the and join with the Oklahoma Secretary of State law of the land” found and others to bring a Magna Carta exhibit to in Chapter 39 of the be displayed in the State Capitol building in The administration original Magna Carta. Oklahoma City as we celebrate its inception of justice by an “No free man shall be 800 years ago. taken or imprisoned, impartial judiciary or disseised, or out- While much has been said and written about has been basic to lawed, or exiled, or Magna Carta — the “Great Charter,” its es- our concepts of any wise destroyed; sence was perhaps best captured by Winston nor shall we go upon Churchill when he described it as the “funda- freedom ever since him nor send upon mental principle [that] government must Magna Carta. him, but by the lawful henceforward mean something more than the judgment of his peers arbitrary rule of any man, and custom and the 1 or by the law of the law must stand even above the King.” land.” The perpetra- In the years following its initial presentation in 1215 to Eng- tors of the 1995 Oklahoma City land’s King John, thrust at him by his barons as a list of bombing were brought to justice demands, and his reluctant acquiescence to applying the due process require- its terms under threat of the sword, the ments of our Constitution, the basis Great Charter went through several itera- of which is found in the Great tions. But however uncertain its beginnings, Charter. A just result brought about through time it has been a critical and fun- by the lawful judgment of their damental influence on the rule of law, first peers. in England, and from there around the I hope you will join me during world. The colonists, in our own humble 2015 as we remember and reflect beginnings, invoked Magna Carta in their upon the origins and importance of quest to replace the arbitrary government of the rule of law in the life of our state King George III with self-rule. It was like- and nation. Please begin by joining wise later the focus of our founding fathers others and take time to visit the in framing the Constitution, primarily Magna Carta exhibit at the State reflected in the Bill of Rights. Capitol next month. President Poarch The administration of justice by an impar- practices in Norman. tial judiciary has been basic to our concepts 1. 1 Winston S. Churchill, The Birth of Britain 2 253 (1956). [email protected] of freedom ever since Magna Carta. Without 2. Bridges v. California, 314 U.S. 252, 282 (1941). 405-329-6600

324 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Associa- tion. All rights reserved. Copyright© 2015 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, u u Board of Governors, Board of Editors or Volume 86 No. 5 Feb. 14, 2015 staff. Although advertising copy is reviewed, no endorsement of any product or service JOURNAL STAFF BOARD OF EDITORS offered by any advertisement is intended or implied by publication. Advertisers are solely JOHN MORRIS WILLIAMS, MELISSA DELACERDA, responsible for the content of their ads, and Editor-in-Chief Stillwater, Chair the OBA reserves the right to edit or reject any advertising copy for any reason. [email protected] DIETMAR K. CAUDLE, Lawton

Legal articles carried in THE OKLAHOMA CAROL A. MANNING, Editor RENÉE DEMOSS, Tulsa BAR JOURNAL are selected by the Board of [email protected] AMANDA GRANT, Spiro Editors. Information about submissions can be found at www.okbar.org. LORI RASMUSSEN, ERIN MEANS, Moore Assistant Editor SHANNON L. PRESCOTT, BAR Center Staff [email protected] Okmulgee John Morris Williams, Executive Director; EMILY BUCHANAN, Gina L. Hendryx, General Counsel; Jim MARK RAMSEY, Claremore Advertising Manager Calloway, Director of Management Assistance MEGAN L. SIMPSON, Program; Craig D. Combs, Director of Admin- [email protected] istration; Susan Damron Krug, Director of Buffalo Educational Programs; Beverly Petry Lewis, LESLIE TAYLOR, Ada Administrator MCLE Commission; Carol A. Manning, Director of Communications; Robbin JUDGE ALLEN J. WELCH, Watson, Director of Information Technology; Oklahoma City Jane McConnell, Coordinator Law-related Education; Loraine Dillinder Farabow, Tommy OFFICERS & Humphries, Debbie Maddox, Katherine Og- den, Steve Sullins, Assistant General Counsels BOARD OF GOVERNORS Manni Arzola, Debbie Brink, Laura Brown, DAVID A. POARCH JR., President, Norman; Emily Buchanan, Tanner Condley, Nickie Day, GLENN A. DEVOLL, Vice President, Oklaho- Ben Douglas, Dieadra Florence, Johnny Marie ma City; GARVIN ISAACS JR., President-Elect, Oklahoma City; Floyd, Matt Gayle, Marley Harris, Brandon RENÉE DEMOSS, Immediate Past President, Tulsa; DEIRDRE Haynie, Suzi Hendrix, Misty Hill, Debra Jen- O’NEIL DEXTER, Sand Springs; JAMES R. GOTWALS, Tulsa; kins, Durrel Lattimore, Renee Montgomery, Sharon Orth, Larry Quinn, Lori Rasmussen, ROBERT D. GIFFORD II, Oklahoma City; DOUGLAS L. JACKSON, Wanda F. Reece, Tracy Sanders, Mark Schnei- Enid; JOHN W. KINSLOW, Lawton; RICKEY J. KNIGHTON II, dewent, William Thames, Jan Thompson, Norman; JAMES R. MARSHALL, Shawnee; SONJA R. PORTER, Krystal Willis & Roberta Yarbrough Oklahoma City; KEVIN T. SAIN, Idabel; RICHARD D. STEVENS, Oklahoma Bar Association 405-416-7000 Norman; ROY D. TUCKER, Muskogee; JOHN M. WEEDN, Toll Free 800-522-8065 Miami; LEANNE MCGILL, Edmond, 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 three General Counsel 405-416-7007 times a month in January, February, March, April, May, August, Law-related Education 405-416-7005 September, October November and December and bimonthly in Lawyers Helping Lawyers 800-364-7886 June and July by the Oklahoma Bar Association, 1901 N. Lincoln Mgmt. Assistance Program 405-416-7008 Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage Mandatory CLE 405-416-7009 paid at Oklahoma City, Okla. OBJ & Communications 405-416-7004 Subscriptions $60 per year except for law students registered with Board of Bar Examiners 405-416-7075 the OBA and senior members who may subscribe for $25; all active Oklahoma Bar Foundation 405-416-7070 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.

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 325 326 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 Legal RESEARCH & WRITING

Paragraphs and Indentation Formatting for Persuasive Writing By Collin Walke

ontrary to that pesky little voice in your head at this very moment, formatting is not a boring topic and is absolutely Ccritical when writing a legal brief. Aside from the technical rule requirements for formatting briefs, which will be discussed in greater detail below, formatting is essential for persuasion. One of the best legal writers I have ever had the privilege of working with has a paper weight on his desk that reads: “Good writing is clear thinking made visible.” Without good formatting, quality content will be lost in the mire of facts, law and argument.

The point of this article is to outline what to pick and choose which rules are important. good formatting looks like. First, the brief The court rules for briefs are not uniform, so must be written in accordance with the for- you need to make sure that whichever court matting rules of your particular court. A brief you are practicing before, you are complying for the district court of Oklahoma County will with those rules. look different than a brief for the Western Dis- For example, Tulsa County Local District rule trict of Oklahoma. Second, the format of the CV 18 requires formatting of briefs to comply brief must be laid out so that it assists the with Oklahoma Supreme Court rule 1.11(a). In reader in understanding your position. Finally, turn, rule 1.11(a) requires 12-point font. By con- your format should match the needs of the trast, LCvR7.1 of the Western District of Okla- particular brief. homa requires 13-point font. While an attorney COURT RULES ON FORMATTING may consider this a trivial detail, judges notice when attorneys do not comply with court rules. It honestly astounds me how many attor- neys do not write briefs that comply with court According to Judge Friot of the Western Dis- rules. Oklahoma County District Judge Ber- trict of Oklahoma, “Some briefs are hard nard Jones strikes briefs that do not comply enough to follow in 13-point type, let alone with court rules. He reasons that “rules are 10- or 11-point. And when I read a brief that rules,” and as a “steward of the institution of takes liberties with our format requirements law”1 it is his obligation to apply the rules, not (assuming I have not stricken it), it is only

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 327 natural to wonder whether the writer of the The first way to accomplish this goal is by brief might also be taking liberties with the breaking up briefs into smaller chunks that are facts or the law.”2 easier to digest. For example, rule 4 of the dis- trict court rules for the state of Oklahoma As a result, when you are beginning to write requires a motion to “specifically state the a brief in any jurisdiction in which you have grounds therefor and the relief or order sought,” not read the court rules, make sure you do so. contain a statement of facts, and include “a con- The technical differences may be the difference cise brief or a list of authorities upon which the between a judge taking your argument seri- movant relies.”3 Therefore, every motion should ously and striking your brief. include, at a minimum, the above items, prefer- ASSISTING THE READER ably in separate sections. If you are writing a brief, clearly there is a Legal writing enthusiasts debate about how purpose. It necessarily follows that you want to include these items in a particular brief, but your reader to understand that purpose. Too there are at least two prominent ways. The first often, attorneys will write briefs in one long is what I will call the “standard method.” The narrative or without context. This prevents standard method is a brief written in the fol- judges (i.e., your audience) from following lowing order: 1) facts, 2) argument and author- your argument. Reading brief after brief can be ities and 3) conclusion. For example, we have taxing, so your job as a writer should be to all seen briefs that look like this: make sure that your brief requires as little effort to understand as possible.

In the District Court for Sky County State of Neverland John Doe, ) Plaintiff, ) v. ) CJ-2017-1999 Jane Roe, ) Defendant ) MOTION TO QUASH Plaintiff, John Doe, for his Motion to Quash, shows the Court as follows: FACTS 1. Fact 1 2. Fact 2 3. Fact 3 ARGUMENT AND AUTHORITIES PROPOSITION I. OPP RESSIVE SUBPOENAS SHOULD BE QUASHED.  Based upon the case of Casey v. Sunshine Band, 2017 OK 200, the subpoena should be quashed because it is oppressive. CONCLUSION The Court should sustain this Motion to Quash.  WHEREFORE, Plaintiff, John Doe, prays that this Court sustain this Motion to Quash. Respectfully, ______Lawyer

328 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 In the District Court for Sky County State of Neverland John Doe, ) Plaintiff, ) v. ) CJ-2017-1999 Jane Roe, ) Defendant ) MOTION TO QUASH Plaintiff, John Doe, for his Motion to Quash, requests that the Court quash the subpoena issued by Defendant to Plaintiff because: SUMMARY OF ARGUMENT PROPOSITION I. OPP RESSIVE SUBPOENAS SHOULD BE QUASHED. CONCLUSION: THE SUBPOENA IS OPPRESSIVE AND SHOULD BE QUASHED. FACTS 1. Fact 1 2. Fact 2 3. Fact 3 ARGUMENT AND AUTHORITIES PROPOSITION I. OPP RESSIVE SUBPOENAS SHOULD BE QUASHED.  Based upon the case of Casey v. Sunshine Band, 2017 OK 200, the subpoena should be quashed because it is oppressive. CONCLUSION The Court should sustain this Motion to Quash.  WHEREFORE, Plaintiff, John Doe, prays that this Court sustain this Motion to Quash. Respectfully, ______Lawyer

There is nothing wrong with writing a brief is, what legal theory you are relying upon, and in this manner. However, when a lawyer writes why you should prevail. a brief like this, the judge reading the brief Related to broad formatting issues (e.g., put- does not actually know what relief is being ting the propositions up front on the first page sought or why until he or she reaches step two. versus waiting until later in the brief), a good Meaning, the judge does not understand the legal writer will have an eye toward subhead- facts or appreciate why you are even writing ings. Subheadings are helpful because they act the brief until well into the brief. as signposts throughout the brief and catch the The same brief, using a different method, reader’s eye. A lengthy narrative statement which I call the “up front” method, looks like may be written well, but the important details the example above. may get lost without subheadings. This method has the benefit of telling the Another common mistake is not providing court right away what the purpose of the brief context within the brief itself. This is most com- monly seen in response briefs. Take the ficti-

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 329 tious motion to quash, above, for example. entertainment magazine (i.e., leave words like Within the fact section there are three facts. In chicanery or shenanigans out of your brief).”5 his or her response brief, a lawyer may simply The one exception to the excess or colorful state “admitted” or “denied” with regard to verbiage rule is if your audience likes it. There those facts. Unless the court has the original are some judges in this state that actually enjoy motion before it at the exact same time he or reading Latin and do not mind the occasional she is reading your brief, the court will not “ipse dixit” or “ipso facto.” If the judge you are know what is being admitted or denied. appearing before actually enjoys such writing, Remember, these are motions, not petitions and you can pepper the Latin in with other- or answers. There is no need to respond exactly wise entertaining writing, you may actually in the same format that the other lawyer wrote score points with the court. But beware, a sim- the original motion. You, the attorney with ple motion should never require a complex amazing writing skills, dictate how to respond explanation. to the original motion. Instead of simply stat- CONCLUSION ing “admitted” or “denied,” you may write something like: “plaintiff’s counsel asserts that Writing winning briefs is about more than the subpoena was issued without sufficient having the facts and/or law on your side. If time for compliance and is therefore oppres- you fail to follow the rules, your brief may sive. The exact opposite is true.” You do not never be read. Moreover, if you fail to present need to go tit-for-tat with another lawyer on your facts or law in the most favorable light, each point.4 the salient details may fly right past the judge. Never make the judge search your brief for the Good formatting, use of subheadings and right answer. Tell the court in plain English providing context all make reading and under- why you deserve to win and then sit back and standing a brief easier. As a result, serious time trust that justice will prevail. and thought should be put into deciding how to present your legal arguments. After all, your 1. Judge Jones likens his strict application of the rules to a quote client is paying you to be persuasive, not to from the movie The Contender. In the movie, one of the main stars refuses to defend allegations made against her based on principle. At simply put words on a page. the end of the movie, it becomes known that the allegations were false. The character is asked why she did not defend herself against the false DRAFTING A BRIEF ACCORDING TO allegations and she said: “Principles only mean something when you THE NEEDS OF THE BRIEF stick to them when it’s inconvenient.” Similarly, according to Judge Jones, rules only mean something when you stick to them when it’s Contrary to popular belief, you were not inconvenient. In-person interview with Judge Bernard Jones, judge of the District Court, Oklahoma County, Oklahoma, (July 29, 2014). hired to be verbose, obtuse or prolix. You were 2. Email interview with Judge Stephen P. Friot, judge of the United hired to be persuasive and get a case resolved. States District Court for the Western District of Oklahoma (Aug. 29, 2014). Unnecessary verbiage may increase your bill- 3. Rule 4, Rules for District Courts, 12 O.S. 2001, Ch. 2, App. 1. able hour, but it will not necessarily increase 4. The obvious exception to this rule is in responding to motions your win rate. As a result, you need to make for summary judgment and the material fact allegations. See: Rule 13, Rules for District Courts, 12 O.S. 2001, Ch. 2, App. 1. sure that you tailor your brief to the particular 5. Telephone interview with Judge Thad Balkman, Judge of the needs at that time. District Court, Cleveland County, Oklahoma (Sept. 4, 2014). For example, if the motion you are putting forward is a relatively straightforward motion, About The Author state the facts, cite the statute, cite an on-point case, and then get out of there. Belaboring Collin Walke is an attorney points will not make a judge happy. with the law firm of Rubenstein & Pitts PLLC. His primary areas Cleveland County District Court Judge Thad of practice are complex business Balkman says, “Although there are no local dis- litigation, commercial transac- trict court rules for Cleveland County, we believe tions and appellate law. He has that briefs should be just that, brief. We appreci- presented CLEs for both the ate attorneys that state their arguments suc- OBA and Oklahoma County Bar cinctly and do not rehash the same points over Association. Mr. Walke graduated magna cum laude and over. Remember, there is no need for over- from OCU School of Law and received his B.A. in the-top adjectives, you’re not writing for an philosophy from OSU.

330 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 DOING BUSINESS IN

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Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 331 332 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 Legal RESEARCH & WRITING

George Orwell’s Classic Essay on Writing The Best Style ‘Handbook’ for Lawyers and Judges By Douglas E. Abrams

ike other Americans, lawyers and judges most remember Brit- ish novelist and essayist George Orwell (1903-1950) for his Ltwo signature books, Animal Farm and 1984. Somewhat less known is his abiding passion about the craft of writing. It was a lifelong passion,1 fueled (as Christopher Hitchins recently described) by Orwell’s “near visceral feeling for the English language.”2

Orwell’s most exhaustive commentary about If I were a law partner employing young writing was his 1946 essay, Politics and the Eng- lawyers or a judge employing law clerks, I lish Language,3 which minced no words. “[T]he would add Orwell’s essay to a list of reading English language is in a bad way,”4 he warned. recommended on the way in. If I were a young “Debased”5 prose was marked by “abuse,”6 lawyer not required to read the essay, I would “slovenliness,”7 and a “lifeless, imitative style”8 read it anyway. The entire essay is available for that was nearly devoid of “a fresh, vivid, downloading at http://goo.gl/Oea0wK. homemade turn of speech.”9 A “tendency . . . Orwell stressed that he was dissecting, not away from concreteness”10 had left writing “the literary use of language, but merely lan- “dreary,”11 “ugly and inaccurate.”12 “[V]ague- guage as an instrument for expressing and not ness and sheer incompetence,” he said, “is the for concealing or preventing thought.”17 The most marked characteristic of modern English narrower scope does not deprive legal writers prose.”13 because Justice Felix Frankfurter was right that Orwell’s 12-page essay diagnosed what he “[l]iterature is not the goal of lawyers, though called the “decay of language,” and it offered they occasionally attain it.”18 Orwell’s essay six curative rules.14 The diagnosis and rules still approached language as a tool for clear com- reverberate among professional writers. More munication, an aspiration that defines what than 65 years later, Judge Richard A. Posner lawyers and judges do throughout their careers. calls the essay “[t]he best style ‘handbook’” for “The power of clear statement,” said Daniel legal writers.15 Nobel Prize-winning economist Webster, “is the great power at the bar.”19 Paul Krugman recently went a step further, As Orwell’s title intimates, the essay includ- calling the essay a resource that “anyone who ed criticism of political writing done by gov- cares at all about either politics or writing ernment officials and private observers. The should know by heart.”16

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 333 essay’s staying power, however, transcends the the challenged agency determination. Judge political arena. By calling on writers of all per- Laurence H. Silberman’s opinion quoted Or- suasions to “simplify your English,”20 Orwell well and admonished the parties for helped trigger the plain English movement, “abandon[ing] any attempt to write in plain which still influences legislators, courts, admin- English, instead abbreviating every conceiv- istrative agencies and law school legal writing able agency and statute involved, familiar or classes. not, and littering their briefs with” acronyms.25 This article proceeds in two parts. First I Other decisions have also quoted Orwell’s describe how judges, when they challenge col- call to “take the necessary trouble” to achieve leagues or advocates in particular cases, still maximum clarity.26 In Sure Fill & Seal, Inc. v. quote from Orwell’s plea for clear expression GFF, Inc.,27 for example, the federal district and careful reasoning. Then I present Orwell’s court awarded attorneys’ fees to the defendant diagnosis of maladies that plagued contempo- on its motion to enforce the parties’ settlement rary prose, together with his six curative rules agreement. The court criticized both parties’ and their continuing relevance for today’s law- submissions. “Imprecision and lack of atten- yers and judges. tion to detail,” wrote Judge Elizabeth A. Kovachevich, “severely dampen the efficacy of TODAY’S JUDGES Plaintiff’s written submission to this Court. ‘Take the Necessary Trouble’ Equally unhelpful is Defendant’s one sentence, conclusory response that is completely devoid “[W]ritten English,” said Orwell in his essay, of any substance. Advocates, to be effective, “is full of bad habits which spread by imitation must take the ‘necessary trouble’ to present the and which can be avoided if one is willing to Court with coherent, well-reasoned and articu- 21 take the necessary trouble.” lable points for consideration.”28 In 2012, the United States Court of Appeals “At times,” Judge Kovachevich specified, “the for the District of Columbia Circuit quoted this Court was forced to divine some meaning from passage in National Association of Regulatory the incomprehensible prose that plagued Plain- Utility Commissioners v. United States Depart- tiffs’ written objections. Lest there be any confu- ment of Energy.22 The issue was whether the sion, the Court graciously did so even though it challenged agency determination violated the could have simply refused to give the faulty Nuclear Waste Policy Act of 1982, and the par- objections any consideration at all. The Court ties hotly contested the case with hefty serv- would have been equally obliged to treat Defen- ings of alphabet soup. dant’s failure to provide meaningful response as 29 On page 48 of its 58-page brief, for example, a concession of Plaintiffs’ objections.” the National Association argued that, “Al- ‘Like Soft Snow’ though DOE has not disclaimed its obligation to dispose of SNF, it is undisputed that DOE Orwell held keen interest in politics, and his currently has no active waste disposal pro- 1946 essay attributed “the decadence of our 30 gram. . . . The BRC is undertaking none of the language” partly to political motivation. waste disposal program activities identified in “Political language,” he wrote, “has to consist NWPA §302(d). Its existence therefore cannot largely of euphemism, question-begging and justify continued NWF fee collection.”23 sheer cloudy vagueness. . . . [W]ords fall[] upon the facts like soft snow, blurring the out- On page 24 of its 60-page brief, the agency lines and covering up all the details.”31 countered that “[t]he plain language of the This passage appeared in Stupak-Thrall v. NWPA . . . provides the Secretary [of Energy] 32 with broad discretion in determining whether United States, a 1996 en banc decision of the to recommend a change to the statutory NWF U.S. Court of Appeals for the Sixth Circuit that fee. . . . In section 302(a)(2) of the NWPA, Con- carried no political overtones. The full court gress set the amount of the NWF fee — which remained evenly divided on the question of is paid only by utilities that enter into con- whether the plaintiffs’ riparian rights may tracts with DOE for the disposal of their SNF count as “valid existing rights” to which U.S. Forest Service regulations are subject under the and HLW. . . .”24 federal Michigan Wilderness Act (MWA). The The National Association of Regulatory Utility dissenter criticized his colleagues who favored Commissioners panel unanimously struck down affirmance of the decision below. “The inter-

334 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 pretation of the ‘valid existing rights’ language appearance of profundity by means of the ‘not in Section 5 of the MWA to mean that [plaintiff] un-’ formation.”42 has no rights that the Forest Service is bound to “Pretentious diction.” Orwell included words respect is a good example of the distortion of that “dress up simple statement and give it an language decried by” Orwell’s essay.33 air of scientific impartiality to biased judg- ORWELL’S DIAGNOSES AND CURES ments” (such as “constitute” and “utilize”); and foreign phrases that “give an air of cul- Orwell rejected the notion that “we cannot tural elegance” (such as “ancien regime” and by conscious action do anything about” the “deus ex machina”).43 “Bad writers . . . are decline of language,34 believing instead that “the always nearly haunted by the notion that Latin process is reversible.”35 The essay’s capstones or Greek words are grander than Saxon ones,” were his diagnosis of the maladies that afflicted even though “there is no real need for any of writing, followed by his six curative rules. the hundreds of foreign phrases now current in Diagnosis English.”44 Orwell diagnosed four “tricks by means of “Meaningless words.” Here Orwell targeted which the work of prose-construction is habit- art and literary criticism, and political com- ually dodged.”36 mentary. In the former, “words like ‘romantic,’ . . . ‘values,’ . . . ‘natural,’ ‘vitality’ “Dying metaphors.” The English . . . are strictly meaningless.” In language, Orwell wrote, sustains the latter, the word “Fascism,” for “a huge dump of worn-out meta- example, had “no meaning except phors” that “have lost all evoca- ‘By using stale in so far as it signifies ‘something tive power and are merely used not desirable.’”45 because they save people the metaphors, similes trouble of inventing phrases for Cures themselves.”37 He cited, among and idioms,’ he Orwell believed that “the deca- others, “toe the line,” “run rough- said, ‘you save dence of our language is probably shod over,” and “no axe to curable” if writers would “let the grind.”38 To make matters worse, much mental meaning choose the word and not “incompatible metaphors are fre- the other way about.”46 He pro- quently mixed, a sure sign that effort, at the cost posed six rules. “These rules the writer is not interested in of leaving your sound elementary, and so they what he is saying.”39 are,” Orwell wrote, “but they “Operators or verbal false limbs.” meaning vague, demand a deep change of attitude Orwell said that these devices not only for your in anyone who has grown up cloud thinking because they “save used to writing in the style now the trouble of picking out appro- reader but for fashionable.”47 The rules are worth priate verbs and nouns, and at the yourself.’ contemplation from lawyers and same time pad each sentence with judges who write. extra syllables which give it an 40 Rule One: “Never use a meta- appearance of symmetry.” Among phor, simile, or other figure of the shortcuts he assailed here were speech which you are used to seeing in replacing simple, single-word verbs with phras- print.” es that add little if anything (beginning with “prove to,” “serve to,” and the like); using the Orwell discussed clichés that might enter- passive voice rather than the active voice “wher- tain, divert and perhaps even convince readers ever possible”; using noun constructions rather by replacing analysis with labels. “By using than gerunds (for example, “by examination of” stale metaphors, similes and idioms,” he said, rather than “by examining”); and replacing “you save much mental effort, at the cost of simple conjunctions and prepositions with such leaving your meaning vague, not only for your cumbersome phrases as “with respect to” and reader but for yourself. . . . People who write in “the fact that.”41 “The range of verbs is further this manner usually have a general emotional cut down by means of the ‘-ize’ and ‘de-’ forma- meaning . . . but they are not interested in the tions, and the banal statements are given an detail of what they are saying.”48 He urged

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 335 “scrapping of every word or idiom which has Hemingway was not the only writer who outworn its usefulness.”49 valued simplicity. “Broadly speaking,” said Sir Winston Churchill, “the short words are the In 2003, concurring Judge Stephen R. Rein- best, and the old words when short are best of hardt of the U.S. Court of Appeals for the 9th all.”58 “Use the smallest word that does the Circuit cited Orwell’s first rule in Eminence job,” advised essayist and journalist E.B. Capital, LLC v. Aspeon, Inc., a securities fraud White.59 In a letter, Mark Twain praised a 50 class action. The court of appeals held that the 12-year-old boy for “us[ing] plain, simple lan- district court had abused its discretion by dis- guage, short words, and brief sentences. That is missing, without leave to amend, the first the way to write English — it is the modern amended consolidated complaint for failure to way and the best way. Stick to it; don’t let fluff state a claim. The panel reiterated, but rejected, and flowers and verbosity creep in.60 the district court’s conclusion that the plaintiffs already had “three bites at the apple.”51 Humorist Will Rogers wrote more than 4,000 nationally syndicated newspaper columns, Noting that the district court failed to iden- including ones that spoke about language.61 tify or analyze any of the traditional factors “[H]ere’s one good thing about language, there that would have supported dismissal without is always a short word for it,” he said. “‘Course leave to amend,52 Judge Reinhardt cautioned the Greeks have a word for it, the dictionary against “the use of cliches in judicial opinions, has a word for it, but I believe in using your a technique that aids neither litigants nor own word for it. I love words but I don’t like judges, and fails to advance our understanding strange ones. You don’t understand them, and of the law.”53 “Metaphors,” he explained, “en- they don’t understand you. Old words is like rich writing only to the extent that they add old friends — you know ‘em the minute you something to more pedestrian descriptions. see ‘em.”62 Cliches do the opposite; they deaden our sens- “One of the really bad things you can do to es to the nuances of language so often critical your writing,” novelist Stephen King explains, to our common law tradition. The interpreta- “is to dress up the vocabulary, looking for long tion and application of statutes, rules, and case words because you’re maybe a little bit law frequently depend on whether we can ashamed of your short ones.”63 “Any word you discriminate among subtle differences of mean- have to hunt for in a thesaurus,” he says, “is ing. The biting of apples does not help us.”54 the wrong word. There are no exceptions to 64 “The problem of cliches as a substitute for this rule.” rational analysis,” Judge Reinhardt concluded, Rule Three: “If it is possible to cut a word “is particularly acute in the legal profession, out, always cut it out.” where our style of writing is often deservedly 55 What if the writer says, “In my opinion it is the subject of ridicule.” not an unjustifiable assumption that. . . .”? Rule Two: “Never use a long word where a Orwell proposed a simpler, less mind-numb- short one will do.” ing substitute: “I think.”65 This rule placed Orwell in good company. This third rule also placed Orwell in good Ernest Hemingway said that he wrote “what I company. “The most valuable of all talents is see and what I feel in the best and simplest way that of never using two words when one will I can tell it.”56 Hemingway and William do,” said lawyer Thomas Jefferson, who found Faulkner went back and forth about the virtues “[n]o stile of writing . . . so delightful as that of simplicity in writing. Faulkner once criti- which is all pith, which never omits a neces- 66 cized Hemingway, who he said “had no cour- sary word, nor uses an unnecessary one.” age, never been known to use a word that “Many a poem is marred by a superfluous might send the reader to the dictionary.” “Poor word,” said poet Henry Wadsworth Longfel- 67 Faulkner,” Hemingway responded, “Does he low. “Less is more,” explained British Victo- rian poet and playwright Robert Browning, really think big emotions come from big words? 68 He thinks I don’t know the ten-dollar words. I wasting no words. know them all right. But there are older and Judges, in particular, can appreciate this simpler and better words, and those are the short verse by Theodor Geisel (Dr. Seuss), who ones I use.”57 wrote for children, but often with an eye

336 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 toward the adults: “[T]he writer who breeds/ limited knowledge of specialized fields and more words than he needs/ is making a chore/ choose their vocabulary accordingly. Every eso- for the reader who reads./ That’s why my teric term used by the reinsurance industry has belief is/ the briefer the brief is,/ the greater a counterpart in ordinary English.”74 the sigh/ of the reader’s relief is.”69 Counsel in Indiana Lumbermens Mutual Insur- Rule Four: “Never use the passive where you ance Co., Judge Posner concluded, “could have can use the active.” saved us some work and presented their posi- The passive voice usually generates excess tions more effectively had they done the trans- verbiage and frequently leaves readers uncer- lations from reinsurancese into everyday Eng- 75 tain about who did what to whom. The active lish themselves.” voice normally contributes sinew not fat, clari- Rule Six: “Break any of these rules sooner ty not obscurity. than say anything outright barbarous.” Consider the second line of the Declaration Orwell punctuated each of his first five rules of Independence: “We hold these truths to be with “never” or “always.” Lawyers learn to ap- self-evident, that all men are created equal, that proach these commands cautiously because they are endowed by their Creator with certain most legal and non-legal rules carry exceptions unalienable rights, that among these are life, based on the facts and circumstances. Conven- liberty and the pursuit of happiness.” tions of good writing ordinarily deserve adher- Historians have praised Thomas Jefferson as ence because most of them enhance content and “a genius with language” whose draft Declara- style most of the time. They became conventions tion resonated with “rolling cadences and mel- based on the time-tested reactions elicited by lifluous phrases, soaring in their poetry and accomplished writers. Orwell recognized, how- powerful despite their polish.”70 Would Jefferson ever, that “the worst thing one can do with have rallied the colonists and captivated future words is to surrender” to them.76 As writers generations if instead he began with, “These strive for clear and precise expression, they truths are held by us to be self-evident. . . .”? should avoid becoming prisoners of language. Rule Five: “Never use a foreign phrase, a Orwell’s sixth rule wisely urges writers to scientific word, or a jargon word if you can follow a “rule of reason,” but I would rely on think of an everyday English equivalent.” personal judgment and common sense even One federal district court advised that legal when the outcome would not otherwise quali- writers gamble when they “presuppose spe- fy as “outright barbarity.” Good writing de- cialized knowledge on the part of their read- pends on sound grammar, spelling, style and ers.”71 In 2008, the U.S. Court of Appeals for the syntax, but it also depends on willingness to 7th Circuit explained the dangers of presup- bend or break the “rules” when advisable to position in Indiana Lumbermens Mutual Insur- maintain the bond between writer and reader. ance Co. v. Reinsurance Results, Inc., which held Within bounds, readers concern themselves that the parties’ contract did not require the more with the message than with what style- plaintiff insurer to pay commissions to the books say about conventions. company it had retained to review the insur- Orwell’s fourth and fifth rules illustrate why 72 er’s reinsurance claims. good writing sometimes depends on departing Writing for the Lumbermens Mutual panel, from conventions. The fourth rule commands, Judge Posner reported that the parties’ briefs “Never use the passive where you can use the “were difficult for us judges to understand active.” Look again at the second line from the because of the density of the reinsurance jargon Declaration of Independence, quoted above. It in them.”73 “There is nothing wrong with a spe- contains a phrase written in the passive voice cialized vocabulary — for use by specialists,” he (“that they are endowed by their Creator explained. “Federal district and circuit judges, with”). The active-voice alternative (“that their however, . . . are generalists. We hear very few Creator endowed them with”) would not have cases involving reinsurance, and cannot possi- produced a result “outright barbarous,” but bly achieve expertise in reinsurance practices Jefferson would have sacrificed rhythm and except by the happenstance of having practiced cadence. The passive phrase left no doubt in that area before becoming a judge, as none of about who did the endowing, and two extra us has. Lawyers should understand the judges’ words did not slow the reader.

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 337 Orwell’s fifth rule commands, “Never use a why the facts and the governing law favor foreign phrase, a scientific word, or a jargon their clients.79 Judges perform their constitu- word if you can think of an everyday English tional roles most effectively with forthright equivalent.” But suppose, for example, that a opinions that minimize future guesswork. lawyer or judge wants to write about “causa- How often today do we still hear it said that tion” in tort law, which would qualify as jargon because the term “causation” does not nor- someone “writes like a lawyer”? How often do mally roll off the lips of laypeople. A reader- we hear it meant as a compliment? Judge Rein- ship of judges or tort lawyers will connect with hardt put it well in Eminence Capital, LLC.: “It is long past time we learned the lesson Orwell the jargon easier than a readership of lay cli- 80 ents, who in turn will connect better than teen- sought to teach us.” age readers in a middle school civics class. To Note: This article originally appeared in Prece- an audience of lawyers who are comfortable dent, the Missouri Bar’s quarterly magazine. with discussing “causation,” choosing another Reprinted by permission. word might even cloud or distort legal mean- ing. A writer uncertain about connecting with 1. George Orwell, “Why I Write” (1946) (“From a very early age, perhaps the age of five or six, I knew that when I grew up I should be the audience can cover bases by briefly defin- a writer.”) ing the term. 2. Christopher Hitchins, “The Importance of Being Orwell,” Vanity Fair, Aug. 2012, at 66, 66. This rule of reason grounded in personal 3. George Orwell, “Politics and the English Language,” in Essays on Language and Usage (Leonard F. Dean & Kenneth G. Wilson eds., judgment and common sense extends beyond 2d ed. 1963). Orwell’s first five rules to writing generally. 4. Id. at 325. 5. Id. at 333. For example, when splitting an infinitive or 6. Id. at 325. ending a sentence with a preposition would 7. Id. enhance meaning or produce a more fluid 8. Id. at 332. 9. Id. style, then split the infinitive or end the sen- 10. Id. at 330. tence with a preposition. Maintaining smooth 11. Id. at 334. 12. Id. at 325. dialog is more important than leafing through 13. Id. at 327. stylebooks that readers will not have leafed 14. Id. at 336. 15. Richard A. Posner, “Judges’ Writing Styles (and Do They Mat- through. ter?),” 62 U. CHI. L. REV. 1421, 1423 n.8 (1995). 16. Paul Krugman, “Orwell, China, and Me,” N.Y. Times Blogs (July Sir Winston Churchill, a pretty fair writer 20, 2013). himself, reportedly had a tart rejoinder for 17. Orwell, supra note 3, at 335. 18. Felix Frankfurter, “When Judge Cardozo Writes,” The New people who chastised him for sometimes end- Republic, April 8, 1931. ing sentences with prepositions. “That,” he 19. Letter from Daniel Webster to R.M. Blatchford (1849), in Peter said, “is the sort of arrant pedantry up with Harvey, Reminiscences and Anecdotes of Daniel Webster 118 (1877). 77 20. Orwell, supra note 3, at 336. which I shall not put.” 21. Id. at 325. 22. 680 F.3d 819 (D.C. Cir. 2012); see Douglas E. Abrams, “Acro- CONCLUSION nyms,” 6 Precedent 44 (Fall 2012). 23. Nat’l Ass’n of Regulatory Utility Comm’rs, Final Brief of Consoli- Lack of clarity, Orwell’s major target, nor- dated Petitioners 48, 2011 WL 5479247 (2012). 24. Nat’l Ass’n of Regulatory Utility Comm’rs, Final Brief for Respon- mally detracts from the professional missions dent 24-25, 2011 WL 5479246 (2012). of lawyers and judges. What Justice William J. 25. Nat’l Ass’n, 680 F.3d at 820 n.1; see also Illinois Public Telcomm. v. Brennan, Jr. called “studied ambiguity”78 might FCC, No. 13-1059 (D.C. Cir. March 25, 2014) (per curiam) (order striking parties’ briefs and ordering submission within two days, of briefs that serve the purposes of legislative drafters who “eliminate uncommon acronyms”). seek to avoid specificity that could fracture a 26. See, e.g., Delgadillo v. Astrue, 601 F. Supp.2d 1241 (D. Colo. 2007) (discussing confusion caused by confusing “attorney fees” and “attor- majority coalition as a bill proceeds to a final ney’s fees” under the Equal Access to Justice Act); Anthony A. Gagliano & vote. Studied ambiguity might also serve the Co. v. Openfirst, LLC, 828 N.W.2d 268, 271 n.2 (Wis. Ct. App. 2013) (“acro- purposes of a lawyer whose client seeks to feel nyms and initials make comprehension more, not less, difficult”). 27. 2012 WL 5199670, No. 8:08-CV-882-T-17-TGW (M.D. Fla. Oct. out the other parties early in a negotiation. 22, 2012). Without maximum clarity, however, written 28. Id. * 3. 29. Id. buck-passing may compel courts to finish the 30. Orwell, supra note 3, at 334. legislators’ work, or may produce an agree- 31. Id. at 333. 32. 89 F.3d 1269 (6th Cir. 1996) (en banc). ment saddled with misunderstandings. 33. Id. at 1292 (Boggs, J., dissenting); see also, e.g., Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002) (en banc) (Boggs, J., dissenting), aff’d, 539 Similar impulses prevail in litigation. Advo- U.S. 306 (2003) (“[W]hatever else Michigan’s policy may be, it is not cates persuade courts and other decision mak- ‘affirmative action,’” quoting Orwell’s “soft snow” metaphor); Palm Beach County Sheriff v. State, 854 So.2d 278 (Fla. Dist. Ct. App. 2003) ers most effectively through precise, concise, (quoting Orwell’s “soft snow” metaphor and holding that in applying simple and clear expression that articulates sovereign immunity, there is no distinction between the “reimburse-

338 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 ment” and “recovery” to which the plaintiff sheriff said his office was 64. Stephen King, “Everything You Need to Know About Writing clearly entitled, and the right to “damages” which sovereign immunity Successfully: in Ten Minutes” (1986), http://goo.gl/Q2aNCY. precedent rejected); cf. Quartman v. Martin, 2001 WL 929949, No. 18702 65. Orwell, supra note 3, at 331. (Ohio Ct. App. Aug 17, 2001) (in discussion of probable cause, quoting 66. Cindy Skrzycki, “Government Experts Tackle Bad Writing,” Orwell essay that “[p]olitical language . . . is designed to make lies Wash. Post, June 26, 1998, at F1 (“most valuable,” quoting Jefferson); sound truthful and murder respectable, and to give an appearance of The Family Letters of Thomas Jefferson 369 (E.M. Betts and J.A. Bear, Jr. solidity to pure wind.”) eds., 1966) (letter of Dec. 7, 1818) (“stile of writing”). 34. Orwell, supra note 3, at 325. 67. III The Works of Henry Wadsworth Longfellow With Bibliographical 35. Id. and Critical Notes and His Life, With Extracts From His Journals and Cor- 36. Id. at 327. respondence (1886-1891), at 278. 37. Id. at 327. 68. Robert Browning, “Andrea del Sarto,” in Pictor Ignotus, Fra 38. Id. Lippo Lippi, Andrea Del Sarto 32 (1925); see also, e.g., Something to Say: 39. Id. William Carlos Williams on Younger Poets 96 (James E. B. Breslin ed., 40. Id. at 328. 1985) (“Everyone who writes strives for the same thing . . . To say it 41. Id. swiftly, clearly, to say the hard thing that way, using few words. Not to 42. Id. gum up the paragraph.”). 43. Id. 69. Richard Nordquist, “We Can Do Better: Dr. Seuss on Writing,” 44. Id. http://goo.gl/typqRc. 45. Id. at 329. 70. Joseph J. Ellis, American Creation: Triumphs and Tragedies at the 46. Id. at 334, 335. Founding of the Republic 56 (2007) (genius); Walter Isaacson, Benjamin 47. Id. Franklin: An American Life 311 (2003) (rolling cadences). 48. Id. at 331-32. 71. Waddy v. Globus Medical, Inc., No. 407CV075, 2008 WL 3861994 49. Id. at 334. *2 n.4 (S.D. Ga. Aug. 18, 2008). 50. 316 F.3d 1048 (9th Cir. 2003). 72. 513 F.3d 652 (7th Cir. 2008). 51. Id. at 1053. 73. Id. at 658. 52. See Foman v. Davis, 371 U.S. 178, 182 (1962) (stating the factors). 74. Id. 53. Eminence Capital, 316 F.3d at 1053. 75. Id.; see also, e.g., Miller v. Illinois Cent. R.R. Co., 474 F.3d 951, 955 54. Id. at 1053-54. (7th Cir. 2007) (“much legal jargon can obscure rather than illuminate 55. Id. at 1054. a particular case.”); New Medium LLC v. Barco N.V., No. 05 C 5620, 2009 56. A.E. Hotchner, Papa Hemingway 69 (1966) (quoting Hemingway). WL 1098864 * 1 (N.D. Ill. Apr. 15, 2009) (Posner, J., sitting by designa- 57. Id. at 69-70 (1966) (quoting Hemingway); see also, e.g., Kurt Von- tion as a trial judge) (“All submissions must be brief and non-technical negut, Jr., “The Latest Word” (reviewing The Random House Dictionary and eschew patent-law jargon. Since I am neither an electrical engineer Of The English Language (1966)), N.Y. Times, Oct. 30, 1966, at BR1 (“I nor a patent lawyer,… the parties’ lawyers must translate technical and wonder now what Ernest Hemingway’s dictionary looked like, since legal jargon into ordinary language.”). he got along so well with dinky words that everybody can spell and 76. Orwell, supra note 3, at 335. truly understand.”). 77. See, e.g., Susan E. Rowe, “Six to Nix: Grammar Rules to Leave 58. Susan Wagner, “Making Your Appeals More Appealing: Appel- Behind,” 67 Or. St. Bar Bull. 37 (Nov. 2006). late Judges Talk About Appellate Practice,” 59 Ala. Law. 321, 325 (1998) 78. William J. Brennan, Jr., “Some Thoughts On the Supreme (quoting Churchill). Court’s Workload,” 66 Judicature 230, 233 (1983). 59. Max Messmer, “It’s Best to be Straightforward On Your Cover 79. Henry Weihofen, Legal Writing Style 8-104 (2d ed. 1980) (dis- Letter, Resume,” Pittsburgh Post-Gazette, Nov. 29, 2009, at H1 (quoting cussing these four fundamentals). White). 80. 316 F.3d at 1054. 60. Robert Hartwell Fiske, The Dictionary of Concise Writing: 10,000 Alternatives to Wordy Phrases 11 (2002); see also, e.g., British Victorian novelist George Eliot (Mary Ann Evans), quoted at Plainlanguage.gov, About The Author www.plainlanguage.gov/resources/quotes/historical.cfm (“The fin- est language is mostly made up of simple unimposing words”); Irish Douglas E. Abrams, a Univer- poet William Butler Yeats, id. (“Think like a wise man but communi- cate in the language of the people.”); C.S. Lewis’ Letters to Children 64 sity of Missouri law professor, has (Lyle W. Dorsett & Marjorie Lamp Mead eds., 1985 (emphasis in origi- written or co-authored five nal) (“Don’t implement promises, but keep them.”). (Don’t say “infi- nitely” when you mean “very”; otherwise you’ll have no word left books. Four U.S. Supreme Court when you want to talk about something really infinite.) decisions have cited his law 61. Mark Schlachtenhaufen, “Centennial Snapshot: Will Rogers’ review articles. He earned his Grandson Carries On Tradition of Family Service,” Okla. Publishing Today, May 31, 2007. J.D. in 1976 from Columbia Uni- 62. Betty Rogers, Will Rogers 294 (1941; new ed. 1979) (quoting Will versity School of Law. He may be Rogers). 63. Stephen King, On Writing: A Memoir of the Craft 110 (2000). contacted at 573-882-0307; [email protected].

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 339 340 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 Legal RESEARCH & WRITING Legal Writing: From Rough-Hewn to Refined By Bryan A. Garner hat’s your biggest challenge as a writer? It’s figuring out, from the mass of things you might possibly men- Wtion, precisely what your points are — and then stating them cogently and with adequate support.

Although this advice might seem obvious, of street improvements from the conclu- legal writers constantly overlook it. The result sion reached and announced in the former is a diffuse, aimless style. And even with your opinion, we are pleased to declare that the point well in mind, if you take too long to get arguments upon rehearing have convinced there, you might as well have no point at all. us that the decision upon the ultimate Only the most highly motivated readers will question involved here formerly rendered work to grasp your meaning. by this court, even if not faulty in its rea- soning from the premises announced or That’s where law school comes in. Every law wholly erroneous in conclusions as to some student reads plenty of diffuse writing and is of the questions incidentally arising and expected to distill the main points from them. necessarily legitimate subjects of discus- You’ll read old cases that take forever to make sion in the decision of the main proposi- a fairly straightforward point. You’ll read law tion, is, at any rate, one which may, under review articles that take 50 pages to say what the peculiar circumstances of this case, the might be said more powerfully in three. And as more justly and at the same time, upon you read these things, your incentive for glean- reasons of equal cogency, be superseded by ing their main points will be high: your future a conclusion whose effect cannot be to dis- in law depends on it. In other words, you will turb the integrity of the long and well- work as hard as any experienced legal reader established system for the improvement of to break through opaque prose. You’ll simply streets in the incorporated cities and towns have to. of California not governed by freeholders’ LAW SCHOOL READING charters. Take a California judicial opinion issued just What’s the court saying there? In a highly after the turn of the 20th century, a period still embellished style, it’s simply saying, “We heavily represented in casebooks. See if you made a mistake last time.” That’s all. can follow the point: But if you add sentence after sentence to that And in the outset we may as well be frank one — filled with syntactic curlicues — you enough to confess, and, indeed, in view of end up with an impenetrable morass of words. the seriousness of the consequences which The only readers who will bother to penetrate upon fuller reflection we find would inevi- it are those who are paid, probably handsome- tably result to municipalities in the matter ly, to do so.

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 341 However willing you as a reader might be to If you believe that you can begin with Roman pierce through others’ obscurity, you as a numeral I in an outline, you’re still asking a lot: writer must insist on never putting your own the architect will have to dream up the ideas readers to that trouble. On the one hand, then, and sequence them simultaneously. And what- you’ll need a penetrating mind as a reader: ever your I–II–III order happens to be will you’ll need to be able to cut through over- probably become fossilized in later drafts. grown verbal foliage. On the other hand, you’ll Most writers’ minds aren’t supple enough to need a focused mind as a writer: you’ll need to allow IV to become I in a later draft, even if it leave aside everything that doesn’t help you most logically should come first. It’s hard to communicate your ideas instantly to the read- see this if it’s already been tagged “IV.” er’s mind. That’s why it’s so critical to allow the mad- That’s the key to becoming an effective legal man to spin out ideas in the early phases of writer. planning a written piece. In a perfect setting, the ideas will come to you so rap- Once you have your points in idly that it’s hard to get them all mind — even if they’re not fully down as your mind races. formed — you’re ready to begin. But you’re not yet ready to begin Once you’ve One way of doing this — and of writing sentences and paragraphs. finished a getting yourself into this frame of You’re ready to begin an outline. mind — is to use nonlinear outlin- whirlybird — ing. Among lawyers, the most WRITING PROJECTS whether it takes popular type of nonlinear outline Although writers work differ- is the whirlybird, or whirligig. It ently and although you’ll experi- you 10 minutes starts out looking like this: ment with many methods before First, you fill in the blank in the you settle into certain habits, one or 10 days — center with a shorthand name for thing you’ll need is a way of put- you’ll probably your writing project. Then you ting down your yet-unformed begin thinking of ideas: the more ideas in some way other than a find it easy to the better. For every major idea top-to-bottom order. you have, there’s a major branch work the elements off the center circle. For support- It’s useful to think of writing as into a good linear ing ideas, try branching off from a four-step process. First, you the main branch. Everything you think of things that you want to outline. might want to mention goes into say — as many as possible, as the whirlybird — which has no quickly as possible. Second, you top and no bottom. You’re striv- figure out a sensible order for ing for copious thoughts without those thoughts; that is, you out- having to worry about getting them in the right line. Third, with the outline as your guide, you order. write out a draft. Fourth, after leaving the draft aside for a matter of minutes or days or Once you’ve finished a whirlybird — wheth- months, you come back and edit it. er it takes you 10 minutes or 10 days — you’ll probably find it easy to work the elements into The poet and literary critic Betty S. Flowers a good linear outline. You’ll know all the mate- once named each of these four steps: 1) mad- rials. It will just be a matter of organizing them man, 2) architect, 3) carpenter and 4) judge. sensibly. Each of those characters inside your brain has a role to play, and to the extent that you slight And once the architect has finished working, any of them, your writing will suffer. the carpenter’s job — the one that writers most often procrastinate on — becomes relatively If you believe, for example, that you can simple. It’s just a matter of filling in the blanks. “rough out” a draft by simply sitting down and Further, the judge will be able to focus on tiny writing it out, you’re starting at the carpenter matters of form, and that’s what the character phase. You’re asking the carpenter to dream up is best suited to. The judge shouldn’t be having the ideas, sequence them and verbalize them to think on several levels simultaneously, as simultaneously. That’s a tall order. People who happens when not only the citation form but write this way tend to procrastinate. also the overall structure is flawed.

342 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 If you give me a pile of writing samples, I’ll it’s one of the surest ways to good writing. In a critique them according to this paradigm. A one-hour span, you might spend 10 minutes on writer who allows typos in the final draft madman, five minutes on architect, 25 minutes needs work on the judge. A writer who uses no on carpenter and 10 minutes on judge — with headings, and for whom it would be difficult to short breaks in between. That’s a great way to devise headings once a draft is done, needs spend an hour. But it won’t simply happen. work on the architect. A writer whose prose is You have to plan how you’re going to trans- “correct” but dry and dull needs work on the form nascent, ill-formed thoughts into some- madman. thing you can be proud of. Perhaps the most critical phases — because Note: This article was first published in the Janu- they’re the most unpredictable and mysterious ary 2014 (Vol. 42, No. 5) issue of the ABA Law — are the first two: madman and architect. Student Division’s Student Lawyer magazine. They will determine how original and insight- ful the writing is. But each character must have About The Author its time in the lead. What you don’t want is to have one dominate so much that the others get Bryan A. Garner, distin- squeezed out. The writing will suffer. guished research professor at So, as you can see, writing well is much more SMU Dedman School of Law, is than getting the grammar and spelling right. the founder and president of Those are matters for the judge, who, in the LawProse Inc. He is the author end, will tidy things up. But remember that the of The Elements of Legal Style judge part of your brain won’t contribute (Oxford), The Redbook: A Man- many interesting or original thoughts. ual on Legal Style (West), Legal Writing in Plain English (Chicago) and many other INCREASED EFFICIENCY books on writing and grammar. He is the editor in Although you might fear that you wouldn’t chief of Black’s Law Dictionary. He graduated from the have time to go through all four phases, try it: University of Texas School of Law in 1984.

OKLAHOMA BAR JOURNAL EDITORIAL CALENDAR

n May n October 2015 Issues Education Law Family Law n March Editor: Judge Megan Simpson Editor: Leslie Taylor Municipal Law [email protected] [email protected] Editor: Mark Ramsey Deadline: Jan. 1, 2015 Deadline: May 1, 2015 [email protected] n August n November Deadline: Oct. 1, 2014 Opening a Law Office President’s Topic n April Editor: Dietmar Caudle Editor: Melissa DeLacerda Law Day [email protected] [email protected] Editor: Carol Manning Deadline: May 1, 2015 Deadline: Aug. 1, 2015 n September n December If you would like to Bar Convention Ethics & Professional write an article on Editor: Carol Manning Responsibility Editor: Shannon L. Prescott these topics, [email protected] contact the editor. Deadline: Aug. 1, 2015

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Effective Legal Writing: One Judge’s Perspective By Retired Judge Wayne Alley

hat does a judge want in writings (motions, briefs, applications, reports, proposed orders) filed in his or Wher cases? There is an easy answer; the judge wants an easy out. The judge wants a clear, simple, substantiated solution to the problem at hand — a solution with which he is comfort- able. To this end, consider the following suggestions.

Tell the judge why. Except for uncontested ensue from the adoption of the opponent’s applications, such as for extensions of time, position. Some allusion to the downside of the both sides typically submit persuasive stat- opponent’s position may be helpful, but it utes, cases and secondary authorities in sup- shouldn’t be dominant in the writing or be port of their respective positions. Not many patronizing, strained or nit-picky. positions are “slam dunks.” The judge needs Be succinct. My office was a paper mill. to be educated not merely that the respective Piled up, the writings filed in a typical week authorities are out there, but why one set of would reach a height of 18 to 24 inches. After authorities leads to a better result than the some bad early experiences, I decided never other. The judge shouldn’t have to figure it to be absent for more than a week. Otherwise, out for him or herself. Included in the concept the accumulation would have been over- of a better result are simplicity of future appli- whelming. If you want the judge to stay with cation, achievement of economies, conformity you when he or she reads your work, edit, with a general principle such as one’s respon- edit, edit. If the judge wants to read a law sibility for the consequences of his or her own review article, the judge will go to the library conduct; consistency with legislative purpose and get one. Whatever you say, say it only (e.g., a judge should not be chintzy in constru- once. Repetition doesn’t result in a higher ing and applying a remedial statute); minimal degree of understanding. Instead, it numbs disruption of the way things are ordinarily the mind and glazes the eyes. Ordinarily, the done; and whatever else the imaginative law- bulkiest filings are motions for summary yer/author can come up with. judgment and responses thereto, because of The effective presentation of why is positive, attached documents, photographs and depo- emphasizing the benefits that would flow sition excerpts. The lawyer/author should be from the adoption of one’s position rather economical with attachments so that the read- than reciting a parade of horrors that might er, who is the decision-maker, doesn’t drown

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 345 in words. Set out only so much of a document is sharp enough to catch the wrongful omis- or deposition as affects the decision at hand, sion. The other guy’s credibility is not the instead of the entirety. Quotations in the text point. I cannot overemphasize that once cred- of a motion or response can be effective of ibility is lost, the offending lawyer is ever after course, but far too often they are far too long. at a disadvantage. Within a quotation, it is likely that only two or When there has been a trial, an evidentiary three sentences matter. Have in mind a scene hearing or a deposition resulting in a tran- in Amadeus, in which the emperor criticizes script, fudging on the facts as shown therein Mozart’s latest composition by telling him, in a later brief (or oral presentation for that ‘’Too many notes.” Perhaps the emperor was matter) is fatal to one’s credibility as to every- not the brightest or the most qualified student thing else he is submitting. Keep in mind that of music, but he was, after all, the patron with the “facts” for this purpose are the words of the purse. the transcript and not the circumstances and Tell the judge precisely what remedy (or events to which the transcript pertains. remedies) you seek. For some simple matters, Pep it up. Direct the judge to the real world you may be expected to submit a by citing news stories, articles and proposed order. Otherwise, you other non-legal materials. The anticipate that an order will be rules of evidence narrowly chan- prepared in chambers. Whether nelize the presentation of facts at you craft the remedial part for the An effective trial, but writing a motion or brief judge’s consideration, or expect is not so restricted. Recall that the judge to be the author, don’t legal writer has legally obliged school segregation leave it to him or her to divine credibility. He or by race in Topeka was declared your desires. He should only have unconstitutional through a 1954 to decide “yes” or “no.” I found she achieves Supreme Court opinion that relied many applications for TROs or heavily on sociology texts. The preliminary injunctions to be defi- this by being unanimous court was persuaded cient in this respect. The effective truthful, accurate by effective reference to the real advocate lays before the judge a world. Get your judge out of the proposal that specifies exactly and fair. ivory tower. who is ordered to do or desist from doing exactly what and by Be wary of hedging, asking the when. It is not the judge’s office to judge, “Well, if you don’t buy my read your mind trying to figure primary position, how about this out what he is supposed to do to solve your as a fallback?” In some cases, hedging can’t be problem for you. avoided, but it comes at a cost. It detracts from the persuasive power of the primary position. Play fair. An effective legal writer has credi- Sound judgment is key to a decision to hedge, bility. He or she achieves this by being truthful, but have in mind the importance of the cour- accurate and fair. Quotations are verbatim; age of exclusion. meanings are not distorted by misleading eli- sions. Phrases are faithful to the meaning of the Finally, a negative: avoid an ad hominem at- paraphrased language. This is particularly tack on opposing counsel unless his or her important when he informs the judge what a misconduct is beyond crystal clear. These cited case holds. He doesn’t present an obiter attacks usually are made in discovery dis- dictum as a holding. Dicta can be persuasive if putes, with (written) dark mutterings about precisely on point, but the author should be “bad faith” or “fraud on the court.” In my candid as to what it is. Statutes can be hard to cases at least, very few of these were well read. A common technique by legal writers, founded. Look up Rule of Professional Con- including judges, is to pluck out of a long and duct 8.3, which obliges a lawyer to report to convoluted statutory sentence only those words proper authority, usually the bar association, that are operative to the issue at hand, noting certain misconduct done by another lawyer. the skipped-over words by dots of elision. The “Fraud” is certainly included. When an advo- writer must be careful not to elide language cate asserts fraud done by his or her oppo- that hurts the case. It won’t do to rationalize nent, he or she must be prepared to answer that the other guy can clear this up if he or she the judge’s query whether he or she has made

346 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 the requisite report; and, if not, perhaps face a court order to write the bar association and About The Author cite the opponent with fraud, providing the Judge Wayne Alley was born in factual basis, copy to the judge. Ouch. Portland, Ore. In 1952, he gradu- ated from Stanford University and entered active duty in the U.S. Army. In 1957, he graduated from Stanford Law School and was appointed law clerk in the Oregon Supreme Court. He entered pri- vate practice briefly, then reentered the Army. In 1981, he retired early to become dean and professor at OU Law. In 1985, President Reagan appointed him to the U.S. District Court for the Western District of Okla- homa. He is now “Jurist in Residence,” pro bono, at OU Law, primarily residing at moot courts and mock trials.

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Keep It Simple, Stupid By Melanie Ruhgani ou went to law school because you “like to argue.” You imagined yourself standing in front of a jury, brilliantly Ydeconstructing a witness’s story on cross-examination or delivering a killer closing argument. You took classes in trial advocacy, you honed your public speaking skills, and you wore out your DVR watching and re-watching that trial scene from To Kill a Mockingbird. You purchased a shiny new black “power suit” to hang in your closet, and you can’t wait to deliver your first opening statement. You are, in short, a new associate.

For most associates, however, the actual One of the easiest and most effective ways to practice of law differs dramatically from what improve your own writing is to read that of we imagined. We spend most of our days in the others. Ask around your firm or workplace, office, not in court. We talk to our clients and find out which lawyers are considered excel- opposing counsel most often through email, lent writers, and read their work. Analyze not in-person meetings. Jury trials are becom- briefs written by prominent appellate advo- ing fewer and farther between, and appellate cates, such as now-Chief Justice Roberts, who arguments in this state have nearly vanished. is often mentioned as one of the best legal writ- We win our big cases on dispositive motions, ers in the country.1 And don’t limit yourself to not at trial, or we resolve them through settle- legal writing: read the newspaper, read novels, ment. In today’s world of motions practice and read poetry. Internalize different styles, find mediation statements, written — not oral — what works, and incorporate that into your advocacy reigns supreme. own work. As a senior associate, I am often asked what, Another easy way to improve your writing is in my view, is the most important skill for a to have — and to use — good writing resourc- new associate to develop. My answer is always es. Every young lawyer should become inti- the same. It is not brilliant cross-examination mately familiar with Strunk and White’s The technique, it is not courtroom presence, and it Elements of Style,2 Bryan Garner’s The Winning is not soaring legal oratory (although all are Brief,3 Tom Goldstein’s The Lawyer’s Guide to certainly valuable skills in their own right). Writing Well,4 and The Bluebook.5 The single most important tool for success in Finally, consider following these 10 legal today’s legal environment is also one of the writing tips for young associates: most basic: legal writing. 1) Legal writing is just, well, “writing.” Stuffy How, precisely, does a young associate devel- Latin phrases, pretentious formulations op this critical skill?

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 349 and legal jargon do not good specific “what-if” examples is legal writing make. “Where- I often find far more effective. Telling the fore,” “heretofore,” “herein,” court that “the evidence clearly “hereto” and the like should that it is easiest to shows…” helps far less than “hereinafter” be barred from write my briefs in quotations from the testimony your briefs. So, too ad infini- or documents at issue. As the tum, inter alia and other Latin reverse. judge I clerked for often said, “if phrases most often employed a lawyer describes something as largely to make the author ‘clear,’ it’s almost certain to be as appear smart. clear as mud.” Don’t just take my word for it. Tom Gold- 5) Readability, readability, readability. Judges stein and Bryan Garner have each devot- are generalists; they read hundreds of ed entire treatises to teaching lawyers to pages of briefs a day; and they have little write in plain English.6 And it’s not just time to trudge through unreadable writ- these well-respected advocates: a large ing. Help them wherever possible. For number of trial and appellate judges example: recently were asked to compare the per- suasiveness of two different writing sam- A void using acronyms. You may be an ples, one written in “legalese” and the environmental lawyer who is enmeshed other in “plain language.” By a fairly in “ACL,” “AQCR,” “BACT,” “BEJ,” and large margin, both sets of judges pre- “NAAQS” on a daily basis, but your ferred the “plain language” writing sam- judge is not, and she may be stymied — ple to the one in “legalese.”7 or at least distracted — by such alphabet soup. Instead, spell it out, or create anoth- 2) First things first: make use of your introduc- er reference term (“the agency,” “the stan- tions. How many briefs have you seen dard,” or “the act”) which you can use begin: “Now comes Defendant It Wasn’t throughout the brief. Me (IWM), and here presents, by and through its counsel Stodgy and Superflu- Similarly, avoid posture-specific referenc- ous LP for its Response to the Document of es, such as “Appellant” or “Appellee,” the Other Side That is So Important It’s the and instead populate your brief with Only Thing Actually Mentioned in This actual people (“Mr. Jones”) or entities Introduction, states and shows as fol- (“the bank,” “the company”). lows...” There is nothing artful — or even Use bullet points, block quotes or other useful — about this traditional introduc- spacing tools to draw attention to key tion to Oklahoma briefs. Instead, use your items. introduction to tell a story. Set the tone for your brief, highlight your best argument 6) Keep it simple, stupid. As Woody Guthrie and explain what you want the court to do. once said, “any fool can make something complicated. It takes a genius to make it 3) First things last. I often find that it is easi- simple.” Boil your arguments down to est to write my briefs in reverse. Begin their common-sense first principles. Limit with the conclusion: tell the court what, the number of arguments contained in exactly, you want it to do. With that spe- your brief. Include only the relevant facts. cific relief in mind, then write the argu- ment section. Once the argument is com- 7) Set the tone. Think about the tone you plete, and it is clear which facts are most want to set with your brief. There is no legally relevant, then draft the back- one right tone, and it will vary from case ground section. Finally, write the intro- to case and audience to audience. That duction, highlighting your best argu- said, always avoid sarcasm, vitriol and ments and most compelling facts, and personal attack. It is not helpful. It is not tying it all together. professional. And judges despise it. 4) Show it, don’t tell it. Beware the overuse of 8) Beware the “one and done.” Some lawyers adjectives and adverbs. Telling the court believe that briefs exist in a binary state: “this argument is absurd” does little: written or unwritten. But brief-writing is showing the court such absurdity through a process. Start with a working outline.

350 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 Then a first draft. Then multiple redrafts. sel’s tactic would not be appropriate for a Then take your “final” draft and cut it college term paper. It certainly is not appro- down, excising wordiness. This process priate here.”8 Don’t let this be you. takes time. As a young associate, you must learn to manage your workload so that you 1. Including this one at http://goo.gl/0k1NNx, which Supreme Court insiders dubbed the “best brief the Justices had ever seen.” are able to invest the time necessary to 2. William Strunk Jr. & E.B. White, The Elements of Style (4th ed. completing the entire writing process. 1999). 3. Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing 9) Proofread. Nothing makes a judge (or your in Trial and Appellate Courts (2004). 4. Tom Goldstein & Jethro K. Lieberman, The Lawyer’s Guide to partners, for that matter) second-guess a Writing Well (2d. ed. 2002). young associate’s legal analysis like typos. 5. The Bluebook: A Uniform System of Citation (Columbia Law Review Ass’n et al. eds., 19th ed. 2010). If an attorney isn’t diligent enough to 6. See supra n. 3, 4. ensure that her written product is free of 7. See Sean Flammer, Persuading Judges: An Emprical Analysis of Writing Style, Persuasion, and the Use of Plain English, 16 J. Legal Writing grammar or punctuation errors, why Institute 183 (2010), available at http://goo.gl/sLkBXu. should a judge trust that the brief is free of 8. See order, In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the more substantive, legal errors? Proofread Gulf of Mexico, Case No. 10-md-02179-CJB (E.D. La., Sept. 15, 2014). your work yourself, and then ask someone else you trust to proofread it as well. About The Author 10) Finally, don’t try to sneak things by the court (or anyone else). A major law firm repre- Melanie Wilson Rughani is a senting BP in litigation over the Deepwater senior associate at Crowe & Horizon oil spill recently got chastised by Dunlevy PC and focuses her the court — and lampooned in the national practice in appellate law. Ms. media — for subtly shrinking the line- Rughani graduated in 2007 from spacing in its brief to avoid a set page limit. the University of Virginia The judge was far from pleased: “The School of Law, where she was a Court should not have to waste its time member of the Order of the Coif policing such simple rules — particularly and served as executive editor of in a case as massive and complex as this. the Virginia Law Review. She has also served as a law Counsel are expected to follow the Court’s clerk to Judge Kenneth F. Ripple, U.S. Court of orders both in letter and in spirit. … Coun- Appeals for the 7th Circuit.

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Legal Research Tips for Practitioners By Sabrina A. Davis he Oklahoma City University School of Law completed its move to downtown in January 2015, and we are excited to Tbe closer to the legal action of the city and about the oppor- tunities to connect more frequently with the attorneys. For exam- ple, the reference librarians who teach legal research classes at the law school plan to offer CLEs on legal research topics once things settle down from the move. As we tell our law students, the ability to numbered, legal research is not generally such conduct legal research is an essential skill for a straightforward practice. Keep in mind that practicing law; and the better they are at it, the you will likely have to repeat steps multiple more in-demand they will be. However, the times and not necessarily in the same order. nature of legal research has changed greatly Step 1: Plan ahead over the past 15 years, and it will continue to do so as we increasingly transition away from • Take notes on your sources as you go. print and to electronic resources. As law librar- • Pay attention to which search terms and ians, it is our job to keep up with the trends in strategies are helpful and which are not. legal research so that we can share that infor- mation with our students and faculty. And in • Keep track of full citation information. this article, my goal is to impart some of that Step 2: Analyze the problem essential knowledge to you. But knowledge alone is not sufficient for improving legal • Determine the jurisdiction. research skills; you also have to practice by • Identify the legal issues. exploring the different research platforms and • Identify any relevant facts. thinking critically about your search tech- niques. So, here we go! Step 3: Generate research terms RESEARCH STRATEGY • Identify keywords to search for based on your legal issues and facts. With all of the online and print resources • Think of alternative words and phrases: available for legal research today, it is impor- synonyms and antonyms; broader and tant to have a well-thought-out strategy to narrower terms; related concepts. research effectively and efficiently. Below is a basic, five-step process for keeping your • Consider different types of terms and con- research on track. But although the steps are nectors (Boolean) searches.

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 353 Become familiar with the rules of dif- Have you found an answer? If yes, great! ferent search engines. (Hint: Look for a If no, keep on trucking... help section.) Have you found additional issues to Basic connectors (and, or, not) research? Repeat the necessary steps for Proximity connectors (/p, /s, /10) the new issues. Other options (root expander, automatic Is it time to stop? Yes, when all of your pluralization, phrases, parentheses, etc.) efforts repeatedly turn up the same results. • Resources: Legal dictionary, legal thesau- Do you need help figuring out what to rus, Words and Phrases do next? Talk it over with a supervisor, colleague, or reference librarian. Step 4: Begin researching For all relevant results — is this still good • Look for annotated sources; they can do a law? KeyCite or Shepardize. The Oklahoma lot of research for you by identifying rel- City University law library has a designat- evant cases, statutes, regulations and sec- ed public computer terminal with Shep- ondary sources. ard’s, available for anyone to use. • Determine the best source for your ONLINE DATABASES: GENERAL TIPS research problem. There are many legal databases available, Is it an unfamiliar area of law? Start both free and subscription-based. These data- with secondary sources (e.g., legal ency- bases have certain similarities and differences clopedias, American law reports, legal that are important for a legal researcher to treatises, restatements, legal periodicals, know. First, all databases have these features in etc.) to get an overview of your topic common: 1) search engines that usually offer and learn its terms of art. basic and advanced options; 2) ways to limit Is there a statute on point? If not, pro- searches and/or filter results; 3) some finding ceeding to case law will probably be aids to help the researcher locate relevant doc- best. uments; and 4) a help option. Is there a case at the center of a contro- If researchers take some time up front to versy? Look up the case and follow its learn the rules of their most commonly used history and citing references. search engines, this can save a lot of time and frustration during the actual research process. Do you need to locate legislative his- Look for help screens or documents to identify tory of a statute? See the following the types of searches allowed for a particular Oklahoma City University law library’s search engine. research guides: Federal Legislative Histo- ry1 and Oklahoma Legal Research — Okla- Some of the key differences between data- homa Constitution, Statutes, & Legislation.2 bases that researchers should be aware of include: 1) coverage varies by both types of Are administrative regulations at issue? documents and date ranges; 2) the existence See the Oklahoma City University law and extent of annotations and other editorial library’s research guide, Administrative enhancements; 3) the types and number of Law.3 finding aids available; and 4) types of advanced Are you looking for current or histori- search options available. Efficient researchers cal law? Contact a reference librarian if will take time to examine these features to see you need assistance locating older ver- which database will be most useful for their sions of statutes, regulations, or historic particular research questions. case law. (See Section IV below.) General search tips: • Use your research terms from Step 2 by • Look for popular name tables, indexes, looking for them in indexes or including search tips, tables of contents and other them in online searches. finding aids. Step 5: Analysis of research • Get in the habit of narrowing results by • Read your research findings. jurisdiction so that you do not waste time • Evaluate: on inapplicable search results.

354 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 • There are usually multiple ways to locate code and register, the state constitution, court the same information, but some ways are rules (including e-filing rules), attorney gener- more effective and efficient. Explore your al’s opinions, Oklahoma Uniform Jury Instruc- options. tions, links to legal forms and several other resources. The federal section includes links to • Open results in new tab/window so you case law, courts, the U.S. Code and the U.S. do not waste time backtracking to your Constitution. earlier screens. A researcher can browse all of the document • Familiarize yourself with the resources collections or run advanced searches in one or available within the database(s) to which multiple collections. OSCN’s sophisticated you have access at your job, but also know search engine allows not only simple Boolean where you can get the same documents operators, but also wildcard characters, root for free if applicable (e.g., Bloomberg has expanders and special types of searches that some helpful agency materials, but most locate homonyms, synonyms and commonly of these should be on the agencies’ web- misspelled words.8 These advanced search sites). options are incredibly valuable, especially in a • Learn shortcuts – research alerts, saving free database like OSCN. documents, sharing folders, etc. OSCN also offers The Citationizer, a citator THE OKLAHOMA STATE for both cases and statutes. A COURTS NETWORK (OSCN)4 citator is a tool that indicates sub- sequent actions that may affect OSCN is a very useful, free whether the case or statute is still resource for conducting legal A citator is a good law, but it can also assist a research in Oklahoma. This section legal researcher in locating addi- briefly highlights some of its more tool that indicates tional sources on his or her legal valuable resources: the “Court subsequent actions issue. The most well-known cita- Dockets” tab, the “Legal Research” tors are KeyCite from Westlaw tab and The Citationizer. that may affect and Shepard’s from Lexis. Under the “Court Dockets” tab,5 whether the case The Citationizer is less compre- several different search options are hensive than KeyCite and Shepa- available for finding both the daily or statute is still rd’s in two key ways. First, it court hearings and case dockets. good law… only gives the depth of treatment First, there are seven ways to in subsequent cases (e.g., cited, review the daily dockets: 1) by discussed, discussed at length) judge, 2) by type of case, 3) by type and does not indicate the type of of case and judge, 4) by event type, treatment (i.e., positive, neutral, 5) by event type and judge, 6) by event in a negative) so you have to examine each case to type of case in front of a specific judge and 7) determine if it negatively affects the original by county. Once you pull up the daily docket case holdings. Second, the results are limited to you want, hyperlinks direct you to case dock- state cases from Oklahoma, Utah and Wyo- ets where available. ming, and attorney general opinions from Second, there is an option to search for a spe- Oklahoma; however, that may be sufficient cific case docket with the case number and the depending on the situation. One caveat about county (or appellate) in the left-hand sidebar. relying solely on The Citationizer to determine For help on conducting docket searches, visit if your case or statute is still good law: many http://goo.gl/RvPzqj. As of Feb. 2, 2015, case judges will not accept it as a replacement for dockets were available for 18 counties.6 For case KeyCite or Shepard’s, so you should use one of dockets from other counties, attorneys should these citators to make sure you cover all of consult on-demand court records (ODCR).7 your bases. The Citationizer also has a Table of Authority function, which lists cases and stat- The “Legal Research” tab provides access to utes cited by a particular case. numerous primary and secondary legal sources for both Oklahoma and the federal government. The Oklahoma section includes appellate case law, statutes, session laws, the administrative

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 355 OKLAHOMA CITY UNIVERSITY LAW BNA Reports, the Environmental Law Reporter, LIBRARY RESOURCES Foreign Law Guide, HeinOnline, LoisLaw, Pro- Reference Librarians Quest Congressional, interdisciplinary EBSCO databases and many more. HeinOnline is par- The four reference librarians at the Oklaho- ticularly useful for finding historical materials ma City University School of Law have both a and law journal articles, whereas J.D. and a master’s degree in library science. LoisLaw has numerous treatises, forms, and They are available to answer questions about checklists available. conducting legal research and locating legal Finding and Checking Out Books information using a variety of sources. A refer- ence librarian is typically available Sunday Oklahoma City University Law alumni have through Friday during the fall and spring lifetime checkout privileges from the law semesters; reference hours may fluctuate dur- library; alums simply need to update their ing summer. To contact a reference librarian, accounts to begin borrowing books. Non-alum visit our Meet the Librarians & Staff webpage.9 attorneys may register for membership using Research Guides their Oklahoma bar number. Registration is available online11 and in person at the circula- The law library currently maintains almost tion desk. See the Library Services and Policies 70 research guides, known as LibGuides, which Guide12 for library hours and checkout limits. are online.10 There are also patron user guides To locate books, search the law library’s (e.g., Library Services and Policies and Searching 13 the Law Library Catalog). Some of the most use- online catalog for books and other collection ful guides for practitioners include: items. Comprehensive instructions on using the catalog are available on the Searching the Legal practice guides: Practice Resources, Law Library Catalog LibGuide.14 Form Books and Drafting Resources, and Mental Health Resources for Law Students 1. http://goo.gl/EWCr7A 2. http://goo.gl/v90f1I and Lawyers 3. http://goo.gl/uvHIuy 4. www.oscn.net General research instruction: Oklahoma 5. http://goo.gl/4Nwl0K legal research, case law, statutory research 6. For current information, see Scope of the Dockets Database at http://goo.gl/jZQYoF. — federal and state, federal legislative his- 7. at http://www1.odcr.com/ tory, administrative law, secondary sourc- 8. See Search Help at http://goo.gl/muK6BZ. 9. http://goo.gl/eEPYSE es, citators, free/low-cost legal research 10. http://goo.gl/neBqJ7 on the Internet and fact finding on the 11. http://goo.gl/4gyIC0 12. http://law.okcu.libguides.com/servicesandpolicies Internet. 13. http://lawlibdb.okcu.edu/ Research in specific areas of law (sample 14. http://law.okcu.libguides.com/catalog only, many more available): bankruptcy, criminal law and procedure, disability law, elder law, environmental law research, About The Author family law research, health law, military Sabrina Davis is a reference justice, Native American law, Second librarian at Oklahoma City Uni- Amendment, wills, trusts and estate plan- versity School of Law. She ning, et al. received both her J.D. and library Practice Resources science degrees from The Uni- versity of Arizona. Ms. Davis is In addition to the LibGuides, the law library currently the associate editor of also has various form books, practice manuals, technical services law librarian and treatises on specific areas of law available and is on the Board of Editors for Legal Reference Ser- for attorneys to use. For example, we have the vices Quarterly. She practiced family law in Tucson, 2005 CLE forms from the OBA in print. Using Ariz., and conducted national research on court reforms the public computers also provides free access in child abuse and neglect court proceedings. to Shepard’s and several databases including

356 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 PROGRAMS March 20 Oklahoma City, OK Oklahoma Bar Center 1901 N. Lincoln Blvd.

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Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 357 358 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 Legal RESEARCH & WRITING

Appellate Brief Writing What Not to Do By Tamala Boyd he author Isabel Allende said, “Write what should not be forgotten.” Of course, she was speaking about writing fic- Ttion, but the quote also fits perfectly within the realm of legal writing — especially when you are writing for a court like New York’s Appellate Division, First Department, quite easily one of the busiest courts in the country. The First Department handles approximately 3,000 appeals, 6,000 motions and 1,000 interim applications each year. Unlike many other intermediate appellate courts, the First Department has broad powers to review questions of both law and fact, and to make new findings of fact. With few exceptions, appeals to the Court of Appeals are by permission only; the First Department, along with the other three Appellate Departments, is the court of last resort in the majority of its cases. Until recently, I was a principal appellate In my time as a principal appellate court court attorney in the First Department’s Law attorney, I worked on hundreds of appeals, Department. The Law Department includes read close to a thousand briefs, and pored over the chief and deputy court attorneys, a group a mind-boggling number of records. Signifi- of supervisors, attorneys who primarily do cantly, while court attorneys are not the first motions and applications, and a team of court people to look at your briefs (that would be the attorneys with varying degrees of experience wonderful people in the clerk’s office), they are and expertise. Court attorney titles range from the first to truly scrutinize your submissions, “appellate” at the junior level to “principal,” parse the various sections, and evaluate your the most senior. While, generally speaking, all arguments. Moreover, as one of the people court attorneys research and analyze legal charged with producing detailed, often lengthy, issues and questions for the court and perform reports based upon a review of your materials other related duties as assigned, such as and the court attorney’s own independent motions and applications, more senior court legal research, I feel confident in saying that attorneys tend to work on more complex legal court attorneys probably care the most about issues with little to no direct supervision. the quality of your work product.

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 359 With that background, you understand that do you suppose I am feeling? If your answer is when I borrow from Ms. Allende and say to “impressed by my ingenuity,” you’re wrong. you, “Write only what you want us to remem- Questions presented should not ber,” I know from whence I speak. And while I do not presume to speak for every court attor- 1) contain numerous subparts; ney working in the First Department, much of the advice given below finds support among 2) contain argument; those with whom I have spoken.1 3) disparage the lower court; or Because there is a rich variety of offerings 4) be contrived, or otherwise lacking in any available covering what you should do when bases in the law. drafting an appellate brief, I thought it might be most useful to tell you, from a court attor- While there is no magic number for how ney’s perspective, what not to do. What are the many questions presented are appropriate, things that made my heart skip a beat with rarely did I encounter a situation where more despair; lay my head down on my desk and than five or six questions, stated in one or two cry; scroll back to the cover page to see who pages, proved insufficient. If you find your submitted the brief; run for the nearest win- questions presented section running longer dow, shredder or fire pit and — well, you get than that, consider examining whether you the point. So, appellate brief, section by section, have sufficiently parsed your case and under- here is my list of what not to do. stood your viable legal issues. Go over your questions presented to be certain that you are PRELIMINARY STATEMENT not using them as an opportunity to make fac- A preliminary statement should, ideally, not tual arguments or answer legal questions. Bot- tom line: resist the urge to overstate the com- 1) take up any significant portion of your plexity of your case, because doing so adds page count; nothing. 2) contain any facts or argument. STATEMENT OF FACTS The purpose of a preliminary statement is to The statement of facts should be just that — a give the reader a concise rendering of the case. statement of facts — not an attorney’s charac- It should identify the party, the order being terization of those facts. Moreover, a statement appealed from, why the appeal was taken and of facts should not: the result sought. It is helpful to include the order entry date and the judge who rendered 1) Be in a personal relationship with adjec- the decision. While it is perfectly fine to include tives, italics, underlining or exclamation points. a short preview of your case (think of a 30-sec- 2) Obscure facts, especially in criminal cases. ond advertisement), it is not okay for this to be If I sensed that counsel was obscuring facts, part and parcel of your factual recitation or that person’s arguments would begin to lose argument. credibility. Now, you are perfectly welcome to submit a 3) Underutilize correct citations to the record. preliminary statement that goes on for five or Nothing would send me to your adversary’s more pages. Just do so with the knowledge that brief faster than a statement of facts with no cita- you may have set the tone for the reception of tions to the record or with citations that were the remainder of your brief. mostly incorrect. I once received an opening QUESTION PRESENTED brief where every citation in the first 13 pages was wrong. And not just a little off, but com- For reasons I fail to understand, some parties pletely wrong. Although I muddled through, I seem to believe that the more questions they also counted the errors and dropped a footnote can present, the better their chances on appeal. to the judges about the unreliability of that Allow me to disabuse you of that notion. Try party’s papers. Suffice it to say, my initial the following exercise. Close your eyes and understanding of the case came not from the imagine the following scenario: I have just put brief of the party who had instituted the appeal the finishing touches on a 50-page report. Your but from the better-drafted and error-free appeal is the second of the week, and there is a respondent’s brief. third waiting. I open your brief, flip to the questions presented, and find 12 of them. What

360 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 4) Cite to portions of the record that do not of the things that can help it along its path to actually support the statement for which it was the grave: cited. Or, worse still, cite to portions of the 1) Not knowing, or simply not considering, the record that contradict the statement. Do that procedural posture of your case. It matters wheth- and not only do you lose credibility, but if you er an appeal is taken from a motion to dismiss, win, you do so only in spite of yourself. summary judgment or a trial on the merits. 5) Characterize the facts. Example of a factual And nothing made me want to bang my head statement: “Witnesses at the scene identified against the wall more than an attorney who the car as a green Mercedes Benz.” Example of wanted to wax nostalgic about failures of a characterization: “The speeding car that plas- proof and material issues of fact when the tered plaintiff all over the sidewalk was a appeal was taken from the denial of a motion flashy green luxury vehicle.” You get the point. to dismiss. 6) Pull “facts” exclusively from an attorney’s 2) Not knowing the standard of review for the affirmation. More specifically, on a motion to issues on appeal. This is especially true where an dismiss, facts should come almost exclusively appeal is taken from an arbitration award, or from the complaint. On a motion to dismiss on from an Article 78 proceeding. the documents, facts should come 3) Refusing to acknowledge that from those documents. On sum- “motion to dismiss” is not the equiv- mary judgment, facts can come alent of “free-for-all.” Yes, you get from the record generally, but you … on a the benefit of the doubt, but no, should take care that your facts the reader is not obliged to aban- are not contradicted by other motion to don his or her common sense. To record evidence because, I assure wit, the sky does not become you, most court attorneys check. dismiss, facts green because it says so in the And, dare I say it again? When the should come complaint, and if you try to tell record contradicts your character- the court that it does, you begin to izations, you lose credibility. almost exclusively lose credibility. 7) List every single fact there is from the 4) Failing to cite authority from the to know about every single aspect appellate department presiding over of your case. Although it is called complaint. your matter. The First Department a “statement of facts,” you should is not bound by the decisions of think of it more as a “statement of her sister departments, and it is relevant facts.” This is not an invi- not uncommon to find wildly tation to obscure those facts that go against divergent views. It made my job more difficult you. This is merely to say that if you are if a brief had citations only to, or primarily to, appealing only certain aspects of an order, you cases from other appellate departments, espe- need include only those facts that are relevant to cially if I knew from previous experience, or what is being appealed. Example: forcing me to discovered from my own independent research, read a long recitation of your client’s injuries that there was ample First Department author- when the threshold issue was one of liability did ity on the issue. Citations to cases from other not make me feel sorry for your client. It just appellate departments is even more off-putting made me tired. In short, “show, don’t tell.” Show when the First Department authority an attor- the reader where in the record your facts origi- ney fails to cite contradicts the authority cited. nated and where they are supported. Be brutal in both your brevity and clarity. But don’t fret. Note also that the appellate departments are Remember, you have an entire section in which not bound by federal court decisions or by fed- to let the reader know exactly what you think of eral law, even if the federal court at issue sits in those facts. Which brings me to… New York State. Be especially careful that the ARGUMENT federal cases you cite are actually interpreting New York state law (keeping in mind that the I have always considered the argument sec- Second Circuit covers more than just New tion to be the meat and potatoes of the entire York). And, if the only case you can find to sup- appeal. This is where you get to be the super port your argument is from the middle district lawyer. This is where your case comes to thrive of east-west Arkansas, perhaps you should or to die a slow, painful death. Here are some rethink your argument.

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 361 This is not to say you should never cite cases 10) Engaging in ad hominem attacks on opposing from the other departments or jurisdictions. counsel or the opposing party. I did not care how For example, if there is no precedent in the much you disliked your adversary; I cared First Department, or you would like to argue only whether you had a viable claim or defense. that another court’s resolution of an issue is In most instances, excess emotion and hyper- more persuasive, by all means do so. But in so bole were correlated negatively to facts and doing, do not ignore the First Department (or good advocacy. other appropriate appellate department) cases 11) Employing a “kitchen sink” theory on appeal. that do exist. You should think long and hard about includ- 5) Forcing the reader to guess your argument or ing anything but relevant, viable issues in your the legal basis of your claim. While stating an brief. Generally speaking, if you cannot come argument seems so basic, it is astounding how up with a legal reason why the court below many briefs fail to do so — probably because failed you, you probably have no viable issues the attorney has lived with the issues for so on appeal. Similarly, if your brief presses only long, they just seem obvious. Although most extraneous legal theories — i.e., implied cove- court attorneys will eventually figure it out, it nant of good faith and fair dealing; multiple will help if your argument is stated dearly and equitable contractual theories, especially where succinctly at the beginning of the appropriate there is an express contract; unjust enrichment; section, along with the point of law upon or conversion — perhaps some rethinking is in which the argument is premised. order. 6) Ignoring contrary authority. Do not ignore it; 12) Citing cases for propositions of law that are distinguish it. If you cannot distinguish it, not actually supported by those cases. Read the rethink your argument. In all cases, however, cases you cite. Understand the cases you cite. you should at least acknowledge it. When I reviewed a case cited in a brief only to discover that it either: a) did not support the 7) Ignoring your adversary’s arguments and argument for which it was cited, or worse b) counterarguments. The respondent should ad- supported the opposite argument, that party dress each of the appellant’s arguments, no lost credibility. matter how unworthy those arguments might seem. Think of it this way: appellant’s argu- 13) Making citation errors. I had a very short ments are what brought you to the court, and it amount of time in which to produce a lot of is a colossal waste of everyone’s time for those work, I was not going to spend that time trying arguments to be ignored, especially since the to figure out what you meant to type. Check court attorney must address them, whether or your citations and use a format that includes not you do. You don’t want that. Conversely, all relevant information, i.e., the decision year. the appellant should address each of the New York cases should be cited from the offi- respondent’s counterarguments because, cial reports, if reported, and should include the again, the court attorney will. court and the year. So, for example, I liked to see this: (Kasachkoff v. New York, 107 AD2d 130 8) Using exaggeration and extreme hyperbole. [1st Dept 1985]); but not this: (Kasachkoff v. New Keep underlining, exclamation points, bold York, 107 A.D.2d 130, 485 N.Y.S.2d 992).3 and italics to a bare minimum.2 If you need those things to make your point, you probably 14) Making up quotations or misusing quota- haven’t got much of one. tions marks. I once encountered a quotation that was a case winner. It perfectly stated a point of 9) Insulting the lower court. I will not soon law, was from this court, and was from a deci- forget reading in a brief that a lower court deci- sion published the previous year. I pulled up sion “lacked intellectual rigor.” Hmmm. What the opinion, which turned out to be only two was that party saying about the First Depart- paragraphs long. One of those paragraphs was ment panel considering the case, should it the decretal. Uh-oh .... The second paragraph agree with the decision being appealed? And bore no relation to the quoted language. Curi- yes, the panel did agree. You should probably ous, I performed a full database search, hoping resist the urge to insult the lower court and, to find the paragraph somewhere, anywhere thereby, risk insulting the panel deciding your — even in a law review article. The quote did appeal. not exist. Please don’t do that.

362 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 15) Submitting records containing illegible copies 7) Submitting sloppy, non-paginated records. of important documents, i.e., the decision for 8) Using reply briefs for information dumps or review and notice of appeal. If I could not read regurgitation of arguments already made in it, it was of no use to me. the opening brief. Doing so is a missed oppor- Some other things that, while not necessarily tunity and, frankly, a waste of your time. sufficient to put your brief on life support, 9) Failing to proofread your work product. I have should be avoided to the extent possible: seen it all. Too much punctuation; no punctua- 1) Putting citations in footnotes. You are not jour- tion at all; sentences that drop off mid-thought; nal writing, and it was both annoying and pasted-in sections wherein the attorney forgot inconvenient to have to search through foot- to change the client’s name.... All of these notes to find a citation that should have been things could be avoided with one careful placed after the proposition for which it was proofread. It is folly not to do so. cited. It was especially annoying when foot- 10) Submitting a 70-page brief or requesting an notes began to contain nothing but “id.s,” enlargement to submit an 80-page brief. In my “supras” and “infras.” experience, it is rare that a 70-page brief proves 2) Overutilizing footnotes. Footnotes should be either necessary or useful. Even in the most used to deliver information that, while not complex commercial appeals (which was pri- directly relevant, is still notable. To that end, marily what I handled), 50 pages was suffi- footnotes should generally not drone on for cient, with 60 being an upper limit. If your brief multiple paragraphs across multiple pages. is running longer than that, perhaps it can be streamlined by instituting a few of the sugges- 3) String citing cases for general points of law, i.e., tions listed above. the summary judgment standard. Believe me when I tell you that there is not a person in the In closing, I leave you with one final thought courthouse who does not know the summary by a master of words, Dr. Seuss: “[T]he writer judgment standard. If you feel compelled to who breeds more words than he needs is mak- state it, one or two case citations will take you ing a chore for the reader who reads.” farther than six. Any more than that and the Here’s wishing you happy writing, but boun- only thing you accomplish is padding your tiful editing! table of authorities. Note: Reprinted with permission from New York 4) String citing cases without using pin cites or State Bar Association Journal, February, 2014, Vol. parentheticals. You should avoid string citing at 86, No. 2 published by the New York State Bar all, to the extent possible. But if you must do Association, One Elk St., Albany, NY, 12207. so, please tell the reader why he or she should care. 1. I feel compelled to reiterate that I do not speak for the court, any other court attorney or the justices. This article contains my advice, 5) Attaching exhibits to your brief. Most of the based upon my own experiences and observations after three years as court attorneys I knew used PDF versions of a principal appellate court attorney with the First Department. 2. For formatting rules, see the Appellate Division, First Depart- your documents and attachments are not ment Rules, Section 600.10, titled “Format and Content of Records, scanned with your briefs. So you should put Appendices and Briefs.” your exhibits in the record, where they belong. 3. See the New York Official Reports Style Manual. 6) Including excessive volumes of records. Ask yourself whether 22 volumes of records are About The Author actually necessary. For example, if the only issue on your appeal is whether the lower Tamala Boyd is an associate general counsel with court used the proper standard of review, you the New York City Department of Consumer Affairs. do not need to include the transcripts of every She began her legal career in private practice with the deposition taken in the case. Conversely, if New York City law firm Simpson Thacher & Bartlett your entire argument hinges on the court’s LLP as a general litigation associate. She then spent misconstruing of facts, you should offer more three years as a principal appellate court attorney with than your client’s affidavit. In most cases, you the Appellate Division, First Department. Ms. Boyd should include the complaint. It helps if your earned her law degree from Duke Law School. files are all searchable.

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 363 364 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 Legal RESEARCH & WRITING

Better Living With Citations By Jason McVicker itigators are forever trying to show that the law is on their side. To do this, a litigator must first show what the law is. LA good citation serves both purposes, informing the court of the pertinent legal standard and persuading the court to rule in your client’s favor. In contrast, a lousy citation can annoy the court, arm your opponent and even breach the rules of ethics.

Opinions vary on the “correct” way to cite. Which is “better”? This article does not seek Just as self-styled grammar police will never to wade into that conflict, which probably can- agree on the use of commas,1 citation sticklers not be settled by mortal efforts. The precise have downright emotional opinions about for- mechanics of citation are best addressed by mat. Courts fan the flames of conflict with dis- reference to Oklahoma Supreme Court rules,3 parate rules and pet peeves of their own. Com- or the famous Bluebook.4 Now in its 19th edi- pare these citations. tion, the Bluebook is a mainstay of law schools and court chambers. Published by the Harvard Douglas v. Cox Ret. Props., Inc., 2013 OK 37, Law Review Association, it provides numerous 302 P.3d 789. examples and explanations for format, along Douglas v. Cox Ret. Props., Inc., 2013 OK 37, with more rules and exceptions than most ¶12, 302 P.3d 789, 794. people ever care to read. Consider this merely a list of best practices, as gleaned from sticklers Douglas v. Cox Retirement Properties., Inc., 302 of all stripes. P.3d 789, 794 (Okla.2013). BEST PRACTICES Douglas v. Cox. Ret. Props., Inc., 302 P.3d 789, 793-94 (Okla.2013). When to Cite These citations have all appeared in the opin- Provide a citation to directly support a prop- ions of state and federal courts.2 They all cite osition, to identify the source of a quote or to the same authority for the same proposition. identify an authority discussed in the text.5 Prac- They all comply with applicable rules. But the titioners may remember the IRAC paradigm variations are obvious. The first two examples from law school (issue, rule, application and are from Oklahoma state courts, which mostly conclusion). Your rule should almost certainly follow the public domain citation format, pur- be supported with a citation. Courts are not suant to Oklahoma Supreme Court Rule impressed with unsupported assertions of law.6 1.200(f). The second two examples are from Moreover, failing to cite an authority may signal federal courts. Federal courts generally hew to weakness to your reader, who will surmise that the Bluebook citation format. no authority supports your argument.

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 365 When Not to Cite authorities disagree. Parenthetical information should be used to supplement the use of sig- Do not cite 10 cases when one will do. Con- nals if their purpose is unclear. sider a motion for summary judgment. Sum- mary judgment should be granted “where What Authority to Cite there is no substantial dispute as to any mate- rial fact, and it appears that one party is enti- Binding authority is ideal, but unfortunately tled to summary judgment as a matter of law.”7 the Supreme Court has not published decisions This simple rule is familiar to all litigators and dealing with every possible issue. Non-binding judges. It is easily expressed in a single sentence, authority is therefore a necessary evil. Remem- with a citation to a single case.8 Yet some motions ber that not all authorities are created equal. include vast swathes of briefing on this stan- Secondary sources, like the Corpus Juris Secun- dard, citing numerous cases that merely restate dum, should be cited only sparingly, if at all. the rule in slightly different ways. These cita- Foreign authority can be cited for persuasive tions are wasted space that encourage the reader value, but it may hurt more than it helps. If you to start skipping through your brief. cite an intermediate appellate decision from a Signals military court, for example, your opponent is going to have an easy time distinguishing the Citations can be supported by signals like see case and zing you for citing such an obscure and accord to clarify why the authority is cited. authority. The most critical exception to the See is appropriate when the authority indirect- rule is federal case law interpreting the Federal ly supports the proposition, but some inferen- Rules of Civil Procedure. Oklahoma courts are tial step is required.9 See is not, however, an authorized to look to federal authority when invitation to stretch or misrepresent authority. interpreting analogous Oklahoma statutes, Consider this hypothetical scenario. You seek especially in the Pleading Code and the Dis- the entry of a blanket protective order in a civil covery Code.11 case. Your opponent opposes a protective order, and states in his brief: Litigators often cite Court of Civil Appeals (COCA)12 decisions the same way they cite Courts generally disfavor protective orders. Supreme Court of Oklahoma decisions. Rule See United Phosphorus Ltd. v. Fox, No. 1.200(d)(2) of the Oklahoma Supreme Court 03-2024-JWL, 2003 WL 21241847 rules, however, provides that unless a COCA (D. Kan. 2003). decision is approved for publication by the Yet the United Phosphorus court actually dis- Supreme Court, it is merely persuasive author- favored “umbrella protective orders,” as dis- ity. This may be a meaningless distinction in tinguished from “blanket protective orders.” In practice; a trial judge that ignores the will of an fact, the decision sings the praises of blanket appellate court does so at her own peril. Nev- protective orders just like the one you have ertheless, COCA opinions should not generally requested. At best, your opponent’s citation be presented as mandatory authority in state fails to accurately represent the court’s analy- court. Similarly, while federal courts sitting in sis. He has handed you a weapon to use in diversity are supposed to apply Oklahoma law your response brief. as announced by the Supreme Court of Okla- homa, they may choose not to follow COCA Too often, see is a red flag that the authority decisions.13 cited does not stand for the proposition stated. Putting see in front of a citation does not mean Textual Citations that anything goes. A citation must still accu- Do citations belong in footnotes or in the dis- rately portray the authority it purports to refer- cussion portion of your brief? Luminary Bryan ence. Aside from the moral and ethical prob- Garner says that biographical information like lems presented, this type of inaccuracy costs reporter numbers should be relegated to foot- the author credibility. notes.14 He has a point. Long citations are hid- Other signals can be used to bolster citations. eous and unwieldy, and they encourage the E.g. is used when lots of authority supports a reader to skim.15 Mr. Garner’s opponents coun- position, while see generally indicates the pres- ter that textual citations make it easy to see the ence of background material.10 Accord should strength of authority. The issuing court and be used where two authorities agree with each year of the case are right there, dispensing with other, while contra should be used where two the need to shuffle through footnotes. Similar-

366 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 ly, more and more judges are viewing briefs on 3. Rule 1.11(l) of the Oklahoma Supreme Court Rules requires cita- tions to opinions of the Oklahoma Supreme Court and the Court of tablets, at least at the federal level, and foot- Civil Appeals to comply with Rule 1.200(c), (d), and (e). Furthermore, notes translate poorly on tablets. citations to United States Supreme Court decisions must be to the United States Reports, and other decisions may be cited either by the Most importantly, the main proponents of national reporter system or otherwise as practical. 4. The ALWD Citation Manual is also an option. For years, renegade textual citations are judges – including mem- legal-writing professors have advocated ALWD as a saner alternative bers of the U.S. Supreme Court.16 These people to the byzantine Bluebook. To its credit, ALWD is more uniform and elegant. Unfortunately, Bluebook is far more popular. tend to get what they want. There is no “cor- 5. The Bluebook: A Uniform System of Citation 54 (Columbia Law rect” answer to the question, but tradition dic- Review Ass’n et al. eds., 19th ed. 2010) [hereinafter Bluebook]. 6. McDonald v. Humphries, 1990 OK 51, ¶2 n. 4, 810 P.2d 1262, 1264 tates that textual citations should be used. How n. 4. does this work out in Oklahoma? The Supreme 7. Scott v. Archon Group, L.P., 2008 OK 45, ¶8, 191 P.3d 1207, 1209-10 (citations omitted). Court does it both ways, which is really not 8. If you are opposing summary judgment, it is more persuasive to 17 that bad. cite a case where summary judgment was reversed. See Brewer v. Murray, 2012 OK CIV APP 109, ¶5, 292 P.3d 41, 45 (“summary judgment may only String Cites be granted if the movant is entitled to judgment as a matter of law and if appropriate. Only if the court should conclude that there is no material A string cite is a list of two or more authori- fact in dispute and the law favors the movant’s claim or liability-defeat- ing defense is the moving party entitled to summary judgment in its ties offered for the same principle or assertion, favor.”) (citations and quotations omitted). The standard is the same, but usually separated by semicolons. You shouldn’t the phrasing is more friendly to the defending party. 9. Bluebook, supra note 6, at 54. use them. Most judges don’t particularly like 10. Id. string cites, which is reason enough to avoid 11. Crest Infiniti, II, LP v. Swinton, 2005 OK 84, ¶22, 126 P.3d 1232, 18 1238. them. Yet lawyers love them. Why? Perhaps 12. Is it proper to call the Court of Civil Appeals COCA? There are they want to show off how smart they are and hundreds of published Oklahoma decisions referring to the Court of how much research they have done. This is not Civil Appeals as COCA, mostly in recent years, and a majority of the current Supreme Court Justices have used the abbreviation in at least a good enough reason to use a string citation. one published decision. 13. Hilligoss v. Robertson, No. CIV-10-1001-A, 2012 WL 1299328, at If you simply cannot help yourself, use a *10 (W.D. Okla. 2012); see Commonwealth Prop. Advocates, LLC v. Mort- short parenthetical to explain why each case in gage Elec. Registration Sys., Inc., 680 F.3d 1194, 1204 (10th Cir. 2011). 14. See, e.g., Bryan Garner, “Textual citations make legal writing the string is significant or distinguishable. In onerous, for lawyers and nonlawyers alike,” ABA Journal (Feb. 1, 2014) Tansy v. Dacomed,19 the Supreme Court adopted www.abajournal.com/magazine/article/textual_citations_make_ legal_writing_onerous_for_lawyers_and_nonlawyers/. a new affirmative defense in medical device 15. Id. This is the same reason why block quotations are disfavored. cases. In so doing, the court examined deci- See Mark Herrmann, The Curmudgeon’s Guide to Practicing Law, 7-8 (2006) (“If you feel compelled to include a block quotation in a brief, sions from several sister states. This examina- assume that the judge will not read it”). tion is a long string citation; each citation is 16. Id.; see also Rich Phillips, “The Great Footnote Debate (A Response to Bryan Garner),” Texas Appellate Watch (Jan. 28, 2014) accompanied by a short parenthetical identify- www.texasappellatewatch.com/2014/01/the-great-footnote-debate-a- ing the medical device at issue. This is a good response-to-bryan-garner.html. example of the technique; the parentheticals 17. See e.g. Edwards v. City of Sallisaw, 2014 OK 86, __ P.3d __ (mix- ing and matching textual and non-textual citations). add context to an otherwise superfluous string 18. Mark Cooney, “Stringing Readers Along,” Michigan Bar J., of information. December 2006, at 44. 19. Tansy v. Dacomed Corp., 1994 OK 146, ¶11, 890 P.2d 881, 885. This CONCLUSION case is also useful whenever dealing with “unavoidably unsafe prod- ucts,” or whenever you feel self-pity and want a healthy dose of per- spective. See id. at 881 (“Plaintiff’s penile implant failed and had to be There is more to citation than just a name and surgically removed.”). a reporter number. Techniques like signal usage can add nuance and clarity to any brief. Avoid- About The Author ing over-citation, under-citation or inaccurate citation can make the difference between vic- Jason McVicker is an associ- tory and defeat. ate at McAfee Taft in Tulsa. His practice focuses on complex liti- 1. See Lynne Truss, Eats, Shoots & Leaves 84 (2003) (“There are people gation and representing manu- who embrace the Oxford comma and people who don’t, and I’ll just say this: never get between these people when drink has been taken.”) facturers and restaurants. He 2. Ballard v. Tulsa Pain Consultants, P.C., 2013 OK 61, ¶2, 304 P.3d graduated from the University 746, 746; Day v. State, 2013 OK CR 15, ¶3, 316 P.3d 931, 932; Hobbs v. Rui Zhao, No. 13-CV-0673-CVE-FHM, 2014 WL 47938, at *1 n. 1 (N.D. of Tulsa in 2008, and earned his Okla.); Courtney v. Oklahoma ex rel., Dep’t of Pub. Safety, 722 F.3d 1216, J.D. from the University of Tulsa 1228 n. 4 (10th Cir. 2013). College of Law in 2012.

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 367 Announcing The New and Improved OSCN.Net

3 Five new counties (Blaine, Lincoln, McCurtain, Noble, Pottawatomie) added to court records search (formerly docket search) 3 Rotating court news items on the home page 3 Improved navigation 3 Court costs payable online in Cleveland and Canadian counties

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Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 369 SCHOLARLY ARTICLE

Clarifying Oklahoma’s Marketable- Product Royalty Rule By John Burritt McArthur

klahoma is a leading oil and gas producing state and has been for over a century. Not surprisingly, the Oklahoma Supreme Court is one of the country’s most influential oil- O 1 and-gas courts. One area in which it is a leader involves the “mar- ketable product” or “marketable condition” rule. This rule concerns whether mineral lessees can deduct from royalty payments a pro- portionate share of their cost for activities performed after oil and gas reach the surface. The court has held that unless a lease express- ly allows specific deductions, the lessee has to put oil and gas into a marketable condition at its own expense.2 This is part of the implied “duty to market.” Lessees can deduct costs incurred after achieving marketability unless the lease says otherwise.

Unfortunately, this standard continues to Oklahoma is a marketable-product state, but confuse parties and lower courts. some courts have not fully applied its rule that way. In 2013, for instance, in Chieftain Royalty COURTS HAVE NOT BEEN APPLYING OKLAHOMA’S CLEAR STANDARD Co. v. XTO, the 10th Circuit vacated and CONSISTENTLY remanded a certified Oklahoma gas royalty class for further consideration of two issues: 1) Oil and gas states are divided over the mar- whether the leases might contain terms negat- ketable-product issue. Like Oklahoma, the ing the duty to market that would prevent other leading marketable-product jurisdictions certifying a common-question class action and — Colorado, West Virginia and Kansas, as well 2) whether when gas becomes marketable can as Arkansas, most likely New Mexico, Alaska be decided on a common basis.5 Chieftain joined (at least for most producing acreage), Virginia, a same-day decision that misapplied Kansas law and the federal government (the largest owner in Wallace B. Roderick Revocable Living Trust v. of reserves in the country by far) — follow ver- XTO.6 In June, the Oklahoma Supreme Court sions of the rule while Nevada, Wyoming and disapproved and removed from publication a Michigan have marketable-product statutes.3 In state court of appeals decision that reversed cer- contrast, Texas and Louisiana reject the market- tification of a marketable-product class in Fitzger- able-product rule and have been joined by, or are ald v. Chesapeake Operating Inc.7 Although the somewhat likelier to be joined by, the courts of Supreme Court did not explain why it took this Kentucky, Mississippi, Montana, Pennsylvania, action, it presumably had concerns about the North Dakota, Utah and California.4 court of appeals’ fidelity to the Oklahoma rule.8

370 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 Lessees continue to jockey to overturn the The trial court’s order, which demonstrates Oklahoma standard. Two recent articles in this that the leases do not negate the duty to market journal urging changes that would largely under Oklahoma law, includes a detailed anal- abandon Oklahoma’s standard reflect the ysis of relevant precedent.15 In Oklahoma, ongoing producer resistance.9 authorization to deduct marketability costs has to be “spelled-out in the oil and gas lease” The turbulence over Oklahoma’s market- and must be “provide[d] specifically.”16 The able-product rule unfortunately, and unneces- order traces the requirement of such clear sarily, increased this past November when the expression in part to the “longstanding prin- Supreme Court reversed and remanded three ciple in Oklahoma” that leases are construed summary judgment orders in Pummill v. Han- 17 10 against the lessee and rejects the position cock Exploration LLC. The author of the recent that Oklahoma applies a wellhead-centric articles in this journal is lead counsel for the marketability standard.18 Pummill appellants. The added turbulence lies in the court’s failure to explain in Pummill why The trial court ruled on both leases at issue, remand was necessary (just as it failed to thus rejecting the argument that Ms. Pummill’s explain its decision to refuse certiorari but “market price at the well” lease or Mabel Par- withdrew the court of appeals decision from rish’s “gross proceeds at the prevailing market publication in Fitzgerald). It professed to act rate” lease negates Oklahoma’s marketable because “facts which could affect the resolu- product rule. Appellants did not make an argu- tion” of the orders “need to be addressed ment specific to the wording of “gross pro- before the factfinder — the district court.”11 Yet ceeds” to the trial court or the Supreme Court.19 it did not support that assertion by saying any- Chieftain and Roderick, (unlike Pummill) both thing about the substance of Oklahoma law, class cases, also turn in part on legal aspects of identifying whatever factual issues it might the duty to market; but in each case the lessee, think need elaboration or casting any doubt on XTO, raised the standard lessee class-action Oklahoma’s well-established marketable-prod- complaint that so many individual differences uct rule. divide the class leases that a class cannot be This article discusses that rule as well as certified. In Chieftain, XTO argued that a sam- what the remand in Pummill likely does and ple 732 of 14,300 class leases displayed 86 does not mean. material variations in lease terms, “many of which” allegedly “‘expressly allow XTO to OKLAHOMA’S BROAD MARKETABLE- deduct the costs it incurs.”20 The trial court PRODUCT RULE found commonality even though XTO alleged The first summary judgment order in Pum- this many variations because XTO paid all 21 mill, on “Lease Language,” addresses a legal class members the same way. question: whether the terms “market price at The 10th Circuit remanded Chieftain in part the well” or “gross proceeds at the prevailing because the lower court should have consid- market rate” negate or abrogate the market- ered variations in lease language, not just pay- able-product rule “in any way.” The order ment practices.22 It also tellingly noted that granted partial summary judgment to plain- even had the court reviewed lease terms, it tiffs without distinguishing off-lease from on- only had a sample containing “a fraction” of all lease services, no surprise when appellants’ class leases before it.23 primary argument on this issue below was that Oklahoma applies an at-the-well standard, not In Roderick, which involved a much smaller that the state draws a significant cost-deduc- group of 650 leases, the trial judge did analyze tion line at the lease boundary.12 the class leases, reviewing a 20 percent sample. He found that under Kansas law, none negated On appeal, appellants made a more specific the marketability duty.24 Yet the 10th Circuit on- or off-lease argument. They told the remanded Roderick, too, because the class had Supreme Court that Oklahoma never has ad- not “affirmatively demonstrate[d]” commonal- dressed the implied deductibility of costs under ity. The class apparently had to find a way to a “market price at the well” lease for services present all lease terms, including those outside rendered off the lease, claiming this as a question of the sample, for court review. The trial court’s first impression.13 Plaintiff Ethel Pummill has a failure was in not “consider[ing] whether lan- “market price at the well” lease.14 guage within the four corners of each lease would

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 371 need to be examined individually.”25 The hold- marketable necessary to complete “produc- ing implies that the unsampled leases are a tion,”32 which always is the lessee’s obligation. terra incognita with no one having any idea The court broadly stated that the lessee’s duty what terms lurk within. to market includes “the cost of preparing gas for market.”33 Although the compression that The Pummill Negation and Off-Lease Arguments generated the challenged costs occurred on the On appeal, the Pummill appellants denied lease, the Wood decision does not base its rea- that Oklahoma has a broad marketable-prod- soning on the location of the services.34 uct rule by emphasizing the lease boundary. The next year, in TXO v. Commissioners of the They argued that Oklahoma’s rule is limited to Land Office, the court barred TXO from deduct- services provided on the lease,26 which ordinar- ing compression, dehydration and gathering ily hosts a small part of the services needed to costs under state leases that required TXO to make gas marketable. The most important field deliver state oil “without cost into pipelines” or, services, including gas processing, substantial alternatively, to pay the state “the market value gathering, marketing and, often, at least some thereof.”35 The court largely followed Wood in its compression and dehydration, generally occur analysis, and made no effort to discuss where off the lease. Appellants’ position would sharp- TXO actually provides the services. Gathering ly narrow the Oklahoma rule by limiting it to commonly occurs at least in part off the lease, on-lease services. Indeed, it would emasculate and the court’s failure to limit the rule to on- the rule. Oklahoma’s standard would be only lease services suggested a broader rule.36 somewhat broader than, and not all that differ- ent from, a Texas-type at-the-well rule that the In 1998, just a few years later, in Mittelstaedt court has long rejected. Appellants’ advocacy for v. Santa Fe Minerals37 the court held, consistent such a rule is illustrated by their heavy reliance with these two prior decisions, that “transpor- upon precedent from jurisdictions that follow tation, compression, dehydration and blending the Texas rule.27 Their effort to limit the market- costs” are not deductible under a gross pro- able-product rule to the space between the well- ceeds lease when these services are needed to head and the lease line relies on a geographic make gas marketable.38 Answering a certified line not mentioned in the royalty clause. question, the court held that deductibility depends upon whether the gas already was Oklahoma law does not support this lease/ marketable or the services were performed to offlease distinction. In Oklahoma, under the make it so. In doing so, it rejected the idea that state’s articulated marketable-product rule, the costs automatically can be deducted just most common lease terms — market-value,28 because a service is performed off the lease. proceeds, and two-prong terms — do not authorize deductions for services needed to The various Mittelstaedt services were per- make oil and gas marketable. This is so even formed off the lease before the gas entered the when the royalty term is “at the well” and the purchaser’s pipeline.39 The court claimed that services are performed downstream and off the this contrasted with Wood and CLO, which it lease. said (without support, in the case of CLO) involved services rendered on the lease, and it In 1993 in Wood v. TXO,29 interpreting a “mar- seems to have treated the “leased premises” as ket price at the well” term, the Oklahoma synonymous with “at the well.”40 With this Supreme Court held that compression is need- background, Mittelstaedt confirms — as Wood ed to make gas marketable and its costs are not and CLO already indicated to careful readers deductible for that reason. It emphatically — that the lease boundary does not determine rejected standards based on a “production/ deductibility in Oklahoma. post production” distinction, including those that allow deductions for all after-the-well The court held that what it treated as on- “enhancement” services under what the court lease holdings in Wood and CLO do not mean rightly calls the Texas/Louisiana approach.30 that “costs incurred after severance at the well- Instead the court sided with jurisdictions that head are necessarily shared by the lessors.”41 “do not allow the lessee to deduct compression Having reaffirmed the traditional rule for on- costs,” an approach it tied to Kansas and lease services “at the wellhead or leased prem- Arkansas law, and rejected the “different ises,” the court discussed off-lease services. It approach or interpretation” of Texas and Loui- mentioned that custom and usage help deter- siana courts.31 It found making oil and gas mine the scope of the duty42 and, when describ-

372 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 ing “field processes” as services that customar- The holding that lease boundaries do not ily are applied to make gas marketable, men- determine deductibility is consistent with the tioned processes that often are applied off the Kansas rule, an approach the Oklahoma lease: Supreme Court “[chose] to follow” (along with Arkansas’s) in Wood and endorsed again in It is common knowledge that raw or unpro- Mittelstaedt along with the parallel Colorado cessed gas usually undergoes certain field rule.47 The Kansas Supreme Court rejected any processes necessary to create a marketable on-lease/ off-lease distinction in Schupbach v. product. These field activities include, but Continental Oil Co.48 It has held that the happen- are not limited to, separation, dehydration, stance of where a lessee puts service facilities, compression, and treatment to remove and whether it concentrates them in a down- impurities.43 stream location in order to achieve economies The court’s reference to “field” processes is of scale for its own benefit, does not affect their significant. These processes are mid-stream deductibility from the royalty payment.49 Pru- services provided between the well and the dent steps to save the lessee money by lowering tailgate of the processing plant to prepare gas unit costs do not change the deductibility of for sale into and shipment on mainline, usually services vis-à-vis the royalty owner. Colorado interstate, gas pipelines. holds that the costs of making a product market- able are those of putting it in a proper condition With this predicate in place, the court and location, similarly rejecting the idea that a explained that “[w]e decline to turn compres- term like “at the well” or the lease line limits this sion costs into costs paid by the royalty interest duty.50 West Virginia, the other leading market- merely by moving the location of the compres- 44 able-product jurisdiction, also has adopted its sion off the lease.” It distinguished nonde- rule over “at the well” language.51 ductible costs of transporting gas “off the lease to a point where its constituents are changed” The Oklahoma rule is very clear. Oklahoma — the traditional gathering and movement to a does not carve out different deduction rules for processing plant — from the presumably the most common royalty clauses. It applies deductible costs of added compression that the same marketability rule to market value thereafter pushed the gas into the buyer’s and proceeds leases and variants thereof. Okla- pipeline.45 homa’s rule is not an ineffectual no-deduction rule that ends “at the well” or at the lease This analysis defines two categories of cost. boundary. One contains what the court has called produc- tion costs, “which are never allocated” and The Chieftain Many-Material-Differences which the court seems to have viewed as on- Argument lease costs. The second contains “post-produc- The Oklahoma Supreme Court pointed out tion” costs for off-lease services that may or in its trilogy that the lessee could have made may not be deductible, depending upon specific costs deductible but did not, thus indi- whether they are “necessary to make a product cating that absent express allowance in the marketable, or…within the custom and usage lease, costs of services needed to make miner- of the lessee’s duty to create a marketable als marketable are not deductible in Oklaho- product…”46 The reference to custom and usage ma.52 Lessees wanting to deduct field-service confirms that the cost of field processes, which costs must say so in the lease. In the face of this lessees customarily treat as needed to make oil broad rule, Chieftain and its progeny misinter- and gas marketable, generally will not be pret Oklahoma law when they assume that deductible in Oklahoma in any location. unreviewed leases are likely to be filled with The primacy of the lessee’s marketing duty novel, material variations that negate the thus has been decided in Oklahoma for “mar- implied duty to market. ket price at the well” (and market value) leases, Postulates of materially different lease terms too, because neither the lease line nor the term under Oklahoma law, as in Chieftain, also ignore “at the well” determines deductibility under the commonality of ordinary royalty payment the Oklahoma trilogy. What happens to off- terms. American oil-and-gas leases do not dis- lease service costs in Oklahoma today depends play countless material variations. Parties tra- upon whether the services are needed to make ditionally use form leases drafted by industry minerals marketable.

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 373 groups, particularly versions of “Producers 88” If a defendant can show that leases vary leases. widely and that many leases negate the duty to market, it should fight certification. But if only Time will tell whether the shale boom alters one or a handful of leases negate the duty to the balance of negotiating power in a way that market — and negation rarely is seen — the produces more detailed leases. Thus far, the oil proper remedy is to exclude those leases from and gas royalty payment clause (sometimes the class definition. “clauses,” when the lease separates the oil pay- ment clause from the gas payment clause) is Finally, if the Pummill trial court got it right quite short. And, most significantly, almost all on the failure to negate and the irrelevance of royalties are paid on a limited variation of pro- the lease boundary, why did the Oklahoma ceeds or market value terms, with some leases Supreme Court remand the order on lease lan- using a “two-prong” combination of these guage? This is not a class case and the two terms. Leases traditionally do not mention leases were before the trial court; it discussed deductions specifically. The court’s deduction their terms as well as Oklahoma law, so the trilogy shows that in Oklahoma, as already remand cannot involve unread leases as in discussed, these common terms do Chieftain and Roderick. The re-mand certainly not authorize deduction of market- should not mean that the trial ability costs. court is wrong on the law. It pro- vided a thoughtful and thorough Speculation that unsampled The Supreme legal analysis supporting its leases might negate the duty to holdings. If the Supreme Court market, as the 10th Circuit implied Court may have disagreed with these conclusions in Chieftain and expressly specu- of law, the proper step surely was lated in Roderick, are at odds with found it simplest to to grant certiorari, reverse and the Oklahoma rule. Nothing the remand all three issue a reasoned decision explain- 10th Circuit said gives any reason ing where the trial court is wrong. to believe there is a reasonable summary judgment likelihood of the vast majority of The Supreme Court may have unsampled Oklahoma leases in orders rather than found it simplest to remand all Chieftain (or the Kansas leases in take the time to three summary judgment orders Roderick) containing language that rather than take the time to dis- negates the marketable-product distinguish the tinguish the various issues before responsibility. The court may have it. The appellants encouraged remanded Chieftain to be sure the various issues just such a global treatment by trial court found no negation even before it. glossing over differences between after reviewing the leases, but in the summary judgment rulings general assumptions of material on a key argument: the first issue variation (particularly if a sample in their petition for writ of certio- has shown no negation, as in Roderick) are rari claims that the trial court unwarranted. improperly decided disputed fact issues as if that alleged problem mars all of the orders Because leases generally do not vary on below.54 The Supreme Court may have been deductions under Oklahoma law, courts should persuaded by this argument, even though the allow sampling in class cases to test whether challenged reference to fact assumptions only material variations exist. In Roderick, the 10th appears in one order and none of the orders Circuit proposed that leases can be “classif[ied turns on disputed facts. Or it may be that even 53 by] lease type” and may have remanded that on the legal issues of negation and on/off- Kansas case only because the record did not lease, the Supreme Court wants the fullest show whether its sample is representative. If record possible so that it can best explain any courts do find significant variation, they can clarifying decision, even if it intends to affirm require more analysis. But it would be irratio- the present rule. Indeed, it may be that the nal for modern courts, which encourage sam- court gave no true explanation for its treatment pling as a reliable technique for structuring of Fitzgerald or Pummill because it did not feel document production, to refuse to allow rea- that it was presented with a record sufficiently sonable lease sampling. detailed to support articulation of Oklahoma’s marketable-product rule.

374 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 Ultimately, appellants’ complaint about well to well. All this even though XTO never “lease language’ is based on the legal argu- went out, surveyed sales in the field and paid ment that Ms. Pummill’s “market price at the royalties based on averages of any surround- well” lease authorizes deductions of costs for ing wellhead-specific sales. The lessors, in con- all off-lease services under Oklahoma law. That trast, argued that no class gas was marketable is a pure legal argument, one that is inconsis- at the well.59 tent with Wood’s holding on “market value at the well” leases, CLO’s broad inclusion of gath- This sounds like a common methodological ering in nondeductible services, the lack of any dispute over the correct way to measure gas locational limit in either decision, and Mittels- markets. Yet the 10th Circuit assumed that the taedt’s express holding that moving services point of marketability might differ by well; if downstream does not change their deductibil- so, the differences might present too many individual issues; and it remanded for the ity as well as the Supreme Court’s endorse- 60 ment of an Arkansas, Kansas and Colorado court to consider the market in more detail. approach and its longstanding rejection of the The Fitzgerald court of appeals treated market- Texas/Louisiana approach. Under Oklahoma ability as an individual question too. Indeed, at law, the lease line does not limit the implied times it went beyond Chieftain and assumed marketable-product rule. that costs will vary at least by field and by Chesapeake’s sales contract, rather than that a THE POINT OF MARKETABILITY BEGINS jury might find that they vary.61 This may be one WITH SALES PROCEEDS AND SHOULD of the reasons the Oklahoma Supreme Court CONFORM TO DUTY TO MARKET- had the appellate decision withdrawn from COMPLIANT BEST PRICES publication. A second issue that has caused confusion is In modern gas systems, markets rarely vary what marketability means under Oklahoma by well. Wells are connected to large gathering law. networks. Gas usually has to be dehydrated Strictly speaking, the Pummill appellants did and compressed, enters small gathering pipes not contest a finding on marketability because that usually run off the lease, is commingled as the trial court did not make one. The lower it enters those pipes, moves to processing court stated in one of its orders that market- plants where it may also receive added com- ability was not before it on summary judgment pression and dehydration, is processed and and would have to be decided later.55 Nothing sometimes treated, and then sold as dry gas in appellants’ briefing to the Supreme Court and, separately, liquids. Individual gas mole- demonstrates otherwise.56 Instead, on market- cules lose their separateness as soon as they ability, they argued that anyone’s sales to a enter the gathering line. Most sales are made “first purchaser” (even, apparently, unrelated into mainline pipelines located near the outlet third parties’ sales) at the well can prove that of processing plants. The best-price “market” their gas is “marketable” at the well.57 Under for this gas almost always is the active, robust this theory, appellants want their gas treated as market after processing. marketable at the well even though they never The fact that downstream services are need- sold it there. They want to piggyback on sales ed to make gas marketable in the usual case is independent of their own transactions. widely recognized. The Mittelstaedt court called Appellants did furnish the trial court with it “common knowledge that raw or unpro- opinions from experts who identified sales cessed gas usually undergoes certain field pro- that, they claimed, prove viable wellhead mar- cesses necessary to create a marketable produc- kets.58 Yet this should not affect the summary tion.”62 These processes include “separation, judgment issues, which concerned issues of dehydration, compression, and treatment to law and left marketability for later. Moreover, remove impurities . . . .”63 The 10th Circuit has appellants’ third-party-seller, first-purchaser explained that, to seek market value for unpro- argument might be valid for market-value cessed gas “at the well,” the “producers sell leases under a Texas approach, but it is not refined natural gas and NGLs at the tailgate of accepted in Oklahoma. the processing plant (i.e., after processing) to establish a base sales amount…”64 The 10th Circuit remanded Chieftain (and Roderick) on marketability too. In Chieftain, Lessees commonly dispute the point at which XTO claimed that the gas markets varied from gas becomes marketable in Oklahoma and in

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 375 other marketable-product states. A primary ible even if rendered off-lease. Wood may have reason to do so in Oklahoma is that the Okla- presented a dispute over the cost of on-lease homa Supreme Court has not formally linked services and CLO not indicate where its three the duty to market’s price duty to the deduc- contested services occurred.70 Against that tion rule flowing from the same covenant. A background, Wood’s quote of a Colorado case lessee has an implied duty to get the best price on compression as a “necessary step” in mar- reasonably possible in all producing states, and ketability, its portrayal of low-pressure risks that price no longer is commonly found near as falling on the lessee,71 and XTO’s admission the well.65 in CLO that compression, dehydration and gathering deductions were needed to make In addition, the Oklahoma Supreme Court gas marketable72 support the view that on- has muddied the water on what marketability lease costs are categorically not deductible in requires because it has superseded its own Oklahoma. older, pre-deregulation language in Johnson v. Jernigan,66 yet paradoxically still cites that deci- In contrast, when it comes to off-lease service sion approvingly. Jernigan contains language costs, Mittelstaedt takes a factually variable that, on its own, appears to suggest that deduc- approach. It assumes that there may be field tions may be tied to lease boundaries, as if services performed after gas is marketable and deductibility may be barred categorically but that the resulting costs are deductible (at least, only for on-lease services, and that off-lease as long as the lessee proves the costs are rea- gas movement is “transportation” that usually sonable and the services increase gas value can be deducted.67 proportionately).73 Thus Oklahoma does not classify deductibility of off-lease field services It is notable that Jernigan was decided in categorically.74 In Oklahoma, off-lease services 1970. The period is in the heart of the regulated are not deductible most of the time but it is gas era. Sales commonly did occur at the well because they make oil and gas marketable, not at that time. The buyers generally were inter- because they are part of inherently nondeduct- state pipeline companies. In Jernigan itself, ible “production.” For these costs, after Mittel- however, there was no market at the well, and staedt deductibility is a fact question. The court the sales occurred at a “distant” market 10 has not addressed whether even on-lease ser- miles away. Ruling on a “gross proceeds at the vices now fall under this factual standard, as prevailing market rate” lease, Jernigan treated opposed to being categorically nondeductible. “gross proceeds” as barring only deduction of costs incurred within lease boundaries.68 This The court has moved past Jernigan (as have is a decision that would not be reached in natural gas markets) and any lease/off-lease other marketable-product jurisdictions and is distinction. It is true that even Mittelstaedt at certainly inconsistent with the Oklahoma tril- one point described part of the lessee’s duty as ogy. Jernigan does not discuss marketable- producing a marketable product “at the well- 75 product theories or implied duties of any sort, head or leased premises.” But the Oklahoma nor does it address how it would have ruled trilogy does not suggest that lease boundaries on the field services that typically are applied should be important. In Mittelstaedt, the court before the point of what industry parties call held that “field processes” (not just lease pro- transportation. cesses) often are necessary to create a market- able product,76 that moving services off the In addition to not acknowledging where it sub- lease does not magically transform their costs sequently has limited Jernigan, the court unfortu- into deductible costs, and that — despite Jerni- nately has used the term “enhancement” to gan — even transportation costs cannot be describe services that make gas marketable when deducted when related to making a product other marketable-product jurisdictions use it to marketable.77 Moreover, gathering, which the describe post-marketability field services.69 court barred from deduction in CLO, usually extends off the lease. In spite of vestiges of Jernigan, Mittelstaedt’s holding that it is “common knowledge” that Under industry practice, a benchmark that raw, unprocessed gas usually needs to be pro- Mittelstaedt holds informs Oklahoma’s mar- cessed to become marketable indicates that keting duty,78 gathering is a distinct function costs of “separation, dehydration, compres- from transportation, indeed often is housed in sion, and treatment,” processing costs and any a separate field-service or “midstream” divi- other field services usually will not be deduct- sion or affiliate.79 Industry parties routinely

376 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 describe field services as creating a “market- um prices. These high-volume sales are not able” product. comparable to isolated wellhead sales. Because Jernigan does not discuss gathering Third, a market normally requires the exis- and its deductibility, but instead only “trans- tence of multiple buyers and sellers.82 That portation” to a “distant” market, it is facially requisite often is lacking for wellhead sales. reconcilable with CLO’s treatment of gathering Isolated sales of small volumes of gas do not — in-field movement of gas to the plant — as create a “market,” nor should one or more nondeductible. Logical reconciliation aside, affiliate “transfers” or “sales,” which should though, the court has left confusion by repeat- have to be validated by independent sources of edly citing Jernigan approvingly. To the extent value.83 In the ordinary gas field, the first mar- that Jernigan takes a Texas/Louisiana approach ketable gas will be pipeline-ready gas (and the to the deduction line but moves it from the well- separated liquids stream) emerging at the out- head to the lease boundary, Wood, CLO and Mit- let of a processing or treating plant. telstaedt overrule it; just as the Kansas, Arkansas The fact that index prices based on sales at and Colorado law cited so approvingly (indeed, downstream outlets of processing plants are largely adopted) by the Oklahoma Supreme widely published, while wellhead prices are Court rejects it. The Oklahoma Supreme Court not, is a sign that these downstream sales has rejected any idea that the costs of gathering points present market transactions to which and even what it has called transportation this industry looks for evidence of market always are deductible, as would be the case value. This is today’s customary value. The under almost all leases in Texas and Louisiana. industry does not look to occasional, nontrans- In today’s industry, the point of marketability parent sales in the vicinity of scattered well- usually is after nondeductible field services heads. Indeed, even in Texas and states follow- including gathering and processing. ing its at-the-well rule, lessees do not really In most cases, efforts to claim that isolated conduct surveys of wellhead prices, browbeat sales in the field set the “market value” of gas their competitors into disclosing their confi- collected by a single lessee into a large gather- dential sales prices, and then calculate volume- ing system will face one or more of four prob- weighted average well prices to pay royalties lems. First, when the lessee sells downstream using these nearby sales. They almost always to satisfy the best-price requirement, that sales pay on their own downstream sales after “net- price establishes market value for those sales backing” costs if the jurisdictions allow those under Oklahoma law. The Oklahoma Supreme deductions, or at least use the downstream has held that for price purposes, ceteris paribus, index price as the base price. the lessee’s proceeds provide the price under a Finally, local sales generally do not offer the market value lease (as it of course ordinarily best price even if they emerge from a setting does under a proceeds lease).80 In Oklahoma with multiple local buyers and sellers and vol- and similar jurisdictions, then, unlike Texas ume premiums are unavailable downstream. If and jurisdictions that follow its lead on this the plant outlet at or near a mainline pipeline issue, one does not look beyond the lessee’s inlet is the first location with anything resem- good-faith, arm’s-length, best-price sale to find bling a market, as it often is, many cases will market value. And insistence that a localized come out correctly even without reference to wellhead market price exists is an odd posture where the best price is located. Local prices are anyway for the Pummill appellants, whose not likely to be the best prices possible even if sales are always beyond the plant.81 It would be isolated buyers and sellers make deals at the illogical to treat the wellhead or lease, where wellhead. But the Oklahoma Supreme Court prices paid (if any are paid) usually are not the will end a lot of wasteful, unnecessary litiga- best prices available and would breach the tion if it links the best-price portion of the duty duty to market if used in royalty payments, as to market to its deduction analysis. These the point where oil and gas are marketable. duties need to be linked to achieve the duty to market’s purpose. Second, prices paid on small volumes of gas almost never are the best prices for the larger Producers may claim that a few sales near packages of gas that major lessees commingle the wells prove “market value.” They may in their gathering systems and sell in bulk even say that gas is in a “marketable condi- packages. Large volumes should draw premi- tion” even when no buyers at all (or only one

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 377 gatherer) are nearby. Yet competent natural gas able, both as to physical condition and loca- companies rarely sell gas at the well today. It tion, only after gathering, compression, treat- makes no sense that a price that would breach ment and delivery to the inlet for the interstate the duty to market, a price at which the defen- pipeline.”90 This is the situation in most gas dant itself has decided not to sell, could estab- fields. lish that gas is marketable in a way that satis- fies the same implied duty. The Oklahoma Supreme Court can clarify that producing a marketable product means The location of the best price has moved. In producing oil and gas that satisfies the best the decades before gas deregulation in the late price requirement. If the issue comes up in a 1980s and early 1990s, including in 1970 when class case, it should affirm certification because Jernigan was decided, the best price often was a this issue of the nature of the market will be regulated “field” price that pipeline buyers common across all lessors. paid at the well. With deregulation, gas mar- keting, and the best prices, shifted down- TWO RELATED PUMMILL ISSUES stream.84 Any realistic definition will reflect The nature of a state’s marketable-product that change. rule and what marketability means are the two If a lessor can secure inter- main questions that appear in almost nal company investment every marketable-product dispute. But Pummill, a “rich” case in terms of analyses concerning field ser- 91 vices and marketing, these legal issues, raises two related documents are likely to justify The nature issues. Both involve theories that, if field services as needed to of a state’s adopted, would achieve an end run make oil and gas marketable.85 around Oklahoma’s marketable- This is a straightforward rec- marketable-product product rule. ognition of the fact that in the POP/POI Arguments. modern deregulated natural rule and what gas market, marketable gas is marketability means First, the Pummill appellants argue processed gas, not raw gas at that if they hire a third-party field- the well.86 are the two service company to make their gas marketable and let the company 87 In Parry v. Amoco, Judge main questions keep a share of the gas or revenue Dickinson, a Colorado district stream rather than paying it a cash court judge, held a bench trial that appear in fee, they only owe royalty on the on gas marketability in Au- almost every reduced gas or revenue stream.92 gust 2002, significantly after Cimarex, the Operator, most recently natural gas deregulation. His marketable-product has been selling post-processing res- decision well illustrates com- dispute. idue (dry) gas and liquids on behalf mon marketability issues. of appellants downstream of third- Parry concerns Colorado con- party Enogex’s processing plant and ventional and coal-seam gas paying a cash fee for gathering, com- in the San Juan Basin. Judge pression, and transportation as well Dickinson described a stan- as allowing free use of needed fuel. It has not dard for marketability under Colorado law deducted the cash fees or fuel used in opera- that includes availability of marketing outlets tions that occur before gas processing in its and noted that a single sale does not conclu- 88 royalty computations, although its summary sively establish the existence of a market. He judgment position is that it could and that its distinguished the wellhead sales in the record “conservative” forbearance has been volun- from true market transactions: 90 percent were tary.93 But Cimarex has a separate processing internal affiliate transactions, most of the rest contract with Enogex and it deducts processing isolated sales for local use including distribu- costs from its payments to Pummill and Parish, tion for field use, captive sales, and other the plaintiffs.94 unrepresentative transactions (some were sales the defense team had arranged, as if lawyers This is the issue upon which the trial court, in can create gas markets for purposes of litiga- granting partial summary judgment, made the tion!)89 He ultimately concluded that, after unfortunate statement that it was “assuming deregulation, San Juan Basin gas “is market- (without deciding)”95 that at least some of the

378 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 deducted services were needed to make gas exception that could swallow most of the mar- marketable. The court’s “form of contract” ketable-product rule. The trial court’s summa- order is actually on a pure question of law — ry judgment for plaintiffs on this issue relied whether outsourcing services and paying in on narrower, more specific language about kind rather than cash or on a discounted index off-lease uses that, as in many leases, requires price makes services deductible — and did not payment of royalty on all gas “used” off the require it to resolve fact issues. But the Supreme premises.98 This express language installs a Court certainly wants a full fact record on locational limit on free use. Appellants barely where this gas is marketable before ruling on addressed the language in their supreme-court the issue. briefing.99 So it is unlikely that they will prevail on their free-use contention under these lease In other areas the Oklahoma Supreme Court terms. has rejected the elevation of form over sub- stance. It has done so in rejecting affiliate con- TIME TO CLARIFY THE LAW? tracts unless they are tied to true market trans- If the Oklahoma Supreme Court faces another actions, and in denying that moving market- appeal in Pummill or in a similar case, it will ability services off the lease suddenly makes have the opportunity to confirm its longstand- their costs deductible. It should not reverse its ing rule on deductions and to clarify the mean- approach, abandon its practical reason and ing of marketability as discussed in these pages. suddenly elevate form over substance by giv- ing lessees a green light to deduct all services 1. Among the court’s influential royalty decisions are the affiliate as long as the “payment” is in gas rather than and best-price holdings in Tara Petroleum Corp. v. Hughey, 630 P.2d 1269, 1275 (Okla. 1981) and Howell v. Texaco, 112 P.3d 1154, 1160 (Okla. 2005) a fee for services, or because a field-service (citations omitted); the development standard for new pools and for- company incorporates payment into a dis- mations in Mitchell v. Amerada Hess Corp., 638 P.2d 441, 450 (Okla. 1981); counted index price.96 Lessees then would fully the drainage rule in Dixon v. Anadarko Production Co., 505 P.2d 1394, 1396 (Okla. 1973); the ruling on installing market connections in control whether costs are deductible or not McVicker v. Horn, Robinson & Nathan, 322 P.2d 410, 413-16 (Okla. 1958); merely by how they structure service contracts. and the marketable-product decisions discussed in text. 2. See Mittelstaedt v. Santa Fe Minerals, Inc., 954 P.2d 1203 (Okla. Were the court to agree with appellants, Okla- 1998). homa lessees could make all field services 3. For a discussion of states adopting marketable-product rules, see Mr. McArthur’s JOHN BURRITT MCARTHUR, OIL AND GAS deductible as long as they use POP or POI con- IMPLIED COVENANTS FOR THE TWENTY-FIRST CENTURY: THE tracts instead of straight cash payments. Les- NEXT STEPS IN EVOLUTION 237-65 (ch. 6.D.1)(Sept. 2014). 4. For states rejecting a marketable-product rule, see id. at 265-75 sees providing services themselves would sud- (ch. 6.D.2). denly contract with third parties to benefit 5. 528 Fed. Appx. 938, 941-44 (10th Cir. 2013)(not for official publi- from this position. cation). 6. 725 F.3d 1213 (10th Cir. 2013). The case began as a single two- state class, but later was divided into two classes, one for each state. Free Use Argument Roderick, 725 F.3d at 1215 n.1. 7. Cause No. 111,566 (Okla. Civ. App. Feb. 14, 2014), cert denied, The Pummill appellants separately argue that intermediate decision withdrawn from publication sub nom. Fitzgerald because the leases have a “free use” clause for Farms, LLC v. Chesapeake Operating, Inc. (Okla. June 2, 2014). 8. See infra notes 25, 61 & accompanying text. gas “ produced on said land for its operations 9. Richard Noulles, “What Is Required for Gas to be a Marketable thereon,”97 gas used for field services is free to Product in Oklahoma?” (March 2014), available at http://www.okbar. org/members/BarJournal/archive2014/OBJ852Noulles.aspx; Richard them and not royalty bearing. They say that it Noulles, “Post-Production Movement of Natural Gas in Oklahoma: Is does not matter where the gas is used as long it Gathering? Transportation? Or Somewhere in the Mittelstaedt?” 3, 5 as it is used for gas produced on the land, a (April 2011), available at http://www.okbar.org/members/BarJour- nal/archive2011/AprArchive11/obj8211Noulles.aspx. location-free reading that has some similarity 10. Pummill v. Hancock Exploration LLC [hereinafter Pummill], Cause to the court’s holding that deductibility does No. 111,096 (Okla. S. Ct. Nov. 17, 2014)(order reversing and remanding [hereinafter Supreme Court Remand Order]. not turn on where services are performed. This 11. Id. at 2. is another way of saying that the lessee should 12. For appellants position on summary judgment and its empha- sis on the well, not an on-off lease distinction, see Defendants’ be allowed to deduct all gas used in making Response to Opposition to Plaintiffs’ Amended Motion for Summary gas marketable from volumes used in royalty Judgment 24-31, Pummill, Cause No. CV-2011-82 (district court, Grady computations wherever it is used. county, June 1, 2012). The court of appeals affirmed without substantive discussion. Order, Pummill, Cause No. 111,096 (Okla. Ct. App. June 27, 2014), rev’d and remanded, Supreme Court Remand Oder, supra note 10. Appellants cite the free-use clause to argue 13. Petition for Writ of Certiorari 2, Pummill, Cause No. 111,096 that deduction of any fee Enogex takes in kind (Okla. S. Ct. July 16, 2014)(calling off-lease issue one of “first impres- sion”), 7-8 (same); Reply in Support of appellants Petition for Writ of for downstream operations as long as the use Certiorari 3-4, Pummill, Cause No. CV-2011-82 (Okla. S. Ct. Aug. 11, pertains to plaintiff’s gas is expressly permit- 2013)(same). ted by the lease. Like their POP/POI argument, Appellants also argued that the trial court had erred by construing disputed facts in favor a plaintiffs, a summary judgment no-no. The so their free use argument would create an trial court statement on which they relied, that it was “assuming (with-

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 379 out deciding)” that “some or all” of the services were needed to make tion, Jernigan is inconsistent with the Oklahoma Supreme Court’s the gas marketable, was made in the “Form of Contract” ruling on use deduction decisions starting with Wood. of a “percentage of proceeds” or “percentage of index” sales contract. 30. Wood, 854 P.2d at 881. Having described this production/post Summary Judgment Issue II – Form of Contract 11, Pummill, Cause No. production Texas/Louisiana approach, the court held, “We reject this CV-2011-82 (district court, Grady County, Okla. Aug. 24, 2012)(grant- analysis in Oklahoma.” Id. ing partial summary judgment that entering POP and POI contracts 31. Id. at 881-83, esp. id. at 882 (“We choose to follow the holdings rather than cash fee arrangement for gathering does not “change the of the Kansas and Arkansas courts.”). amount of royalty due” – does not authorize deductions). Appellants 32. In Wood, the court sided with authorities who agree there is no glossed over the narrow scope of this clarifying comment in their Peti- “production” without all needed marketing services. Id. at 881. For tion, which presented the allegedly erroneous decision of disputed facts support for the marketable-product rule by the scholar who has been in the plaintiffs’ favor as a separate, overarching point of error affecting most influential on implied-covenant law, including in Oklahoma, see all summary judgment orders. Petition for Writ, supra, at 1, 4-6. MAURICE MERRILL, THE LAW RELATING TO COVENANTS 14. Appellants’ off-lease argument is purely about Pummill’s IMPLIED IN OIL AND GAS LEASES 214-15 (2nd ed. 1940)(citations “market price at the well” lease; they do not discuss Parrish’s “gross omitted). proceeds at the prevailing market rate” lease. Petition for Writ, supra 33. Wood, 854 P.2d at 882 (“In our view, the implied duty to market note 13, at 7-9; Reply, supra note 13, at 3-4. Reflecting Appellants’ means a duty to get the product to the place of sale in marketable emphasis on just one of the two leases, when the trial court described form.”). Appellants’ specific argument, it discussed their “market price at the 34. Wood did not limit deductibility to the lease, but at least costs well” argument. Summary Judgment Issue I – Lease Language, at 5, incurred on the lease seem categorically for the lessee alone under Pummill, Cause No. CV-2011-92 (district court, Grady County, Okla. Wood. Wood cites Johnson v. Jernigan, 475 P.2d 396 (Okla. 1970), for the Aug. 6, 2012)(granting partial summary judgment that lease language proposition that expenses beyond the lease must be shared, but only in does not negate or abrogate marketable-product rule). a discussion of “transportation,” Wood, 854 P.2d at 881 (citation omit- 15. Summary Judgment Issue I, supra note 14, at 11. ted). As shown in note 29 supra, Johnson v. Jernigan appears to use the 16. Id. at 3-7, esp. id. at 4(citing Mittelstaedt v. Santa Fe Minerals, Inc., Texas/Louisiana approach that Wood rejects. The industry ordinarily 954 P.2d 1203, 1205 (Okla. 1998); Wood v. TXO Prod. Corp., 854 P.2 880 distinguishes between field-area gathering, which is movement to a (Okla. 1992)). processing plant where gas is put in marketable condition, and trans- 17. Id. at 4 (citing Probst v. Ingram, 373 P.2d 58, 62 (Okla. 1962)). portation, a mainline service in larger pipes that occurs beyond that 18. Compare Defendants’ Response, supra note 12, at 24-31, Pummill, location. Cause No. CV-2011-82 (district court, Grady county, June 1, 2012). Wood has a lease-based oil predecessor. In Clark v. Slick Oil Co., 211 19. See id. at 21-27; Petition for Writ, supra note 13, at 7-9; Reply, supra P. 496 (Okla. 1923), the lease was a 1911 lease covering certain property note 13, at 3-4. Even the headings of Appellants’ briefs in the Supreme in the giant Cushing field. The oil royalty clause required lessee Slick Court limit this argument to Pummill’s “market price at the well” lease. Oil Company to deliver “to the credit of” the royalty owners its one- Petition for Writ, supra note 13, at 7; Reply, supra note 13, at 3. eighth share of the oil “free of cost, in the pipeline to which [the lessee] 20. Chieftain, 528 Fed. Appx. at 940-41. may connect the well or wells, . . . .” Id. at 497. The dispute concerned 21. Id. at 941-42. For the trial court’s reasoning, see Chieftain Royalty deliveries during part of 1914 and 1915, a time when oil production was Co. v. XTO, 2012 WL 1231837, slip op. at ** 4-5 (E.D. Okla. 2012), rev’d so flush that Slick Oil claimed to have been unable to secure a pipeline and remanded, 528 Fed. Appx. 938 (10th Cir. 2013). To the extent that the connection and instead to have had to store the oil. Id. at 497-98. trial court believed that it did not have to analyze individual issues Although the case primarily concerned Slick Oil’s argument that before certification because of the common payment practice, slip op. Clark’s acceptance of a posted price for a time modified the lease, at *5, saying this even while conceding that individual lease terms removing the “free of cost, in the pipeline” language, the facts gave the ultimately would have to be analyzed to decide whether any lease court an opportunity to discuss who bears the costs of paying to store abrogated the duty to market, id., the 10th Circuit was correct to oil and make it marketable. Slick Oil argued that the modified contract reverse and remand on that issue. made Clark bear these costs. Instead, the court held, “[i]t was just as 22. Chieftain, 528 Fed. Appx. at 942-43. much a part of the duty of the defendant [lessee Slick Oil] under the 23. Id. at 942. contract to prepare this oil for market so that it would be received by 24. Roderick, 725 F.3d at 1215-18. the pipe line company as it was its duty to pump the oil from the wells 25. Id. at 1218-19 & n. 4 (italics in original; boldface added). The or drill the wells.” Id. at 501. This is a contract-based holding on com- Oklahoma Supreme Court may have withdrawn the Fitzgerald court of mon oil royalty language that parallels the later implied decisions for appeals decision in part for raising objections that should not have natural gas. derailed class treatment of most of the class leases. The court of 35. 903 P.2d 259, 261-62 (Okla. 1994). appeals may have focused primarily on class counsel’s statement that 36. Id. at 262-63 (again rejecting Texas/Louisiana approach that “he and Chesapeake would have to litigate the meaning of the various costs of moving gas from wellhead to point of sale are deductible). lease terms,” Fitzgerald Court of Appeals Order, supra note 7, at 10 – a Although the court did not discuss the location of the pipelines in CLO, concession that suggests he did not adequately explain how the actual nor focus on where the challenged services including gathering were variation in class royalty-clause terms does not negate the implied provided, it did cite the Williams & Meyers definition that gathering is duty. But the court seems to have exaggerated the import of a single the process of moving gas from the wellhead to the pipeline buyer’s lease that apparently did authorize deductions, and of some leases that “principal transmission system,” id. at 262 (citation omitted), not just are subject to a pooling order. Id. at 10-11. These last two points might until connected to some small on-lease system. affect class definition, but should not be bases for denying certification 37. 954 P.2d 1203 (Okla. 1998). altogether. 38. Id. at 1204-10. 26. Petition for Writ, supra note 13, at 6 n.6, 7-9; Reply, supra note 13, 39. Id. at 1205. at 3-4. 40. See, e.g., the discussion in Mittelstaedt that seems to equate the 27. That the Pummill Appellants are really arguing for a Texas-type two locations: “We said that the lessee must make the gas available to rule can be seen by the cases they cited in their Petition for Writ, supra market on the leased premises (wellhead),” id. at 1206, even though the note 13, at 9 n.8, as well as before the trial court, Defendants’ Response, lease almost always is a significantly larger area than the wellhead. supra note 12, at 22-23. Their true substantive argument is that the court 41. Id. at 1208. should abandon the path it set out on in 1993 with its decision in Wood 42. Id. v. TXO, 854 P.2d 880 (Okla. 1993), a case discussed next in text. 43. Id. 28. The Pummill lease is a “market price” at the well lease, not a 44. Id. at 1210. “market value” lease, but courts (and the industry) generally use the 45. Id. two terms interchangeably. See, e.g., J.M. Huber Corp. v. Denman, 367 F.2d 46. Id. at 1209. 104, 107 n.5 (5th Cir. 1966), cert. denied, 352 U.S. 971 (1967). 47. The Mittelstaedt court cited its statement in Wood that it follows 29. 854 P.2 880 (Okla. 1993). the approach in Kansas and Arkansas, see supra note 31 & accompany- Wood came over two decades after Johnson v. Jernigan, 475 P.2d 396 ing text, and then added that it agrees with both the Kansas decision (Okla. 1970), a case that fits poorly with the trilogy that followed. Even Sternberger v. Marathon Oil Co., 894 P.2d 788 (Kan. 1995) and the Colo- though interpreting a “gross proceeds” lease, the Jernigan court seemed rado decision Garman v. Conoco, 886 P.2d 652 (Colo. 1994). Mittelstaedt, to distinguish costs for moving gas on the lease from “transportation” 954 P.2d at 1207-08. The only false note in Mittelstaedt on other states’ off the lease. Id. at 399. To the extent that its transportation holding law is its quite incorrect, unnecessary assertion that the Kansas reason- draws a line on deductibility at the lease line, little different from the ing is “consistent” with Johnson v. Jernigan. Id. at 1207. Texas-type rule, and does not distinguish gathering from transporta- 48. 394 P.2d 1, 4-5 (Kan. 1964).

380 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 49. The Schupbach dispute was over compression costs. Lessee 70. In Mittelstaedt, the court discussed the CLO services as com- Continental Oil separated gas on its leases and transported it to a cen- pression and dehydration, which is called “enhancement operations,” tral compressor station built off the Schupbach lease in order to com- and claimed that they took place at the wellhead. 954 P.2d at 1205. Yet press gas from multiple leases. Id. at 5. The court held that the off-lease CLO involved three services, compression, dehydration, and gather- location of the compressing did not make the costs deductible: ing, not just two, and the CLO decision does not indicate where any of [Continental Oil] constructed its compressor station at a central the services took place or rely on their location. (The Mittelstaedt court location on one of its leases and commenced compressing the gas may have been thinking of the paragraph stating that the sale occurred from its adjoining leases in the area . . . . [T]he fact that the com- at the mouth of the well, a statement in CLO that is part of its discus- pressor station was constructed under a business lease on the sion of Wood, CLO, 903 P.2d at 261. One factor making confusion likely Newkirk section is of little consequence. is that TXO is the lessee in both Wood and CLO, so references to TXO Id. The court noted that Continental did not consult the royalty have to be examined carefully before deciding which case the CLO owners on the location, size, or number of stations. Id.; see also Gilmore court is referring to.). CLO does discuss dehydration and gathering as v. Superior Oil Co., 388 P.2d 602, 606 (Kan. 1964). The Kansas Supreme services applied before the purchaser’s pipeline, id. at 262, but only Court observed earlier that year in another decision about this kind of abstractly, and with no indication of where the pipeline or services arrangement that the lessee’s choice to use a single large compressor came in CLO. station instead of small compressors at the mouth of each well does not 71. Wood, 854 P.2d at 881-82 (citation omitted). change the deduction equation. Gilmore, 388 P.2d at 604. 72. CLO, 903 P.2d at 262. 50. For this holding, see Rogers v. Westerman Farm Co., 39 P.3d 887, 73. Mittelstaedt, 954 P.2d at 1209. 905 (Colo. 2001)(“In looking to the first-marketable product rule for 74. For the claim that Oklahoma (as well as Kansas) classifies cost guidance in defining marketability, we must look to the practical impli- deductibility categorically by function as a matter of law, see Owen cations of such a rule. In defining whether gas is marketable, there are Anderson, “Royalty Valuation: Should Royalty Obligations Be Deter- two factors to consider, condition and location. First, we must look to mined Intrinsically, Theoretically, or Realistically?” Part II, 37 Nat. Res. whether the gas is in a marketable condition, . . . . Second, we must look J. 611, 664-65 (1997). Anderson’s article was published the year before to location, that is, the commercial marketplace, to determine whether Mittelstaedt issued, so it is understandable why he construed Oklaho- the gas is commercially saleable in the oil and gas marketplace”). ma law this way. He did not have the court’s factual treatment of off- 51. For the leading West Virginia decisions, see Wellman v. Energy lease services before him. Resources, Inc., 557 S.E.2d 254 (W. Va. 2001) and Estate of Tawney v. 75. Mittelstaedt, 954 P.2d at 1208. Columbia Natural Resources, LLC, 663 S.E.2d 22 (W. Va. 2006). 76. Id. 52. See Wood, 854 P.2d at 881, 883, cited in CLO, 903 P.2d at 261 and 77. Id. at 1210. Mittelstaedt, 954 P.2d at 1207. This conclusion that lessees need to say 78. One author has noted the tension between CLO’s holding and so explicitly in the lease if they intend to deduct post-production costs its statement of support for Jernigan, claimed that a “strong argument of marketability accords with Professor Merrill’s view. It is Merrill who can be made” in Oklahoma that nondeductible gathering is limited to also emphasized that any right to take deductions must be very clearly on-lease gathering, but realistically conceded that Oklahoma law may stated: “ . . . it is erroneous to read into the royalty clauses stipulations make gathering nondeductible even when off the lease, Noulles, “Post- concerning the cost of marketing and preparation which are not spe- Production Movement,” supra note 9, at 3, 5, as Oklahoma surely does cifically expressed.” MERRILL, supra note 32, at 216. in most situations. 53. Roderick, 725 F.3d at 1219. The Oklahoma Supreme Court also would do well to clarify that in 54. On Appellants’ global use of its “assuming (without decid- general, a “gross proceeds” lease, even if at a “prevailing market rate,” ing”)” argument, see supra note 13 & accompanying text. requires gross proceeds without deduction. For a recent mainstream 55. Summary Judgment Issue II, supra note 13, at 10. decision on what the term “proceeds” means, see the Kansas Supreme 56. See generally Petition for Writ, supra note 13; Reply, supra note 13. Court decision in Hockett v. Trees Oil Co., 251 P.2d 65, 71-72 (Kan. 2011). 57. Petition for Writ, supra note 13, at 6-7. It is a mistake to read Tara In 1970 it may have been correct that in the field in Jernigan, a “market v. Petroleum Corp. v. Hughey as authorizing the lessee to pay just any rate” was “the rate at which gas is commonly sold in the vicinity of the first-purchaser’s price, as Appellants do; the first purchaser has to pay well,” Johnson v. Jernigan, 475 P.2d 396, 398 (Okla. 1970), and that local the “best price and term available to the producer at the time . . . .” Tara sales determined the “market rate.” But since gas deregulation, there Petroleum Corp. v. Hughey, 630 P.2d 1269, 1273 (Okla. 1981). are many fewer sales at the well and the “market rate” or going rate for 58. Defendants’ Response, supra note 12, at 8, 16-17, 31 n.9. natural gas is the rate paid at downstream, after-the-plant locations, 59. Chieftain, 528 Fed. Appx. at 940-41. often with a premium for large volumes of gas. Moreover, Oklahoma 60. Id. at 943; see also Roderick, 725 F.3d at 1219. rejected the idea that “market value” is a separate value from “pro- 61. In Fitzgerald, the court of appeals found that marketability ceeds” in Tara Petroleum Corp. v. Hughey, 630 P.2d 1269 (Okla. 1981)(see implicated individual questions. Fitzgerald, slip op. at 11-12. But it went supra note 80 infra). beyond that. While at one place it stated that different services from a 79. On gathering generally, see Mittelstaedt, 954 P.2d at 1208. For a particular well “may or may not be necessary and may or may not be contrary argument that gathering should be treated as indistinguish- charged to the lessor,” id. at 11 (emphasis added), thus appearing to able from, and an integral part of, mainline transportation, see Noulles, merely present this as an open, disputed fact issue, elsewhere it stated “Post-Production Movement,” supra note 9, at 4. that the amount of deductions “is affected by the services necessary to 80. In Tara Petroleum Corp. v. Hughey, 630 P.2d 1269, 1272-75 (Okla. make gas from a particular well or gathering system marketable” and 1981), Oklahoma rejected the Texas rule in TXO v. Vela, 429 S.W.2d 866 that “deductions will vary depending on the field and [lessee’s] sales (Tex. 1968), that market value requires an analysis of market transac- contract, . . . ,” id. at 11,13 (emphasis added), in this way seemingly tions outside the lessee’s sales. In Oklahoma the lessee’s sales set adopting Chesapeake’s position on this issue. The precise amount that market value in the ordinary case. The author has criticized the Texas different services cost may vary across this 75,000-lease, 1,100 field rule and the edifice the Texas Supreme Court has built upon it in John class (or it may not: lessees often charge a postage-stamp rate), but the Burritt McArthur, “A Minority of One? The Reasons to Reject the Texas amount of costs usually are undisputed. They ordinarily can be taken Supreme Court’s Recent Abandonment of the Duty to Market in Mar- from computerized lessee records. The fight is over the point of ket-Value Leases,” 37 Texas Tech. L. Rev. 271 (2005). deductibility, a point in the chain of field services that need not vary by 81. On how Appellants sold their gas, see their description in Peti- well, field, or sales contract. tion for Writ, supra note 13, at 2-3; and the trial court’s very detailed 62. Mittelstaedt, 954 P.2d at 1208. factual explanation of the deductions taken by Operator Cimarex on 63. Id. behalf of Appellants and how those deductions changed in Summary 64. Abraham v. BP, 685 F.3d 1196, 1200 (10th Cir. 2012)(citation omit- Judge Issue II, supra note 13, at 3-4, 6-9. ted). 82. Jernigan, 475 P.2d at 398 (“Market rate implies the existence of a 65. MCARTHUR, supra note 3, ch. 6.B. Texas is a partial exception. free and open market of supply and demand where there are willing See id. ch. 6.C. sellers and buyers.”). 66. 475 P.2d 396 (Okla. 1970). 83. In Howell v. Texaco, 112 P.3d 1154, 1160 (Okla. 2005), the Okla- 67. This confusion has its roots in the court’s failure to describe the homa Supreme Court, citing Tara Petroleum Corp. v. Hughey, 630 P.2d change that Wood and its successors made from the standard in Jernigan. 1269, 1275 (Okla. 1981), articulated the rule that “[w]henever a pro- 68. Jernigan, 475 P.2d at 398; for more discussion of Jernigan, see ducer is paying royalty based on one price but it is selling the gas for supra note 29. a higher price, the royalty owners are entitled to have their payments 69. Mittelstaedt, 954 P.2d at 1205 (discussing operations “required to calculated based on the higher price” and added that “[w]e hold that make the gas marketable” as “enhancement” operations). Compare the an intra-company gas sale cannot be the basis for calculating royalty use of “enhance” in Garman v. Conoco, 886 P.2d 652, 660-61 (Colo. 1994 payments.” It is hard to believe the court really meant to disqualify en banc). every intra-company value, because companies might use a true mar-

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 381 ket value or their proceeds in arms-length sales, to set internal prices. cessing services and for processing. For the period beginning in May The court’s point presumably is that there needs to be an independent 2008, Cimarex retained its preprocessing “Service Agreement” with source of value for the royalty. It cannot be that two employees of the Enogex and absorbed the fees itself, but Enogex still received the liq- same company sitting in a room and agreeing upon an internal price uids “uplift.” Id. at 8. In February 2012, Cimarex changed the process- or, worse, as happens more than one would expect, one person acting ing arrangement so that Enogex now paid it on NGL value, but minus for both companies simply filling in a price or price formula, is what a cash fee and gas used as fuel in the processing plant. Id. at 8-9. courts mean when they talk about market transactions. Cimarex charged these new fees proportionately to the royalty owners. 84. Mr. McArthur has summarized the history of gas deregulation in Id. at 9. Appellants claimed that beginning in April 2012, they began “Antitrust in the New [De]Regulated Natural Gas Industry,” 18 Energy L. sharing revenues on their NGL sales with Plaintiffs. Defendants’ Jo. 1, 17-32 (1997). For a contrary view, arguing that the locus of gas Response, supra note 12, at 9-10. deductions should be the well even if markets now are downstream of 95. See supra note 13. that point, see Noulles, “What Is Required?,” supra note 9, at 3-4. 96. Pummill is a bad case for Appellants to raise a POP issue. They 85. For samples, see the industry documents described by Judge never sold their gas at the well. Instead, they hired the midstream Dickinson in Parry v. Amoco, 2003 WL 23306662, slip op. at * 16 (Colo. company Enogex to compress, partially dehydrate, gather, process, D. Ct. Oct. 6, 2003). further dehydrate, and further compress their gas before it is turned 86. A number of authorities have noted the lack of merit in efforts over to the Operator, Cimarex, one of Appellants, at the tailgate of the to value oil or gas based on isolated local sales. Justice Roberts, before processing plant. Summary Judgment Issue II, supra note 13, at 3-4. he became Chief Justice of our highest court, held in a coal-seam Cimarex then sold the gas on behalf of Appellants. One isolated lessee, deduction case involving federal leases that it makes little sense for Bloch Petroleum LLC, did sell its gas to Enogex at the well on a “per- sales of lesser volumes to control treatment of the much larger down- centage of proceeds” basis, but it settled with the lessors by paying stream sales, Amoco v. Watson, 410 F.3d 722, 730 (D.C. Cir. 2005), aff’d on them full damages and admitted in its Answer that it did not dispute other grounds sub nom. BP Am. Prod. Co. v. Burton, 549 U.S. 84 (2006), the the plaintiffs’ factual allegations or their legal position. Id. at 4-6. larger sales being into an interstate market that usually is the reason Apparently because of sales like Bloch’s, Appellants called Enogex’s the field was developed in the first place. For older federal precedent, pipeline a “purchaser’s” pipeline, Petition for Writ, supra note 13, at 7 see the discussion distinguishing “‘marketing’” from “merely selling” n.6, even though they did not sell any of their gas into that pipeline, in California Co. v. Udall, 296 F.2d 384, 387-88 (D.C. Cir. 1961)). It is in this which was used to provide marketability services to them. sense that it was rational for a Colorado jury in Rogers v. Westerman to 97. Petition for Writ, supra note 13, at 9-10; Reply, supra note 13, at 4. find that even if gas sold at the well was marketable there, the remain- 98. The Parrish lease requires payment from each gas well on “all ing unsold gas was not. Rogers v. Westerman Farm Co., 29 P.3d 887, 894 gas used off the premises”; the Pummill lease on all gas “used off the (Colo. 2001). Judge McAnanay, of the Kansas court of appeals, has premises, or used in the manufacture of any products therefrom . . . .” wisely pointed out that given that “there is some point on every Summary Judgment Issue III – Fuel Gas (Aug. 24, 2012)(granting par- [demand curve] where somebody would be willing to pay for the tial summary judgment that Defendants owe royalties on gas used in item,” the idea of an abstract marketability is “superfluous.” Fawcett v. gathering systems and in the plant). “Manufacture” is older language Oil Producers, Inc., 306 P.3d 318, 327 (Ct. App.)(McAnany, J., concur- used to describe processing. ring), rev. granted (Kan. S. Ct. Dec. 27, 2013). Indeed, without some 99. Appellants did not mention the “used off the lease clause’ in their definition, the idea is meaningless if any sale at all, at any price, estab- initial brief. See Petition for Writ, supra note 13, at 9-10. In their Reply, lishes that a product is marketable. they claimed that the clause would not apply to off-lease use “by a third In contrast, the idea that “[g]as can be marketable at the well if the party purchaser,” Reply, supra note 13, at 4, a position that seems odd gas is of a type commonly sold in the vicinity of a well,” Noulles, when Enogex was acting as a field-service company to them, not as a “What Is Required?,” supra note 9, at 5, even if no sale occurs there, third-party purchaser, and it was using the gas on their behalf. encourages basing value on hypothetical instead of actual sales. 87. 2003 WL 23306663 (Colo. D. Ct. Oct. 6, 2003). 88. Id. at ¶¶9-12 (citing Rogers v. Westerman Farm Co., 29 P.3d 887, 905-12 passim). About The Author 89. Id. at ¶¶14-20. 90. Id. at ¶19. 91. Appellants did not maintain their fourth point of error, con- John McArthur is based in cerning statutory interest, so the Supreme Court did not address it. Berkeley, Calif. and is licensed in Supreme Court Remand Order, supra note 10, at 2. 92. Petition for Writ, supra not 13, at 2, 9-10; Reply, supra note 13, at 4. Texas, California and Alaska. He 93. In their summary judgment response, Appellants claimed that has handled energy and other Cimarex “[s]ince its creation in 2002” had followed a “conservative” policy of not deducting most field service costs. Defendants’ Response, commercial cases for 31 years. He supra note 12, at 9, 13-14. has served as arbitrator and 94. The arrangement between Cimarex and Enogex was complex, changing as it did in the middle of the class period, but it was undis- expert in many oil and gas cases. puted and the trial court put it in the record in its Issue II summary Mr. McArthur has a Ph.D from judgment order. For the Cimarex/Enogex gathering and processing arrangements before May 2008, see Summary Judgment Issue II – the University of California (Berkeley) and received Form of Contract, supra note 13, at 6-7. Cimarex, acting for all Appel- his J.D from the University of Texas School of Law. lants, once had deducted all of the fees it was charged, but in 2012 it He has published many articles on legal and eco- notified the court that it would refund the cash fees and the fuel gas fee, leaving aside only a 5% deduction of the gas heating value and the nomic aspects of the oil and gas industry. NGL value. Id. at 7-8. It contracted separately with Enogex for prepro-

382 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 BAR NEWS

OBA Pilot Project to Reach Out to Less Advantaged Students By Lori Rasmussen

“Who wants to be a million- pation in Oklahoma’s Promise aire?” is the theme of a brand were identified and selected as new OBA outreach effort tar- the sites for school assemblies geting students likely to have where the benefits and require- trouble paying for college. The ments of Oklahoma’s Promise theme highlights the statistic will be explained. The OBA showing workers with a col- has partnered with the Okla- lege degree make on average homa City Thunder and Sonic up to $1 million more in their Corp. to expand the project’s lifetimes than those with a high school-only appeal. Students who attend the assemblies education. The project consists of con-centrat- will receive an officially licensed OKC Thunder ed efforts to promote the Oklahoma’s Promise backpack. The backpacks will be filled with scholarship program, which offers free college information for the parents along with a pro- tuition to qualifying students. gram application. Once a student has signed up, his or her family will receive a $20 Sonic The promotion project was conceived by gift card. Supreme Court Justice Tom Colbert, and its development began under 2014 OBA President “We are also partnering with our county bar Renée DeMoss. 2015 President David Poarch associations to make this program a success,” has identified it as one of his top agenda items said Mr. Poarch. “Completing necessary paper- during his leadership year. work and providing tax information can often be a daunting challenge for families. Volun- “Fostering higher education among our teers from the local bars will be on hand during state’s citizens is an important mission for the bar,” said Mr. Poarch. “An educated populace is more likely to understand our system of govern- ment, including its three distinct branches. Our fair and impartial judicial system depends on the preservation of an independent third branch and on citizens who grasp its importance.” The Oklahoma’s Promise program is admin- istered by the state Regents for Higher Educa- tion. Requirements are straightforward: A stu- dent’s family income may not exceed $50,000 per year. Students must enroll in eighth, ninth or 10th grade and must maintain a 2.5 GPA. They must also stay out of trouble and take the required college prep classes. The bar’s pilot project will provide detailed information about Oklahoma’s Promise to tar- geted students. Four schools with low partici-

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 383 parents’ nights to assist with the process. Law- yer participation will ensure that these kids get enrolled in the program and get on track for Volunteer Opportunities education and career success.” Volunteer lawyers will be needed to assist Assemblies are currently scheduled at Clin- parents with sign up at the following dates ton Middle School, Seminole Middle School and locations: and Douglass Mid-High in Oklahoma City. A date will be set soon for a presentation at Tulsa Feb. 17 from 4-7 p.m. at Clinton Middle Central Junior High School. Bar leaders and School; contact Luke Adams, 580-323-3964. school personnel will be making presentations Thanks to those Custer Country Bar members to students; volunteer lawyers will be needed who have already signed up! to work with parents to assist with signup. Though the project is currently planned for Andy Carruth Richard Phillips just four cities, its success will determine Juan Garcia Judge Jill Weedon whether it should be expanded statewide. Because the bulk of the funds to implement the March 3 from 5:30-8 p.m. at Douglass Mid- project are coming from corporate donations, High; contact Debbie Gorden, executive the bar’s financial commitment is low — but director, Oklahoma County Bar Association, huge dividends could result. 405-236-8421. “When students complete college, they are March 9 from 4-7 p.m. at Seminole Middle far less likely to be involved in drugs or crime,” School; contact Seminole County Bar Asso- said Mr. Poarch. “They are far more likely to ciation President Vic Kennemer, 405-257-3304. raise their families in healthy environments. Date to be determined at Tulsa Central They get involved in their community. Every- Junior High – contact Kevin Cousins, execu- one wins.” tive director, Tulsa County Bar Association, 918-584-5243. Ms. Rasmussen is OBA assistant communica- tions director.

384 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 LEGISLATIVE NEWS

Legislative Monitoring Committee Kicks Off Its Efforts By Duchess Bartmess

The first session of the 55th came from the participants in Oklahoma Legislature has OBA Legislative Reading begun its work, and the Legis- Day. This year that meeting lative Monitoring Committee was held on Saturday, Jan. 31. is beginning its work. In excess The meeting was attended by of 2,000 bills and joint resolu- Legislative Monitoring Com- tions that can potentially mittee members, committee become law have been intro- and section members and duced for consideration and other interested OBA mem- action during this session. bers. As with past meetings, the purpose was to recom- All introduced measures mend which introduced bills are not necessarily of signifi- and joint resolutions should cance to the practicing Okla- be reviewed and tracked by homa lawyer. The criteria for the Legislative Monitoring review of proposed legisla- Committee. tion remains clarity of lan- guage, compliance with con- It was a very productive stitutional mandates and con- meeting. Several of the par- cerns regarding potential ticipants commented that unintended consequences. they received new and help- The Legislative Monitoring ful information on the legis- Committee tracks only those measures recom- lative process and the importance of following mended to them. Only those measures which significant legislation as it progresses through will have the full force and effect of law are con- the legislative process. In addition to being a sidered. The introduced measures which will part of the decision-making process regarding not be reviewed and tracked without special bills and joint resolutions to be read, reviewed request are: and tracked throughout the session, partici- pants were provided with lunch and received • simple resolutions CLE credit. • concurrent resolutions • measures naming roads, bridges and Each year a number of lawyers interested in highways potential new laws or changes to existing laws • appropriations and budget measures take the time and opportunity to participate in • sunset measures and this hands-on meeting. Participants worked in • state retirement systems measures. small groups by general area of practice. The groups were divided into general categories The recommendations are based on the sig- that correspond to the committee’s subcommit- nificance of the bill or joint resolution to the tees, which are: practice of law and the administration of justice. Business Law Issues The bulk of recommended measures that will Civil Law Issues be reviewed and tracked during the session continued on the next page

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 385 Criminal Law Issues Family Law Issues General Government Issues Natural Resources Issues Property Law Issues. Plan to attend This article was written two days after the Legislative Reading Day, so the lists of mea- OBA Day at the Capitol sures to be reviewed and tracked by the Legis- lative Monitoring Committee were not com- Tuesday, March 24 pleted. However, the following introduced measures are a sampling of the introductions which serve to demonstrate the wide range of subject areas being considered this session and reviewed by the OBA Legislative Reading Day groups. and a Watch List contains 505 bills. The watch list will be updated weekly. Plus, coming soon SB 768 Repeals provisions in Title 74, State are shorter lists focused on practice areas. Government, which established an advisory committee to the Legislature and the governor Both lists are informational only and are not designated commissioners of the state of Okla- a statement of support or opposition for any homa to the National Conference of Commis- items. The lists are not intended in any way to sioners on Uniform State Laws. be a statement of OBA policy or to be inclusive of every issue that might affect the practice of SJR 28 Adds a new section 7A to Article 23 of law in Oklahoma. the Oklahoma Constitution, Miscellaneous, limiting recovery of damages or claims against Also on the OBA’s legislative report webpage an insurer for liability for motor vehicle acci- are links to the Legislature’s website to track dents if claimant is not in compliance with the bills and how to contact your legislators. compulsory insurance law. OBA DAY AT THE CAPITOL HB 1056 Adds two new sections of law to Title Even if you were unable to attend the 2015 18, Corporations, creating a “Shareholders Bill Legislative Reading Day, there are still oppor- of Rights Act.” tunities to become informed on pending legis- HB 1119 Adds a new section of law to Title 36, lation. All OBA members are encouraged to Insurance, relating to title insurance creating come to Oklahoma City to participate in OBA definitions relating to recording and release of Day at the Capitol on Tuesday, March 24. mortgages. This is a great opportunity to meet and speak HB 1050 Amends section 753 of Title 47, Motor to your senator and representative regarding Vehicles, to require court order before person issues important to you. Lunch will be pro- under arrest refusing to submit to test for vided at the bar center for attendees. An RSVP determining alcohol concentration in breath or is required. Email [email protected] or call blood except in cases of serious personal injury Debbie Brink at 405-416-7014; 800-522-8065 to or death. add your name to the list. So, put this date on your business calendar and come and partici- HB 2199 Adds a new section to Title 12, Attor- pate — let your voice be heard. neys and State Bar, titled “Lawyers Right to Work Act.” About The Author MORE INFORMATION ON PENDING BILLS Ms. Bartmess practices in Okla- homa City and chairs the Legisla- Based on recommendations from the Legisla- tive Monitoring Committee. She tive Monitoring Committee and other OBA can be reached at duchessb@ Reading Day volunteers, two lists containing swbell.net. short bill summaries have been compiled and are available online at www.okbar.org/ member/Legislative. A Sampling of Pending Legislation contains 62 bills of general interest

386 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 FROM THE EXECUTIVE DIRECTOR

Legislature Files New Measures to Change or Eliminate the Judicial Nominating Commission By John Morris Williams

On New Year’s Eve in 1879 good job of selecting people of Thomas Edison unveiled his integrity to serve on our highest version of the incandescent light courts. Those who wish to elimi- bulb. This invention had a pro- nate or politicize the JNC have found effect on the world. Edi- no regard for the quality of the son’s light bulb was the first applicants. There is an assump- source of dependable light that tion that if one can campaign did not include an open flame. well enough or has enough The story gets complicated after political capital, that person can that, with the development of be a qualified judge or justice. power grids, generating plants, The obtaining of the bare qual- electric transmission lines and ifications to be a judge or justice the debate of direct current ver- does not make one the most sus alternating current. A single qualified. Edison did not invent invention, a good idea, has had electricity. What he possessed profound results. It started as a was the innate problem-solving means to bring a little light into ability to create a device to shed the world — and ended up with some light without burning most of the world being wired down the house. The purpose and using that wiring for many of the JNC is to select the most other things besides powering a qualified applicants who possess light bulb. the ability to shed some light on In 1967 the people of Oklaho- serious legal issues without ma were introduced to a new The very regard to politics and politicians. concept. After three years of To have it any other way would struggle and debate, the concept touchstone of our create a device that surely of taking elections and politics democracy is under would burn down the house of out of our courts was put to the justice and the Constitution. people. While the result left trial attack. Yes, I mentioned the Constitu- judges on the ballot for popular tion. Both the United States and elections, at least they were non- Oklahoma Constitutions contain partisan. A single innovation, a courts that has the greatest a due process clause. Countless good idea, has had profound safeguards against public opinions have affirmed that the results. The creation of the Judi- corruption. primary touchstone of due cial Nominating Commission The best safeguard against process is a fair hearing. A fair started as a means to clean up a public corruption is picking the hearing does not mean a perfect bribery and corruption scandal right people. The JNC for close hearing. It does not mean a and ended up creating a judicial to 50 years has done a pretty hearing where an error may not selection system for our highest continued on the next page

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 387 be made. A fair hearing is a pose to change and politicize that all our homes are illuminat- hearing that when you walk into our system have done so. It ed by electric light bulbs. Some- the courtroom, the facts and the appears that the result is so how everyone learned that open law will be heard and a decision clearly desired that the facts and flames are more apt to burn reached based upon those two the law do not matter. The law down the house. There is an things and nothing else. I would requires a fair hearing. The facts even greater irony that the place submit that a decision influ- show that bribes disguised as that experienced the greatest enced by campaign contribu- “campaign contributions” result- judicial scandal in the history tions, or threats of retribution or ed in the biggest judicial scandal of our nation wants to return to promises of large contributions in the history of the United the open flame of a politicized in the next popular election, is States. The facts show that since judiciary. not a fair hearing. Yes, I said it. we stopped having contested The very touchstone of our appellate judge elections, we democracy is under attack. stopped having judicial bribes at that level. I have read the reports and the transcripts of the Oklahoma IRONY EXISTS Supreme Court scandal of the To contact Executive Director There is a certain irony that in 1960s. None of those who pro- Williams, email him at johnw@ a place blessed with natural gas, okbar.org.

Traveling Tribal Judge Specialty Court The Kaw Nation is seeking candidates for a part-time Specialty Court Judge, who will preside over cases involving domestic violence and sexual assault cases. Qualifications for this position include: Juris Doctorate from an accredited law school, together with an additional three years related experience is required. Qualified candidates will have the ability to identify, interpret and apply legal principles and precedents to difficult legal problems and must be able to concisely and accu- rately communicate, both orally and in writing. Candidates must have judicial experience handling domestic violence and sexual assault cases. The successful candidate will be required to learn tribal laws and customs unique to the Kaw Nation and must be able to establish and maintain an effective working relationship with others. Candidates must be a member in good standing of the bar of the Supreme Court of the United States, or of any United States Court of Appeals, or of any District Court of the United States, or a member in good standing of the bar of the highest court of any state of the United States and need not be a citizen of the Kaw Nation. Background checks and drug tests will be administered. Candidates must have a valid driver’s license, malpractice insurance and the eligibility to be insured under by the Kaw Nation’s insurance policies is required. Applications can be found at http://kawnation.com/?page_id=151 or contact Human Resources at the Kaw Nation, (580) 269-2552 for a list of documents required for consideration. Position is open until filled.

388 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 LAW PRACTICE TIPS

Uniformity vs. Creativity By Jim Calloway

COMES NOW the writer, and judge somewhere in the dicta law issue and I am not com- for his February Law Practice of a dissenting appellate opin- menting on it. (See? I do it, too.) Tips column in the Oklahoma ion suggest that the omission of The perfectly good rational- Bar Journal alleges and states a certain word would change ization is “what harm can an as follows. the result and, over the next additional word meaning several months, that particular That is lawyer-speak for essentially the same thing word will find its way into “Greetings.” I recall during law inserted into a series do?” But more and more documents school when I was working for the same thought can then drafted by lawyers. That it was a law firm, I asked an experi- apply to adding a few addition- the dissent really does not mat- enced lawyer why we started al clauses or sentences. Fast for- ter because we lawyers all won- all pleadings with “COMES ward several years and a con- der if that thought could turn NOW the Defendant” when the tract that some say “should” into a majority opinion some- pleading already had a title like only be a few pages becomes a where someday. “Defendant’s Motion for Sum- 20-page contract and the costs mary Judgment.” The response, of several lawyers and client which will surprise no lawyer, representatives reviewing the was some version of because contract carefully is an expense that is how it has always been …sometimes which has now increased. The done. lawyers properly point out that our zeal for the more detailed the contract I understand that many law- the better it protects the parties yers now omit “COMES NOW” perfection and to the contract. from their pleadings. But I also note that it took a court rule protecting our But we have to recognize change to get lawyers to stop client’s interest a competing value today is using legal size paper for their appreciation of brevity and the pleadings in Oklahoma courts. can lead to ongoing time-management challenges that both lawyers The study of law involves interesting and clients feel. How many great focus on legal precedent. times have you found an article The late University of Oklaho- results. of interest but only made time ma professor Dwight Morgan to read the opening executive in my civil procedure class summary? described the law as a great So we lawyers find ourselves bird flying forward that only in the position of using three or Lawyers’ creativity is navigates by looking backward. four words when perhaps one unbounded when negotiating a I’ve quipped before that only would do. You know the exam- deal, but when the documents works if there’s not a new wall ples well. are prepared, they are unlikely in front of the bird. Certainly to be so creative. Following the • “grant, bargain, sell and good lawyers look forward as standard path and using the convey” well as backward. traditional language protects •“give, devise and bequeath” everyone against an unforeseen But sometimes our zeal for outcome. perfection and protecting our This is not to suggest any of client’s interest can lead to those words should now be In a blog post last summer, I interesting results. Let some omitted. That is a substantive asked, “What if the clients

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 389 decided to provide the tem- 1 plates for their legal work?” OBA MAP Online Reading Recommendations That thought grew out of a resource posted online by the My column in the January/February Law Practice magazine is titled National Venture Capital Asso- “It’s Time to Love Technology.” And, for lawyers, it really, really is. ciation. They made their model http://goo.gl/nLHq31 legal documents for venture Also of great interest in that issue of Law Practice magazine is capital financing freely avail- “11 Tips on How to Cease Representing a Troublesome Client” by able for anyone to download legal ethics guru Michael Downey. http://goo.gl/SS8Uvo and use. Among these are cer- tificate of incorporation, indem- “Five Thoughts on the Future for Solo and Small Firm Lawyers” nification agreement, investor was my contribution to Attorney at Work’s “Friday Five” series. Surely rights agreement, management every lawyer understands the need to think about and plan for the rights letter, model legal opin- future. http://goo.gl/cC2Ju9 ion, right of first refusal and co- “Facing up to the challenge: It’s sale agreement, and stock pur- time to prepare law students for chase agreement. their profession” is the title of a pro- As the NVCA noted on their vocative piece in the ABA Journal’s webpage at the time: “The New Normal” section. The author, Michael Roster, is a former “By providing an industry- managing partner of Morrison & embraced set of model doc- Foerster’s Los Angeles office and co- uments which can be used chair of the firm’s financial institu- as a starting point in ven- tions practice group worldwide. ture capital financings, it is http://goo.gl/Md0l5d our hope that the time and cost of financings will be greatly reduced and that hours that lawyers spend in they feel they can have more all principals will be freed repetitive proofreading, certain- freedom and be more creative. from the time-consuming ly many lawyers would make But let me share with you one process of reviewing hun- that tradeoff. of the most common com- dreds of pages of unfamiliar plaints I hear from law firm Somewhere at least one law documents and instead will staff, working in law firms of be able to focus on the high firm no doubt responded to the NVCA standard template forms all sizes. It is about the lack of level issues and trade-offs uniformity. They don’t neces- of the deal at hand.”2 by saying “We’re not doing that. We can only guarantee the sarily use that word but they Their point is simple. If quality of our work and our mention the concept to me everyone in the venture capital representation of you by using repeatedly. community started from these our processes, not by filling in • “We have to set up the files forms, they would be much the blanks on forms provided one way when they are easier to read and review for by others.” Interesting discus- Bob’s clients and a totally everyone. One could see a time sions no doubt followed. But different way when they are when negotiations also would certainly lawyers contributed to Fred’s clients.” be made more efficient by those templates from NVCA. everyone starting with the • “We can’t cross train any- UNIFORMITY CAN BE A same document. (e.g. “We pro- body to cover for vacation GOOD THING pose to modify standard para- or illness because Mary graph 14 by adding X and Y.”) So you may ask what does insists that her matters be this mean for you? Your clients handled differently than This type of uniformity could are not going to create any everyone else in the law save this client community a lot online template sharing group firm.” of money. It also could decrease and ask you to participate. revenues for the law firms that • “Jim doesn’t handle a cer- did this type of work on an Many solo and small firm tain type of matter frequent- hourly basis. But if that de- lawyers enjoy not being a part ly, but when he does we crease was from reducing the of a larger enterprise because have to go search in his

390 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 old files because he wants tion. There is simply no reason her practice. The title of the things done differently than for client files to be set up and profile was “Why Being Brutal everyone else in the law managed differently for each is Best: A Solo Attorney on Effi- firm.” individual lawyer. You are ciency”5 and the theme was that missing out on one of the bene- small firm lawyers have to be • “We have five lawyers in fits of being in a law firm by brutal in their pursuit of effi- the firm and so we have not standardizing. There may ciency. I couldn’t agree more. to use five different forms be very good reasons for client You want to take time while as the starting point for file setup to differ for different counseling your clients and drafting a relatively routine types of legal matters. But even when making important stra- document.” then there should be some stan- tegic decisions. But lawyers • “Deadlines and timelines for dardization. It’s in your best should be brutally efficient legal assistants are com- interest for every staff person to with office information process- pletely different for similar be able to assist any lawyer in ing and managing client data. projects, depending on the an emergency. Automating and improving lawyer.” If there are different basic day-to-day operations should Sound familiar? It sounds internal forms used as docu- free the lawyer to have more familiar to every law firm con- ment drafting starting points, time to communicate with the sultant and many law firm then it is time to start ironing clients and to focus the law- administrators. out those differences. Differenc- yer’s expertise on the high es in substantive provisions value work of creatively solv- Pam Woldow and Doug Rich- should be discussed and ing problems for the client. ardson co-authored the book resolved, leaving the final work Uniformity can sometimes be Legal Project Management in One product as the best that all of the antithesis of creativity. But Hour for Lawyers for the Ameri- the lawyers combined have to done correctly in a law firm set- can Bar Association. They offer your clients. recently did a blog post titled ting having uniform policies, “LPM for Associates: The View This may sound like a small procedures and documents, from Ground Level.”3 They thing and a low priority. But it uniformity can improve your included the observation that is really quite significant. The creativity and improve the legal one of the major frustrations future of law firms involves services delivered to the client. that law firm associates experi- better legal project manage- And it might start with some- ence is “the need for every ment and process improve- thing as simple as a group deci- partner to have things done ment. Automating repetitive sion on whether the firm keeps in his or her own unique way. tasks is one way to improve COMES NOW or jettisons it. In the workshops, associates efficiency, and law firms will reported frequent false starts, find themselves involved in Mr. Calloway is OBA Manage- do-overs, write-downs and automation projects. You can- ment Assistance Program director. dressing-downs resulting from not afford to set up five differ- Need a quick answer to a tech a lack of consistency in how ent pathways of automation problem or help resolving a man- their work is assigned, man- when only one is needed. agement dilemma? Contact him at aged and measured. They 405-416-7008, 800-522-8065 or Recently the LexisNexis Busi- loved the uniformity (of even [email protected]. It’s a free member ness of Law Blog profiled OBA some of the basic steps) that benefit! Law Office Management and LPM (legal project manage- Technology Section Chair Cher- ment) can offer.”4 1. http://goo.gl/yT7CVu yl Clayton who practices in 2. Id. 3. http://goo.gl/b8T6Ys If your law firm suffers from Noble. The profile outlined Ms. 4. Id. the “every lawyer does it differ- Clayton’s incorporation of the 5. http://goo.gl/qSuAdX ently” syndrome, it is time to LexisNexis practice manage- start the road to standardiza- ment solution TimeMatters into

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 391 ETHICS & PROFESSIONAL RESPONSIBILITY

Ethics Highway 1 By Travis Pickens

As Oklahoma lawyers, I of the disciplinary cases are the set of school zones and speed promise each of you has the result of middle-aged behavior traps. You must trust that the gift of lawyering. It is too long and thinking after a few hard Office of General Counsel and and arduous a process to crunching decades in the our Supreme Court are looking become a lawyer for you not to world, not that of a new law- first to protect the public, not possess a unique set of skills yer. As time goes on, many of take away your license. You and intelligence. I have been in us face addictions, anxieties, must choose well your fellow this job five and a half years disappointments, depressions, travelers, your colleagues and and spoken to thousands of reversals, indiscretions, frustra- your clients. You must pull lawyers, and not once have I tions, infuriations and other over at times to savor what you come away with the sense that traps that are along the danger- are passing through; it is often the lawyer somehow fooled the ous winding road of a profes- a gorgeous view. And when law schools’ admissions officers sional life. you arrive at your destination or our Board of Bar Examiners. many, many miles and cases Indeed, a lawyer’s life is hence, you will have been on a Lawyers don’t go to law often like California’s Highway journey that very few others school to become criminals. A 1; there are miles of stunning are privileged to have. Safe professional life is a long slog, ocean vistas framed by water- travels. and we must perform at a very painted beaches and a lumi- high level for an extended time, nous sky, but to see it you must Editor’s note: Travis Pickens typically several decades, often hew to a zig-zagging two-lane resigned as OBA ethics counsel with some very difficult clients. road with no shoulder along in January and has returned to Unsurprisingly, I have seen the edges of steep cliffs tower- private practice. The position is several lawyers lose their way ing above jagged rocks and currently vacant. and it is often because of this crashing waves hundreds of that their names end up at the feet below. top of a case before the Oklaho- About The Author The important thing to ma Supreme Court in a disci- remember on our shared high- Travis plinary proceeding. They are of way of professional life is that Pickens is a course not bad people; typical- because of what you have lawyer in pri- ly, they are exceptionally good accomplished and who you are vate practice people. They were excellent as a person, you deserve to be in Oklahoma students and were examined as here. Remember also that the City. He to character and fitness before most difficult challenge after served as they were granted a license. you are licensed, and it is diffi- OBA ethics They have the skills to be law- cult, is to maintain the right counsel from August 2009 – Janu- yers — even great lawyers — state of mind over the entirety ary 2015. He has served as co- but the difficult path of the of your career. To do that, you chair of the OBA Work/Life Bal- practice, with seeming perfec- must be ever vigilant, but you ance Committee and as vice-chair tion the standard and near- must relax enough to enjoy the of the Lawyers Helping Lawyers perfection the best one can drive. You must see the Rules Assistance Program Committee. expect, along with other fac- of Professional Conduct as He is a 1984 graduate of the OU tors, often pulls them into trou- rules for success, not a limitless College of Law. ble over time. Note how most

392 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 BOARD OF GOVERNORS ACTIONS

Meeting Summary

The Oklahoma Bar Association Annual Meeting and prepared REPORT OF THE Board of Governors met at the an application to the Supreme EXECUTIVE DIRECTOR Oklahoma Bar Center in Okla- Court regarding the Clients’ Executive Director Williams homa City on Dec. 12, 2014. Security Fund. reported he attended Annual HONORED FOR SERVICE REPORT OF THE Meeting functions, House VICE PRESIDENT of Delegates, General Assem- President DeMoss recog- bly, OBA staff luncheon and nized guests Stephen Beam Vice President Shields monthly celebration, meetings and Melissa DeLacerda for reported she attended the OBA on judicial and legislative their six years of service on Annual Meeting, president’s issues, meetings with Semi- the Professional Responsibili- breakfast, annual luncheon, nole and Clinton Public ty Commission during which OBA House of Delegates, Schools superintendents time a new general counsel Oklahoma County Bar Associ- regarding the Oklahoma’s was hired and the diversion ation December board meeting Promise project, staff directors program was created. Before and OCBA holiday party. She meeting, Bar Association Tech- this meeting they attended also finalized materials for the nology Committee meeting, their final PRC meeting, at “Planning Ahead Guide” and phone conference with Diver- which they received plaques dues statement insert, in addi- sity Committee leadership, honoring their service. Presi- tion to working on a bar jour- Supreme Court conference dent DeMoss noted they nal article with Ethics Counsel on the 2015 OBA budget, served during a tumultuous Travis Pickens on that topic. Supreme Court technology time on the commission, and REPORT OF THE group meeting and Oklahoma their leadership added stabili- PRESIDENT-ELECT County Bar Association holi- ty to the PRC. Board members day party. clapped and gave them a President-Elect Poarch standing ovation. reported he attended the OBA BOARD MEMBER REPORTS Annual Meeting, first meeting REPORT OF THE Governor Dexter, unable to of the new Master Lawyers PRESIDENT attend the meeting, reported Section, presentation to county via email she attended the President DeMoss reported bar presidents and meetings OBA Annual Meeting, Tulsa she attended the November on legislative/judicial issues. County Bar Association re- board meeting, OBA Annual He also interviewed legislative ception honoring President Meeting, Tulsa County Bar consultant candidates and pre- DeMoss, OU law school lun- Association reception at which sented the proposed 2015 bud- cheon, president’s breakfast, she was honored, president’s get to the Supreme Court for annual luncheon, OBA House breakfast, OBA General its approval. of Delegates and TCBA holi- Assembly, House of Delegates, REPORT OF THE day party. Governor Gifford OBF reception, Annual Meet- PAST PRESIDENT reported he attended the ing luncheon, first meeting of November board meeting, the new Master Lawyers Sec- Past President Stuart report- OBA Annual Meeting, Section tion, OBA Law Schools Com- ed he attended the November Leadership Council meeting, mittee meeting, meetings on board meeting and Profession- November Tulsa County Bar legislative/judicial issues, alism Symposium. He also Association reception for Pres- women in law Tulsa gathering worked on arrangements for ident DeMoss, Oklahoma and Professionalism Sympo- the board’s has been party. County Bar Association Christ- sium. She made a presentation mas party and Oklahoma to county bar presidents at the

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 393 County Criminal Defense Assembly, president’s break- tion evening event, president’s Attorneys Christmas party. He fast and annual luncheon. He breakfast, House of Delegates gave a report to the Oklahoma also attended the Professional- at which she served as a Wash- County Bar Association board ism Symposium. Governor ington County delegate and as of directors regarding OBA Parrott reported she attended chair of the Tellers Committee, matters. Governor Hays the OBA Annual Meeting, OBA annual luncheon and reported she attended the November board meeting, various hospitality suites and OBA Annual Meeting, General TCBA reception for President events at the OBA Annual Assembly, House of Delegates, DeMoss, Oklahoma Bar Foun- Meeting. OBF reception, Annual Meet- dation Fellows reception, Law YOUNG LAWYERS ing luncheon, OBA Family Schools Committee meeting, DIVISION REPORT Law Section Annual Meeting OCU alumni luncheon at at which she received the which she presented the OBA Governor Hennigh reported Chair Award, OBA FLS Trial award to the outstanding the YLD held its last meeting Advocacy planning meeting senior law student, president’s of the year at the OBA Annual and Section Leadership Coun- breakfast, annual luncheon, Meeting. At the meeting Presi- cil meeting at which she was General Assembly and House dent DeMoss and Governor elected 2015 vice chair. She of Delegates. Governor Sain Hays were honored as YLD reported to the Tulsa County reported he attended the Fellows. He said the Kick It Bar Association board of direc- McCurtain Memorial Hospital Forward program has been tors regarding OBA Board of Foundation board meeting, launched and is receiving Governors matters. She partic- McCurtain County Bar Associ- attention from the ABA. ipated in OBA FLS CLE plan- ation luncheon, November REPORT OF THE ning and in the government Board of Governors meeting, GENERAL COUNSEL relations interview process. OBA Annual Meeting and She met with the Women in Warrior Club meeting. General Counsel Hendryx Law Committee vice chair to Governor Smith reported he reported no litigation against start 2015 planning. Governor attended the November board the OBA is pending. The Pro- Jackson reported he attended meeting, November Oklahoma fessional Responsibility Com- the OBA Annual Meeting, Bar Foundation reception, mission held its last meeting Tulsa County Bar Association OBA Annual Meeting and for 2014 this morning. Oklaho- reception honoring President Professionalism Symposium. ma City lawyer Angela Bahm DeMoss and Garfield County Governor Stevens reported he was elected chair, and non- Bar Association meeting. He attended the November Board lawyer Tony Blasier of Okla- also toured the new OCU law of Governors meeting, OBA homa City was reelected vice- school. Governor Kinslow Annual Meeting, OBF recep- chair. A written report of PRC reported he attended the tion, General Assembly, House actions and OBA disciplinary Clients’ Security Fund and of Delegates, December Cleve- matters for October was sub- Member Services Committee land County Bar Association mitted to the board for its meetings. Governor Knighton meeting, Cleveland County review. reported he attended the Bar Association legislative lun- BOARD LIAISON REPORTS November board meeting, cheon and Cleveland County reception for President Bar Association Christmas Governor Kinslow reported DeMoss, OBA Annual Meet- party. Governor Thomas, the Member Services Commit- ing, December Cleveland unable to attend the meeting, tee heard a proposal from County Bar Association meet- reported via email she attend- Meridian One for a change to ing and Cleveland County ed the November board meet- its contract regarding the UPS District Court Legislative- ing, OBF reception, president’s member benefit, and the com- Judicial Summit. Governor reception, Oklahoma Fellows mittee declined to recommend Marshall reported he attended of ABF dinner, Credentials a change. Executive Director the November board meeting, Committee meeting, Section Williams reported the Diversi- November Tulsa County Bar Leaders Council meeting, TU ty Committee is considering Association reception for Pres- law school luncheon at which holding a retreat early next ident DeMoss, various OBA she presented the OBA Out- year to reexamine the scope of Annual Meeting events includ- standing Senior Student its efforts. Executive Director ing section meetings, General Award, Three-Party Celebra- Williams reported the Bar

394 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 Association Technology Com- for volunteers willing to serve. Norman, and Gale Graham mittee is looking at software She said the other change Allison, Tulsa, terms expire for MCLE and has received requested is to provide more 12/31/2017. requests for proposals. One flexibility in voting. The board bidder, the Pennsylvania CLE approved the proposed Oklahoma Indian Legal Board, an organization sepa- amendments. Services – Reappoint Tyson E. rate from the state bar associa- Branyan, Cushing, Casey R. DISTRICT ATTORNEYS tion, has developed its own Ross, Oklahoma City, and Julie COUNCIL APPOINTMENT Strong, Clinton, terms expire MCLE software. The commit- 12/31/2017. tee has authorized the expen- The board approved Presi- diture of $5,000 plus expenses dent DeMoss’ recommenda- Professional Responsibility for the bidder to send repre- tion to appoint John Wampler, Commission – Appoint Linda sentatives to the OBA to Duke, to complete the unex- S. Thomas, Bartlesville, and review Oklahoma’s MCLE pired term of Dennis A. Rick R. Sitzman, Oklahoma process and evaluate whether Smith, whose term expires City, terms expire 12/31/17. their software is a good fit for June 30, 2015. the OBA. Court on the Judiciary – 2015 APPOINTMENTS Appellate Division – PROPOSED AMENDMENTS Reappoint Betty Outhier The board approved the fol- TO GUIDE FOR Williams, Muskogee, term lowing appointments as rec- COMMITTEES AND expires 3/1/2017. SECTIONS ommended by President-Elect Poarch: Court on the Judiciary – Section Leaders Council Trial Division – Reappoint Board of Editors – Reappoint Chairperson Roy Tucker intro- William Brad Heckenkemper, Melissa DeLacerda, Stillwater, duced Taxation Law Section Tulsa, term expires 3/1/2017. Chair Abby Dillsaver and as chairperson, term expires Intellectual Property Section 12/31/15; reappoint Mark CLIENTS’ SECURITY FUND Ramsey, Claremore, District 1; Chair Barbara Krebs Yuill. Mr. The board voted to return to appoint Amanda Grant, Spiro, Tucker said the council was discussion of Clients’ Security District 2, and Renée DeMoss, proposing two changes to the Fund reimbursements that Tulsa, District 6, as associate Guide for Committee and Sec- was tabled at the November editors, terms expire tion: 1) to increase the amount meeting. The board approved 12/31/2017. of money retained in a sec- the claims and amounts rec- tion’s contingency fund, and Clients’ Security Fund – ommended by the Clients’ 2) to increase the amount of Reappoint Micheal Salem, Security Fund Committee in excess funds a section may Norman, as chairperson, and the handout provided – total- accumulate over a three-year William Brett Willis, Oklaho- ing $257,118.35 to be paid to 28 period. Mr. Tucker said the ma City, as vice chairperson, claimants. Funding above the changes will make it easier for terms expire 12/31/2015. annual cap of $100,000 came a section to accumulate more Attorney members – Reap- from a one-time special alloca- funds over several years for a point Micheal Salem, Norman, tion from the Clients’ Security large event or project. The cur- Lincoln Clay McElroy, Oklaho- Fund permanent fund as rent procedure for identifying ma City, Luke Gaither, Henry- approved by the Supreme and notifying sections out etta, and James Von Murray, Court. CSF Chair Micheal of compliance was reviewed. Stillwater, terms expire Salem reported restitution The board approved the 12/31/17. Reappoint Janice totaling $3,017 was paid this amendments. Stotts, McLoud, as a lay mem- year. He said a new OBA task PROPOSED AMENDMENTS ber, term expires 12/31/17. force to be appointed will TO TAXATION LAW review similar permanent SECTION BYLAWS MCLE Commission – Reap- funds across the United States point Jack L. Brown, Tulsa, as and consider whether to sub- Section Chair Abby Dillsaver chairperson, term expires mit a recommendation to said the section is requesting 12/31/2015; reappoint M. increase the annual $100,000 changes to its bylaws because Courtney Briggs, Oklahoma maximum to the House of geographic requirements for City, term expires 12/31/2017; Delegates. He noted the ABA officers have become too rigid appoint Claire Carter Bailey, Standing Committee on Client

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 395 Protection is a source of the judges on the statewide Investment Committee – national information. He said retention ballot and links to Reappoint M. Joe Crosthwait that he, along with committee websites of judicial election Jr., Midwest City, as chairper- members Dan Sprouse and candidates at courtfacts.org. son and Kendra M. Robben, John Kinslow, would be will- About $12,500 was spent on Oklahoma City, as vice ing to serve on the task force. the campaign that reached chairperson, terms expire The board approved the dis- more than 1 million people. 12/31/2015; reappoint Ste- tribution of a news release phen Beam, Weatherford, OBA SPEAKERS BUREAU announcing the reimburse- Chuck Chesnut, Miami, Judge ment of funds to clients. President DeMoss briefed Mike DeBerry, Idabel, O. Chris Meyers, Lawton, Alan Souter, REQUEST TO AMEND LHL board members about the new ASSISTANCE PROGRAM website the OBA has created Tulsa, Jerry Tubb Jr., Oklaho- MISSION STATEMENT to make it easier for Oklahoma ma City, and Harry Woods, schools and civic groups to Oklahoma City, terms expire President DeMoss reported find lawyers to speak on a 12/31/2017. the Tulsa County Bar Associa- variety of topics. The first step Legal Ethics Advisory Panel tion sent a letter requesting the in the program is to encourage – Reappoint Steven Balman, OBA expand the mission of OBA members to sign up Tulsa, as panel coordinator, the Lawyers Helping Lawyers online at speakers.okbar.org as term expires 12/31/2015; reap- Assistance Committee to potential speakers in their point Timila Rother, Oklahoma include addressing the need county. Once lawyers have City, John Hermes, Oklahoma for interventions to assist signed up, the website will be City, and Micheal Salem, Nor- senior lawyers who may be promoted to the public, who man, as Oklahoma City panel practicing beyond their time can contact the lawyers who members, terms expire of competence. She said no have identified they are avail- 12/31/2017; and reappoint action will be taken on the able to speak. request. Lynnwood Moore, Tulsa, OKLAHOMA’S PROMISE John R. Woodard III, Tulsa, OBA 2015 STANDING and Allen E. Mitchell, McAles- COMMITTEE LEADERSHIP Executive Director Williams ter, as Tulsa panel members, AND BOARD OF reported he recently met with terms expire 12/31/2017. GOVERNORS LIAISONS the Seminole Schools superin- tendent about participating in Commissioner of The President-Elect Poarch pre- the promotion of the Oklaho- National Conference on Uni- sented a list of bar members ma’s Promise program. The form State Laws – To submit he has appointed as committee superintendent has volun- the name of Rusty Neal chairs and vice chairs in addi- teered to be the district point LaForge, Oklahoma City, for tion to board member assign- person. consideration and possible ments as liaisons. APPOINTMENTS reappointment by the gover- YLD LIAISONS TO OBA nor to an additional four-year STANDING COMMITTEES President-Elect Poarch term. announced the appointments NEXT MEETING YLD Chair-Elect LeAnne of: McGill submitted a list of YLD The Board of Governors members she has appointed to Audit Committee – met Jan. 15, 2015, via tele- serve as liaisons to OBA com- Appoint Glenn Devoll, Enid, phone conference call. A sum- mittees. as chairperson, term expires mary of those actions will be 12/31/2015; appoint as mem- COURTFACTS.ORG published after the minutes bers James R. Gotwals, Tulsa, are approved. The next board CAMPAIGN MARKETING and Roy D. Tucker, Muskogee, REPORT meeting will be Friday, terms expire 12/31/2017. Feb. 20, 2015, at the Okla- Communications Director Board of Medicolegal Inves- homa Bar Center. Manning reviewed the results tigations – Appoint James T. of efforts to communicate to Stuart, Shawnee, term expires voters information about 12/31/2015.

396 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 BAR FOUNDATION NEWS

Research Designed to Take OBF to the Next Level By Jack L. Brown

Legal research is an integral uncovered many good ideas create the important new plan. part of a lawyer’s daily life, from OBF members on fund- The retreat facilitators will be used to inform the lawyer on raising, potential barriers to Mr. Dorgan and our new devel- how to advise clients, negoti- success and generated enthusi- opment director. The plan will ate with opposing counsel, or asm for the project. The end establish goals and methods to persuade a judge or jury. The result is a written feasibility achieve them. The OBF is very importance of legal research report that will summarize the fortunate to have a highly can often be seen in the many consensus and differences from skilled and dedicated board comical goofs found in literary these conversations and will and staff to undertake this masterpieces and Hollywood provide the OBF with guidance ambitious program. The OBF films, even the beloved Atticus on how to proceed with its grants program works with Finch could have benefited development program. charitable organizations state- from a little research in his wide that are involved in pub- The feasibility study will also defense of Tom Robinson lic service work. Some of the assist the OBF with providing (ahem, a motion for change key recipients from this devel- objectives and direction for the of venue). opment plan will be the poor, new OBF development director. elderly, abused women and Legal research is the back- This position has been adver- children, and school children bone of all good lawyering and tised and candidates should in need of assistance. forms the analytical foundation submit their resumes and sup- for any case or issue being porting materials to the search The OBF challenges all Okla- worked on. Given the impor- committee chaired by OBF homa lawyers to do their part tance of research, the OBF board member and former OBA to assist the OBF in its develop- started this year with a little President Stephen Beam. Inter- ment efforts. One of the best researching of its own by con- ested candidates should refer to ways to meet this challenge is ducting a feasibility study the OBF News Section of the to become an OBF Fellow or which assessed the potential OBF website (www.okbarfoun- Benefactor Fellow. It’s as easy for the development and imple- dation.org) for as clicking the OBF website or mentation of an annual fund- additional information on the by calling OBF at 405-416-7070. raising program. The goal of position and how to apply. The We look forward to your partic- the study is to provide a good committee will screen all appli- ipation in the OBF. foundation upon which the cants, conduct interviews and OBF can build and develop an make their recommendations to action plan. the OBF Board of Trustees. About The Author The study was conducted last Finally, the feasibility study Jack L. Brown month by OBF consultant, Den- will establish the framework practices in Tulsa nis Dorgan, who performed a for OBF board members and and serves as OBF series of interviews with vari- staff to develop a comprehen- president. ous members of the OBF, OBA sive fundraising plan of action. He can be and other organizations impact- A board retreat has been sched- reached at jbrown@ ed by OBF grants. Mr. Dorgan, uled for March 26-27 at Postoak jonesgotcher.com. through these conversations, Lodge, just outside of Tulsa to

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 397 OBF WELCOMES NEW COMMUNITY FELLOWS OBF welcomes our newest OBF Community Fellows — LexisNexis during November and the Crowe & Dunlevy law firm during December — both at the supporter tier. For those wishing to join these and other OBF Community Fellows, please find out more and join at www.okbarfoundation.org.

LexisNexis believes that when you put information and technology into the right hands, you give people the power to shape the world. LexisNexis cares deeply about adhering to the highest stan- dards of conduct and giving back to the communities they serve. Becoming a member of the OBF Community Fellows aligns with those beliefs, and the OBF and LexisNexis look forward to a partnership that will help to make our justice OBF Past President Dietmar K. Caudle and Executive Director system more efficient as we Nancy Norsworthy welcome LexisNexis Territory Manager Gayla strive to make access a reality Reeder to the OBF Community Fellows program. for Oklahomans in need of law-related services.

Crowe & Dunlevy has always taken to heart the professional responsibility of lawyers and law firms to make meaningful contributions to public interest legal services. In addition to the dedication of time and effort, members of the firm have been longtime con- tributors to the Oklahoma Bar Foundation. Crowe & Dunlevy has been instrumental in many past endeavors of the OBF and the OBF is pleased to welcome Crowe & Dunlevy as an OBF Community Fellow. OBF Executive Director Nancy Norsworthy, President Jack L. Brown, Past President Dietmar K. Caudle and OBA President David Please join the OBF Poarch welcome Tanya S. Bryant of Crowe & Dunlevy to the OBF Community Fellows Program.

Please visit WWW.OKBARFOUNDATION.ORG for additional information on the OBF resource development & communications director position and to learn more about the OBF Community Fellow Program. WWW.OKBARFOUNDATION.ORG

398 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015

OBF Fellow and Community Fellow Enrollment Form 2013 OBF Community Fellow Enrollment Form

Name, UGroupNITE name, TO Firm PROVIDE or other affiliation HELP ______FOR THOSE IN NEED AS AN OBF OMMUNITY C F ELLOW

Mailing and OBA Delivery Section or Caddressommittee ______Law Firm/Office County Bar Assoc. IOLTA Bank Corporation/Business Other Group

City/State/ZipGroup Na me: ______Contact: Phone Ma ______iling & Delivery Address: Email ______City/State/Zip: FELLOWPhone: ENROLLMENT ONLY E-­‐Mail: o Attorney o Non-attorney The OB F Community Fellows is a new benevolent Ok program of the lahoma Bar ___ I want toFou be ndanat OBFion al Fellowlowing ornowgani –z Billations me and later groups ___ to $100 unite enclosed with i ndividu andal bill law annuallyyers who are OBF llows Fe to support a commo n c ause: T he promotion of justice, provision of ___ Total amountlaw-­rel enclosedated serv i$1,000ces, and advancement of ___ c publi awa Newreness lawyerand 1stbetter year,und $25ersta enclosednding of & bill annually as stated ___ New lawyerthe within law. 3 years, $50 enclosed and bill annually as stated ___ I want to be recognized at the higher level of The OB F Provides Funding For: Sustaining OBF Fellow NEEDS and will YOUR continue HELP my TO annual ___ I want to be recognized at the highest Free legal assistance for the poor and elderly gift of $100 SERVE O KLAHOMANS Leadership level• of Benefactor Fellow and Safe haven for the abused (initial pledge should be complete) annually contrbute• at least $300 IN NEED! (initial pledge• Protection should be and complete) legal assistance for children ___ My charitable contribution to help offset the • Public law-­‐related education programs, including programs Grant Program CrisisGIVE T ODAY AT for school children WWW.OKBARFOUNDATION.ORG Other activities that improve the quality of justice for • COMMUNITY FELLOW all Oklahomans ENROLLMENT ONLY o OBA Section or Committee o Law firm/office o County Bar Association o IOLTA Bank o Corporation/Business o Other Group Choose from three ti ers of OBF Community Fellow support to pledge your group’s help: $ Patron $2,500 or more per year Choose from three tiers of OBF Community Fellow support to pledge your group’s help: $ Partner $1,000 -­‐ $2,499 per year $______Patron $2,500 or more per year $ Supporter $250 -­‐ $999 per year $______Partner $1,000 - $2,499 per year

$______Supporter $250 - $999 per year Signature & Date: OBA Bar# Print Name & Ti tle: Signature and Date ______OBA Bar # ______OBF Sponsor: Print Name Please and Title kindly ______make checks payable to: Oklahoma Bar Foundation P O Box 53036 Oklahoma City -­‐ OK 73152 3036

OBF Sponsor (If applicable) ______Phone: (405) 416-­‐7070 • E-­‐Mail: [email protected] • Kindly make checks payable to: Oklahoma Bar Foundation• PO Box 53036 Oklahoma City, OK 73152-3036

405-416-7070 • [email protected] • www.okbarfoundation.org

THANK YOU FOR YOUR GENEROSITY AND SUPPORT!

Vol.Vol. 86 86 — — No. No. 5 5— — 2/14/2015 2/14/2015 TheThe Oklahoma Oklahoma Bar Bar Journal Journal 399399 ACCESS TO JUSTICE

There is Much Work to Be Done By Michael W. Speck

In March 2014 the Oklahoma justice in civil matters by that encourage the coordina- Supreme Court issued an low-income Oklahomans; tion or sharing of resources order establishing the Oklaho- or funding; 2) develop and publish a ma Access to Justice Commis- strategic plan for statewide 6) develop and implement sion (OAJC).1 In establishing delivery of civil legal services initiatives designed to the OAJC, the court found that to low-income Oklahomans; expand civil access to justice; “(m)any low income Oklaho- mans are unable to receive full 3) foster the development 7) work to reduce barriers representation on civil legal of a statewide integrated to the justice system by matters; inadequate funding civil legal-services delivery addressing existing court and well-intentioned but unco- system; rules, procedures and poli- ordinated efforts stand in the cies that negatively affect way of a fully integrated civil access to justice for low- legal-services delivery sys- income Oklahomans; and, tem.”2 The court further found that there was a clear need to …the August 8) monitor the effectiveness fill in existing gaps in state- order identifying of the statewide system and wide delivery system, and that services provided and peri- the efforts by various organi- the accomplished odically evaluate its progress zations doesn’t eliminate a in fulfilling the civil legal need for leadership in the members of needs of low-income planning of comprehensive the OAJC went Oklahomans. legal services in the state, a MEDIA ATTENTION role which logically rests with apparently the court.3 The March 13, 2014, order unnoticed by establishing the OAJC received Just a few months later the some attention from the press.5 Oklahoma Supreme Court the public it However, the August order appointed the members to the serves. identifying the accomplished OAJC: Justice Douglas L. members of the OAJC went Combs, Oklahoma Supreme apparently unnoticed by the Court; Judge Bernard Jones, public it serves. The goals for Oklahoma County district the OAJC seek to improve the judge; Judge Rick Bozarth, 4) work to increase resources common good of Oklahomans, Dewey County associate dis- and funding for access to jus- a matter that clearly deserves trict judge; attorneys David tice in civil matters and to ongoing coverage by the Riggs, Michael Figgins and ensure that the resources and fourth branch of the state gov- Barbara Smith, and Chief funding are applied to the ernment. If the enormity of the Geoffrey Standing Bear, Osage areas of greatest need; challenge faced by the OAJC Nation.4 Pursuant to 2014 OK was better understood by the 5) work to maximize the wise 16, these OAJC members are public, ongoing coverage and efficient use of available required to: would be demanded. resources, including the 1) identify and assess current development of local, region- The efforts of the many men and future needs for access to al, and statewide coordina- and women in various organi- tion systems and systems zations notwithstanding (and

400 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 not herein minimized in the or assisting them as pro se liti- least), there is much work to OKLAHOMA gants, the NCAJ asked ques- be done in improving the tions including: access to justice for Oklaho- Attorneys Is there a statute, rule of mans. Oklahoma ranked 50th for every professional conduct or in the composite index set 10,000 other guidance document forth in the 2014 Justice Index .73 people living authorizing the provision of compiled by National Center in poverty unbundled or limited scope for Access to Justice (NCAJ).6 legal services? The NCAJ 2014 Justice Index Attorneys (NCAJ Index) was the subject per 10,000 Does the state provide (or of a November 2014 story by the courts allocate) funding 7 35.28 people the Muskogee Phoenix, which for court-based programs made no mention of the OAJC. NATIONAL AVERAGE (self-help centers or other structures) to assist under- The NCAJ is a project of the represented persons? Cardozo School of Law. The Attorneys NCAJ Index is “a snapshot of per 10,000 Is there a statute, rule or the degree to which certain people 40.52 other document establishing selected best practices for the obligation of the court to ensuring access to the civil States communicate with people and criminal justice systems better situated who have little or low litera- have been adopted across the than Oklahoma. cy in one or more types of country.”8 It “shows the num- Attorneys for every 30+ cases? ber of these attorneys for 10,000 people every 10,000 people in poverty living in poverty Additional questions are in each state” as well as “the included to identify the meth- SEVERAL STATES ods for implementing the poli- number of all attorneys per 13 10,000 people (‘not in pover- cies identified above. Accord- ty’) in each state.”9 Data on the Litigants in ing to the data collected by the support systems provided to courts appear NCAJ, the efforts of Oklaho- pro se litigants, persons with pro se 80% ma’s courts are minimal. As disability and “on the presence a consequence, Oklahomans in state courts of such key sys- may well find their courts less tems as reliance on ‘certified’ neys for every 10,000 people than user friendly. interpreters” and the provision living in poverty.11 EXTRA HURDLES FOR of court forms translated into PEOPLE WHO SPEAK languages other than English” The NCAJ reports that more LITTLE ENGLISH for those people with limited than 80 percent of the litigants For those Oklahomans who English proficiency.10 in the courts of the various states appear pro se “in mat- have limited proficiency in According to the NCAJ ters as important as evictions, English, the problem may well Index, Oklahoma has 0.73 mortgage foreclosures, child be far worse. The Oklahoma attorneys for every 10,000 peo- custody and child support Supreme Court is aware of this ple living in poverty and 35.28 proceedings, and debt collec- issue. In June 2014 the court attorneys per 10,000 people. tion cases.” Therefore. NCAJ’s issued an order approving The national average for attor- recommendation that making examinations and interim reci- neys per 10,000 people was the courts user-friendly is procity and provisional qualifi- reported as 40.52. As to the imperative is unlikely to meet cations of Oklahoma courtroom number of attorneys for every with objection.12 Identifying interpreters. In an unpublished 10,000 people living in pover- and implementing the reforms (i.e. subject to revision or with- ty, more than 30 states are bet- to accomplish this goal are a drawal) order 2014 OK 45, the ter situated than Oklahoma. more complicated matter. court wrote that it “is commit- Six states and the District of ted to ensuring equal access Columbia (a statistical outlier In assessing the efforts by to justice for all individuals as to attorneys in the popula- the various states to assist liti- regardless of their ability to tion) have more than 2.0 attor- gants in finding representation communicate in the spoken

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 401 English language.” Finding efforts to provide the support through the OAJC is taking that spoken language inter- its disabled citizens deserve. up the challenge. preters “play an essential role The Oklahoma judiciary is in ensuring due process and 1. See 2014 OK 16. aware that many Oklahomans 2. Id. helping court proceedings are underrepresented and 3. Id. function efficiently and effec- 4. See 2014 OK 75. that the inadequately funded, 5. See http://goo.gl/FaonjG. tively” the court ordered rules and uncoordinated efforts, 6. See www.justiceindex.org/findings. 1 - 9 in a new appendix II to 7. See http://goo.gl/ogkK83. while well intentioned, are no See Chapter 23 of Title 20 of the 8. www.justiceindex.org/findings/ replacement for an integrated #sthash. d862tcA8.dpuf. Oklahoma Statutes as “interim 9. See www.justiceindex.org/methodology/ civil legal services delivery rules until permanent rules #sthash.TVx81BkZ.dpuf. 10. Id. 14 system. Assessing the assets, may be established.” In 2014 See and limitations, of the current 11. www.justiceindex.org/findings/ OK 40 the court set forth rules attorney-access. legal services delivery systems 12. See http://goo.gl/7WDah4 . which implement the policy of is a critical step in improving 13. Id. the Oklahoma Supreme Court 14. See 2014 OK 45 and www.oscn.net/ access to justice for Oklaho- static/forms/aoc_forms/interpreter.asp. that, “whenever possible, any mans. Further steps to address 15. See 2014 OK 40. court proceeding interpreted 16. See http://goo.gl/ckieOz. the various shortcomings are by a non-certified foreign 17. See http://goo.gl/ULmsVY and http:// already underway. Improving goo.gl/RC4U1t. The June 2013 edition of Tulsa language interpreter shall be Lawyer included an article by myself and Chris- electronic assess to Oklahoma audio taped and the recording tina Smith titled, “Paralegals and the Access to courts through initiatives like Justice: Washington’s Limited License Legal shall be made an official part the Oklahoma Unified Case Technicians Give Us Food for Thought” where- of the record as required.”15 in we summarized Washington’s Limited Li- Management System, providing cense Legal Technician (WA Triple LT) rules No information was report- language interpreters and and posed the following questions in regard to the role paralegals might play in improving ed to the NCAJ as to Okla- audio recordings of proceed- access to justice homa’s ongoing efforts to ings and expanding and further 1) What extent, if any, is a secondary market of unregulated, untrained, unsupervised legal improve court access for Okla- publicizing forms for pro se practitioners serving presently unmet legal homans with limited English litigants are among the many needs; 2) How can paralegals further assist the bench and the bar in providing affordable le- proficiency. Therefore Oklaho- steps the courts can take to gal services and greater access to the legal ma’s unsettling ranking of improve access. The NJAC system to the public; and 3) Can paralegals play a role in making the practice of law an 50th on the NCAJ index likely Index has, in its questions sub- economically viable profession for attorneys doesn’t reflect the reality in mitted to the states, identified entering a very competitive profession. Oklahoma’s courtrooms. other strategies, such as allow- In the “Authorized Practice” by Robert Ambrogi, published in The American Bar Associa- Which is not to say that there ances for limited legal represen- tion Journal, Vol. 101 No. 1, Jan. 2015, Mr. Ambro- isn’t a great deal of work to tation or resources like self-help gi discusses the WA Triple LT and similar efforts (or studies of same) in other states such as the be done, including but not centers. Other novel approach- aforementioned New York Navigators. limited to the provision of es, like New York’s Navigators resources like spoken lan- or Washington’s Triple LTs, About The Author guage interpreters. should also be considered.17 The final element of the Equal access of the state’s Michael NCAJ Index focuses upon citizens to their courts is a Speck holds “those who cannot see, hear, prerequisite to justice for all a B.A. and speak or otherwise navigate a Oklahomans. The Oklahoma M.A. in phi- courthouse” and “those with Supreme Court, in forming the losophy from emotional and cognitive chal- OAJC, has begun efforts to OU and a lenges that make it difficult for fully meet the court’s obliga- J.D. from them to participate in their tion to provide, and lead, a Southern Illi- own cases.” Noting that access system of comprehensive legal nois University’s School of Law. to justice for these citizens services. It appears from the After 10 years of civil litigation in “depends on support from the information discussed herein Oklahoma City and nine years of justice system,”16 the NCAJ that the OAJC has a lot of adjunct instruction at Rose State ranked Oklahoma 44th overall. work ahead. Although the College, he is on the faculty at Indiana failed to provide data fourth branch has all but Tulsa Community College as for the Index. Therefore Okla- ignored the problem to date, the Program Coordinator of the homa courts might well rank the judiciary and the bar, Paralegal Studies Program. 45th among the 50 states in

402 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 Announcing the Midwest’s PreMier estAte PlAnning event

www.kceps.org April 23-24, 2015 | Overland Park (Kansas) Convention Center

Advance your career, gaining knowledge and SPEaKErS include: relationships that will help you better serve your clients. The Kansas City Estate Planning Symposium Prof. Sam Donaldson, Georgia State University Law School, Atlanta, GA is the Midwest’s answer to the leading national Steve Akers, Bessemer Trust Company, Dallas, TX conferences, featuring nationally recognized Bernie Krooks, Littman Krooks LLP, New York, NY speakers at a fraction of the cost. Plus, earn up to a Skip Fox, McGuireWoods LLP, Charlottesville, VA year’s worth of Continuing Education Credits. Stephanie Loomis Price, Winstead PC, Houston, TX Prof. Chris Hoyt, UMKC School of Law, Kansas City, MO For conference and registration information, please visit KCEPS.org, $349, with a digital book/$399 with hardcopy and or call 816-235-1648 digital book. One day pricing also available.

FINDING A RECREATIONAL PROPERTY IS THE EASY PART. Any multi-listing site can do that. Only Ranch & Retreat Realty has the key information you need to buy, sell, manage, finance or stock your property; and offers tips on taxes and your responsibilities as owner. That’s what makes us the premier online marketplace for Oklahoma’s finest farm/ranch properties, hunting lands, lake houses, acreages and vacation homes. RanchandRetreatRealty.com

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 403 YOUNG LAWYERS DIVISION

Top 5 Reasons You Should Get Involved with the YLD By LeAnne McGill

It’s easy. If you have annual bar dues. The YLD is as the bar association as a been practicing law for funded from the general reve- whole. But we also have some 1 less than 10 years, you nue of the bar association and serious fun. An important part are already a member does not collect dues like the of the YLD is forming lifelong of the YLD. See how easy that various sections. So that means friendships with attorneys who was? Want to become an active you are already paying for the will be there celebrating with member of the YLD? Consider benefits of the YLD. All that you when you retire. Because joining a committee. Come to is left is for you to cash in on of that goal, we want you to our monthly board meetings. those benefits. You can’t get a enjoy the time you spend work- Form a team for this year’s better deal than free, right? ing on our projects. There is Kick It Forward kickball tour- always time to socialize and It’s about commu- nament. Join us in our annual get to know one another better nity. The YLD is often Day of Service this fall. The while we are carrying out the 4 referred to as the com- options are endless. Thinking worthy projects of the bar asso- munity service arm of the bar about a leadership role in the ciation. And hey, who couldn’t association. And that is a moni- YLD? It is never too early to use a break from the busy ker that we take seriously. start planning your campaign schedules and daily demands Whether we are serving the to become a member of the of the legal profession. We can legal community or the places Board of Directors or even definitely help add a little more where we live and work, each division chair. fun to your life. year the YLD plans and partici- It opens doors. The pates in projects aimed at giv- Now you know the top five YLD is a great way to ing back. In years past, we have reasons why you should be 2 network with lawyers planted flowers at homeless involved with the YLD. Joining from across the state. shelters, sorted food at food is effortless, it won’t cost you Not only can it be a significant banks, cleaned storage rooms at anything, we give back to the referral source, it can also lead libraries, fed animals at animal community, it helps widen your to exciting new career opportu- shelters and many other wor- network, and we guarantee you nities. You will have many thy projects. This year in addi- a good time. So, what are you chances to talk with the leaders tion to our annual Day of Ser- waiting for? Your chance to of the OBA and get to know vice, we are also planning a participate is only for a limited talented attorneys from across fundraiser kickball tournament time. Email me to get started. the state. You will have access in August to raise money for to a wealth of experience and the Kick It Forward program. About The Author knowledge from lawyers who And we are always open to are excited and eager to help new ideas. If you have a project LeAnne McGill the future of the profession in you would like us to consider, practices in any way they can. let us know. Edmond and serves as the It’s free. Your mem- It’s Fun. Yes, we do a YLD chairperson. bership in the YLD does lot of good things for the She may be con- 3 not cost you anything 5 communities in which tacted at leanne@ beyond your regular we live and work as well mcgillrodgers.com.

404 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 CALENDAR OF EVENTS

February

16 OBA Closed – Presidents Day observed 24-27 OBA Bar Examinations; Oklahoma Bar Center, Oklahoma City; Contact Oklahoma Board of Bar 17 OBA Bench and Bar Committee meeting; 12 p.m.; Examiners 405-416-7075 Oklahoma Bar Center, Oklahoma City; Contact David Swank 405-325-5254 27 OBA Professional Responsibility Commission meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma OBA Licensed Legal Intern swearing in; City; Contact Gina Hendryx 405-416-7007 12:45 p.m.; Oklahoma Judicial Center, Oklahoma City; Contact Debra Jenkins 405-416-7042 27 OBA Environmental Law Section meeting; 11:30 a.m.; Oklahoma Bar Center, Oklahoma City; 18 OBA Law-related Education Close Up; 8:30 a.m.; Contact Betsey Streuli 405-702-7147 Oklahoma Bar Center, Oklahoma City; Contact Suzanne Heggy 405-556-9612

OBA Indian Law Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City with phone conference; Contact Trisha Archer 918-619-9191

Ruth Bader Ginsburg Inn of Court; 5:30 p.m.; Oklahoma Bar Center, Oklahoma City; Contact Donald Lynn Babb 405-235-1611

19 OBA Law-related Education Close Up; 8:30 a.m.; Oklahoma Bar Association; Contact Suzanne Heggy 405-556-9612

OBA Mock Trial Committee meeting; 5:30 p.m.; Oklahoma Bar Center, Oklahoma City with tele- conference; Contact Judy Spencer 405-755-1066 March 20 OBA Board of Governors meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City; Contact 3 OBA Government and Administrative Law John Morris Williams 405-416-7000 Practice Section; 4 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact John Miley OBA Access to Justice Committee meeting; 10 405-557-7146 a.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Laurie Jones 405-208-5354 6 OBA Alternative Dispute Resolution Section meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma OBA Rules of Professional Conduct Committee City with OSU Tulsa, Tulsa; Contact Jeffrey Love meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City; 405-286-9191 Contact Paul Middleton 405-235-7600 10 OBA Diversity Committee meeting; 12 p.m.; 21 OBA Title Examination Standards and OBA Real Oklahoma Bar Center, Oklahoma City with tele- Property Section joint meeting; 9:30 a.m.; Stroud conference; Contact Tiece Dempsey 405-524-6395 Conference Center, 218 W. Main St., Stroud; Contact Jeff Noble 405-942-4848 11 OBA Women in Law Committee meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City with OBA Young Lawyers Division board meeting; teleconference; Contact Kimberly Hayes 918-592-2800 10 a.m.; Tulsa County Bar Center, Tulsa; Contact Leanne McGill 405-285-8048

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 405 FOR YOUR INFORMATION

Let Your Voices Be Heard! - OBA Day at the Capitol: March 24 Don’t miss this year’s OBA Day at the Capitol set for Tuesday, March 24. The agenda will feature speakers commenting on pending legislation – some of which, if passed, could significantly impact your practice. We also will have remarks from the judiciary and bar leaders and lunch will be provided before we go over to the capitol for the afternoon. Check www.okbar.org for more updates.

ABA TECHSHOW 2015 — Register Now! ABA TECHSHOW 2015 is set for April 15-18, 2015, at the Chicago Hilton. The OBA is an event promoter for ABA TECHSHOW, which means our members can save by using the OBA EP code TECHSHOWEP15. Check out the full line-up of the 50 CLE sessions focused on the latest technology trends. Register online at www.tech show.com using the event promoter registration form. The faculty members this year include OBA members Jim Calloway and Jeffrey Taylor.

Board Swearing In Photo Gallery Now Online New OBA officers and board members were sworn into their positions during a ceremony at the State Capitol on Jan. 16. A photo gallery from the ceremony is online at www.okbar.org/members/ PhotoGallery.

406 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 LHL Discussion Group Hosts Upcoming Meetings The Lawyers Helping Lawyers monthly discussion group will meet March 5 when the topic will be “Stress Management and the Practice of Law.” Each meeting, always the first Thursday of each month, is facilitated by committee members and a licensed mental health professional. The group meets in from 6 – 7:30 p.m. at the office of Tom Cummings, 701 N.W. 13th St. Oklahoma City. There is no cost to attend and snacks will be provided. RSVPs to Kim Reber; kimreber@ cabainc.com, are encouraged to ensure there is food for all. • Interested in forming a discussion group in Tulsa? Contact Hugh Hood: 918-747-4357. LAWYERS HELPING LAWYERS ASSISTANCE PROGRAM Call 24/7 — 800-364-7886

OBA Member Resignations The following members have resigned as members of the association and notice is hereby given of such resignation: John Frederick Cooper Gregory Rex Maynard Robert C. Tilghman OBA No. 1894 OBA No. 5825 OBA No. 9017 4096 40th Street S. 269 Camden Hills Drive 1308 Larchmont Lane St. Petersburg, FL 33711 Montgomery, TX 77356 Nichols Hills, OK 73116 Mitchell Hugh De Zeeuw Robert J. McCarthy Donald Wesley Towe OBA No. 12265 OBA No. 18892 OBA No. 11550 5203 El Cerrito Dr., Apt. 217 P.O. Box 1570 2999 Edgemont Drive Riverside, CA 92507 Polson, MT 59860 Clarksville, TN 37043 Robert Dale Ganstine Christopher Lee Meazell Patricia Jeannine Tubb OBA No. 3232 OBA No. 21463 OBA No. 13124 414 Brooks Station Lane 1619 Hyde Avenue 2861 N.W. 21st Street Brooks, KY 40109-5124 Winston-Salem, NC 27104 Oklahoma City, OK 73107 Jason Mathias Gardner Valli Jo Rallis Judy Ann Tuggle OBA No. 31065 OBA No. 19987 OBA No. 15060 1006 E. 300 North 2801 Shortgrass Rd., Apt. 340 360 Nueces St., #2609 Provo, UT 84606 Edmond, OK 73003-3226 Austin, TX 78701 Michael John Hester Bryan Dale Slabotsky OBA No. 4162 OBA No. 16894 P.O. Box 9 District Attorney’s Office Overbrook, OK 73453 100 W. Mulberry Kaufman, TX 75142

Connect With the OBA Through Social Media Have you checked out the OBA Facebook page? It’s a great way to get updates and information about upcoming events and the Oklahoma legal community. Like our page at www.facebook.com/ OklahomaBar Association. And be sure to follow @OklahomaBar on Twitter!

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 407 BENCH & BAR BRIEFS

man will focus on energy law; Barghols Hanna, Michael F. he earned his J.D. from the Smith and Christina M. TU College of Law in 2012. Vaughn have been elected Mr. Russell’s practice will shareholders at McAfee & focus on complex commercial Taft. Mr. Buettner is a trial litigation and white-collar lawyer whose practice covers he Oklahoma City Human crime. He graduated from the a wide range of complex civil TResources Society recently OU College of Law in 1988. litigation matters, including presented Crowe & Dunlevy Mr. Walters will focus on environmental law, intellectu- attorney Leonard Court with energy, appellate, class al property disputes, business the 2014 HR Legend Award actions, insurance, antitrust torts, healthcare law, and for his commitment to the and Indian law. He received insurance disputes. Mr. Bul- organization. Mr. Court is one his J.D. from the George leigh is an aviation attorney of three Oklahoma attorneys Washington University who represents local, national to be inducted. Law School in 1996. and international clients in transactions involving the ake Jones, partner with onner & Winters LLP has buying, selling, leasing and Kirk & Chaney in Oklaho- J Cnamed four attorneys as financing of aircraft. Mr. Dias ma City, has been inducted Matthew partners of the firm: da Silva is a corporate lawyer into the Oklahoma Chapter of J. Allen, Daniel E. Gomez, whose practice encompasses the National Academy of Dis- Angela L. Smoot Chris- and the areas of mergers and tinguished Neutrals for 2015. topher R. Wilson . Mr. Allen acquisitions, divestitures, Membership is limited to concentrates his practice in public and private securities mediators and arbitrators oil and gas conservation mat- offerings, and transaction who are well established as ters before the Oklahoma financing. Ms. Hanna is a trusted neutrals within the Corporation Commission. He trial lawyer whose state and legal community and is by received his J.D. from the OU federal litigation practice is invitation only. Mr. Jones, College of Law in 2007. Mr. focused on general civil litiga- mediating cases since 1993, Gomez practices primarily in tion, particularly in the areas joins only four other Oklaho- the areas of American Indi- of energy and water rights, ma mediators inducted into an/Native American law, and on the representation the academy. insurance, business litigation of management exclusively and bankruptcy. He graduat- in all phases of labor and ed from Southern Methodist employment law. Mr. Smith is University in 2008. Ms. Smoot a trial and appellate lawyer is a litigation attorney who whose practice is concentrat- practices primarily in the area ed on defending manufactur- of family law. She received ers and other suppliers and her J.D. from the TU College distributors of products, of Law in 2004. Mr. Wilson including automobiles, phar- ableGotwals welcomes practices primarily in the maceuticals and medical GSteven J. Adams, Ryan areas of mergers and acquisi- devices. Ms. Vaughn is a trial A. Pittman, John D. Russell tions, securities regulation, lawyer whose civil litigation and Jay P. Walters as attor- general corporate matters, practice encompasses a broad neys with the firm. Mr. and banking and finance. He range of disputes, including Adams’ practice will focus earned his J.D. from the TU those involving breach of on litigation in energy, class College of Law in 2008. contract, business torts, oil actions and insurance law. He eremiah L. Buettner, and gas, environmental, anti- graduated from the TU Col- JJoel A. Bulleigh, Wagner trust and class actions. lege of Law in 1979. Mr. Pitt- R. Dias da Silva, Lauren

408 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 cAfee & Taft has elected emphasis in the representa- from the OU College of Law. MRichard D. Craig, tion of financial institutions in Ms. Wolfe is a member of the Michael J. LaBrie and Scott mortgage and commercial firm’s litigation and trial, D. McCreary to its 2015 loan litigation and lender lia- banking and financial institu- board of directors. Mr. Craig bility. Ms. Ventura practices tions and bankruptcy and is a tax attorney whose prac- in the firm’s labor and creditor’s rights practice tice includes wealth transfer employment practice group. groups. She also received tax planning, corporate, indi- her J.D. from the OU College ichardson Richardson vidual and partnership taxa- of Law. Boudreaux of Tulsa tion, tax and corporate R announces that Jason C. rey Tipton has been aspects of business transac- Messenger has been named named partner at the firm tions and the litigation of tax T a partner in the firm. Mr. Blaney and Tweedy PLLC of matters in both state and fed- Messenger has been associat- Oklahoma City, which will eral courts. Mr. LaBrie’s prac- ed with the firm since 2006 now be known as Blaney tice focuses on intellectual where he practices in civil liti- Tweedy & Tipton PLLC. In property law, including pat- gation. He received his J.D. in addition, the firm announces ent, trademark and copyright 2003 from the TU. the hiring of J. Scott Hender- law and related litigation. Mr. son. Mr. Tipton’s practice McCreary is an aviation attor- orman Wohlgemuth focuses on business, commer- ney who represents local, Chandler & Jeter of Tulsa N cial and real estate law. Mr. national and international has announced that the name Henderson’s litigation prac- clients in connection with of the firm is now Norman tice is focused on business, matters involving the buying, Wohlgemuth Chandler Jeter commercial and general liti- selling, leasing and financing Barnett & Ray. gation. Mr. Tipton and Mr. of aircraft. ohn Stiner has joined the Henderson both graduated len L. Dresback JOklahoma City law firm of from the University of Okla- Gannounces the opening of Brown & Gould PLLC. Mr. homa College of Law in 2005. the Dresback Law Office at Stiner represents plaintiffs iller & Johnson PLLC 211 S. Broadway, Cleveland, and defendants in business welcomes Marc Walls to 74020. His practice focuses on litigation, including high M the firm as a civil litigation criminal, family and domestic value commercial real estate attorney. Mr. Walls was a staff law and estate law. Dresback litigation, mortgage foreclo- attorney at State Farm for the most recently was an assistant sures and workouts, franchise past 18 years and currently district attorney in Mayes termination litigation, insur- serves on the OBA Civil Pro- County and had a previous ance disputes, trust matters, cedure and Evidence Code practice in Altus. He will be and business torts. Prior to Committee. He received his accepting cases in and around joining Brown & Gould, he law degree from OCU School Pawnee, Osage, Rogers, was a shareholder at McAfee of Law in 1980. Mayes and Tulsa Counties. & Taft. The office can be reached by BA members Scott Luna rowe & Dunlevy recently calling 918-358-5723 or by fax of Luna & Luna LLP in announced the hiring of O at 918-358-5724. C Plano, Texas, and Ray Dixon Erin Potter Sullenger, Cullen of the Underwood Law Firm hillips Murrah announces D. Sweeney and Meredith in Amarillo, Texas, announce that attorneys Nicholle W. Wolfe as associates in the P the two firms have joined Jones Edwards, Jason M. firm’s Oklahoma City office. together for an expanded Kreth, Candace W. Lisle and Ms. Sullenger is a member of presence in the areas of real Jennifer Miller Ventura have the firm’s environmental, estate and education law. The been elected as new directors. energy and natural resources combined firms will retain Ms. Edwards focuses on fami- and litigation and trial prac- the name Underwood Law ly law, general civil litigation tice groups. She received her Firm and maintain a presence and appellate matters. Mr. J.D. from the TU College of in several locations through- Kreth is a commercial litiga- Law. Mr. Sweeney is an out Texas. tor who represents financial associate in the appellate and institutions. Ms. Lisle is a liti- litigation and trial practice gation attorney with an groups. He earned his J.D.

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 409 of Law and served as an Honors bestowed by other adjunct professor there for publications (e.g., Super Law- two years. yers, Best Lawyers, etc.) will not be accepted as announcements. How to place an announce- (Oklahoma-based publications ment: The Oklahoma Bar Journal are the exception.) Information welcomes short articles or selected for publication is news items about OBA mem- printed at no cost, subject to arl Rysted, student legal bers and upcoming meetings. editing, and printed as space Kaid attorney at New Mex- If you are an OBA member and permits. ico State University, was a you’ve moved, become a part- Submit news items via email to: guest speaker at the Associat- ner, hired an associate, taken ed Students of NMSU Judicial on a partner, received a promo- Lori Rasmussen Branch “Professions in Law” tion or an award, or given a Communications Dept. speaker series. He spoke in a talk or speech with statewide Oklahoma Bar Association roundtable on getting into or national stature, we’d like 405-416-7017 to hear from you. Sections, [email protected] and surviving law school and committees, and county bar the variety of career options associations are encouraged Articles for the April 18 issue for attorneys. He is a 1992 to submit short stories about must be received by March 16. graduate of the OCU School upcoming or recent activities.

IN MEMORIAM

avid James Alexander of of Law and began his legal from Princeton University, DHouston, Texas, died career as an assistant district attended Yale Divinity School Dec. 14, 2014. He was born in attorney. In 1971, he became for one year and then received New Orleans, La., on June 26, an assistant district attorney his J.D. from Harvard Law 1955. He was a graduate of in McAlester, and in 1973 he School in 1963. He began his Louisiana State University, was appointed as associate legal career as an assistant earning a B.S. in biochemistry, district judge for Tulsa Coun- district attorney in Oklahoma and earned a J.D. from Loyola ty until his retirement in 2000. County and later established School of Law in 1981. He He initially presided over a a private practice concentrat- served in the U.S. Air Force civil docket, but moved in the ing in tax, bonds and estate as a judge advocate general early 1980s to the juvenile planning. He worked with in Enid, and he later trained division where he served as economic development coun- as a weapons controller, ful- the chief juvenile judge. He cils in communities across filling foreign assignments was instrumental in establish- Oklahoma to obtain funding with AWACS. He began his ing CASA (Court Appointed to start small businesses. patent law career in Oklaho- Special Advocates) in Tulsa Donations may be made to ma City as a patent agent County, and his efforts were the Oklahoma City Founda- with Dunlap, Codding, Peter- recognized with a personal tion, Class of 1955 Fund; or to son and Lee and ultimately visit by first lady Nancy Rea- the OU Foundation, Center of served as chief patent counsel gan. In the late 1980s, he Child Abuse and Neglect. with Total Petrochemicals transferred from the juvenile aren Marie Noller of USA in Houston. division to the criminal divi- Arlington, Va., died Dec. sion in Tulsa County, where K illy Rex “B.R.” Beasley of 9, 2014. She was born Aug. 24, he presided over many high Claremore died Jan. 3. He 1959, in West Lafayette, Ind., B profile cases. Memorial dona- was born Aug. 29, 1934, in and grew up in Stillwater. She tions may be made to Will Tulsa. After receiving his earned a bachelor’s degree in Rogers United Methodist degree in business adminis- journalism from OSU, then Church. tration from the University of her J.D. from the OCU School Tulsa in 1957, he worked as a ndrew Jordan Haswell of Law in 1995. At the time of buyer for North American AJr. of Oklahoma City died her passing she was working Rockwell. He received his J.D. March 16. He was born on as a contract attorney in in 1967 from the TU College July 3, 1937. He graduated Washington, D.C. She loved

410 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 cooking for friends, singing, eorge E. Sneed of Austin, Barnsdall. He proudly served going on adventures, praying, GTexas, died Jan. 5. He was his country during WWII in serving others, her cats, bik- born on Nov. 28, 1941, in Los the United States Army 698th ing and swimming. She was Angeles. He joined the U.S. Petroleum Engineers. He an active member of McLean Marine Corps at age 17 and received battle stars for Nor- Bible Church in Vienna, Va. served with the Naval Secu- mandy, Northern France, Memorial donations may be rity Group at Kami Seya, Rhineland and Central made to Rivendell House, Japan, from 1959 to 1962. He Europe. He later wrote the 1232 Martha Custis Drive, received an honorable dis- history of his service in the Alexandria, Va., 22302. charge with the rank of cor- book, “Fuel to the Troops.” poral in 1962. He later attend- Upon his return from service effrey Lee “Jeff” Romine of ed the University of Texas at in December 1945, he attend- Tulsa died May 17, 2014. J Arlington, graduating with a ed OU, graduating from the He was born on Feb. 17, 1955, degree in history and a sec- OU College of Law in 1950. in Pryor and spent his youth ond major in English and a He worked for Farmers Insur- in Okmulgee, graduating minor in philosophy. He ance Group for 21 years and from Okmulgee High School became the director of opera- went on to be the regional in 1973. He attended OU, tions control for United Trans- manager for the Midwest and graduating with an account- ports in 1980. After United Southeast for the Truck Insur- ing degree. He earned a J.D. was purchased by another ance Exchange. He started from TU College of Law in company, he resigned and Commercial Insurance Servic- 1981. He worked for several enrolled in the OCU School es in 1977 which later insured years at a local accounting of Law. He worked his way 12 percent of the full truck- firm before he launched his through law school as a load traffic in the United own accounting practice research assistant for Justice States. The business was which he grew and ran for 27 Doolin of the Oklahoma sold in 2004. He was very years. In January 2013 he Supreme Court and Judge active in business and com- joined Briscoe, Burke and Parks of the Oklahoma Court munity throughout his life. Grigsby LLP. He was an avid of Criminal Appeals. He grad- He helped lobby the Cerebral outdoor sportsman who also uated in 1988 and practiced Palsy Institute into existence enjoyed photography and oil and gas law until he in 1948 as part of his interest writing stories about his chil- became the general counsel in veteran’s affairs. He also dren. Memorial donations for the Oklahoma Department served 16 years as Oklahoma may be made to the Cancer of Commerce in 2001. Ombudsman for the Employ- Research Institute via er Support of the Reserve www.cancerresearch.org/ ohn Gerald Sullivan of and Guard. giving-to-cri/honor- JNorman died Jan. 16. He memorial-giving. was born Dec. 5, 1923, in

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 411 WHAT’S ONLINE

Five Thoughts on the Future Jim Calloway shares five thoughts on the future for solo and small firm lawyers.

Gear up for Law Day It’s not too soon to start planning your county’s Law Day activities! Here you’ll find a few project ideas and ways to promote your events. http://goo.gl/AAUg3P http://goo.gl/USrqG2 Boost Efficiency Here are 20 office organization hacks that help you maximize efficiency, using things you can find around your home or office. http://goo.gl/mVkwAl Social Media for Lawyers Not familiar with Facebook or Twitter? Have a LinkedIn account but not sure how to use it? Check out this practical guide to social media. http://goo.gl/qyPqzG

412 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 CLASSIFIED ADS

SERVICES SERVICES

BRIEF WRITING, APPEALS, RESEARCH AND DIS- OF COUNSEL LEGAL RESOURCES — SINCE 1992 — COVERY SUPPORT. Eighteen years experience in civil Exclusive research & writing. Highest quality: trial and litigation. Backed by established firm. Neil D. Van Dal- appellate, state and federal, admitted and practiced sem, Taylor, Ryan, Minton, Van Dalsem & Williams PC, U.S. Supreme Court. Over 20 published opinions with 918-749-5566, [email protected]. numerous reversals on certiorari. MaryGaye LeBoeuf 405-728-9925, [email protected]. HANDWRITING IDENTIFICATION POLYGRAPH EXAMINATION OKC ATTORNEY HAS CLIENT interested in purchas- Board Certified Court Qualified ing producing or non-producing, large or small, min- eral interests. For information, contact Tim Dowd, 211 Diplomate — ABFE Former OSBI Agent N. Robinson, Suite 1300, OKC, OK 73102, (405) 232- Life Fellow — ACFEI FBI National Academy 3722, 405-232-3746-fax, [email protected]. Arthur D. Linville 405-736-1925 OFFICE SPACE Want To Purchase Minerals AND OTHER OIL/GAS INTERESTS. Send details to: P.O. Box WATERFORD OFFICE SPACE. 1,324 Rentable Space in 13557, Denver, CO 80201.

Waterford Bldg. 6301, 4th Floor, North View. Two large INTERESTED IN PURCHASING PRODUCING & executive offices, conference room/foyer, and kitchen/ NON-PRODUCING Minerals; ORRI; O & G Interests. file room. Great build-out with hardwood floors and Please contact: Patrick Cowan, CPL, CSW Corporation, crown molding. Call 405-202-2111. P.O. Box 21655, Oklahoma City, OK 73156-1655; 405- EXECUTIVE OFFICE SUITES. Two blocks from Dis- 755-7200; Fax 405-755-5555; email: [email protected].

trict & Federal Courthouses. Receptionist, phones, copier, internet, and cable provided. Six established at- CONSULT ING ARBORIST torneys available for referrals on a case-by-case basis. Midtown Plaza location. 405-272-0303. EXPERT WITNESS Tree appraisals, reports, damage assessments, OFFICE SPACE FOR LEASE IN ESTABLISHED FIRM. herbicide damage, hazard assessments Space located in Boulder Towers at 1437 S. Boulder Ave, Suite 1080, Tulsa, OK. Space includes two confer- www.billlongarborist.com ence rooms, kitchen, reception area, security and free [email protected] | 405-996-0411 parking. $1,200.00 per month. Contact Robert Williams at 918-749-5566 or [email protected]. ALSO OFFERING TREE PRESERVATION: pruning, pest control, tree nutrition, Office Space - Midtown Law Center trees in construction sites Lease in a restored 1926 building. Rent includes ISA Certified Arborist, #SO-1123, OSU horticulture alumni, phone, fax and LD, parking, internet, kitcdhen 24 years in business privileges, 2 conf. rooms, receptionist and basement storage. Seven attorneys with some referrals. BUSINESS VALUATIONS: Marital Dissolution * Es- 405-229-1476 or 405-204-0404 tate, Gift and Income Tax * Family Limited Partner- ships * Buy-Sell Agreements * Mergers, Acquisitions, SOUTH TULSA OFF MEMORIAL, three small office Reorganization and Bankruptcy * SBA/Bank required.

suites. Two offices one open now with workstation, Dual Certified by NACVA and IBA, experienced, reli- second open 2/15. Conference, internet, copier with able, established in 1982. Travel engagements accepted. other items negotiable. Phone Cliff @ 918-582-6550 or Connally & Associates PC 918-743-8181 or bconnally@ email [email protected]. connallypc.com. LUXURY OFFICE SPACE – Two offices available for

Appeals and litigation support lease in the Esperanza Office Park near NW 150th and Expert research and writing by a veteran generalist May in OKC. Fully furnished reception area, reception- who thrives on variety. Virtually any subject or any ist, conference room, complete kitchen, fax, high speed type of project, large or small. NANCY K. ANDER- internet, building security, free parking, $867 and $670 SON, 405-682-9554, [email protected]. month. Call Gregg Renegar 405-285-8118. Creative. Clear. Concise. MIDTOWN – 13TH & DEWEY. 2 offices (1 executive, 1

mid-size). Parking, new fax/copier, auto voice mail, wireless internet, library/conference room, reception area, kitchen. 405-525-0033 or [email protected].

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 413 POSITIONS AVAILABLE POSITIONS AVAILABLE OKLAHOMA CITY ATTORNEY WANTED for com- mercial, business, trust, estate planning practice. Two plus years’ experience helpful. All inquiries kept in strict confidence. Send résumé and salary requirement to: [email protected]. EXPERIENCED LITIGATION ASSOCIATE (5 years minimum) needed by AV-rated Tulsa insurance and NORMAN LAW FIRM IS SEEKING sharp, motivated

transportation defense firm. Very busy, fast-paced of- attorneys for fast-paced transactional work. Members fice offering competitive salary, health/life insur- of our growing firm enjoy a team atmosphere and an ance, 401k, etc. Candidates with strong academic energetic environment. Attorneys will be part of a cre- background and practical litigation experience, ative process in solving tax cases, handle an assigned please send a résumé and writing sample (10 pg. caseload, and will be assisted by an experienced support max) in confidence via email to [email protected]. staff. Our firm offers health insurance benefits, paid va- Gibbs Armstrong Borochoff Mullican & Hart, P.C. cation, paid personal days, and a 401K matching pro- gram. Applicants need to be admitted to practice law in OKC MIDTOWN LAW FIRM specializing in construc- Oklahoma. No tax experience necessary. Submit cover letter and résumé to [email protected]. tion law and insurance defense seeking attorney with 5+ years’ experience in civil litigation and/or insur- THE LEFLORE COUNTY DISTRICT ATTORNEY’S ance defense. Salary commensurate with experience

OFFICE is seeking an Assistant District Attorney for its and includes benefits. Please reply to “Box K,” Okla- Poteau Office. Responsibilities include the criminal homa Bar Association, PO Box 53036, Oklahoma City, prosecution of all felony and misdemeanor cases, pro- Oklahoma 73152. vide advice to local law enforcement and county offi- ATTORNEY, IN-HOUSE COUNSEL POSITION — cials, and perform other duties as assigned. Salary DOE. Applicant must have a J.D. from an accredited

Helmerich & Payne Inc., a Tulsa-based domestic and international contract drilling company seeks full-time law school; legal experience in criminal law and prior attorney with 7-10 years’ experience in energy, corpo- courtroom experience preferred. Must be member of rate compliance and/or general business practice. A good standing with the Oklahoma State Bar. Appli- J.D. degree from an accredited law school and member- cants may submit a résumé, postmarked no later than ship in good standing in the Oklahoma Bar is required. FEBRUARY 27, 2015, to the following address: District Ability to speak Spanish is a plus, but not required. Attorney’s Office, 100 S. Broadway, Room 300, Poteau, Submit confidential résumé and application with sala- OK 74953, 918-647-2245, Fax: 918-647-3209. ry requirements at www.hpinc.com/careers. CATHOLIC CHARITIES seeks an attorney to work

with clients in the Immigration Legal Services pro- DOWNTOWN OKLAHOMA CITY AV RATED MEDI- gram. Applicants must have a J.D. and be admitted to CAL MALPRACTICE and insurance defense firm practice in any state or U.S. territory. Bilingual appli- seeks an associate attorney with zero to two years’ ex- cants are encouraged to apply. Send cover letter, résu- perience. Candidate must be highly motivated, possess mé and salary history to Human Resources, 1501 N. the ability, experience, and confidence to appear in court Classen Blvd, OKC, 73106. EOE. for motion hearings and trial. Position requires strong communication, research and writing skills. Competitive LARGE DOWNTOWN OKLAHOMA CITY LAW

benefits and compensation package will be commensu- FIRM seeks Paralegal to fill a position with our estab- rate with experience. All replies are kept in strict confi- lished Oil & Gas practice group. Prior experience as a dence. Applicants should submit résumé, cover letter, paralegal and excellent word processing and organiza- and writing sample to: “Box Y,” Oklahoma Bar Associa- tional skills are required. Previous experience as an oil & tion, P.O. Box 53506, Oklahoma City, 73152. gas paralegal is a plus. The starting salary is negotiable based on experience. Generous benefits package includes THE OKLAHOMA BAR ASSOCIATION HEROES pro- paid parking, medical and life insurance. Other benefits gram is looking for several volunteer attorneys. The include 401(k), profit sharing, dental insurance, vision need for FAMILY LAW ATTORNEYS is critical, but at- insurance, long-term disability insurance, and a cafeteria torneys from all practice areas are needed. All ages, all plan for uninsured medical and child care expenses. counties. Gain invaluable experience, or mentor a Please send résumé, references and salary requirements young attorney, while helping someone in need. For to Judy Cross at [email protected] more information or to sign up, contact Gisele Perry- man, 405-416-7086 or [email protected]. WORKERS COMP DEFENSE ATTORNEY needed for

midsize Oklahoma City firm. Candidate must be high- POSITION AVAILABLE: Attorney, paralegal or legal ly motivated and able to work in a fast-paced environ-

assistant having two years of real property transaction- ment. Position requires at least three years of workers al experience wanted in assisting OKC corporate legal comp experience. Deposition and courtroom experi- department with real property transactions. Must have ence a must. Competitive salary and benefits. All re- complete computer skills. Send reply with résumé, ref- plies are kept in strict confidence. Qualified candidates erences and salary requirements to “Box Z,” Oklahoma may send their résumé to “Box JJ,” Oklahoma Bar As- Bar Association, PO Box 53036, OKC, OK 73152. sociation, PO Box 53036, Oklahoma City, OK 73152.

414 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015 POSITIONS AVAILABLE POSITIONS AVAILABLE EXPERIENCED LITIGATION/COLLECTION/BANK- LARGE TULSA PLAINTIFFS’ FIRM SEEKS motivated

RUPTCY ASSOCIATE (2-5 years). AV rated NW OKC associate with 2+ years litigation experience. Full ben- law firm seeks associate with such experience. Salary efits, including 401(k). Candidate must possess the commensurate with experience. Please send résumé ability to work as part of a team in a fast-paced, client- and cover letter to “Box N,” Oklahoma Bar Associa- focused, environment. Send résumé and writing sam- tion, PO Box 53036, Oklahoma City, OK 73152. ple to “Box KK”, Oklahoma Bar Association. BUSY NORTHWEST OKLAHOMA CITY GENERAL COLLECTION ATTORNEY NEEDED. Must have prior

PRACTICE FIRM seeks associate attorney to handle collection experience. Must be self motivated, orga- family law litigation, criminal practice, adoptions, pro- nized, responsible and capable of handling heavy case bate and general civil litigation. Some experience pre- load. Fax résumé to 405-478-0296. ferred. Please submit résumé and writing sample to P.O. Box 720241, Oklahoma City, OK 73172. POSITIONS WANTED OFFICE OF THE OKLAHOMA ATTORNEY GENER- LICENSED OKLAHOMA (1989) AND PATENT AT-

AL UNCLASSIFIED VACANCY ANNOUNCEMENT.

TORNEY (1999) available for hire as in-house or within Date Open: Immediately. Date Closed: Until filled. Ti- product liability firm - litigation experience, modest tle: Assistant Attorney General, Litigation Section. Sal- salary requirements and existing limited clientele. See ary Range: Commensurate with experience and quali- résumé at www.patentlawman.com. No benefits re- fications. Location: Oklahoma City or Tulsa, OK. The quired. Inquiry 405-833-7058 or [email protected]. Office of the Oklahoma Attorney General is currently seeking a licensed attorney with a minimum of 5 years of litigation-related experience and working knowl- BOOKS WANTED edge of civil procedure required. Experience in the ar- eas of contract review, rulemaking, creating and/or re- LOOKING FOR ANY VERSION of Kaplan or BARBRI

viewing times and rate legal bills, conducting legal bill Bar Points Review book for OKLAHOMA Bar Essay audits and litigation claims review are preferred. Excel- Exam. Contact [email protected]. lent research, writing and negotiation/conflict resolu- tion skills are required. A writing sample must accom- pany résumé to be considered. Occasional travel is CLASSIFIED INFORMATION required. Salary commensurate with experience in ac- REGULAR CLASSIFIED ADS: $1 per word with $35 minimum cordance with office pay scale. EOE. Send résumé and per insertion. Additional $15 for blind box. Blind box word writing sample to: [email protected], or mail to: count must include “Box ___,” Oklahoma Bar Association, PO Oklahoma Attorney General, 313 NE 21st Street, Okla- Box 53036, Oklahoma City, OK 73152.” homa City, OK 73105. DISPLAY CLASSIFIED ADS: Bold headline, centered, border EXPERIENCED LEGAL ASSISTANT/PARALEGAL. are $50 per inch of depth. DEADLINE: See www.okbar.org/members/BarJournal/ Law firm located in Norman seeks a full-time legal as- sistant or paralegal with experience working in family advertising.aspx or call 405-416-7018 for deadlines. law or general civil law. Position offers a competitive sal- SEND AD (email preferred) stating number of times to be ary and benefits for qualified applicants. Please send ré- published to: sumé and cover letter to [email protected]. [email protected], or Emily Buchanan, Oklahoma Bar Association, PO Box 53036, ESTABLISHED CHICKASHA AND ANADARKO Oklahoma City, OK 73152.

LAW FIRM is seeking a partner-track Associate Attor- ney with 1 to 5 years of experience primarily in Divorce Publication and contents of any advertisement are not to be – Family Law. Position will also include some Civil liti- deemed an endorsement of the views expressed therein, nor gation and Criminal defense work. Salary range nego- shall the publication of any advertisement be considered an en- tiable based upon experience. Send résumé to: Bret dorsement of the procedure or service involved. All placement Burns, 519 W. Chickasha Avenue, Chickasha, Oklaho- notices must be clearly non-discriminatory. ma, 73018 or call for an appointment at 405-320-5911. DO NOT STAPLE BLIND BOX APPLICATIONS.

Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 415 THE BACK PAGE

Let’s Just Get Along By Jim Webb

Reform is a frequently used positive for Oklahoma will come The judicial branch was word. We freely invoke this out of this fight if it continues in designed to be absent of politics word when it strikes us as expe- 2015. We will all pay the price. as much as possible. We can dient. But what does “reform” Think back with me to high debate all day about the preva- really mean? Is it reorganization? school civics — a long, long time lence or absence of judicial activ- Restructuring? Refining? All of ago for some of us! Our system ism. However, when you cut the above? None of the above? of government relies on checks through the fog, it is imperative “Reform” is a word we should and balances. Operating as that we take every possible step never use recklessly, because the intended, this allows each of to make certain our judges can word — in its purest sense — the three co-equal branches to make their decisions based on means to change something appropriately limit — or “check” the facts, the law — and abso- because it is corrupt or wrong. — the powers of the other lutely nothing else. As we head into another legis- branches, thereby ensuring the This year we will apparently lative session in Oklahoma, we proper “balance” of power once again see proposals that are will undoubtedly hear about amongst the branches. designed to allow the legislative various “reforms” that are James Madison taught us (in and executive branches to direct- claimed to be needed. Yes, there The Federalist No. 51) the “legis- ly impact the judiciary. Ladies are certainly instances where lative authority necessarily pre- and gentlemen, please let us not lawmakers must step in to truly dominates” in our system of forget the past. In 1969, Oklaho- reform areas of our government government. Similarly, in his ma voters approved amend- that are struggling to carry out Commentaries on American Law, ments to the state constitution to their duties and meet their mis- James Kent said it this way: take party politics and potential sion. We saw that happen rela- corruption out of the judicial- “The power of making laws is tively recently, when the Leg- selection process following a ter- the supreme power in a state, islature played a vital role in ribly embarrassing political and the department in which it improving the operations of the scandal. Oklahoma has come a resides will naturally have such Department of Human Services, long way. Now is not the time a preponderance in the political an agency plagued for many to reverse that progress. system, and act with such years with woefully insufficient mighty force upon the public Oklahomans are best served funding and staffing to address mind, that the line of separation when the branches of govern- the serious issues faced by between that and the other ment work together to preserve Oklahoma’s at-risk children. branches of the government democracy and ensure equal That effort took cooperation ought to be marked very dis- access to a fully funded judicial amongst all three branches of tinctly, and with the most careful system. My hope for all of us is our government. precision.” that we will see collaboration What we witnessed last year and cooperation between the Inter-branch governmental was anything but cooperation branches during the upcoming disputes absolutely will happen. between two of those branches, legislative session. That is inherent in checks and the Legislature and the judiciary. Mr. Webb serves as Oklahoma balances. Particularly when it In fact, we witnessed almost County Bar Association president. comes to the Legislature and the open warfare between the two. judiciary, however, it is vital that This article, published in the Jan- I am not placing blame. Pre- restraint be shown in the rela- uary 2015 Briefcase, is reprinted sumably, there is blame to tionship between the two with permission from the Oklahoma spread all around. One thing is branches. County Bar Association. clear, though. Absolutely nothing

416 The Oklahoma Bar Journal Vol. 86 — No. 5 — 2/14/2015