T h e AlabamaJuly 2018Lawyer | Volume 79, Number 4

LLL Alabama Lawyers’ Hall of Fame Efforts to Protect Seniors and Alabama’s Daubert Page 242 Other Vulnerable Adults from Amendment: An Overview of Financial Exploitation The Current State of the Page 246 Law and Resources for the Practitioner Page 254

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LawPay is a registered ISO of Citizens Bank, N.A. Baxter, Tuscaloosa • Joseph K. Beach, Atlanta • Jennifer M. Bedsole, Birmingham • D. Edgar Black, Muscle Shoals • Henry L. Cassady, Anne Ford, Birmingham • Leigh K. Forstman, Birmingham • Hon. William R. Gordon, Montgomery • Steven P. Gregory, Birmingham Dettling, Hoover • Christie Lyman Dowling, BirminghamJr.(Max), Evergreen• Jesse W.• P. LloydCopeland, MobileEvans,Joi T.• Christoff, III, BirminghamMontgomery • Ashley DeGaris,H. • KiraBirmingham •Y. Aaron L. Fonteneau, Birmingham • Sara Patty, Montgomery • Sherrie L. Phillips, MontgomeryRachel L.• KatherineMiller, MontgomeryT. Powell, • BirminghamAnil A. Mujumdar,• Julie H. Ralph,Birmingham Baton • BlakeRouge L.• PrestonOliver, Y.Opelika • Rebecca D. Parks, Mobile • William F. Register, Dothan • Tracy L. Richards, Mobile • Christopher E. Sanders, Montgomery • J. Beren Segarra (Ben), Mobile • Joel P.MobileJennifer• Smith,Brooke Marshall, The Woodlands, J.BradleyTX• Medaris, Montgomery• Amy• M. Allen Hampton,P. Mendenhall, AlexanderMontgomery City• • Sarah S. Johnston, Montgomery • Margaret H. Loveman, Birmingham • Mignon A. Lunsford, Jr., Eufaula • Marc A. Starrett, Montgomery • Mary H. Thompson, Mountain Brook • M. Chad Tindol, Tuscaloosa • Jason B. Tompkins, Mobile • Barr D. Younker, Jr., MontgomeryBirmingham • Henry J. Walker, Jr., Birmingham • Stephen A. Walsh, Birmingham • W. Gregory Ward, Lanett • David G. Wirtes, Jr., BOard Of EdiTOrs: Alabama’s Daubert T h e Focus on Personal Mindset Intentionality and Awareness s e l c i T r a e r u T a e F 4 r e b m u N , 9 7 e m u l o V | 8 1 0 2 y l u J Alabama Lawyer Alabama State oftheLawandResources for thePractitioner Vulnerable Adults from FinancialExploitation Record Donations for Regional Food Banks Melanie M. Atha, Birmingham • J. Pratt Austin-Trucks, Wetumpka • Marc J. Ayers, Birmingham • G. Glasco By Terrence W. McCarthyandBrooke G.Malcom Efforts toProtect SeniorsandOther By JoshuaD.JonesandW. Preston Martin Alabama Lawyers’ HallofFame Lawyers Render Service: The Leadership Forum: Amendment: An OverviewoftheCurrent By JeanneDowdleRasco By Edward M.Patterson 254 246 242 277 263 Bar member –Submitted by an Alabama State Baldwin County, Alabama. Sunset at Terry Cove, On On CoverThe Allison O. Skinner, Birmingham Jonathan C. Hill (Rudy), Montgomery Linda G. Flippo, Birmingham Wilson F. Green, Tuscaloosa Gregory H. Hawley, Birmingham Executive Director’s Report s N m u l o c The App ellate Corner Legislative Wrap-Up flickr.com/AlabamaStateBar youtube.com/TheAlabamaStateBar @AlabamaStateBar @AlabamaStateBar facebook.com/AlabamaStateBar Disciplinary Notices From theOfficeof Important Notices About Members, General Counsel President’s Page Associate Editor, Among Firms Memorials 280 274 270 268 240 239 236 298 288 ...... Co-Chair and Associate Editor, Associate Editor, [email protected] ...... Addendum [email protected] ...... Addendum [email protected] ...... Chair and Editor ...... Vice Chair and [email protected] www.alabar.org [email protected] Chair and Editor Vice Chair and 233

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T h e Alabama Lawyer 236 T h e Alabama Lawyer July 2018 [email protected], Augusta S.Dowd (205) 323-1888 mom’s Phone places! Thankfully, for the most part, call heard of (and perhaps excessive) new president and taken it to previously un- that i had clearly elevated the role of bar kinds of hilarious commentary, including this technological quirk resulted in all from “mom’s Phone.” as you might expect, by caller id that the call was coming in outgoing call, the recipient was notified icant exception. Whenever i placed an like it was supposed to . . . with one signif- reset, my phone went back to working phone back in working order. after the away and then re-installed to get my tion on my phone had to be stripped mean that all of the settings and informa- be “reset.” i understood that process to through no fault of my own–and it had to haywire with my phone–i am certain a few months ago, something went e g a P s ’ T N e d i s e r P tions in a new and positive direction. reset took my telephonic communica- whatever turns each call might take. This civil, humorous and pleasant tone for “mom’s Phone” pop up on caller id set a was a good conversation starter. seeing almost without exception, “mom’s Phone” quite unprofessionally as “mom’s Phone.” knew that my caller id was described voices, laughing and asking whether i phone without the typical edge in their around for posterity!). They answered the terms given that this article will be shall refrain from other more descriptive lawyers who are normally a bit prickly (i confused. it even seemed to work on graciously, kindly and warmly, if a little bit mothers that they answered the phone positive relationships with their own recipients seem to have had sufficiently as i look back on the last year, i think the notion of a reset he chose to leave a very successful law practice to serve our and then heading in a new and positive direction has been a membership and the public. Phillip is passionate about his major theme of my presidential year. our state bar has al- love for our profession and the advancement of our member- ways been in good hands with excellent leadership, but this ship. he cares deeply about the lawyers who make up our ex- year has brought significant changes in its leadership–resets, ceptional association. he has served us well, and i know he if you will. Those resets have brought new leadership to the will continue to do so into the future. bar staff. our new leaders will be critical to our bar’s success- Phillip agreed with me that a reset was needed in the bar’s ful navigation through whatever challenges lie in our future. relationship with its members as well as in the bar’s relation- much like the reset that resulted in all of my communica- ship with our judiciary. as a part of that reset, over the tions coming from “mom’s Phone,” i trust that these resets in course of this year, Philip and i have traveled the state pre- our bar will continue to lead our bar and its membership on senting a program we titled the “state of the bar.” our pres- a positive and productive trajectory. entation was a combined discussion of bar news and as you all know, Phillip mccallum went into office as our updates to our member benefits along with a discussion of new executive director shortly before the 2017 annual meet- court costs and court-funding issues facing our judiciary, our ing. since Phillip’s rookie year coincided with my presidential profession and access to justice for the public we serve. year, we occasionally made some interesting and totally unex- many of you were gracious enough to host us, and we pected twists and turns as he learned how to be an executive greatly enjoyed talking to lawyers about the bar, but more director at the same time as i was stumbling along learning to importantly, getting to know you and hearing your concerns be presidential. i could not have asked for a better person to about issues that affect all of us. From the feedback we have work with me and navigate the path forward for our bar. if received, i believe that the state of the bar program has you haven’t already done so, please reach out to Phillip and been a huge success. our members have expressed great get to know him. Phillip is the real deal. We are fortunate that appreciation following our visits. i certainly believe both

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AlabamaLLM.ua.edu/aldu/al Alabama Lawyer T h e 237 www.alabar.org 238 T h e Alabama Lawyer July 2018 roman shaul?!Fromroman ofmy presidential thestart year, the both groups. the benchandbarcanonlywork to thebestinterests of will continue into thefuture. astrong relationship between enhanced communication anddialoguewithourjudiciary specifically.our supreme court iam greatly encouraged that the bar’s asawholeandwith relationships withthejudiciary of thebarpresentations. with theirlocallegislators, whichwas akeygoalofourstate lawyers are upandaddressing nowtheseissues speaking funding. costs as andcourt aresultcourt ofthisreset, our tive area ofourpresentation hasbeenthediscussionof of ourstate ofthebarsessionsknow, asignificant substan- bers first-hand. and asthose of you whohave attended one Phillip andibenefitted greatly from from learning ourmem- (Continued frompage237) (334) 478-4147 • www.alis-inc.com speaking ofresets,speaking how aboutournewgeneral counsel, similarly, ibelieve positive there reset hasbeenavery in Jim HEndErsOn Jim Private Investigative > Services Statewide > Process Serving Tag Registration Searches > Vehicle Searches Lien > s E C i v r E s ClayHEndErsOn Skip Tracing > e g a P s ’ T N e d i s e r P wish you all the very best that lifewish you allthevery hasto offer. s Thank you you andthisbar, for thehonorofserving andi tinuing thegoodwork we have alldonetogether this year. phone. conversation ilookforward to ournext andto con- ing “mom’s Phone” asmileasyou willstillbring answer the your bar president time igive thenext you acall, ihopesee- throughout. you guys rock! and even thoughimay notbe andwisdom staff oftheasbfor theirselflesssupport the membersofboard ofbarcommissioners andthe schedule, my clients, themembersofmy executive council, and opposingcounsel whopatiently worked around my bar to my husbandandchildren, my law the firm, co-counsel sonally, extremelyrewarding andalot of fun.many thanks be your president. hasbeenanincredible year it for meper- year next isgoingto befuntoour president-elect, watch! crow atsam thehelmand christy waiting inthewingsas sion andpassionfor ourprofession andourmembers. With successful.be enormously isbringing withhimgreat sam vi- presidency, icantell you that theupcoming year isgoingto state bar. having worked throughout closelywithsam my printed, willhave beeninstalledasthe143 of my friend, irby, sam who, is by thetimethisarticle with our membership, the judiciary and the public. our bar move toward greater relevance and engagement move forward our entire association. i look forward to seeing along with the talents of our bar leadership to continue to bar now filled, it is time to use our staff’s combined talents change and growth. With the two top staff positions in our andprofessionalism.service counsel’s office to takethat office to thehighestlevels of how works roman withouralready outstandinggeneral meet roman. What personheis–ican’t aterrific wait to see to ihopeyoumeeting insandestin, hadanopportunity our profession for years to come. you if attended theannual result oftheirhard work willpay dividendsfor ourbarand the search committee for thisposition.ihave nodoubtthe process, of andiamgrateful asapart to thosewhoserved counsel resulted from utilization ofanexhaustive search as withPhillip’s asourgeneral roman selecting selection, executiveour next director beapersonasspecialPhillip. that important right,we justasitwas very getthisselection to thefuture ofourbarthat important was very it mclain? across thestate. Who could possiblyfilltheshoesof Tony ireceivedof thekeyinquiries from lawyers andjudges question ofwhowould beournewgeneral counsel was one in closing,in ithankyou allfor thehonorofallowing meto i leave capablehands theleadershipofbarinvery after a year of resets, next year will be a year of adjustment, rd president ofour L L membership dues membership annual license fees and leadership award Harold albritton Pro Bono are available online L as needed. ment or print a voucher. instructions for the payment process and help withselect logging in “consolidated Fee invoice” from your mydashboard page orto youmake can an createonline pay- and print a voucher to mail with your check. log in to the website and will notreceive invoice apaper inthemail. late to fee. thestatutory 31willbesubject october Asareminder,made after you dues for a special membership are $162.50. Payments are due by october 1; payments september.be emailedinearly The fee for anoccupational license is$325andthe dues membership annual license Fees and (334) [email protected]. 2018. For more information about thenomination process, lindalund contact at any applicableto theabove baractivities criteria. ofasmany ofthefollowingperformance asapply: criteria pagesthat providetwo specific, single-spaced concrete examples ofthenominee’s award will be presented during Pro bono month 2018 (october). pro bono legal services to our state’s poor and disadvantaged. The mitment have enhanced the human dignity of others by improving and honor individual lawyers who through their leadership and com- leadership award harold albritton Pro bono upon receipt of the renewal notice, online payments may be made at renewal notices for payment ofannuallicense andspecialmembershipdues will To beconsidered for theaward, nominations mustbesubmitted by august 1, To theextentappropriate, includeintheaward narrative criteria of adescription successfully achieved legislation orrulechanges that contributed substantially 4. that resulted Participated insatisfying inanactivity previously unmetneedsor 3. contributed significant work toward developing innovative approaches to de- 2. demonstrated dedication to the development1. and delivery of legal services to per- To nominate anindividualfor thisaward, submitnomore than The harold albritton Pro bono leadership award seeks to identify to legal services to personsoflimited meansorlow-incometo legalservices communities. segments to ofthepopulation; or underserved services in extending ofvolunteerlivery legalservices; sons of limited means or low-income communities through a pro bono program; s e c i T o N T N a T r o P m i www.alabar.org www.alabar.org 239

T h e Alabama Lawyer 240 T h e Alabama Lawyer July 2018 phillip. Phillip W. McCallum [email protected] T r o P e r s ’ r o T c e r i d e V i T u c e x e to be on the other side of the situation, to new job. This opportunity has allowed me year i was just sinking my teeth into a me professionally and how this time last reflect on a very transformational year for new era for bar leadership. i was able to lowship, but it’s also the beginning of a ing of a new one. it’s a time of fun and fel- the closing of one chapter and the open- This is each year, the annual meeting marks your its rewards. tunity presents growing pains, it also has challenge, and though each new oppor- director of this organization has been a years of practicing law, being executive leadership and bar staff. after nearly 30 ther appreciate the contributions of stead of just being a member and to fur- president, to be working at the bar in- be the administrator instead of the bar bar ways he will further ourmissionasanorganization.ways hewillfurther move into President irby’s sam tenure, ilookforward to the of transition to thepositionofexecutive director. as we her enoughfor my herguidance during andfriendship time to leadthisbarintoin herefforts thefuture. icannotthank augusta dowd hasbeenincredibly engagedandintentional tinue to have an impact on their communities. service to others. i am excited to see how our members con- ing the bond that holds us all together–lawyers rendering unites us, the alabama state bar looks forward to strengthen- many challenges our profession faces. as the association that formative, eye-opening experience and a reminder of the meeting lawyers in all corners of alabama has been an in- zation and know that we are just as invested in them. ments. We want our members to feel invested in this organi- matter their firm size, practice area or professional achieve- emphasize that the alabama state bar is for every lawyer, no We are inthemidstofarevival withmany changesonthe heryearduring inoffice, President (now pastPresident) This year, our bar made it a priority to get on the road and those who have helped me along the way. s those whohave helpedmealongtheway. has beenoneofthehighlights ofmy career andiappreciate road around lawyers trip inthiscapacity thestate. serving members thispastyear andlookforward to continuing my school to retirement. ihave enjoyed our gettingto know withusfrom law missions ceremony; itisapartnership state bar. amemberdoesn’t being andendat thead- start public. formake itfriendly all thewebsitethey are alsointheprocess to ofre-designing onbranding, thisproject.Notonlyisbigworking dertake interact withbigcommunications, theteam we hired to un- many ofyou were ableto and see thenewbranding roll-out our communications alongwithpersonnelnews. effort, corner. we sandestin, announced in majorimprovements to an exceptional private lawyer practice andajudge, inour nual meeting. We are to fortunate have bothas hisexpertise, shaul.roman ihopeyou were ableto meethimat thean- horizon. We recently welcomed anewgeneral counsel in There isnobetter timeto getinvolved inthealabama users–bar membersandthegeneral www.alabar.org 241

T h e Alabama Lawyer 242 T h e Alabama Lawyer when newmembersare into inducted July 2018 President Augusta S.Dowdaddresses the Hall ofFameSelectionCommitteeand family andfriendsofthehonorees. the alabama lawyers’ hallofFame Hall of Fame may istraditionally themonth ’ S R E Y W A L A M A B A L A board of bar commissioners, the director alabama, four members appointed by the ing federal district court judges of ber appointed by each of the three presid- appointed by the chief justice, one mem- dent of the alabama state bar, a member consisting of the immediate past presi- took place for theyear 2004. approved in2003andthefirstinduction sioners. The was committee report mendation to theboard ofbarcommis- guidelines andthenprovide arecom- force to studytheconcept, setup dent Fred gray. heappointed atask nated theterm ofstate during barPresi- alabama lawyers’ hallofFame origi- ofthisstate.the history themanymorializing great lawyers in intoshould beturned amuseumme- bar buildingandvacant at that time, building, adjacent to thealabama state proposal that theformer supreme court state barPresident rumore sam witha attorney gomery Terry brown wrote appeared intheyear 2000whenmont- building. The ideafor ahallofFame first which islocated at thestate judicial a 12-member selection committee, The implementation oftheideaan ntebrswbie s on thebar’s website. and profiles are ofallinductees found lower rotunda ofthejudicial building orating are theinductees located inthe quested information. Plaques commem- www.alabar.org andsubmittingthere- downloading thenomination form at can bemadethroughout theyear by have notbeennominated. Nominations great lawyers cannotbechosenifthey present-day lawyers for consideration. needed ofhistoric figures as well as nation ofinductees. Nominations are bar andthegeneral publicfor thenomi- licits suggestionsfrom membersof the cent lawyers of the state. historic figures, as well as the more re- years in order to give due recognition to have been deceased a minimum of 100 year, at least one of the inductees must the time of their selection. also, for each have been deceased at least two years at fessional success. each inductee must ice, mentorship, political courage or pro- forms of achievement, leadership, serv- demonstrated through many different guished career in the law. This could be hall of Fame must have had a distin- nees and to make selections for induction. bar, meets annually to consider the nomi- executive secretary of the alabama state bench and bar historical society and the and history, the chair of the alabama of the alabama department of archives The selection committeeThe so- actively selection inductees to the alabama lawyers’ Bibb Allen family Mahala Ashley Dickersonfamilyandfriends www.alabar.org 243

T h e Alabama Lawyer 244 T h e Alabama Lawyer John CooperGodboldfamily July 2018 Alto Velo Lee,IIIfamilyandfriends Charles Tait family

ALABAMA LAWYERS’ HALL OF FAME PAST INDUCTEES 2016 2012 2008 William B. Bankhead (1874-1940) John A. Caddell (1910-2006) John B. Scott (1906-1978) Lister Hill (1894-1984) William Logan Martin, Jr. (1883-1959) Vernon Z. Crawford (1919-1985) John Thomas King (1923-2007) Edwin Cary Page, Jr. (1906-1999) Edward M. Friend, Jr. (1912-1995) J. Russell McElroy (1901-1994) William James Samford (1844-1901) Elisha Wolsey Peck (1799-1888) George Washington Stone (1811-1894) David J. Vann (1928-2000) 2007 2015 2011 John Archibald Campbell (1811-1889) Abe Berkowitz (1907-1985) Roderick Beddow, Sr. (1889-1978) Howell T. Heflin (1921-2005) Reuben Chapman (1799-1882) John McKinley (1780-1852) Thomas Goode Jones (1844-1914) Martin Leigh Harrison (1907-1997) Nina Miglionico (1913-2009) Patrick W. Richardson (1925-2004) Holland McTyeire Smith (1882-1967) Charles Morgan, Jr. (1930-2009) Frank Edward Spain (1891-1986) William D. Scruggs, Jr. (1943-2001) 2006 William Rufus King (1776-1853) 2014 2010 Thomas Minott Peters (1810-1888) Walter Lawrence Bragg (1835-1891) Edgar Thomas Albritton (1857-1925) John J. Sparkman (1899-1985) George Washington Lovejoy (1859-1933) Henry Hitchcock (1792-1839) Robert S. Vance (1931-1989) Albert Leon Patterson (1894-1954) James E. Horton (1878-1973) Sam C. Pointer, Jr. (1934-2008) Lawrence Drew Redden (1922-2007) 2005 Henry Bascom Steagall (1873-1943) Harry Seale (1895-1989) Oscar W. Adams (1925-1997) William Douglas Arant (1897-1987) 2013 2009 Hugo L. Black (1886-1971) Marion Augustus Baldwin (1813-1865) Francis Hutcheson Hare, Sr. (1904-1983) Harry Toulmin (1766-1823) T. Massey Bedsole (1917-2011) James G. Birney (1792-1857) William Dowdell Denson (1913-1998) Michael A. Figures (1947-1996) 2004 Maud McLure Kelly (1887-1973) Clement C. Clay (1789-1866) Albert John Farrah (1863-1944) Seybourn Harris Lynne (1907-2000) Samuel W. Pipes, III (1916-1982) Frank M. Johnson, Jr. (1918-1999) Annie Lola Price (1903-1972) Alabama Lawyer Arthur Davis Shores (1904-1996) T h e 245 www.alabar.org 246 T h e Alabama Lawyer July 2018 Other Vulnerable Adults from Efforts toProtectSeniorsand In April 2016, Alabama became one of Financial Exploitation the first states to enact legislation By Joshua D. W. Jonesand Preston Martin mental authorities. be “vulnerableclients”togovern- exploitation ofpersonsdeemedto tions toreportsuspectedfinancial requiring certainfinancialinstitu- or adultswith diminishedcapacity, abuse, such as elderlycustomers most susceptibletofinancial those individualswhomay be tion Act (the“Act”)is toprotect Adults fromFinancialExploita- the Protectionof Vulnerable 1 The goalof mentation of the Act. stakeholders regardingtheimple- ment, and(iii)hearfrom various FINRA andthefederal govern- state regulatorsandlegislatures, Act, (ii)analyzesimilar efforts by will (i)provideanoverview ofthe or isbeingattempted. This article have occurred,hasbeenattempted a reasonablebeliefthatitmay those financialprofessionalshave port suspectedexploitationwhen other “qualifiedindividuals”re- investment advisers,agentsand by mandatingthatbroker-dealers, Act seekstoaccomplishthatgoal from potentialwrongdoers. The www.alabar.org 247

T h e Alabama Lawyer 248 T h e Alabama Lawyer nerable adult” includes(i)aperson65 yearsofageor financial exploitation. As definedin the Act, a“vul- Who is Protected by theact? The followingisabrief overview ofthe Act. civil liabilityforactions taken consistentwiththe Act. vides qualifiedimmunityfromadministrativeand brokerage firms,the Act pro- trustee); and(iv)toincentivize legal guardian,conservator, has alegalrelationship(e.g., with whomthevulnerableadult ual[s]” ortootherthirdparties “reasonably associatedindivid- tential financialexploitationto to makedisclosuresaboutpo- brokerage firmsareauthorized count; (iii)incertaininstances, from avulnerableadult’s ac- delay thedisbursementoffunds exploitation arepermittedto age firms is beingattempted;(ii)broker- occurred, hasbeenattemptedor nerable adult”mayhave nancial exploitationofa“vul- they reasonablybelievethatfi- sources (“DHR”)whenever Department ofHumanRe- to the ASC andthe Alabama dividuals arerequired advisers andotherqualifiedin- (i) broker-dealers, investment contains severalkeyprovisions: in moredetailbelow, the Act vestor protection. As discussed with itsroleoffurtheringin- sion (“ASC”)inconnection Alabama SecuritiesCommis- exploitation act From Financial Vulnerable adults The Protection of July 2018 The Act seekstoprotect “vulnerableadults”from The Act wasdraftedbythe 2 that suspectfinancial to report person” as defined in § 38-9-2 (i) aperson65yearsofageor developmental disabilities,or which includespersonsover “vulnerable adult”includes older, and(ii)a“protected senile, haveintellectualor are mentallyorphysically of theCode Alabama, 18 yearsofagewhoare incapable ofadequately caring forthemselves. As definedinthe Act, a exploitation asaresultoftheiradvancedage,dimin- tify adultswhomaybesubjecttofinancial ment policiesandprocedurestohelpemployeesiden- The ASC hasencouragedbrokeragefirmstoimple- ically incapableofadequatelycaringforthemselves. or developmentaldisabilities,arementallyphys- over 18yearsofagewhoaresenile,haveintellectual 9-2 oftheCode Alabama, whichincludespersons older, and(ii)a“protectedperson”asdefinedin§38- that may signal cognitive issues. taining a client’s sense of autonomy and dignity.” regarding potential cognitive decline while still main- their employees on “how to ask appropriate questions loss and erratic behavior. orders or questions, difficulty with basic math, memory ance officers and financial advisors were repeating of that the red flags most commonly observed by compli- tion.” of seniorfinancialexploita- tion, reporting,andmitigation information relatedtothedetec- the Act andcontaining“useful regarding theimplementationof sued writtenguidancetofirms encouragement, the ASC hasis- disabilities. Inadditiontothis tual ordevelopmental ished capacityorotherintellec- better position to notice red flags the financial professional in a tionships with clients, which puts ity is by developing strong rela- detect signs of diminished capac- sions. One of the best ways to capacity to handle financial deci- cognitive decline or a reduced employees to spot the signs of age firms teach their frontline training programs to help broker- cial exploitation.” becoming thevictimoffinan- vent aclientorcustomerfrom their promptactionsmaypre- their clientsandcustomers, tential impairmentsaffecting cognitive declineorotherpo- tioned toseetheredflagsof sionals areoftenuniquelyposi- noted that“[f]inancialprofes- The ASC has also developed 7 Finally, firms should train 4 In doingso,the ASC has 6 An AARP study found 5 8 3 for brokerage firmstonotifytrusted third parties the ASC and DHR,the Act alsoprovides anavenue Exploitation notifying Third ofPotential Parties financial financial senior Exploitation reporting deprive a vulnerable adult of his or her property. ney, conservatorship or guardianship) with the intent to through a legal relationship such as a power of attor- property, and any act or omission taken by a person (or fines “financial exploitation” as the wrongful taking of potential financial exploitation. The Act broadly de- tion, firms should also train their employees to detect who could be a potential victim of financial exploita- financial senior detecting Exploitation client has been the victim of financial exploitation. the ASC and DHR if there is a reasonable belief that a vestor could be the victim of financial exploitation: the ASC, there are several signs that indicate an in- agencies via email. which must be completed and transmitted to both port of Adult Suspected to be Financially Exploited”– Commission and Department of Human Resources Re- oped an initial reporting form–the “Alabama Securities simplify the reporting process, the ASC and DHR devel- Beyond reportingsuspected financialexploitationto Under the Act, brokerage firms • • • • • • • • In addition to helping their employees identify clients Closing ofaccountswithoutregardtopenalties. trusts; and powers ofattorney, accountbeneficiaries,willsor Sudden changestofinancialdocumentssuchas den windfall;reluctancetodiscussdetails; Unexplained orunusualexcitementaboutasud- or customer; Having difficulty speakingdirectlywiththeclient status; A lackofknowledgeabouthisorherfinancial transactions; visiting theoffice orconductingtelephonic Uncharacteristic nervousnessoranxietywhen friends orrelatives; Appearing withnewandunknownassociates, wire transfers; Uncharacteristic andrepeatedcashwithdrawalsor 13 11 are required to notify 9 12 Per 10 To or attemptedfinancialexploitation. days andconductaninternalreviewofthesuspected at issue,notifythe ASC andDHRwithintwobusiness firm mustnotifyallpartiesauthorizedontheaccount connection withdelayingadisbursement,brokerage adult[,]” whicheverissooner. sult infinancialexploitationofthevulnerable investment adviserthatthedisbursementwillnotre- days orupona“determinationbythebroker-dealer or the delayofanydisbursementmustterminateafter15 in financialexploitationofavulnerableadult.” lieves .thattherequesteddisbursementmayresult vulnerable adultifthebrokeragefirm“reasonablybe- ted ploitation. Underthe Act, abrokeragefirmispermit- disbursements insituationsofpotentialfinancialex- delaying thedisbursement offunds the vulnerableadult.” suspected offinancialexploitationorotherabuse may notbemadetoadesignatedthirdpartythatis with theclient,but Act notesthat“[d]isclosure priate thirdpartycontactbasedontherelationship ity. Itislefttothebrokeragefirmselectappro- trusted thirdpartiesofthepotentiallyexploitiveactiv- required, toinform firms arepermitted,butnot account. about unusualactivityinavulnerableadult’s laying disbursements whennecessary.” third-parties inextraordinarycircumstances andde- tools suchascontacting designated third-parties,other “firms willbemorewilling toutilizetheavailable ing theimmunityprovisions, the ASC hopedthat in “goodfaith”andwith “reasonablecare.” age firmsthatcomplywith theprovisionsof Act provides civilandadministrativeimmunitytobroker- tect customersfromfinancialexploitation,the Act from immunity PotentialQualified liability a courtofcompetentjurisdiction. quest bythe ASC orDHRasotherwiseorderedby only beextendedonceforanother10daysupon re- used onlyinappropriatecircumstances.” that suchdelayscomplywith Alabama lawand [are] signed toeffectively utilizethesedelaysandto ensure develop clearandrobustpoliciesproceduresde- quences ofdelayingdisbursements,firmsshould mends that“giventhepotentialandunintendedconse- Another optionprovidedunderthe Act isdelaying Finally, toincentivize brokeragefirmstohelppro- to delayadisbursementfromanaccountof 14 Notably, pursuanttothe Act, brokerage 15 19 And thedelaymay 20 17 The ASC recom- 22 18 www.alabar.org Moreover, 21 In draft- 16 In 249

T h e Alabama Lawyer 250 T h e Alabama Lawyer viously designated by the eligible adult.” such disclosures may be made to “any third party pre- tain third parties. NASAA’s model act provides that sion allowing for disclosure of suspected abuse to cer- primary difference between the two lies with the provi- abama’s legal code and administrative structure, the minor revisions adopting the Act to the specifics of Al- largely tracks NASAA’s model act. In addition to istrators Association (“NASAA”). and adopted by the North American Securities Admin- developments andFederalaction legislation, FiNra related state The and act model model act serving as a guide. Act was in fact drafted by the ASC, with the NASAA adoption by NASAA. As noted above, the Alabama the drafting of NASAA’s model act and pushed for its rector Borg and his staff at the ASC were involved in he has held twice prior to his current appointment. Di- rently serving as president of NASAA, a position that that Joseph P. Borg, director of the ASC, is also cur- tors, trustees and agents with power of attorney. the vulnerable adult, such as legal guardians, conserva- ual” and to others with particular legal relationships to designees, but also to “a reasonably associated individ- bama Act allows for disclosure not only to such not required–under both the Act and the model act. should be noted that such notification is the adult, whether or not previously designated. It approach allowing for notification of those closest to guably more manageable given the common sense sive than that contemplated by the model act and ar- such, the Alabama Act’s protection is more comprehen- not previously designated by the vulnerable adult. As volve family members or trusted friends, whether or care provides a mechanism whereby the broker can in- disclosures made in good faith and with reasonable individual” and the accompanying immunity for such whom the broker believes is a “reasonably associated Alabama Act’s allowance for disclosure to individuals July 2018 Unsurprisingly given this history, Alabama’s Act Alabama’s Act is premised on a model act developed 24 23 It should be noted permitted 25 The Ala- 26 The –but of acustomer’s account.” mation foratrustedcontactpersonupontheopening able efforts toobtainthenameofandcontactinfor- amended Rule4512torequirefirmsmake“reason- nition usedinthe Act. tion ofwhichlargely tracksthevulnerableadult defi- FINRA ruleappliesto“specifiedadults,”thedefini- thority, Inc.(“FINRA”)implementedRule2165. The ruary 5,2018,theFinancialIndustryRegulatory Au- U.S. Congresshavetakenactionofinterest.OnFeb- sionals sellingsecuritiesintheUnitedStatesand tory organization thatoverseesthefirmsandprofes- potentially importantdistinctions. tioners shouldconsultgoverningstatelawforother they suspect financialexploitation. opening that theymaycontactthetrusted personif must informclientsinwriting atthetimeofaccount such asdemonstratedmentaldysfunction. age andisactuallysuffering frominfirmitiesof aging, circumstances inwhichthevictimisoverastatutory mandatory. Otherstatesprovideforreportingonlyin tempted[.]” adult hasoccurred,beenattempted,orisbeingat- ably believesthatfinancialexploitationofaqualified “may notify”applicablestateagenciesifit“reason- Protection Act providesthataqualifiedindividual not require financial exploitationtoregulatoryagencies,butdo ence isthatsomestatespermit model actinvariousdegrees. The mostnotablediffer- legislation differ fromthe Alabama Act andNASAA’s with theaccountopening process. the customer’s account”fromclientsinconnection person age18orolderwho maybecontactedabout quest thecontactinformationof“atrusted 4512 addssection(a)(1)(F)torequirethatfirms re- require been attempted,orwillbeattempted,”butitdoes not of theSpecified Adult hasoccurred,isoccurring, upon areasonablebelief“thatfinancialexploitation a temporaryholdondisbursementsfromaccounts permissive inthatitallowsformemberfirmstoplace between theFINRA ruleandthe Act isthattherule lar legislation. tion, andnumerousotherstatesareconsideringsimi- adopted someversionoftheNASAA modellegisla- Alabama. As ofmid-January2018,13stateshad In conjunctionwithpassingRule2165,FINRA also In additiontostatelegislatures,boththeself-regula- The adoptionofNASAA’s modelactdidnotendin such ahold. 28 it. Forinstance,Missouri’s SeniorSavings Reporting isthereforeoptional,not 27 Both pendingandpassedstate 31 30 The primarydistinction 32 The amendmenttoRule disclosure ofsuspected 33 Moreover, firms 29 Practi- effectively address suspected financial exploitation of the need for member firms to be able “to quickly and cial exploitation of this group of investors” including iors™, which had “highlighted issues relating to finan- its experience with the Securities Helpline for Sen- records. plement ittomaintaincertain rule alsorequiresfirmswhoim- only by the ASC or DHR. Act allows for such an extension review supports it, whereas the tor/agency or the firm’s internal either ordered by a state regula- be implemented by the firm if like the Act, that extension may for a 10-day extension, but, un- The FINRA rule also provides ploitation. surrounding the suspected ex- nal review of the circumstances to immediately initiate an inter- required after placing the hold is 4512(a)(1)(F). The second step identified pursuant to the process in Rule ties to the account as well as the trusted contact person after placing a hold is to notify both all authorized par- disbursement. Under Rule 2165, the first requirement work together in connection with placing a hold on a honor andjustequitable principlesoftrade. general provisionrelatingtostandardsofcommercial quests regardingthetransferofsecuritiesandits counts andfunds,expeditionofcertaincustomer re- FINRA rulesregardingimproperuseofclientac- with asafeharborfromcertain though itdoesprovidefirms sion comparabletothe Act, nity fromcivilliabilityprovi- 2165 doesnotcontainanimmu- cies. procedures andtrainingpoli- develop writtensupervisory quires implementingfirmsto after the placement of the hold. no later than 15 business days days and expiration of the hold cation of the client within two FINRA rule provides for notifi- In taking these actions to protect seniors, FINRA cited As withthe Act, theFINRA New Rule 2165 and the amendment to Rule 4512 38 Unlike the Act, Rule 37 34 In addition,italsore- As with the Act, the 36 35 administrative liabilityfor institutions fromciviland exploitation ofseniorsin reporting suchpotential governmental agencies. legislation thatwould undertaking efforts to the considerationof Finally, Congressis prevent financial exempt financial exploitation to 39 FINRA rules.” seniors and other vulnerable adults consistent with forth in the Act, NASAA’s model, and the FINRAit providerules. a mechanism for delaying distributions as setHowever, it does not counts and investments. cerns that seniors may have with their brokerage ac- direct access to FINRA staff regarding questions or con- April 2015 in an effort to provide senior investors with suspected financial exploitation of a senior citizen. vide certain training to its employees related to the cies in good faith and with reasonable care and (2) pro- a senior citizen to regulatory or law-enforcement agen- trative liability if they (1) report potential exploitation of unions, insurance companies, and insurance agencies. FINRA 2165 in that it would apply to banks, credit federal legislation is broader than both the Act and 40 FINRA’s helpline was launched in require being of the investor.” the personal or financial well- tatives have concerns regarding firm can contact if firm represen- formation for a trusted person the obtain the name and contact in- the account opening process to sider, including possibly “using practices for the firms to con- grams and recommended certain tion to its other regulatory pro- helpline’s effectiveness and rela- iors™, FINRA highlighted the Securities Helpline for Sen- exempt from civil and adminis- Senior Safe Act, institutions are “Senior Safe Act.” included a provision titled the Consumer Protection Act,” which Growth, Regulatory Relief, and Trump signed the “Economic 24, 2018, President Donald governmental agencies. On May such potential exploitation to ministrative liability for reporting cial institutions from civil and ad- of legislation that exempts finan- exploitation of seniors in the form taken efforts to prevent financial prior suggestion. FINRA has now mandated this amendment to Rule 4512, 41 Finally, Congress has under- In its Report on the FINRA any such reporting nor does 43 Under the www.alabar.org 42 With the 44 The 45 251

T h e Alabama Lawyer 252 T h e Alabama Lawyer elderly and steal their hard earned savings.” any efforts of those who would seek to prey upon the sage that “[w]e should do everything we can to thwart twelve are usually resolved pretty quickly.” Cronin’s ports a month on average. And of that, nine out of law, the ASC began receiving about “ten to twelve re- that after the industry became accustomed to the new Act went into effect on August 1, 2016. He remarked cidents that have been reported to the ASC since the means ofworkingtogethertoaccomplishthatgoal. vestors fromexploitation. And the Act provides one regulators haveavestedinterestinprotectingin- tion ages.”Stateddifferently, bothfirmsand nancial exploitation,whichiscriticalasourpopula- to protectingseniorsandvulnerableadultsfrom fi- ther asa“collaborationenablingproactiveapproach industry toworkwithgovernmententities”andfur- he viewsthe Act “asatoolforthefinancialservices dustry member’s perspective,LPL’s Croninnotedthat (R), 3 echoed by the co-sponsor of the Act, Senator Arthur byOrr somebody in their family?” These sentiments were portant as someone falling out of a bed or being abused take the position that financial exploitation is not as im-living homes to report physical abuse, so why would we cal abuse and it is mandatory for hospitals and assisted our state, it is mandatory for physicians to report physi- soning behind this mandatory reporting requirement: “In financial exploitation. Director Borg explained the rea-statute that State GovernmentRelationswithLPL Financial. Department ofFinancialRegulationandthehead Cronin, theformersecuritiesdirectorin Vermont tion toDirectorBorg, theauthorsspokewithJohn for adiscussionofthe Act andrelatedissues.Inaddi- Director Borg satdownwiththeauthorsofthisarticle Borg, whohasbeendirectorofthe ASC since1994. noted above,the ASC isledbyDirectorJosephP. regulated bythe Alabama SecuritiesCommission. As lated industries.In Alabama, thesecuritiesindustryis concern tothegeneralpublic,regulatorsandregu- seniors andothervulnerableadultsisanareaofgreat asc and the industry Thoughts from the July 2018 Director Borg also commented on the number of in- With respecttothe Act’s requirementsfromanin- As noted above, Alabama was the first state to enact a Obviously, preventionoffinancialexploitation rd District, who stated at the time of the Act’s pas- required brokerage firms to report potential 46 and mitigation of senior financial exploitation.” useful information related to the detection, reporting, investment advisers doing business in Alabama with Committee in an effort “to provide broker-dealers and guidelines originally developed by NASAA’s Seniors entities, the ASC has adapted and issued 21 pages of encouraged to reach out directly to the ASC. ganizing such training for the benefit of their clients areAttorneys who are interested in learning more or in or- ing was very well received by our Alabama advisors.” ducted by the ASC on this issue and notes that “the train-and their clients. Cronin has attended a training con- abama attorneys to conduct such seminars for law firms noted that the ASC is more than willing to work with icsAl- on the regulatory landscape. Director Borg further Act and coupled these with discussion regarding hot top- trainings throughout the state on compliance with the qualified individuals. The ASC has provided in-depth ings and information sessions for member firms and that the ASC is ready, willing and able to conduct train-with the Act. As an initial matter, Director Borgtaken reported by the ASC to aid firms in their efforts to comply ble client,theyconstituteexploitation. zation oragainstthewillofaseniorothervulnera- course, whensuchactionsaretakenwithoutauthori- to getthisanyway, soIjusttooksomenow.’” Of been takingcareofherorhimforsolong,I’mgoing we oftenhearisafamilymembersaying‘well,I’ve Commission] stemfromfamilymembers.Onething of theissuesreportedto[AlabamaSecurities ported, DirectorBorg furthernotedthat“themajority report and yet remain focused on protecting investors.” statute creates an efficient system that allows firms to find that “the reporting mechanism ASC built into the experience since the Act went into effect has led him to nism to help ensure that the investment community . . . Act states, the Act is intended to be “a powerful mecha- conclusion lize it when reporting to the ASC and DHR. that firms familiarize themselves with the form and uti- the required disclosures. rather straightforward reporting form for use in making obligations imposed by the Act, the ASC drafted a dition to the guidelines that walk through the various In a further effort to educate the public and regulated Finally, Director Borg also highlighted several steps Regarding thetypesofmatters ASC hasseenre- As the press release accompanying the passage of the 48 Director Borg recommended 47 In ad- Endnotes financial well-being.” or illegal actions that could jeopardize their long-term vulnerable Alabama adult who is exposed to dishonest will report suspicious financial activity involving any protect vulnerable clients from financial exploitation. tive to keep apprised on developments in an effort to legislatures and regulators should provide ample incen- forth. Moreover, the recent attention given this issue by themselves with the Act and the requirements it sets firms and attorneys advising the same must familiarize ones as they age,” said Cronin. Accordingly, brokerage which is essential when we want to protect our loved porting system, which makes it easier to report concerns seniors and vulnerable adults through its innovative re- “Alabama is leading the nation in its efforts to protect 5 NASAAModelAct, §5. 25. Commission Alabama Securities (April 18,2016),AlabamaLegislature Passes Billto Help 24. 22. 21. 20. 19. 18. 17. 16. 15. 14. 12. Pursuant to theAct, broker-dealers, investment advisersand “qualified individuals” are 11. 10. 23. The “Alabama Securities Commission13. and Department of Human Resources Report of Adult 9. 8. 7. 6. 5. 4. 3. For purposesofthisarticle, “brokerage firms” encompasses the Act’s useofthe terms 2. 1. . 2016.pdf 2016%20News/4-18-16%20Protection%20of%20Vulnerable%20Adults%20Act%20 Protect Vulnerable Adults content/uploads/2015/11/NASAA-Model-Seniors-Act-adopted-Jan-22-2016.pdf ploitation NASAA ModelSee Legislation or Regulation to Protect Vulnerable Adults from Financial Ex- ASCGuide,See p. 19. Ala. CodeSee §8-6-173,8-6-175and8-6-177. Id. See ASCGuide,See p. 16. Id. Ala. CodeSee §8-6-176. Id. Ala. CodeSee §8-6-174. and DHR ( Suspected to be Financially Exploited” can be found on both the ASC, ( potential abuse, Alabama was thefirststate to mandate Ala. CodeSee §8-6-172.Notably, whilepriorstatutes had permitted requirements. requirements. to thesereporting subject Notably, banksare not ASCGuide,See p. 9. See Id. Id. Id. Id.at p. 4. 208-6-170%20et%20seq.pdf. Guide,” p. 2.Retrieved from http://asc.alabama.gov/Acts/Guidelines%20ALA%20CODE% fortion: AGuide AlabamaBroker-Dealer andInvestment Advisor Firms, hereinafter the “ASC Commission, Alabama Securities See Protecting Vulnerable Adults from Financial Exploita- See “broker-dealer” and “investment adviser.” See at p. 5. at pp. 4-5. Ala. Code §8-6-176(b). Ala. Code, §8-6-171(5). Ala. Code, §8-6-171(10). Ala. Code, §8-6-170,etseq. (2016). , hereinafter the “NASAA Model Act.” Retrieved from www.dhr.alabama.gov [Press release]. Retrieved from http://asc.alabama.gov/News/ 49 ) websites. And with the passage of the Act, such reporting. http://serveourseniors.org/wp- subject to thesereporting subject www.asc.alabama.gov firms to report firms to report . s ) firm’s senior issues:counselingandlitigation defensegroup. Martin hasanestate-planning practiceandis amemberofthe W. Preston Martin and litigationdefensegroup. ees. Heisalsoamemberofthefirm’s seniorissues:counseling tutions againstclaimsassertedbytheircustomersandemploy- Joshua D.Jones 3 S.2155,115 43. 42. FINRA Regulatory Notice 15-37 (October 2015). Retrieved40. from 39. 38. 37. 36. 35. 34. Rule4512§(a)(1)(F). FINRA 33. Notice Regulatory 17-11(March FINRA 2017).Retrieved from 32. 31. Rule2165(a)(1). FINRA 30. 29. MORevStat §409.610(2016). 28. 27. 26. 41. FINRA (April FINRA Launches 20,2015),FINRA Toll-Free Helpline Securities for Seniors FINRA 41. 49. 48. 47. 46. 45. 44. http://www.finra.org/sites/default/files/Securities_Helpline_for_Seniors_Report.pdf. Helpline Securities for Seniors™. ontheFINRA Report See finra-securities-helpline-seniors. release]. Retrieved from https://www.finra.org/newsroom/2015/finra-launches-toll-free- default/files/notice_doc_file_ref/Regulatory-Notice-15-37.pdf id.See Material: ofRule. 01Applicability , Supplementary Id. at §(c). Id. at §(d). Id. at §(b)(3). Id. at §§(b)(1)(B)and(b)(2). Id. at §(b)(1)(C). https://www.finra.org/sites/default/files/Regulatory-Notice-17-11.pdf. Id. at §(b)(1). See, e.g. , N.D.C.C. §10-04-08.5(2017). Commentary-for-2018-Session.pdf. serveourseniors.org/wp-content/uploads/2017/12/NASAA-Model-Act-and-Updated- islative Text &Updated Commentary for 2018Legislative. Retrieved Session from http:// NASAA Legislation Model to Protect Vulnerable Adults from Financial Leg- Exploitation: See Ala. CodeSee §8-6-175. See 141_Reporting_Form.aspx. to FinanciallySuspected be Exploited. Retrieved from http://asc.alabama.gov/Act_2016- ofHumanResources Commission AlabamaSecurities See ofAdult andDepartment Report ASCGuide,See generally. See Id. at §303(a)(1)(D). Id. at §303(a)(2)and303(b). supra note 23,quotingDirector JosephP. Borg. supra Orr. note 23,quotingSenator Arthur th Congress (2017-2018). fending brokerage firmsandfinancialinstitutions, from theUniversityofGeorgia. Inadditiontode- versity ofGeorgia SchoolofLawandhisB.B.A. practice group.Hereceivedhis J.D.fromtheUni- Amery &RossPCinBirmingham inthesecurities the defenseofbrokeragefirmsandfinancialinsti- sity SchoolofLaw. Jonesfocuseshispracticein and isagraduateof Washington andLeeUniver- graduate degreefromtheUniversityof Alabama Ross PCinBirmingham.Hereceivedhisunder- Preston Martinisaprincipal with Bressler, Josh JonesisaprincipalwithBressler, Amery & Retrieved from . http://www.finra.org/sites/ www.alabar.org [Press 253

T h e Alabama Lawyer 254 T h e Alabama Lawyer July 2018 An Overview of the Current State of the Law and Resources for the Practitioner ALABAMA’S DAUBERT By Terrence W. Brooke and McCarthy G.Malcom sory committee on the serves as the reporter to the advi- to Rule 702. the legislature with the amendment Alabama Supreme Court followed dence. To ensure consistency, the standard for expert scientific evi- 21-160 to adopt the ture had amended amendment, the Alabama legisla- pert scientific evidence. Before this standard for the admissibility of ex- 1, 2012 to adopt a Rules of Evidence amended Rule 702 of the the Alabama Supreme Court Introduction Professor Robert Goodwin, who As most Alabama lawyers know, Ala. Code effective January Daubert Daubert Alabama Alabama AMENDMENT: -based § 12- this publication. lished in the May 2012 edition of Daubert cellent overview of the new Rules of Evidence 15-0225, 2017 WL 543151(Ala. amendment in Paynev. State,CR- peals addressedtheDaubert Alabama CourtofCriminal Ap- 2017, thesilenceendedwhen the the amendment.OnFebruary 10, appellate decisionswere issuedon before anysubstantive Alabama the booksformorethanfiveyears Professor Goodwin’s article. with this standard should consult Daubert will hit some highlights of the bama state courts. While this article deals with expert witnesses in Ala- a “must read” for any lawyer who win’s article has been, and remains, The Daubert standard in an article pub- rule, those not familiar amendment wason 1 Professor Good- , provided an ex- www.alabar.org 255

T h e Alabama Lawyer 256 T h e Alabama Lawyer 1996. had aneffective dateofJanuary1, Daubert 702 and the Of A Brief Overview Daubert neys whenconfrontingthe considerations for Alabama attor- cisions, andwilloutlinepractical based onthePayne tus oftheDaubert article willaddressthecurrentsta- not coveredintheseopinions. This ment andencounterissuesthatare wrestle withtheDaubert lawyers andjudgesfrequently Without question, Alabama Daubert sions arejustthetipof stage, thesetwoappellatedeci- before theyreachtheappellate courts’ decisionswereaffirmed. courts underDaubert. The trial lenged therulingsoftrial In bothcases,theappellantschal- (not yetreleasedforpublication). WL 2888857(Ala.Jul.7,2017) Corp. v. Hurst,No.1140545, 2017 July 7,2017withMazdaMotor bama SupremeCourtfollowedon released forpublication). The Ala- Crim. App. Feb.10,2017)(notyet or todetermine afactinissue, of facttounderstand theevidence ized knowledgewillassist thetrier entific, technical,orother special- Experts,” readasfollows: “Ifsci- that time,entitled“Testimony by July 2018 The AlabamaRulesofEvidence Because mostcasesareresolved Ala. R. Evid. 2 The versionofRule702at amendment. amendment iceberg. Standard amendment and Hurst amend- de- erwise.” in theformofanopinion “oroth- vided thatanexpertcould testify sist the trier of fact.” pert’s opinion or testimony will as- understanding to whether the ex- the testimony is beyond common focus from whether the subject of passage of Rule 702 “change[d] the fact” was not new to Alabama, the While the phrase “assist the trier of must “assist the trier of fact.” specified that expert testimony must be qualified. of evidence, any expert witness law before the passage of the rules First, as was the case at common timony that remain in effect today. several requirements for expert tes- otherwise” recognized theability or otherwise.” thereto intheformofanopinion training, oreducation,maytestify knowledge, skill,experience, witness qualifiedasanexpertby training or education.” ence as well as through formal expertise through practical experi- broadly, so that one may gain an should continue to be defined ple, under Rule 702 ‘qualification’ adoption of Rule 702. For exam- main largely as it was before the cable law on this subject should re- Rule 702 advised that “[t]he appli- trier of fact.” by the trial judge as helpful to the mon knowledge would be admitted testimony on a question of com- “possible that an expert opinion or the passage of Rule 702 made it standing of the average layperson,” [were] held to be beyond the under- opinions only upon subjects that historically were “permitted to give Third, theoriginalRule 702 pro- Second, the original Rule 702 The original Rule 702 contained 9 The useoftheterm“or 8 3 4 The drafters of 7 While experts 5 6 ble.” cient reliabilitytobeadmissi- whether suchtestspossesssuffi- take toanswerthequestion original Rule702did“notunder- opinions onscientifictests,the 702(b) effective January1,2012. essary withthepassageofRule in Rule702(a),whichbecamenec- caveat: today, theyarecontained still ineffect todaywithone sions remainunchangedandare to applythemthefacts.’” to thecase,leavingtrieroffact entific orotherprinciplesrelevant a dissertationorexpositionofsci- “‘an expertonthestandmaygive “novel” and“scientific.” ples ortechniquesthatwereboth dard appliedtounderlyingprinci- More specifically, theFrye ceptance intheparticularfield.” when theyhavegainedgeneralac- entific testsareadmissibleonly 1923). Underthatstandard,“[s]ci- States, 293F. 1013(D.C.Cir. dard setforthinFryev. United was answeredbyusingthestan- Alabama caselaw, thatquestion dence, drafting theAlabamaRulesofEvi- abama advisorycommitteewas the textofrule. was notexplicitlymentionedin sage ofRule702eventhoughit remained ineffect afterthepas- tific” experttestimony, andit ditional hurdlefor“novelscien- the Frye non-opinion form.” of anexperttogivetestimony“in ally speaking, Daubert Inc., 509U.S.579(1993).Gener- v. Merrell DowPharmaceuticals, Court decidedthecaseof Daubert While expertsoftenbasetheir These originalRule702provi- Around thetimeoriginal Al- 12 As dictatedbyyearsof the UnitedStatesSupreme standard imposedanad- 10 For example, abrogated 14 Thus, stan- 11 13 the test for scientific expert expert testimony based on DNA Frye evidence in federal courts. analysis. , however, remained Frye instructed that the trial the standard in Alabama for the ad- Daubert court is to serve as the “gate- missibility of all other expert testi- keeper” for scientific expert evi- mony that was considered novel dence, and in that role, the trial and scientific. court must assess whether the This changed with the Alabama techniques used by the expert are Supreme Court’s order dated No- both relevant and reliable. In per- vember 29, 2011. This order, forming this analysis, the United which added Rule 702(b), adopted States Supreme Court identified as the standard in place of Daubert the following non-exclusive fac- for most scientific expert tes- Frye tors the trial court may consider: timony. The text of Rule 702 is as (1) whether the expert’s theory or follows: technique can be or has been (a) If scientific, technical or other If scientific, tested; (2) whether the theory or specialized knowledge will technique has been subjected to assist the trier of fact to under- technical or other peer review and publication; (3) stand the evidence or to deter- whether the technique or theory is mine a fact in issue, a witness specialized knowledge generally accepted within the rele- qualified as an expert by vant scientific community; (4) the knowledge, skill, experience, will assist the trier known or potential rate of error of training or education may tes- the technique or theory when ap- tify thereto in the form of an of fact to understand plied; and (5) the existence and opinion or otherwise. maintenance of standards control- the evidence or to ling application of the technique.15 (b) In addition to the require- The issue in was the ad- ments in section (a), expert determine a fact in Daubert missibility of “scientific” expert testimony based on a scien- testimony. The decision did not tific theory, principle, issue, a witness address expert testimony in the methodology, or procedure is form of “technical” or “other spe- admissible only if: qualified as an expert cialized knowledge.” Approxi- 1. The testimony is based on mately six years later, in by knowledge, skill, Kumho sufficient facts or data; , Tire Co., Ltd., et al. v. Carmichael 526 U.S. 137 (1999), the United 2. The testimony is the prod- experience, training or States Supreme Court held that the uct of reliable principles education may testify standard applies to all and methods; and Daubert forms of expert testimony in the 3. The witness has applied the thereto in the form of federal courts.16 principles and methods reli- While many states quickly fol- ably to the facts of the case. an opinion or lowed the lead of the federal courts The provisions of this sec- and adopted the standard Daubert tion (b) shall apply to all civil otherwise. for some or all expert testimony, state-court actions com- Alabama did not. The exception is menced on or after January 1, that, in 1994, the Alabama legisla- 2012. In criminal actions, this ture adopted § 36-18-30, Ala. Code section shall apply only to which adopted as the test Daubert non-juvenile felony proceed- for the admissibility of scientific Alabama Lawyer ings in which the defendant T h e 257 www.alabar.org was arrested on the charge or Payne v. State: charges that are the subject of In , the defendant was Payne the proceedings on or after convicted of intentional murder of January 1, 2012. The provi- his infant daughter, and he argued sions of this section (b) shall on appeal that the trial court erred not apply to domestic-rela- in admitting the medical causation tions cases, child-support testimony of five physicians who cases, juvenile cases or cases either treated or performed an au- in the probate court. Even, topsy on the small child. All five however, in the cases and physicians testified that the child’s proceedings in which this injuries were not consistent with section (b) does not apply, the defendant’s testimony that the expert testimony relating to child fell from a bed. The defen- DNA analysis shall continue dant moved in limine to bar the to be admissible under After describing each Ala. State of Alabama from eliciting 1975, § 36-18-30. Code testimony or offering any evidence physician’s back- (c) Nothing in this rule is in- ‘“regarding the scientific probabil- tended to modify, supersede ity of certain injuries sustained by ground, qualifications or amend any provisions of the alleged victim.’”18 After each the Alabama Medical Liabil- physician was questioned by de- and testimony at trial, ity Act of 1987 or the Ala- fense counsel on voir dire, the trial bama Medical Liability Act court denied the defendant’s mo- the court of criminal of 1996 or any judicial inter- tion in limine. After describing pretation of those acts.17 each physician’s background, appeals concluded qualifications and testimony at For a detailed description of what trial, the court of criminal appeals Rule 702(b) changed, as well as that the trial court concluded that the trial court fully what it did not change, please con- complied with the requirements of fully complied with sult Professor Goodwin’s article. Rule 702(b), and did not abuse its the requirements of discretion in allowing the physi- cians to give their expert opinions. Rule 702(b), and After setting forth the basic facts of the case, the decision gives Payne an overview of the stan- did not abuse its Daubert The Rule 702(b) dard, relying on the text of Rule discretion in allowing 702(b), the advisory notes and deci- Appellate sions from other jurisdictions. The the physicians to give opinion also gives a very general de- Decisions scription of each expert, along with their expert opinions. The Alabama legal community a description of why the trial court waited more than five years for the allowed each expert to testify. The first substantive appellate decisions appellate court’s analysis in which it applied the standard to the interpreting Rule 702(b), but the Daubert wait is over. At the time of this writ- facts of the case, however, is limited ing, two substantive decisions have to this one paragraph: been issued by Alabama appellate Whether a witness is qualified courts, which we address in turn.

Alabama Lawyer to testify as an expert is a ques- tion within the sound discretion T h e 258 July 2018 (5) theexistence andmaintenance nique ortheory whenapplied;and potential rateoferror the tech- tific community;(4)the known or accepted withintherelevant scien- technique ortheoryisgenerally and publication;(3)whetherthe has beensubjectedtopeerreview whether thetheoryortechnique can beorhasbeentested;(2) the expert’s theoryortechnique tual Daubert decision listsfactorsfromtheac- 702(b) analysis.First,thePayne sider inperformingtheRule on the“factors”acourtmaycon- cision givesadditionalguidance also noteworthythatthePayne pert iscompetenttotestify. Itis cretion indecidingwhetheranex- courts givetrialgreatdis- the factthat Alabama appellate of Rule702(b)hasnotchanged takeaway seemsclear:thepassage decision wasfairlylimited,one While theanalysisinPayne from a bed. juries were the result of a fall whether J.P.’s extensive in- pert opinions concerning physicians to state their ex- discretion in allowing the five circuit court did not abuse its testimonies were reliable. The determined that the experts’ Ala. R. Evid., newly amended Rule 702, plied with the requirements of the circuit court fully com- their opinions. It is clear that their basis of knowledge for fications and experience and sively concerning their quali- physicians all testified exten- As detailed above, the five 1156 (Ala. Crim. App. 2013). hart v. State of the trial court. case: “(1)whether 19 , 163 So.3d 1088, and properly e Lock- See de- dence” tosupport hisopinions. “uncontrovertible scientific evi- fourth timeheagreedthat hehad method” threetimes,and the tioned utilizingthe“scientific was usedfourtimes.He men- amination, theword“scientific” held totheRule702(b)standard. dence, so Wallingford wasnot ions didnotinvolvescientificevi- argument that Wallingford’s opin- trial courtacceptedtheplaintiffs’ did notsatisfyRule702(b). The ford, contendingthat Wallingford engineering expert,Jerry Walling- testimony oftheplaintiffs’ design tion inliminetoprecludethe signed. Mazdafiledapre-trialmo- Mazda vehiclewasdefectivelyde- leging thefuelsystemof ufacturer’s LiabilityDoctrine,al- under the Alabama ExtendedMan- In Hurst,theplaintiffs suedMazda Alabama SupremeCourtin2017. “scientific” wasaddressedbythe testimony, andtheissueofwhatis applies onlyto“scientific”expert Mazda Motor Corp. v. Hurst: tion ofthetechnique.” of standardscontrollingapplica- expert’s methodology/science.” and (4)non-judicialusesforthe expert’s methodologyisreliable; courts havedeterminedthatthe produce reliableresults;(3)other pertise/discipline isknownto search; (2)theexpert’s fieldofex- or isbasedonindependentre- solely inanticipationoflitigation, the expert’s testimonyisprepared 702(b), includingwhether:“(1) termining reliabilityunderRule courts sometimesconsiderinde- also listedotherfactorsthat During Wallingford’s directex- As addressedabove,Rule702(b) 20 The court 21 ports proferred experttestimonypur- trial courtmustdeterminewhether Daubert cle which,quotingtheactual Professor RobertGoodwin’s arti- For example,thecourtreferenced ties supportMazda’s position.” knowledged that“[s]omeauthori- 702(b). to thescientificstandardofRule pert, soheshouldhavebeenheld self outasbeingascientificex- times inhistestimony, heldhim- referencing “scientific”multiple Mazda argued that Wallingford, by verdict againstMazda.Onappeal, The juryreturnedasubstantial be disturbed absent an abuse of court, whose decision will not to the sound discretion of the trial should be allowed to testify is left concept that whether an expert court referenced the longstanding made several observations. First, the reaching this conclusion, the court cluding that line was not crossed. In the trial court did not err by con- application of entific expert could require the ise that holding oneself out as a sci- did not necessarily reject the prem- While the Alabama Supreme Court 702(b) to Wallingford’s testimony. trial court to refuse to apply Rule and held that it was not error for the Court rejected Mazda’s argument fire sciences. held himselfoutasanexpertin tific Daubert pert witnesswasheldtothescien- (11th Cir. 1998),inwhichtheex- Corp. v. Benfield,140F.3d 915 of MichiganMillersMut.Ins. analyzed theEleventhCircuitcase bama SupremeCourtalso The Alabama SupremeCourtac- Ultimately, the Alabama Supreme to bescientific.” case, observedthat“the 24 standard afterhe Daubert , it found that 23 www.alabar.org The Ala- 22 259

T h e Alabama Lawyer 260 T h e Alabama Lawyer testimony only ifitis“basedona “scientific?” expert’s testimony is How dowe ifthe know with attorneysandjudges. hand experienceanddiscussions authors haveseenbasedonfirst- cle focusesonsomeissuesthe known. The remainderofthisarti- questions thatarecurrentlyun- terpret Rule702(b)andanswer pellate courtswillcontinuetoin- the ruleonaregularbasis. The ap- trial judgesandattorneysconfront the writingofthisarticle, Alabama preting Rule702(b)atthetimeof stantive appellatedecisionsinter- Rule 702(b) Landscape of The Current testimony. the word “science” in his or her Rule 702(b) anytime an expert uses would call for the application of for a “blanket” and “rigid rule” that substitute the trial court’s discretion Finally, the court did not want to discretion. of record testimony. a total of four times over 230 pages was used in Wallingford’s testimony significant,” as the word “scientific” references were “sparse and in- cated that Wallingford’s scientific ciple, methodology or procedure. opposed to a scientific theory, prin- ized knowledge and experience, as testimony was based on his special- court emphasized that overall his July 2018 Rule 702(b) applies toexpert Although thereareonlytwosub- 28 25 Second, the court indi- 26 Third, the 27 ence.” some formoftheword“sci- gineering” thatdoesnotinclude find adictionarydefinitionof“en- and onewouldbehardpressedto at issueinHurst can beadifficult one. The expert pert testimonyisbasedonscience how thequestionofwhetherex- tific test or experiment.” fered testimony implicates a scien- case-by-case basis whether prof- been content to determine on a experiment,’” but rather “have fine the phrase ‘scientific test or have not attempted to narrowly de- it is “apparent that Alabama courts only to novel scientific testimony), the 702, and, after decades of applying “Scientific” is not defined in Rule for Alabama judges and lawyers. is not scientific is a difficult issue particular expert’s testimony is or knowledge.” Deciding whether a “technical” or “other specialized to expert testimony based on Thus, Rule 702(b) does not apply methodology or procedure.” scientific theory, principle, sibility of“novel scientific” decades indetermining theadmis- followed theFrye scientific. First, Alabama courts lar expert’s testimony is ornot in determiningwhethera particu- are tworesourcesthatshould help mony is“scientific”ornot? There determine whetherexperttesti- tion: howcancourtsandlawyers 702(b) didnotapply. Court, however, foundthatRule court andthe Alabama Supreme his trialtestimony. Boththetrial had notusedthewordsciencein some supporteveniftheexpert gument toapplyRule702(b)had The Hurst That leadstotheobviousques- Frye 31 Thus, thedefendant’s ar- standard (which applied decision illustrates was anengineer, standard for 30 29 non-scientific) expert testimony. tended to include all (i.e., including but before the “scientific.” expert testimony was or was not with determining whether proffered faced–as Alabama courts are now– structive, as federal courts were that six-year window can be in- 702. Thus, federal decisions during mony proffered under Daubert States Supreme Court extended the later, in “scientific” evidence. Six years 702(b) does now–exclusively to applied its holding–as 1993, most federal courts initially When sions handed down after Act (“AMLA”) generallyrequires tion ofthoseacts.” of 1996oranyjudicialinterpreta- the Alabama Medical Liability Act Medical Liability Act of 1987or any provisionsofthe Alabama to modify, supersede, oramend “[n]othing inthisruleisintended amended Rule702statesthat malpractice caseseventhoughthe role Rule702(b)playsinmedical 702(b), itisnotentirelyclearwhat in his2012overviewofRule malpracticemedical cases? rule702(b)does applyin based admissibilitystandard.” tific andsubjecttotheDaubert- whether experttestimonyisscien- if notcontrolling–fordetermining entific’ shouldremaininstructive– expert testimonyis,orisnot,‘sci- Frye cial authoritydevelopedunderthe evidence. Thus, “[p]reviousjudi- A second resource is federal deci- The Alabama MedicalLiability As ProfessorGoodwinoutlined standard regardingwhether Daubert Kumho Tire standard to all expert testi- 34 Daubert was decided in 35 , the United Fed. R. Evid Ala. R. Evid rule was ex- Daubert 32 33 , . . the plaintiff in a medical malprac- the Alabama Supreme Court has not tice case to offer standard of care addressed this issue. expert testimony from a “similarly situated health care provider.”36 As Professor Goodwin referenced in does your type of case trigger his article, satisfying this AMLA rule 702(b)? statute requirement does not auto- The Alabama bench and bar matically mean the testimony is should remember that Rule 702(b) admissible. The Alabama Supreme does not even apply in certain Court held in cases. Specifically, the Holcomb v. Car- Daubert , 945 So. 2d 1009 (Ala. standard does not apply to domes- raway 2006), that a trial court may still tic-relations cases, child-support exclude standard-of-care expert cases, juvenile cases or cases in testimony from a similarly-situ- the probate court. In criminal ac- ated health care provider under tions, the standard applies Daubert Rule 702(b) applies Rule 702. The decision “only to non-juvenile felony Holcomb was issued before the adoption of proceedings.”39 to expert testimony Rule 702(b). At first glance, it seems obvious only if it is “based on that the standard would does your case satisfy the Daubert not apply to standard-of-care ex- “effective date” test of rule a scientific theory, pert testimony in a medical mal- 702(b)? practice case because Rule 702(c) Rule 702(b) actually has its own principle, methodology explicitly states that “[n]othing in effective date written into the rule. this rule is intended to modify, su- Whether the amendment or procedure.” Thus, Daubert persede, or amend any provisions applies depends on when the ac- of [AMLA] …” As Professor tion was commenced. Rule 702(b) Rule 702(b) does not Goodwin explained, however, states that its provisions “shall Rule 702(c) also states it is not in- apply to all civil state-court ac- apply to expert tended to “modify, supersede, or tions commenced on or after Janu- amend” any “judicial interpreta- ary 1, 2012. In criminal actions, testimony based on tion” of AMLA, which would in- this section shall apply only to clude the decision. The non-juvenile felony proceedings in “technical” or “other Holcomb decision states that “’the which the defendant was arrested Holcomb con- on the charge or charges that are specialized Alabama Rules of Evidence tinue to apply to the trial court’s the subject of the proceedings on determination of who is allowed to or after January 1, 2012.”40 knowledge.” testify as an expert witness,’” By contrast, several amendments which means one might conclude were made to the Alabama Rules that the new Rule 702(b) would in 2013, and these of Evidence also apply.37 amendments apply in any “pro- Professor Goodwin concluded ceeding” begun on or after Octo- that “Rule 702(c) appears to pre- ber 1, 2013 without regard to clude the imposition of the when the action was actually filed. Daubert test in any AMLA actions because A “proceeding” for purposes of to do so would constitute a modifi- the amendments is understood to cation or amendment of the AMLA, be a proceeding at which evidence and is prohibited by the language of is to be presented. Thus, for exam- Alabama Lawyer 38

the amendment itself.” To date, ple, if a civil lawsuit was filed on T h e 261 www.alabar.org 262 T h e Alabama Lawyer Endnotes s applied. and howitwillbeinterpreted treatment oftheDaubert ing Alabama appellatecourts’ testify. Questionsremaingovern- whether anexpertiscompetentto courts greatdiscretionindeciding bama appellatecourtsgivetrial are thelatestillustrationsthat Ala- Conclusion hearing. whether toconductaDaubert vested withthediscretionof hearings; instead,thetrialcourtis Daubert eral courtsdonotrequire Daubert-type objection.Mostfed- every timeapartyinvokes that aDaubert Alabama caselawestablishing is a would apply. 2018, the2013amendments set totakeplaceonSeptember1, September 1,2010andthetrialis January 1,2011. action wascommencedpriorto ever, wouldnotapplybecausethe 2 A 12. 13. 11. A 10. .A 2. .A 9. 8. A 7. A 6. A 5. A 4. A 3. 1. July 2018 The Payne The authorsarenotawareofany (May 2012). Standard Admissibility , 73Ala. Law.Daubert-Based 196 See Id. (quoting F Id. Id. LA LA LA LA LA LA LA LA LA Daubert . R.E . R.E . R.E . R.E . R.E . R.E . R.E . R.E . R.E An Overview ofAlabama’s Overview J. An Goodwin, Robert New VID VID VID VID VID VID VID VID VID 42 . 702,Adv. Comm. Notes. 702,Adv. Comm. Notes. . . 702(asoriginallyenacted). 702,Adv. Comm. Notes. . . 702(asoriginallyenacted). . 702,Adv. Comm. Notes. . 702(asoriginallyenacted). . 702(asoriginallyenacted). 1103. . ED . R.E 41 and Hurst hearing required? VID Rule 702(b),how- hearing isrequired . 702 advisory committee’s. 702advisory note). decisions standard 9 A 29. 28. 27. 26. 25. 4 At Millers thetimeMichigan 24. 23. 22. 21. 20. 19. 18. 34. “Alabama holdfederal decisionsininterpreting courts 33. 32. 31. 30. 7 A 17. 16. 15. Charles W. Gamble, Terrence W. McCarthy, J. &Robert 14. Id. at *13. Id. at *11. Id. Mazda Motor Corp., 2017 WL 2888857,at *13. testimony infederalpert courts. Supreme extendedtheDaubert Court only.entific experts InKumho Tire, theUnited States many appliedtheDaubert federal courts (1993)). Merrell Dow Pharmaceuticals, Inc., 509U.S. 579,589 Ala. Law. v. 196,1999(May 2012)(quoting Daubert abama’s Standard Admissibility , 73 New Daubert-Based ofAl- Overview J. An Goodwin, Id. (quoting Robert publication). 2888857, at *9(Ala. Jul. 7,2017)(notyet released for Mazda Motor Corp. v. Hurst , No. 1140545,2017 WL 454, 464(Ariz. 2014)). Id. Id. Payne, 2017 WL 543151,at *11. publication). (Ala. Crim. App. Feb. 10,2017)(notyet released for Payne v. State , CR-15-0225, 2017 WL 543151,at *3 the expert witness the expert infire himselfoutasanexpert “held See, e.g, 140F.3d Millers ., Michigan at 920(notingthat Evidence.”). of theAlabamaRulesof fortute construction authority interpretingcases Federal RulesofEvidence tee’s note (“The committee assumes, consequently, that , Ala. also R.Evid. commit- 102,advisory (Ala. 2010);see Billups,86So. Exparte 3d1079, 1085,n.4 2014); see Gamble’s AlabamaRulesofEvidence, §102(3ded. Gamble, Terrence W. J. Goodwin, andRobert McCarthy interpreting theAlabamaRulesofEvidence.” Charles W. the Federal RulesofEvidence pert’s testimony isornotscientific. to anargument ex- they lendsupport that aparticular lawyers review can thosecases, anddecidewhether mantle of “novel scientific test or experiment.” Careful ofAlabamadecidedundertheFrye cases ful discussion providedin Alabama, Goodwin Professor ahelp- Robert berland Law Review Gamble’s, at §702.Practice Pointer 11.Inhis2005Cum- ergy innature are madeusefulto people.”). ofmatterwhich theproperties andthesources ofen- as part “the application ofscience andmathematics by e.g. , Merriam-Webster (defining See “engineering” in Cumb. L.Rev. 231,245-46(2005). v.in Daubert Pharmaceuticals, MerrillDow Inc., 35 The Continuing Debateover Adopting theTest Established See (1999). Kumho Tire Co., Ltd., v. Carmichael, 526U.S. 137,147 579, 593-95(1993). v.Daubert Merrell Dow Pharmaceuticals, Inc., 509U.S. Practice Pointer 5(3ded. 2014). Gamble’sGoodwin, AlabamaRulesofEvidence, §702, LA LA (quoting State exrel. v. Montgomery , 321P.3d Miller at *4(internal cites andquotes omitted). . R.E . R.E Fifty Years J. Fifty Goodwin, Robert ofFrye VID VID . 702. . 702(b). article discussing theFrye discussing article as persuasive in authority case wascase decided, analysis to allex- analysis to sci- in Alabama: will consti- standard tion’s Volunteer Lawyers Program. rectors oftheBirmingham Bar Associa- matters. SheservesontheBoard ofDi- complex environmentalandtoxic tort Brooke G.Malcom School ofLaw. Alabama SchoolofLawandBirmingham land SchoolofLaw, theUniversityof has taughtevidencecoursesatCumber- for theAlabamaRulesofEvidence ham, servesontheadvisorycommittee Lightfoot, Franklin& White inBirming- Alabama Evidence.Heisapartnerat coming SeventhEditionofMcElroy’s Terrence W. McCarthy 42. A 35. 41. 40. A 39. 38. 37. 36. Appx 825,827-28(11 used” but “not required”); Broussard v. Maples,535Fed. 464 (9 EstateSee ofBarabin v. AstenJohnson Inc.,740F.3d 457, Alabama RulesofEvidence, §1103(3ded. 2014). Terrence W. J. Gamble’s Goodwin, andRobert McCarthy mony abouttire failure was not “scientific”). quired to holdDaubert See dence, §§702;1103(3ded. 2014). J. Gamble’s Goodwin, and Robert AlabamaRulesofEvi- Id; seealso Id. 200 (May 2012)(quoting Holcomb, 945So.2d at 1020). Standard Admissibility -Based , 73Ala. Law.Daubert 196, See See 1436 (11 fires”); Carmichael v. Samyang Tire, Inc.,131F. 3d1433, gin ofthefire through the knowledge ofthescience of sciences andtestified that he could determine theori- LA LA . R.E . R.E A ofAlabama’s Overview J. An Goodwin, Robert New Ala. Code §6-5-548. LA th . R.E VID VID Cir. 2014)(Daubert th 702(b). . 702(c). . Cir. 1997)(holdingthat theexpert’s testi- Charles W. Gamble, Terrence W. McCarthy VID products liability, aswell volving personalinjuryand defends clientsincasesin- White inBirmingham.She ner atLightfoot,Franklin& of Evidence of Gamble’s Alabama Rules author ofthe Third Edition Robert Goodwin)isco- with CharlesGambleand e also . 1103(b);see Brooke Malcomisapart- Terry McCarthy(along th hearing). Cir. notre- court 2013)(district hearings are “commonly and theforth- Charles W. Gamble, and THE LEADERSHIP FORUM: Focus on Personal Mindset Intentionality and Awareness By Edward M. Patterson

n May 10, at the beauti- Dr. Nina N. Bass of Atlanta read a fully restored Florentine tribute in memory of John W. OBuilding in downtown “Bo” Landrum, former executive Birmingham, Alabama State Bar director of the Birmingham Bar Executive Director Phillip McCal- Association. President Dowd, as lum welcomed 80 guests to the guest speaker, challenged each 14th graduation dinner and cere- member to take what he or she has mony of the Alabama State Bar learned by looking into their soul Leadership Forum. ASB President to their passions and then leading Augusta Dowd, assisted by Presi- from the heart. Catherine C. Long dent-elect Sam Irby, presented cer- and Aaron Chastin of Birmingham tificates and gifts to the 28 gave remarks on behalf of Class graduates of Class 14. Before din- 14. A lot of good-natured “pomp ner, Hare Wynn Newell Newton and circumstance,” earmarked by LLP of Birmingham hosted a fun and light-heartedness, accom- cocktail reception. J. Wilson Nash panied the evening–one this writer of Birmingham gave the invocation. will remember. Alabama Lawyer T h e 263 www.alabar.org Over 14 years, the forum has re- ceived 900 applications and ac- cepted 415 attorneys. Forty-six The frozen chosen percent of those who applied have been selected. A total of 405 men and women have graduated. The The start of the January orienta- Class 14 statistics are mostly con- graduation rate over 14 classes be- tion session was delayed because sistent with past classes. The aver- ginning in 2005 has been an as- of a crippling snow storm that age age for this group is 36 and tounding 98 percent. This speaks blanketed Montgomery. Ten of the admitted to practice an average of to the dedication of those accepted class members made it to Mont- 10½ years, with 64 percent of the to complete the courses since at- gomery before the snow storm and class being male and 36 percent fe- tendance is mandatory. were held captive at the Renais- male (cf: Class 13 was two-thirds In awarding Leadership Forum sance Hotel as the city shut down. female and one-third male). A total the 2013 E. Symthe Gambrell Pro- They dubbed themselves “the of 89 percent were white with 11 fessionalism Award, the nation’s frozen chosen,” and quickly percent representing minorities. highest award for professionalism bonded before other classmates ar- Total composition of the forum al- programs, the American Bar Asso- rived the next evening. Class 14 ways equals or exceeds the diver- ciation commended the forum for has been thoughtful and engaging, sity statistics of the bar as a whole. its innovative, thoughtful and ex- studious and reflective, warm and Class 14 represents an 89 percent ceptional content, for its powerful outgoing. Year after year, the metropolitan practice with 11 per- and positive impact on emerging forum brings together men and cent non-metropolitan practice. Di- leaders and for the extraordinary women who differ in every way, versity continues to be balanced example it has established that yet have a common desire to grow among plaintiff and defense prac- others might emulate. and change through new learning, tices (36 percent each) with repre- With high expectations from ap- application and experience. We sentation in corporate/transactional plicants who committed a substan- balance a demanding curriculum in-house counsel (11 percent) and tial time block to participate in with ample opportunity for social government/public service/legal seven days of mandatory sessions activities. education (17 percent). over five months, the forum kept

264 July 2018 theory topractice,participatingin leadership skillsbymovingfrom special roleinsocietytocultivate ises: thelegalprofessionhasa continues todeliverwhatitprom- lar curriculum. The program ship programthatprovidesasimi- another statebar-sponsored leader- disagreement. We areunawareof sion, respectfuldebateandeven class normofengagement,discus- faculty, weseektoestablisha attention. With thehelpofexpert tionality, deliberationandfocused lead.” These skillsrequireinten- demand forskillson“howto professionally inresponsetotheir tical toolstogrowpersonallyand its focusongivingthisclassprac- “stress” behaviors. Graduates have motivations and their unproductive productive behaviors, their needs or large chunk of time identifying their At the outset, the class spends a and are reinforced in each session. significant portion of the curriculum personality in leadership is now a havioral psychology and the role of neys at this stage of their career. Be- is the most effective one for attor- Assessment Tool which we believe forum continues to use the Birkman respond to disruptive change. The tive, critical thinkers equipped to ticipants’ development into innova- port eventsoftheforum. as theiroffices, tohostandsup- opened theirpocketbooks,aswell state, whileanumberoffirms rants andvenuesthroughoutthe held atvariouswell-knownrestau- from theinsideout. pants tocontemplateandlearn self-discovery andforcingpartici- The forum is designed to aid par- Activities andsocialeventswere client value;andmeeting organizational change;delivering culture; decision-making;leading without authority;organizational awareness ofothersandinfluence sisted ofteachingself-awareness, This year’s corecurriculumcon- contained approximately55hours. sionalism. The programcontent cluding twohoursofethics/profes- MCLE creditwereapproved,in- member thisyear. was addedasamajorfaculty general counselofDelta Airlines, Riggs, formervicepresidentand sixth yearofteaching.GregoryL. sity, nowhavingcompletedtheir Business SchoolatEmoryUniver- and MichaelSacksoftheGoizueta cluded ProfessorsSteve Walton tion, conflict and decision-making. work-units approach communica- how they as individuals and in Birkman is a predictive summary of almost uniformly agreed that the For thesecondyear, 14hoursof This year’s primaryfacultyin- www.alabar.org 265

T h e Alabama Lawyer 266 T h e Alabama Lawyer tle, The Battle Law Firm; Celia J. dar & Debrosse LLC; LaVeeda Bat- Diandra Debrosse, Zarzaur, Mujum- rector, Alabama Law Institute; fairs; Clayton Hornsby, deputy di- Cyber Programs and Military Af- Counsel for National Security & Burgess, Auburn University Senior AFB; Lt. General (retired) Ronald Education, Air University, Maxwell ter for Doctrine Development and commander, Curtis E. LeMay Cen- dent, Air University, and stein, former commander and presi- Major General Michael D. Roth- life scenarios. ing hypotheticalsbasedonreal- solving complexproblemsinvolv- servant leadershipandworkingon pants discussingtheroleof expectations, aswellpartici- July 2018 Other faculty members included around us changes.Lawyershave practice oflawandtheworld to re-invent itselfandevolveasthe for many, “TheForumcontinues words ofonealumnuswhospeaks 97 percentofitsgraduates.Inthe has exceededtheexpectationsof the fall.Consistentlyforum and class2019willbeselectedin will beavailableinthesummer gins January2019. Applications Influence, Value.” torneys” and “Leadership, Habit, Workplace Culture for Women At- ing Profession,” “Changing the Influence and Success in a Demand- Optimizing Personal Effectiveness, “The Lawyer as Masterful Leader: New topics were added, including Heisterhagen, Burr &Forman LLP. Federal Public Defender; and Kasee Commission; Latisha Colvin, Office executive, United Methodist Church LLP; Dawn Wiggins Hare, senior Kathleen Miller, Armbrecht Jackson Collins, Johnstone Adams LLC; M. Leadership ForumClass15be- will lastalifetime.” the relationships wehaveforged the present tensebecauseIknow Forum isandhasbeen.Isaysoin able experiencetheLeadership did program andwhataremark- can’t sayenoughaboutthissplen- the experienceforthisclass:“I main priorities. profession isaoneoftheforum’s able attorneystogivebackthe Finding awayfortheseremark- ates itisproducingeachyear. reflects uponthequalityofgradu- and ineverygroup withoutfail.” cilitates thatoutcomeeveryyear ship Forumisaprogram thatfa- the parts.That Alabama Leader- the wholemustexceedsumof individual limitations.Thesumof must collectivelyriseaboveour pact tohavethegreatest valuewe nificant ways.Inorder forthatim- humanity inmeaningfulandsig- a uniqueopportunitytoimpact A graduateofClass14sumsup The bar’s futureisbrightwhenit

s LEADERSHIP FORUM2018 Office oftheSenateOffice President Pro Tem, Montgomery U.S. Attorney’s ofAlabama, Office, District Middle Alabama Law Enforcement Agency, Montgomery Bradley Arant Cummings Boult LLP, Birmingham Beasley, Allen, Crow, Methvin, PC, Portis &Miles Law ofRochelleA.Conley, Office Huntsville Legislative Agency, Services Montgomery Maynard, Cooper PC,Birmingham &Gale Sheffield &Lentine PC,Birmingham Christopher H.Daniel Brandon J. Demyan Rochelle A.Conley Brandon W. Bates R. Aaron Chastain R. Aaron (Photograph by FOUTS COMMERCIAL PHOTOGRAPHY, Montgomery, [email protected]) Patrick W. Dean Gaines B.Gaines Brake Casey N.Bates Evan G.Allen Montgomery Montgomery 4 1 S S A L C Alabama Department ofRevenue–Legal Division, Alabama Department Thomas ofLaw, JonesSchool Goode Montgomery Bradley Arant Cummings Boult LLP, Birmingham Wiggins, Childs, Pantazis, Fisher LLC, &Goldfarb White Arnold &Dowd PC,Birmingham BrasfieldGorrie LLC, & Birmingham Armbrecht JacksonLLP, Mobile Miller Smith LLC, Smith Miller Montgomery Baker Birmingham Donelson, Mary Martin M.Mitchell Martin Mary Amandeep S.Kahlon Allen P. Mendenhall S. Gaillard Ladd,S. Gaillard Jr. Catherine C.Long H. Eli Lightner, II D.G. Pantazis, Jr. Tamika R.Miller J. Wilson Nash Montgomery Birmingham Farmer, Price, Hornsby & Weatherford LLP, Dothan Hare, Wynn, Newell &Newton LLP, Birmingham Lightfoot, Franklin & White LLC, Birmingham Sasser, &Brown Sefton PC,Montgomery Maynard, Cooper PC,Huntsville &Gale Law ofLiz Office Young, Gardendale Southern Company,Southern Birmingham Lloyd &Hogan PC,Birmingham Burr &FormanBurr LLP, Mobile Crocker &Sparks, Cullman Margaret W. Vinsant Kimberly C. Kimberly Waldrop Elizabeth A. Young Stephen C.Rogers Russell N.Parrish Andrew R.Salser L. Robert ShreveL. Robert Tempe D. Smith Anna S.Pierson R. Ashby Pate www.alabar.org 267

T h e Alabama Lawyer 268 T h e Alabama Lawyer July 2018 (Tony mclain) was and i see my role as that of i hope that i can be a membership like he comfortable calling on me like so many as general counsel, a resource to our that you will feel Roman A. Shaul l e s N u o c l a r e N e g F o e c i F F o e h T m o r F called on him. servant to the membership. ing a new general counsel. i also thank also i counsel. general new a ing bama state bar and the process of select- volunteerism and dedication to the ala- the to dedication and volunteerism commissionersboardbar the of for their view of the world and what i see as my role. insightsgivesomeinformsintowhatmy state bar. alabamai will introduce the myself and to professionyou and our serve to given been have i that opportunity expressmy profound appreciation for the eral counsel, i decided to use this space to however,forinauguralmy articlegen-as dowd, the entire search committee and committee search entire the dowd, touching upon ethics and issues professionalism. concerning advice practical and First, thank you to President augusta President to you thank First, This column generally offers substantive do ourpart. to expected always were i and brothers younger three my and, jobs. multiple had often and hard very worked ways al- parents my but belongings, material not have much in the way of resources or did we father, 19-year-old and mother bama. having been born to a 17-year-old ala- of university the at school law and graduate undergraduate, to went and transition. my to invaluable been has wisdom and guidance doug’s time. difficult a during effectively and efficiently running fice of- the kept and counsel general interim as served graciously who mcelvy, doug i was raised in rural in raisedwas i Tuscaloosacounty The first lawyer i ever met was my freshman year of college my share of wins and losses, but i tried to be graceful in defeat. when i walked into a local law firm and asked if they were hiring Whenever i lost a dispositive motion, trial or appeal, i made it a any runners. after law school, i practiced in Tuscaloosa for ap- point to contact opposing counsel and congratulate him or her proximately two years and then at beasley allen in montgomery on the result, and if appropriate, thank them for the compassion for 17 years. The last 17 months, i have served as a circuit court they showed my client. judge in montgomery county and recently won election to a as general counsel, i see my role as that of a resource to our full-term. my wife, caroline, and i have been married for almost membership. i am here to help you keep your law license. al- 13 years and we are blessed to have three wonderful daugh- though i am required to enforce the Rules of Professional Con- ters–anne Kingsley (nine), isabel (eight) and Thompson (one). duct, my office will do it fairly and with compassion. What i i come to this office having been a litigator most of my career. have found both in practice and in my time on the bench is in private practice, i represented insurance companies, small that if you give lawyers a path and an opportunity to do right, businesses, large corporations, individuals and state govern- they usually do. i am hopeful that my office can work with you ments. i have done title work, oil and gas work and litigation, when ethical issues arise in your practice and help you navi- and handled family law matters and tried criminal cases. i always gate the correct path. Former general counsel Tony mclain tried to put my client in the best position based on the facts of was as beloved a figure in our profession as i have ever known. the case. To me, this goal never meant treating opposing he was a friend to many and known to be a person whom you lawyers like the enemy and gaining ground at all costs. i always could call for sage advice. in my heart, this will always be Tony’s tried to establish commonalities early in a case and was mindful office. i hope that i can be a servant to the membership like that the lawyer on the other side usually had family and profes- he was and that you will feel comfortable calling on me like sional obligations similar to mine. like most lawyers, i have had so many called on him. s

you take care of your clients, but who takes care of yOu?

For information on the alabama lawyer assistance Program’s free and Confidential services, call (334) 224-6920. alabama lawyer assistance Program Alabama Lawyer T h e 269 www.alabar.org 270 T h e Alabama Lawyer L L L L L July 2018 suspensions disbarments Transfers to status inactive reinstatement notices • birmingham attorney birmingham steven douglasEversole • Transfers status to inactive ofalabama 23,2018,thesupreme entered court anorder onJanuary reinstating • reinstatement • • • Thedric Brackett, Jr., • Notices 112, 2013-710 and 2013-1935 by the disciplinary board of the alabama state bar. effective February 1,2018,by order of alabama. ofthesupreme court cense to law. practice [rule28,Pet. No. 2017-1405] state bar. 15,2012,anorder was onoctober entered suspendingstrohmeyer’s li- bama baseduponthedecisionofPanel board ofthealabama iofthedisciplinary former attorney birmingham Todd s.strohmeyer 2012-625, 2012-836, 2012-1363, 2012-1760, 2012-1853, 2012-2090, 2012-2241, 2013- appropriate discipline shall be imposed against him in asb Nos. 2011-636, 2012-595, cation or, thereafter, the allegations contained therein shall be deemed admitted and bama state bar’s formal disciplinary charges within 28 days of the date of this publi- leon david Walker, iii, board ofthealabama state1276 and2013-2046by bar. thedisciplinary mitted andappropriate disciplineshallbeimposedagainstherinasbNos. 2012- publication or, thereafter, theallegations contained therein shallbedeemedad- alabama state bar’s charges within28days formal ofthedate disciplinary ofthis Huntermollie mcCutchen, before the disciplinary board of the alabama state bar. [asb No. 2016-1558] mitted and appropriate discipline shall be imposed against him in asb No. 2016-1558 days of July 31, 2017 or, thereafter, the charges contained therein shall be known,deemed must ad- answer the alabama state bar’s formal disciplinary charges within 28 malcolm Bailey Conway, the alabama state bar. [rule20(a),Pet. No. 2017-1218;asbNo. 2016-760] No. 2016-760andrule20(a),Pet. No. board 2017-1218before of thedisciplinary deemed admitted andappropriate disciplineshallbeimposedagainsthiminasb 28 days ofJuly30,2018or, thereafter, thecharges contained therein shallbe mustanswerunknown, thealabama state bar’s charges within formal disciplinary s e c i T o N y r a N i l P i c s i d who practiced in birmingham andwhosewhereabouts inbirmingham who practiced are whose whereabouts are unknown, must answer the ala- who practiced in mobile and whose whereabouts are un- whose whereabouts aremustanswer unknown, the was transferred to status, inactive to oflaw thepractice inala- birmingham attorney • attorney birmingham Thedric Brackett, Jr. • disbarments anniston attorney nathaniel davis Owens • ben took no other action in the case. [asb No. 2014-323] client. The court granted dowben’s motion. however, dow- sought the court’s permission to continue representing the 2014, dowben filed a motion to show cause, in which she court terminated dowben as counsel. on February 21, the court’s show cause order. on January 15, 2014, the order on december 23, 2013. dowben failed to respond to motions to dismiss. The court issued dowben a show cause file any response or otherwise respond to the defendants’ opposition brief by November 1, 2013. dowben failed to ure to state a claim. The court ordered dowben to file an ous defendants who each filed motions to dismiss for a fail- rights act suit on behalf of a client. The suit named numer- Ala. R. Prof. C guilty of violating rules 1.3, 3.2, 8.1(b) and 8.4(d) and (g), abama state bar, disbarring dowben after she was found on the report and order of the disciplinary board of the al- march 9, 2018. The supreme court entered its order based disbarred from the practice of law in alabama, effective was terminated by theclient. [asb No. 2014-1563] ofthefee he failed to after refund portion theunearned bate matter. brackett failedto the$1,200fee earn and forced to hire anotherattorney to represent herinthepro- information aboutthematterseeking andtheclient was brackett failedto respond to theclient’s callsandtexts therance oftheprobate ofhermother’s estate. Thereafter, anything withtheprobate onherbehalforinfur- court 2014, theclient discovered that brackett stillhadnotfiled withregardcourt to theclient’s mother’s estate. august in any time, fileapetitionorotherpleadingwiththeprobate tate, when,at that time, hehadnot. brackett didnot, at client that hefiledapetition to probate hermother’s es- behalf oftheclientto prior august told 2014.bracted the the estate 2013,brackett inapril on took littleto noaction of from oftheproperty asingleletter to themortgagee brackett $1,200asanattorney fee inthematter. aside gard to theestate ofherdeceased mother. The client paid to represent herto probate withre- andtakeotheraction Ala. R.Prof. march 2013,brackett was C.in hired by aclient violating rules1.3,1.4(a),1.5,1.16(d)and8.4(a)(g), state bar, bracketthewas found after disbarring of guilty board ofthealabama andorder ofthedisciplinary report 2018. enteredThe supreme court itsorder basedonthe from oflaw thepractice inalabama, effective march 9, order ofalabama. ofthesupreme court ferred to status, inactive effective February 2,2018,by . in september 2013, dowben filed a 1983 civil minerva Camarillo dowben was disbarred was trans- was Northville, michigan attorney • Theodore attorney Jr. ronaldray goleman, was dis- • 2017-1452; asb No. 2015-243] under oath in a related civil matter. [rule 25(a), Pet. No. lied to her law firm about her actions and testified falsely took possession of the property owner’s personal property, that was subject to a tax sale. in addition, mardis unlawfully fraudulent scheme to unlawfully obtain title to a property mardis was found guilty of conspiring with others in a 1.5(b), 1.15(a), 1.7(b)(4), 3.3(a), 8.1(a) and 8.4(b), (c) and (d). disbarred by the district of columbia for violating rules bama, effective February 12, 2018. mardis was previously cal discipline of disbarment from the practice of law in ala- court of alabama on march 9, 2018 to receive the recipro- is also licensed in alabama, was ordered by the supreme No. 2018-228;asbNos. 2017-503and2017-1075] was suspendedfrom oflaw. thepractice [rule23(a),Pet. dling andcontinuing to utilize histrustaccount whilehe consent to disbarmentwherein headmitted to mishan- enteredThe supreme court itsorder basedongoleman’s ofalabama,supreme effective court February 15,2018. barred from oflaw thepractice inalabama by order ofthe Carolyn Tubbs mardis, www.alabar.org who 271

T h e Alabama Lawyer 272 T h e Alabama Lawyer July 2018 (Continued frompage271) • montgomery attorney morgan Joe reed montgomery • attorney birmingham Edward Eugene may • birmingham attorney • birmingham attorney • daphneattorney russellfoster Bozeman • cullman allan attorney Hames randy • suspensions march willberequired 27,2018. reed to 45days ofthe from oflaw thepractice inalabama for 91days, effective (e), Ala.R.Prof. C. probation by committing aviolation of rules1.15(a)and tice oflaw inalabama. may violated theterms ofhis suspensionfrombation andimposinga91-day theprac- the alabama state barissuedanorder revoking may’s pro- commission of 30,2018,thedisciplinary 2018. onJanuary order of alabama, ofthesupreme effective 4, court april pended from oflaw thepractice inalabama for 91days by bar. [cle No. 17-390] tinuing legal education requirements of the alabama state 18, 2018, for noncompliance with the 2016 mandatory con- pended from the practice of law in alabama, effective march [rule 20(a), Pet. No. 2018-223] charged with multiple felony counts of securities fraud. 2017 by the grand jury of Jefferson county, wherein he was and/or to the public. brown was indicted on august 25, likely to cause, immediate and serious injury to a client brown’s conduct is continuing in nature and is causing, or based upon the disciplinary commission’s order finding tive February 21, 2018. The supreme court entered its order imly suspended from the practice of law in alabama, effec- ter. [rule20(a), Pet. No. 2018-159] respond to formal mat- requests concerning adisciplinary order that bozeman suspendedfor besummarily failing to tered commission’s itsorder baseduponthedisciplinary bama, effective February 1,2018. en- The supreme court oflawpractice inalabama by ofala- thesupreme court suspended pursuant to rule20a,Ala.R.Disc.., from P the degree. [rule20(a),Pet. No. 2018-373] man county ontwo counts ofhumantrafficking, second the public. hameswas arrested onmarch 5,2018 incull- toto aclient cause, andto immediate injury andserious probable causeexisted that hameswas causingorlikely commission’sbased uponthedisciplinary order finding march 26,2018. enteredThe supreme court itsorder pended from oflaw thepractice inalabama, effective [asb No. 2013-2105] george Bondurant Elliott steven Clyde reed Brown was interimly sus- was suspended was summarily was sus- s e c i T o N y r a N i l P i c s i d was sus- was inter- birmingham attorney • Tuscumbia attorney William Jordan underwood • attorney birmingham anna genevieve Turner • cation with the court. [asb Nos. 2017-364 and 2017-614] employee, who was also a notary, and then filed the appli- and a notary. Wallace forged the signature of his former divorce, which is required to be signed by the petitioner filed an application and affidavit for entry of default in the did not move for a default. on January 24, 2017, Wallace petition would be dismissed if no answer was filed and he cember 2016, Wallace was informed by the court that the ever, Wallace failed to move for a default judgment. in de- the defendant failed to file an answer to the petition. how- client. service was not perfected until July 2016. Thereafter, a petition for divorce on January 27, 2016 on behalf of a count reports to the office of general counsel. Wallace filed ment assistance Program and submit monthly trust ac- probation, Wallace must complete the Practice manage- 3.3, 3.4(f), and 8.4(c), (d) and (g), plea, wherein he admitted to violating rules 1.15(a), (e) and commission’s acceptance of Wallace’s conditional guilty 25, 2018. The suspension was based upon the disciplinary court of alabama, effective march 27, 2018 through June with Wallace to serve 90 days by order of the supreme pended from the practice of law in alabama for two years, ofajuror.bribery [rule20(a),Pet. No. 2018-56] eral counsel evidencingunderwood’s for indictment orderofficegen- was of basedonapetitionfiled by the 11,2018. fective commission’s January The disciplinary commission ofthealabama statethe disciplinary bar, ef- pursuant to rules8(c)and20(a),Ala.R.Disc.., by P order of terimly suspendedfrom oflaw thepractice inalabama bama state bar. [cle No. 17-405] continuing legaltory education requirements oftheala- march 18,2018,for noncompliance withthe2016manda- pended from oflaw thepractice inalabama, effective 8.4, Ala.R.Prof. C. have relationship, anattorney-client inviolation ofrule half ofapersonwithwhomhehadnever metanddidnot plea, wherein headmitted to filingalegalpleadingonbe- commission’snary acceptance ofreed’s conditional guilty ethics cle. The suspensionwas baseduponthediscipli- of pro andobtain12hoursofadditional bonoservice, Practice assistance management Program and150hours While onprobation, mustcomplete reed thealabama period.pending completion ofatwo-year probationary suspension, whiletheremainder willbeheldinabeyance [asb No. 2017-363] michael Evans Wallace Ala. R. Prof . C . While on was sus- was sus- was in- s

274 T h e Alabama Lawyer L July 2018 Camille Wright Cook served astheJohns. stone Professorserved oflaw. merous publications reflected thoseinterests. Prior to her retirement in1993,she women andthelaw, contracts, sex discrimination andchildren’s rights, andhernu- standing commitment to Teaching award; herteaching interests included familylaw, and director ofcontinuing legal education (cle). 1990,shereceived in theout- 1978-1993; at theua many oflaw school roles, sheserved includingassistant dean oflawthe university ofalabama school in1968andwas aprofessor oflaw from she taught businesslaw at auburn university from of 1948-68;shejoinedthefaculty Flowers,peals andrichmond aformer attorney general. haltom, Judgecharles Judgebert Wright ofcivildistrict ap- ofthealabama court cluding senator howell heflin, congressmen georgebevill and huddleston,Tom u.s. class were many future alabama leadersanddistinguishedmembersofthebar, in- andaffectionatelyasthe known spectfully “great classof 48.” among hergraduating gree from theua oflaw school indecember 1947,amemberofwhat isnow re- university ofalabama (university) in1944andherlaw de- searcy Wright. shereceived herbachelor’s degree from the in born Tuscaloosa to h. Judgereuben Wright andcamille bers at herhomein Tuscaloosa at theageof93.shewas daughtercook, camille ashley andahostoffamilymem- rounded by sonssydney cook reuben cook, andcade andadmirerbe herfriend for more than44years. cook was oneofthose specialpeople, and iwas honored to with joy, excitement, compassion andfriendship. camille W. camille Wright cook Following graduation from law school, andmoved shemarried to auburn, where camille Wright cook diedonFebruary 20,2018sur- areseldom we graced by someonewhofillsourlives s l a i r o m e m the way businessandhandled herself. sheconducted she humility. worklessons inbothlife ethic, integrity andlegalskills: and students shetaught and encountered important some very alumni association. ing commitment to Teaching award given by theNational by theuniversity in1991whenshereceived theoutstand- see themsucceed. herteaching excellence was recognized because shecared for herstudents andgenuinelywanted to what was merely required ofherasaprofessor, anddidso tor to law students, androutinely went above andbeyond names oftheirparents. andmen- friend shewas awonderful their hometown, undergraduate institutionand, the often, ofthestudent bodybyknew theirfirstnames.jority shealso available to thevast meetwithherstudents, ma- andknew sionate, energetic and “hands-on” educator. shewas also felt expressing comfortable their opinions. shewas apas- challenging, classroom environment inwhichher students position. sheaspired andclear, to establishacourteous yet asaprofessorspect isearned, notconferred ofthe by virtue understanding ofthelaw. as lawyers, wethat re- allknow andapractical who possessedbothacademicknowledge teachers at ua law school. shewas recognized asateacher taught andwas recognized asoneoftheeffective classroom job inanoutstandingmanner. nars throughout alabama ontherules, andcompleted the ficiently organized semi- herselfandherstaff conducted of thoserulesin1973.Professor cook quietly, andef- quickly Alabama Rules ofCivilProcedure to, prior theimplementation of seminarsto teach alabama attorneys and judgesthenew with theresponsibility ofdeveloping acomprehensive series cle responsibilities 1972.as inearly director, shewas tasked hired measoneofherstudent assistants whensheassumed work to helppaypart-time for law school, cook andmrs. cook’s son,sydney, was my classmate andfriend. ineeded tance in1970. iwas accepted for thefall1971classandmrs. mittee at ua oflaw school that ifirstmadeheracquain- mrs. cookmrs. displayed anadmirable work ethic . iobserved cookmrs. taught herwork-study assistants andallthelaw additionto herdutiesasdirector ofcle,in cook mrs. also asamemberoftheadmissions was inhercapacity com-it in ourlegaland familyfutures. terest inherstudents and ourfamilies. sheshowed interest andloved andmarriage themdeeply.courtships little camille. thejoys oftheirschooldays, sheknew ing decisionsofherfour children, sydney, cade reuben, and family. ofherextended us apart sheshared withusparent- but it’s thehenwho lays theeggs.” cult malelegalgiant over aclematter, cock“the may crow, obstacle. ionce dealingwithadiffi- heard after herremark, ally dominated by men,shenever viewed hergenderasan cook was a “pioneer woman” inafieldwhich was tradition- single personwhohadever worked withher. although mrs. than oneoccasion thatsomethingfrom shelearned every best senseoftheword. iheard hersay onmore withpride dent ofherown ability, cook mrs. was trulyhumbleinthe sheconsideredyou andtrusted knew them.although confi- got thefeeling that shewas just tolerating your opinions– never gotthat feeling withcamille cook. working you never those othersincludedyoung law students. however, you her, to develop arrogance, someintellectual especiallyif ers inthelaw schoolwhomight have somethingto offer to tointellect conclude thatthere perhaps were few oth- very would beeasyenoughforher intellect.it apersonwiththat think anyone whometherwas impressed withthepower of onherposition. flected above ourjob, reproach re- inperforming asouractions inar handouts. We hadto behonestwiththemandto be speakers andto provide uswell-researched andwritten sem- membersofthealabamahardworking state barto beour she reminded usthat we dependedonthegenerosity ofthe convenient andabsolutely nostretching facts ofthetruth. toany adecision,absolutely noignoring ofany shortcuts in- lessons aboutintegrity. With there cook, mrs. were never we were ateam to makeithappen. neath herdignity–the missionmustbeaccomplished and tants thanshedidofherself. Nojobwas too smallorbe- worked hard, butdemandednomore ofherstudent assis- it alsoworked theotherway,it asshealways showed anin- Working for camille cook was priceless becauseshemade cook’smrs. third well-knownattribute. i was humility secondly, withcamille cook working taught usimportant www.alabar.org 275

T h e Alabama Lawyer 276 T h e Alabama Lawyer July 2018 others. chorus: The songhasawonderful thanks thosewhohave been faithfulandleadtheway for song, christian rary “Find us Faithful.” that song, in thesinger (Continued frompage275) many contempo- ofyou may befamiliarwithawonderful inspire them to obey.” that we leave leadthemto thelives believe; And we live the fire of ourdevotion lighttheir Maythefootprints way; Bryan, Hon. Johnnewton,Bryan, Jr. Oh mayallwhocome usfind “Oh behind faithful; May Childs, robert fletcher,Childs, robert Jr. Clark, ronaldlinwood, Jr. died: February 24,2018 Cosper, Jason Bradley Balch, samuel Eason samuel Balch, died: october 6,2017 died: october died: march 27,2018 died: march 22,2018 died: march 5,2018 died: april 14,2018 died: april admitted: 1999 admitted: 1955 admitted: 1948 admitted: 2000 admitted: 1972 admitted: 2016 montgomery birmingham birmingham birmingham Bail, Chaya mobile lanett groover, lewis Jr. madison, durant, Winston dansford Hester, douglasBenjamin Cothren, anthony robert Hartley, gerald Wade, Jr. friedman, Karl Bernard died: February 26,2006 died: march 29,2018 died: march 27,2018 died: april 11,2018 died: april died: april 5,2018 died: april silver spring, md admitted: 1952 admitted: 1948 admitted: 1998 admitted: 1968 admitted: 1976 admitted: 1984 died: unknown savannah, ga montgomery montgomery birmingham birmingham lawyers to follow. talents withothers. Thank you for leaving footprints for rule oflawlife principles andchristian your andsharing life hastouched, we allthankyou for beingfaithfulto the –M. Dale Marsh,Marsh&Cotter–M. Dale LLP, Enterprise s Thank you, for cook, mrs. gracing ourlife withyours. onbehalfofallthestudents cook, mrs. andlawyers your sandidge, Hon.mims marise s l a i r o m e m Odum, James Edmund, Jr. nix, JosephBethune,nix, Jr. landrum, John landrum, William liggan, Charles Jason died: march 30,2018 died: march 29,2018 died: march 25,2018 died: march 27,2018 Poole, Calvin Elisha died: march 8,2018 died: april 12,2018 died: april admitted: 1978 admitted: 1955 admitted: 1977 admitted: 1950 admitted: 2001 admitted: 2003 montgomery birmingham birmingham birmingham evergreen greenville receive freeandreducedbreakfastlunchduring most importantly, Alabama’s 390,000childrenwho June 14wasagooddayfor Alabama lawyers,and Regional FoodBanks Record Donationsfor the schoolyear, butdonothaveadependable WYERS RENDER SER : E C I RV E S R E D N E R S R E Y AW L source forfoodduringthesummer. bama StateBar raisedthe ney General’s office andthe Ala- effort betweenthe Alabama Attor- ful yet. This year’s collaborative Food Frenzywasitsmost success- Frenzy. Initsthirdyear, theLegal year’s Alabama LegalFood the resultsandwinnersofthis Dowd announcedandcelebrated State BarPresident Augusta S. eral SteveMarshalland Alabama Area FoodBank, Attorney Gen- On thatdateattheMontgomery By Jeanne DowdleBy Jeanne Rasco Alabama Food Bank Association Alabama State Barjoinedwiththe torney General’s Office andthe vital assistance.” your donations which will provide fer from hunger. I thank you all for nance and dignity to those who suf- communities by providing suste- in their mission to strengthen our our state perform outstanding work “Food banks in communities across torney General Steve Marshall. children who are in need,” said At- help our fellow men, women and and open our hearts and wallets to be grateful for our good fortune agencies andpantries. food banksandtheir1,500partner food for Alabama’s eightregional equivalent of240,000pounds Two years ago,the Alabama At- “This is a time when we pause to www.alabar.org 277

T h e Alabama Lawyer 278 T h e Alabama Lawyer Rasco andLaura Lester. Notpictured isKatherine Church. of the2018Legal FoodFrenzy coordinators. Lefttorightare Desiree Alexander, Eric Anderson, DebbieGregory, JeanneDowdle Pictured abovewith Alabama Attorney GeneralSteveMarshalland Alabama StateBarPresident Augusta Dowd(front row) are some gether towardacommonservice lawyers havewhentheyworkto- tangible exampleofthepower Frenzy, nowinitsthirdyear, isa communities. The LegalFood tions withtheirclientsand Render Service,’ indailyinterac- our statebar’s motto,‘Lawyers Dowd, “Alabamalawyersliveout food banks. funds for Alabama’s eightregional who canraisethemostfoodand legal organizations competetosee abama’s lawyers,lawfirmsand hunger. Duringthecampaign, Al- Food Frenzytohelpendchild and startedthe Alabama Legal July 2018 As explainedbyPresident forts, andlookforwardtoseeing bar doesinsupportoftheseef- am proudofthegoodworkour these childrenandtheirfamilies.I mer sothattheyarereadytoassist the statestockfoodforsum- Frenzy helpsfoodbanksaround lected duringtheLegalFood source ofnutrition. The foodcol- mer, theymisstheirprimary school yearareoutforthesum- breakfast andlunchduringthe who areonfreeandreduced the 390,000 Alabama children Food Frenzyisnoaccident. When assistance. The timingoftheLegal fellow Alabamians inneedoffood goal: providingsupportforour Jeanne DowdleRasco 09 2019. scheduled for April 22-May3, next year’s LegalFoodFrenzy, ready committedtosupporting very presentneed.” tinues togrowinresponsea how theLegalFoodFrenzycon- President-Elect SamIrbyhasal- Food Frenzy Task Force. Alabama State Bar Legal serves as co-chair of the Office in Huntsville and is with the City Attorney’s Jeanne Dowdle Rasco s MF Walker LawGroup LLC , Birmingham (2,625pounds) This year’swinnersare: Carr Allison, Birmingham(25,650pounds a soleproprietor Most poundsfor and 185poundsperemployee) Most poundsandmost per employeeforalarge firm Hill, Carter , Montgomery (11,190 pounds and 294poundsperemployee) Most poundsandmost peremployeeforamediumfirm (38,963 poundsand3,896per employee forasmallfirmandwinner Isaak LawFirm,Montgomery Most pounds,mostpoundsper of the Attorney General’s Cup (Photo notavailable) employee) (28,249 pounds and 1,345 pounds per employee) Most poundsandmostperemployee Alabama Supreme CourtClerk’s Office for alegalorganization Celeste Alexander, Birmingham (2,151 poundsperemployee) The LawOfficeofDesiree Most poundsperemployee for asoleproprietor www.alabar.org 279

T h e Alabama Lawyer 280 T h e Alabama Lawyer July 2018 Attorney, LegislativeServices Agency Director, LegislativeServices Agency Caleb Hindman,Legislative visit www.lsa.alabama.gov. [email protected] [email protected] For more information, Othni J.Lathram from the board at the annual meeting following the trustee’s 70 ent of education from the board; and (3) removes the requirement that a trustee retire trict in the state as constituted on January 1, 2018; (2) removes the state superintend- upon ratification and will be voted on at the November 2018 general election board of Trustees membership consists of two members from each congressional dis- senator greg reed university ofalabama Board of Trustees (act 2018-132) constitutional amendments can befound at http://lsa.state.al.us be ofinterest around to practitioners thestate. ofallthegeneral summaries acts total, 261were general bills. general below billsthat are might ofselect summaries legislative ofwhich314billswere session, andbecamelaw, enacted andofthat covers othernoteworthy legislation. There were 922billsintroduced the2018 during the2018legislativepassed during session. asinstallmentThis two and month serves legislative update, Part 2 This proposed constitutional amendment (1) specifies that the university of alabama The may edition ofthiscolumn covered thealabama law legislation institute that P u - P a r W e V i T a l s i g e l under thelegal divisionPublications. th birthday. effective state legislature (act 2018-276) senator rusty glover courts This proposed constitutional amendment provides that if a vacancy occurs in the state legislature either on or after municipal Courts–legal notice (act 2018- october 1 of the third year of a quadrennium, the seat shall 365) remain vacant until a successor is elected at the next suc- senator rodger m. smitherman ceeding general election. effective upon ratification and will This act authorizes the use of emails or text messages to be voted on at the November 2018 general election notify a defendant in municipal court of any legal process re- quired by the court in addition to other forms of notification, Ten Commandments (act 2018-389) using contact information provided by the defendant. effec- senator gerald O. dial tive June 1, 2018 This proposed amendment (1) authorizes the display of the Ten commandments on state property and property Private Judges (act 2018-384) owned by a public school or public body; (2) prohibits the senator Cam Ward expenditure of public funds in defense of the constitutional- This act includes within the list of individuals authorized ity of the amendment; and (3) provides that if the Ten com- to serve as a private judge an individual who is a former pro- mandments are displayed, the display shall be in a manner bate court judge and who served in the capacity of judge for that satisfies any constitutional requirements, including at least six years, is admitted to the practice of law in the being intermingled with historical or educational items, or state, is an active member of the alabama state bar and is a both, in a larger display. effective upon ratification and will resident of the state. effective June 1, 2018 be voted on at the November 2018 general election

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T h e 281 www.alabar.org 282 T h e Alabama Lawyer July 2018 be executed by means of nitrogen hypoxia; and (2) provides senator lee “Trip” Pittman Capital Punishment (act 2018-353) is dangerous. effective June1,2018 that adog afalsereport penaltiesforvides criminal making mal control officer or law enforcement and(5)pro- officer; a dangerous doginvestigation upontherequest of an ani- collar andleashorwhorefuses to to surrender adogsubject not contained inaproper enclosure andnotsecured witha ties for theowner ofadangerous dogwhoseisoutside, surety bondofat least$100,000;(4)provides penal- criminal nual dangerous dogregistration fee of$100andobtaina the owner ofadogdeclared to bedangerous to pay anan- edge ofthedangerous propensities ofthedog;(3)requires ordeath to aperson,based ontheowner’scal injury knowl- whose dogattacks andcausesphysical injury, physi- serious to (2)provides itsowner; penaltiesfor criminal adogowner declared dangerous andhumanelyeuthanized orreturned senator steve livingston Emily’s law (act 2018-182) lawcriminal effective July1,2018 ized through orrecognized by thealabama state bar. cense inthestate to provide organ- pro bonolegalservices representative Chris England Pro (act legal Bono services 2018-561) ferson county. effective July1,2018 ofcases. backlog and criminal doesnotapplyto The Jef- act delayof thecircuit orcivil congestion, to court address court courts withinthecircuitjudge to orwithinthedistrict serve presiding judgeofacircuit to assign acircuit ordistrict thorough administration ofjustice; and(2)authorizes the cases orfor any for otherreason the prompt necessary and delay, congestion, court of court backlog civilandcriminal another circuit for areasonable oftimeto period address of alabama to temporarily judgeto assign acircuit ordistrict representative JimHill Judicial reallocation (act 2018-567) (Continued frompage281) This act (1) allows a person sentenced to death to elect to (1)establishesaprocedureThis act by which adogcanbe authorizes attorneysThis act whoholdaspeciallaw li- (1)requiresThis act thechiefJustice ofthesupreme court P u - P a r W e V i T a l s i g e l Human Trafficking (act 2018-506) June 1,2018 from aclassmisdemeanorto aclassbfelony. effective inthesecond degreement ofhumantrafficking ofthecrime foroftheenforce- penalty changes thecriminal obstruction first degree from aclassc felony to aclass and(2) felony; the enforcement inthe ofhumantrafficking ofthecrime senator Cam Ward Human Trafficking (act 2018-385) to death shall be nitrogen hypoxia. effective June 1, 2018 unavailable, the method of execution for a person sentenced that if lethal injection is held unconstitutional or is otherwise case whenthe personisordered oragrees to use anignition ifthe caseisamunicipalcourt uted to themunicipalcourt fee would ofthecourt (4) provides bedistrib- that aportion regardless ofthenumbermonths thedevice isinstalled; from $75 permonth thedevice isinstalled to atotal of$200, ignition interlock device fee required to bepaidto thecourt terlock device from two years to oneyear; (3)changesthe cumstances isrequired to install andoperate anignition in- convicted aggravating ofafirstduioffense with certain cir- months to 90days; (2)reduces for theperiod whichaperson tion interlock device inorder to legallydrive from six ofafirstduioffensevicted mustinstallandoperate anigni- senators JimmcClendonandPaul Bussman undertheinfluencedriving (act 2018-517) massage therapy establishment. effective July 1, 2018 cants and prohibits any person from staying overnight in a ground checks for massage therapist licensees and appli- board of massage Therapy to conduct criminal history back- circuit or district court. The act also requires the alabama and certain prostitution offenses may only be prosecuted in conditions; and (6) provides that human trafficking offenses committed by victims of human trafficking under certain ficking; (5) provides for the expungement of certain crimes an additional fine used to compensate victims of human traf- minor from asserting a mistake of age defense; (4) provides fendant accused of engaging in an act of prostitution with a ing in an act of prostitution with a minor; (3) prohibits a de- conduct is with a minor; (2) establishes the crime of engag- move the requirement of deception or coercion if the sexual representative Jack d. Williams This act (1) changes the criminal penalty forof penalty (1)changesthecriminal obstruction This act This act (1)reducesThis for act theperiod whichaperson con- This act (1) further defines the term sexual servitude to re- a set period of time or as a serious juvenile oftimeorasaserious a setperiod offender, theju- for inajuvenile afelony court services oramisdemeanorfor quent of andcommitted to thealabama department youth representative rolandaHollis 2018-525) sentencing–Juvenile delinquents (act 2018 tion interlock fees charged to adefendant. effective July1, an ignition interlock device andisnotrequired to pay igni- to pay any costs associated withinstallingandmaintaining an offender whoisgranted status isnotrequired indigency place ofresidence orplace ofbusiness;and(7)provides that provider available withina50-mileradius oftheperson’s ignitionlock device interlock ifthere isnotacertified that nopersonmay berequired to installanignition inter- pretrial diversion program, whichever isgreater; (6)provides installed for aminimumofsixmonths ortheduration ofthe diversiontrial program to have anignition interlock device person charged withaduioffense andapproved for apre- interlock device; (5)requires, until July1,2023,that each This act providesThis act that when achildisadjudicated delin- Fulf akwarell Pwe1241 N On Tar y |Mon tgomery get. OnTime CO WE’VE OVERED VERED re-offense. effective July1,2018 re-offense. any juvenile sex offender whoisat moderate for orhigh risk tion; and(5)requires alternative educational placement for students attending schoolwiththegeneral student popula- andmonitoring oflow-risk juvenile sex offendersupervision education to adopt, acomprehensive for the modelpolicy state board ofeducation to develop, andeachlocalboard of provided,erwise constitutes aclasscfelony; (4)requires the provides thatdance; failure (3) further to comply, unlessoth- notify locallaw enforcement ofany changeinschoolatten- tion over theschool;(2)requires juvenile sex offenders to school, thelocalsuperintendent ofeducation withjurisdic- juvenile sex offender isplanningto attend and, ifapublic ofthepublicornonpublicschoolwhereprincipal alow-risk senator Clyde Chambliss annalyn’s law (act 2018-528) 2018 subsequent to, adjudication for theoffense. effective July1, timespentto, detainedprior with allofhisorheractual or shallordervenile that thedelinquent court childbecredited This act (1)requiresThis act locallaw enforcement to notifythe UOGOT Y

, AL36110 |da gMailin gtinPrin . visdirect. tillmen com www.alabar.org 283

T h e Alabama Lawyer 284 T h e Alabama Lawyer July 2018 tion to private adoptionand revises thedefinitionof senator Brewbaker dick (act 2018-549) Tax Credits for Private intrastate adoption is exempt from federal income tax. effective march 15, 2018 foreign income from income taxes to the extent the income able for a maximum standard deduction and exempts certain senator delmarsh income Tax (act 2018-232) Tax law ment. effective 6,2018 april offensestrafficking from life withoutparole to life imprison- drug for penalty logues; and(2)changesthecriminal certain and othersynthetic controlled substance Fentanyl ana- ofFentanylunlawful ortrafficking possession,distribution, senator Cam Ward fentanyl (act 2018-552) occurred.viction effective July1,2018 felony duiconviction, regardless ofwhen theprevious con- ofaclasscfelonyence isguilty ifthepersonhasaprevious that apersonwhoisconvicted undertheinflu- ofdriving ence convictions from five years to 10 years; and (2) provides may consider adefendant’s previous undertheinflu- driving Orr senator arthur undertheinfluencedriving (act 2018-546) the parent or legal guardian of the child. effective July 1, 2018 the age of 14 years at the time of the offense, if the victim was committed by a defendant in the presence of a child under aggravating circumstance the commission of a capital offense the victim was less than 14 years of age; and (3) includes as an stance the commission of a capital offense committed when guardian of the child; (2) includes as an aggravating circum- the time of the offense, if the victim was the parent or legal dant in the presence of a child under the age of 14 years at representative PhillipPettus Hollie’s law (act 2018-537) (Continued frompage283) This act changesnameoftheterm privateThis intrastate act adop- This act expands the adjusted gross income range allow- (1)providesThis act enhanced penaltiesfor criminal the for period (1)increases whichacourt This thelookback act This act (1) includes as a capital offense murder by a defen- P u - P a r W e V i T a l s i g e l education law from thesale. effectivedeem theproperty July1,2018 lowest interest rate ontheamount required to bepaidto re- which taxliensare to thebidderwith soldat auction tocounty adoptarevised to elect taxliensaleprocedure in representative Corley Ellis of sale Tax liens(act 2018-577) 1,2019 January or after to reside inthestate. effective for alltaxyears beginning on term to motherandbaby provide donothave that thebirth quired individuals. for effective certain march 21,2018 background information history vises thecriminal checkre- to teachrights ofthefacility areligion; orpractice and(4)re- child care may notbeconstrued facility to uponthe infringe gious that school;(3)clarifies thelicensing of a faith-based child care ofachurch facilitiesthatornonprofit are part reli- ofhumanresourcescensure ofcertain by thedepartment ter to includepreschools; (2)removes theexemption from li- representative Pebblin W. Warren (actChild act safety 2018-278) the charge isadjudicated. effective February 27, 2018 student may beplaced onpaidadministrative leave while with astudentofhaving orthecrime sexualwitha contact ordeviant ofengaging sexual intercoursecrime inasex act which provides that aschoolemployee charged withthe senator lee “Trip” Pittman administrative leave (act 2018-140) from five to 30days. effectivemay 1,2018 teacher isrequired to give before terminating employment prohibition. alsoincreasesThe thelengthofnotice act that a ofPostsecondary education fromunder thedepartment to remove employees oftwo-year institutionsoperated schoolterm to includeallpublicK-12the next teachers and tenured teacher to resign within30calendardays to prior senator gerald O. dial Employment of Teachers (act 2018-83) This act authorizes the tax collecting officialofeach authorizes thetaxcollecting This act This act (1)revisesThis thedefinition ofthe day act term care cen- 13a-6-83, Code ofAlabama repealsThis section act theprohibition extends This againstallowing act a 1975, recognized veteran ashaving acertain status; and(2)pro- honorsorto individuals whoare military cipients of certain of shield placard by thedepartment Veterans affairs to re- representative moore Barry license Plates and Tags (act 2018-133) military effective march 29,2018 draw medicaltreatment pursuant to anorder for PPelcare. to healthcarenity providers whoprovide, withholdorwith- circumstances; and(3)providesill minorsincertain immu- professionals outlining medicalcare provided to terminally Palliative andendoflife (PPel)care to beusedby medical lic healthto establishaform for anorder for Pediatric ofPub- nally illorinjured (2)requires minor; thedepartment treatment andpalliative care to beprovided to thetermi- the minor’s attending physician, adirective for themedical minally illorinjured minorto execute, in consultation with representative april Weaver The alex Hoover (act act 2018-466) health law successor guardian may beappointed. effective June1,2018 legal custodian ofachildmustconsent before inwriting a deletes therequirement that aparent, legalguardian or or more immediately preceding thewritten request; and(2) guardianappointed for asakinship ofsixmonths aperiod child hasresided withtheindividualcaregiver to be seeking ing, butallparental rightshave beenterminated andthe pointed onlyifaparent by ajuvenile ofthechildisliv- court representative Paul W. lee Kinship guardians (act 2018-273) Family law ing. effective June1,2018 withinthedefinitionof bully-term cludes cyberbullying (3) redefines harassment asbullying;and(4)specificallyin- tion, violence andthreats ofviolence offofschoolproperty; ing Prevention (2)prohibits act; student bullying, intimida- Prevention to act theJamari Terrell Williams student bully- representative Johnf. Knight student Bullying(act 2018-472) This act (1)providesThis act for theissuance ofaremovable wind- (1)authorizes theparentThis act orlegalguardian ofater- (1)provides guardianThis act may that akinship beap- (1)changesthenameofstudentThis harassment act lar to that ofalabama. effective 6,2018 april state haslicensing greater criteria thanorsubstantially simi- orders,tioned inthestate iftheissuing underofficialmilitary duty, onactive was serving whoisrelocated to andsta- memberwho,of aservice at thetimeofhisorherdeath, Forces, spouse includingtheNational guard, orasurviving ortransitioning member oftheunited statesserve armed re- by duty thespousesofanactive in otherjurisdictions nize professional that licenses andcertificates were obtained state, withenumerated exceptions, to adoptrulesto recog- representative Thad mcClammy (act 2018-540) family act The military JobsOpportunity 1,2018 January has beenemployed for 12consecutive months. effective full-time positionpaying at least$14anhouriftheveteran businesses that hire anunemployed orcombat veteran for a representative Connie C.rowe veterans Employment (act act 2018-194) viduals withaspecific veteran status. effectivemay 1,2018 ignated honororfor indi- for military recipients ofacertain vides that itisunlawful to amotor park vehicle inplaces des- in thealabama disaster Program; recovery and(3)allows nor orlegislature hasdone so;(2)expands theuseoffunds to declareifthegover-division theauthority an emergency senator greg albritton 2018-94) alabama disaster recovery Program (act local government the life beneficiary. effective January 31, 2018 by the trustee for any lawful reason other than the death of count upon the termination of an individual trust agreement bursement of the amounts remaining in a life beneficiary’s ac- the death of the life beneficiary; and (3) provides for the dis- of the amounts remaining in a life beneficiary’s account upon rity administration; (2) provides further for the disbursement the regulations, rules and policies of the federal social secu- bama Family Trust Fund shall take all necessary steps to satisfy senator Cam Ward alabama family Trust fund (act 2018-36) and banking Trusts This act requiresThis act eachprofessional licensing bodyinthe authorizes small ataxcreditThis act of$2,000to certain This act (1)grantsThis act thechairorpresident ofa politicalsub- This act (1) specifies that the board of Trustees of the ala- www.alabar.org 285

T h e Alabama Lawyer 286 T h e Alabama Lawyer July 2018 consent ofthelandlord. effective June1,2018 more than two timesina12-month except period by written ifies that nobreach ofalease may becured by a tenant compliance withaleaseisseven businessdays; and(3)spec- the seven-daynotice for period anotice to atenant ofnon- defaultoftherentalnon-curable agreement; that (2)clarifies representative david sessions lease agreements (act 2018-473) from two years to one year. effective February 22, 2018 an action relating to the notice requirement may be brought failure to give notice; and (3) reduces the amount of time that firmative defense to any action relating to defective notice or stead exemption was claimed in the tax year constitutes an af- upon foreclosure of residential property upon which a home- she mailed the notice required to be given to the mortgagor provides that a mortgagee’s production of proof that he or exercised later than one year after the date of foreclosure; (2) representative rich Kerry ofredemption (actright 2018-126) lawProperty business inthemunicipality. effective march 28,2018 doing person isnotoperating abranch office orotherwise a persontraveling through onbusinessifthe amunicipality representative Paul W. lee municipal Businesslicenses (act 2018-411) February 6,2018 underthealabamaqualifying project Jobsact. effective isusedfor a orem iftheproperty taxes dueontheproperty grant oftherollback anabatementadval- ofalloraportion Orr senator arthur Tax abatement (act 2018-53) asters. effective February 14,2018 vide financialassistance to individuals dis- following certain the alabama disasterProgram recovery committee to pro- (Continued frompage285) This act (1) expands the acts oromissionsthat constitute (1)expands theacts This a act This act (1) provides that a right of redemption may not be providesThis act that a businesslicense isnotrequired for authorizes thegoverningThis act bodyofacounty to P u - P a r W e V i T a l s i g e l 2018-127) Transportation network Companies (act Transportation quent on or after January 1, 2020 effective January 1, 2020 for actions related to taxes delin- eight percent of the taxes that were due at the time of default. sold to the state for unpaid taxes shall pay an interest rate of senator Hank sanders 2018-494) for sold redemption ofland Taxes (act agency toagency develop a hardship driver’s license program for senator Clyde Chambliss Hardship driver’s license (act 2018-289) law enforcement officer. effective June1,2018 state averbal within 24hoursafter orwritten request from a or failto remove vessel thederelict from thewaters ofthis makes itunlawful for theowner vessel ofaderelict to refuse anunattendedofficers vesseland(4) to check; perform value; (3)authorizes lawsel that enforcement hasacertain ves- disposeofanabandonedorderelict stroy or otherwise order,authorizes alea,withoutacourt to sell, donate, de- procedure for thereturn, storage andsaleofthevessel; (2) ownerment officer andestablishesa andaprivate property conditionsters by ofthisstate alaw undercertain enforce- senator lee “Trip” Pittman 179) andabandoned derelict vessels (act 2018- sessment fee, iseffective august 1,2018 relating 4oftheact, ofalocalas- to thecollection section where originated. theride effective July1,2018,except that sion to disbursethefees orcounty to eachmunicipality nating inthestate andrequires commis- thePublic service percent ofthegross fare trip for eachprearranged origi- ride companies alocalassessment to fee collect equalto one companies to operate inthestate. alsorequiresThe act the and lyft network andauthorizes licensed transportation companiesments network for suchasuber transportation representative david faulkner This act provides that a party desiring to redeem property This act (1)requiresThis act thealabama state law enforcement (1)authorizes theremovalThis act ofavessel from thewa- establishescomprehensiveThis act licensing require- of the fine for violating this law. effective June 1, 2018 cess or disability parking is not required to display the amount placard; and (2) specifies that a sign that designates special abilityac- access license plate or placard or temporary disability holds a distinctive special long-term access or long-term dis- a disability if a passenger of the vehicle is disabled and lawfullypark a vehicle in a parking place designated for individuals with representative Ken Johnson accessible Parking (act 2018-458) cense. effective June1,2018 undertheinfluencedriving isnoteligible for ahardship li- that apersonwhohasbeenadjudicated orconvicted of and(2)specifies cannot obtainreasonable transportation; voked, to whodoesnotposearisk publicsafety andwho any personwhosedriver’s license hasbeensuspendedorre- I I I I I I I I I I I I I I I Contact: Hal K. Cain, Principal Engineer inspection work for Commercial buildings, CONSTRUCTION This act (1) authorizes an individual who is not disabled to & ENGINEERING Cain andAssociatesEngineers&Constructors, Inc. Forensic engineering and investigative [email protected] •www.hkcain.com Radio & Television Towers Engineering Standard ofCareissues Flooding &RetentionPonds Roofing problems Fire &ExplosionAssessments Air ConditioningSystems Plumbing &PipingProblems Electrical issues Toxic Sheetrock &Drywall Stucco &EIFS Sinkhole Evaluations Foundations, settlement Structural issues Construction defects Construction delay damages Residential, & Industrial facilities. 251.473.7781 • 251.689.8975 EXPERTS he or she reaches the age of majority. effective July 1, 2018 shall continue to receive workers’ compensation benefits lawuntil enforcement officer or firefighter killed in the line of duty marriage; and (2) provides that a surviving dependent child of a continue to receive workers’ compensation benefits after forcementre- officer or firefighter killed in the line of duty shall representative matt fridy The Philipdavis of2018(act act 2018-523) compensation Workers’ This act (1) provides that the surviving spouse of a law en- POB 716 Mount Vernon, IN 47620 www.SupportMasterSoftware.com CS-41, CS-42, CS-43, and CS-47 Alabama Support Master™ [email protected] Includes Interest and Arrearage Professional Software CHILD SUPPORT Prepares and prints forms Uses Current Guidelines CALCULATION SOFTWARE Corporation FREE DEMO For Alabama 812-781-1422 Since 1989 Calculator www.alabar.org s 287

T h e Alabama Lawyer 288 T h e Alabama Lawyer ingham’s Sixteenth Street Baptist Church. convictions for the 1963 bombing of Birm- Frank Cherry on appeal from his murder Starrett successfully prosecuted Bobby General. Among other cases for the office, appointment to the Office of the Attorney and criminal practice in Montgomery before Supreme Court, and was engaged in civil Justice Mark Kennedy on the Alabama staff attorney to Justice Kenneth Ingram and Alabama School of Law. Starrett served as courts. He is a graduate of the University of habeas corpus in all state and federal sents the state in criminal appeals and general for the State of Alabama and repre- Marc A. Starrett sumer and commercial litigation. sents consumers and businesses in con- actions and complex litigation. He repre- school, where he taught courses in class served as adjunct professor at the law trict of Alabama. From 2000-09, Green States District Court for the Northern Dis- clerk to the Hon. Robert B. Propst, United Alabama School of Law and a former law cum laude Green LLP in Tuscaloosa. He is a Wilson F. Green July 2018 graduate of the University of Wilson F. Green Marc A. Starrett is an assistant attorney is a partner in Fleenor & summa the forum-selection clausewithoutruling. ongoing litigation, while under advisement”“taking the pendingmotionregarding lines anddenying amotion to continue presiding date, thetrial over andotherwise clause. selection Trial exceeded court itsdiscretion dead- discovery insettingmerits and unadjudicated motionto dismissbasedonenforcement ofan outboundforum International Paper Co.Ex parte , no. 1170458(ala. april 27,2018) mandamus of valuation “in lieu of” applicable alabama law (which at the time was inal bylaw (from 1978) provided that shareholder agreement would determine method sional practice was entitled to “book value” or “fair value” for her shares of stock. The orig- Lynd v. Pediatrics, County P.C. Marshall , no. 1060683(ala. april 27,2018) Professional Corporations a newchiefnotfrom thelistandhadadministered theexamination. had, list,of acandidate andcity intheinterim, appointed from apreviously-certified fromcity administering newexamination for police chiefpositionandappointment however, to bar aninjunction hadbecome mootbecauseplaintiff was action seeking of orders. becausetheywere injunction, notcase-terminating orpreliminary Tro v.Irwin Personnel JeffersonCounty ,no. Board 1161145(ala. april 20,2018) Timeliness ofappeal; mootness court’s thetrial could impact issues. rulingsondiscovery had changedsubstantive positionsonsomediscovery-related issues, whichchanges denial ofarbitration, error inallowing was discovery notharmless, becauseparties tration. even hadeventually thoughthesupreme thecircuit affirmed court court’s to enter orders ofappealorder compelling same,denying pendency during arbi- Alfa Ins. Corp.Ex parte , no. 1170077(ala. april 6, 2018) arbitration; discovery supreme court From thealabama rECEnT CivildECisiOns deemed to have embraced the “book value” method in perpetuity. tended to reject the then-applicable valuation method, the shareholders could not be be the law as of the time of contract–but in this case, given that the shareholdersthe in- valuation determination would be made by applicable law, which would normally to “fair value” (now at § 10a-4-3.02). held: in the absence of any shareholderisted. and,agreement, 228, providing for “book value”). at the time of buy-out, however, no such agreement ex- The court issued a writ of mandamus, directing the trial court to rule on pending ofmandamus, issuedawrit court thetrial directing The court issue–whether, for purposes of a shareholder bylaw, a shareholder leaving a profes- relief onlyinjunctive didnotbecome court’s mootupontrial seeking action denial exceededcircuit court itsdiscretion inallowing to discovery merits proceed, and r e N r o c e T a l l e P P a e h T Ala. Code § 10-4-228 was superseded in 1984 by § 10-4-389, which changed Ala. Code § 10-4- lenged in this case (the sale of property) would in bring lenged inthis case (thesaleofproperty) lenge anexpenditure beingchal- of publicfunds, theaction road. although taxpayers have standinginalabama to chal- to to enjoinsaleofschool properties 1, seeking Town ofPike of2013 (“eaia”), act tervention codified at Ala.Code takeover pursuant to theeducational accountability andin- underitsstate schools perintendent ofmontgomery brought againststate superintendent,asinterim su- acting v.Richardson Relf, no.1170559 (ala. may 4,2018) Taxpayer standing the doorto suchevidence oncross. was puttingfinancialgain over patient care; plaintiff opened examinationdirect ofhospital administrator that hospital condition ofhospital, where plaintiff sought to adduce on admit evidence concerning size, andfinancial capability didnotabuseitsdiscretion inallowing defendantscourt to trial physicians action, andlocalhospitalinmedicalliability 2018) v.Ansley Group, Inmed Inc., no. 1160465(ala. may 4, Evidence over thuslackedjurisdiction thoseclaims.circuit court cdsandnecklace, whichwereof certain estate assets, and probate hadexclusive over court jurisdiction thedisposition the respective estates before theprobate however, court. putes could have potentially beenalsoraised as “claims” in ceeds asbetween h’s and W’s estates, even thoughthedis- Ala. Code under originally filedinthecircuitjudicate dJaction court Suggs v. Gray, no.1161118 (ala. may 4,2018) Estates ings”) would bedecidedby anarbitrator, notthecourt. contemplatedments between theparties proceed-“legal rules, (created issuesofarbitrability becausesomedocu- 1161099 (ala. may 4,2018) CorporationEickhoff v. Warrior MetCoal, LLC, no. arbitration ineffective. tion was improper underrule60(a),andthusorder was fying thePr’s discharge to leave to ac- bring openauthority (entered Prbrought after modi- thewrongful death action) Probate action. to awrongful-death bring ity court’s order discharged andreleased as Profestate nolongerhascapac- Watson v. UAHSF , no. 1170057(ala. april 27, 2018) standing; Wrongful death circuit court had no jurisdiction over hadnojurisdiction taxpayercircuit court action verdict for ajudgment affirming defendants onjury in to ad- among otherholdings, hadjurisdiction circuit court arbitrationbecause agreements invoked aaacommercial legally-appointed personalrepresentative whohasbeen § 6-6-225(3), seeking anequitabledivisionofpro- § 6-6-225(3),seeking § 16-6e- tendent had authority undertheeaiatotendent selltheproperties. hadauthority noted that, even ifthere were standing, thestate superin- thecourt ofthecourt), tice (andjoinedinby main amajority funds to the public.aspecialconcurrence in written by Jus- . ous defense, amongotherfactors, underKirtland or otherevidence donotsuffice to demonstrate a meritori- land vide arguments andevidence regarding allthree oftheKirt- WardEx parte , no. 1170142(ala. may 18,2018) default Judgments 14immunity.missal basedonsection to compel sucharbitration, butinstead hadmoved for dis- of claimsagainsttheboard where theboard had notmoved to takeanyincluding compelling arbitrationdiction action, matterwaiver juris- ofsubject anddeprived thecircuit court toof thealabama constitution; isnotsubject that immunity (ala. may 18,2018) ofTrustees Board Ex parte ofUniv., no. ofAla. 1170183 state immunity leged agency theory regarding imputed to ofdoctor acts theory leged agency whether defendant hospital was entitled to Jmlbased onal- may 18,2018) MedicalBaptist Center, Inc. v. Cantu, no. 1151117(ala. Evidence; Curative admissibility are retained. to maintain digital ballots imagesofballots, whentheactual whichwas concrete asto thefailurefact andparticularized ings: plaintiffs failedto allegeorprove in theysuffered injury relief. anddeclaratory injunctive seeking among otherhold- chines deprived themoffairandaccurate and elections, digital voting imagesofballotsusedinelectronic ma- serve Merrill,no.Ex parte 1170216(ala. may 18,2018) Proceduresstanding; Election own deliberate choices. designed to mollifyorrelieve themovant from themovant’s rule60isnot discovery; garding certain notconducting ally theresult ofthemovant’s own deliberate choices re- four-month timelimit, andthegrounds for relief were actu- grounds underrules60(b)(1)–(3), asto whichthere was a initialjudgment.after The were grounds asserted actually motion for relief from ajudgment, filedmoretwo than years Price, no.Ex parte 1161167(ala. may 18,2018) rule 60 movant seeking to setasidedefaultmustallegeandpro- movant seeking ua board 14 isabsolutely immunefrom suitundersection Pretermitting discussionofother issues(including Voters officials, claimingthat suedelection failure to pre- Trial exceeded court itsdiscretion ingranting rule60(b)(6) factors. by bare affidavit legalconclusions unsupported www.alabar.org 289

T h e Alabama Lawyer 290 T h e Alabama Lawyer July 2018 Code duced were “quality assurance” documents protected by Ala. made sufficient showing that otheritems ordered to bepro- ofpoliciesineffectatdiscovery later times. Further, hospital exceededpremised; thus, court trial itsdiscretion in ordering is oromissionuponwhichmedicalliability leged act oromissionandrelatedtime oftheallegedact to theal- policies andprocedures otherthanthoseineffectat the may 25,2018) , no. Association 1160731(ala. MobileInfirmary Ex parte discovery; liability medical ofthoseclaims.strate underpinnings thefactual on thesameclaim,butdidnot about otherinstances inwhichthehospitalhadbeensued legedly agent ofthehospital. That openedthedoorto ask sions where hospitalhadbeensuedwhere was al- doctor knowledge occa- ofprior testified that on direct shehadno tionate prejudicial. andunfairly The corporate representative however, admissionof “other acts” evidence was dispropor- ical negligence, theycanbecome admissible. thiscase, in defendant has “opened thedoor” ofmed- to otheracts prior thebarofAla.Code § 6-5-551,whereNotwithstanding the caseandorderedplaintiff inmedicalliability newtrial. reversed verdict forhospital), thecourt judgment onjury of theunlawful detainercase. tenant after tarily hadmoved out, before finaladjudication volun-under theact, becauselandlord dismissedhis action status. judicata res didnotbartenant’s subsequent action over thetenant counterclaim inorder to compulsory trigger andinpersonam risdiction, unpaid rent, becausethelatter invokes onlyquasi inrem terclaim to alandlord’s inunlawful detainerandfor action ant act, Ala.Code Morrow v. Pake, no. (ala. Civ. app. april 20,2018) landlord-Tenant civil appeals From of thecourt (Continued frompage289) Ala. Code Tenant’s claimfor damagesunderthelandlord and Ten- § 22-21-8. § 6-5-551prohibits ofany discovery hospital § 35-9a-101, was not a compulsory coun- § 35-9a-101, was notacompulsory jurisdiction would havejurisdiction to exist open thedoorto demon- r e N r o c e T a l l e P P a e h T ju- ministrative and judicialreview.” hearing days shallconstitute awaiver oftheperson’s rightto anad- 307. “Failure to request anadministrative within10 hearing ministrative (requested hearing within10days), §32-5a- (requested within90days), Ala.Code this case, acdl)hastwo options:anadministrative review notice ofsuspensionorintended suspensionofalicense (in ALEA v., no. Carter 2160820(ala. Civ. app. april 27,2018) Cdl licenses cuit court. is located inacounty outsidetheterritoriallimitsofcir- whenthelocalgovernmentvia petitionfor ofcertiorari writ a localgovernment’s denial ofapproval for aliquorlicense 2161014 (ala. Civ. app. april 20,2018) Writs ofCertiorari denied or infringed in proceedings resulting in suspension, . . .[w]here it is alleged that the rights of a child are improperly have original jurisdiction in proceedings concerning any child 2170521 (ala. Civ. app. may 4,2018) ofEducation Limestone Board County , no.Ex parte Proceedings disciplinary school to beenjoined,acts asrequired by Ala.R.Civ. P. erroneous for failure to withreasonable describe detailthe Inc., no. 2170070(ala. Civ. app. may 4, 2018) Association, Crosby Owners v. Property Landing Seminole injunctions sider it. to con- was withoutjurisdiction § 6-6-227–thus, court trial ered, theag becausetenant hadnotserved underAla.Code to constitutional exemption,subject could notbeconsid- nolonger in 2015andunderwhichwages are purportedly tion rendered unconstitutional Ala.Code 2161064 (ala. Civ. app. april 27,2018) Real Alabama Estate Group, LLCNorth v., no. Pineda Procedures Constitutionalgarnishment; Challenge under the rules of the road act, apersonwhoreceivesunder therulesofroad a over jurisdiction cannotexercisecircuit court supervisory EMBU, Inc. v. Tallapoosa Commission County , no. under circuit court’s injunction thestatus“to quo” preserve was argument x,sec. 204ofthealabama constitu- that art. Ala. Code §12-15-115(b), “[a] juvenile court also shall § 32-5a-306, oranad- § 6-10-6.1,enacted 65(d)(1). app. may 11,2018) Roebuck Sears, &Co., Inc.Ex parte , no. 2170632(ala. Civ. Workers’ Compensation “‘harsh sanction’” ofadefaultjudgment. constitute the “‘extreme circumstances’” that warrant the 2170091 (ala. Civ. app. may 11,2018) AutoC.L. Smith Sales,LLC v. Bulger, David Inc., no. sanctions itself were subject to the juvenile court’s jurisdiction. injunctive relief, but claims challenging the disciplinary action dent’s disciplinary matter. held: section 14 barred claims for student against board in juvenile court, arising from a stu- tended asserted section 14 immunity from claims brought by expulsion, or exclusion from a public school.” board con- Trial court’s compensability determination was reversed for Failure ofcounsel to attend apretrial conference didnot referral service asB lawyer Join the Super Markets, Inc. failure to conduct evidentiary hearing, under clerk acts as the ex officio clerk of the district court. ofthedistrict astheex officioclerk acts clerk becauseunderalabama law,wrong court, thecircuit court tice ofappealwould bedeemedproper even iffiledinthe no- was to filedinthecircuit circuit court court court, district Tolbert v. Erwin appellate Courts; Proceduredistrict Casey v. Bingham de novo Trials inCircuit Court the circuit court judgment.the circuit court judgment insuchinstances issupplanted court by district takenbyis limited becausethe tothecircuit actions court, reviewlowing before court, aproceeding indistrict thecca because recordbecause demonstrated that notice ofappealfrom appealfromin aproceeding denovo        OvErviEW Of THE PrOgram THE Of OvErviEW JOin? WHy participation Professional insurance liability required for between $1,000and $5,000 percentagemaximum fee of$250onfees annual fee of$100 referrals inall67counties improve your bottom line frombenefit efforts ourmarketing expand your client base Download the application the Download at or email [email protected]. , no. 2170025 (ala. Civ. app. may 18, 2018) , no. 2170045 (ala. Civ. app. may 11, 2018) , 963 so. 2d 654 (ala. civ. app. 2007). sign meup! www.alabar.org in circuit court fol-in circuit court Ex parte Publix www.alabar.org 291

T h e Alabama Lawyer 292 T h e Alabama Lawyer July 2018 requirement. mobiles,” andsotheyare exempt from Flsa’s overtime-pay are “salesm[e]n auto- engagedin.servicing .primarily 2, 2018) Motorcars,Encino Inc. v. Navarro, no. 16-1362(u.s. april flsa plaintiffs. to clearthe law isnecessary “clearly established” hurdle for munity. excessive in force incase situations, similarity factual least two commands to doso, was entitled to qualifiedim- standing nearby andhadrefused to drop at after theknife knife,large hadtakensteps kitchen toward anotherwoman Kisela v. Hughes, no. 17-467(u.s. april 2,2018) immunity Qualified court states supreme From theunited and (2) it does not violate seventh amendment jury trial rights. cause (1) it does not violate article iii and the judicial powers, LLC, no. 16-712(u.s. april 24,2018) LLC StatesOil Energy Services, v. Greene’s Energy Group, Patent aspect of each patent raised by the challenging party. Patent office to review the “patentability” of each challenged ing the federal circuit, held that 35 u.s.c § 318(a) requires the Patent office. in this closely-watched case, the court, revers- ously issued patent claims in an adversarial process before the 2018) SAS Institute, Inc. v. USPTO, no. no. 16-969(u.s. april 24, Patent (Continued frompage291) service advisorsat auto dealership’sservice department service whofiredofficer who was holdinga weapon onsubject, Inter partes Inter partes review before the usPTo is constitutional be- review allows private parties to challenge previ- r e N r o c e T a l l e P P a e h T from mootnessdetermination. not beconsidered insaving to thecase beclass-action-like case was notbrought andthuscasewould asaclassaction, ceedings ended. unlikeGerstein v. Pugh, 420u.s. 103,the ceedings becamemootwhentheplaintiffs’ pro- criminal pro- concerning useofrestraints court policy incertain court U.S. v., no. Sanchez-Gomez 17-312(u.s. may 14,2018) mootness underthealien courts Tort statute. Jesner v. PLC Arab Bank, , no. 16-499(u.s. april 24,2018) alien Tort statute providing for individualized proceedings must be enforced. instructed in the arbitration act that arbitration agreements tions board policy to the contrary, reasoning that congress hasare enforceable. The court nullified a 2012 National labor rela-otherwise might proceed as collective actions under the Flsa, cate all claims individually, including federal labor claims which 2018) Epic Systems Corp. v. Lewis, no. 16-285(u.s. may 21, arbitration; Class actions constitutionally thestates direct notto allow it. itcannot betting,prohibit shoulditsochoose–but sports bettingitself.sports congress hasthepower to regulate or importantly, PasPa didnotprohibit orspecifically proscribe ception ofNevada, whichwas grandfathered in)–though, betting(withtheex-hibited states from sports authorizing Professional Protection andamateur whichpro- act) sports principles, afederalment anti-commandeering law (the trine.” struck down, thiscase, on in thecourt Tenth amend- iscalledthe take actions–this “anti-commandeering doc- is thepower to issueorders states directing to takeornot absent from theenumeration powers ofdirect to congress congress undertheconstitution are to reserved thestates. Murphy v. NCAA, no. 16-746(u.s. may 14,2018) Betting; sports Tenth amendment case brought by concerning prisoners of constitutionality Foreign corporations may notbesuedinunited states arbitration agreements which require employees to adjudi- under the Tenth amendment, allpowers notconferred on thorized acts oflobbying.thorized acts againstcaptain,wheretion act captainwas engagedinau- bars clubmembers’ claimsunderthedrivers Protec- Privacy againstthebill’ssupport passage. held:qualifiedimmunity the clubmemberswould “shock thecommittee” andbolster senting Florida’s committee withphotos senate of Judiciary offirearms. captain determined that opencarry pre- permit abillpendingintheFlorida legislatureport whichwould tos ofmembers ofamotorcycle clubwhowere likelyto sup- tion on that basis for non-compliance with the ings were returned as undeliverable, and invalidated an elec- “inaccurate or incomplete” given that at least 18 out of 39 mail- that 46 percent of the residential addresses Tci provided were addresses for eligible voters. The Nlrb hearing officer found celsior union recognition. at the heart of the appeal is the Nlrb’s because Tci also does business in Florida, affirmed the Nlrb’s that it had appellate jurisdiction under 29 u.s.c. 160(e) and (f) discretion in certifying the union. The eleventh circuit, noting nize and bargain, but claimed that the Nlrb abused its fied by the Nlrb. Tci acknowledged that it refused to recog- from refusing to recognize a union for drivers previously certi- yard, appealed an Nlrb order directing that it cease and desist april 13,2018) by theunited states official, by notdiscovery therelator. clines to intervene, andistriggered by reasonable discovery provision canapplyincaseswhereery the united states de- 3731(b)(2). held(issueoffirstimpression): discov- three-year official charged withresponsibility over thematter, § three years reasonable after by discovery theunited states the violation .iscommitted, 31u.s.c. §3731(b)(1), or(2) within thelater ofeither(1)sixyears thedate after onwhich april 11,2018) Transit Inc. v. Connection, NLRB,no. 17-10294(11 labor USA v. Cochise Consultancy, Inc. , no. 16-12836(11 false Claims statute act; oflimitations Baas v. Fewless, no. 17-11225(11 dPPa appeals circuit of court From theeleventh sheriff’s captain obtained driver license and booking pho- sheriff’s captainobtaineddriver license andbooking Tci, which operates a public bus service on martha’s Vine- alleging violation anFca mustbebroughtcivil action rule; the issue turned on the provision of “residential” th Cir. april 2,2018) Excelsior th th rule. Cir. Cir. Ex- consent in order to become a party plaintiff.consent inorder to become aparty 216(b), anopt-in plaintiff isrequired onlyto fileawritten considered “parties” to thecase. held:yes; under29u.s.c. § forms before was conditionalgranted certification could be circuit): whetherthosewhofiled in every consents or “opt-in” 216(b) “opt in” requests. issue(aquestionoffirstimpression filedsection severalof alocalrule);nevertheless, parties tion (plaintiff waited until inviolation the closeofdiscovery because plaintiff didn’t timelymove for conditional certifica- didnotfollowcertify. court Hipp thiscase, in thedistrict veloped record, considers amotionto typically de- thecourt the pleadings),andtheninasecond stage, afully-de- after motion for (basedalmost solelyon conditional certification evaluates similarly-situatedfirst, the court status basedona process inthe step certification inFlsa actions; collective (11th cir. are advisedto follow courts 2001),district atwo- 18, 2018) suit cannotbe brought ifajudgment intheprisoner’s favor pending”–allegations of possible future injury are not enough. not sufficient to demonstrate injury which is “certainly im- cause the facts pleaded and the types of injury alleged were contracts, because it did not demonstrate injury in fact, be- licit governmental officials for investment advisory services governing political contributions of FiNra members who so- april 26,2018) Mickles v.Mickles Club, Inc. Country , no. 16-17484(11 flsa Dixon v., no. Hodges 16-15040(11 1983 section v. RepublicanGeorgia Party SEC,no. 16-16623(11 standing a disability.” special education becausehedidnotqualifyasa “child with held: childwas entitled to neitheranideaevaluation nor academic potential, butstrugglesto complete hiswork. special education to astudent withadhdwhodisplays vast to providewhether theideacompels apublicschooldistrict cation (“idea”), act 20u.s.c. §1400etseq. held:yes. issue2: tively withdisabilitiesedu- exhausted undertheindividuals (“ada”),act 42u.s.c. §12131etseq., mustbeadministra- 29 u.s.c. §794,and Title withdisabilities iioftheamericans (“§504”), crimination under§504oftherehabilitationact Cir. april 17,2018) Durbrow v. Dist., no. Cobb School County 17-11400(11 law disability Hipp v. Liberty Nat’l LifeIns. Co.under Hippv.Nat’l , 252F.3d Liberty 1208,1216 under Heckv. Humphrey , 512u.s. 1983 477(1994),section state party lacked standing to challenge FiNra rule 2030, issue 1:whetherappellants’ dis- claimsofdisability-based th Cir. april 23,2018) th Cir. april www.alabar.org th Cir. th 293

T h e Alabama Lawyer 294 T h e Alabama Lawyer July 2018 (Continued frompage293) ception underFsiaapplied. munities act, 28u.s.c. ex- §1605(a)(2);commercial activity simon bolivarwere notbarred by theForeign sovereign im- belonging to plaintiff relating totorical general artifacts claim arising from warrantless search of home for additional theclasswas certified. timeafter short tion asto theabsent classmembers’ claims withinavery to absent classmembers, anditmoved to compel arbitra- therightto compel arbitration as allrightstoreserved assert claims ofunnamedclassmembers. itsinitialanswer, in WF may 10,2018) sheriff, given damages. lackofactual tive and$5,000against damagesof$100againstdeputy simplyexercisedwhere jury itsdiscretion inassessingpuni- drivers’ data; and(c)declinedto grant to newtrial plaintiff, stated inaccessing by thedeputy approximately 42,000 given ofreasons aclassaction, thevariety declined to certify accessed Truesdell’s sheriff) Thomas (deputy information; (b) it (a)assessedliquidated damagesfor bothoccasions when didnotabuseitsdiscretion when court agencies; (2)district Montanez v.Montanez Carvajel, no. 16-17639(11 immunity Qualified 16-16816 (11 v.Devengoechea Bolivarian Republic of Venezuela, no. fsia; Commercial Exception activity Gutierrez v. Wells Fargo NA,no. Bank, 16-16820(11 arbitration; Class actions Truesdell v. Thomas,no. 16-16388(11 dPPa time suffering from excessive force. having onaguard committed whileat thesame abattery punishment, becausehecould properly beadjudicated as successful, would notnecessarily implytheinvalidity ofhis was 1983suit, punishedandlostgaintime, if buthissection loss of “gain time” for goodbehavior. thiscase, in plaintiff would implytheinvalidity of aprisoner’s punishment for Plaintiff’s claimsagainst Venezuela for conversion ofhis- officers were entitled to qualified immunity in section 1983 WF didnotwaive itsrightto compel arbitration asto (1) dPPa punitive permits damagesagainstmunicipal th Cir. may 10,2018) th th Cir. may 2,2018) Cir. may 9,2018) r e N r o c e T a l l e P P a e h T th Cir. less one of “clearly established” rights. circumstance.” There was no constitutional violation, much tims, because the suspected burglary presented an “exigent briefly search for additional perpetrators and potential vic- warrant, and without further suspicion of wrongdoing, to officers could thereafter lawfully enter the home without a glary and detained two suspects just outside the house. rupted what they reasonably believed to be a residential bur- suspects after breaking up burglary. Police officers inter- speculation. value, that ruleyieldswhenthetestimony isbasedsolelyon is generally competent to testify asto herown opinionon although anowner testimony concerning value ofproperty; plaintiff’s ownalso didnotabuseitsdiscretion instriking background to risk hermedicalconditions. court The district medical conditions; and(3)failure to account for plaintiff’s to otherpotential ruleoutmeaningfully causesofplaintiff’s response” to withrespect theplaintiff’s exposure; (2)failure upon were (1) thedoctor’s failure to assessproperly “dose testimony, butthethree focused problems whichthecourt tion onDaubert onmedicalcausa- plaintiff’s expert her person)by striking (concerning anddamageto damageto plaintiff’s property may 14,2018) inverse Condemnation Williams v. Fertilizer, Mosaic Inc. , no. 17-10894(11 as to value of Property Daubert circuit affirmed. plaints aboutpublicaccess, causingataking. The eleventh access to theprivate property, andtheignoring ofh’s com- moval ofh’s beachchairs, whichhadbeenplaced to block by by the general thepolice’s public, supported property re- hadencouragedcluded that city andinvited access onto h’s hadinvitedtended thecity for publicuse. con- at trial, jury regardingagainst city beachfront parcel whichtheycon- Cir. may 16,2018) Chmielewski v. ofSt. Pete City , no. Beach 16-16402(11 district court didnotabuseitsdiscretion intoxic case court tort district homeowners (h)brought inverse condemnation action on medical Causation; lay Opinions grounds. The onthedetailsof caseturns th Cir. th plained decision was basedonthosereasons. related decisionand presume state that theunex- court through” that decision to the reasons provided for thelast fective deathPenalty act, thefederal should court “look decision was unreasonable under theantiterrorism and ef- Wilson v., 138s.Ct. Sellers 1188(2018) CorpusHabeas tening postsinevidence. use communications obtainedfrom lis- thoseextraterritorial butwhere thegovernmentsuing jurisdiction, agreed notto the statute, wiretapping from listening postsoutsidetheis- were notfacially invalid where theyauthorized, to contrary v.Dahda U.S.,no. 17-43(u.s. may 14,2018) Wiretapping chance to avoid thedeath penalty. based viewisthat confessing guiltoffers defendant thebest sel refrain from admittingguilt, even ifcounsel’s experience- ofhisdefensechoose theobjective andto insistthat coun- McCoy v. Louisiana, no. 16-8255(u.s. may 14,2018) amendment sixth inthecar’sduce ofprivacy hisexpectation contents. andtherentalfriend company by thecardidnotre- driving the defendant hadviolated theagreement between his was notlisted asadriver onthecar’s rental agreement. That asto therentalvacy carhewas driving, regardless that he dispositive. thiscase, in defendant ofpri- hadanexpectation circumstances iswhetherpossessionlawful, butitisnot vacy. central inthese to reasonable ofprivacy expectations the rental agreement hasareasonable ofpri- expectation whether adriver orpossessorofarental carwhoisnoton vacy. The ruleisnotabsolute, oneway ortheother, asto reasonable ofpri- defeat expectation hisorherotherwise of arental carisnotlisted ontherental agreement willnot Byrd v. U.S.,no. 16-1371(u.s. may 14,2018) Criminal Procedure court states supreme From theunited rECEnT CriminaldECisiOns When determining whetherastate court’s unexplained orders wiretapping authorizing under18u.s.c. §2518(3) amendment guaranteessixth adefendant therightto The that mere adriver inlawful fact possessionorcontrol ineffective assistance; Batson ofpossibledefenses. orhadknowledge trials rules andwhetherhehadbeeninvolved inprevious criminal that hewould berequiredknew to comply withprocedural Trial erred by notdetermining whetherdefendant court could withdraw hiswaiver “at any stageoftheproceedings.” him ofthedisadvantages ofwaiving that rightandthat he waivedclearly righttofailed counsel,inform court trial pistol. reversed,The court findingthat though defendant himself atandwas trial convicted ofunlawful possessionof v.Battles State , Cr-17-044(ala. Crim. app. apr. 27,2018) toright Counsel appealscriminal From of thecourt permitting the jury to find thedefendant ofmurder guilty if thejury permitting court’s oral charge lessenedthestate’s burden ofproof by dant’s conviction from arising thechild’s death, andthetrial son. was erroneously madeawareThe jury oftheco-defen- arising from the fatal beating of his co-defendant’s five-year-old 2018) Towles v. State, Cr-15-0699(ala. Crim. app. apr. 27, Capital murder; intent juana odoremanating from it. able causeto search thecar’s henoticed trunkafter mari- matched thevehicle’s registration. The officer alsohadprob- the ViN plate thestop during to determine whetherit number didnotmatch thevehicle. hecould thenexamine from asearch inacomputer database, that itslicense plate forcement officer could properly stop avehicle finding, after bers or ViN (vehicle identification number)plates. law en- 2018) State v., Cr-16-1347(ala. Abrams Crim. app. apr. 27, search andseizure not recommend adeath sentence. tion becausetheybelieved that thejury, asselected, would refrained aBatson fromhe andhisco-counsel making torneys, whohad “clearly andunequivocally” testified that fendant mischaracterized thetestimony at- ofonehistrial to thestate’sobjecting underBatson.de- strikes peremptory 2018) Woodward v. State, Cr-15-0748(ala. Crim. app. apr. 27, after waiving appointed counsel, defendant represented The court reversed the defendant’s capital murder conviction inlicense plateThere num- ofprivacy isnoexpectation Trial attorneys didnotrender ineffective assistance by not www.alabar.org mo- 295

T h e Alabama Lawyer 296 T h e Alabama Lawyer July 2018 affidavit to law enforcement containing untrue allegations ing, asamatter offirstimpression, that hersubmissionof an v.Habel State, Cr-16-1017(ala. Crim. app. mar. 16,2018) Perjury whether theyare at thesameordifferent schools. tween schoolemployees andminorstudents regardless enrolled at otherschools, for be- itprohibits sexual activity of thestatute to ateacher’s withstudents whowere conduct due process orequalprotection violation intheapplication school employees andminorstudents. foundThe no court § 13a-6-81’s prohibition ofsexual relationships between thedefendant’sjected constitutional challengeto Ala.Code oftheteacher-studenttegrity relationship[,]” re- thecourt Pruitt v. State, Cr-16-0956(ala. Crim. app. apr. 27,2018) Teacher/student great to bodilyharm thevictim. it found that theevidence showed that heintended to cause (Continued frompage295) The court upheldthedefendant’sThe court conviction, find- perjury acknowledging ofmaintaining thein- importance “the r e N r o c e T a l l e P P a e h T Design andMarketingServices 300 North Dean Road, Suite 5-193 • Auburn, AL 36830 AL Auburn, • 5-193 Suite Road, Dean North 300 334.799.7843 • • 334.799.7843 Code statement an during “official proceeding” for ofAla. purposes of sexual abuseagainstherhusbandconstituted afalse rest adjudication. s rest adjudication. as charged inthiscase, requiring reversal ofhisresisting ar- rest andsecond-degree assaultconstituted doublejeopardy T.D.F. v. State, Cr-16-1202(ala. Crim. app. mar. 16,2018) double Jeopardy regarding theappropriate punishment. thedefendantbers characterizing andopining andhiscrime permitted to consider testimony from victim’s familymem- wasnew sentencingerroneously hearing, becausethejury tion, butreversed hisdeath sentence andremanded for a 2018) Gaston v. State, Cr-15-0317(ala. Crim. app. mar. 16, Capital murder Juvenile’s adjudication for bothresisting delinquency ar- thedefendant’s affirmed The court capitalmurder convic- § 13-10-101. Sales Support Material Product Packaging Print Ads Product Catalogs Brochures Websites Logos m o c . k n i l p a t . w w w Professional Portfolios P.O.P. Displays Billboards Media Kits Publication Design Trade Show Exhibits QualifiEd, fOrmEr Or rETirEd alaBama JudgEs rEgisTErEd to hear any case assigned a cV or dr case number E l B a l a E P P a • y s a E • T s a f Hon. rosemary d.Hon. rosemary Chambers Hire a [email protected] Hon. Braxton l.Kittrell, Jr. [email protected] [email protected] Hon. suzannes.Childers [email protected] bkittrell@kittrellandmiddle [email protected] [email protected] Hon. arthur J. Hanes,Hon. arthur Jr. For more information, search “Find aPrivate Judge” at [email protected] by the alabama administrative office of courts Hon. sharon H.Hester Hon. robert E. austinHon. robert [email protected] Hon. JohnB. Bush WiTH THE alaBama CEnTEr fOr disPuTE rEsOluTiOn www.alabamaADR.org Hon. J. BrianHuff Hon. r.a. “sonny” (256) 332-7440 (205) 933-9033 (251) 333-0101 (205) 274-8255 (205) 930-9800 (205) 250-6631 (205) 908-9018 (334) 567-2545 (251) 432-0102 ferguson, Jr. brooks.com al acts No.al acts 2012-266and 2018-384 PrivaTE JudgE [email protected] [email protected] [email protected] [email protected] [email protected] Hon. James H.reid, Jr. Hon. James H.sandlin Hon. Eugene W. reese [email protected] Hon. Edward B. vines Hon. d. richard lane Hon. fred r.steagall [email protected] Hon. Juliea.Palmer Hon. J. scott vowell [email protected] [email protected] Hon. ronstorey (334) 799-7631 (334) 790-0061 (256) 319-2798 (251) 928-8335 (205) 616-2275 (205) 214-7320 (205) 354-7179 (334) 699-2323 (334) 740-5824 www.alabar.org 297

T h e Alabama Lawyer 298 T h e Alabama Lawyer July 2018 Please email announcements to [email protected]. s m r i F g N o m a , s r e b m e m T u o b a associates in the gulf coast office. ii alabama office, and bert Howard PC the guntersville office. Josh Holcomb an associate. announces that Carli Bryant in the mobile office. Christine segarra office.in thebirmingham ashley Hugunine among Firms and Holtsford gilliland Higgins Hitson & foxtrot family law Cory Watson attorneys Burr & forman llP Baker donelson PSYCHO-LEGAL ASSESSMENTS OFVARIOUS COMPETENCIES MONTGOMERY PSYCHIATRY & ASSOCIATES & PSYCHIATRY MONTGOMERY joined as an associate in the central matthew a. laymon (334) 207•www.mpa1040.com 288-9009ext We Knowthe BRAINand FORENSIC PSYCHIATRIC CONSULTATION announces that We Knowthe LAW MPA LEGAL William C. Freeman, J.D.,M.D. C.Freeman, William joined asanassociate in joined as an associate is now ashareholder robert C. alexander, announces that announces that announces that of birmingham joined as Jason r. Her- joined as strother, Jr. Capperthat seth associate. announces that Paul rand office.mobile that freddie d. stokes center.hearing law judgeat thesaint louis National was appointed afederal administrative announces that daniels.Campbell dent andgeneral counsel. B.Ellenann yelverton office.birmingham maynard Cooper &gale Zarzaur mujumdar&debrosse Zarzaur starnes davis florie llP administration security The social raycom inc. media joined asassociates inthe and steven W. announces that is now vice presi- joined the joined asan announces announces s

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