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Remember, for total service, total reliability, whenever you need to qualify a corporate client, make your first step a C 11 Show me how helpful C T's qualification/ call to your local C T representative. For complete details representation services can be on my next assign- on our qualification/ representation services, just send us ment. Send me a free copy of your booklets this coupon. When You Qualify and Professional C T Statutory Representation today. CD NAME C T CORPORAION SYSTEM FIRM 1600 Broadway, Denver, CO 80202 · Tel: (303) 839.1705 Serving the legal profession since 1892 ADDRESS Atlanta - Boston. Chicago. CincinnatI - Cleveland. Dallas. Denver. Detroit Houston - Irvine, Ca. . Los Angeles . Minneapolis . New York . Philadelphia . Phoenix Pittsburgh . Plantation, Fla. . San Francisco . Seattle . St. Louis . Washington. Wilmington ------~CITY, STATE, ZIP SBJ Vol. I, No.3 2 . Published by Vol. 1, NO.3 November 1988 The State Bar 645 South 200 East Salt Lae City. Utah 84111 Telephone (80 i) 531-9077 Letters 4 President Kent M. Kasting President's Message 5 President.Elect Hans Q. Chamberlain Commissioner's Report 6

Executive Director Stephen F. Hutchinson The Case Against Plea-Bargaining 8 By Judge Robert F. Owens Board of Bar Commissioners H. James Clegg James Z. Davis Punitive Damages in Utah 11 Randy L. Dryer By David R. Black Hon. Pamela T. Greenwood Stewar M. Hanson Jr. James R. Holbrook Remarks of Robert MacCrate Jackson B. Howard 15 Hon. Gordon J. Low Anne M. Stirba State Bar News 18 Exoffcio Members Bruce C. Hafen Norman S. Johnson Case Summaries 23 Reed L. Marineau By Willam D. Holyoak and , Edward D. Spurgeon Clark R. Nielsen Young Lawyers Section Views from the Bench 26 President By Judge Gregory K. Onne Jerr D. Fenn Jr.

Bar Journal Committee The Barrister 28 and Editorial Board Editor News of Utah Law Schools 32 Calvin E. Thorp

Assiate Editors CLE Calendar 33 Randall L. Romrell David B. Erickson Classified Ads 34 Letters Editor Nann Novinski-Durando

Articles Editors Leland S. McCullough Jr. . Glen W. Roberts Cover: "Autumn Cottonwoods," Joe's Valley. in Manti-LaSal National Forest, Utah, by Views from the Bench Judge Michael L. Hutchings Chris P. Wangsgard, a partner in the firm of VanCott, Bagley, Cornwall & McCarhy. Legislative Report Editor Douglas A. Taggar . Case Summaries Editors Willam D. Holyoak The Utah Bar Journal is published monthly, except July and August, by the Utah State Bar. One copy of Clark R. Nielsen each issue is furnished to members as part of their State Bar dues. Subscription price to others, $20; Single copies, $2.50; second-class postage paid at , Utah. For information on advertising rates and Advertising space reservation, call or write Utah State Bar offces. Lar A. Steele Statements or opinions expressed by contributors are not necessarly those of the Utah State Bar, and M. Karlynn Hinman publication of advertisements is not to be considered an endorsement of the product or service advertised. Kevin P. McBride Margaret R. Nelson Hon. Homer F. Wilkinson Copyright (Ç 1988 by the Utah State Bar. All rights reserved. LErníTERS ~

President, Executive Director and Editor: Utah Bar Journal Editor I am disturbed that the Utah Board of Bar Commissioners Re: New Law and Justice Center & Utah Bar Journal. voted to join as amicus on behalf of the Wisconsin Bar As- sociation in the appeal of Levine v. Wisconsin State Bar, in Gentlemen: which the federal trial court found the concept of an integrated bar unconstitutional as a violation of an attorney's first amend- With completion of the new Law and Justice Center and ment right not to associate. publication of the new Utah Bar Journal, our bar has finally I, for one, am uncomfortable with mandatory membership in . II become one of the progressive bar associations in this country. an integrated bar, especially where the Bar takes political and I commend you and everyone involved for two jobs very well ideological positions contrary to the feelings of the majority of done. its involuntary members. I value my membership in the Bar, but I wish it were voluntary. Very truly yours, Sincerely, George M. McCune Bradley H. Parker Attorney at Law

Re: Utah Bar Journal

Editor:

I received my copy of the first, all-new Utah Bar Journal this week. I was very pleased with the quality of the publication, Editor: both in terms of content and appearance. I thought the balance of Bar news, case summaries, and topical articles was about right. What's the problem with the disciplinary system of the Utah The articles were timely and well-written. State Bar? I know how much work goes into a publication of that caliber. Why have there been four (4) different Bar Counsels to Congratulations on an excellent first issue. handle discipline during 1986-1988? Such a turnover seems to indicate a serious malfunction. Very truly yours, Why did Jo Carol Nesset-Sale recently resign? Utah's attorneys are entitled to a vigorous and professional Judge Gregory K. Orme disciplinary system. The public wil allow attorneys to be Utah Court of Appeals self-regulating only if the Utah State Bar does a strong credible job. The membership is entitled to a complete and detailed report as to the status of Bar Counsel and the status of the disciplinary system. I'm tired of being in the dark. Continued publication of the Utah Bar Journal at the present quality, frequency and size (number of sections, deparments C. Dane Nolan and articles) wil depend upon maintaining the current level of Attorney at Law revenues from advertising. Continuing this level logically wil depend upon the resulting patronage given to the advertisers. Accordingly, the Bar Journal Committee and Editorial Board strongly solicit and encourage your support of the advertisers and their products and services, especially at this nascent stage of the Bar Journal. Any commendation or expression of ap- probation you could convey to advertisers would ultimately benefit the maintenance of a quality publication.

Editor

Vol. i, No.3 4 ~ first to make the request of you. As I said, this' $.25 a Day-Can project is the first of its kind in the nation. It's designed to explore and implement forms of You Afford It? Alternative Dispute Resolution (ADR) and it is directly aligned with and related to our ethical commitment to make justice available to all This havemessage not contributed is directed to only the Utahto those Law who and citizens and assist in striving to achieve a more Justice Center. If you have contributed, feel free fair, orderly, and just society. Please demon- to tum the page and read something else. If you strate your commitment to these goals by also filing out a pledge card. haven't given, the following facts and figures may just convince you that a contribution would To those disbelievers who fall into the third category, I can only tell you that your doubts be in order. So, please, read on! Five years ago, under the leadership of Ste- have been proven wrong. We now have a Law phen Anderson, your Bar Commission decided and Justice Center that is in full operation. It's to undertake a rather large and novel project-a being used by lawyers and judges and members project designed to serve Utah lawyers and of the public on a daily basis. Its Citizens' Policy judges and Utah citizens; a project which was the and Programs Advisory Board is hard at work first of its kind in the nation; a project aimed at making plans and recommendations for the letting the public know that Utah lawyers and center's future programs and projects. National judges are committed to improving our system of Kent Kasting authorities on Alternative Dispute Resolution justice and providing new avenues for citizens to (ADR) are astounded that a Bar the size of ours more speedily and economically resolve dis- Consider the following. $.25 is: could successfully complete a project of such putes. A great number of Utah lawyers have magnitude. If you don't believe me, take a Vi the cost of a newspaper (.50) minute and go to the center and ask for a tour. l m given their own hard-eared dollars to support Vi the cost of a soft drink (.50) that project and construct a facilty which would ili the cost of a cup of coffee (.75) certain if you do, you'll like what you see and house programs to simplify the resolution of % the cost of a doughnut (.30) you'll want to be able to say that you are a part of disputes between Utah citizens. Via the cost of a hamburger and fries (2.50) and involved in the Utah Law and Justice Center. I/i the cost of a pack of gum (.50) On the chance that some of our members who Five years ago, that project was a dream. " Today, it is a reality. It exists and is operating Vi the cost of a bus ride (.50) have given dollars to the center did not take 30 minutes at a Salt Lake City parking because more than i ,200 of our members advantage of my suggestion at the beginning of meter (.25) reached into their pockets and gave dollars to get this message that they need not read on, let me the project under way and completed. Take a I think if we're honest with ourselves, $.25 a simply say thanks from me, from Bar Staff and minute and consider who has given: day for three years doesn't amount to very much from members of the Commission and the Law at all, and that doesn't even take into account the and Justice Center Committee for your support Total cost of Utah Law and willngness to see the project through to and Justice Center $3,200,000 tax benefits you get from any contribution made. As I said earlier, this message is directed only completion. Private Contributions 750,000+ Finally, to all Utah lawyers and judges, I The Eccles Foundation to those Utah lawyers and judges who haven't made a pledge to the Utah Law and Justice invite you to use the center. It was conceived and The Michaels Foundation designed to meet your needs, as well as to serve Mr. O.C. Tanner Center. My request is that you consider giving at The Dumpke Foundation least $.25 a day for the next three years-that's the citizens of Utah, and it is there for you to use. Thanks for your continued interest and sup- Contributions from Utah only $91.25 per year, or a little over $7.00 per port. Utah has a Bar Association of which each of Lawyers and Judges 1,150,000 month. its members can indeed be proud. Sale Proceeds of 425 E. LOO S. The readers of this message, I believe, wil fall Bar Building 237,000 into three categories: UTAH LAW AND JUSTICE CENTER PLEDGE CARD Bar Reserves 250,000 + 1. Those who have, over the past five years, NAME Loan for Balance 800,000 always had the good intention of making a FIRM The $800,000 would not have to be borrowed contribution and have just not gotten around ADDRESS had the lawyers who have not yet given each to it. CITY STATE pledged the token sum of $.25 a day for the next 2. Those lawyers who have been admitted to the ZIP PHONE three years. Think of it-a $3.2 milion project Bar during the last five years, and simply have In consideration of similar pledges by other members of the totally paid for with only that little additional not been asked to give. Bar. I pledge the sum uf $ commitment from the members of our As- 3. Those who have questioned the merits of the Which i will pay as follows: (i) Full payment enclosed in the project, thinking it either wouldn't get off the amount of $ sociation who have yet to give. (2) In annual installments due on Twenty-five cents a day from our remaining ground or, if it did, it would serve no useful or before October i: lawyers would not only payoff the loan, but purpose. 1989$ 1990 $ would provide extra monies to further fund pro- To those in the first category, let me just 1991 $ 1992 $ o Check enclosed grams which call the center home. It also would remind you that your financial support is needed . have the effect of eliminating payments to ser- and you would do a service to the public, the o Credit Card Amoont $ vice the debt, thereby providing additional funds courts and the Bar if you were to take a moment MasterCard # which could be used to expand and improve and fil out a pledge and send it to the center at Expires services and programs which benefit Utah law- 645 S. 200 E., Salt Lake City, UT 841 i 1-3834. VISA # yers and judges, as well as other Utah citizens. Remember, $.25 a day is not very much any way Expires As I was writing this message, I started to you "cut it." "SIGNATURE think what $.25 a day may mean to each of us in To those lawyers in practice under five years Please eumpleie. clip and mailihi, card wiih yuur pledge iu ihe Ulah terms of financial saciifice. who haven't been asked to give, let me beLaw and the Justice Telephone Center, 645 S. 200 E.. Salt (ROI) Lake City. UT 531.90n 841 i i. U ------~ i I

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Alternative Dispute Resolution (ADR) , Ii " tively new to most Utah lawyers, that com- This Committee also addressed a variety With theand dedication Justice Center of onthe September Utah Law 7, mission addressed existing court programs, of options for use by judges, lawyers and 1988, a new era was ushered into Utah and government agency programs, publicly litigants in resolving disputes that fre- one which wil undoubtedly affect lawyers funded programs and private programs and quently result in civil litigation. Among for many years to come. In 1983, the then identified the following: ' those discussed were pre-trial and settle- president of the Utah State Bar, Stephen H. ment conferences that are familiar to most Anderson, had the foresight to not only find A. Court Annexed ADR Programs: Utah lawyers. It also identified a somewhat a way to fund a new home for the Utah State 1. Domestic Relations Commissioners. new concept titled "Summary Jury Trial and Bar, but to also construct a facility for Al- 2. Juvenile Court Commissioners. Mini Trial Procedure" which utilizes ADR ternative Dispute Resolution (ADR). With 3. Bail Commissioners. processes and wil undoubtedly be imple- the building now operational, it has sur- 4. Traffic Referees. mented more in the near future. The Com- prised me, as well as many other fellow 5. Mental Health Commissioners. mittee also addressed domestic relations lawyers, to discover the many opportunities 6. Small Claims Court. mediation, neighborhood dispute resolution available to resolve disputes short of liti- 7. Divorce Mediation. programs, and Juvenile Court diversion gation. It now appears that Utah wil serve 8. Diversion of Juvenile Court Status programs. as a model state for the implementation of Offenders. After having identified the existing pro- ADR, and therefore, a brief background as grams available, or lack thereof, there arose to what has occurred to date seems appro- B. State Administered ADR Programs: a need to identify how to best implement priate. 1. Department of Business Regulations existing programs as well as anticipated In December 1986, the Utah Judicial Pre-Litigation Medical Malpractice programs and to how best utilize the UCLl Council appointed a task force on Alterna- PaneL. building and the staff. In July 1988, Su- tive Dispute Resolution to assess the desir- 2. Department of Business Regulations preme Court Justice Michael D. Zimmer- ability of establishing ADR programs in Consumer Protection Agency. man and Professor of Utah. That committee submitted a draft 3. Industrial Commission of Utah. Law, John K. Morris, appeared before the report and recommendation in March 1988 Utah Bar Commission to submit a report of and concluded that the development and C. Other Publicly Funded ADR Programs: the Utah Law and Justice Center Program implementation of ADR techniques should 1. Utah Legal Services, Inc. Development Committee titled "The Mis- not be justified as an alternative to an ailing 2. Community Counseling Center. sion of the Utah Law and Justice Center." system of justice but rather that ADR rem- That Committee emphasises that the Utah edies must include techniques which would D. Private ADR Programs: Law and Justice Center is an independent strengthen the system and concluded that 1. American Arbitration Association. non-profit corporation, with the building ADR could be an important tool in our 2. Better Business Bureau. itself standing as a commitment by the law- system of justice. Because ADR is rela- 3. Western Arbitration Association. yers of Utah to public service. This Com- 6 Vol. i, NO.3 ~ii mittee studied various programs that 9. That because there already exists differ- utilized the ADR approach and made certain i ent types of community based dispute recommendations in which the Bar and the resolution process (with their adequacy ê8 i UCLJ can best assist the general public, , and success diffcult to measure), the recognizing the need to benefit the entire Planning Committee further study the community. That report made the following desirability of establishing a com- A Lawyers recommendations: munity resolution center at the UCLJ. 10. That in the event domestic relations Professional 1. That a full-time salaried staff be imple- mediation is implemented by the legis- Liability program mented, separate and distinct from the lature, the UCLJ also be involved in staff of the Utah State Bar. training those mediators and providing . . . sponsored by 2. That a substantial community in- the physical facilities to accomplish the volvement including many non-lawyers same. the Utah State Bar was necessar. To accomplish that end, 11. The Committee also addresses the need a permanent planning committee was to provide a listing or referral service for recommended with significant com- ADR providers, that steps be taken to munity representation and appropriate make sure that ADR becomes a state- ethnic diversity. wide concept and is implemented in that 3. That a screening and referral system be manner as compared to becoming a adopted. This recommendation has now Wasatch Front service, and that funding been implemented in the form of a of the recommended projects be ad- ß..( Vj r- "Tuesday Night Bar" which allows the dressed immediately. It is hoped that public to consult with volunteer mem- government grants might be available Bayly, Martn & Fa~ Continental, Inc. bers of the Bar to determine if they in initially to offset the major costs in- fact have a legal problem and, if they volved. do, to direct them to the appropriate 2180 South 1300 East, Suite 500 place to seek assistance. In an attempt to address both of these very Salt Lake City, Utah 84106/(801) 488-2550 4. That because lawyers in paricular and thorough reports, the UCLJ Board of Trust- the public in general have very little ees, which is comprised of the Executive training in mediation techniques (as Committee of the Utah State Bar, had in compared to binding arbitration), me- place prior to the dedication of the UCLJ the diation training be implemented. To recommended Policies and Programs Ad- Attention initially address that recommendation, visory Committee. This 13-member com- Former a one-day seminar wil be held on No- mittee is comprised of the following vember 3, 1988, at the UCLJ on ADR members, with Gerald R. Wiliams, Pro- Utah and it appears that at least 250 persons fessor of Law from BYU, serving as its wil be in attendance. initial Chair: Irene Fisher, Jinna H. Kelson, Judges: 5. That in addition to mediation training, Arbitration Forums, Inc., a nonprofit Rev. Canon Bradley S. Wirth, Jodie L. organization with over 40 years ex- the UCLJ also implement negotiation Bennion, Professor John Morrs, Andrew perience in resolving insurance re- training to be taught as a basic principal, L. Gallegos, Robert E. Gallegos, Tyrone lated disputes, is looking for for- in a similar fashion to that which has Medley, Attorney Robert Merril, Sen. mer judges from the Uta Supreme been taught in the law school currcula Frances Farley, Pastor France Davis and Court or District Courts to serve as arbitrators/mediators for our Ac- for the past 10 years. Rep. Haze Hunter. cident Arbitration Forum program. 6. That arbitration also be taught at the The ultimate goal is to deliver ADR tech- We are looking for former judges UCLJ. Many lawyers have used bind- nology to those in need and to supplement because of their expertise and ing arbitration for years, and this rec- the judicial system in resolving disputes. demonstrated objectivity. ommendation recognizes the need to As an arbitrator/mediator, you'll Ultimately, resources and programs wil be be asked to resolve any insurance have quality personnel involved in that available to both lawyers and lay personnel related dispute either through bind- process. for Alternative Dispute Resolution. The ing arbitration or advisory media- 7. That the UCLJ coordinate with estab- Policy and Programs Committee is therefore tion. lished programs such as the American presently seeking community and lawyer For more information call or write: Arbitration Association, the Better input as to how best to address the programs Business Bureau and the Western Arbi- (800) 426-8889 and concerns outlined in this report, and Arbitration Forums, Inc. tration Association. therefore your comment on any matter in- 200 White Plains Road 8. That the physical facilities of the UCLJ volving ADR is earnestly solicited. Please P.O. Box 66 provide for lawyer ADR including the feel free to direct your comments to myself, Tarryown, New York 10591 f' areas of mini-trials, summary jury as USB liaison to the Committee, or to any ¡ trials, private judging and expanded of the Committee members themselves in £! settlement processes under Rule 16 of care of the UCLJ, 640 S. 200 E., Salt Lake the Federal Rules of Civil Procedure. City, UT 84111-3834. - l?-= r _ ~ By Hans Q. Chamberlain

November 1988 7 --

The Case Against Plea- Bargaining

By Judge Robert F. Owens Ninth Circuit Court

but should not turn over our shopping decisions for society. " ThiSsaid is going the emcee. to be "I'lla reaction say a word game," and centers to it. A criminal trial has safeguards evolved you'll show your reaction to it, whether The media provides a high and often over many centuries to arve at the truth. positive or negative, by putting your thumbs cloudy window on the courts. A durable These include rules of evidence, cross- up or down." The audience waited expec- comment is that the run of mil cases, com- examination of witnesses, confrontation, tantly. prising the main work of the courts, are and testimony under oath, with the decision "PLEA-BARGAIN!" seldom covered. It is in such cases, the being made by ajudge elected and trained to Hands immediately shot forward, and all traffc, check and drug cases, the theft and do so, or by a representative jury drawn thumbs were down except for two people. burglar, that we should look to really study from the community. "We seem to have two lawyers in our plea-bargaining. This is the school that pro- Plea-bargain decisions, on the other audience today," commented the emcee. duced it, and the arena arguably most im- hand, are made by attorneys, often newly I believe this story accurately gauges the portant, affecting the lives of the most out of law school, who may view criminal almost universal public antipathy toward people. practice as only a temporar steppingstone plea-bargaining. I have yet to meet a man on to a more lucrative civil practice. As stated, the street who had a good word to say about A CLEAN SWEEP OF they have no statutory mandate to take over it. PLEA-BARGAINS the adjudicatory function of the courts, nor Most lawyers do defend the practice, and Several years ago a claim of trial experi- do courts have any basis for abdicating this either pooh-pooh the public criticisms ence led me to examine the felony prosecu- important function. If society had chosen ("They don't understand the problem"), or tion files in a rural county for a 12-month this way to dispose of its criminal litigation, they trot outthe familar arguments in favor, period. The result was surprising. Of the 34 lawyers would not be needed for that pur- revolving around crowded court calendars felony cases bound over to the distrct court pose. Insurance adjusters with a few weeks' and lack of resources to try all criminal in that year, not a single one went to triaL. As training could perform the same function at cases, and assuming no other alternatives. I recall, a few were dismissed, but all the less cost. It is clear, however, that society I've already signaled my own bias on this rest were disposed of by plea-bargaining. has rejected plea-bargaining. issue. It is interesting that although lawyers The "tral experience" claimed by counsel pride themselves in being good at per- in those cases in reality was only plea- CUTTING OUT THE suasion, their arguments in favor of plea- bargaining experience. The standard argu- HIGHER COURTS bargaining have never washed with the ment for plea-bargaining-that courts could Secondly, plea-bargains are essentially average citizen. Year after year, the gulf in not accommodate all the trials which would non-reviewable by the appellate courts. A attitude remains. Is it because the case for result without it-rings hollow when no sits as a presumably wise plea-bargaining is a weak one? I think it is, cases are tried at all. overseer at the top ofthe litigation pyramid, and wil give my reasons. carefully examining the transcribed record, A disclaimer first. I wil not be ad- BACKROOM JUSTICE patiently pointing out errors-but mainly vocating an absolutist position that we So what is wrong with plea-bargaining all for those cases which went to triaL. Looking should ban all plea-bargaining. In certain those cases? Didn't it save time and money? over their shoulders are the law professors, cases it is justified, but it should not become Possibly, except that our system has prom- and the grist for their mil is also mainly the norm as it has today. This aricle wil ised justice. Let's look at the product with cases tried and appealed. In a plea- also not express any opinion on the plea- the eyes of a quality controller. bargained case, review is severely limited to bargains in certain highly publicized cases, First we should note that for a whole year such things as severity of sentence or mo- but wil deal with the general practice of in every serious criminal case in that county, tions to withdraw plea. plea-bargaining as a sort of pervasive addic- the important decisions as to guilt or inno- The effect is that a large proportion of the tion in our justice system. Or to change the cence, and if guilty, what grade of offense, action in the criminal justice system is figure of speech, if plea-bargaining is the were made by a prosecutor and defense cared out, and shielded from the oversight flea market of our justice system, as I be- attorney, neither of whom had been elected of the appellate courts. The law guiding I lieve it is, we may make some room for it or appointed by the people to make such plea-bargain decision is never examined by j ,.

an appellate judge, as jury instructions ways agreeing to each other's requests for By analogy to personal injury case settle- would be, nor is the evidence produced or postponement) which can carr over into the ments, a plea-bargain, to be a "quality" recorded, except in the original police re- plea-bargaining process. In its most virulent settlement of a criminal case, should be in ports. This results in the anomaly that the form, this cooperative pattern could take the the context of an accurate prediction of the few cases which go to trial ride first class all form of the prosecutor always being wiling result if the case had gone to triaL. This the way, as far as procedural safeguards are to reduce charges, whether his case is strong would suggest it be done by experienced concerned, but that other cases, just as im- or weak, and the defendant's attorney being trial attorneys (or their equivalent) who had portant intrinsically, are herded into the wiling to twist his client's arm to plead to thoroughly prepared their cases. Because of third class coaches with no conductor to something so the prosecutor can list it as a the profit motive in civil cases, adequate complain to about injustices. A system of conviction without the trouble of a trial for preparation is usually done. Failure to pre- justice can accommodate such anomalies, either. Quid pro quo takes over from truth- pare wil be measurable in dollars, which as long as they remain anomalies. It is when seeking or even case evaluation. both talk and carr a big stick. In criminal they become the norm that justice suffers. Obviously such an arrangement between cases, however, there is no similar induce- attorneys would not be consciously or ex- ment to adequately prepare the case be- ARE THE BARGAINERS BIASED? pressly made, because that would violate forehand, nor is lack of preparation readily WHO KNOWS? legal ethics. The danger is in the tendency: apparent from the plea-bargain itself. My The third objection relates to the human in the valley of plea-bargaining one should impression is that in misdemeanor courts, element. In the typical plea-bargained case, fear that evil, because it is the low ground to most plea-bargains are made on the basis of the critical decision as to what a defendant is which conduct would naturally tend to flow police reports, without talking to witnesses guilty of, if anything, and how serious it is, unless restrained. or victims, and are given a much lower is made in the minds of two lawyers who D. FEAR OF OPPONENT OR TRIAL. degree of competence and attention than is privately reach agreement with each other. The prospect of a public trial is stressful, displayed in trying a case. At a public trial, Their evaluation of the evidence, their particularly if one is not prepared or feels he pride produces preparation, because in- understanding of what law applies, and the or she is no match for the opponent. Settling eptness would show. If this analysis is cor- real reasons for the decision are locked in the case privately by plea-bargaining is rect, the criminal justice system is running the heads of those lawyers. The decision pleasurable by comparison, and frees the at two levels: quality decisions at the trial which results from this process is essentially morning for golf. This difference in emo- level, with perfunctory dispositions at the "unreviewable," which means it can't be tional impact wil affect the attitudes of plea-bargain level, which may comprise the analyzed for correctness, as has been stated. attorneys, who are, after all, human beings. majority of cases. The cases at both levels In a jury tral, jurors are quizzed as to Confronted with a stressful situation, like a are equally important, and no good reason relationships and possible biases which nervous Nelle reaching for her tranquilizer, justifies this differential in attention given to might improperly affect their decisions, so it the attorney reaches for the phone to ask, them. is only fair to examine the factors which "What'll your client take?" and both obtain might have an improper influence on plea- relief. Unfortunately, another effect also GOAL: SLAP EVERY WRIST-uR bargaining attorneys. Since such influences occurs: ever-increasing reliance on the pal- GET AT THE TRUTH? are seldom admitted, even to oneself, the liative in future situations. The effectiveness of any justice system is list that follows is based on my own impres- The seductive siren of plea-bargaining ultimately tested, not by number of con- sions and previous experience as a pros- also has a proposition to make directly to the victions or number of cases handled, but by ecutor, defense attorney and judge. With courts. To the trial judge who feels that the quality and accuracy of individual case computerized court records now emerging, appeals and reversals may be interpreted as judgments, a standard which is very hard to I suspect that sophisticated analyses may reflecting on his or her ability, plea- measure independently of the system itself. soon become possible which might confirm bargaining offers protection by reducing the Does it convict, and punish the guilty and these impressions statistically. We stil can pool of cases which could produce appeals. identify and free the innocent? As its hu- never know for certain in a paricular case, And to the busy appellate courts them- mane component, does it resolve the however, what factors may have wared sel ves, she tenders the prospect of reduced margin-of-error cases in favor of inno- judgment. caseloads. From bottom to top in the crimi- cence? No system can promise perfection in A. WORKLOAD. An attorney with a nal justice system she serves interests-all this regard, but we hope our American sys- heavy caseload awaiting trial may tend to except the public interest. tem of criminal justice approaches it as plea-bargain cases more readily to obtain E. POLITICAL OR RELIGIOUS CON- closely as humanly possible. relief. In practice, this would mean wiling- SIDERATIONS. The boast of our law and I think about those 34 felony cases men- ness to offer reduced charges, like an over- system of justice is that it plays no favorites, tioned earlier, and wonder what the result stocked store putting goods on sale. and many of our court procedures are de- would have been if all had gone to trial, and B. PERSONAL PLANS. A typical sce- signed to effectuate that promise. In the dark thus had had the benefit of the best vehicle nario is a DUI case which the court sets for cellar of plea-bargaining, however, the our society has developed to arve at truth trial on a date for which an attorney was disease-organisms of bias or preference can in a fair way. From past experience, we making vacation plans. Such calendar con- flourish undetected. This is not to say that could predict that 50 percent to 75 percent flcts tend to trigger plea-bargaining for attorneys do not generally display integrity would have been convicted of the original reasons unrelated to the strength or weak- in this regard by acting responsibly, but the charge or an appropriately proven lesser ness of the case. line is blurr, and the potential for stepping charge with a relatively small danger that an C. SYMBIOSIS. Particularly in rural over it is ever-present, paricularly if the innocent person had been found guilty. Of counties, the same attorneys tend to be in- defendant is not an important person and the the balance which would be found not volved against each other in case after case. media hasn't noticed the case. guilty, some would probably in fact be Patterns of cooperation may develop (al- F. UNDERPREPARED TO BARGAIN. guilty but the case against them would not

November 1988 9 ~

Is this good? Should we rate our prosecutors of good will which typically envelopes the de- a mechanism for independent in-house review simplistically by their percentage of convictions, fendant who agreed to a plea-bargain. Both at- and approval would be recommended, to make and not ask of what charge, and even more torneys may be relieved and gratified in the sure the plea-bargaining is being done for the importantly, how convicted? Whatever the per- outcome, and the prosecutor may be more likely right reasons. This would enhance the credibility centage, when those convictions result from a to recommend lenience, than with a defendant of the plea-bargain decision when it is later rampant plea-bargaining legal culture, two con- who dragged him through a trial. The judge may submitted to ajudge for approval. In the absence cerns present themselves. feel the same way, not having heard the gory of such internal supervision, judges should A. THE PARTIALLY PARDONED details from the mouths of bandaged witnesses in readily exercise their statutory power (Criminal GUILTY. As to those pleading guilty to a red- court. I'm sure judges try to be evenhanded in Rule 11) to review and approve plea-bargains- uced charge, who are in fact guilty of a greater sentencing and not consider whether the judg- and disapprove when appropriate-rather than offense, a wrong message has been sent to them ment of guilt resulted from trial or plea-bargain, simply automatically rubberstamping whatever by society. Instead of being called to account for but I know as a fact that some attorneys have the attorneys have agreed upon. what they did and fully feeling the disapproval of advised their clients otherwise-that the judge Brecht, in his poignant conclusion to Three society, they were allowed to plead guilty to less would go easier on them if they agreed to a Penny Opera, writes, than what they did, in a game in which they plea-bargain. bargained with the state, as one nation bargains The second effect is that a criminal record is "All see those who sit in light; with another. Moral values give way to tactics. created which could be misleading in future The ones in darkness drop from sight." "If you wil relabel and reduce my offense, I cases where it is considered. Before the judge for won't put you to the trouble of a triaL." The sentencing stands a well-dressed, middle-aged Notwithstanding the floodlight of attention process of determining guilt is to an extent tri- man. His rap sheet shows several recent con- given to plea-bargaining in the few big cases vialized; the defendant is legitimized as an equal victions in another state for "attempted reckless which produce disquiet in the public, the nur- bargaining parner with the state, and any judg- driving." The judge knows that's nonsense: How turing ground and substantial locus of the prac- ment pronounced on him or her wil be cor- can anyone "attempt" to drive recklessly, par- tice are really in the thousands of little cases respondingly less effective in deterring future ticularly this solid citizen? He wil deduce that sitting out there in the dark. The appellate courts misdeeds. the prior convictions were plea-bargained down don't see them, law schools don't see them, the B. THE INNOCENT, UNJUSTLY CON- from drunk driving, and that there is probably an media and therefore the public don't see them, VICTED. The greater concern arises at the other alcohol problem. But why should judges have to and those within the system, for a variety of end of the spectrum. It is probably true that many second-guess rap sheets in order to make good reasons, also do not "see" them-as a problem, defendants guilty in fact, but who might not have sentencing decisions? A spade should be called a at least. been convicted, can be conned into pleading to spade. I submit that any ilumination of this topic wil some lesser offense. With a permanently injured lead to a recognition that changes are needed, victim in a coma, and a key witness who has LIMIT PLEA-BARGAINS; though one may safely predict that many within moved to Maine, a prosecutor may be forgiven OVERLOAD COURTS? the system wil resist change. Habits are hard to for feeling that a plea by the defendant to at- Would the courts be inundated with more reform, paricularly those that afford the type of tempted simple assault, a class C. misdemeanor, cases than they could handle if plea-bargaining gratification which plea-bargaining does. Am- is better than nothing at all. This reasoning is were tightened up? My own experience as a ong the various causes for popular dissatisfaction valid if the prosecutor knows the defendant is prosecutor and now as a judge would indicate with the justice system, the reform of present guilty, but has a weak case. The potential for that it would not be a serious or permanent plea-bargaining practices commends itself as a grave injustice arises with a defendant who may problem. In shifting from a lenient to a restrictive good place to star. The situation has festered be in fact innocent, but is pressured to plead regimen, one would expect some increase in long without much remedial attention. It's time guilty to a lesser charge by his own attorney trials, but this is not bad-it's what courts are we treated it and thereby conveyed to the public simply because he is conditioned to plea- for. As attorneys are required to overcome their their justice system is working fairly and forth- bargain, and wants something to offer to the habituation to the plea-bargain process, and as rightly, and that we have the wilingness to hear state. "I believe you when you tell me you're the new process gains credibilty, I would predict their concerns and to make needed changes. innocent," he will say, throwing a sop to his an interesting evolution would occur. De- clients self-respect. "But the state does have fendants would either plead guilty to the original some evidence, and you run a risk of going to the charge in some cases, or the prosecutor wil state prison if the jury believes it. Take the move to dismiss if the case proves to be weak. misdemeanor! " The cases that would end up going to trial would Does this happen, that the innocent have a be those that should be tried. Also, prosecutors higher likelihood of being convicted of some- would be less likely to overcharge in the first thing in a plea-bargaining culture? Through the place, with the motive of using reduction as years I've heard the allegation over and over leverage for bargaining. The whole system wil from defendants before me for sentencing who, thereby become more honest, and the public wil in trying to explain away priOl' convictions, understand it better and distrust it less. claimed that though innocent, their lawyer made Several years ago the state of Alaska, respon- them plead guilty. Even allowing for a degree of ding to public frustration, outlawed plea- lying and self-serving (the majority of criminal bargaining altogether. Such a Procrustean defendants are said to be sociopathic to one approach is not appropriate for Utah, in my degree oranother)-tilH-ften had the opinion. There is a place for plea-bargaining in feeling there was a basis to the allegation. the criminal justice system, but it should playa restricted role. If the prosecutor has charged SENTENCING: DO JUDGES GIVE appropriately, and has a strong case, he or she ,I PLEA-BARGAINERS A BREAK? should stand pat on the charge, and not reduce Plea-bargaining, as a routine device to handle just to avoid trial, or just because the defendant prosecution of crime, warps not only the deter- has a clean prior record. If, however, he has mination of guilt or innocence, but also can strong reason to believe the defendant in fact affect, or appear to affèct, sentencing in at least guilty, but wil have problems proving his case in two ways. court, a proper case for plea-bargain is pre- The first way can be characterized as the aura sented. Even then, in larger prosecutors' offices,

Vol. I, No.3 10 ,--i

i

Punitive Daniages in Utah

By David R. Black

under the Railway Labor Act. Id. (citations Recentissue cases of punitive in Utah damageshave elevated to one the of omitted). primar interest to civil attorneys and their Mississippi law required that an award of clients. In one case a jury awarded $10 punitive damages be made only on a finding milion in punitive damages against a soft that a common law tort be committed with a drink bottling company where the plaintiff wilful and intentional wrong or for such sustained an eye injury from a bottle cap. gross negligence and reckless negligence While this amount was . subsequently re- equivalent to such a wrong. Justice duced by the trial judge, the amount of the O'Conner faults the Mississippi standard verdict has raised questions in the Utah legal which commits solely to the jury's dis- community about the propriety of punitive cretion the determination of the amount of damage awards. Concerns regarding puni- punitive damages and compared it to crimi- tive damages have also been raised nal sentencing. nationally. The Concurrence concludes: The United States Supreme Court heard/" This grant of wholly standardless arguments last year that punitive damages discretion to determine the severity should be declared unconstitutional on the of punishment appears inconsistent grounds that an award of punitive damages with due process. The Court has rec- violates the Eighth Amendment and the Due ognized that "vague sentencing pro- Process Clauses of the United States Con- visions may pose constitutional stitution. The Eighth Amendment prohibits DAVID R. BLACK is an associate with Van Cott, questions if they do not state with the imposition of excessive fines. The case Bagley, Cornwall & McCarhy. He received a B.S. in sufficient clarity the consequence of Civil Engineering from Kansas State University in of Bankers Life Casualty Co. v. Crenshaw, 1982 and a J.D. degree from the University of Virginia violating a given criminal statute." 108 S. Ct. 1645 (1988) arose out of the in 1985. He is a member of the Utah State Bar and quoting United States v. Batchelder, 442 insurer's refusal to pay a claim fied under American Bar Association. U.S. 114, 123, Id. at 1656 (1979). These an accidental bodily injury policy. At trial, constitutional concerns were raised in plaintiff was awarded $20,000 on the insur- gants a glimpse of how this issue might be Bankers Life because nothing in Mississippi ance policy and $1.6 milion in punitive treated should it come before the Supreme law warned appellant that by commiting a damages. The Mississippi Supreme Court Court. Justice O'Conner writes: "Mis- tort that caused $20,000 of actual damages, affirmed the verdict and defendant ap- sissippi law gives juries discretion to award it could expect to incur a $1.6 milion puni- pealed. The U.S. Supreme Court held that any amount of punitive damages in any tort tive damage award. Bankers Life at 1656. the defendant did not properly raise its chal- case in which a defendant acts with a certain Locally, both houses of the Utah legis- lenges to the size of the punitive damages mental state. In my view, because of the lature reviewed bils in the 1988 General award in the Mississippi Supreme Court. punitive character of such awards, there is Session which sought to cap the amount of The Court ruled that defendant's vague ap- reason to think that this may violate the Due punitive damages, as well as narrow the peal to constitutional principles did not pre- Process Clause." Id. at 1655. Justice legal standard by which the damages could serve its Contract Clause or due process O'Conner points out that in the past the be awarded. Senate Bil No. 115 and"House claim. "A party may not preserve a con- Supreme Court has forbidden the award of Bil No. 230 would have limited an award of stitutional challenge by generally invoking punitive damages on the grounds that the punitive damages to $500,000 or $800,000, the Constitution in state court and awaiting punitive damages are not measured against respectively. In each bil the sponsors pro- review in this Court to specify the con- an objective standard. Justice O'Conner vided that some or all of the punitive dam- stitutional provision it is relying upon." Id. cited two such instances. Punitive damages ages, after an award of attorneys' fees, at 1650. may not be awarded in defamation suits would be remitted to the state treasurer and Justice O'Conner, in a concurrng opin- brought by private plaintiffs or in unfair credited to the General Fund or State School ion with Justice Scalia, offered future liti- representation suits brought against unions Fund. Both bils would have expressly lim-

November 1988 11 --

ited the award of punitive damages to cases conduct, the extent of the effect of the the influence of alcohoL. The trial court in which defendant engaged in knowing, misconduct on the lives of the plaintiff and found that no actual malice existed, and on intentional and malicious acts where a high others, the probability of future recurrence that ground granted NAC summar judg- degree of danger was apparent. This lan- of such misconduct, the relationship be- ment. The trial court also found as a matter guage would have narrowed the scope of the tween the parties, the relative wealth of the of law that Utah did not recognize vicarious punitive damage standard in Utah. A find- defendant, the facts and circumstances sur- liability for punitive damages. First, the ing that defendant had merely a reckless rounding the misconduct and the amount of court noted that the trial court had mis- disregard or indifference toward the rights actual damages awarded." Synergetics, at construed Utah law on the imposition of of others would have been held insufficient 142, citing First Security Bank v. J.B.J punitive damages. Id. at 3. The court enun- to support an award of punitive damages. Feedyards, 653 P.2d 591, 598-99 (Utah ciated the correct standard that allows puni- Neither bil passed this year. 1982). tive damages in the case where plaintiff can The Utah Supreme Court articulated this The Utah Court of Appeals opened the prove reckless indifference to the rights of state's current standard for punitive dam- door for the award of punitive damages others. The court then considered several ages most recently in Johnson v. Rogers, 90 against a drunk driver in a newsworthy facts key in its decision that the punitive Utah Adv. Rep. 3 (1988). The Court reiter- opinion last year. In Biswel1 v. Duncan, 742 damages in drunk driving case could go to ated the standard it adopted in both Atkin P.2d 80 (Utah App. 1987), Judge Judith the jury. Defendant Rogers had consumed a Wright & Miles v. Mountain States Tel., Bilings reviewed the history of punitive large quantity of alcohol immediately prior 709 P.2d 330, 337 (Utah 1985), and Syn- damages in Utah and reasoned that nothing to reporting to work as a truck driver, giving ergetics v. Marathon Ranching Co., 701 barred an award of punitive damage in such him a blood alcohol level of .18 percent. P.2d 1106 (Utah 1985). Under these court a case under the proper circumstances. If Rogers admitted to being a "heavy" prob- rulings, punitive damages may be awarded plaintiff can show that the defendant motor- lem drinker prior to the accident and that he if the plaintiff proves that the defendant's ist acted with a reckless disregard for the had a prior conviction of driving under the conduct was wilful and malicious or that it rights of others and that the driver's intoxi- influence in Oregon. Id. The court con- manifests a knowing and reckless indiffer- cation contributed to the cause of the acci- cluded that these facts, if proved to a jury, ence and disregard toward the rights of dent, punitive damages were recoverable. would certainly be sufficient to support a others. In additon, the plaintiff must prove Id. at 85. The Court opined that driving after finding of knowing and reckless disregard . that an award of punitive damages is appro- voluntarily drinking to excess could be for the safety of others. Id. priate under the circumstances. Johnson v. found to demonstrate a reckless indifference In Miskin v. Carer, 90 Utah Adv. Rep. Rogers, at 4 (citations omitted). Plaintiff or disregard toward the rights of others 19 (1988), appellant, injured in a car col- must establish that an award of punitive sufficient to allow the trier of fact to con- lision with a drunk driver, appealed the trial damages wil clearly accomplish a public sider an award of puniti ve damages. Id. The court's granting of summary judgment to objective not otherwise accomplished by the Court went on to add that the imposition of the defendant. Defendant moved for a award of compensatory damages. Punitive punitive damages in a civil action does not judgment that the facts of the case were damages may only be awarded in excep- constitute double jeopardy in a case where insufficient to support an award of punitive tional cases. Behrens v. Raleigh Hills the same conduct could be punished crimi- damages. The trial court agreed. Id. at 20. Hosp., Inc., 675 P.2d 1179, 1186 (Utah nally as well. Id. at 87. The Court was In light of the standard adopted that day in 1983). Punitive damages are meant to serve persuaded that "the constitutional immunity Johnson v. Rogers, the Supreme Court ruled the interest of society, not by enhancing a from double jeopardy is limited to criminal that the trial court did not err in ruling that compensatory damage award, but by pun- proceedings." Id. the facts in Miskin did not warrant an award ishing and deterrng outrageous and mali- This year the Utah Supreme Court de- of punitive damages. The court added that cious conduct not likely to be deterred by cided two cases involving punitive damages the determination of an award of punitive other means. Synergetics v. Marathon and drunk driving on the same day. Both damages in a case like this required a bal- Ranching Co., at 1106 (Utah 1985). Johnson v. Rogers, 90 Utah Adv. Rep. 3 ancing of factors. The trier of fact must first determine that (1988), and Miskin v. Carer, 90 Utah Adv. Under some circumstances, the man- the standard for an award of punitive dam- Rep. 19, 20 (1988), coupled the "knowing ner in which a vehicle is operated, ages has been met, and that the case is one and reckless disregard" standard with the when considered in light of the degree for which an award of punitive damages is stated purposes of punitive damages to deter of intoxication and the driver's past appropriate. The trier of fact must also fix outrageous conduct. The Court reviewed behavior patterns, may warrant puni- the amount of punitive damages. It must be the punitive damages cases of Utah in John- tive damages. But we emphasize that noted in light of Justice O'Conner's con- son v. Rogers, and following the logic of nothing in Biswel1 or Johnson should currence in Bankers Life that the amount of Biswel1, determined that no reason existed be read to suggest that the mere pre- an award of punitive damages in Utah is left to exclude drunk driving from the categories sence of a .08 percent blood alcohol to the sound judgment of the jury as related of outrageous conduct which are eligible for level, combined with nothing more to the circumstances of the individual case. the imposition of puniti ve damages. Id. at 5. than negligent conduct, is sufficient The Utah Supreme Court recognizes a re- Plaintiffs, the J ohnsons, appealed the trial to put the issue of punitive damages straint of reasonableness in these awards, court's granting of summary judgment to before a jury in a personal injury suit however. Elkington v. Foust, 618 P.2d 37, co-defendant Newspaper Agency Cor- arising from a motor vehicle accident. 41 (Utah 1980). poration ("NAC"). The trial court dis- The Utah Supreme Court has ruled that missed plaintiffs' claims for punitive Miskin v. Carter at 20. the fact finder should consider several fac- damages arising out of the wrongful death of Johnson v. Rogers also defined the Utah tors in determining the amount of punitive their 8-year-old son. Their son was kiled standard for vicarious liability of an em- damages to be awarded. The factors in- when NAC's employee Rogers lost control ployer for punitive damages. Johnson at 6. clude: "the nature of the alleged mis- of the company's trck while driving under Defendant Rogers caused the accident com-

.. 12 Vol. I, No.3 ~ plained of while in the employ of co- punitive damages is appropriate. Punitive tury Equipment Co., 692 P.2d 754, 760 defendant NAC. Plaintiffs sued both de- damages have been awarded in small cases (Utah 1984), the Utah Supreme Court found fend ants for compensatory and punitive involving modest sums of money. In that punitive damages were excessive where damages. The trial court granted NAC's O'Brien v. Rush, 744 P.2d 306 (Utah App. the award of punitive damages exceeded the motion for summary judgment, ruling that 1987), the Utah affrmed an award of a,ctual damages by 11. 72 times. Utah did not recognize vicarous liability for award of punitive damages against an auto- Most recently in Van Dyke v. Mountain punitive damages. Id. at 3. After discussing mobile mechanic in favor of the plaintiff Coin Machine Distributors, 88 Utah Adv. several approaches to vicarous liability on who had been charged premium prices for Rep. 14 (1988), the Utah Supreme Court the par of an employer, the Utah Supreme used pars, overcharged for poor workman- further refined its ruling in Bundy. Plaintiff Court reversed that decision. The de- ship, and subjected to a lien on her auto- Van Dyke brought an action against the fendants did not argue on appeal the legit- mobile for non-payment of charges under defendant for breach of contract and an imacy of vicarous punitive damages. Id. at payment terms to which she had not agreed. abuse of process. The jury awarded $250 in 7. The court opted for the doctrine set forth In O'Brien, the plaintiff was awarded actual damages and $37,000 in punitive in Restatement (Second) of Agency Sect. $1 ,900 in actual damages and $1,000 in damages. Defendant appealed, on among 217C and the Restatement (Second) of Torts punitive damages. The Appellate Court other grounds, that the award of punitive Sect. 909. The Supreme Court adopts the called this "exactly the type of case" which damages was excessive. Id. at 15. The court "complicity rule" which limits vicarious called for the award of punitive damages. set forth the general requirements that a trial punitive damages to those situations where Id. at 309. The Appellate Court looked at judge, in reviewing a jury's award of pun i- wrongful acts were committed or authorized the "totality of the circumstances" sur- tive damages, should consider the following by a managerial agent or were committed by rounding the events in concluding that the facts: The relative wealth of the defendant, an unfit employee who was recklessly em- trial court's award of punitive damages was the relationship between the paries, the ployed. Id. entirely proper. Id. probability of future misconduct and the The Supreme Court reversed the trial Punitive damages arose in the context of a amount of actual damages. The court agreed court's summary judgment to the de- business transaction in Synergetics v. Mara- with the Bundy standard but held that a fendants and stated that in view of the facts, thon Ranching Co., Ltd. 701 P.2d 1106 larger multiple of actual damages could plaintiffs were entitled to a jury verdict on (Utah 1985). The case involved the ex- appropriately be awarded as punitive dam- the question of whether NAC authorized the change of an oceangoing sailboat for real ages. The Court found a large award appro- act or whether the employee was recklessly property in Canada. The plaintiffs fied an priate in this case where the jury found the employed. Id. action alleging that the transaction was actions of the defendant were motivated by An examination of other recent Utah founded on fraud, misrepresentation, and vindictiveness and il wil. In addition, the cases reveals that not all punitive damage deceit. Id. at 1108. The plaintiffs succeeded court noted a strong likelihood that. the awards arse out of the high profile personal in securing a default judgment against de- wrong complained of would recur. How- injury action. Awards of punitive damages fendants and being awarded damages in the ever, the court also found the jury award in a business context are becoming more amount of $452,000. Further, the plaintiffs excessive. Therefore, the court reduced the prevalent. The United States District Court introduced affdavits apprising the court of punitive damage award to $12,500, a ratio heard a case last year which raised the issue the factors set forth in First Security Bank v. to actual damages of 50 to 1. Id at 17. of punitive damages in a business trans- J.B.! Feedyards, at 598-99, entitling them The Utah Supreme Court ruled that puni- action. In Gen. Bus. Mach. v. Nat. Semi- to punitive damages. Plaintiffs' affidavits tive damages do not survive the death of a conductor Datachecker, 664 F. Supp. 1422 were uncontested, and the court ruled that tort feasor. The estate of an individual re- (D. Utah 1987), the Court denied de- sufficient evidence existed for an award of sponsible for the wrongful death of the fendants motion to strike a claim for puni- $200,000 in punitive damages based on the plaintiffs' mother could not be assessed tive damages arising out of the termination plaintiffs' affidavits. Id. at 113. punitive damages. Two of the justifications of an exclusive distribution agreement. Not all recent decisions have acted to for punitive damages are to punish the Plaintiffs based its tort claim on the alleged broaden the scope of the punitive damage wrongdoer and to deter similar conduct in breach of a fiduciary duty, running between award. Utah courts have sought to limit the the future. Neither of these justifications the manufacturer and its exclusive dis- award of punitive damages in some con- was applicable in the case of a tort feasor no trbutor in the state of Utah. The Court texts. Most importantly, no award of puni- longer living. Matter of Estate of Garza, 725 found that plaintiff had raised issues of tive damages may be made unless the P.2d 1328, 1330 (Utah 1986). material facts and refused to dismiss the plaintiff also proves entitement to com- The standard for an award of punitive cause of action. The Court stated that a pensatory damages. Atkin Wright & Miles, damages in Utah appears to be firmly estab- franchise relationship may give rise to a at 337. Secondly, the award of punitive lished. The Johnson v. Rogers case cements fiduciar duty if the placement of trust and damages must bear some reasonable re- the standard adopted in earlier Utah Su- reliance in the relationship is clear. Id. at lation to the actual damages. Synergetics, at preme Court decisions. Future Utah cases 1426. Punitive damages could be awarded 1113. The courts have not offered any should be watched to see if any changes in in such a case where an independent tort can formulas for the reasonableness of punitive the standard of punitive damage awards are be proven. Id. It is important to note that no damage awards. However, in Synergetics, made which reflect Justice O'Conner's con- cause for punitive damages exists in the case plaintiff was awarded $452,000 in com- cems about due process. Both the United of breach of a contract without an inde- pensatory damages and $200,000 in puni- States Supreme Court and future legislative pendent tort. Id. p. 1424. See also Highland tive damages. The Utah Supreme Court sessions should be watched closely for any Const. Co. v. Union Pacific R. Co., 683 stated that "(GJiven the inverse ratio of developments affecting the legal standard or P.2d 1042, 1049 (Utah 1984). actual damages to punitive damages, this the right to these damages. The size and scope of the cases do not Court cannot say that the damages were necessarily determine whether an award of excessive." Id. at 1113. In Bundy v. Cen-

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MONE BACK GUARE

14 Vol. I, No.3 T

REMARKS OF ROBERT MAceRATE Immediate Past President American Bar Association Dedication of Utah Law and Justice Center + Salt Lake City September 7, 1988

which continued to provide a competing his childhood principally in mining camps RecentlyThomas United Greene States told District a group Judgeof young J. vision of the milennium for the Terrtory of in Utah and Montana. Put to work at the age Utah lawyers as they began their lives in the Utah right through the 1860s following the of 12, he worked successively in a clothing law: "None of us ever 'arrve' in the practice Compromise of 1850 and the federal act store, a mine recorder's office and for an of law, it is a continuing journey. We law- granting terrtorial status. express yømpany. He attended public yers. . . wil always be on the way." In the new terrtory, however, there ap- school in Salt Lake City and later Brigham Indeed it is a continuing journey, not only, pears for a time to have been a concerted Young Academy and then spent 15 months for those who practice law but for all those effort to do away with the legal profession. as a forwarding agent for contractors build- who join in the trek to make reality of our Thus we find the terrtorial legislature pro- ing the Rio Grande Western Railway before country's promise of equal access to justice. viding that all courts in the Utah Terrtory traveling east in 1882 to study law at the There are, however, important mile must hear any person chosen to prosecute or University of Michigan Law SchooL. markers along the way: the adoption of defend a case and, moreover, that no person In March 1883, at the age of 21, George some reform or the creation of a new insti- should receive payment for rendering such Sutherland was admitted to the bar in Michi- tutional resource that mark progress on that representative service. gan before returning later in the year to Utah journey. At the same time the territorial authorities' where he was duly admitted before the ter- It is such a salient marker that we gather developed what has been described as "a ritorial courts. Practice with his father in here to celebrate today. I suggest that in the veritable fortress of home rule" to distance Provo was that of the American frontier in years to come the creation of the Utah Law themselves from federal authority. Central the 1880s. He accepted any case he could and Justice Center wil be seen not only as a to this development was legislation giving get, civil or criminal, and traveled by horse- marker of progress but as the genesis of a original jurisdiction in all civil and criminal back to appear before various territorial new direction in the continuing journey to cases to the terrtorial probate courts, plac- courts and through mountain passes to re- provide justice under law to all. ing effective control within the terrtory mote justices of the peace. For generations "the journey" has been rather than with the federally established George Sutherland's journey in the law both the metaphor and the reality of the district courts that were the embodiment of led him to move to Salt Lake City in 1893 Utah experience. It is appropriate on this the national government's presence. More- where he became one of the founding mem- significant occasion to pause and reflect for over, the territorial legislature created the bers ofthe Republican Pary in Utah. When a few minutes on how you have reached this offices of terrtorial attorney general and Utah achieved statehood in 1896, he was marker along your way. marshal to serve in the probate courts while admitted to practice before the U.S. District The earliest recorded major journey into making the United States district courts de- Court for the District of Utah and later that Utah was that of the Spanish exploration pendent for their appropriations of funds year was elected to the . party in 1776, the year the Declaration of upon the terrtorial legislature. From there George Sutherland moved first Independence was signed. But it was not Thus as we follow the journey of law and to the U.S. House of Representatives and until the 1840s that the westward movement justice in the Utah Terrtory into the 1870s then for two terms in the U . S. Senate. There of American settlers reached this land. In and '80s, we sense a continuing tension he helped frame the 17th Amendment to the the 1850s the Utah Terrtory was, of course, between Utahn home rule and federal au- U. S. Constitution for the direct election of a way station for those drawn by gold to thority which was only gradually accom- Senators and introduced and championed California. Far more significant to the mak- modated into our general federal system. the "Susan B. Anthony Resolution" which ing of Utah was the journey begun in 1830 in But it was in the early 1880s that a young became the 19th Amendment granting my native state of New York by Joseph Utahn, destined to make a major national women suffrage, one of the salient markers Smith and his followers which reached Salt contribution to the law, joined his on the American journey oflaw and justice. Lake City after the greatest travail only on sometime- miner- "j ack -of-many - trades" It is not surprising to find that it was while July 24, 1847, led by Brigham Young. father in the practice of law in Provo under George Sutherland was president of the The ultimate goal of that remarkable the style of "Sutherland and Son." George American Bar Association in 1916 and 1917 Mormon odyssey which ended 140 years Sutherland as an infant had been brought by . that the first woman was elected to mem- ago was the Provisional State of Deseret his parents from England to Utah and spent bership in the Association. This was the

15 November 1988 redoubtable Mar Lathrop from neighbor- resolution projects. In addition, within the for the earlier and less costly resolution of ing Colorado who, fearing a blackball, had ABA today, there are 23 separate alternative disputes, we do not permit such alternatives rejected invitations to apply for ABA mem- dispute resolution committees actively pur- to become second-class justice for those on bership until George Sutherland was its suing the development of new mechanisms the other side of the tracks, that we truly president. and procedures. understand their relationship to the courts From 1922 to 1938 Mr. Justice Suther- The American Bar Association has a con- and the justice system, that we do not close land served on the United States Supreme tinuing commitment to facilitating dispute doors to judicial vindication of basic rights Court with distinction and good humor, resolution and to the creative and problem- nor compel a weaker party to submit without authoring 295 majority opinions, many in solving role of the law and the lawyer be- protection to superior bargaining power. the landmark cases of those years. He ar- yond the arena of litigation, which makes As Judge Greene said of the practice of gued that the law should be flexible, not participation in this dedication ceremony so law, it is indeed a continuing journey. Our fixed, and continue to grow on that endless meaningful for me. American quest for more perfect justice is journey of justice. I was pleased to learn that President Kent also a journey, one begun some 200 years t It is in such a tradition we gather today to Kasting wil be going to Chicago to attend ago with the signing of a document that i acknowledge the placing of another marker tomorrow and Friday the ABA dispute reso- established a government of laws. That on the journey of law and justice, fully lution workshop for bar leaders. He wil be quest continues. mindful of the necessity, for those con- an especially welcome paricipant in that It is a privilege to be with you today to cerned with the quality of justice for all, to workshop, bringing to bar leaders from participate in the dedication of this facility, respond in creative ways to new challenges around the country word of the Utah Law the first of its kind in the nation. You have and emerging needs in an ever-changing and Justice Center and your plans for its not only built for the future of Utah, but you society. utilization. have provided an inspiring model for others. The credit for this Law and Justice The Utah Law and Justice Center presents It serves as a proud marker of progress on Center, for its imaginative concept and for a vital opportunity to study alternatives, to the journey of law and justice and fils me its creative execution reside here in Utah, examine them in an appropriate setting, and with excitement for the future of law and with the State Bar and community leaders to see how well they fulfil their purpose. It justice in our land. who have brought the center into being. But provides an opportunity to make certain that Thank you very much. we in the American Bar Association take in our efforts to institutionalize techniques pride in the fact that the Association has served as a catalyst for change and that we have helped stimulate the search for new means of dispute resolution and the opening of greater access to justice to which this center îs dedicated. It was in 1976 that the ABA joined with the Judicial Conference of the United States and the Conference of Chief Justices of the 50 states in sponsoring a National Con- ference on the Causes of Popular Dissat- isfaction with the Administration of Justice, a subject addressed 70 years earlier by the great American legal scholar, Roscoe Pound. At the 1976 conference, Waren E. Burger stated that we had not really faced up to whether there are other mechanisms and procedures outside of the judicial system to meet the needs of society and individuals. He challenged us to seek the most satisfactory, thèspeediest and least expensive means of meeting the legitimate needs of the people in resolving disputes. An ABA Task Force took up the chal- lenge and the ideas ariculated at the 1976 Pound Conference. This led to the creation of an Association Committee on Alternative Means of Dispute Resolution, which is to- 'day an important ABA standing committee evaluating nationwide the broad array of dispute resolution activities, promoting the institutionalization of successful programs and through its staff serving as a clear- inghouse and resource center for all inter- ested in pursuing alternative dispute

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November 1988 17 ~~ Reform Task Force. Reviewed recent Highlights developments in pension plan cases re- Discipline of the moving the exemption of certain pension Comer plans, which developments wil receive August 26 further study and consideration. ADMONITIONS: G. Received the monthly report of the Bud- 1. An attorney was admonished for vio-. Bar Commission get and Finance Committee. Authorized lating DR 1-102(A)(6) for conduct ad- the Executive Committee to negotiate a versely reflecting on the attorney's fitness to Meeting line of credit to more effectively respond practice law for inappropriately substituting to seasonal cash flow needs. Authorized the attorney's wil and decision-making au- a new administrative policy to impose thority for that of the client in the settlement ~ The meeting of the Bar Commission of late fee charges of 1 lfz percent per month of the client's case. August 26 was held at the J. Rueben Clark on various services and space fees College of Law in Provo, Utah. In actions charged by the Bar. PRIVATE REPRIMANDS: ;t taken, the Commission: H. Reviewed the status of litigation pending 1. An attorney was privately repri- against the Bar, including the dismissal manded for violating DR 6-lOl-(A)(3) and A. Approved minutes of the July 21 meet- of certain cases in Federal courts and the Rules 1. 1 and 1.3 of the Rules of Pro- ing. affirmation of an Administrative Law fessional Conduct for failing to exercise B. Received a report from the Executive Judge ruling in favor of the Bar and the reasonable diligence and promptness in rep- Committee including information of the case alleging wrongful discharge resenting a client by failing to file an ap- activity of the Board of Trustees of the wherein the Board of Review reiterated pellee's brief with the Utah Court of Law and Justice Center in preparation the finding of the termination for just Appeals for a period of 14 months after the for the dedication of the building, dis- cause based on insubordination. briefs were due and after the attorney had position of various administrative items 1. Appointed a committee to review the received an extension of time in which to by the President and/or Executive Com- process for the selection of persons to file the brief. mittee and appointment of Robert S. receive Bar awards. Campbell to the Executive and Judicial J. Determined that it wil study the possible PUBLIC DISCIPLINE: Compensation Commission as the state promulgation of a code of professional 1. Phil L. Hansen was placed on Interim bar representative. courtesy as has been adopted in numer- Suspension from the practice of law by the C. Considered information developed on ous other jurisdictions. Utah Supreme Court on July 28, 1988, said the pending tax initiatives and voted to K. Received a report of the Executive Direc- interim suspension continuing until the actively oppose all three tax initiatives, tor summarizing recent meetings in Tor- pending formal complaints have been re- based upon information provided by the onto as part of the ABA Annual Meeting. solved. The Supreme Court by that order is judiciary on the impact of such initia- L. Received a preliminary report from the permitting Mr. Hansen to continue rep- tives on the judicial system in Utah, with Bar Commission's Representation Study resentation of clients whose cases were cur- the President to communicate the Bar's Committee regarding their review of the rently active at the time the Interim position opposing the initiatives to the districting process and a proposed ques- Suspension was imposed. membership and to the public. tionnaire for the membership to be used D. Received the Admissions Report and in conjunction with several regional REINSTATEMENTS: approved the results of the July bar meetings with Bar members to discuss 1. Jerry V. Strand was reinstated to the examination. Appointed a grievance governance and structure issues. practice of law effective September 6, 1988. hearing panel to review any appeals which might be filed, reinstated a mem- ber who had been suspended for non- CLARIFICATION; payment of dues, discussed the policy Bar Dues Notice The Charles M. Brown Jr. who is on question regarding expungement of rec- disability suspension as noted in the August! \1 ords of administrative suspensions and September Bar Journal is not Charles R. '1\ referred the question to the Policies and Brown of the firm Hunter & Brown, Charles Procedures Committee for its review and The 1989 Bar Licensing and Membership C. Brown of the firm Brown, Smith & 1 recommendation. Dues forms wil be mailed on November 1. Hanna or Charles S. Brown of the firm E. Received the Discipline Report, acted on You wil notice that dues are slight! y higher Watkiss & Campbell. discipline matters and requested Bar than last year and that this reflects the third Counsel to prepare proposed revision to and final incremental increase as approved Rule 7.3 on targeted mail solicitations. by the Supreme Court in 1986 for the F. Received report on legislative affairs 1987-89 dues cycles. We wil appreciate from Travis Bowen, legislative liaison. your return of the completed license form Mr. Bowen reported activities of the and dues payment as early as possible. If legislative interim committees. Com- you have any questions concerning your missioner Hanson reported on the ac- dues form or licensing status, please call our tivities of the Tort and Insurance Industry Licensing Clerk at the Bar Office.

18 Vol. i, No.3 Utah Supreme Court which wil be con- or earlier in the Third District Court wil be sistent with the Shapero decision. destroyed beginning Januar 1, 1989, be- It should be noted that direct person-to- cause of the inadequate storage space in the person solicitation is stil prohibited. court. ETHICS If you have any questions regarding direct It is possible that some of these deposi- mail solicitation, please contact the Office tions may be on open cases, therefore law- COUNSEL of Bar Counsel at 531-9110. yers should check their files and reclaim any depositions they need. It is important lawyers reclaim deposi- · Representation in Bar tions before January 1. For more infor- Disciplinary Proceedings Bar Foundation mation, contact Craig Ludwig at 535-511 1. Appoints · Plaintiff and Defense t Malpractice Steve Nebeker to Board of Trustees Claim of the Month 1 · Ethics Advice; In-house Ethics Seminars ALLEGED ERROR OR OMISSION Salt Lake City Attorney Steve Nebeker has The insured attorney failed to timely file a been appointed a Trustee of the Utah Bar personal injury action. Foundation to fil the vacancy created by the Jo Carol Nesset..Sale Honorable J. Thomas Greene Jr., who re- RESUME OF CLAIM · Former Utah Bar Counsel cently resigned from the Foundation's The insured represented an elderly · Ten years litigation experience: Board of Trustees. A partner in the law firm brother and sister who were injured in an of Ray , Quinney & Nebeker, Steve Nebeker criminal defense; Bar automobile accident. He was retained by wil serve the remainder of Judge Greene's discipline them approximately one month after the term on the Foundation's Board of Trustees. accident. Judge Greene served continuously as a Haley & Stolebarger During the time between the insured's Trustee since 1972 and is a past president of retention by the claimants and the expiration 10th Floor Walker Center the Foundation. of the statute of limitations, the insured 175 South Main Street became il and required surgery and hos- Salt Lake City, UT 84111-1956 pitalization for an extended period of time. (801) 531-1555 Bar Foundation's Legal He hired an attorney as an independent contractor to manage his office while he was Briefs Will Air on away. The attorney hired was not the person KUED Channel 7 listed on the application. While the insured was in the hospital, this attorney failed to Direct Mail timely file the action. When the insured returned from the hos- Solicitation The Utah Bar Foundation's series of in- formational mini-programs titled Legal pital, the hired attorney represented that all Permissible matters had been taken care of expedi- Briefs wil again air on KUED Channel 7 tiously. The insured took him at his word The u.s. Supreme Court in Shapero v. beginning Saturday, October 15, 1988, at and did not lear of this error until he was Kentucky, No. 87-6 (U.S. June 14, 1988), 5:55 p.m. The 13-part series wil be run reviewing his entire caseload prior to re- recently struck down as unconstitutional weekly at that time for 26 weeks immedi- tirement. As a further complication, the Rule 7.3 of the Rules of Professional Con- ately following the consumer advocacy pro- hired attorney passed away shortly after the duct. Traditionally direct communication, gram "Fight Back," hosted by David claim was tendered to the carer. by mail, to a specific individual concerning Horowitz. Legal Briefs is designed to edu- a specific cause of action or legal matter has cate the public about basic legal situations, HOW CLAIM MIGHT been prohibited. The Court in Shapero held such as jury duty, small claims court, hiring HAVE BEEN AVOIDED ~ that such a prohibition violates an attorney's a lawyer, and traffc court, as well as speci- This claim might have been avoided if the first amendment right of free speech. Con- fic areas of law such as divorce, wils and insured had properly prepared for his time sequently, attorneys may send direct soli- trust, contracts, and real property. The ser- I away from his offce. This would have .in- citation letters to specific individuals. ies is hosted by Third District Court Judge J. cluded preparation of a list of upcoming However, the rules of professional conduct Dennis Frederick and features various filing deadlines as well as other items wh~ch requiring truthfulness and accuracy in con- members of the Bar. tent of those letters stil apply. The U.S. required particular care. Proper preparation would also entail his having a person whom Supreme Court also left open the door for he knows and trusts to take over his case- State bar associations to fashion rules re- Depositions to load. In the instant claim, he hired an attor- quiring submission to the Bar of direct soli- ney from another part of th~ state to cover citation letters for review of the content be Destroyed prior to mailing. The Board of Bar Com- for him in his absence. This was not the person listed in his application for ins.ur- missioners, through Bar Counsel, wil be ance, with whom it is presumed a working submitting a proposed rule change to the Aii depositions on cases filed 10 years ago

November 1988 19 relationship had already been forged. He was one of the chief architects of the new wil then display all occurrences of the Finally, this is an ilustration of the abso- Model Rules of Professional Conduct. phrase "mechanic's or materialman's liens" lute need to double check and maintain in context. The attorney may then browse control of files. Attorneys should never take through the list on the screen and retrieve the for granted the fact that work has been full text of the appropriate references. performed properly or timely by another Utah Code Available Depending on hardware configurations, attorney. in Computerized Form WordCruncher and many word processors, including WordPerfect, can be co-resident in the system. For instance, if WordPerfect An agreement between CodeCo Legal and W ordCruncher are running under Environmental Publishers of Orem, Utah, and Electronic WordPerfect Library, the user can simply Considerations in Natural Text Corporation (ETC) brings the full text toggle between WordCruncher and Word- Resource and Real of a state's code to personal computers for Perfect. Once the desired data has been the first time. ETC has released a com- retrieved from a text, it may be manipulated Property Transactions puterized version of the Utah Code for use in any number of ways. Retrieved infor- with ETC's PC-based text indexing and mation can be printed immediately, im- retrieval program, WordCruncher. ported into a word processor, saved as a On November 16 and 17, 1988, the Rocky W ordCruncher helps attorneys quickly DOS text file, or placed in a temporary file Mountain Mineral Law Foundation is spon- locate references within the Code. When a such as WordPerfect Librar's Clipboard soring a two-day Special Institute on Envi- user needs to review the text of a specific provides. ronmental Considerations in Natural section (i.e., "Title 78, Chapter 14, Section The Utah Code requires 27 megabytes of Resource and Real Property Transactions in 3), WordCruncher quickly accesses that available hard disk space. The data is pres- Denver, Colorado. section of the statutes. Using Word- ently distributed on floppy disks. ETC and This Institute wil provide a comprehen- Cruncher's full text retreval features, a user Iomega Corporation of Roy, Utah, have sive analysis and evaluation of environmen- may also search for a word, phrase, or reached an agreement enabling Iomega to tal considerations involved in the purchase combination of words and phrases using all sell the data on their Bernoulli Cartridges as and sale or lease of natural resource and the standard search criteria including Boo- part of their recently announced Bernoulli other real properties. lean connectors, proximity and order state- Collection. ETC plans to release the data on Registration fees include comprehensive ments. compact disks in the near future. course materials, two hosted luncheons, a For example, an attorney who wishes to The Utah Code can be ordered from Elec- hosted reception and coffee breaks. conduct research on "mechanic's or mate- tronic Text Corporation at (801) 226-0616 For additional information, contact the rialman's liens," but does not know every or purchased from authorized dealers. Rocky Mountain Mineral Law Foundation location that phrase exists in the Code, may at (303) 321-8100. simply type in the phrase. WordCruncher

Utah Endowment for the The law firm of Haley & Stolebarger is pleased Humanities Sponsors to announce that Jeffrey W. Appel has become a Lecture Series partner in the firm. The following persons have join- ed the firm: The Utah Endowment for the Humanities, in cooperation with the University of Utah Deparment of Philosophy and College of Judge D. Frank Wilkins, retired Utah Supreme Law, the Utah State Bar, and other pro- fessional groups, is sponsoring a Lecture Court Justice, formerly of Berman & Series on Ethics and the Professions Today. O'Rorke, of Counsel The series wil address such questions as: What are the most pressing issues facing the professions today? Do the professions face Carolyn Nichols, formerly of the Utah common problems? Are the professions Hospital Association locked in conflct? Can professionals learn from each other and work together? Pro- grams in November and December include: November 10, 1988-Ethics and the Legal Jo Carol Nesset-Sale, formerly the Utah State Profession; November 17, 1988--urrent Bar Counsel Issues in Medical Ethics; December 1, 1988-The Professions Today: Common Problems or Conflicts? Beatrice M. Peck Geoffrey C. Hazard, Sterling Professor of Law, Yale Law School, and Executive Director of the American Law Institute, wil I act as Reporter at the November 10 lecture. I 175 South Main Street, Suite 1000 · Salt Lake City, Utah 84111 · 801-531-1555

20 Vol. I, NO.3 ~- -~--~-- Utah Bar Foundation Publishes Cliff Ashton's History of the 'The Federal Judiciary In Utah' Federal Judiciary in Utah by Clifford Ashton

The Utah Bar Foundation is pleased to announce that Clifford Please send me copies. Ashton's history entitled The FederalJudiciary In Utah has been published Enclosed is my check payable to the in hardbound form and is now available for purchase at a cost of $15.00. Utah Bar Foundation in the total amount of."...... ""....""...... "".."""...... $ Cliff's many years of experience as a trial attorney and his well-known skil Please Print or Type as a raconteur give him a unique perspective on the history of Utah's Federal Judiciary. The book chronicles the federal judges from the early Name Telephone pioneer days of the State of Deseret, through the religious and political Organization turmoil of the Utah Territory, to the controversial era of Judge Wilis Ritter. The publication of this interesting book has been made possible by Address the generous contributions to the Foundation by Calvin and Hope Behle City/State/Zip and the C. Comstock Clayton Foundation. Copies may be purchased by Mail the completed form and your check payable to the Utah Bar Foundation to: completing the attached form and mailing it to rhe Utah State Bar Office Judicial History, Utah State Bar, 645 South 200 East, Salt Lake City, Utah 8411 1. together with your check made payable to the Utah Bar Foundation in the Please allow at least three weeks for delivery. amount of $ 15.00 for single copies. There is a discounted price for orders of multiple copies: 10-24 volumes at $ 1 2.50 each, more than 25 volumes at $ 10.00 each. Price includes postage and handling.

THE LAW FIRM OF JONES, WALDO, HOLBROOK & MCDONOUGH JONES, WALDO, HOLBROOK & MCDONOUGH A PROFESSIONAL CORPORATION A PROFESSIONAL CORPORATION DONALD B. HOLBROOK MERILYN M. STRAILMAN"§ CALVIN L. RAMPTON LESLIE A. LEWIS IS PLEASED TO ANNOUNCE THAT W. ROBERT WRIGHT PAUL M. HARMAN RANDON W. WILSON SUE VOGEL RONALD ... OCKEY EVAN A. SCHMUTZ JOHN W. PALMER JACK LUNT TIMOTHY C. HOUPT K. S. CORNAByT BRENT A. BOHMAN PAUL M. HARMAN JAMES S. LOWRIE DALE R. CHAMBERLAIN SUE VOGEL RONNY L. CUTSHALL WILLIAM C. GIBBS AND CHRISTOPHER L. BURTON RONALD D. MAINES" LARRY C. HOLMAN DIXON F. LARKIN EVAN A. SCHMUTZ WILLIAM B. BOHLING EDWARD R. MUNSON D. MILES HOLMAN DAVID L. JONES HAVE BECOME MEMBERS OF THE FIRM ROBERT S. MCCONNELL ROBERT A. GOODMAN THAT JOHN W. PALMER JAMES W. BURCH THOMAS E. K. CERRUTI KEVEN M. ROWE CRAIG R. MARIGER MICHAEL PATRICK O'BRIEN MERIL YN M. STRAILMAN RICHARD B. JOHNS DAVID SONNENREICH FORMERLY OF THE FIRM OF WILEY, REIN & FIELDING DAVID B. LEE" WM. KELLY NASH HAS .JOINED THE FIRM IN THE BARRY D. WOOD" SHARON E. SONNEN REICH L. R. CURTIS, JR. JAMES W. PETERS WASHINGTON, D.C. OFFICE GRETTA C. SPENDLOVE SUSAN BOSTWICK TIMOTHY B. ANDERSON CURTIS R. WARD THAT SUZANNE WEST JEROME ROMERO ELIZABETH M. HASLAM MICHAEL R. SHAW LESLIE A. LEWIS G. RAND BEACHAM MITZI R. COLLINS FORMERLY DEPUTY SALT LAKE COUNTY ATTORNEY RANDALL N. SKANCHY GREGORY CROPPER JANET C. GRAHAM DAVID R. PURNELL! TIMOTHY C. HOUPT BRUCE E. BABCOCK BARRY G. LAWRENCE FORMERLY OF THE FIRM OF HOUPT & ECKERSLEY DAVID R. MONEY GLENN M. GOFFIN AND GEORGE W. PRATT MICHAEL ... KELLEY JAMES W. BURCH JAMES W. STEWART FORMERLY OF THE FIRM OF CHAPMAN & CUTLER OF COUNSEL ROGER ... MCDONOUGH HAVE .JOINED THE FIRM IN THE FRANK ANTHONY ALLEN SALT LAKE CITY OFFICE ALDEN B. TUELLER AND THAT SALT LAKE CITY OFFICE DAVID R. PURNELL 1500 FIRST INTERSTATE PLAZA 170 SOUTH MAIN STREET BARRY G. LAWRENCE SALT LAKE CITY, UT 84101 GLENN M. GOFFIN (801) 521-3200 AND WASHINGTON, D.C. OFFICE ST. GEORGE OFFICE SUITE 350 THE TABERNACLETOWER BLDG. MICHAEL J. KELLEY 1001 22ti STREET, N.W. 249 EAST TABERNACLE HAVE BECOME ASSOCIATED WITH THE FIRM WASHINGTON, D.C. 20037 ST. GEORGE, UTAH 84770 (202) 296-5950 (801) 628-1627 IN THE SALT LAKE CITY OFFICE *ADMITTEO AND RESIDENT IN WASHINGTON, D.C. t REGISTEREO PATENT ATTORNEY OCTOBER 4,1988 l ADMITTED IN TEXAS AND IDAHO ONLY §ADMITTED IN VIRGINIA

November 1988 21 Utah Advance Reports Now with summaries!

Now, the Utah Advance Reports also includes brief summaries of each case. The summaries are found on the first page of each issue. Just scan the summaries, and go right to the cases that are vital to your particular practice. Subscribe now! Call: SLC: 364-2633 PROVO: 226-6876 Elsewhere in Utah 1-800-992-2633

CODE. Co Law Publishers P.O. Box 1471, Provo, Utah 84603

22 Vol. I, No.3 ------~~~------By William D. Holyoak and Clark R. Nielsen

STANDARD FOR IMPOSING AND VICARIOUS LIABILITY FOR PUNITIVE DAMAGES; NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS The parents of a child killed when a truck jumped a curb and struck the child and his father, who were standing on a Salt Lake City sidewalk, brought an action for wrong- ful death, physical injuries to the father and emotional distress to both parents. The driver of the truck was delivering news- papers at the time of the accident and was under the influence of alcohoL. Plaintiffs proffered considerable evidence of aggra- Willam D. Holyoak Clark R. Nielsen vating circumstances concerning the acci- dent, the driver's employment and conditions in ,the driver's workplace. called "complicity rule" of the Restatement "impact" test, which requires that the plain- The trial court granted summary judg- (Second) of Torts. That rule "limits vicari- tiff sustain a physical impact that causes the ment to the driver and his employer on ous punitive damages to those situations emotional distress; the "zone of danger" test plaintiffs' claim for punitive damages, but where wrongful acts were committed or of the Restatement (Second) of Torts , which denied summary judgment to defendants on specifically authorized by a managerial does not require an impact, but does require plaintiffs' claim for emotional distress. agent or were committed by an unfit em- plaintiff to have been in danger of an impact; The trial court held that "evil intent," ployee who was recklessly employed or and the so-called Dillon test (based on a "actual malice," or "malice in fact" was retained." Again, the Court concluded that California case), which requires the plaintiff required for an award of punitive damages. there had been sufficient allegations by to be located near the accident, that the The Supreme Court, in its main opinion plaintiffs to meet this standard and, conse- emotional trauma result from witnessing the written by Justice Durham, held that this quently, to avoid summary judgment on the accident and that plaintiff be closely related ruling misconstrued its case law, wrong- issue. Justice Durham further stated that to the victim. Concluding that the instant fully relying on a standard applied by the plaintiffs were entitled to present this issue case satisfied each of the three tests, Justice Court in a false imprisonment case. The to a jury. In a partially concurring opinion, Durham, while indicating sympathy for the Court stated: written by Justice Zimmerman and joined Dillon rule, declined to adopt a particular The standard for punitive damages by Chief Justice Hall and Justice Stewart rule, but merely affirmed the trial court's in non-false imprisonment cases is (thereby making it the view of a majority of denial of summary judgment to defendants thus clear: they may be imposed for the Court on the issues it addressed), the on the issue. The three concurrng justices conduct that is wilful and malicious three justices agreed that the Restatement (and thus the Court) were not content to and that manifests a knowing and standard should apply, but concluded that affirm on the issue without selecting a stan- reckless indifference and disregard the trial court should determine upon re- dard. They selected the Restatement, or toward the rights of others. mand whether sufficient evidence existed to zone of danger, rule. (Johnson v. Rogers, send the case to the jury on this issue. 90 Utah Adv. Rep. 3 (August 25, 1988).) The Court rejected defendants' argu- The final issue before the Court was

~I ments that punitive damages should not be whether a cause of action for negligently PIERCING THE CORPORATE awarded in drunk driving cases or where the inflicted emotional distress exists and, if it VEIL OF A SUBSIDIARY defendant has already been punished crimi- does, under what circumstances. The Court Against a muddled procedural back- nally for his actions. The Court concluded noted that as recently as 1982 it had stated ground, the Utah Court of Appeals dis- "., that the facts alleged by plaintiffs "would summarily that "it is well established in cussed the law relating to piercing the certainly be suffcient to support a finding of Utah that a cause of action for emotional corporate veil of a subsidiary to get to the knowing and reckless disregard for the distress may not be based upon mere neg- assets of its parent. Salt Lake City Cor- safety of others" and consequently con- ligence." Reiser v. Lohner, 641 P.2d 93 poration sued a corporate contractor and its cluded that the trial court had incorrectly (Utah 1982). Discounting the cases relied parent, seeking to recover the cost of re- awarded summary judgment to defendant upon in Reiser, the Court "addressed the pairing and completing work done pursuant on the issue. question anew." The Court noted that it had to a public construction contract. The only The Court then considered an issue of not found any jurisdiction in the United basis for liability against the parent was a first impression in Utah: the vicarious liabil- States which barred all recovery for the "piercing" or "alter ego" theory. ity of an employer for punitive damages. negligent infliction of emotional distress. The Court of Appeals noted that the Utah After noting four different rules applied by The Court noted that three major tests Supreme Court has adopted the following different courts, the Court adopted the so- have been applied by the courts: the two-prong test to determine when dis-

November 1988 23 regarding the corporate entity is justified: emphasized the importance of this "balances" or "weights" the evidence to element in piercing situations: ascertain the "clear weight." Secondly, the (i)n order to disregard the corporate It is coming to be recognized as the "clear and firm conviction" standard entity, there must be a concurrence of policy of the law that shareholders necessary to reverse a conviction is wholly two circumstances: (1) .there must be should in good faith put at the risk of subjective and disregards the standard of such unity of interest and ownership the business unencumbered capital proof at trial--beyond a reasonable doubt. that the separate personalities of the reasonably adequate for its prospec- In its review of the evidence, the dissent corporation and the individual no tive liabilities. If the capital is ilusory urges that there is no probative evidence that longer exist, viz., the corporation is, or triflng compared with the business defendant kiled the victim. State v. Good- in fact, the alter ego of one or a few to be done and the risks of loss, this is man, 91 Utah Adv. Rep. 3 (Sup. Ct. Sep- individuals; and (2) the observance of a ground for denying the separate tember 9, 1988). the corporate form would sanction a entity privilege. Barber, Piercing the fraud, promote injustice or an in- Corporate Veil, 17 Wiliamette L. ADEQUACY OF equitable result would follow. Rev. at 386 (quoting H. Ballantine, RECORD ON APPEAL Norman v. Murray First Thrift & Loan Ballantine on Corporations, 303 In a per curiam decision, the Supreme Court affrmed defendant's aggravated rob- Co., 596 P.2d 1028,1030 (Utah 1979). The (1946)). bery and theft convictions. Defendant ap- Court of Appeals noted that the first prong The undercapitalization factor is thereby of the test has been referred to as the "for- pealed the trial court's refusal to grant a paricularly important, serving double duty continuance of his trial because of his inad- malities requirement" and the second prong both as a factor in determining whether the as the "fairness requirement." The court equate preparation. The Supreme Court formalities requirement is met and as a cen- also noted that "(a) key feature of the alter found no abuse of discretion because the tral focus in the analysis of the fairness ego theory is that it is an equitable doctrine record on appeal was inadequate to support requirement. (Salt Lake City Corp. v. James requiring that each case be determined upon defendant's continuance request. An ap- Constrctors, Inc., 90 Utah Adv. Rep. 62 its peculiar facts." pellant has the responsibilty to provide an The court then reasoned: (Ct. App. September 7, 1988).) adequate record that specifically supports the contentions on appeaL. State v. Linden, In the parent-subsidiar situation, STANDARD OF REVIEW AND CIRCUMSTANTIAL EVIDENCE 90 Utah Adv. Rep. 22 (Sup. Ct. August 26, the central focus of the formalities 1988). prong is "the degree of control that the The Supreme Court (1. Durham) affirmed parent exercises over the subsidiar defendant's second degree murder con- PRESERVATION OF and the extent to which the corporate viction in a divided decision. The victim's PUTATIVE formalities of the subsidiar are ob- body was found near Beaver, Utah. De- FATHER'S RIGHTS served." Barber, Piercing the Cor- fendant had been seen with her several hours BY ACKNOWLEDGMENT porate Veil, 17 Wiliamette L. Rev. earlier in Las Vegas, and in Mesquite, Ne- In a detailed analysis of past cases regard- vada. Defendant and the victim had left their (371,) 397 (1981). ing the rights of putative fathers, the Court Las Vegas apartment where they lived of Appeals (1. Bilings) held that a putative One commentator has listed 1 1 fac- together two weeks earlier. Based upon this, father may legally preserve his parental in- tors relevant to deciding whether the and other circumstantial evidence, the trial terest in his ilegitimate child either by com- parent exercises "the necessar con- judge disregarded defendant's alibi tes- trol" over its subsidiar. Id. . . . Six pliance with the paternity statute, Utah timony. The Supreme Court applied Utah Code Ann. Sect. 78-30-4(3) (1987), or by are pertinent to the present case: (1) R. Civ. P. 52(a) as the proper standard of "the parent corporation owns all or public acknowledgment under Sect. appellate review and held the evidence suf- 78-30-12, prior to the filing of a petition for most of the capital stock of the sub- ficient to sustain the verdict. The majority sidiary"; (2) "the parent corporation adoption by a third party. The ac- opined that under this standard, the ap- knowledgment statute, Utah Code Ann. finances the subsidiary"; (3) "the sub- pellate tribunal is less deferential than pre- Sect. 78-30-12 (1987), and the paternity sidiary has grossly inadequate viously to the factual determinations of the statute, Sect. 78-30-4(3), are not mutually capital"; (4) "the parent corporation trial judge and the likelihood of reversal of a exclusive but are alternative means avail- pays the salares and other expenses bench trial was greater than a jury tral. If able to establish and maintain any con- or losses of the subsidiar"; (5) "the the clear weight of the evidence does not stitutional right of parenthood. Public directors or executives of the sub- support the verdict, then it wil be reversed policy does not favor termination of a un- sidiar do not act independently in the even if no defense is presented. The de- wed father's right after he has developed a interest of the subsidiary but take their fendant may also obtain reversal if the court long-standing relationship over several orders from the parent corporation in otherwise is convinced that a mistake has the latter's interest"; and (6) "the years with his daughter and is prevented by been made, regardless of the weight of the the mother from learing of the daughter's formal legal requirements of the sub- evidence. planned adoption. In Re T.R.F., 90 Utah sidiar are not observed." Id. at 398. The dissenting opinion of Justice Stewart Adv. Rep. 36 (Ct. App. August 30, 1988). In a footnote the court quoted from the challenges, for the first time, the application Barber law review aricle again as follows: of Rule 52(a) and State v. Walker, 743 P.2d 191, 193 (Utah 1987), in the review of . (T)he adequacy of (a) corpora- criminal convictions from a bench triaL. The tion's capitalization looms large in dissent objects to the use of a "clear-weight- (a) court's evaluation of the un- of-the-evidence" test in reviewing the suf- fairness prong. A leading com- ficiency of evidence and argues that this first mentator on corporate law has element of the majority's test erroneously

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Utah' s New Judicial Council

By Judge Gregory K. Grme

Ii

¡d., and the Chief Justice may vote only to Whiie thethe new most judicial publicized article! was aspect authori- of break a tie. ¡d. (2)(a). Except for the Bar (I zation for an intermediate appellate court, representative and Chief Justice, members the most innovative may be establishment of are elected by their peers, see ¡d. (1), and ~, the Judicial CounciL. serve three-year terms. ¡d. (2)(b). A Judicial Council is established, The implementing legislation more pre- which shall adopt rules for the admin- cisely defines the Council's responsibilities. istration of the courts of the state. The "The council is responsible for the de- Judicial Council shall consist of the velopment of uniform administrative policy chief justice of the supreme court, as for the courts." ¡d. (3). The Council is presiding officer, and such other jus- charged to "establish and assure compliance tices, judges, and other persons as with policies for the operation of the courts, provided by statute. There shall be at including uniform rules and forms for prac- least one representative on the Ju- tice," ¡d. (3)(a), and to prepare an annual dicial Council from each court estab- report on the courts. ¡d. (3)(b). The Council lished by the constitution or by is directed to establish judicial competence statute. The chief justice of the su- standards and a "formal program for the preme court shall be the chief admin- evaluation of judicial performance." ¡d. (4). istrative officer for the courts and The Council is also directed to develop shall implement the rules adopted by operational, personnel, and facilities stan- the Judicial CounciL. dards for the courts. ¡d. (5). Other legis- Utah Const., Art. VII Sect. 12. lation has vested the Council with additional Although other states have judicial coun- responsibilities. See, e.g., Utah Code Ann. cils of some type or other-and Utah had a Sect. 78-7-25(2) (1988) (Judicial Council to legislatively created advisory body of that Judge Grme graduated from the/rSiversity of establish procedure for trial court reporting Utah, magna cum laude, in 1975 with a Bachelor of name going back to 1973 or so-Utah's on matters not decided within 60 days); Arts Degree in political science. He obtained his law "new" Judicial Council is unique by reason degree, with high honors, from The National Law Utah Code Ann. Sect. 76-3-301.5 (1988) , ! of its status as a constitutional body. Center, George Washington University, in 1978. He (Judicial Council to set uniform fine sched- The Council was envisioned as a kind of was appointed to the Utah Court of Appeals in 1987 ule); Utah Code Ann. Sect. 78-3- 11. 5(1) board of directors for the Utah judiciary. and serves as that court's Judicial Council member" (1988) (Judicial Council to administer state He is a member of the executive council of the Utah The only constitutional limitation on the State Bar's Administrative Practice Section, chair of district court system). rule-making power of the Council is in Sect. its Constitutional Bicentennial Committee, and a How does this new "board of directors" 4, which vests the Supreme Court with the member of its Courts and Judges Committee" for the judicial branch of government oper- power to adopt rules of procedure, of evi- ate and who serves on it? .dence, for the management of the appellate The Council averages monthly meetings process, for the utilization of retired judges vision, the presiding offcer), a Supreme of one day or so. Its agenda is set in advance and judges pro tempore, and governing the Court justice, a Court of Appeals judge, by the Council's Management Committee, practice oflaw. Utah Const. , Art. VII Sect. three District Court judges; two Circuit which also serves as a kind of executive 4. Court judges, two Juvenile Court judges, committee for the Council. The Council has Implementing legislation has fixed mem- and two justices of the peace. Utah Code a Liaison Committee that is responsible for bership on the Judicial Council as follows: Ann. Sect. 78-3-21(1) (1987). A Bar rep- the judiciary's relations with the Legis- the Chief Justice (by constitutional pro- resentative serves as a non-voting member, lature, the executive branch, and the press

26 Vol. 1, No.3 i Utah Const., Art. VIII (approved by general ejection November 6, and public. A Long-Term Planning and and wil include the subjects previously 1984, effective July 1, 1985)" Policy Committee is responsible for coordi- covered by the Uniform Rules of Practice as 2 No other level of court has more than two judges on the council. An nating the Council's planning activities and supplemented by various local rules, plus "extra" seat for the District COUl! reflects the importance afrhae court as rules governing the Council's procedures, the stale's court of genera/jurisdiction, and is also a product of history. the promulgation and publication of council Utah's "old" Judicial Council was largely a creature of the District policies. the judiciary's personnel policies, and a host Court. which had an overwhelming majoriiy of its members. Prior to of other matters~ All administrative rules 1981, when the Chief Justice was so designated, a district judge even Current membership on the Council, with presided over the council. promulgated by the Supreme Court, such as committee assignment, is as follows: Chief 3 As with any group, informal assignments 8æ also important. Judge Justice Hall (Management); Justice Zim- those dealing with pro tem judges and the Yardley serves as the Council's resident humorist and raconteur. When merman (Liaison); yours truly (Manage- Rules of Professional Conduct, wil also be you see John, ask him to tell you about the guy who fishes Panguitch Lake with dynamite. ment); District Judges Hanson included in the Code. The Code's purpose is 4 The Code of Judicial Administration wiJ contain rules, inter alia, on (Management), Frederick (Liaison), and not the addition of another tier of rules, but utilization of interpreters, accounting for fees, destruction of court Roth (Planning); Juvenile Judges Bachman rather the consolidation of several tiers of records, court commissioners. bail schedules, transfer of cases, use of senior judges, law and motion practice--ven Oil the use of signature (Liaison) and Keller (Planning); Circuit rules and policies into a single, easy-to-use stamps. Some variation will still exist between courts (and among Judges Grant (Planning) and Bean (Man- volume. It should prove indispensable to jurisdictions) in such mallers as law and motion practice. However, all such local varations will be set forth in the Code of Judicial Admin- agement); and Justices of the Peace John practitioners as well as judges and court istration, organized under the heading "Local Rules."

Yardley3 (Liaison) and Peggy Acomb (Liai- personnel. 5 Altitudes reflect values. During my time on the Council. I have liad son). Reed Marineau (Liaison) is currently The Council's successful legislative init- informal discussions with, and heard formal presentations by, any iatives include unified court boundaries, see number of Legislators and others in state government. Tn discussing the Bar representative, continuing a tra- budgetar and other such mallers. most habitually lump the courts in dition of having the immediate past presi- Utah Code Ann. 78-1-2.1 (1988), and state with "the other agencies." The courts. "like all the other agencies," funding of the district courts. See 1988 must live with a certain perc.entage budgetar cut; the courts, "like all dent of the Bar serve a one-year term on the the other agencies." musl observe a paricular personnel hiring freeze. CounciL. Laws of Utah ch. 152 (codified in Utah As important as the agencies of the executive branch ar, the courts, as an independent branch of state government, ar on a constitutionally The Council's meetings are open to the Code' Ann. Sect. 78-3-11.5 et seq.) different footing from "all the other agencies." That fact deserves more public, although seating for interested per- The Council's most productive work wil recognition than it has received in lhe past. sons has not proven to be a problem, except probably be in the realms of long-range for at the Council's unusually well- planning and growth management. The publicized deliberations on the child support Council's task forces on Gender & Justice, guidelines. Alternative Dispute Resolution, and Child While one's parochial interests cannot Support have already made important con- always be suppressed, council members see tributions. Its master plan on data pro- their mission-as council members-to be cessing is being implemented, with the efficient, effective, and economical op- automation of all trial courts to be com- eration of the judicial branch of government pleted within the year. Linkage to law firms rather than the advancement of their par- and agencies is down the road another two Job Service ticular level of court and its agenda. Council years or so. A meaningful Judicial Per- members accordingly do not make presen- formance Evaluation program is shaping Publications tations to the CounciL. Nor do they purport up, and the completion of facility master to "speak for" their colleagues, although plans should ensure that the construction Available From they wil often convey, for informational and expansion needed to keep up with the purposes, their sense of what their col- growth in our state-and to improve on the University leagues' attitude or position is on a par- quality of justice delivered-wil be co- ticular issue. Indeed, a "board of directors" herent and effective. Law School model fairly characterizes how the Judicial The most important aspect of the Judicial Council functions. Each member, following Council's existence and effectiveness is discussion, votes his or her conscience more elusive. While state judiciaries have The Legal Career Services Office at the Univer- based on what he or she thinks is best for the enjoyed independence in the narrow sense sity of Utah College of Law provides two judiciary as a whole. The debate and com- of being able to dispose of cases coming monthly publications to assist in securing em- promise which precedes voting on a motion before them without interference, they have ployment. The Job Reviews contains legal and usually results in a consensus, but divided not typically enjoyed the degree of inde- legally related employment opportunities listed with the LCS Office. The Bulletin Board Sum- votes are not uncommon. The Council, like pendence which characterizes a separate branch of government: Independence in the mary provides a brief summary of all govem- a good board of directors, tries to concern ment, judicial, fellowship, teaching, internship, itself with policy issues, leaving Court Ad- constitutional sense can be achieved only summer study, graduate study, public interest, ministrator Bil Vickrey and his able staff to through the acquisition and responsible ex- writing competition, special areas, minority and implement those policies and manage day- ercise of more control-by the judiciary- non-traditional opportunities listed with LCS. to-day operations. over the judicial budgetary process, judicial Each publication costs $5 for a six-month The Council's most ambitious under- personnel matters, judicial facility plan- subscription. If you would like to subscribe, taking to date has been the review of dupli- ning, data processing for the judiciary, etc. please send your check to: cative and inconsistent local rules, standing Such independence promotes a strong, University of Utah College of Law orders, administrative directives, and the modern, and responsive court system. Only Legal Career Services Office like, with an eye to adoption of a well- through an effective vehicle like the Judicial Salt Lake City, UT 84112 Council can such independence be realized. LCS also invites you to list employment and organized, integrated Code of Judicial Ad- other appropriate law-related opportunities with ministration. That effort has been in process its office. For more information, call Francine for months, but is now complete. The Code Curran at 581-5418. wil be published by The Michie Company

27 November 1988 ,---

Lisa Yerkovich. President's Report The Lawyers Compensation Survey Com- mittee wil continue to prepare and coordinate the annual survey on lawyer compensation. Greg The Young Lawyers Section of the Utah State Skordas is the chairprson of this committee and Bar offers an opportunity for young lawyers to Charlotte Miler is the vice-chairperson. have substantive and positive experiences in The Publications Committee wil coordinate law-related public service and in the organized the publishing of the Barrister segment of the Bar. Many members of the Section are par- Utah Bar Journal which replaces the stand alone ticipating in projects and activities of the Sec- Barrister publication. Stanford Fitts is the Chair- tion. I believe this is based on a commitment to person of this committee and Noland Taylor is the profession that transcends pure self-interest. the vice-chairperson. They wil also be members The commitment of service to the Bar and public of the Utah Bar Journal staff. is not an easy one, however, given the enormous The Publicity Committee chairperson is Larr pressures of day-to-day practice. It is easy to Laycock and the vice-chairperson is Christopher become so focused on the challenges of practice Hall. Their committee wil be responsible for that we fail to pursue opportunities for law- publicizing Section events and coordinating related public service or opportunities for service press coverage of any projects undertaken by the to the profession through the organized Bar. Section. The Young Lawyers Section is just one of the The A wards Committee wil make recom- vehicles through which you can serve the public mendations on the Young Lawyers of the Year and the Bar. The Section always needs more Award and the Liberty Bell Award given by the attorneys to paricipate. Even if you only have a Section every year. In addition, this committee few hours a month that you can make available, wil coordinate the Scction' s participation in the the Section can give you opportunities to get ABA Young Lawyers Division Award of involved. As you can tell by perusing the list of Achievement competition. Sharon Sonnenreich committees and projects that follows, there are is the chairperson of this committee and JoAnne numerous ways to get involved in the Section. Shields is the vice-chairperson. Strong committees are the backbone of this or- The Bridge the Gap Committee wil assist in ganization. I want to express my appreciation to developing programs for new attorneys and wil the committee chairpersons and vice-chair- The Community Services Committee is be responsible for involving new attorneys in the persons named below for their tremendous chaired by David Little. The vice-chairprson is Young Lawyers Section. In connection with efforts. Todd Zagorec. This committee will continue to these responsibilties, the committee wil assist The Law-Related Education Committee is coordinate the traditional Sub for Santa program in Bar admission ceremonies. David S. Christen- continuing this year its successful librar lecture and the blood drive. Last year the committee sen is the chairperson of this committee and Kim series titled "Law School for Non-Lawyers" at stared a tutoring program in local elementary Luhn is the vice-chairprson. the Salt Lake City main library and its in the class schools which wil be continued this year. The The Tuesday Night Bar Committee wil assist programs for elementary and secondary school Community Services Committee is also in- the senior Bar and Bar staff in the Bar's new students on the law. The Committee has com- itiating two new programs this year: a voter Tuesday Night Bar legal intake program at the pleted an update on Utah law for a high school registration and turnout program and a victim- Law and Justice Center. This program wil pro- textbook titled "Utah Street Law." The Com- witness assistance program. vide an opportunity for numerous attorneys to mittee is also preparing a legal information pam- The Law Day Committee wil continue its law provide legal information to the public and to phlet for graduating high school students to be day fairs with emphasis on expansion to areas assist members of the public in obtaining coun- titled "Stepping Out." This pamphlet wil be outside of Salt Lake City. The committee wil seL. Cecilia Espenoza is the chairprson of this published later this year. The chairperson of the also organize radio and public television pro- committee and Mary Duffin is the vice- Law-Related Education Committee is Richard grams during law week and wil prepare public chairprson. Van Wagoner and the vice-chairprson is Mark service messages on the law. The chairperson of Justice Oliver Wendall Homes once said: Webber. this committee is Rich Hamp and the vice- "The great thing in this world is not so much A special project of the Law-Related Edu- chairprson is James Hyde. where we stand, as in what direction we are cation Committee is the Law for the Clergy The Needs of Children Committee will con- moving." I believe that the Section is building on project. The Law for the Clergy project wil tinue and expand its program titled In re Kids and the foundation laid by so many, including Ce- produce a non-denominational pamphlet on legal wil make presentations on children's rights to celia Espenoza, John Adams, Paul Durham and issues commonly faced by clergy; e.g., priest! community groups. In addition, this committee Stuart Hinckley, and is moving forward. I en- penitent privilege, clergy malpractice, etc. In is planning a program to educate teachers about courage more members of the Section to join addition, workshops and seminars for the clergy their rights and responsibilities in reporting child with us. will be held to discuss the sensitive topics abuse. This committee is chaired by Sandra \ i covered by this pamphlet. This project is chaired Sjogren. The vice-chairperson is Mark Bettil- by Blake Ostler. yon. . The Membership Support Network Com- The Needs of the Elderly Committee will, by mittee wil continue with its noon brown bag means of writing columns in newsletters and i lecture series for young lawyers. This committee presentations in senior citizens centers, educate wil provide additional support for members of senior citizens about their legal rights. More- the Section through organizing CLEs, a partner- over, the committee wil continue distribution of ship survey and a sole practitioner outreach pro- its Senior Citizens Handbook published a little gram. The chairperson of this committee is Nick over a year ago. The chairperson of this com- Hales and the vice-chairperson is Mark Egan. mittee is Keith Kelly and the vice-chairperson is

28 Vol. I, No.3 determining the percentages. The question asked Commercial Law 4% was, "Does your employer pay any portion of the Energy/Natural Resources 3% 1987-88 benefits? General Practice 3%

Benefi Percentage of Attorneys The surveyors took some liberties in this cat- Lawyer's Who Receive the Benefit egory. Attorneys listing divorce, domestic or family law were grouped together. Also, most Bar Dues 89% attorneys who practice insurance defense listed Compensation Health Insurance 88% themselves primarily as litigators while plain- CLE Conferences 82% tiff's attorneys generally were more specific and Life Insurance 73% would indicate products liability, or other areas. Survey Disability Insurance 69% Judges, law clerks, military attorneys and admin- Liability Insurance 68% istrators were not included in this portion of the Dental Insurance 55% survey. Several attorneys listed their primar By Gregory G. Skordas area of practice as civil law and criminal law which may also tend to skew the accuracy of this PRIMARY AREAS OF PRACTICE portion of the survey. This year, a new question was asked the re- spondents regarding primar areas of practice. YEARS OF PRACTICE In Surveyearly was1988 sent the to Lawyers' all members Compensation of the Utah Each respondent was asked to indicate two areas Of those responding, 15 percent have been State Bar. Of the over 4,500 members of the Bar, of specialty. Fifty-five different areas of practice practicing law two years or less, 16 percent 575 responded to the questionnaire. Seventeen were given by the respondents with the top 10 indicated three to four years of practice, 21 percent of the responses were from attorneys listed below. percent have been practicing five to six years, 15 who are women and 83 percent were from attor- percent have practiced seven to 10 years, 14 neys who are men. This compares with the 16 Primary Area Percentage percent have been practicing 1 I to 15 years and percent/84 percent difference in 1985-86, the 14 of Practice of Attorneys 19 percent have been practicing 16 years or percent/86 percent difference in 1984 and the 10 more. percent/90 percent difference in 1983. The high- Litigation 16% Responses indicating '12 years were rounded est percentage of women responding have been Business/Corporate Law 14% to the nearest lower number. Some attorneys in practice two years or less (nearly 30 percent). Real Estate/Property 8% simply noted the year of graduation or admission Personal Injury (not including to the bar. Since the survey was mailed in early BENEFITS insurance defense 6% 1988, graduates from classes of 1985, 1986 and The following chart indicates the percentage Criminal (prosecution and 1987 were placed in the two years or less cat- of attorneys responding which receive the indi- defense) 6% egory. cated benefits. Attorneys who classified them- Domestic/Family Law 6% selves as self-employed are not included in Bankrptcy 5%

FORMAT 1 st Line: 1987-88 Salaries (not including bonus) 2nd Line: (Percent of Total Responses) 3rd Line: 1987-88 Bonus YEARS OF PRACTICE 2 or less 3-4 5.6 7-10 11-15 16+ Total i- 14,400 39,300 51,300 52,200 84,000 63,200 47,200 Self-Employed (2) (2) (2) (3) (1 ) (5) (14) 0 0 0 0 0 0 27,700 41,700 62,200 59,500 125,000 79,200 59,100 Firm T (5) (3) (6) (2) (6) (26) 2-14 (5) Y 1,700 2,600 4,000 2,200 0 900 P 38,600 37,800 50,900 N/A 60,000 192,500 65,800 Firm E (1 ) (2) (3) (0) (1 ) (1 ) (8) 15-35 400 1,800 12,200 - 10,000 95,000 0 41,600 45,500 65,400 69,300 62,800 143,600 71,400 Firm F (4) (1) (6) (2) (2) (3) (17) 36 + 1,100 6,00 5,700 3,800 70,000 1,200 P 36,500 42,500 38,200 52,100 68,800 77,000 55,600 R Corporate (1 ) (1 ) (2) (4) (5) (1 ) (13) A 6,000 4,500 1,100 600 900 23,000 C 25,900 32,300 31,000 40,000 48,200 53,000 38,600 T Government (3) (5) (6) (1) (4) (5) (23) I 0 0 0 0 0 0 C 30,300 38,300 49,700 56,400 68,100 82,100 54,700 E Total (15) (16) (21) (15) (14) (19) (100)

1985-86 28,100 37,000 41,800 57,700 66,000 73;800 51,400 Totals (approx.)

29 November 1988 TYPE OF PRACTICE COMMENTS included membership in the Young Lawyers Fourteen percent of those responding consider One problem from which the survey suffers is Section Executive Council, membership in the themselves self-employed, 26 percent work for handling the variety of information needed to Law-Related Education and Law Day Com- small firms of less than 15 attorneys, 8 percent analyze the salaries of solo practitioners. This mittee and active involvement in the American are employed by medium-sized firms of 15 to 35 year, some concerns were addressed, but the Bar Association and its Young Lawyers Division attorneys, 17 percent are with large firms of more space constraints create difficulties for re- (ABNYLD), in which Mr. Fuller has served as than 35 attorneys, 13 percent placed themselves questing more specific information. Most attor- Membership chairan for Utah. He has also in the corporate counsel class, and 23 percent are neys are unwilling to spend more than a few served as an Executive Committee Member for government lawyers. Government lawyers in- minutes completing the questionnaire. the ABNYLD, Alternative Dispute Resolution cluded organizations that receive government The surveyors solicit any responses, com- Committee, the ABA/Law Student Division funds such as legal aid, legal defenders, etc. No ments, suggestions or complaints with this year's Representative for the University of Utah Col- class of attorneys is listed in the accompanying results. lege of Law and chairan of the Utah Young chart unless at least four responses were received Lawyers Section Standing Committee on Public from that class. For example, attorneys with Relations. In 1987, Mr. Fuller co-chaired the seven to 1 ° years of practice working for firms of Utah State Bar Young Lawyers Section Ad-Hoc 15 to 35 attorneys had so few responses that no PRESS RELEASE Committee on Fund Raising for the Utah Law salary is indicated on the chart. and Justice Center and also served as co-chair for the Law-Related Education and Law Day Com- SELF-EMPLOYED ATTORNEYS mittee. Mr. Fuller is the founder and coordinator ¡ About a dozen attorneys noted that they were of the Bob Miler Memorial Law Day Run. He 'l both self-employed and worked for a firm. The has received many awards and distinctions, in- surveyors took the response to mean that either cluding the ABA Law Student Division Silver these respondents were engaged in office- Key Award in 1984 and the Bronze Key A ward sharing arrangements or were autonomous in in 1983. their dealings with their associates. In either Chris' community involvement includes ser- case, for the purpose of the survey they were vice as a speaker for the Utah Law-Related considered self-employed only if there was some Education Project Speakers Bureau for Junior indication that they contributed something and Senior High Schools, paricipation in "Meet toward overhead expenses such as staff, rent, a Lawyer Fair" at Crossroads Mall in connection etc. with the Utah State Bar Young Lawyers Section On the average, the self-employed attorney Law Day activities, volunteer work at South pays $40,000 per year for overhead expenses. High School, teaching English as a second lan- This constitutes approximately 41 percent of his guage and service as a judge for the Utah Junior or her total gross receivables actually collected. and Senior High School Mock Trial Program. Thirty-eight percent of the self-employed attor- Chris has also served the community by coaching neys pay at least one-half of the amount they teen basketball and softball programs and by collect each year toward overhead. One attorney serving as Zone chairman for the Boy Scouts of from this group actually claimed a net loss for the America Sustaining Membership Enrollment. year of about $10,000. Christopher C. Fuller Chris is currently serving as a District Com- Not surprisingly, this group also had the most Named Utah Young missioner for the Sunrise District, Great Salt to say about the large number of attorneys joining Lake Council, Boy Scouts of America and has the legal profession each year and competition Lawyer of the Year served as a Scoutmaster. for clients. They also complained the most about Chris is a native of Baker, Oregon, where he collecting money and biling clients. attended Baker Senior High School from which The Young Lawyers Section of the Utah State he graduated in 1969. He is maried to Carolyn ACCURACY OF THE SURVEY Bar Association has named Christopher C. Gwen Lay of Baker, Oregon. Responses from 575 attorneys represents Fuller, 36, an associate in the firm of Snow, Special thanks to the Young Lawyers Section about 12 percent of the total Bar population. Christensen & Marineau of Salt Lake City, as A ward Committee for their work in makng this Statistically the response rate is sufficient to Utah Young Lawyer of the Year. This award is diffcult decision. provide an accurate survey when viewed as a presented annually by the Young Lawyers Sec- whole. However, within a certain class of attor- tion to an outstanding lawyer who is less than 36 neys four to eight responses or 1 percent of the years of age, or, if older than 36, has practiced total surveyed should probably not be relied upon law in the state for five years or less, and who has Proposed Bylaw Changes too eXtensively. Furthermore, in certain groups achieved a commendable degree of professional of attorneys, the salar actually decreases with competence and ability, has demonstrated pro- The Executive Council of the Young Lawyers more years of practice, which is almost certainly fessional integrity and high ethical standards, has Section, in its April meeting, approved proposed not correct. been involved in service to the profession, in- revisions in the Bylaws of the Young Lawyers A problem arises when a respondent's salary is cluding involvement in Bar activities and other Section which are herein submitted to the Section extremely low, such as when an attorney worked efforts on behalf of young lawyers, and who is membership for a vote. A ballot is enclosed with part time or only a few months of the year. Since involved in community service, both as a lawyer this issue of the Utah Bar Journal. Amendments" all responses received were included, those un- and as a citizen. to the Bylaws require a two-thirds vote of the usual salaries can skew the sample. En- Mr. Fuller graduated cum laude in 1976 from members of the Section returning ballots. "'couragingly, most responses from attorneys Brigham Young University with a degree in The following substantive changes are pro- working in law firms and government agencies Psychology and minors in Physical Education, posed. First, it is proposed that the Bylaws be were extremely close, often 15 to 20 responses History and English. Mr. Fuller graduated from changed to give the Section Officers the author- would be within 10 percent of one another. For the University of Utah College of Law in 1984, ity to establish and execute the policies and this reason, those responses are believed to be where he was a Wiliam H. Lear Scholar and programs of the Section. The current Bylaws more responsive than those from self-employed Aricles Editor for the Journal of Contemporar vest this power in the Executive CounciL. In view attorneys and corporate counsel where responses Law/Journal of Energy Law and Policy. of the fact that the Section Officers are elected by varied by more than 100 percent on occasion. Mr. Fuller's extensive Bar involvement has and accountable to the members of the Section 30 Vol. I, No.3 while the Executive Council members are ap- pointed by the Officers, it is proposed that final responsibility for the direction of the Section be

vested in those persons elected by and account- ¡------I able to the Section membership. In connection I BALLOT I I with this philosophical change, it is proposed I I UTAH STATE BAR that a provision be added to the Bylaws that the I I Offcers shall regularly report to the Executive YOUNG LAWYERS SECTION I I Council their policies, actions and expenditures. I I BYLAW CHANGES i It is also proposed that the Executive Council I shall coordinate and execute the programs and I affairs of the Section under the direction of the I I Officers of the Section. The Executive Council I may include all committee chairpersons and it is Shall the Bylaws of the Young Lawyers Section of the Utah State Bar I also proposed that the Executive Council include be revised as follows: I the ABA District Representative when that per- I son is a member of the Utah Young Lawyers 1. Shall the Section Offcers be given authority to establish and execute I I Section. the policies and programs of the Section with the requirement that Second, it is proposed that the provisions on I they regularly report to the Executive Council their policies, actions I removal of Officers be changed to require a and expenditures? two-thirds vote of the members of the Section I I voting in the immediately preceding election Yes D NoD I rather than a two-thirds vote of the Executive I CounciL. Since the Executive Council is ap- 2. Shall the Executive Council have the duty to coordinate and execute I pointed by the Officers, this appointed body may the programs and affairs of the Section under the direction of the I be reluctant to remove for cause those who ap- I Officers of the Section? pointed them. I I Third, it is proposed that the limitation on the Yes D NoD number of members on the Executive Council be I I abolished. The Bylaws currently provide that no 3. Shall the ABA District Representative be a member of the Section I more than 15 people may serve on the Executive Executive Council when that person is a member of the Utah Young I CounciL. The elimination of this ceilng is pro- Lawyers Section? I posed to give the Officers greater flexibility and I to allow more committee chairpersons to sit on Yes D NoD I the Executive CounciL. I Fourth, it is proposed that the Bylaw provision 4. Shall the limitation on the number of members of the Executive I that the Treasurer shall prepare a budget to be I Council be eliminated? I submitted to the Board of Bar Commissioners be I changed. The Treasurer wil now submit a bud- Yes D NoD I get to the Officers ofthe Section, who wil in tum I submit a budget to the Board of Bar Com- 5. Shall t~e provision on removal of Officers be changed to require a I missioners. two-thirds vote of the members of the Section voting in the immedi- I An overwhelming majority of the Executive ately preceding election rather than a two-thirds vote of the Ex- I Council approved these changes. The Executive ecutive Council I Council and the Offcers urge the members of the I I Section to return the enclosed ballot and to vote Yes D NoD in favor of these Bylaw changes. If you would I I like to obtain a copy of the Section's Bylaws, 6. Shall the Treasurer submit a proposed budget to the Officers of the I with the proposed changes included, or if you Section, who wil in tum submit a budget to the Board of Bar I would like further information before casting a Commissioners? I ballot, please contact Jerr Fenn, 10 Exchange I Place, P.O. Box 45000, Salt Lake City, UT Yes D NoD I 84145. Jerr's telephone number is 521-9000. I

I I I J I I I I~ ------Please return your ballot to the Utah Young Lawyers Section, Utah State Bar, 645 S. 200 E., Salt Lake City, UT 84111, within 10 days of receipt of this issue of the Utah Bar Journal.

31 November 1988 :t'$~~:ir' :'fA~~t.:'~llT::~ -',' . ,'.r- ~.;. ..i;L ~'. ~A! S CH 00 LSfi:t, .'. ~'C~;1~;$;&*~rfNl;'!1 . II ~ oo 1J IR . ~ '.,.:0,'# ~ "I~'., .."..t'f.I~, rT"'\l_.YÄei'tl' .'J'..~J~. ';. ...': ~ ".,~,t.:.. ..~' ,.., % ;;.;,,~..i..t"'~'~',,'£:-~~"'4i~l~

Computers Simplify Recruiting at U of U College of Law BYU Law School Establishes New By Jacquita W. Corry, Assistant Dean Legal Career Services and Alumni Relations Masters Program

To better facilitate the University of Utah Col- to submit a full transcript, can submit only his or The BYU Law School recently took a major lege of Law's employment programs, the Legal her grade point average. The accompanying step to enhance its status as a center for the study Career Services Office (LCS) has developed a grade-distribution chart shows the employer the of comparative law. The American Bar As- unique computer system referred to as RIMS- approximate range of the student within the class sociation approved the offering of a new master Recruitment Information Management System. of the applicant. A student's third option is to of comparative law degree by the Law SchooL. The two-year-old system enables us to pro- submit a resume only, with no information re- "The implementation of this new post- duce a professional packet of student resumes, garding law school grades. An inclusive GPA is graduate program designed for foreign-trained verified transcripts, and a grade-distribution not figured for the first-year class following the lawyers wil allow us to develop new ties with char that maps the performance of each class in first semester, since first-year students do not lawyers and law firms all over the world," ac- each semester. The packet also contains a list of receive a final grade in most classes until the end cording to Professor James H. Backman, the all students who have submitted resumes, orga- of the year. However, tentative first-semester faculty adviser for the program. "Our juris- nized by geographical preference for use by each grades and course medians are provided. This doctor students wil be able to rub shoulders with branch offce of a firm. This packet is sent to all fall only 26 students sent resumes with no grade lawyers trained in foreign legal systems, and our employers who participate in recruiting on cam- information, four sent only their GPAs, and 166 MCL students wil be able to learn about the pus in the fall and spring, and to employers who (85 percent) sent verified transcripts. American legal system in the unique BYU envir- agree only to receive and review students' re- All employers who participate in the recruiting onment." sumes. season on and off campus are entered in the The accreditation process by the American RIMS has been well received by employers. RIMS data fie. The fall list of employers in- Bar Association included a site visit and evalu- They often comment on the efficiency of pre- cludes those hiring second- and third-year stu- ation by a team chosen by the ABA from other screening student applicants on the basis of the dents; employers hiring first-year students are law schools. After their on-site evaluation visit RIMS presentation. The consistent organization included in the spring. the members of the ABA team concluded that of common information makes it easier and Students can view the names of participating BYU, probably more than any other law school quicker to compare performance and to decide law firms on computer screens in the law in the country, was equipped to offer a graduate whom to interview. school's student computer lab. The computer program for foreign lawyers. Citing the abun- This program also makes it possible for the selection process is very simple--ven a student dance of foreign language skills possessed by LCS Office to serve a wider range of employers with no computer experience can make choices members of the student body, the visitation team and to give them access to a well-ordered re- in a few minutes. Students may submit resumes concluded that available support systems for cruiting process in the spring as well as fall. to any number of employers for a fee of $.25 foreign students were outstanding. Local employers interview on Saturdays in the each. Students enrolled in the master of comparative fall, which allows outside recruiters to interview Since implementation of RIMS, a larger per- law program wil receive the MCL degree on weekdays on campus in September and October. centage of the student body has chosen to par- completion of a minimum of 24 credit hours A questionnaire is sent to paricipating employ- ticipate in on- and off-campus recruiting. earned during at least two semesters in residence ers after each session asking for a report on' Statistics for fall 1988 reveal that 49 percent of following completion of legal training in their interviews, offers and acceptances of employ- the third-year class and 51 percent of the second- home country. Participants will take a special ment. This assists employers in tracking their year class chose to submit resumes through the introduction to American law course with other hiring histories with our law school and helps RIMS program. Fewer third-year students par- MCL students. All other courses will be selected them determine their future recruiting strategies. ticipate since increasing numbers of first- and from the standard Law School curriculum. second-year students are permanently employed "By utilizing our standard course offerings as RIMS HELPS following summer clerkships. More people fur- the foundation for the MCL program we will be STUDENTS WITH RESUMES ther down in each class are being interviewed able to provide comparative insights throughout RIMS gives students access to a convenient than ever before, and more than one-third of each the curriculum," Backman added. "Further, by and inexpensive computer system at the law class finds permanent employment through the limiting the enrollment in the MCL program to schooL. They control the contents and format of RIMS-programmed recruiting. no more than eight students per year we can their resumes. Many students prepare the first A total of 9,953 student resumes were sent to ensure that the program participants receive the draft on computers that interface with the LCS employers this falL. Almost 7,250 went to on- individual attention that this new educational system. The LCS Offce encourages use of a campus recruiters, 76 of whom were out-of-state experience wil require." one-page resume preferred by employers, but employers. Although approval from the American Bar students may adapt their resumes to their own The number of participating employers has Association was received only in late May, four requirements. increased steadily since RIMS was imple- students were able to complete the application For $6, a student can have his or her resume mented. The 1987-88 season brought more than process for the fall semester 1988. The four I entered into the RIMS system and receive a 150 recruiters to the campus. This year 105 students currently enrolled in the program are printed originaL. The resume in the data fie is employers participated in the fall season alone. from Japan, the Peoples Republic of China, maintained throughout the student's three years The size, specialties, and geographical represen- Cameroon and Canada. of law school and beyond; updates and changes tations of employers have broadened, offering are made for an additional fee. students expanded opportunities. RIMS allows students to present or withhold grade information. A student who does not wish

32 Vol. l, NO.3 II æ1GDCLE~. .. '. CALENDAR'. '. ;: . . . - .:. .,. ~. ~"". . .":

ALTERNATIVE DISPUTE ERISA BASICS PART I: GRAPPLING WITH THE RESOLUTION A PRIMER ON ERISA ISSUES GOVERNMENT IN Principles, Techniques A two-day live via satellite program on the BANKRUPTCY COURT and Strategies Federal Employee Retirement Income Security A live via satellite program covering the Act, providing a threshold knowledge of the Act peculiarities of litigation with the government in Presented by a top-rate faculty, this live pro- and applicable regulations. This program is es- Bankruptcy Court and the development of effec- gram wil include substantive presentations, sential for a general practitioner as well as a tive strategies for litigators and general prac- workshops and complete reference materials. lawyer working in pension or labor law. Includes titioners. Prevent being embarrassed or costing Topics wil include commercial and consumer recent case law of special interest and practice your client money due to unfamilarity with the arbitration, mediation and negotiation. Skils in techniques. Program presented in two parts on special prerequisites of litigation against the being the arbitrator or mediator, and in dealing dates indicated. government. with arbitrators and mediators will be em- phasized. Includes luncheon. Date: December 1, 1988 Date: December 6, 1988 Place: Utah Law and Justice Center Place: Utah Law and Justice Center Date: November 3, 1988 Fee: $135.00 For One Day and $250 Fee: $160.00 Place: Utah Law and Justice Center For Both Days Time: 8:00 a.m. to 3:00 p.m. Fee: $35.00 Time: 10:00 a.m. to 2:00 p.m. Time: 8:30 a.m. to 5:00 p.m. PERSONAL ESTATE AND TAX ERISA BASICS PART II: PLANNING FOR THE ACCOUNTING FOR LAWYERS A PRIMER ON ERISA ISSUES SMALL-BUSINESS OWNER A live via satellte program on essential ac- Date: December 8, 1988 A live via satellite program covering new tax counting principles and procedures, this program Place: Utah Law and Justice Center ramifications essential to the personal estate wil be especially useful for small finn prac- Fee: $135.00 For One Day and planning and tax planning needs of small- titioners and new attorneys. Further information $250.00 For Both Days business owners and their counseL. is available through the CLE Department. Time: 10:00 a.m. to 2:00 p.m. Date: December 13, 1988 November 15, 1988 Date: Place: Utah Law and Justice Center Utah Law and Justice Center Place: Fee: $160.00 Fee: $160.00 Time: 8:00 a.m. to 3:00 p.m. Time: 8:00 a.m. to 3:00 p.m.

CLE REGISTRATION FORM DATE TITLE LOCATION FEE

D Nov. 3 Alternative Dispute Resolution L & J Center $35

D Nov. 15 Accounting for Lawyers L & J Center $160

D Dec. i ERISA Basics Part 1: A Primer on ERISA L & J Center $135 For I Day Issues $250 For Both Days

D Dec. 6 Grappling With the Government L & J Center $160 in Bankruptcy Court

D Dec. 8 ERISA Basics Part 2: A Primer on ERISA L & J Center $135 For I Day Issues $250 For Both Days

D Dec. I3 Personal Estate and Tax Planning for L & J Center $160 the Small-Business Owner

Registration and cancellation policies: Please register in advance. Those who register at the door are always welcome, but cannot always be guaranteed complete materials on seminar day" If you cannot attend a seminar for which you have registered, please contact the Bar as far in advance as possible. For most seminars, ~efunds can be arranged if you cancel at least 24 hours in advance" No refunds can be made for live programs unless notification of cancellation is received at least 48 hours in advance. Total fee(s) enclosed $ Make all checks payable to Utah State Bar/CLE

Name Phone Firm or Company

Address City, State and ZIP "American Express/ MasterCardlVISA Expiration Date

33 November 1988 ~Iü)~

considered for such office should promptly BOOKS FOR SALE For ads,information please contact concerning Paige Holtry classified at the contact Susan H. Clawson, Personnel Mane Complete set of current Utah Code Utah State Bar, 645 S. 200 E., Salt Lake ager, at the Office of the Co~rt Admin- books. Please make offer-eall 355-01 37. City, UT 841 11, or phone 531 -9077. istrator. Application packets will then be forwarded to prospective candidates and For sale. Complete set Pacific Digest must be received no later than 5:00 p.m., 2nd, Brown and Blue Volumes, complete November 14, 1988. with current pocket parts. Best offer. Call 566-7737. POSITIONS SOUGHT Licensed Utah attorney seeks opportunity OFFICE SPACE AVAILABLE 330 E. 400 S. Attorney wanted to share Must sell 1 complete and updated set of to associate with established attorney or Rabkin and Johnson current legal forms firm in an office share or association situ- large office suite with two other attorneys. $300 per month. Utilities and telephone with tax analysis. Contact Jules Weaver at ation. I amjust starting out in solo practic~, 359-3500. but have over two years of litigation experi- system included. Free parking. R,ecep- tionist, copier, word processor and library ence. Also wiling to discuss working on available. Call 322-5556. SOFTWARE FOR ATTORNEYS your overflow or other arrangements as may Necessary programs to organize your be needed. For further information, please Hintze, Brown, Faust, Blakesley and own practice: .. ' contact the Utah State Bar. McPhie, an association of sole prac- Time tracking, billing, accounting, client database, transcript text retrieval, col- POSITIONS AVAILABLE titioners, has office space availabl.e for an attorney with an established practi~e. Our lections, word processing, mailing, tax Expanding estate planning a.nd tax firm i~ offices are located at 3450 S. Highland planning, file search and other valuable seeking a full-time attorney with ~-3 years software. experience. Send resume t~ Mitton and Drive Suite 301. A receptionist and the use of co~ference and storage areas are in- Order from Bernoulli Collection, see Burningham, 36 S. State, Suite 1200, Salt back cover. Lake City, UT 84111. cluded. If interested, please contact Dave Wayment at 484-7632. Also available, Utah State Code, $129. 1-800-234-0408. State Farm Insurance Company seeks a Share nice office with South Ogden law qualified attorney for associate house ~oun- sel position in the Murray area. Applicants firm. Referral work, flexible arrangements must be admitted to the Utah Bar. One to possible. 479-4777. three years' experience is preferred. Liti- Furnished office; overhead expense can gation experience is highly desirable. Send resume and salary requirements by Novem- be covered by conducting legal research, ber 30, 1988, to Richard K. Spratley, at make court appearances, etc. Good oppor- 4551 Atherton Drive, Salt Lake City, UT tunity to build law practice. Need attorney with 5 years' legal experience. Snow and 84123. EEO/M-F. Halliday, 261 E. 300 S., Salt Lake City, Utah 84111. Contact John Spencer Snow, Nine-lawyer downtown law firm. wi~h 364-4940. litigation and commercial law practice ~s seeking an associate with 2-5 years' experi- SERVICES ence. Send resume to Utah State Bar, 645 S. For fast, accurate typing and word pro- 200 E., Box H, Salt Lake City, UT 8411 1. cessing, call Diane at 484-4787. Word- Perfect, true letter quality printer with legal courier 10 print. Close to downtown. Gordon R. Hall, Chief Justice of the Utah Pickup and delivery available for any valley Supreme Court, has announced,~he .o~ening location. of the application period for a Judicial v~- cancy in the Second Circuit C~urt. This Need to fill a legal assistant position? Call vacancy wil result from the appointment of Job Bank, Joy Nunn, 521-3200. Job Bank is Judge Stanton M. Taylor to the District a service to the legal community by the Court bench. The Second Circuit includes Legal Assistants Association of Utah Weber, Davis and Morgan counties. Appli- cations must be received no later than 5:00 (LAAU). No fees are involved. p.m., November 14, 1988, at the Office of the Court Administrator, 500 E. 230 S., Suite 300, Salt Lake City, UT 84102. Those wishing to recommend possible candidates for judicial office or those wishing to be

Someday a roomful of books wil be replaced by the legal library of the Bernoull Collection

.'

iii

Today IOMEGA offers to Bernoull Box users the first title The Legal Code of the State of Utah Supported by powerful WordCruncher text retrieval software. a compendium of the entire Utah Legal Code resides at your fingertips" Be assured of a thorough search" Every reference in the code comes to you" You can easily access cross references by subsequent searches" You can do all this in record time. reserving your valuable time for more significant tasks" Text is available for direct use with a word processoc To order. cali (8011 ~I)~"524-2000" VISA or MasterCard accepted" 605 N" Eddie Rickenbacker Drive 1 Salt Lake City. Utah 84116 I A division of i-MEG. Corporation Other Titles: Business Softare Presentation Software Clip Art WordPerfea Manuals Great Authors Religious Literature Project Management Software Shakespeare, Thoreau. Emerson, Bible (King James and Inspired versionsJ. Software for Attorneys Franklin. Hawthorne, James. Jefferson, Jesus the Christ, Articles of Faith. Statistical Analysis Software london, Melvile. Twain. Whitman Lectures and Teachings. Miracle of Census Data The Constitution Papers Forgiveness. History of the Church English Style Guides

Uta State Bar 645 South 200 East BULK RATE U.ß" POSTAGE Salt Lae City. Uta 84 i i i l"Í)". Wi L.L.i,:)m D. Hoi.?,. 50 South Ma i n Street ~9vv Paid Sa Lt Lake City, UT 84144 SALT LAKE CITY, UT PERMIT NO" 844