THE JANUARY 2009 • VOLUME 78 • NO. 1 OURNAL of the KANSAS BAR ASSOCIATION J www.ksbar.org 2009 IN LAW YERS THE LEGISLATURE D M P L THE JANUARY 2009 • VOLUME 78 • NO. 1 The Journal Board of Editors Communications Director: OURNAL of the KANSAS BAR ASSOCIATION Susan McKaskle www.ksbar.org Catherine A. Walter, Chair Topeka Anne L. Baker Topeka J Terri Savely Bezek Topeka Focus Boyd A. Byers Wichita Toby J. Crouse Overland Park Hon. Jerry G. Elliott Topeka Deception and Professor J. Lyn Entrikin Goering Topeka 30 Connie S. Hamilton Topeka Misrepresentation Evan H. Ice Lawrence Katharine J. Jackson Manhattan in the Practice of Michael T. Jilka Overland Park Lisa R. Jones Wichita Law Casey R. Law McPherson By Brian J. Moline Michelle Reinert Mahieu Dodge City Hon. Thomas E. Malone Topeka Julene L. Miller Topeka Hon. Robert E. Nugent Wichita Hon. Lawton R. Nuss Topeka Professor John C. Peck Lake Quivira Items of Interest Regular Features Richard D. Ralls Kansas City, Mo. Teresa M. Schreffler Lawrence 07 Executive Director’s Notes 06 President’s Message Richard H. Seaton Sr. Manhattan Richard D. Smith Topeka 09 Advance Notice: Elections for 08 Young Lawyers Section News 2009 KBA Officers and Board Marty M. Snyder Topeka 12 A Nostalgic Touch Matthew A. Spurgin Topeka of Governors Issaku Yamaashi Overland Park 17 Law Students’ Corner Rachael K. Pirner, BOG liaison Wichita 10 2009 Kansas Bar Association Awards 18 Members in the News 15 Why Should Lawyers Join a 19 Obituaries Catherine A. Walter, chairperson, Section of the Kansas Bar [email protected] Association? 29 Law Practice Management Susan McKaskle, communications director, Tips & Tricks [email protected] 15 KBA Sections Seek Volunteers 42 Appellate Decisions 20 Volunteer for the Elder Hotline 46 Appellate Practice Reminder 20 Recognition of 2008 Journal OUR MISSION Authors 58 Classifieds 21 2008 Outstanding Speakers Recognition The Kansas Bar Association is KBA SEEKING HISTORICAL ITEMS FOR dedicated to advancing the pro- 28 Thinking Ethics DISPLAY AT LAW CENTER fessionalism and legal skills of lawyers, providing services to its 39 Personal Injury Law Meets members, serving the commu- Medicaid Law: K.S.A. 39-719a A unique aspect of the newly enhanced nity through advocacy of public Recoveries in Kansas Kansas Law Center is a “law museum” that policy issues, encouraging public By Robert R. “Bob” Hiller Jr. will house and display historical law memo- understanding of the law, and rabilia. The museum offers an opportu- promoting the effective admin- 56 Notice of Consideration of nity for members and friends of the profes- istration of our system of justice. Reappointment of Magistrate sion to exhibit their personal pieces of law Judge and Invitation for Public history for all to enjoy. If you or your firm KANSAS BAR Comment ASSOCIATION has any historical legal treasures to donate, 1882 www.ksbar.org whether on loan or as a permanent addi- tion to the collection, please contact KBA Executive Director Jeffrey Alderman at [email protected] or call (785) 234-5696. www.ksbar.org The Journal of the Kansas Bar Association | January 2009 3 1882 KANSAS BAR ASSOCIATION Need clients? Need increased visibility? the KANSAS BAR ASSOCIASTIONi’S gn Up Lawyer Referral Service Join LRS online at www.ksbar.org/LRS WHY IS THE LRS GOOD FOR BUSINESS? “I participated in the KBA Lawyer Referral Service for much of the nearly 20 years that I practiced in Dodge City. During the time I was involved with the LRS, I also advertised intensively in the local telephone di- rectory. Although paid advertising and LRS referrals both generated a substantial volume of inquiries from potential new clients, I found that LRS-generated clients tended to bring more ‘solid’ legal matters and were more reliable than those who initially responded to phone book advertising.” “ e eff ectiveness in my experience of LRS referrals is demonstrated by my having sent a check to LRS for its 10 percent referral fee of nearly $54,000.” ~ Henry Goertz, Goertz Law Offi ce, Dodge City Your trusted legal source. MEETS ABA STANDARDS FOR LAWYER REFERRAL AMERICAN BAR ASSOCIATION THE RIGHT CALL FOR THE RIGHT LAWYERTM TABLE OF CONTENTS CONTINUED Articles 13 Need Help? We are Here for You! ... serving the citizens of Kansas and By Wally Underhill the legal profession through funding charitable and educational projects that foster the welfare, honor, and integrity of the legal system by improving its accessibility, equality, and uniformity, and by enhancing public opinion of the role of lawyers in our society. 16 Chautauqua County’s Plight Kansas Law Center Highlights a Quiet Truth 1200 SW Harrison St. By Sen. Derek Schmidt Topeka, Kansas 66612-1806 Telephone: (785) 234-5696 Fax: (785) 234-3813 Web site: www.ksbar.org OFFICERS Sarah Bootes Shattuck Ashland President 22 2009 Lawyers in the John D. Jurcyk Roeland Park Legislature President-elect James D. Oliver Overland Park Secretary-Treasurer Bruce W. Kent Manhattan Immediate Past President BOARD OF TRUSTEES Hon. Richard L. Bond Overland Park Cover photo: Kansas Senate Chambers Robert M. Collins Wichita Cover photo and layout by Ryan Purcell Daniel H. Diepenbrock Liberal James C. Dodge Sublette Kenneth J. Eland Hoxie Joni J. Franklin Wichita Terence E. Leibold Lawrence David K. Markham Parsons The Kansas Bar Association Edward J. Nazar Wichita Randall J. Pankratz Newton H. Douglas Pfalzgraf Wellington Hon. Ronnie L. Svaty Ellsworth is J. Ronald Vignery Goodland James C. Wright Topeka Amy Fellows Cline Wichita Young Lawyers Representative here for Katherine L. Kirk Lawrence Kansas Association of Justice Representative Susan G. Saidian Wichita YOU Kansas Women Attorneys Association Representative Vaughn L. Burkholder Overland Park Kansas Association of Defense Renew now to keep your benefits coming! Counsel Representative Sara S. Beezley Girard Kansas Bar Association Representative Michael P. Crow Leavenworth Kansas Bar Association Representative David J. Rebein Dodge City Kansas Bar Association Representative EXECUTIVE DIRECTOR Jeffrey J. Alderman Topeka MANAGER, PUBLIC SERVICES To renew your membership, please go to our Web site at: Meg Wickham Topeka http://www.ksbar.org/membership/index.htm www.ksbar.org The Journal of the Kansas Bar Association | January 2009 5 FROM THE PRESIDENT THOMAS E. “TOM” WRIGHT So Now You Remember! ost trial lawyers believe that “war stories” are good lance attendants, and several others testified about the hospi- teaching devices. So let me pass along one of my talization of the patient. own and we’ll call it educational. It was educational The pathologist took the stand to testify as to the time and Mfor me anyway. cause of death. This all sounded pretty tame. He read his Many lawyers know the case of Roberson v. Counselman, 235 report word by word. During a lull in my “powerful” cross- Kan. 1006, 686 P.2d 149 (1984), as the first loss-of-a-chance- examination the witness suddenly stopped reading. He fished to-survive case in Kansas. As trial counsel, I remember it for in his file. He looked at some note or something and appeared one of those wish-I-could-disappear trial moments. befuddled. Then he looked up and said, “I am sorry but I think If you read the Kansas Supreme Court case you will learn I made a mistake in my testimony earlier. I think I must have that my client, Dr. G. Ed Counselman was a chiropractor and misread my notes. What my notes really indicate is that Mr. that the plaintiff was his patient’s widow. The decedent, Mr. Roberson suffered his myocardial infarction at 4 p.m., the day Richard Roberson suffered from a known heart condition as before, and not at 4 a.m., the morning of his hospitalization.” well as from an arthritic spine. That 12-hour difference meant that the heart attack -oc One afternoon around 4 p.m. my client gave a chiropractic curred in my client’s office — not at the decedent’s home. My treatment to Roberson for left shoulder and left side pain. worthy adversary, Mr. Jerry Levy, laughed out loud. The jury At home later that same evening Roberson complained of stared at me to see my response. I couldn’t hide. All I could continuing pain in those same areas. His widow said that he hope to do was cause no further damage. In my rush to get off would not follow her advice and go to the hospital or call the my feet and into my chair, I said something very emphatically cardiologist because “he instead relied on what his chiroprac- but completely off the wall, like “That’s right, isn’t it, Doctor?” tor told him.” She related a conversation that she had with That was certainly not much of a response but it did buy some the decedent where he told her that Counselman was a doctor time to try to find a new approach. and he thought it was just a “nerve out of place.” The chiro- For a variety of reasons the jury returned only a moderate practic records provided no clarification. sized verdict, which wasn’t large enough to cause the insur- His widow found Roberson unresponsive in his separate ance company to appeal. bedroom the next morning. He was rushed to the hospital Courtrooms are like minefields. Safe looking ground may where he died. A suit was promptly filed by the widow against hide real danger. the chiropractor for his failure to refer Roberson to the known Sen. Derek Schmidt has written an article in this edi- cardiologist the afternoon of the treatment. tion about the need for a lawyer in Chatauqua County. The Various expert witnesses expressed opinions that the dece- Chataqua County experience is not unique.