Volume 79 u No. 7 u March 8, 2008 ALSO INSIDE • Solo and Small Firm Conference Calendar of Events OBA CLE Seminars THETHE OBAOBA SUMMERSUMMER GET-A-WAYGET-A-WAY APRIL 3 Oklahoma Merit Protection Proceedings: Transition to the Electronic Age - OKC 6 hrs. of MCLE credit, including 0 hrs. of ethics Oklahoma Bar Center 1901 N. Lincoln Blvd. June 19-21, 2008 APRIL 4 Tanglewood Resort Spanish for Legal Professionals - OKC ComeCome 6.5 hrs. of MCLE credit, including 0 hrs. of ethics Oklahoma Bar Center on Lake Texoma 1901 N. Lincoln Blvd. && EnjoyEnjoy Healthcare Provider Liability - Tulsa 6 hrs. of MCLE credit, including 1 hr. of ethics Renaissance Hotel 6808 S. 107th East Ave. thethe Fun!Fun! APRIL 11 Healthcare Provider Liability - OKC 6 hrs. of MCLE credit, including 1 hr. of ethics Oklahoma Bar Center OBA Solo & 1901 N. Lincoln Blvd. Elder Law Essentials - Tulsa 6 hrs. of MCLE credit, including 1 hr. of ethics Read the story inside Small Firm Renaissance Hotel 6808 S. 107th East Ave. APRIL 18 this issue. Review the Conference Elder Law Essentials - OKC sessions offered. Fill APRIL 17 6 hrs. of MCLE credit, including 1 hr. of ethics out the registration Oklahoma Bar Center YLD Midyear Meeting Hot Topics in Mediation for Advocates 1901 N. Lincoln Blvd. form today. Online and Mediators - OKC Estate Planning, Probate and 6 hrs. of MCLE credit, including 1 hr. of ethics registration at Oklahoma Bar Center Reinventing Your Law Practice - Tulsa 1901 N. Lincoln Blvd. 6 hrs. of MCLE credit, including 0 hrs. of ethics www.okbar.org Trust Section Midyear Meeting Renaissance Hotel 6808 S. 107th East Ave. APRIL 25 Check registration times Reinventing Your Law Practice - OKC at www.okbar.org 6 hrs. of MCLE credit, including 0 hrs. of ethics Oklahoma Bar Center Plan a get-a-way with the OBA! You may register online at 1901 N. Lincoln Blvd. www.okbar.org or call 405.416.7006 April 2008 Spend some vacation time with your family and still get all your CLE for the year Calendar of Events OBA CLE Seminars THETHE OBAOBA SUMMERSUMMER GET-A-WAYGET-A-WAY APRIL 3 Oklahoma Merit Protection Proceedings: Transition to the Electronic Age - OKC 6 hrs. of MCLE credit, including 0 hrs. of ethics Oklahoma Bar Center 1901 N. Lincoln Blvd. June 19-21, 2008 APRIL 4 Tanglewood Resort Spanish for Legal Professionals - OKC ComeCome 6.5 hrs. of MCLE credit, including 0 hrs. of ethics Oklahoma Bar Center on Lake Texoma 1901 N. Lincoln Blvd. && EnjoyEnjoy Healthcare Provider Liability - Tulsa 6 hrs. of MCLE credit, including 1 hr. of ethics Renaissance Hotel 6808 S. 107th East Ave. thethe Fun!Fun! APRIL 11 Healthcare Provider Liability - OKC 6 hrs. of MCLE credit, including 1 hr. of ethics Oklahoma Bar Center OBA Solo & 1901 N. Lincoln Blvd. Elder Law Essentials - Tulsa 6 hrs. of MCLE credit, including 1 hr. of ethics Read the story inside Small Firm Renaissance Hotel 6808 S. 107th East Ave. APRIL 18 this issue. Review the Conference Elder Law Essentials - OKC sessions offered. Fill APRIL 17 6 hrs. of MCLE credit, including 1 hr. of ethics out the registration Oklahoma Bar Center YLD Midyear Meeting Hot Topics in Mediation for Advocates 1901 N. Lincoln Blvd. form today. Online and Mediators - OKC Estate Planning, Probate and 6 hrs. of MCLE credit, including 1 hr. of ethics registration at Oklahoma Bar Center Reinventing Your Law Practice - Tulsa 1901 N. Lincoln Blvd. 6 hrs. of MCLE credit, including 0 hrs. of ethics www.okbar.org Trust Section Midyear Meeting Renaissance Hotel 6808 S. 107th East Ave. APRIL 25 Check registration times Reinventing Your Law Practice - OKC at www.okbar.org 6 hrs. of MCLE credit, including 0 hrs. of ethics Oklahoma Bar Center Plan a get-a-way with the OBA! You may register online at 1901 N. Lincoln Blvd. www.okbar.org or call 405.416.7006 April 2008 Spend some vacation time with your family and still get all your CLE for the year Productivity breakthrough: Westlaw Legal Calendaring Westlaw® Legal Calendaring automatically calculates your Know with confidence you’ll never miss key dates again – litigation deadlines based on the applicable federal, state no matter how often they change. Even link directly to the and local court rules – then adds the information directly relevant court rule governing any of the events on your to your Microsoft® Outlook® calendar. As dates change, calendar. Westlaw Legal Calendaring: a powerful tool you can recalculate accordingly – and repopulate your for managing your cases, your time and your priorities. calendar with the updates. In many jurisdictions, docket For more information, call our Reference Attorneys at information can also be tracked and captured. 1-800-733-2889 (REF-ATTY). © 2008 West, a Thomson business L-337828/2-08 Better results faster. 746-2+1))8-2+&#..#5 The 2008 ABA Section of Business Law Spring Meeting will be held April’08 10-12, 2008, in Dallas at the Hilton Anatole. Each year, participants say that the ABA Section of Business Law Spring Meeting is the highlight of their annual training and education. Over 80 educational programs and forums on all aspects of business law ensure a rich agenda that can fill your annual CLE requirements in one meeting. Committee and subcommittee meetings provide prime networking and business development opportunities in highly targeted practice areas. Annual Reviews of Key Business The Pressing Issues Facing Business Emerging Areas of Global Business Law Developments Lawyers Today Law Practice • Alternative Energy and Natural Resources • Current Tensions in Shareholder and Board • Tax Issues in Cross-Border Acquisitions • Antitrust Relationships • Cross-Border Due Diligence • Banking Law • Private Equity, Funds and Banks Investing • Identifying and Mitigating Credit Risk in • Business and Corporate Litigation in Financial Institutions Cross-Border Financing Transactions • Business Bankruptcy • Anatomy of a Middle Market Private • Secured Transactions South of the Border Equity Deal • Corporate Governance • Cross-Border Issues in Internal • Venture Capital and Private Equity Funds – • Cyberspace Law Investigations New Issues for GP/LP Negotiation • Developments in Business Finance • Selected Aspects of Cross-Border M&A • Alternative Dispute Resolution Techniques • Employee Benefits & Executive for Use In Commercial Finance Transactions Compensation • Representing Creditors in Consumer • Environmental Law Bankruptcies Three Years After BAPCPA • LLC Case Law Developments • Consumer Mortgage Industry in the Wake -LONQS@MS • Patent Law of the Subprime Mortgage Meltdown (D@CKHMDR • Tax • Data Security Breaches and Theft Meeting Registration: March 20, 2008 • Executive Compensation Hotel Reservations: March 20, 2008 • Employee Benefits in Mergers & Acquisitions 6DFHRSDQMNV@S • Career and Practice Development VVV@A@ATRHMDRRK@VNQF • Business Bankruptcy and Corporate Restructuring For more information, call the Section office at 312-988-5588 or go to www.ababusinesslaw.org. 490 The Oklahoma Bar Journal Vol. 79 — No. 7 — 3/8/2008 DEPARTMENTS HEME T : 492 From the President PRETRIAL LITIGATION 567 From the Executive Director Editor: Julia Rieman 569 Ethics/Professional Responsibility 576 Oklahoma Bar Foundation News 579 Access to Justice contents 581 Young Lawyers Division March 8, 2008 • Vol. 79 • No. 7 582 Calendar 587 For Your Information FEATURES 589 Bench and Bar Briefs 495 Auto Accidents from the 593 In Memoriam Plaintiff’s Perspective By Derek K. Burch 568 Editorial Calendar 503 A General Overview of 600 The Back Page Jury Instructions and Verdict Forms in Civil Cases in Oklahoma By Sharon Thomas 509 Discovery Rule 26 — A Practitioner’s Guide to State and Federal Rules pg. 495 By Ed Abel and Lynn B. Mares Pretrial 519 BELL ATLANTIC CORP. V. TWOMBLY: Litigation A New Definition of Notice Pleading for Federal Courts By Charles B. Goodwin 525 Making Sure You Can Use the ESI You Get: Pretrial Considerations Regarding PLUS Authenticity and Foundation 557 OBA Summer Get-A-Way: By Eric S. Eissenstat Solo and Small Firm Conference 537 Taking an ‘Expert’ Witness’ OBA YLD Midyear Meeting Deposition OBA Estate Planning, Probate By Robert D. Hart and and Trust Section Midyear Meeting Christopher D. Wolek By Jim Calloway 543 Relevance & Reliability: What All Expert Testimony Needs pg. 557 By Michael Woodson OBA Summer Get-A-Way 547 Using Focus Groups to Improve Trial Presentations By Ted Sherwood 551 Preparing for Trial, or What I Didn’t Get to Do on My Spring Break By Bradley C. West Vol. 79 — No. 7 — 3/8/2008 The Oklahoma Bar Journal 491 FROM THE PRESIDENT Abuses in the Legal Profession Cause Concern By Bill Conger As many of you know, I left private practice LAWYER’S CREED several years ago to become general counsel for I revere the Law, the System and the Oklahoma City University and to teach at its School Profession, and I pledge that in my private and of Law. Many times I have been asked what I miss professional life, and in my dealings with members the least about private practice. Keeping time and of the Bar, I will uphold the dignity and respect of the billable hour has to be number one on the list, each in my behavior toward others. but the increasing lack of civility and shameful ethi- In all dealings with members of the Bar, I will cal behavior in pretrial practice ranks right up be guided by a fundamental sense of integrity there. and fair play. Nothing is more important and central to the liti- I will not abuse the System or the Profession by pursuing or opposing discovery through gation process than the search for an ultimate arbitrariness or for the purpose of harassment achievement of truth. The search for truth is what or undue delay. lawyers are charged with — and yet lawyers must I will not seek accommodation for the balance this with the duty to zealously advance the rescheduling of any Court setting or discovery interests of their clients and protect the confidential- unless a legitimate need exists.