Vol. 21 No. 5 Sep/Oct 2008
Vol. 21 No. 5 Sep/Oct 2008
COVER: Fall in Mueller Park, by first-time contributor Sam Newton of Salt Lake City, Utah
Vol. 21 No. 5 Sep/Oct 2008
COVER: Fall in Mueller Park, by first-time contributor Sam Newton of Salt Lake City, Utah
I would be grateful if you would inform your readers that in my article that appeared on page 14 of the July/August 2008 edition, entitled The Commercial Loan Guaranty – Types and Techniques, I misstated the holding in Machock v. Fink, 137 P.3d 779 (Utah 2006). There, although the Supreme Court ruled that a guarantor is protected by the anti-deficiency statute (Section 57-1-32), it affirmed that the single-action rule does not apply to guarantees. I apologize to all and sundry for any inconvenience my error may have caused.
Two years ago, the Appellate Practice Section sponsored an appellate haiku and limerick contest. Fully expecting our efforts to be met with gales of laughter and no submissions of actual poetry, we billed it as the “first (and maybe last)” poetry contest. As it turned out, we received quite a few submissions and the contest was great fun.
by Nathan D. Alder
“No road is long with good company.”
– Turkish proverb
Good relationships make a big difference in our profession. We benefit from many wonderful, cordial, and professional relationships as lawyers. These professional relationships often lead to friendships that extend well beyond the closing of a file. We have the opportunity to handle matters, even litigation, with lawyers we consider to be good friends. Often, we can resolve cases sooner, and to our client’s improved satisfaction, because of our professional relationships.
Riding High With Your Mediator: The Do’s and Don’ts of Effective Mediation Advocacy
by Tracy L. Allen
Perhaps it’s age; maybe it’s experience. Name the cause but the result is all the same. There are just certain things lawyers should and shouldn’t do when mediating. While nothing is absolute, what we’re about to discuss should be “the norm,” not “the exception.”
As lawyers, we pride ourselves on being ahead of the curve, out in front, ready to catch and throw whatever comes our way. We think we know just about everything there is to know about our cases and our clients, and we’d like to believe we are right. Humility left many of us after we walked through the law school doors and some haven’t ever bothered to look back. Using a mediator to settle or negotiate is something many feel is an unnecessary, time-consuming, and expensive exercise. But here we are, a sea of mediators with daily work, so there must be something to this mediation thing after all.
ERISA: License to Cheat, Lie, and Steal for the Disability Insurance Industry
by Loren M. Lambert
There is an increasingly popular notion that modern litigation is an evil that must be stamped out at all costs. This belief has not only been propounded by the uninformed, but has been championed by some of our leading legal scholars, judges, and legislators. They have sought to rarefy litigation by creating unnecessary legal complexity, stripping litigation of its essential components, gutting administrative agencies of staff and money, limiting attorneys fees, and completely eliminating adjudication of some claims.
A Primer on the National Vaccine Injury Compensation Program
by Christopher J. Rogers
In recent months, you may have seen various news stories debating an alleged connection between childhood vaccines and autism.1 These news stories have raised the specter of vaccine injury nationwide. Vaccine injury claims are distinct from traditional tort actions and this article is an effort to help navigate the legal minefield of vaccine injury claims.2
An Open Letter to the Newly Established Utah Supreme Court Professionalism Counseling Program Board
by Eric K. Johnson
Introductory Note: At the Utah State Bar 2008 Spring Convention in St. George, the Utah Supreme Court announced issuance of Utah Supreme Court Standing Order No. 7 (effective April 1, 2008), establishing a program of “professionalism counseling” for members of the Utah State Bar, overseen by “a board of five counselors (the Board) to: (1) counsel members of the Bar, in response to complaints by other lawyers or referrals from judges; (2) provide counseling to members of the Bar who request advice on their own obligations under the Court’s Standards of Professionalism and Civility (hereinafter the “Standards”); (3) provide CLE on the Standards; and (4) publish advice and information relating to the work of the Board.”
John Hill, Public Defenders’ Long-Time Leader, Retires
In the landmark Supreme Court case of Gideon v. Wainwright 372 U.S. 335 (1963), the Court concluded that the Sixth and Fourteenth Amendments required states to provide an attorney to indigent defendants in cases involving serious crimes. Nine years later in Argersinger v. Hamlin, 407 U.S. 25 (1972), a unanimous Court extended that right to cover defendants charged with misdemeanors who faced the possibility of a jail sentence. To guarantee fairness in trials involving potential jail time, no matter how petty the charge, and to avoid the danger of “assembly-line justice,” the Court found that the state was obligated to provide the accused with counsel.
Report from 7500 Feet
by Justice Michael J. Wilkins
The National Conference of Commissioners on Uniform State Laws (who?) met in Big Sky, Montana in July. Big Sky is a ski resort town with beautiful mountains, about one third of the charm of Utah’s ski areas, and very very thin air. Oh, and no directional signs for finding the hotels. Even my computerized guidance system gave up about three miles short of the target. “No further guidance will be provided,” she said. With raindrops the size of small fists hitting my windshield and overwhelming my wipers, I eventually blundered my way into the Big Sky Ski Resort area at 7500 feet. The hotels and resort buildings all face the mountains, and frame a breathtaking view (literally). They also occupy nearly all of the available flat ground. Parking is an issue. I recommend the SmartCar for your visit. I, of course, drove the Sequoia (a large SUV of Japanese ancestry that has yet to adjust adequately to the fuel price crisis). The drive from Salt Lake took a mere 6 hours. I had arrived for my first annual conference of the NCCUSL, also known as the Uniform Law Commission.
Statements of Material Fact: Increasing Effectiveness and Avoiding Pitfalls
by Judge Anthony B. Quinn and Joanna E. Miller
Utah Rule of Civil Procedure 7, is a precise rule with clear consequences for noncompliance. However, the current practice with respect to rule 7 is anything but clear or precise. From a trial court’s perspective there are two explanations for this lack of clarity: Utah attorneys have become adept at avoiding the intention of the rule and Utah appellate decisions have not been clear about the discretion a trial court has to deem facts admitted for a failure to comply with the rule. This article seeks to clarify the purpose of rule 7, to outline the appellate confusion about its application and to present at least one judge’s view of how the rule should operate.
Convictions: A Prosecutor’s Battles Against Mafia Killers, Drug Kingpins, and Enron Thieves
by John Kroger
Reviewed by Ralph Dellapiana
I am going to start this review with a disclaimer. I am biased, particularly against prosecutors. I am a public defender, and through years of trench warfare I have wounds enough to have learned to have a healthy skepticism about the difficulty of getting “justice” in the criminal justice system. And I blame a lot of the problems on prosecutors. More than one prosecutor has told me he or she can’t do the right thing, or doesn’t care if my client is innocent, or if the police are lying to make a bad arrest stick.
How to Build and Manage an Estates Practice, Second Edition
by Daniel B. Evans, Esq.
Reviewed by Nathan C. Croxford and Andrew L. Howell
If his most recent publication, How to Build and Manage an Estates Practice, is any indication, author Daniel B. Evans must have been a master issue-spotter in law school. In just 205 pages, inclusive of appendices and index, Evans manages to identify and discuss, in clean, economical, and very readable prose, nearly every conceivable issue, problem, or challenge that an attorney might encounter in building and maintaining an estates practice. Coverage ranges from client-generation in the Internet age, to ethical considerations in modern estates practice, to office technology and automation, innovative client communications and billing practices, and more.
The Board of Bar Commissioners received the following reports and took the actions indicated during the July 16, 2008 Commission meeting held in conjunction with the 2008 Summer Convention in Sun Valley, Idaho.
1. The Commission approved the minutes of the May 30, 2008 Commission meeting by consent.
2. The amendments to Senior Bar Section By-laws to permit membership at age 55 were approved by consent.
Mandatory CLE Rule Change
Effective January 1, 2008, the Utah Supreme Court adopted the proposed amendment to Rule 14-404(a) of the Rules and Regulations Governing Mandatory Continuing Legal Education to require that one of the three hours of “ethics or professional responsibility” be in the area of professionalism and civility.
Rule 14-404. Active Status Lawyers
(a) Active status lawyers. Commencing with calendar year 2008, each lawyer admitted to practice in Utah shall complete, during each two-calendar year period, a minimum of 24 hours of accredited CLE which shall include a minimum of three hours of accredited ethics or professional responsibility. One of the three hours of ethics or professional responsibility shall be in the area of professionalism and civility. Lawyers on inactive status are not subject to the requirements of this rule.
2008 Fall Forum Awards
The Board of Bar Commissioners is seeking nominations for the 2008 Fall Forum Awards. These awards have a long history of honoring publicly those whose professionalism, public service, and personal dedication have significantly enhanced the administration of justice, the delivery of legal services and the building up of the profession. Your award nominations must be submitted in writing to Christy Abad, Executive Secretary, 645 South 200 East, Suite 310, Salt Lake City, UT 84111, no later than Monday, September 15, 2008. The award categories include:
View a list of past award recipients at: http://www.utahbar.org/members/awards_recipients.html
President-Elect and Bar Commission Election Results
Steve Owens was elected President-Elect of the Utah State Bar. He received 1,674 votes to Scott Sabey’s 1,048 votes. There were 2,748 ballots cast for President-Elect out of 7,245 mailed out to active lawyers.
Law Firm Retention and Advancement of Attorneys
Law firms, despite efforts over the last ten years to provide better maternity/paternity leave, part time schedules, and the like, are increasingly frustrated by the constant departure of their attorneys. Many perceive the departures to be mostly of women attorneys. Others believe the attrition results from generational differences and unwillingness to work the number and type of hours a private firm requires.
Lawyer Referral Service
On July 1, 2008, the Utah State Bar created a new directory for lawyer referrals. Participation in the introductory “Find a Utah Lawyer Directory” is voluntary and free of charge. The directory provides potential clients with an on-line listing of each lawyer’s name, address, admission date, law school, and telephone number within specific geographic areas and practice types as identified by the search criteria. It includes a lawyer’s email address only if specifically authorized. Lawyers are permitted to list up to five practice types. You may sign up for the Find a Utah Lawyer Directory at www.utahbar.org/LRS.
“And Justice For All” Receives Prestigious Award
The American College of Trial Lawyers presented its 2008 Emil Gumpert Award to “And Justice For All” for its truly unique program. This prestigious award, consisting of a $50,000 grant, recognizes programs whose principal purpose is to maintain and improve the administration of justice. The Gumpert Award recognizes the incredible leadership of Utah’s legal community that led to the success of And Justice For All. During the past decade, the number of disadvantaged Utahns helped by the participating programs has increased from 16,280 in 1998 to more than 34,000 last year. According to the American College of Trial Lawyers:
Pro Bono Honor Roll
Fred Anderson – Guadalupe Clinic
Andres Alarcon – Family Law Clinic
Jeremy Atwood – Family Law Clinic
Lauren Barros – Family Law Clinic
Janell Bryan – Consumer Case
Bryan Bryner – Guadalupe Clinic
Danielle Dallas – Guadalupe Clinic
Julie Edwards – Tax Issue for NonProfit DV Matter
Jared Fields – Housing Case
Lisa Fine – Family Law Clinic
Craig Galli – Protective Order Case
Kass Harstad – Guadalupe Clinic
Rori Hendrix – QDRO Case
On June 23, 2008, the Vice-Chair of the Ethics and Discipline Committee of the Utah Supreme Court entered an Order of Discipline: Admonition against an attorney for violation of Rules 3.2 (Expediting Litigation), 3.3(d) (Candor Toward the Tribunal), 7.3(a) (Direct Contact with Prospective Clients), 8.4(d) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.
Introducing the Paralegal Division’s New Officers and Directors for 2008-09
by Julie L. Eriksson, Chair
As we begin the fall season, it is time to reflect on our personal and professional accomplishments. It doesn’t seem possible, but soon we will be toasting a new year and begin setting goals for the upcoming year. As you start thinking about your goals, take time to reflect upon the impact you have on others in your family, in your firm, within the Paralegal Division, and within our paralegal profession. Maybe it is time to change your impact by volunteering or taking on a new project. It is often said that you receive more than you give. How about you – what can you give?
The 2008-09 Board of Directors of the Paralegal Division of the Utah State Bar is conducting its 2008 Salary Survey. The survey will be sent via email to all paralegals and legal assistants in the state in the coming weeks, and we strongly encourage all of you to take a few minutes and complete it.