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May 2009 Archives

May 18, 2009

Volume 22 No. 3 May/June 2009

Volume 22 No. 3 May/June 2009


PDF Version

COVER: Golden Cathedral, Neon Canyon, Grand Staircase, Escalante National Monument, taken by first-time contributor, Ryan Harris of Salt Lake City, Utah.

  • Letters to the Editor
  • President's Message: Engage in Mentoring
  • Judging the Judges
  • Looking at the Stars: Why Being a Lawyer Matters
  • Are Medical Records Now Off Limits? An Examination of Sorenson v. Barbuto
  • Do Insurance Companies Buy Insurance?
  • Serving the Client Who Is Deaf
  • Small Claims Mediation: Thoughts for Practitioners
  • Web 2.0 Tools for Utah Attorneys
  • Enforcing Civility in an Uncivilized World
  • State Bar News: Attorney Discipline
  • Paralegal Division: Pay It Forward: Community Service Opportunities in the Paralegal Division

  • Letters to the Editor

    Dear Editor,

    Recently, there was a Bar Journal article critical of the legislative process arising out of the appeal of a justice court traffic case: West Jordan City v. Goodman, 2006 UT 27, 135 P.3d 874. The appeal failed primarily because the “briefing on the constitutional claim was inadequate,” id. ¶1, and the defendant “failed to offer any probative evidence in support of his conflict of interest claim.” Id.

    Continue reading "Letters to the Editor" »

    Engage in Mentoring

    by Nathan D. Alder

    I recently attended a Litigation Section CLE luncheon where moderator Jon Hafen asked veteran members of the Bench and Bar to describe the influence of mentors on their early careers. It was a very nice discussion. Then he asked panelists to consider how their legal careers would have turned out had they not had mentors available to them. It was a hypothetical, of course. Given how panelists responded to the first question, the answers to the second question became readily apparent – mentors are invaluable.

    Continue reading "Engage in Mentoring" »

    Confessions of a Litigator: The Surprising Benefits of Mediation

    by Michael Goldsmith

    In 2004, the Boston Globe ran a story suggesting that lawyers nationwide, increasingly frustrated and depressed by “win-at-any-cost legal work,” yearned for less confrontational ways to resolve disputes. The article extolled the virtues of adopting a more “holistic” approach to law practice instead of the usual “slash and burn” litigation model. However, despite widespread job dissatisfaction within our profession, this call for more enlightened conflict resolution largely went unheeded. Today slash and burn litigation remains the norm.

    Continue reading "Confessions of a Litigator: The Surprising Benefits of Mediation" »

    Judging the Judges

    by Joanne C. Slotnik

    In 2008, the Utah Legislature changed the way Utah’s judges are to be judged. The judiciary’s evaluative process, established for almost two decades and implemented by the Administrative Office of the Courts, had included a broad survey of attorneys and jurors, supplemented by an assessment of judge’s compliance with education, judicial conduct, and case management standards. Beginning with judges standing for retention election in 2012, however, the evaluative process will become far more comprehensive and will be under the aegis of a newly-created and independent Judicial Performance Evaluation Commission (the Commission).

    Continue reading "Judging the Judges" »

    Looking at the Stars: Why Being a Lawyer Matters

    by Gary L. Johnson

    “We are all in the gutter, but some of us are looking at the stars.”

    Oscar Wilde, Lady Wyndermere’s Fan, Act III (1891).

    He was accused of being a criminal and a terrorist. His earlier writings had been ignored by the government, but his latest works were perceived as maliciously and wickedly intended to incite violence toward the government. Charges were brought and a criminal action was instituted.

    It was not easy to find a lawyer for the defendant. Finally, one attorney stepped forward and was promptly told by his largest and most important client that he would lose that business if he continued the representation. The lawyer indicated his intent to proceed and was promptly fired by the client.

    Continue reading "Looking at the Stars: Why Being a Lawyer Matters" »

    Are Medical Records Now Off Limits? An Examination of Sorensen v. Barbuto

    by S. Grace Acosta

    If defense attorneys seeking medical records have noticed a dramatic increase in the objections to subpoenas and medical releases, this is likely due to the recent supreme court opinion of Sorensen v. Barbuto, 2008 UT 8, 177 P.3d 614. Barbuto is a case that has mistakenly been interpreted by some as making medical releases and disclosure of medical records beyond the reach of discovery. Barbuto is neither as broad as some claim nor should we want it to be as broad as it has been touted.

    Continue reading "Are Medical Records Now Off Limits? An Examination of Sorensen v. Barbuto" »

    May 15, 2009

    Do Insurance Companies Buy Insurance?

    by Mark Dykes

    Yes. “Reinsurance” is “an insurance transaction where an insurer, for consideration, transfers any portion of the risk it has assumed to another insurer.” Utah Code Ann. § 31A-1-301(140) (2005).

    The Basics: Some Nomenclature
    The insurer “transferring the risk” is the “ceding insurer,” id. § 31A-1-301(140)(a), or more commonly, the “cedent.” The “insurer assuming the risk” is the “assuming insurer,” id. § 31A-1-301(140)(b)(i), or “assuming reinsurer,” id. § 31A-1-301(104)(b)(ii), more commonly, the “reinsurer.” Reinsurers can in turn cede portions of their risks to yet another insurer by “retrocession.” The “retrocedent” here cedes business to the “retrocessionaire.” Id. § 31A-1-301(143). In very complex, large risk situations, this process can continue through multiple levels of reinsurers and retrocessionaires.

    Continue reading "Do Insurance Companies Buy Insurance?" »

    Serving the Client Who is Deaf

    by Dale H. Boam

    Twenty-four years after my first exposure to the Deaf community I am still deeply involved with Deafness and Deaf Culture as an attorney, certified interpreter, teacher of interpreters, and a friend to the Deaf community.1 In my practice, I often represent persons who are Deaf and who, by reason of their Deafness, face discrimination at the workplace and barriers when they attempt to access goods and services that the hearing population takes for granted. Sadly, I have seen such barriers in hospitals, doctors’ offices, educational institutions, courts, and attorneys’ offices. Most of these situations are misunderstandings and easily resolved once people understand their legal obligations and make a slight adjustment in their analysis of the situation. In my practice, I have found that law is a profession inhabited by persons seeking to do right. Doing right is often simply a matter of knowing how to analyze the situational requirements and acting accordingly.

    Continue reading "Serving the Client Who is Deaf" »

    Small Claims Mediation: Thoughts for Practitioners

    by Stephen Kelson

    Although small claims court may not be a regular part of most attorneys’ practices, it is likely that at some point during one’s legal career, one will have the opportunity to represent a client with a small claims case. It is even more likely that an attorney will be approached in a limited or informal capacity to explain the small claims process and procedure to someone who has a small claims case. Among the important elements of an answer to this query is a discussion of the availability of mediation in the small claims context. Although several small claims courts in Utah have provided free mediation services for more than ten years, many attorneys are not fully informed about the availability or the benefits of mediation in the small claims process.

    Many attorneys misunderstand what mediation is. Some attorneys believe that if they call the opposing counsel or party and make an offer of resolution, they have then “mediated” the case. Such an exchange may be a settlement negotiation, but it is not mediation. Mediation is where a neutral third party (the mediator) assists two or more parties in order to help resolve their dispute.

    Continue reading "Small Claims Mediation: Thoughts for Practitioners" »

    Web 2.0 Tools for Utah Attorneys

    by Mari Cheney

    You’ve probably heard people talking about blogs, social networking, and Twitter, but may have wondered how these technologies are relevant to you in your professional life. These online technologies are all part of “Web 2.0,” a term first coined to describe the transition from web pages only programmers could manipulate to a web that allows anyone to participate online by publishing and sharing content.

    Web 2.0 today generally describes online resources that encourage site visitors to add their own content through interactive features like comments and tags. Tags are user-generated and user-assigned identifiers. If you uploaded and tagged a photo with “Bar Retreat” on a photo sharing site like Flickr, other users could upload their photos to the same site and use the same tags. Then, if you searched for Bar Retreat photos, you would find your photos as well as those posted by others. Some of the common websites associated with Web 2.0 and professional awareness/marketing are free blog creation sites like Blogger or WordPress, Twitter, and LinkedIn.

    Continue reading "Web 2.0 Tools for Utah Attorneys" »

    Enforcing Civility in an Uncivilized World

    by Donald J. Winder and Jerald V. Hale

    “That man is guilty! That man there is a slime! He is a slime! If he is allowed to go free, then something real wrong is goin’ on here!”

    “Mr. Kirkland, you’re out of order.”

    “You’re out of order, you’re out of order! This whole trial is out of order!”

    Al Pacino as Arthur Kirkland in And Justice for All. Valerie Curtain & Barry Levinson, And Justice for All, Columbia Pictures, 1979.

    We have all seen the entertainment industry’s impressions of the legal profession. Fired-up attorneys in court yelling at witnesses, belittling their opponents, and battling the judge hammer and tongs over every perceived slight or unfavorable ruling. Despite the artistic license entertainment writers take in creating these characters for the screen, we know all too well the caricature of the uncivil attorney has a basis in reality and in many cases is not far off the mark. We live in an increasingly disrespectful and competitive world, and our profession is not immune from the general discourtesies that permeate society. The nature of our adversarial system of law can also foster an environment where it is often believed antisocial behavior can get you noticed and get results.

    Continue reading "Enforcing Civility in an Uncivilized World" »

    Attorney Discipline

    On February 25, 2009, the 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 1.9(a) (Conflict of Interest: Former Clients) and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

    In summary:
    An attorney was hired to represent a client in a divorce matter. The attorney’s office sharing arrangement was the functional equivalent of being in the same firm as a family member. The attorney took a case against a former client of his family member.

    Continue reading "Attorney Discipline" »

    Pay It Forward: Community Service Opportunities in the Paralegal Division

    by Carma Harper

    When I was appointed as Chair of the Paralegal Division’s Community Service Committee, I thought of it as a great opportunity to find a project where we could make a difference. I soon discovered that there is no shortage of programs and services in need of assistance from the public year round. With so many projects to choose from, allocating our time and resources became a larger challenge.

    I am proud to report that in the past year, we have taken part in many very worthwhile activities and causes to benefit our community. Here are some highlights:

    Continue reading "Pay It Forward: Community Service Opportunities in the Paralegal Division" »


    About May 2009

    This page contains all entries posted to Utah Bar Journal in May 2009. They are listed from oldest to newest.

    March 2009 is the previous archive.

    July 2009 is the next archive.

    Many more can be found on the main index page or by looking through the archives.

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