Utah Bar Journal

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*Letters to the Editor
*President’s Message
Articles
*Utah Standards of Appellate Review
*Damages Resulting From a Lost Opportunity
*Views From the Bench
*Book Review:
*State Bar News
*Paralegal Division

Dear Editor:

After reading Brent Armstrong’s article, “Should Utah Lawyers Stop Forming Utah LLCs? A Response to Smith/Atwater,” published in the Jan/Feb 2010 issue of the Utah Bar Journal, we write to clarify the premise of the article we wrote and to which he is supposedly responding. Our article highlights only three factors (and there are many, including costs, ease of filing, body of case-law interpreting the applicable LLC statute, etc.) that attorneys should consider when forming an LLC – whether that LLC be formed in Utah or elsewhere. Our article focuses on the client – how are the clients’ interests best served? As attorneys, we have an obligation to zealously represent the interests of our clients (not their creditors or other third parties). The decision to form an LLC in Utah or in some other jurisdiction needs to be made based on what best accomplishes the clients’ goals. Choosing a specific jurisdiction of formation is just one of many options available to attorneys to advance their clients’ interests. If, for example, a client is interested in protection from creditors, then a Utah LLC may be inappropriate for that client regardless of the policy reasons for including a foreclosure provision in the Utah LLC statute. Mr. Armstrong’s assertion that we recommend never forming Utah LLCs is entirely FALSE. In certain circumstances, a Utah LLC may best suit a client’s interests. However, so long as Utah keeps its existing LLC statute (which national commentators have described as “hostile to businesses,” a “Frankenstein statute” – due to its piece meal structure, and “one of the worst drafted LLC statutes”) and there are business-friendly alternatives, we as attorneys will have an opportunity, if not an obligation, to choose which alternative LLC statutes best meet our clients’ needs.

Russell K. Smith

by Stephen W. Owens

Passing the Baton

Thank you for the opportunity to serve as your President. I have enjoyed my year, and now turn the reins over to Rob Jeffs (president) and Rod Snow (president-elect), capable and grounded successors. I also thank my family and law partners for their support this past year.

I love being a lawyer and speaking up for lawyers. Our calling is to help people prevent and solve complex problems in a fair and peaceful way.

by Norman H. Jackson and Lisa Broderick Thornton

PREFACE TO THE THIRD EDITION: 2010/2011

This new edition of Judge Jackson’s Utah Standards of Appellate Review revises and updates two prior Utah Bar Journal articles. The first was designated as a Collector’s Issue, Vol. 7, No. 8, October 1994. The second was published as a Revised edition, Vol. 12, No. 8, October 1999. Judge Jackson discovered early in his appellate practice that there was no ready reference where the standard of review for a particular issue could be located. Thus, one of his initial acts as an appellate judge was to ask his first law clerk, Annina Mitchell, to begin compiling a summary of standards of review. In due course, that summary grew and was circulated at the appellate courts, the attorney general’s office, and appellate practice seminars. Finally, it was cited by an attorney as legal authority in an appellant’s brief at the Utah Court of Appeals. Accordingly, the first edition was compiled and published in 1994, seven years after Utah became the 37th state to have a two court appellate system. The second edition was published in 1999 and this third edition arrives over a decade later. To access the two prior articles, go to: http:// www.utahbar.org/barjournal/frequently_requested_articles.html. Lisa Thornton, Christensen Thornton, PLLC, has joined Judge Jackson as co-author of this series. Previously, she was the editor of the final draft of the first edition. The current edition will be published in a series of successive articles. However, the Outline of Contents below is the outline for the series. Thus, you should keep each article so your set will be complete. This first article provides an overview, commentary, analysis, and proceeds with text for the Outline to the end of Challenging Findings of Fact under Appeals from Trial Courts.

by Mark Glick and Cory Sinclair

The issue of how to calculate the damages from a lost opportunity often arises in contract and tort cases. For example, suppose a plaintiff is involved in a business venture that is impacted by a tort. The plaintiff contends that had the tort not occurred, plaintiff would have received substantial profits at some future date. Or, suppose a business enters into a contract to receive a crucial spare part used to operate its production facility. The part is not delivered on time and the business loses an opportunity to work with a large and important customer. In these types of cases, the plaintiff will normally contend that if the contract had not been breached, plaintiff would have made a windfall at some future time. In both of these situations, a damage expert will be asked to calculate the value of the predicted lost profits at the time of trial.

by Gary L. Johnson

As the managing attorney at a law firm, I have the enviable prerogative of requiring a captive audience for my ruminations and pontifications every so often during the year. This is otherwise known as “Associate Training.” Recently, I talked to our associates about what Harry Truman could teach them concerning their practice of the law. I thought that our discussion would be of some interest to you, my colleagues.

by Paul M. Warner

Where you stand on an issue depends on where you sit. I practiced law for over thirty years before I joined the federal bench. I was always a trial lawyer. I thought I knew how to persuade judges and juries. Now that I have been on the bench for a few years, I have a little different perspective. I will not guarantee that what I am going to share with you will work with every judge, but I suspect that it will help you with most of them.

A Review of: Utah Administrative Procedures Act – a 20 Year Perspective

by Alvin Robert Thorup and Stephen G. Wood

Reviewed by J. Craig Smith

Who would ever expect that a book chronicling the Utah Administrative Procedures Act, from its gestation over 20 years ago to the present, would ever be written? This is exactly what Alvin Robert Thorup, a local attorney, and Stephen G. Wood, a law professor at the J. Reuben Clark Law School, have done. Their book, “Utah’s Administrative Procedures Act, a Twenty Year Perspective” was recently published by Xlibris and is available at local book stores and online.

RESIGNATION WITH DISCIPLINE PENDING

On April 14, 2010, the Honorable Christine M. Durham, Chief Justice, Utah Supreme Court, entered an Order Accepting Resignation with Discipline Pending concerning R. Bradley Neff for violation of Rules 8.4(b) (Misconduct), 8.4(c) (Misconduct), and 8.4(a) (Misconduct) of the Rules of Professional Conduct.

by Aaron Thompson

Recipient of Utah’s 2010 Distinguished Paralegal of the Year Award

Each year the Utah Bar Paralegal Division (“Paralegal Division”) convenes on the third Thursday in May to honor a paralegal who, “over a long and distinguished career, has by their ethical and personal conduct, commitment and activities, exemplified for their fellow paralegals and the attorneys with whom they work, the epitome of professionalism; who has also rendered extraordinary contributions,” in promoting the efforts of the Paralegal Division.