Utah Bar Journal

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Letters to the Editor

President’s Message:
The Pro Se Quandary

Articles:
Utah Standards of Appellate Review
Raising a Successful Batson Challenge in Jury Selection
New Lawyer Training Program
The Evolution and Future of theAccredited Investor Standard for Individuals
Tribute to Bob Henderson

Focus on Ethics & Civility

Book Review
The Creative Lawyer

State Bar News

Young Lawyer Division

Paralegal Division

Dear Editor:

There is a prominent billboard currently located in Payson along I-15 that advertises for a law firm with the tagline “Just sue ‘em!” I am repeatedly disgusted whenever I must pass that sign and cannot believe that members of my own profession, a profession which since time immemorial has been fighting to rid itself of the negative stigma that the public places on the majority of its practitioners, continue to perpetuate the stereotype of the ruthless, court-loving, money-hungry lawyer.

by Robert L. Jeffs

On October 13, over 300 new attorneys were admitted to practice in Utah. With the economic downturn, many law firms have curtailed hiring and, in some circumstances, laid off attorneys. As a result, the numbers of unemployed and underemployed attorneys, as well as attorneys who are trying to establish a new practice, have swelled.

by Norman H. Jackson and Lisa Broderick Thornton

Editor’s Note: This article is the third installment of a series of articles that first appeared in Volume 23, No. 4 July/August 2010 of the Utah Bar Journal.

D. Challenges in Specific Practice Areas

1. Challenges in Divorce Cases

a. Challenging Findings of Fact

(i) Clearly Erroneous Standard

Appellate courts give great deference to the trial court’s findings of fact in divorce cases and will not overturn them unless they are clearly erroneous. See Kimball v. Kimball, 2009 UT App 233, ¶ 14, 217 P.3d 733; Thompson v. Thompson, 2009 UT App 101, ¶ 10, 208 P.3d 539; Leppert v. Leppert, 2009 UT App 10, ¶ 8, 200 P.3d 223; Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 9, 176 P.3d 476; Kelley v. Kelley, 2000 UT App 236, ¶ 18, 9 P.3d 171. A finding of fact will be adjudged clearly erroneous if it violates the standards set by the appellate court; is against the clear weight of the evidence; or the reviewing court is left with a definite and firm conviction that a mistake has been made, although there is evidence to support the finding. See Kimball, 2009 UT App 233, ¶ 14; Shinkoskey v. Shinkoskey, 2001 UT App 44, ¶ 10 n.5, 19 P.3d 1005; Kelley, 2000 UT App 236, ¶ 18.

by Michael A. Worel and David G. Wirtes, Jr.

Introduction

Litigants are allowed to use peremptory strikes to control the composition of their juries, but the Equal Protection Clause of the Fourteenth Amendment prevents them from eliminating potential jurors based solely on race, and more recently gender. See Batson v. Kentucky, 476 U.S. 79, 89 (1986); J.E.B. v. Alabama, 511 U.S. 127, 129 (1994) (holding that “gender, like race, is an unconstitutional proxy for juror competence and impartiality”). A party can raise a “Batson challenge” to contest a peremptory strike that it suspects is motivated solely on the basis of one of these characteristics. A Batson challenge is the product of the criminal context and was traditionally used by defendants to object to the prosecutor’s mode of jury selection. See, e.g., Powers v. Ohio, 499 U.S. 400 (1991). This changed in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), when the Supreme Court explained that private litigants are prohibited from making racially discriminatory strikes as well. See id. at 630. While Utah courts have yet to review a civil case involving a Batson challenge, plaintiffs commonly use them in federal court, and a few state courts have addressed them as well. See, e.g., Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1215 (10th Cir. 2002); accord Felder v. Physiotherapy Assoc., 158 P.3d 877, 891 (Ariz. Ct. App. 2007); Donelson v. Fritz, 70 P.3d 539, 541 (Colo. Ct. App. 2002); Jacox v. Pegler, 665 N.W.2d 607, 612-13 (Neb. 2003); Zakour v. UT Med. Grp., 215 S.W.3d 763, 767 (Tenn. 2007). Batson challenges are an effective means for parties to prevent improper manipulation of their juries and thereby ensure a level playing field. While the focus here is on the plaintiff, the following principles are equally applicable to civil defendants. This article describes the steps required to raise a Batson challenge and highlights the factual circumstances under which they have been most successful, both in civil cases and in Utah criminal cases.

by Tracy Gruber

Once again, the Utah State Bar is expanding its membership, admitting over 300 new lawyers in October 2010. Fortunately, these newly-minted members of the bar will not be alone as they embark on the next stage of their professional development. The experienced members of the bar will be there to guide, assist, and mentor the new lawyers through the New Lawyer Training Program (NLTP).

by Michael L. Monson

Since as early as the 1930s, regulators and courts have struggled with how to protect individual investors in private offerings of securities while still allowing sufficient investment in private offerings to sustain the growth of start-up and other young companies – companies which have historically been responsible for much of the job growth in the United States. Eventually, the Securities and Exchange Commission (“SEC”) came up with the idea of “accredited investors.” Accredited investors are individuals or other entities that have sufficient wealth not to need the protection of federal and state securities laws to the same extent as non-accredited investors.

by Jeffrey D. Eisenberg

Unlike me, Bob did not waste any words. He once wrote me a response to a settlement demand that read:

Dear Jeff,

The answer is: No.

Best Regards,

For many years, Bob and I knew each other professionally, but we weren’t close friends. Then, about five years ago, Bob asked me to represent him in a legal dispute. Over the next month, Bob and I spent many hours sitting on my deck, talking about whether he should or shouldn’t file a lawsuit. There was a lot of money at stake, but over time it became clear to both of us that Bob did not really care about the money. He cared about how he’d been treated. He felt wronged, and Bob was not one to walk away from a fight.

by Keith A. Call

I was lucky enough to spend a warm evening last summer sitting next to one of the Giants of our Bar watching the Bees play baseball at Spring Mobile Ballpark. As we enjoyed the game, my mentor and friend told me about a large case involving several lawyers in town who retained a number of experts from various cities, some of which had Major League Baseball teams. The lawyers all agreed that, whenever practical, they would schedule the experts’ depositions so they could attend a baseball game together when they visited those cities. And that is exactly what they did. I marveled at this story. It seemed remarkable that these lawyers would battle it out in depositions during the day, and then spend the evening eating hot dogs and watching the Cubs together in a far-away city.

by Michael Melcher

Reviewed by Teresa L. Welch

If you are faced with the Godzilla of work, don’t battle it alone. Enlist Rodan to even out the contest.

Michael Melcher, The Creative Lawyer: A Practical Guide to Authentic Professional Satisfaction, 30 (2007).

If you have ever asked yourself whatever possessed you to become an attorney, I recommend Michael Melcher’s book, The Creative Lawyer: A Practical Guide to Authentic Professional Satisfaction. Whether you are just starting out, or you need to reenergize a lackluster career, this book, released in 2007, contains timely advice. Now that the limping economy has resulted in increased case loads and slashed salaries for attorneys, your personal and work satisfaction are more important than ever. Melcher’s book provides inspiring ideas and practical exercises for attorneys to help us achieve these goals. Melcher states that if we spend twenty minutes a day reflecting on our career, as opposed to in our career, we can achieve authentic professional satisfaction.

by Michael Melcher

Reviewed by Teresa L. Welch

If you are faced with the Godzilla of work, don’t battle it alone. Enlist Rodan to even out the contest.

Michael Melcher, The Creative Lawyer: A Practical Guide to Authentic Professional Satisfaction, 30 (2007).

If you have ever asked yourself whatever possessed you to become an attorney, I recommend Michael Melcher’s book, The Creative Lawyer: A Practical Guide to Authentic Professional Satisfaction. Whether you are just starting out, or you need to reenergize a lackluster career, this book, released in 2007, contains timely advice. Now that the limping economy has resulted in increased case loads and slashed salaries for attorneys, your personal and work satisfaction are more important than ever. Melcher’s book provides inspiring ideas and practical exercises for attorneys to help us achieve these goals. Melcher states that if we spend twenty minutes a day reflecting on our career, as opposed to in our career, we can achieve authentic professional satisfaction.

Utah State Bar Ethics Hotline

Call the Bar's Ethics Hotline at (801) 531-9110 Monday through Friday from 8:00 a.m. to 5:00 p.m. for fast, informal ethics advice. Leave a detailed message describing the problem and within a twenty-four hour workday period a lawyer from the Office of Professional Conduct will give you ethical help about small everyday matters and larger complex issues.

More information about the Bar's Ethics Hotline may be found at www.utahbar.org/opc/opc_ethics_hotline.html. Information about the formal Ethics Advisory Opinion process can be found at www.utahbar.org/rules_ops_pols/index_of_opinions.html.

by Carma Harper

This past year, the Paralegal Division participated in several activities. We started off a little bit early by doing a clothing drive in November/December and donating the items to the Homeless Shelter and other facilities needing assistance. Then a week later, a few of us got together and made over fifty fleece hats, and with some of the money donations we collected, we were also able to buy over fifty pairs of gloves to donate along with the hats. We will be doing this again in October if anyone would like to volunteer.