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May 10, 2012

Volume 25 No.3 May/June 2012


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President's Message

Education on the Fundamentals of Our Government and Democracy is on Life Support: We Can Help
by Rodney G. Snow

As a nation, we are facing some of the most difficult decisions that have challenged us in a long time. Resolving today’s issues requires a citizenry that understands the fundamentals of our democracy. Unfortunately, education regarding our system of government has been lacking for many years. As reported by the Leonore Annenberg Institute for Civics at the University of Pennsylvania, the “lack of high-quality civic education in America’s schools leaves millions of citizens without the wherewithal to make sense of our system of government.”1 While most high school graduates can name the three judges on American Idol, very few can provide you the number or the names of the Justices of the United States Supreme Court. Surveys conducted over the past decade by the Annenberg Public Policy Center resulted in the shocking findings listed below.

• Only one-third of Americans could name all three branches of government; one-third could not name any.

• Just over a third thought it was the intention of the Founding Fathers to have each branch hold a lot of power, but the President has the final say.

• Just under half of Americans (47%) knew that a 5–4 decision by the Supreme Court carries the same legal weight as a 9–0 ruling.

• Almost a third mistakenly believed that a U.S. Supreme Court ruling could be appealed.

• When the Supreme Court divides 5–4, roughly one in four [Americans] (23%) believed the decision was referred to Congress for resolution; 16% thought it needed to be sent back to the lower courts.2

On the most recent National Assessment of Educational Progress for civics, more than two-thirds of all American students scored below proficient.3

On the same test, less than one-third of eighth graders could identify the historical purpose of the Declaration of Independence, and less than a fifth of high school seniors could explain how citizen participation benefits democracy.4

Civic learning is, at its heart, necessary to preserving our system of self-government. In a representative democracy, government is only as good as the citizens who elect its leaders, demand action on pressing issues, hold public officials accountable, and take action to help solve problems in their communities.…To neglect civic learning is to neglect a core pillar of American democracy.5

What has caused this decline in civics education over the last forty or fifty years? Some say it started with the disenchantment of the government brought on by Vietnam and Watergate.6 A primary reason cited is the unprecedented pressure to raise student achievement now measured by the standardized examination of reading and mathematics.7 The acronym STEM is often applied in measuring the value of success of our public and private school systems (science, technology, engineering, and math).

The No Child Left Behind, is also sharing the blame for standardized testing in math and reading. Pressure in these trends seems to have caused education regarding democratic principles to either take a back seat or disappear altogether.

Ironically, one factor driving national standardized testing for reading and STEM is an effort to maintain pace with China. Now, there’s an idea – let’s sacrifice education on the importance of the fundamentals of our democracy and the system we have in place to check government power to stay even with or exceed a people governed by a communist dictatorship where human rights are all but nonexistent8 and free elections are effectively out of the question.9

Did you know the constitution of Cuba is all but identical to ours? Many dictatorships or governments run by the military have written constitutions similar to or patterned after the United States Constitution. Why then is our government so different than that of Cuba or other countries? The people of those nations do not understand their rights and the courts exist for the government – not the people.

A citizenry educated on the concepts of our system of government is critical to our free society. As Abraham Lincoln stated:

Let it [reverence for the laws and Constitution] be taught in schools, seminaries and in colleges; let it be written in primers, in spelling books and in almanacs; let it be preached from the pulpit, proclaimed in legislative halls, enforced in courts of justice. In short, let it become the political religion of the nation.[10]

Perhaps one of the more famous quotes on this subject is that of Thomas Jefferson, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”11 In 2002, the Center for Information and Research on Civil Learning and Engagement (CIRCLE), in partnership with the Carnegie Corporation of New York, convened a series of meetings involving leading scholars and civic education practitioners to consider the current state of young people’s civic learning and engagement.12 The participants’ conclusions and recommendations were summarized in a 2003 report titled The Civic Mission of Schools.

The key reason the CIRCLE report suggests for our failure to provide effective and meaningful civic education is the lack of institutional commitment to formal civic education.13

Civics Education Program
In some states, civics is not taught at all in junior high or high school. In Utah, civics education is a required course at the high school level. While we are fortunate in that respect, much more could be done.

In July, the Bar Commission created the “Utah State Bar Committee on Civics Education” to work with and facilitate the Bar’s law-related education programs directed by Kathy Dryer. The co-chairs of this committee are Rich McKeown of Leavitt Partners; Christian Clinger at the Institute for Advanced Mediation and a member of the Bar Commission; and Angelina Tsu, who works as legal counsel to Zions Bank. Angelina served on the Bar Commission when she was president of the Young Lawyers Division. This committee, under the direction of its able co-chairs, developed a lesson plan for lawyers and judges to use to teach a one-hour civics course in our high schools, hopefully on a semiannual basis. The lesson course is on judicial independence. Pilot programs have been run in several of our high schools and have been well received.

This is a turnkey operation. Those of you who have already volunteered to participate in this exciting project will be provided a lesson plan you can follow and enhance. Participation will not require a lot of preparation. The lesson plan objectives are:

• To support public education by supplementing high school students’ classroom learning about civics, specifically learning about the judiciary and the rule of law, with an interactive program focusing on analytical and language art skills.

• To instill a sense of responsibility and participation, and appreciation for the rule of law in high school students, specifically graduating, soon-to-be-voting seniors.

• To enable students to identify the three branches of government and the role of each.

• To help students understand the concepts of “separation of powers,” “checks and balances,” and the role of the courts within these concepts.

• To better inform students how judges make decisions and who the court system’s other players are and what roles they play.

• To explore the concept of judicial review and the role of the third branch in examining the constitutionality of written laws and statutes.

Well over 200 lawyers have volunteered for this opportunity. If you are interested in volunteering, please contact Christy Abad at the Bar office.

Continue reading "President's Message" »

Commission Message

"Check Yes” to Lend a “Learned Hand”
Utah’s Pro Bono Commission
by Judge Michele M. Christiansen and Judge Royal I. Hansen

Utah State Bar President Rod Snow has invited us to deliver this month’s “Commission Message” to update you regarding the Bar’s newly initiated Utah State Bar Pro Bono Commission. We are thrilled to co-chair the Pro Bono Commission, a state-wide body tasked with improving voluntary pro bono legal services throughout the state. After months of preparation, the Pro Bono Commission held its inaugural meeting in April to launch the pro bono program and to begin recruiting volunteer lawyers from private law firms, government offices, and in-house counsel settings to provide vital legal services to the needy. We are especially pleased to be joined by Utah Supreme Court Justice Christine Durham and more than a dozen other dedicated volunteers who have agreed to serve as commissioners on the Pro Bono Commission. See sidebar listing Pro Bono Commission members.

In the coming months, we will provide you with information about this new and important effort, and we hope that you will seriously consider becoming involved. As Judge Learned Hand once said, “[i]f we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.” In keeping with this spirit, the Pro Bono Commission’s motto is “Lend a ‘Learned Hand’.” This slogan, we believe, captures a spirit that we hope you will embrace by volunteering to provide legal services to our most needy Utahns.

In addition to the hundreds of hours the Utah State Bar has invested to develop and initiate this important program, we are pleased to announce that the Utah Judicial Council passed a resolution endorsing the Pro Bono Commission. Specifically, the Judicial Council’s resolution states:

NOW THEREFORE BE IT RESOLVED, pursuant to Rule 2-201 of the Utah Rules of Judicial Administration, that the Utah Judicial Council endorses the Utah State Bar’s creation of the Pro Bono Commission and urges law firms, corporate law departments, and governmental law offices to adopt pro bono policies and procedures to engage all lawyers in pro bono service that will increase access to equal justice; and

BE IT FURTHER RESOLVED that, subject to the Utah Code of Judicial Conduct, we support the participation of judges in Utah Pro Bono Commission and District Pro Bono Committees activities to promote the wider availability of pro bono services.

The Pro Bono Commission will next focus on encouraging members of the Bar to volunteer for our program. We recognize that many of you are already committed to providing pro bono legal services in our community, and we sincerely thank you. In fact, the Bar’s recent survey, completed by over half of Utah State Bar members, revealed to us that more than 70% of those responding are already engaged in pro bono work on a weekly basis. The Pro Bono Commission’s program is designed to reach out to those of you already providing pro bono legal services, and to those of you newly considering volunteering your time to provide legal representation to those in need.

On your 2012 License Renewal Form, you will be given the opportunity to check “Yes.” Checking “Yes” will signify your willingness to volunteer to provide pro bono legal services on a case-by-case basis. The Pro Bono Commission members may be visiting you and your law firms to encourage you to check “Yes” and to provide pro bono legal services in Utah. Please look for electronic announcements and other promotional materials regarding your opportunity to check “Yes” and lend a “Learned Hand” in support of the Pro Bono Commission. We hope that each and every one of you, when you complete your License Renewal Form will check “Yes” for the Pro Bono Commission.

Those of you who check “Yes” will receive a brief, easy-to-complete electronic survey designed to determine your areas of interest, normal practice areas, and location. The Pro Bono Commission will then use this information to “match” volunteer lawyers with clients in need of pro bono legal services. The task of “matching” volunteer lawyers with pro bono clients will be managed by Pro Bono Committees in each of Utah’s eight judicial districts. The model of “district-based” pro bono services is one adopted by many states throughout the West and across the nation. District-based Pro Bono Committees are better suited to efficiently distribute pro bono services at a local level in response to individual community needs. In addition, District Pro Bono Committees will better be able to develop programs for improving local pro bono programs, such as the popular Tuesday Night Bar programs and other legal clinics for low income Utahns.

Importantly, this is a volunteer program. The Pro Bono Commission is designed to give volunteer lawyers the opportunity to select from a number of cases to choose matters that match lawyer practice areas and skill sets. In those instances where, due to the vagaries of the practice of law, you do not have time to take a case, you will be free to decline it. Our Utah Rules of Professional Conduct contain aspirational goals that each Utah State Bar member provide fifty hours of pro bono services annually. See Utah R. Prof’l Conduct 6.1. But the Pro Bono Commission is a volunteer program, and the Commission is committed to respecting the busy schedules that govern the way so many of you manage your practices.

The Pro Bono Commission will be providing free CLE and training for program participants who wish to develop skills in new areas. For instance, commercial litigators can attend free CLE to develop the skills to handle domestic cases which would allow them to assist pro bono clients in need of basic family law legal services. In-house counsel can learn how to assist low income clients with small consumer bankruptcy matters. Transactional lawyers can attend a CLE for training on how to obtain protective orders for domestic violence victims. Retired lawyers anxious to give back to the community can brush up their skills and prepare themselves to volunteer in the Pro Bono Commission’s program. In short, the Pro Bono Commission’s program takes a holistic approach to providing pro bono legal services, connecting needy clients with lawyers who have the skills to provide assistance where it is needed most.

The Pro Bono Commission not only needs volunteer lawyers to provide legal assistance to the needy, but also to help lead the Pro Bono Committees in Utah’s eight judicial districts. Each district committee will be staffed by two co-chairs and an additional eight to ten members. The District Committees’ responsibilities include developing local pro bono programs and ensuring that the matching of volunteer lawyers with pro bono clients, a process that will be largely automated and directed by the Bar’s Pro Bono Coordinator, is done as effectively as possible. The Pro Bono Commission has already solicited/requested that you assist in this important aspect of the program, and we ask you to seriously consider volunteering your services on a District Pro Bono Committee.

In 2006, “and Justice for all” conducted an exhaustive study of unmet legal needs throughout the state. The conclusions reached by the study were startling: While Utah’s dedicated non-profit agencies, like Utah Legal Services, Legal Aid Society of Salt Lake, and the Disability Law Center provide exceptional service to the needy, hundreds of Utahns go without legal representation and, as a result, are denied access to justice. Accordingly, we need your help in our attempts to remedy this problem.

Only clients who meet eligibility guidelines will be permitted to participate in the program. Pro bono clients will be screened by Bar staff and non-profit legal service providers like Utah Legal Services. Those clients who meet the criteria for pro bono legal services will provide information to intake personnel who will create case summaries for each potential pro bono case. District Pro Bono Committees will distribute case summaries to volunteer lawyers so that they can select appropriate cases and perform necessary conflicts checks.

Volunteer lawyers will not walk the pro bono road alone. The Utah State Bar recently hired an attorney, Michelle V. Harvey, to serve as the Bar’s Pro Bono Coordinator. Ms. Harvey, an attorney and dedicated champion of pro bono legal services, left her private practice to take on this unique challenge and help launch Utah’s Pro Bono Commission. Her responsibilities include ensuring that volunteer lawyers enjoy the support they need in their pro bono cases. Ms. Harvey will also be responsible for maintaining a database of pro bono cases, developing case summaries, providing support to the Pro Bono Commission and the District Pro Bono Committees, and serving as the administrative support structure for the entire program.

We firmly believe that your willingness to volunteer your time and provide pro bono legal services will not only help fill the ever-widening gap of unmet legal needs, but will also enrich your life and your practice. Lawyers have a unique skill set that few other professionals possess. Those of you who are willing to volunteer your time can change people’s lives. Participating in a matter that may seem small in scope and take an hour or two of your time can hugely benefit those in need and pay huge dividends to you by improving your level of satisfaction in your practice.

For these reasons we ask you to seize the opportunity to get involved in the Pro Bono Commission. Please check “Yes” on this year’s bar License Renewal Form to lend a “Learned Hand.” We look forward to working with you and thank you for your dedicated service.

Continue reading "Commission Message" »

Views from the Bench

“Perhaps this will refresh your memory.”
Ten Ways to Reduce Judicial Stress

by Judge Steven Wallace

For many years I kept before me on the bench, out of the sight of litigants, my favorite James Thurber cartoon. It is a courtroom scene, the judge on the bench, a witness on the stand, and the cross-examining lawyer, sternly pointing to a kangaroo he has in tow and facing the witness, saying: “Perhaps this will refresh your memory.”

In the cartoon, the judge has a “Now what?” expression on his face and you just know that he’s churning inside, wondering when the chief judge is going to transfer him back to probate. Of course, the whole thing is nonsensical and trying to make sense of it is part of the amusement Thurber planned. But for a real life judge, making sense of what the real lawyers are doing in a very real courtroom, at times, may stretch a jurist’s very finite anti-stress capacity.

A judge needs a way to cope with everyday stressors such as lawyers with kangaroos and other adversarial shenanigans. In his or her battle against the demands of a very important, powerful job, many of the same stress-reduction techniques can be utilized that are available to other high octane professionals. Some of what follows are generally recognized stress combatants. Some are more judicially oriented than not. But all of the ten methods included here have one thing in common: the opposite of each causes stress.

Exercise Regularly
Perhaps the most important anti-stress remedy available to a judge, as with anyone else, is regular (if not daily) exercise. Visit your physician, find out what sort of fitness program is recommended for you, then – as they say – just do it.

What’s important here is to find a way to make this a part of your routine, like brushing your teeth. The hardest part is dealing with the common rationalizations not to do it: I’m too tired, it’s too late, it’s too dark, it’s too cold (hot), I don’t have time, or whatever. The list can be endless. But whether it’s a thirty minute walk, a jog around the park, or a treadmill in chambers, the stress-relieving benefits of aerobic exercise are well-documented.

Because I’m a morning person, I typically exercise as the day begins. Years ago, I jogged during lunch time. I have also used pre-dinner runs to work the day’s stressors off, shedding courtroom frustrations and docket distractions like so many noxious microorganisms.

You need to apply the single-minded dedication that you brought to bear on getting to where you are professionally and make regular exercise something you can’t live without.

Get Sufficient Sleep
Everyone needs their rest, and hard-working professionals in demanding, mentally-taxing jobs need it most of all. It shouldn’t take too much effort to figure out what your minimum daily requirement is. Most of us need at least seven or eight hours of sleep per day. Perhaps there are some present-day Churchills out there who can get by with less. In any event, as with exercise, the physical and psychic benefits of sleep are not open to question. In fact, we have learned that the former promotes the latter. Just make sure that, if you exercise at the end of the day, you leave at least three hours before you go to bed.

A well-rested judge is a patient, understanding judge. On the other hand, a tired or strung-out judge is not someone any lawyer or litigant ought to have to suffer. Getting a good night’s sleep will enhance your ability to deal with stress and add to your life span as a direct result.

Control Your Docket
This is one of those things that’s easier said than done and, certainly, the subject for a whole other article. See Eight Rules for Judicial Time Management, Judicature Vol 91, No. 2, Sept-Oct 2007, by the author. Simply put, a judge needs to employ time management skills in controlling his or her calendar or risk being buried by it. Now, that’s stress.

Just as “it’s too cold” is a poor rationalization for not exercising, “I have too many cases” is a poor rationalization for losing control of one’s docket. If you start on time, work a full day, don’t feel compelled to quit at five, and keep the pressure on the lawyers to close cases, you’ll have made great gains toward not letting the number of pending cases bog you down.

If you set aside time every day to work on the stacks of files on your desk, if you don’t talk too much while on the bench, if you don’t let the lawyers run the show, and if you minimize continuances, you’ll be amazed how many cases you can close every week.

Once you have control of your docket, you have control over one of the biggest stressors in a judge’s life. A judge, after all, is supposed to be in control. But it takes application and courage and a common sense recognition that continuance requests are not your friend. It’s a fair bet that the judge who most readily grants continuances requests that lack good cause has the highest case count in the courthouse.

Actually, I have always found it amazing how readily a denial of a requested delay results in a case resolution. Perhaps that is a function of how infrequently continuance requests are grounded in real necessity. Perhaps it reflects back-against-the-wall case negotiation. In any event, the judge’s docket gets managed and – as a result – the judge’s stress level remains under control as well.

Decide, Then Move On
Incredibly, there are judges who shy away from making decisions. Just like the claustrophobic elevator operator, perhaps someone has been miscast. It has always both amused and annoyed me when I’ve seen fellow judges who seem to avoid looking across the bench at lawyers and litigants and deciding a case eyeball-to-eyeball. “I’ll take it under advisement,” the judge says, intending to mail them a decision.

Perhaps this is one of the reasons that experienced trial lawyers often transition so well into judgeships. They are used to the pressure of the courtroom and the constant, spur-of-the-moment decision-making process.

There’s no reason why a trial level judge should not be able to make decisions in the courtroom, look the parties in the eye, and tell them who won and who lost. “Motion to suppress is granted.” Unless he or she does not know whether it should be granted or denied, but that is a whole other issue.

The great baseball pitcher Satchel Paige once said: “Don’t look back, something might be gaining on you.” That philosophy has a valid application to judging and the decision-making process. Decide, then move on. Your stress level will benefit from it.

If In Doubt, Don’t
The other side of the coin is another truism: a judge should not feel compelled to decide if he or she has some substantive doubt regarding what the decision ought to be. There are times when one needs to think about it, or do a little research on one’s own (not that the lawyers would ever fail to provide the court with applicable, up-to-date law), or perhaps even take some additional evidence or testimony.

Stress is a natural result from feeling forced to make a decision without an adequate comfort level. People’s lives often weigh in the balance, after all. If a judge needs to take some additional time before gaining a reasonable foothold on the proper path to take, that extra effort is justified for everyone’s sake, including the stress level of the judge.

Sometimes, once the evidence and the argument have been presented and the lawyers and litigants look toward the judge, awaiting the judgment, one feels pressured to satisfy that expectation. And I’ve already proffered Rule 4, which urges decisions to be made, but that should not push a judge into making a ruling about which he or she is not fully certain. The point is, stress-wise, harboring doubt after a decision is made is not healthy for a judge.

Keep Current in the Law
To avoid the kind of tentativeness that can intrude on the decision-making process, a judge must keep current in the law. While no one can be expected to know it all, it is a given that the lawyers cannot always be depended upon to assist the court in steering without mishap through the myriad of issues that present themselves in a busy courtroom. Without a firm base in current law regarding the most oft-occurring common substantive, procedural and evidentiary matters, a judge’s decision-making comfort level can go down and his or her stress level can go up.

Even when a judge keeps current, of course, the vast quantity of material does not lend itself to immediate recall on the spur of the moment when an objection is raised or a procedure questioned. One way to maintain a tip-of-the-finger reference is a courtroom notebook, with tabbed dividers denoting subjects to which one can flip when needing to check on a recent case or a general rule. This notebook can be continually updated as one keeps current, adding whatever points of law one suspects may be encountered in the courtroom.

Continue reading "Views from the Bench" »

Article - Utah Originalism

by Troy L. Booher

Introduction
The Utah Supreme Court has had a tenuous relationship with originalism. Originalism is a collection of views unified by their treatment of events at the time constitutional text was drafted and ratified as determinative of how that text later should be interpreted. Although originalism is often associated with political Conservatism, it is worth keeping in mind that originalism produces decisions in line with other political viewpoints. Consider, for example, State v. Hernandez, 2011 UT 70, 268 P.3d 822, a recent case in which the Utah Supreme Court, in light of the history and original understanding of Article I, Section 13 of the Utah Constitution, held that a preliminary hearing is required not just in cases involving felonies but also in cases involving Class A misdemeanors. See id. 2011 UT 70, ¶ 29. While originalists look to the views of the founding generation, originalism does not require that those views track any particular political ideology.

The Utah Supreme Court has not settled on what information it will consider when interpreting the Utah Constitution. For instance, in 1993, the court described the relevant considerations as “historical and textual evidence, sister state law, and policy argument in the form of economic and sociological materials.” Soc’y of Separationists, Inc. v. Whitehead, 870 P.2d 916, 921 n.6 (Utah 1993). But in 2006, the court expressly removed “policy argument” from that list of relevant considerations and stated instead that it will consider “text, historical evidence of the state of the law when it was drafted, and Utah’s particular traditions at the time of drafting.” Am. Bush v. City of S. Salt Lake, 2006 UT 40, ¶ 12 n.3, 140 P.3d 1235. Then in 2007, the court declared that historical arguments “do not represent a sine qua non in constitutional analysis.” State v. Tiedeman, 2007 UT 49, ¶ 37, 162 P.3d 1106. It again stated that relevant considerations include “historical and textual evidence, sister state law, and policy argument in the form of economic and sociological materials.” Id.

The primary dispute emerging from those cases is not whether text and historical evidence are relevant to constitutional interpretation, but whether policy arguments also are relevant. See, e.g., State v. Walker, 2011 UT 53, ¶ 32 n.9, 267 P.3d 210 (Lee, J., concurring); Am. Bush, 2006 UT 40, ¶ 73 n.2 (Durrant, J., concurring). Viewed through the lens of originalism, that dispute can be understood in at least two ways: (i) whether originalism is the method by which the Utah Constitution should be interpreted or (ii) whether originalism authorizes courts to consider policy arguments in interpreting the Utah Constitution.


In addressing the relationship between originalism and policy, justices of the Utah Supreme Court in opinions and members of the Utah State Bar in various articles published in this Journal have assumed that originalism dictates the same analysis when applied to the Utah Constitution as when applied to the United States Constitution.1 That assumption is unwarranted. Utah originalism is different because Utah history and the Utah Constitution are different. And those differences make it far from obvious that policy arguments are irrelevant when interpreting the Utah Constitution, even for originalists.

Originalism and the United States Constitution
Nearly all discussions of originalism concern how to interpret the United States Constitution. Justice Scalia has framed national debates concerning originalism in a particularly useful way, i.e., as debates over whether the method of common law judging – by which judges “make” and improve the law in light of policy arguments – should be the method for interpreting constitutions and statutes.2 Justice Scalia argues that it is undemocratic and illegitimate for judges to employ the common law method when interpreting legal texts such as constitutions.

The relationship between democracy and constitutionalism is too complex to summarize here. It is possible, however, to mention some of the most common arguments advanced in support of originalism that involve appeals to democratic principles.

1. Judges are not authorized to employ the common law method when interpreting constitutional text because judges are not politically accountable. Under Article III, Section 1 of the United States Constitution, federal judges have life tenure and their compensation may not be diminished. As the famous anti-federalist Brutus complained, Article III made judges “independent of the people, of the legislature, and of every power under heaven.” Brutus Essay XV (Mar. 20, 1788). Because judges are not politically accountable, their decisions have democratic legitimacy only to the extent judges are merely interpreting laws enacted through appropriate democratic processes, such as ratified constitutional provisions. For that reason, judges should avoid policymaking and instead act, as Justice Roberts put it during his confirmation hearing, as umpires calling balls and strikes.3 Originalism ensures that judges frustrate the views of current majorities only by exercising authority derived from those past supermajorities who ratified the constitutional provision under which the state action is unconstitutional.

2. Judges are not authorized to employ the common law method when interpreting constitutional text because, at the founding, it was understood that judges would enforce statutes as long as those statutes were arguably constitutional. To the extent broad constitutional language was vague or ambiguous (e.g., “freedom of speech” or “due process”), the political branches were authorized to elaborate their meaning. In 1789, not only was judicial review controversial, but, to the extent it was accepted, it was confined to declaring statutes unconstitutional only when those statutes clearly violated the Constitution. As Professor James Thayer put it a century later in 1893, judicial review “was denied by several members of the Federal convention, and was referred to as unsettled by various judges in the last two decades of the last century.”4 And when judicial review became widely accepted, the judiciary could declare statutes unconstitutional only when “the violation of the constitution is so manifest as to leave no room for reasonable doubt.” Commonwealth ex rel. O’Hara v. Smith, 4 Binn. 117, 123 (Pa. 1811). Originalism, therefore, requires judges to defer to political branch interpretations of constitutional text as long as those interpretations fall within a range of reasonable meanings of that text. The political branches, not the judiciary, are authorized to elaborate the meaning of vague or ambiguous constitutional text. As Brutus would have put it, because the political branches are politically accountable, those branches elaborate meaning “at their peril.” Brutus Essay XV.

3. Judges are not authorized to employ the common law method when interpreting constitutional text because, unlike unpopular common law and unpopular interpretations of statutes, both of which can be altered by statute, unpopular interpretations of the constitution are extremely difficult to alter through constitutional amendment. Arguably, legislative bodies tacitly approve of common law by failing to enact legislation to alter it and tacitly approve of judicial interpretations of statutes by failing to amend those statutes. Depending upon the nature of the legislative process, such claims of tacit consent have some purchase. But given how difficult it is to amend the United States Constitution, it is pure fiction to consider citizens as tacitly consenting to a judicial interpretation of the Constitution by failing to amend the Constitution. Because judicial interpretations of the Constitution are nearly impossible to correct through amendment, judges must interpret the Constitution in accordance with its original meaning instead of employing a common law method. Otherwise, the common law method provides a license to unelected judges to change the meaning of constitutional provisions in a way no majority, let alone a supermajority, has authorized.

The combination of those familiar arguments makes a fairly powerful point concerning the relationship between democracy and judicial interpretations of the United States Constitution. Were federal judges authorized to employ common law methods when interpreting constitutional text, five citizens (justices) with no political accountability would have authority to change the Constitution to mean something that no other citizens had authorized and that a majority of citizen realistically could not alter through constitutional amendment.

There are several responses to those arguments, none of which can be explored in any depth here. Alexander Hamilton in Federalist 78 suggested that a political check would be the executive branch’s refusal to enforce the Court’s decisions. As Hamilton put it, the judiciary is the least dangerous branch because it has “no influence over either the sword or the purse.” The Federalist No. 78 (Alexander Hamilton). Instead, the executive branch has the sword, which it can decline to use to enforce the Court’s decisions “at its peril.”

Another response is that the Constitution, and especially the Bill of Rights, was designed to check future majorities as much as to enable future majorities to govern themselves, and, therefore, the anti-democratic implications should be embraced, not lamented. Arguably, even before the Bill of Rights it was understood that members of the federal judiciary would serve as a natural aristocracy, something James Madison recognized in Federalist 49. See The Federalist No. 49 (James Madison). In that essay, Madison articulates a number of arguments “against a frequent reference of constitutional questions to the decision of the whole society.” Id. The “permanency” of judicial appointments would allow judges to thwart the “passions” of current majorities and provide a more stable government based upon “reason.” Id. We created a republic with checks and balances, not a direct democracy, for that very reason.

I mention such responses only to acknowledge them, not to suggest they are decisive. And there are a number of other responses I will not mention because my point here is different. My point is that, even assuming the originalist arguments are compelling with respect to interpretation of the United States Constitution, those arguments cannot be transplanted mechanically into discussions of how to interpret the Utah Constitution. For originalists, any discussion of Utah originalism must rely upon the history surrounding the Utah Constitution.

Originalism and the Utah Constitution
To be clear, this article does not demonstrate that Utah judges are authorized to employ a common law method and consider policy arguments when interpreting the Utah Constitution. That requires much more discussion. Instead, this article suggests that it is a mistake to conclude that Utah judges are not authorized to employ the common law method when interpreting the Utah Constitution merely because federal judges are not authorized to employ the common law method when interpreting the United States Constitution.

Consider how the originalist arguments described above differ when the discussion changes to the Utah Supreme Court’s authority to interpret the Utah Constitution, ratified in 1896.

Continue reading "Article - Utah Originalism" »

Helping Clients Talk

by Keith A. Call

Suppose you and your client believe an obstreperous opposing counsel is standing in the way of achieving a fair settlement. Your client tells you he wants to meet with the opposing party in a private client-to-client meeting, and he wants your guidance. What kind of advice can you ethically provide?

Rule 4.2(a) states, “[A] lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter.…” Utah R. Prof’l Conduct 4.2(a). Rule 8.4(a) deems it professional misconduct to attempt to violate the rules through the acts of another. See id. R. 8.4(a). On their face, these rules appear to be fairly restrictive on your ability to proceed.

Comment [6] to Rule 4.2 provides a little guidance. “Parties to a matter may communicate directly with each other, and a lawyer is not prohibited from advising a client concerning a communication that the client is legally entitled to make.” Id. R. 4.2, cmt. 6. Beyond these statements in the rules and comments, there is little Utah authority on the issue. And cases and opinions from other states express a wide disparity of views on how far a lawyer may go in orchestrating client-to-client communications.

May a lawyer originate the idea and encourage the client to speak directly to a represented adverse party?
Even on this simple question, ethics committees around the country are split. Some decisions and opinions appear to conclude that it is unethical for a lawyer to encourage a client to speak directly to an adverse party. One opinion even seems to conclude that the lawyer must discourage the client from direct communications. See, e.g., Massachusetts Bar Op. 82-8 (1982) (stating that a lawyer should discourage the client from discussing settlement with the opposing party without the opposing lawyer’s consent). Other opinions conclude that it is okay to invite or encourage the client to speak directly with the other party. See, e.g., Oregon Ethics Op. 2005-147 (2005).

How much direction may the lawyer provide?
Some cases and opinions would preclude the lawyer from directing the content of client-to-client communications, and especially from “scripting” the conversation. Words, specific questions, or specific thoughts originating from the lawyer are often prohibited. And some opinions hold that the lawyer may not draft documents for the client to sign or deliver. See, e.g., California Comm. on Prof’l Responsibility & Conduct, Formal Ethics Op. 1993-131 (1993); Massachusetts Bar Op. 11-03 (2011).

A recent opinion from the American Bar Association would liberalize these standards. The opinion reasons that an overly stringent standard would “unduly inhibit permissible and proper advice to the client regarding the content of the communication, greatly restricting the assistance the lawyer may appropriately give to a client.” ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Opinion 11-461 (2011).

Drawing liberally from the Restatement (Third) of the Law Governing Lawyers, the new ABA opinion would allow lawyers to give substantial guidance regarding a client’s substantive communications with the adverse party. See id.; Restatement (Third) of the Law Governing Lawyers § 99 cmt (k) (2000). For example, the lawyer could provide advice on the subjects to be addressed, issues to be raised, and strategies to be used. See ABA Standing Comm. on Ethics & Prof’l Responsibility, Formal Op. 11-461. A lawyer may also review, redraft, and approve a letter or set of talking points prepared by the client. See id. At the client’s request and with certain conditions, the lawyer may even draft the basic terms of a proposed settlement agreement. See id.

Be conservative and play fair.
The bottom line for Utah lawyers is that the applicable standards remain unsettled. Utah’s Rule 4.2 differs substantially from the ABA model rule, and it is unclear whether our Office of Professional Conduct or our courts would follow the ABA opinion or some other view. Utah lawyers should therefore play it conservatively.

Whether directly applicable in Utah or not, the recent ABA opinion teaches an important principle. In advising a client about direct party communications, every lawyer should use common playground fairness. Avoid giving any advice that would subvert the purposes of Rule 4.2, which include lawyer overreaching, uncounseled disclosure of information by the opposing party, and lawyer interference with the attorney-client relationship. In other words, don’t coach your client to obtain disclosures of confidential information. Don’t coach your client to try to get admissions hurtful to your adversary. And don’t try to subvert the opposing party’s attorney-client relationship.

In areas like this one where the law is unsettled, a little dose of conservatism and a big dose of simple fairness will help you stay out of trouble in most situations.

Advice on Not Giving Investment Advice

by Jason D. Rogers and Brad R. Jacobsen

Many people would believe that investment advisers are only those that give opinions on which stocks, bonds, or mutual funds to buy. However, under applicable securities laws “investment adviser” is much more broadly defined than commonly thought, potentially including those who simply give general financial counseling or planning or those who recommend the purchase of a particular asset.

The question of whether or not a person is an investment adviser frequently arises in a real estate, insurance, or other sales context. Such salespeople would not generally think they are subject to the securities laws, but, depending on their activities, they may be.

The following will be addressed:

• What makes an individual an “investment adviser”?

• What steps may be taken to avoid being deemed an investment adviser?

“Investment advisers” generally must be licensed by an applicable regulator. Investment advisers are regulated by both federal and state law.


Federal Regulation
At the federal level, investment advisers are governed by the Investment Advisers Act of 1940 (the “Act”). See 15 U.S.C. § 806-1 et seq. The Act defines an investment adviser as “any person who, for compensation, engages in the business of advising others…as to the value of securities or as to the advisability of investing in, purchasing, or selling securities….” Id. § 806-2(a)(11). “Securities” include a broad array of instruments and agreements, including much more than the commonly-used definition of the word.

Special rules apply to investment advisers, including specific prohibitions against fraudulent practices, undisclosed conflicts of interest, fee splitting with unregistered investment advisers, deceptive advertising, limitations on referral fees, and prohibitions of certain advisory fees. Additionally, investment advisers generally must be registered with federal or state regulators. Violations of these rules can subject investment advisers to civil and criminal penalties.

The U.S. Securities and Exchange Commission (SEC) has set out the following three requirements, all of which must be satisfied to be an investment adviser. A person is an investment adviser if the person:

(1) Provides advice, or issues reports or analyses, regarding securities (“investment advice”);

(2) Is in the business of providing such services; and

(3) Provides such services for compensation.

SEC Interpretive Release No. IA-1092, 1987 SEC No-Act. LEXIS 2555 (Oct. 8, 1987) (referred to as “IA-1092”).

Each requirement will be discussed.


Provides Investment Advice
There are few clear-cut rules to define investment advice. Most of the guidance has come through SEC no-action letters dealing with the following particular situations.

General Rules
Giving advice on specific securities is investment advice, such as providing market timing services. See Lee F. Richardson, 1990 SEC No-Act. LEXIS 32 (Jan. 9, 1990). A person who provides advice concerning securities, even if the advice does not reference specific securities, is generally an investment adviser. See IA-1092. This includes advising clients concerning the relative advantages and disadvantages of investing in securities in general as compared to other investments. See Richard K. May, 1979 SEC No-Act. LEXIS 3967 (Dec. 11, 1979). Encouraging people to liquidate securities to purchase real estate, insurance, or other assets could be considered investment advice.

Situations That May Be Investment Advice
A person could be providing investment advice if, in the course of developing a financial program, he recommends that clients allocate certain percentages of their assets to life insurance, high yielding bonds, and mutual funds. See IA-1092. Investment advice also may include analyzing information to give categories of investments that similar investors historically have been satisfied with. See Financial Psychology Corporation, 1988 SEC No.-Act. LEXIS 413 (Mar. 23, 1988). A person providing advice as to the selection or retention of an investment manager also may be giving investment advice. See IA-1092.

Situations That Are Not Investment Advice
Providing general, impersonal, and historical information does not constitute investment advice. Describing investment options available through an employee benefit plan, without including analysis or recommendation with respect to options, is not investment advice. See Pension & Welfare Benefits Administration, 1996 SEC No-Act. LEXIS 316 (Feb. 22, 1996). Providing merely administrative or ministerial functions does not constitute investment advice. See League Central Credit Union, 1987 SEC No-Act. LEXIS 2369 (Aug. 21, 1987).

In another example, a publisher of a financial bulletin that indicated prices at which it recommended buying or selling publicly-traded stocks gave seminars to promote its bulletin. See Laketon Corporation, 1993 SEC No-Act. 912 (Jul. 26, 1993). At the seminars it offered only general, impersonal advice, explaining the statistical basis for the bulletin’s recommendation, the methods it used to recommend investments and why investors should follow its approach. The seminars were not designed to require attendance for more than one session. The SEC declined to take action against the publisher based on the fact that (1) the seminars were only designed to solicit subscriptions;1 (2) the seminars offered only general, impersonal advice about the publisher’s investment strategy; and (3) each program was discrete and was not designed to attract or require attendance on more than one occasion.


The line between what constitutes giving “investment advice” (requiring a person to be licensed as an investment adviser) and what does not, unfortunately, is not a clear line. The determination of whether any person should be licensed as an investment adviser (or otherwise) will require a review of the facts and circumstances for each individual. See IA-1092. The SEC generally will not issue no-action letters regarding financial planning activities, so it is difficult to obtain further guidance. See George J. Dippold, 1990 SEC No-ACT. LEXIS 748 (May 7, 1990).

Providing general, impersonal, and historic information is not investment advice. However, personalizing the information, if it emphasizes that alternative investments are superior to securities, could become investment advice. Special care should be taken to avoid personalizing the information. Explaining options does not constitute investment advice, but recommending a particular option becomes investment advice.

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Recent Changes to the Lawyer's Fund for Client Protection

by Linda J. Barclay Mount

Your new client, Mrs. Y, walks into your office and presents you with a sad tale of woe. She is in the middle of a bitter divorce. You find out that she had been a client of Attorney X. She relates that she met once with Attorney X, who seemed at the time very capable and caring. Attorney X promised her that he would give her case his utmost attention and care and, in return, expected her to pay a $5,000 retainer before he began performing legal services. Mrs. Y ransacked all available sources of cash, sold her wedding ring, and took out a loan from her sister to raise the $5,000. Attorney X took the $5,000 and, then, for the next three months, failed to return Mrs. Y's telephone calls or to do any work at all. While reading the newspaper last week, Mrs. Y discovered that Attorney X had just been disbarred and was no longer in practice. She is distraught because she has just been served an Order to Show Cause by her husband and she now has no legal representation and no money. What do you, as Mrs. Y's new lawyer, do to help her?

Unfortunately, this sort of problem occurs with dismaying frequency. Accordingly, a number of states and the American Bar Association came up with a way to mitigate it. They proposed a fund, created by the state bar association or related entity, to reimburse clients for losses incurred by the dishonest conduct of their licensed attorneys. Following the American Bar Association Model Rules, and those of other states, the Utah State Bar established what is now known as the Lawyer's Fund for Client Protection (Client Security Fund or CSF or Fund). See Utah Sup. Ct. R. Prof'l Practice 14-902.

The purposes of the CSF are to provide meaningful prompt reimbursement to clients for losses caused by the dishonest conduct committed by lawyers admitted to practice in Utah, and, more broadly, to promote public confidence in the administration of justice and the integrity of the legal profession. See id. R.14-902 (a)-(b). The Fund is administered under the direction of the Utah State Bar Board of Bar Commissioners (Commission) with the assistance of the Office of Professional Conduct (OPC), with claims heard by the CSF Committee. The CSF Committee is currently comprised of a long-time chair, Judge David R. Hamilton, and several experienced lawyers. Basic administrative functions are supported by a Bar staff member. Once sufficient claims have accumulated, the staff member schedules hearings before the CSF Committee, which holds hearings several times per year. See id. R.14-906(c).

The CSF is funded by periodically assessing every lawyer licensed to practice and on active status in Utah. See id. R.14-904(c). Typically, the assessment, paid along with Bar dues, has been between $10 and $20 per year per lawyer. The BarÕs Executive Director and Financial Officer determine the amount of the annual assessment based on the previous yearÕs paid claims.

For a claim to be eligible for payment from the CSF, the loss must be caused by the dishonest conduct of the lawyer, and shall have arisen out of a lawyer/client or fiduciary relationship between the lawyer and the claimant and by reason of that relationship. See id. R.14-910(a). Dishonest conduct includes not only actual conversion of client funds but also failure to perform paid-for legal work. The CSF Committee also regards a lawyerÕs failure to maintain adequate funding in a trust account to cover obligations due to clients, including unearned funds, to be dishonest conduct. In Mrs. Y's case, Attorney X took her $5,000 retainer without performing any meaningful legal services, a dishonest act for CSF purposes.

You can instruct Mrs. Y to make a claim for reimbursement from the CSF by completing a form which is available through the Utah State Bar. This form requires the claimant to identify himself or herself, the lawyer, the amount paid to the lawyer, what services the lawyer was supposed to perform, the date and circumstances surrounding the loss, and the identification of anyone else to whom he or she has reported the loss. Claimant also must agree to cooperate with the CSF Committee regarding the claim, to assent to the publication of appropriate information about the claim and any reimbursement which might be made, and to provide the CSF with a pro tanto transfer of his or her rights against the lawyer and other relevant parties. See id. R.14-911; see also id. R.14-915(b), (e). The claim must be filed within one year after the date of the final order of discipline or the date of death or disability of the lawyer. See id. R.14-910(b).

The OPC provides available information to the CSF Committee about each claim. This process enables the CSF Committee to verify basic information about the claim. If it appears that any claim would not be eligible for reimbursement, administrative staff returns the claim to the claimant for submission of additional information. If the claimant cannot submit sufficient relevant information, the case is closed.

Once a claim has been successfully vetted, the Bar administrative staff notifies the claimant and the attorney of the date and time of the scheduled hearing. Both have a chance to respond and may appear before the CSF Committee in person or telephonically. They may either be represented by counsel or appear pro se. Prior to each hearing, the Committee Chairman describes the nature of the Fund and the requirements for reimbursement, states that no person has a legal right to reimbursement from the Fund, and notes that any payment is made as a matter of grace. See Utah Sup. Ct. R. Prof'l Practice 14-914. Hearings generally take fifteen to thirty minutes. The claimant is encouraged to explain the claim. If the attorney has chosen to appear, the claimant is excused and the attorney is allowed to present his or her position. Committee members are able to ask questions of both parties to clarify their understandings of the claim.

Although the claimant has a duty to support the claim with relevant evidence, there are neither technical rules of evidence and procedure, nor witness requirements. Any relevant evidence is admissible if it is the "sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in court proceedings." Id. R.14-912(h). The CSF Committee will, however, consider a certified copy of an order disciplining a lawyer, or a final judgment imposing civil or criminal liability for the same dishonest act as alleged in the claim, to be evidence that the lawyer committed the dishonest act. See id. R.14-912(b).

After the claimant and the lawyer have left the hearing room, the Committee discusses the case and determines, on the basis of all available evidence, (1) whether the claim is payable under the rules; (2) if payable, how much should be paid; and (3) any other pertinent issues. See id. R.14-912(g).

For a claim to be payable, the loss must have been caused by the dishonest conduct of the lawyer. See id. R.14-910(a). A claim is only considered if the lawyer has been disciplined to a threshold level of a public reprimand or is no longer in practice. See id. R.14-912(f). The OPC generally provides this evidence. Then, the Committee must find that the particular act complained of was the result of dishonest conduct. If there is an order or judgment regarding the act complained of in evidence, this determination is easily done. However, not all dishonest acts committed by a publicly disciplined lawyer come to an order or judgment, and not all acts done by the lawyer are necessarily dishonest. Accordingly, the CSF Committee may consider all the available evidence in determining whether a dishonest act actually occurred. The CSF Committee's finding of dishonest conduct is for purposes of recovery from the Fund, only, and does not constitute a finding of dishonest conduct for purposes of professional discipline. See id. No claim can be approved during the pendency of a disciplinary proceeding involving the conduct at issue in the claim. Any disciplinary proceeding must be concluded prior to any hearing. See id. R.14-912(j).

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Reading Your Way to Stellar Legal Writing - A Review of “Building Your Best Argument”

by Cecil C. Kuhne III
Reviewed by Nicholas Clyde Mills

In overtime at the 1997 NCAA tournament, Iowa Hawkeye wrestler Lincoln McIlravy won his third national championship. I was a high school wrestler at the time and I watched and studied college wrestlers to improve my skills. Lincoln had a wrestling move that I attempted to emulate. In the move – an arm drag for those familiar with the vernacular – Lincoln would pull on his opponent’s arm, causing him to be unbalanced. Lincoln would then trip his opponent and move behind to score a takedown. Lincoln used this move to win that 1997 NCAA national championship. I recorded and watched this technique repeatedly, drilled it in the wrestling room, and ended up winning some matches of my own with it.

Cecil C. Kuhne argues that an attorney could gain legal writing skills in much the same way. The thesis of his book, Building Your Best Argument, is that by reading and examining the best legal briefs in the country, an attorney can develop greater writing skills. To illustrate how to accomplish this task, Kuhne discusses thirteen common components required of an outstanding pleading and draws from briefs produced by the Solicitor General’s office to highlight each point. Kuhne does a good job of guiding attorneys towards better writing. While Kuhne points out that there are “no magic bullets or secret formulas” to legal argument, this book will help most writers improve their skill set. See Cecil C. Kuhne III, Building Your Best Argument vi (ABA Publishing) (2010).

Kuhne’s first chapter is a basic introduction advocating sound principles for legal writing. Thereafter, Kuhne’s chapters start with a page or two of introductory material on a specific topic, followed by several examples from the Solicitor General briefs. Because he wants to focus only on the writing skills, Kuhne has removed the citations from the briefs and includes only the relevant excerpts. This allows the reader to focus solely on the principles taught and not get distracted – or bored – by a string of citations following every sentence. It makes the book much easier to read and digest quickly. The chapters are well titled, with each title containing a helpful mental cue to remind the reader of the chapter’s content. For example, chapter seven is entitled “History of the Case: The Devil is in the Details” and chapter thirteen is entitled, “Obsessive-Compulsive: Organization is Key.” After reading the chapter the vivid title stimulates the thought process much more than, “Case History” and “Headings for Your Brief” would have. The book’s pattern makes it useful as a writing tool, because it facilitates easy review of each topic.

The best part of the book is the strength of Kuhne’s writing. Chapter after chapter, I was left wanting to hear more of Kuhne’s simple, but powerful pieces of advice. One of my favorites was, “[The judge] is reading not to be entertained, but to make a decision, and he rightfully expects the document before him to assist in that weighty task.” Id. at 51. Kuhne’s writing has neither footnotes nor citations. This approach gives Kuhne’s writing an “insider information” feel. Each chapter reads like a patient senior partner giving sage advice to a young associate. Kuhne writes in a simple, easy-to-understand manner. His words are profound.

Kuhne has also selected some amazing examples to include in his book. While selecting good legal writing examples from the Solicitor General briefs is somewhat akin to selecting a prom date from the Dallas Cowboys Cheerleaders, the examples were really top-shelf. Each chapter had examples from several legal subjects. For example, chapter six has a constitutional, property, tax, and criminal law example. Occasionally, I found a particular example was difficult to understand. But because each section had four examples, I was always able to find one or two in each chapter that were familiar and easy to follow.

This book has some great practical advice coupled with really good examples. While useful to any lawyer seeking greater writing skills, this book will probably be most helpful to the young attorney. If you occasionally sit down to write and think, “Where should I start this section?” or “What should this look like?” Kuhne’s book should be on your shelf. Because the advice is just one or two pages and each example is only a handful of pages, a lawyer can quickly read the parts addressing the skills they are struggling with and be given several great examples.

Building Your Best Argument has several minor shortcomings. First, the book’s advice is probably simplistic for a seasoned attorney. Second, Building Your Best Argument doesn’t have much instructional material. I was often left wondering, “Why should we do it that way?” Kuhne could have rectified this by providing a little more how-to information in some of the chapters. For example, chapter four dealt with the importance of an overview and Kuhne’s introductory notes had some great content about the importance of “memorable lines” in a brief. See id. at 27. But he never developed nor explained how to create memorable lines. I realize that Kuhne’s goal was to merely provide short summaries and great examples, and he delivered on that. But a book entitled Building Your Best Argument implies that the how-to will be provided. Perhaps a better title would have been “Examples of Great Arguments.” Finally, and perhaps, most disappointing is the fact that Kuhne writes only about twenty-five pages of the entire book. This is unfortunate because all the counsel he gave was solid-gold. It was thoughtful and valuable. Kuhne’s abilities and advice deserve to be showcased in a more exhaustive manner.

I thought this book was a good read. It is relatively short – only 265 pages – and it read very quickly. Kuhne did exactly what he set out to do. But if you are really interested in developing the quality of your briefs, I suggest that Building Your Best Argument is not the first book you purchase. The book is expensive – $69.95 – for what you get. Instead, you should first buy and read Bryan A. Garner’s The Winning Brief. I suggest this for two reasons. First, Kuhne seems to be a Bryan Garner disciple of plain language. Kuhne writes in his first chapter, “Straight forward language is therefore preferred over the more pretentious and vague rhetoric.” Id. at 5. And, “So-Called legalese is far less persuasive than straight forward and unadorned language.” Id. Reading The Winning Brief will help explain the premise of Kuhne’s suggestions. Second, The Winning Brief is more informative and is written in a way that allows for greater skill development. After you have read The Winning Brief, then buy Building Your Best Argument. It will be a great supplement and will be much more useful when you have Garner’s solid foundation to build upon.

This book is published and sold by the ABA. If you do not want to purchase the book the law libraries at both the University of Utah and Brigham Young University have copies. Next time you develop writer’s block, pick up Building Your Best Argument. Kuhne’s simple profound advice and the Solicitor General’s stellar examples will stimulate your writing and give you something to emulate.

Severance Damages Take a Sea-Change With Admiral Beverage

by Richard E. Danley, Jr.

Background
In October of 2011 the Utah Supreme Court issued its opinion in Utah Department of Transportation v. Admiral Beverage Corporation, 2011 UT 62, 693 Utah Adv. Rep. 16. The opinion has not been released for publication. Admiral marks a sea-change in how Utah determines severance damages involving actual takings. It allows the claimant to recover the full diminution in fair-market value, without limiting recovery under the traditional severance damage rules, simplifies the determination of loss and, for the first time awards severance damages for loss of visibility from changes made to a public highway. However, the Utah Supreme Court limited the eligibility to recover under Admiral to four preconditions. First, an actual taking must occur; second, the property taken must be essential to the project; third, recovery must be limited to real estate; and fourth, the loss must be caused by the taking. See id. ¶ 29. If these four conditions are present the supreme court said the claimant only need prove the taking of a protected property interest to be entitled to full recovery for loss under the State Constitution. See id. ¶ 43.

Historically, recovery for severance damages was limited by a body of common-law rules developed to determine if the loss is constitutionally protected and recoverable. For ease of reference these are referred to as “severance damage rules.” The holding in Admiral appears to set aside some or all severance damage rules when there is a taking and permit the claimant full recovery when the lost value is caused by the taking. Under Admiral, portions of two lots were taken and the owner sought recovery for diminution in value from the lost view out to the east and the lost visibility from the freeway due to its elevation by twenty-eight feet. See id. ¶ 2. Under Utah’s severance damage rules, loss of visibility from a public highway is not a protected property interest. See State v. Harvey Real Estate, 2002 UT 107, ¶¶ 11-14, 57 P.3d 1088. Following the severance damage rules, the lower courts in the Admiral case rejected recovery for any loss in value for visibility from the freeway and also applied the so called “abutment rule” to prevent recovery for the blocked view. See Admiral, 2011 UT 62, ¶ 7. The abutment rule prevents recovery for lost view or other damage if the improvements causing the damage are not constructed, at least in part, on the land taken from the claimant. In Admiral the claimant’s property abutted the frontage road, not the freeway, and none of the elevated freeway was constructed on the land taken from the claimant. See id. ¶ 2. Taking a new direction, however, the supreme court permitted full recovery for all diminution in value for both the lost view out and the lost visibility from the elevated freeway. See id. ¶ 43. The Admiral court held no portion of the elevated freeway needed to be constructed on the property taken from the claimant for recovery to occur and revised the abutment rule so that it does not apply if the property taken is essential to the project for which the taking occurred. See id. ¶ 29. It also said that once a taking of a protected property interest is demonstrated (such as the taking of the owner’s land) recovery for all damages caused by the taking is required under Utah law. See id. ¶ 31. This includes recovery for a property interest that is not a recognized or protected interest under Utah law (i.e., the loss of visibility from the freeway). The supreme court said that the constitutional requirements for just compensation from a taking are only satisfied when the owner is made whole by placing the owner in the same position he or she would have occupied but for the taking. See id. ¶ 28. Quoting Stockdale v. Rio Grande Western Railway Co., 28 Utah 201, 77 P. 849 (Utah 1904), the court said once the landowner demonstrates an actual taking of a protected interest, the owner is entitled to just compensation to the extent of all damage suffered. See Admiral, 2011 UT 62, ¶ 28 (quoting Stockdale, 77 P. at 852).

Severance Damages Rules.
Severance damages occur when the the public takes or damages a portion of a private owner’s property, leaving the owner with some or all of the property. Traditionally the public entity with the power of eminent domain severs the owner’s land by taking the portion necessary for the project and the owner keeps the remainder. Under Utah law when the public takes private property for a public use the private property owner must be compensated for both the land taken and any diminution in value caused by the severance to the land not taken. See Harvey, 2002 UT 107, ¶ 11. The severance damage rules limit what is recoverable and therefore constitutionally protected setting the scope of recovery and the amount the public is required to pay for the damage inflicted by the severance. Utah courts tend to view any claimed recovery which is inconsistent with the severance damage rules as being outside the scope of what is constitutionally protected. To understand the impact of the Admiral holding on these rules it is necessary to understand some of the rules and the fine-line distinctions with which they control and limit recovery.

In reviewing many of the severance damage cases in Utah, most of them involve some aspect of one or more of the following rules. Many of these rules overlap and they are not always consistent. As noted above, the abutment rule, discussed in Admiral, requires that for recovery the improvements causing the damage must be constructed in part on the land taken from the claimant; also, a similar or related rule requires that for recovery to be permitted the improvements causing the damage or loss in value must be constructed, at least in part, on the “severed land taken” from the claimant. See generally Admiral, 2011 UT 62, ¶¶ 17-18; Harvey, 2002 UT 107, ¶ 11, Utah Dep’t of Transp. v. Ivers, 2005 UT App 519, ¶¶ 15-18, 128 P.3d 74, reversed in part by Ivers v. Utah Dep’t of Transp., 2007 UT 19, ¶¶ 19-26, 154 P.3d 802. Another related rule limiting recovery is the “but for” rule. But for the taking and the use of the land taken the project could not have been constructed and the damage to the severed property would not have occurred. See Harvey, 2002 UT 107, ¶ 11; Utah State Rd. Comm’n v. Miya, 526 P. 2d 926, 928-29 (Utah 1974). A separate rule requires that for there to be recovery the interest must be a “protected” or “recognized” property interest. Examples of damage held not to be a protected interest under Utah law include interests in public roads. The loss of a property’s visibility from a public road has been held not to be a protected property interest as noted above and discussed in Harvey, Ivers, and Admiral. The construction of public improvements entirely within the right-of-way of a public street limiting access to and use of both the street and the adjoining property by large trucks has been held to not be a protected property interest. See Bailey Serv. & Supply Corp. v. State Rd. Comm’n, 533 P.2d 882, 883 (Utah 1975). The relocation of a public road causing a substantial loss in traffic volume was held not to be a protected property interest. See Admiral, 2011 UT 62, ¶ 11; Weber Basin Water Conservancy Dist. v. Hislop, 12 Utah 2d 64, 362 P.2d 580, 581 (1961). Another rule prohibits recovery for “consequential damages”; it is said that all damages not caused by the taking are consequential and not within the protection of the constitution, such as the noise from a school or a road or the construction of a public road through an adjoining property in proximity to the claimant’s land. See generally Utah Dep’t of Transp. v. D’Ambrosio, 743 P. 2d 1220, 1221 (Utah 1987); Miya, 526 P.2d at 928; State Rd. Comm’n v. Williams, 22 Utah 2d 301, 452 P.2d 548 (1969); and Bd. of Educ. of Logan City Sch. Dist. v. Croft, 13 Utah 2d 310, 373 P.2d 697 (1962).

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Books From Barristers

http://www.trelease-on-reading.comhttp://www.trelease-on-reading.comby Elaina M. Maragakis

It’s impossible to imagine my world without books. Not only am I surrounded by them in my office, but they are packed into walls of bookshelves at home. These days, our home is filled with children’s books, as well. I have crammed them into bookshelves, baskets, and bins. I have surrounded myself – and I suspect that you have, as well – in what researchers call a “print rich environment.” It’s little wonder that some of my earliest and fondest memories are of peeling open the pages of The Berenstain Bears or Dr. Seuss or Little Golden Books, and diving into those wonderful and classic stories.

Sadly, many children never have this experience, even though educational research is replete with evidence that reading has a powerful and direct impact on a child’s success. It is such an obvious way to connect children with lifelong skills, that we often overlook it in its simplicity. The harsh reality is that many children have no access to books of their own. In fact, one study found that in low income neighborhoods, the ratio of books to children is an astonishing one book to every 300 children.1 This unimaginable statistic is alarming and troubling, but fortunately, we have the ability to change this course one child at a time. In his book The Read-Aloud Handbook, author Jim Trelease explores and explains the critical nature of reading and the abundant benefits that flow from reading aloud to children. His research is a powerful testament to the transformative power of books. He writes “we have to find a way to get books into the lives of poor urban and rural children.”2

With this simple goal in mind, it’s my pleasure to introduce a new program of the Utah State Bar called “Books from Barristers.” The goal of Books from Barristers is to provide children in underserved communities with new books on the topics of law, government, American history, and civics. Our hope is that if children can own their own book, they will come to understand the value of reading, which will, in turn, help to solidify a lifelong love of learning. While we hope to eventually expand the program, in its inaugural year we are targeting our efforts to first grade children located in Salt Lake, Davis, and Utah Counties.

Statistics underscore the importance of a program like Books from Barristers. A U.S. Department of Education study showed a direct correlation between the number of books at home and average test scores. This study showed that students with more than 100 books in their homes had higher test scores in science, civics, and history than those who reported having fewer books. Not surprisingly, test scores declined steadily as the number of books in the home declined.3 Beyond success in school, frequent readers also fare better in society than their counterparts who read less. For example, proficient readers are significantly more likely to be employed than below-basic readers.4 Notably, the benefits go far beyond the individual, and have a concrete impact on society as a whole. In its groundbreaking 2007 report titled “To Read or Not to Read,” the National Endowment for the Arts reported that adults who read well are more likely to volunteer, vote, attend cultural and civic activities, and exercise.5

Armed with this educational research, Books from Barristers seeks to provide books to underserved children with three principles in mind: (1) value (the book must be new);

(2) ownership (the book must be given to the child); and

(3) investment (the child must choose the book). The first two concepts are based on the proposition explained by author Jim Trelease, namely, that “[o]wnership of a book is important, with the child’s name inscribed inside, a book that doesn’t have to be returned to the library or even shared with siblings.”6 Ownership of a new book conveys a sense of value, and toward that end, each book donated through the Books from Barristers program will not only be given to a child, but will also have a bookplate with a place for the child to write his or her name. The third principle, that the child will have the opportunity to choose from a selection of books, will cause the child to feel invested in the book because he or she has had a hand in selecting it. This year, we have tentatively selected five books for the program. They are:

Woodrow the White House Mouse, by Peter Barnes and Cheryl Barnes

House Mouse, Senate Mouse, by Peter Barnes and Cheryl Barnes

D is for Democracy, by Elissa Grodin

If I Ran for President, by Catherine Stier

If I Were President, by Catherine Stier

Continue reading "Books From Barristers" »

Attorney Discipline

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.

Continue reading "Attorney Discipline" »

Wills for Heroes: Protecting Those Who Protect Us

by R. Blake Hamilton

I recently attended the S.J. Quinney College of Law Career Fair on behalf of my firm, Stirba & Associates. While I was there, a first-year law student approached me and asked a surprising question. She, like many others in her class, was looking for opportunities to clerk after her first year of law school. Yet when I asked her if she had any questions about my firm, the first question she asked was: “What type of pro bono work does your firm do?” I responded that all attorneys at my firm are encouraged to find opportunities to contribute to the community by providing pro bono legal work. I then proceeded to tell her about one such opportunity that I have had the privilege of participating in.

On September 11, 2001, more than 400 first responders gave their lives to save their fellow Americans. Out of that tragedy arose an amazing program: Wills for Heroes. The Wills for Heroes program provides free wills, living wills, and healthcare and financial powers of attorneys to first responders and their spouses or domestic partners.

Every day, in towns and cities across the nation, including here in Utah, first responders – firefighters, police, and EMTs – put their lives at risk to protect us. We were reminded of this truth on January 4, 2012, when six police officers were shot and one killed while executing a warrant in Ogden, Utah. The Wills for Heroes program allows us as members of the Bar to provide pro bono legal work as an expression of gratitude to those who sacrifice and put themselves in harm’s way to protect their communities – in our small way “protecting those who protect us.” In doing so we are rewarded.

On December 2, 2011, two first responders from Northern Utah were on hand at the Utah State Bar Commission meeting to thank the Commission for the Bar’s Wills for Heroes program. “Sometimes as first responders we’re so busy helping other people that we forget about ourselves,” said Captain Golden Barrett from the Hill Air Force Base Fire Department. “I want to say thank you very much for everything you’ve done for us. It really does make a difference.”

Utah adopted the Wills for Heroes program in 2006, the twelfth state to do so. Since that time, the program has provided free estate planning to more than 4,000 first responders. Volunteer lawyers in Utah have contributed 10,000-plus hours of pro bono legal work at events from Logan to St. George. Wills for Heroes events are scheduled for the third Saturday of every other month. A calendar of future events and further information about the Wills for Heroes program can be found by visiting the Utah State Bar Young Lawyers Division’s (YLD) informational website at http://www.utahbar.org/sections/yld/willsforheroes/Welcome.

A Wills for Heroes Event is a joint effort between a first responder department and YLD. The first responder department provides a contact person to disseminate information and coordinate appointments. The department also provides a classroom or a conference room with tables and chairs where the event may be held. YLD does the rest.

YLD emails the department contact a Wills for Heroes invitation to be sent to all first responders in the department. The invitation answers many frequently asked questions about the program. The first responders are asked to review and complete an estate planning questionnaire and an advanced health care directive prior to their appointment. By reviewing the questionnaire and directive ahead of time, all participating individuals are likely to consider the important decisions regarding their estate planning wishes with a loved or trusted individual prior to their appointment.

On the day of the Wills for Heroes event, YLD brings laptop computers that have been preloaded with specialized software that takes the questionnaire information and creates the living wills, and healthcare and financial powers of attorneys (all in about thirty minutes). Prior to the appointments with the first responders, YLD holds a training session in which attorney volunteers from the Bar are trained on everything they need to know to participate in this great volunteer opportunity. This training includes how to use the software and a primer on basic estate planning. It also qualifies for one hour of CLE credit (for first-time volunteers). YLD coordinates with the Paralegal Division of the Utah State Bar which ensures that all of the first responders’ estate plans are witnessed and notarized on the day of the event. YLD also provides the printers, paper, and all of the materials needed for the first responders to be able to walk out of their appointments with fully executed legal estate plans.

YLD thanks all those attorneys, paralegals, and the many first responder departments around the state who have made the Wills for Heroes program a success. YLD also looks forward to many years of Wills for Heroes events in the future based on the expressed interest in the program. If you haven’t had an opportunity to participate in the Wills for Heroes program, please find some time to do so. Let us not lose the ideals we had in our first year of law school, for, as Mahatma Gandhi said, “the best way to find yourself is to lose yourself in the service of others.”

Pick Your Window of Opportunity

Through NALA’s Certified Paralegal examination’s new computer-based testing procedures, paralegals now can choose the time and date of their examination of month-long “testing windows.” During these windows, the proctored exam may be available each working day throughout the month.

September 1-30
Application deadline: August 1

Late application deadline: August 10 ($25.00 late fee)

Application fee: $250.00 for NALA members, $275.00 for non-members

ACT Test Center fees: Also apply

It’s the same rigorous examination – no change in structure or subjects, and essay questions remain a part of the exam.

The exam is offered at more than 230 computer-based ACT Test Centers designated by the ACT Testing Center Network on college campuses and other locations throughout the nation, at times and dates convenient to examinees. Schools not already ACT Test Centers may apply to NALA to become an authorized testing center for the Certified Paralegal Exam. Employers may also become testing centers for their paralegal staffs.

Visit the NALA website at www.nala.org for additional information or to apply online.

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About May 2012

This page contains all entries posted to Utah Bar Journal in May 2012. They are listed from oldest to newest.

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