Utah Bar Journal

Can You Amend That Revocable Trust? Utah Estate Planning Lawyers Face a Trap for the Unwary
by Charles M. Bennett

Revocable living trusts have become a ubiquitous estate planning tool in Utah. Thousands of Utahns have such trusts, most prepared by Utah lawyers. One of the benefits of revocable living trusts is the ability to easily amend them prior to the death of the trustor. Several recent Utah Supreme Court decisions, however, require revocation rather than amendment under certain circumstances. As such an amendment will likely not be questioned until after the death of the trustor - when it is too late to go back and repair anything -attorneys who have prepared revocable trusts or who represent those who have such trusts need to carefully review these trusts in light of the recent rulings.

Employment Law Update: November 2002 - November 2004

In the two years following the previous Employment Law Update (Utah Bar Journal Vol. 15, No. 8 (November 2002)), a number of employment related cases of note have been decided in Utah appellate courts. This article will provide a short summary to help Utah Bar Journal readers to keep up with this ever growing and changing area of law.

Utah's Newest Anti-Spam Law: The Child Protection Registry
by Gregory M. Saylin & Leanne N. Webster

The Utah legislature is again attempting to curb certain email advertising. Effective August 15, 2005, email marketers, arguably those throughout the country and around the world,1 must comply with the Child Protection Registry law, U.C.A. ¤ 13-39-101, et seq. (ÒCPRÓ). Unlike UtahÕs previous legislative effort to battle spam (the Unsolicited Commercial Email Act), the CPR is aimed only at emails to minors, solicited or not, that promote the sale of goods or services that minors cannot legally purchase. While many presume the scope of the act addresses only pornography, it actually is much broader, including solicitations for alcohol, tobacco, and gambling. Emails advertising such products and services must not be sent to the email addresses contained in the registry. Violators may face both civil and criminal penalties. If the new law can pass constitutional muster (a significant hurdle), the CPR is worthy of notice by email marketers everywhere.

Gallegos ex rel Rynes v. Dick Simon Trucking - The Use of Price-of-Annuity Evidence as Present Value of Compensatory Damages
by Andrew M. Morse

In 2004, the Utah Court of Appeals decided an important case that will affect how cases involving future long term damages are tried and evaluated. Gallegos v. Dick Simon Trucking, 110 P.3d 710 (Utah Ct. App. 2004), reh'g denied, March 30, 2005, and cert. denied Sept. 19, 2005. In Gallegos, the Court of Appeals held that competent annuity evidence may be used to prove the present value of long term future damages. This article explores the case and the implications it presents for plaintiffs and defendants.

Parduhn Me: the Utah Supreme Court and the Insurable Interest Requirement
by Mark W. Dykes

Insurance is not supposed to be a vehicle for gambling or incentive to murder. The law thus forbids a party from taking out a life insurance policy on a total stranger, given the risk that the beneficiary might attempt prematurely to dispatch the life of the insured and reap the proceeds. One may thus take out a life insurance policy only on a life in which one has an "insurable interest," that being defined (as noted below) as an interest grounded in family relationships or business ties.

Antitrust Immunity for Utah's Political Subdivisions: The Utah Supreme Court's Opinion in Summit Water v. Summit County
by Mark Glick and Michael Petrogeorge

The Utah Supreme Court's November 4, 2005 opinion in Summit Water v. Summit County, 2005 UT 73, clarifies the circumstances under which Utah's local governments are immune from liability under the provisions of the Utah Antitrust Act, Utah Code Ann. ¤ 76-10-911, et seq. (the "Utah Act"). The Court held that under the plain language of Section 76-10-915(1)(f) of the Utah Act, a municipality is exempt from antitrust liability only if its actions were "authorized or directed" by state law. Adopting the standard for state action immunity under federal law, the Court interpreted the "authorized and directed" language of Section 76-10-915(1)(f) to mean that, for immunity to apply, the municipality's alleged anticompetitive conduct must have been a foreseeable result of action authorized by a state statute. Stated differently, this means that if the activities of a municipality are a foreseeable result of a state statute, such activities are immune from antitrust liability. Only where such conduct is not foreseeable, and it harms the competitive process, is the municipality's activity subject to liability under the Utah Act.

Recent Developments in Criminal Investigation and Discovery: Access, Disclosure and Use of Information in the Criminal Defense Realm

by Ann Marie Taliaferro

Introductory Comments
The past year has brought with it both increased questions and additional obstacles for criminal defense practitioners concerning the investigation, discovery, and ultimate presentation of the facts of their cases at a criminal trial. Changes have emerged in how criminal defense practitioners may investigate their cases. Questions have been raised regarding exactly what information discovered by a criminal defense attorney must be disclosed to prosecutors. Finally, how and when a criminal attorney makes use of that discovered information has also been the subject of recent appellate discussion. While there have been several notable and far-reaching decisions issued by Utah courts this past year, this summary of developments is narrowed to those recent court decisions which have commented upon and affected the investigational techniques and overall practice of the criminal bar.