Utah Bar Journal

by Justice Ronald E. Nehring

Editor’s Note: Supreme Court Justice Ronald E. Nehring and Court of Appeals Judge Carolyn B. McHugh addressed some of the last year’s important Utah appellate decisions at an Appellate Practice Section luncheon on April 20, 2009. Although the information will be of more limited utility for those not in attendance, the Utah Bar Journal thought its readers might
find the case summaries, distributed as handouts during the presentations, to be of interest. Accordingly, Justice Nehring’s handout is reprinted here. (Judge McHugh’s handout was
reprinted in the July/August issue of the Bar Journal.) Especially because readers will not have the benefit of the commentary provided by the speakers, readers are cautioned that the
summaries should not be relied on for any purposes other than calling attention to these opinions and explaining what each case generally involves.

by Jeffry R. Gittins

During the 2009 General Legislative Session, almost 400 bills were passed. This article presents a brief summary of a few bills enacted during the session that may be of interest to members of the Utah Bar.

Private Attorney General Doctrine
Senate Bill 53, Awarding of Attorney Fees, abolished the private attorney general doctrine, a common law doctrine under which a court could award attorney fees to a plaintiff who vindicated a strong or societally important public policy. S.B. 53 is in direct response to the recent cases of Utahns For Better Dental Health- Davis, Inc. v. Davis County Clerk, 2007 UT 97, 175 P. 3d 1036, and Culbertson v. Board of County Commissioners, 2008 UT App 22, 177 P. 3d 621. In both of these cases, the district court had denied the plaintiffs’ request for attorney fees under the private attorney general doctrine, but the appellate court reversed the district court and held that the plaintiffs were entitled to attorney fees under the doctrine. Under S.B. 53, courts cannot award attorney fees under the private attorney general doctrine in any action filed after May 12, 2009.

Unbundled in Utah
by Virginia Sudbury

There are certain keys to a better life; among them world peace, the Cubs in the World Series (next year!), and, of course, accessible legal services. Few things are more keenly needed than the latter, and often at cruelly unexpected times. I am an attorney who believes passionately in public interest law, and yet I want to eat relatively well. I want a way to engage in the private practice of law while wearing public interest clothes. Practicing “unbundled” law is providing me that satisfaction.

A Notary Primer for Utah Attorneys
by Scott M. Ellsworth

We all know the frustration of having a notary form attached to a document that innocently asserts that the document was signed in front of a notary when in fact it has already been signed and all that’s needed is an acknowledgement. Few people are even sufficiently into notarial minutiae to distinguish among jurats, acknowledgements, copy certifications, and pronotarial oaths (and, of course, such people could, with some justification, reply “that’s what attorneys are for”). The problem is, however, that chapter 46-1 of the Utah Code (the Notaries Public Reform Act) just doesn’t come up all that often, and we can hardly expect our assistants and paralegals to comprehend the ins and outs of notarial verification (at least, not without some training) unless they themselves are notaries. And even notaries are often unaware of which kind of document requires what kind of certificate.

Legislative Update: Senate Bill 83 “Check Cashing and Deferred Deposit Lending Registration Act”
by Jill O. Jasperson

Senate Bill 83 modified what was known as the Check Cashing Registration Act to the more correct title of Check Cashing and Deferred Deposit Lending Registration Act (the Act). It was sponsored by legislator Karen Mayne and approved by the governor on March 14, 2008. The Act went into effect May 5, 2008. The bill makes technical and conformation amendments to the Utah Code, found mainly in Title 7. In part, the bill was a housekeeping effort to add the words “deferred deposit lender” or “deferred deposit lending” alongside the words “check casher” already used in other parts of the code. The bill was considered a compromise between legislators and consumer advocates in trying to establish further regulation of check cashers and deferred deposit lenders.

Skeptics at the Gate – The 2007 Revisions to Rule 702, Utah Rules of Evidence
by John R. Lund and Keith A. Kelly, with assistance from Richard Vazquez1

Introduction
On November 1, 2007, the Utah Supreme Court adopted a significantly revised version of Rule 702, Utah Rules of Evidence, as well as a substantive Advisory Committee Note. Revised Rule 702 overrules a substantial body of Utah case law that called for a bifurcated standard in admitting expert testimony, depending on whether the testimony involved “novel” or “non-novel” expert analysis.2 Revised Rule 702 now provides a unified framework for determining the admission of expert testimony. The Advisory Committee Note explains the reasoning for these changes, while introducing the perspective of “rational skepticism” for a judge to take when keeping the gate for admission of expert testimony and emphasizing the instruction to focus on the “work at hand” when applying Rule 702.

2007 Case Summaries
Presented by Associate Chief Justice Michael J. Wilkins and Judge Carolyn McHugh

Editor's Note: Supreme Court Associate Chief Justice Michael J. Wilkins and Court of Appeals Judge Carolyn B. McHugh addressed some of last year’s important Utah appellate decisions at a Salt Lake County Bar luncheon on January 31, 2008. Although the information will be of more limited utility for those not in attendance, the Utah Bar Journal thought its readers might find the case summaries, distributed as handouts during the presentations, to be of interest. Accordingly, the handouts are reprinted here, with the speakers’ permission. Especially because readers will not have the benefit of the commentary provided by the speakers, readers are cautioned that the summaries should not be relied on for any purposes other than calling attention to these opinions and explaining what each case generally involves.

Supreme Court of Utah 2007 Decisions
Total Number of Cases............................99
Civil.......................................................41
Criminal.................................................30
Administrative..........................................6
Procedural...............................................8
Family Law..............................................4
Professional Misconduct...........................3
Affirmed or Affirmed in Part.......................52
Reversed or Vacated................................30

Ellis v. Estate of Ellis: The Unequivocal Death of Interspousal Immunity in Utah

by Stephen D. Kelson

On January 2, 2001, newlyweds Steven and Aimee Ellis were traveling by car on their honeymoon. Near Shelley, Idaho, Mr. Ellis lost control of the vehicle and crossed the center median into oncoming traffic, resulting in a collision with a two-ton Mitsubishi truck. Mr. Ellis died as a result of the accident. Mrs. Ellis was hospitalized with serious injuries, including a severe head injury, numerous broken bones, internal injuries, and emotional trauma. Four years later Mrs. Ellis filed a personal injury action against her husband’s estate for negligence, in the Third District Court, Salt Lake County, State of Utah.1 The Estate brought a motion to dismiss Mrs. Ellis’s claim, in part, asserting that it was barred by the doctrine of interspousal immunity.2 The district court granted the Estate’s motion in part, dismissing Mrs. Ellis’s claim of negligence and concluding with reluctance that interspousal immunity is abrogated in Utah only with respect to intentional torts. Mrs. Ellis appealed the decision.

Noteworthy Laws Passed During the 2007 Legislative Session
by Neal C. Geddes
The purpose of this article is to highlight some of the noteworthy laws passed during the recent legislative session. As members of the Bar, it is important to be aware of modifications to existing laws, as well as provisions that are altogether new. Please note that this article does not provide a detailed analysis of the bills passed. Accordingly, attorneys are encouraged to initiate a more detailed review of these laws on their own.

Utah Department of Commerce Answers Call for Electronic Images of Uniform Commercial Code Filings
by Kimberly Frost

For several years, the Division of Corporations and Commercial Code, located within the Utah Department of Commerce, has made it possible for users to file Uniform Commercial Code (UCC) statements electronically, as well as to search the Division’s index of active UCC filings online. In February 2007, the Division launched a new application that allows users to view and print images of paper UCC filings over the Internet. The new application, called “UCC Imaging,” is one more tool the Department of Commerce has added to its menu of online services to make it easier to do business in Utah.

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.

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.

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.

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.

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.

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.

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.

by John T. Nielsen

The Legislative Affairs Committee of the Bar was again active and engaged in reviewing legislation pertinent to the interests of lawyers and the Bar. We had an enthusiastic, regular attending and active committee and we reviewed 70-plus bills that we felt required our scrutiny.

This article examines some of the more important, and hopefully interesting, criminal cases decided by the Utah appellate courts in 2003. This is by no means intended to be an exhaustive list or discussion, just a brief overview of a few of the cases that have impacted the criminal justice system. The author concentrated on substantive cases to the exclusion of the many important procedural cases decided last year. Although the author is a public defender he has attempted to keep this article as non-biased as he is able.

Author (Patrick W. Corum)

Author; Robert B. Sykes & James W. McConkie

When a party is once found to be fabricating, or suppressing, documents, the natural, indeed, the inevitable, conclusion is that he has something to conceal, and is conscious of guilt.1

- Judge Learned Hand, 1939

"Contra spoliatorem omnia raesumuntur"
(All things presumed against the destroyer)2

I.SCOPE OF THE PROBLEM
Spoliation is the destruction, alteration or suppression of evidence relevant to a cause of action or potential cause of action.3 National commentators describe spoliation as a very significant ongoing problem in litigation.4 The renowned Harvard Law Professor, Charles R. Nesson, has stated:

Author; Kent B. Scott & James B. Belshe

INTRODUCTION
This article will discuss the provisions of the recently adopted Revised Uniform Arbitration Act (RUAA) the Utah Legislature passed in 2002. The RUAA became effective in Utah on May 15, 2003. The RUAA is codified in UTAH CODE ANN. subsectionsubsection 78-31a-101 through 131. Its provisions will apply to all contracts that are entered into after May 6, 2002, and to contracts made before May 6, 2002 by agreement of the parties. As of November, 2003, the RUAA has been adopted by eight states1 and is currently being considered by eleven others.

Author; Kevin B. Laurence & Matthew D. Thayne

It is widely known that a federal trademark registration is preferable to a state trademark registration or reliance on common-law trademark rights. However, in some circumstances a state trademark registration has value. This article provides an analysis of the reasons for registering trademarks with a state as compared with federal registration and reliance on common-law trademark rights. The procedures for obtaining and maintaining registrations in Utah are also presented in this article. There is also an overview of infringement remedies available to owners of marks registered in Utah.

Earlier this year the Utah Legislature held its general session and did what lawmakers do, pass new and amend existing laws. This article will provide Bar Journal readers with ten of the most important changes to the Utah Code.

HB349 Practice of Law Amendment
This amendment repeals and reenacts Utah Code Annotated 78-9-101, which defines "practicing law." This is an effort by the Legislature to define what it " means" to be a lawyer. It is also a gauge of obvious discord between the Bar and the Legislature. As of right now, the Bar reports that insofar as the Bar's efforts to stop the unauthorized practice of law it is business as usual.

EDITOR'S NOTE: Supreme Court Justice Michael J. Wilkins and Court of Appeals Judge Gregory K. Orme addressed some of last year's important Utah appellate decisions at a Salt Lake County Bar Luncheon on February 26, 2003. Although the information will be of more limited utility for those not in attendance, the Utah Bar Journal thought its readers might find the case summaries, distributed as handouts during the presentations, to be of interest. Accordingly, the handouts are reprinted here, with the speakers' permission. Especially because readers will not have the benefit of the narrative commentary provided by the speakers, readers are cautioned that the summaries should not be relied on for any purposes other than calling attention to these opinions and explaining what each case generally involves.

I. INTRODUCTION
In the April issue of the Utah Bar Journal we examined the issue of "new uses" of copyright material in cyberspace. The August/ September issue considered the long-arm of Internet law and the circumstances under which Internet Service Providers enjoy immunity in cases of copyright infringement. We finish our series with a look at recent developments affecting online music including two relevant cases, Bonneville International v. Peters, 153 F. Supp. 2d 763 (E.D.P.A. 2001) and Rodgers and Hammerstein v. UMG Recordings, 2001 U.S. Dist. LEXIS 16111 (S.D.N.Y. 2001).

A number of significant employment cases decided recently in the Utah State courts are worth noting. This article will discuss those recent cases:

I. Employment Contracts
The "at-will" doctrine governing employment in Utah (permitting either the employer or the employee to terminate the employment relationship at any time for any or no reason) continues to be vigorously challenged. Utah plaintiffs are pursuing claims for breach of contract, both express and implied, based on written and oral representations and other conduct by their employers alleged to have created binding obligations that modify or supplant the at-will employment relationship.

During its past two regular sessions, the Utah legislature enacted two bills (S.B. 53 (2001) and H.B. 44 (2002)) substantially modifying the statutes governing trust deeds. This article is intended to provide some background for these bills and give a brief overview of the significant changes involved.

I. INTRODUCTION
In the April issue of the Utah Bar Journal we examined the issue of "new uses" of copyright material in cyberspace. This article considers two recent cases on the international aspect of Internet law and one on the circumstances under which Internet Service Providers enjoy immunity in cases of copyright infringement.

I.Introduction: Recent Amendments to Federal and State Evidence Rules.
On December 1, 2000, the Federal Rules of Evidence were significantly amended. See Fed. R. Evid. 103, 404, 701, 702, 703, 803(6), and 902(11) & (12) (2001). The amendments dealt with definitive evidence rulings (Rule 103), character evidence (Rule 404), expert testimony (Rules 701, 702 & 703), and authentication of business records (Rules 803(6) and 902(11) & (12)).

I. INTRODUCTION
During the course of the 2002 General Legislative Session, the Legislative Affairs Committee was active in reviewing legislation pertinent to the interests of the Bar. This was a different session in that it began two weeks early and broke for two weeks for the Winter Olympic Games. As a result, few bills were presented and we had an opportunity for a bit more deliberation than has been usual. Many bills that concerned us were substantially amended to make them more palatable.

I. Introduction
The advent of the printing press in 1455 by Johannes Gutenberg heralded a new era for the world. Some have said that Gutenberg, thanks to his invention, was the most significant person of the past millennium.

With the advent of the new Bush administration and the end of the U.S. Supreme Court term, there is much to report in environmental law. The President has already faced such difficult issues as carbon dioxide emissions, arsenic levels in drinking water, global warming and the Kyoto Protocol. His administration is also reviewing EPA's enforcement initiative against utilities under the Clean Air Act's new source review program, and has proposed the devolution of some of EPA's science and enforcement functions to the states, to be assisted by new federal grants.

A. Overview
The FRCP were originally promulgated by the U.S. Supreme Court on December 20, 1937. Since that time, they have been amended 24 times, most recently in April 2000, with changes made effective as of December 1, 2000. The Supreme Court Order provides that the amendments "shall govern all proceedings in civil cases thereafter commenced and, insofar as just and practicable, all proceedings in civil cases then pending." Therefore, any case which is active in federal court on December 1, 2000, is subject to the amendments.