Utah Bar Journal

Report from 7500 Feet
by Justice Michael J. Wilkins

The National Conference of Commissioners on Uniform State Laws (who?) met in Big Sky, Montana in July. Big Sky is a ski resort town with beautiful mountains, about one third of the charm of Utah’s ski areas, and very very thin air. Oh, and no directional signs for finding the hotels. Even my computerized guidance system gave up about three miles short of the target. “No further guidance will be provided,” she said. With raindrops the size of small fists hitting my windshield and overwhelming my wipers, I eventually blundered my way into the Big Sky Ski Resort area at 7500 feet. The hotels and resort buildings all face the mountains, and frame a breathtaking view (literally). They also occupy nearly all of the available flat ground. Parking is an issue. I recommend the SmartCar for your visit. I, of course, drove the Sequoia (a large SUV of Japanese ancestry that has yet to adjust adequately to the fuel price crisis). The drive from Salt Lake took a mere 6 hours. I had arrived for my first annual conference of the NCCUSL, also known as the Uniform Law Commission.

Statements of Material Fact: Increasing Effectiveness and Avoiding Pitfalls

by Judge Anthony B. Quinn and Joanna E. Miller

Utah Rule of Civil Procedure 7, is a precise rule with clear consequences for noncompliance. However, the current practice with respect to rule 7 is anything but clear or precise. From a trial court’s perspective there are two explanations for this lack of clarity: Utah attorneys have become adept at avoiding the intention of the rule and Utah appellate decisions have not been clear about the discretion a trial court has to deem facts admitted for a failure to comply with the rule. This article seeks to clarify the purpose of rule 7, to outline the appellate confusion about its application and to present at least one judge’s view of how the rule should operate.

Senior Attorneys for Low-Income Litigants
by Judge Sam McVey

I hope to generate a discussion in the Bar Journal and elsewhere of new ideas addressing an old problem – providing legal representation to litigants who can’t afford attorneys and aren’t among the few who get help from Legal Services, Legal Aid, or attorneys who do pro bono work.

What I Know Now that I Wish I Had Known When I Was Practicing
by Judge Royal I. Hansen

In the company of Judges Terry Christiansen, Stephen Roth, Robert Adkins, Elizabeth Lindsley, Dane Nolan and Christine Decker and Commissioner Michelle Tack, I sit in the state's newest courthouse, located in West Jordan. It is the second largest state judicial complex and represents a consolidation of the Salt Lake County suburban courts. The second floor is dedicated to the Juvenile Court and the third floor houses the District Court. Courts in Sandy, Murray and West Valley have been closed. The West Jordan Division is a full service court. It has county-wide civil and geographical criminal jurisdiction, including the South Valley Felony Drug Court.

First Impressions
by Judge Carolyn B. McHugh

"Knowledge and timber shouldn't be
much used till they are seasoned."

Oliver Wendell Holmes
The Autocrat of the Breakfast Table, 1858

Because I agree with Justice Holmes and will not have been on the bench for a year until August 1, 2006, I am somewhat reluctant to share any "pearls of wisdom" at this early juncture. At the urging of my colleague and the Bar Journal's "judicial advisor," Judge Orme, I have acquiesced. There is, however, one advantage to being a rookie. I still identify strongly with those of you on the other side of the bench and am eager to provide whatever information you might find helpful. Thus, I have included my answers to the questions most frequently asked since I made this transition and have also added some observations that might help you to be a more effective appellate advocate.

Lessons from Kindergarten
by Justice Jill N. Parrish

EDITOR'S NOTE: Justice Parrish delivered these remarks on October 12, 2005 at the Admissions Ceremony for new inductees to the Utah State Bar.

Congratulations on passing the bar exam! You now have permission to practice what you've spent the last three years learning. You've proven that you can retain material not only long enough to pass a final exam, but long enough to convince the Bar Examiners (and all of us) that you are, in fact, qualified to practice law.

Learning Professionalism and Civility - Thoughts for New Members of the Bar

by Judge Derek P. Pullan

Every day, I am grateful for attorneys who have a clear view of the law, and are willing to impart that knowledge to me. In the legal profession, seeing things clearly does not come without sacrifice. I am regularly the beneficiary of your long hours of research, reading, and disciplined thought. Those who venture into the vast legal landscape know that the demands of the journey are real. Thank you for your conscientious work on behalf of your clients and the courts.

Remember, for Every Case Won at Oral Argument, the Other Side Loses

by Justice Michael J. Wilkins

As I sat through another oral argument before the Utah Supreme Court last month, I began to wonder if I could list the characteristics that differentiate the most successful advocates before our court from the least successful. I smiled to myself, and thought, "Well, the first characteristic is that they don't let me drift off mentally when they are at the podium." After the calendar concluded, I jotted down a few thoughts for my own amusement. As the list developed on paper, I realized that these were suggestions that I wish someone had given me when I was still on the other side of the bench. They apply nearly as well to the trial courts, and seem only common sense to me now that I have been privileged to participate in the court's side of appellate arguments for ten years. I offer them to you for what use you may be able to make of them.

Author; Justice Michael J. Wilkins, Utah Supreme Court

In an effort to enhance both the daily experience of lawyers, and the reputation of the bar as a whole, the Utah Supreme Court has recently joined a growing number of jurisdictions by adopting standards of professionalism and civility applicable to all members of the Bar, and to those lawyers who appear in our courts from other jurisdictions. These standards are not yet mandatory, but the Court anticipates judges throughout the state will begin educating counsel appearing in their courts on these standards when conduct needs improvement.

Someone I care about has recently admitted to a long-standing addiction that threatens to ruin a marriage "made in heaven," an extraordinary career, and, indeed, not just a life, but many lives. This person, like many lawyers, has always enjoyed a reputation for competence, skill, and personal strength: someone who "has it all together." By acknowledging addiction and seeking therapy, this person is facing loss of all the carefully constructed ways in which the addiction has allowed pain to be suppressed, self-doubt and anxiety to be held at bay, and a fundamental sense of inner emptiness to be assuaged, albeit temporarily and at great and constant risk. There are no guarantees this person will get well, but there is, for the first time in years, some hope. And the alternatives are pretty limited: illness, professional disaster, divorce, degradation, and death.

A few years ago, while attending the National Judicial College, I met a judge from another state who was lamenting the fact that he was running for reelection and, upon returning home, had to raise a great deal of money. His jurisdiction covered three rural counties. I asked him how much money he needed to raise, and he replied, "Well over a hundred thousand dollars." I asked him where in the world he would get that amount of money, and he replied, "Well, principally from the local banks, farm implement dealers, and large farmers." I then asked what happens when one of those appeared in his courtroom as a party. He replied, "Well, it makes it pretty tough." I wondered at the time what kind of justice was served in that jurisdiction when the judge, obligated and sworn to uphold and apply the law, was subject to such pressure.

EDITOR'S NOTE: The following remarks were made by Judge Kimball on May 1, 2003, at the annual Law Day Luncheon sponsored by the Utah State Bar's Young Lawyers Division. Judge Kimball has graciously permitted his remarks to be reprinted here.

I have been asked to share with the Utah Bar my perspectives on courtroom practices of successful lawyers, especially those that I appreciate as a trial judge. My emphasis is not on techniques but more on behavior or conduct. As I do so, I really have in mind the younger members of our profession. Thus, I hope that the more seasoned in our profession will forgive me if, at times, I state the obvious. I will begin with some general observations, and then I will focus my comments on motion practice, trial practice, professionalism, and civility.

I am retiring after sixteen years as a trial judge in Cedar City. There are new attorneys who only know legal terms from law school. I am writing this article to provide them insight into what some of those terms really mean, and to give some other observations.

My class at the University of Utah was the first after the end of World War II. We started in September 1945, just one month after the war ended in the Pacific. There were sixty of us, fifty-nine men and one woman - Lucy Redd. By the time we graduated in the spring of 1948, there were only about thirty of us left, including Lucy. In that graduating class were also James E. Faust, Glenn Hanni, Wilford Kirton, Earl Tanner, Maurice Richards, and Verl Ritchie, just to name a few.

Introduction
The seven founding judges of the new Utah Court of Appeals took their oaths of office on January 17, 1987. Utah became the thirty-seventh state to organize a court of appeals. The first was Ohio in 1851 and the last was Mississippi in 1995.2 In 2004, Nevadans will vote on the formation of a state appellate court.3 Our initial judges and limited staff were required to expend enormous effort to simultaneously set up the court, begin processing one-half of the Supreme Court's one-thousand case backlog and take on new filings. In order to survive and succeed, the judges adopted the motto, "We Are Driven."

As I stand on the top of Angel's Landing in Zion National Park there are spectacular views in every direction. I can look north, up the canyon to the Temple of Sinawava, south down the canyon, east across the canyon to the Great White Throne, or west to the treacherous trail over which I just came. As I consider this "View from the Bench," I feel somewhat the same way. From my perspective early in the transition from lawyer to judge, I can look back down the canyon, reflecting on the almost 21 years in the practice which are still fresh on my mind, or up the canyon towards what I hope will be a long and productive career on the bench. Maybe a little of both will be in order for this article.

A high degree of intelligence, patriotism, integrity and morality on the part of every voter in a government by the people being necessary in order to insure the continuance of that government and the prosperity and happiness of the people, the legislative assembly shall make provision for the establishment and maintenance of a system of public schools . . . .

Section 147, Constitution of North Dakota

EDITOR'S NOTE: In 1987, Anne Stirba was named the Utah State Bar's Outstanding Young Lawyer of the Year. This summer, the Bar honored her as Judge of the Year. In the span of years in between, she served as an administrative law judge, Assistant U.S. Attorney, and Third District Court Judge. She served terms as a Bar Commissioner and member of the Judicial Council. During most of that time, she also fought a quiet and determined battle against cancer, which could not kill her professionalism, devotion to family and friends, or keen sense of humor, but eventually took her life. The following remarks were made by Justice Christine Durham and Judge Tyrone Medley at Judge Stirba's funeral, held on July 19, 2001. Justice Durham and Judge Medley have graciously permitted them to be reprinted here.

Swapping stories of outrageous conduct is a favorite lawyer pastime. I remember as a young lawyer being regaled with tales of one prominent litigator in particular. One of his favorite tactics was to mouth obscenities at the opposing lawyers as he walked back to counsel table after examining a witness. By the time he turned around to again face the judge and jury he was the very model of decorum and solemnity.

Editor's Note: The following remarks were made by Judge J. Thomas Greene at the Federal Bar Association's Annual Litigation Practice Seminar, held on November 3, 2000. He has graciously permitted them to be reprinted here.

by Judge Gregory K. Orme, Utah Court of Appeals

Editor’s note: Except as otherwise noted, the views expressed are those of the author and not the Utah Court of Appeals; any other judge thereof, past or present; any other person, real or fictional; or Major League Baseball.

Many years ago, I wrote a column for the Salt Lake County Bar & Bench Bulletin called "De Minimis," borrowed from the well-worn (but blatantly untrue) Latin adage,"De minimis non curat lex" - roughly,"The law does not deal with trifles." It permitted me to spend just a paragraph or two on a comparatively small matter. The idea, at least, was that even though each topic was not worth a whole column, taken together, they might be. I want to follow that same format in this article, using that term loosely, and mention just a few little things. (Some might call many of these"pet peeves," but that sounds so negative.)