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April 1979 Vol. 13, No.2
(§Ie THE OFFICiAl PUBLICATION OF THE ARKANSAS BAR ASSOCIATION
Arkansas Lawyer SPECIAL FEATURES Cover Story - - Lawyers as Lawmakers
Robert L. Brown 52
Law Day USA . . . . . . . . . . . . . . . . . • . • . . . . . . . . . . . . . . . . . . .. 56 OFFICERS
Morality in Government
Wayne Boyce, President E. Harley Cox, Jr., President-Elect James A. Buttry, Secretary-Treasurer
Unauthorized Practice of Law .....•.•.................. 70 Judge John E. Miller Honored Some Economic and Actuarial Questions about Lump-Sum Settlements
EXECUTIVE COUNCIL
Don M. Schnipper Robert L. Jones, III David R. Malone LeRoy Froman Tom B. Smith Robert G. Serio Herman L. Hamilton John F. Stroud, Jr. Dennis L. Shackleford Charles Carpenter W. Christopher Barrier Webster L. Hubbell
EX-OFFICIO
Wayne Boyce E. Ha~ey Cox, Jr. James A. Buttry Herschel H. Friday Roy T. (Rick) Beard Phillip Carroll
Identifying the "PR" Problem The All-Purpose, Bargain-Basement Final Argument
Leon Jaworski 57 ,
74
Dr. R. H. Rawls 76 J. N. Woodson 78 E. R. Wallach 82
Crossword Puzzle
96
REGULAR FEATURES President's Report .wayne Boyce 50 Juris Dictum C. R. Huie 65 Legal Economics ...............•....Fran Shellenberger 62 Law School News. . . . . . . . . . . • . • . . . . . . . . . . . . . . . . . . . . . .. 90 Oyez-Oyez B. Tarkington 81 In Memoriam ...............•.•....................... 61 Executive Council Notes ......•.........James A. Buttry 86 Service Directory. . . . . . . . . . . . . . . • . • . . . . . . . . . . . . . . . .. I.B.C. Lawyer's Mart .......•.•...............................92 Addenda C. E. Ransick 94 Ethics 64 Context W. Christopher Barrier 88 AICLE News Claibourne W. Patty, Jr. 87 The Arkansas Bar Foundation Marvin L. Kieffer 51 Tax Tips Paul D. Williams 92
EDITOR
The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar
C. E. Ransick
Association, 400 West Markham, Little Rock, Arkansas 72201. Second class
EDITORIAL COMMITTEE Robe~ T. Dawson E. Alvin Schay Cyril Hollingsworth
postage paid at Little Rock, Arkansas. Subscription price to non-members of the Arkansas Bar Association $6.00 per year and to members $3.00 per year included in annual dues. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association, The Arkansas Lawyer, or the Editorial Committee. Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to the Arkansas Bar Center, 400 West Markham, Uttle Rock, Arkansas 72201. All inquiries regarding advertising should be sent to The Arkansas Lawyer, above address.
April 1979/Arkansas Lawyer/49
PRESIDENT'S REPORT by Wayne Boyce
When George Orwell wrote 1984 thirty years ago, the idea of "Big Brother" watching you seemed so unlikely that we never suspected it might have an application to the practice of law or the organized Bar. The principal topic of conversation at the National Conference of Bar Presidents meeting in Atlanta in February was the opening gun fired by the Federal Trade Commission in a campaign to enforce national, federal control of the practice of law. 1984 is less than five years away. An FTC questionnaire proposed to be directed to the 50 state bar associations sounds innocent enough. It is only when you look at the number of the interrogatories (57, one with twenty sUb-parts); painstakingly, if not tortuously, devised definitions of terms (two whole pages of them). and the fact it has the legal force of a subpoena and must be answered under oath that the malignity becomes apparent. If in fact the Federal Trade Commission wanted to know how well legal services are being delivered by traditional or innovative means, it could get a much better answer cheaper and quicker. At a time when the whole country from the President down is trying to eliminate burdensome government regulation on the life of the people, the FTC is obviously gathering the tools to forge new chains of rules for us lawyers. If this alarms you, write your Congressman. If it doesn't, ask your family physician how he is enjoying practicing medicine these days under the ever increasing directives of the wise men from Washington's Department of Health, Education and Welfare. Hot Springs Annual Meeting Jack Deacon, who has held down almost every job in the Bar, is turning in one of his best performances to date as Program Chairman of the AnSa/Arkansas Lawyer/April 1979
nual Meeting scheduled for Hot Springs, June 6th through 8th. Every detail of the program has not been settled, but important parts are already committed. Shep Tate, American Bar Association President from Memphis, has agreed to be the key note speaker at the luncheon Thursday. During the past year I have heard Shep on several occasions. He is witty, informed, and interesting. Best of all he possesses a trait somewhat rare in a Bar leader-when he finishes what he has to say he quits talking. FBI Director William Webster will be the feature Friday afternoon. Webster, a former US Appellate Judge, is an outstanding speaker. John Thomason is the current Chairman of the ABA Section of General Practice. He and his bright and charming wife, Sally, will be on hand to produce a路two person symposium on the Quality of Life. There has been considerable interest of late in teaching about law and the legal system in public schools. A good number of lawyers and law wives have been involved. One of the leaders is Attorney General Steve Clark, who will be the luncheon speaker Friday. Still in the mill is a program by nationally known trial lawyers. If this all sounds too academic, don't despair. There is a dance scheduled for Thursday night and a speakerless banquet for Friday. If the "speakerless" feature isn't enough to get you enthused, please note that the Levee Singers will be on hand in lieu of a speech. Those who have been regular attenders at past annual meetings won't want to miss this one. If you haven't been to a Hot Springs meeting for awhile this will be a great year to come back, join the fun, renew old acquaintances, and who knows, maybe take home a new idea or two.
New Rules of Civil Procedure If there was ever a subject in law school that left me cold, it was Civil Procedure, but I really enjoyed the great program Win Drummond put on at the Mid-Year meeting on the new Rules of Civil Procedure for Arkansas. It turned a mill stone into a mile stone for me. Five years ago in-coming President James B. Sharp asked me to head a committee to coordinate the efforts of the Bar Association and the Supreme Court Committee working on the rules, and finally to produce a new one volume form book for Arkansas Lawyers that wouid be compatible with the new rules. Fortunately the Court's committee was chaired by Judge Andrew G. Ponder, my Newport neighbor. He and I had worked together earlier on the Penitentiary StUdy Commission and I enjoyed working with him again. Looking back over five years, a considerable amount of work went into the planning, supporting, financing and liming of this project. In the spring of 1977, the Bar Association contracted with Professor Robert R. Wright, Donaghey Distinguished Professor of Law at UALR, to write the one volume Form Book. With his usual zeal, Doctor Wright began researching the law as he wrote the forms. The annotations and footnotes promise to make this a most scholarly tome as well as a handy practice aid. I am assured that the work is nearly completed and should be back from the printers before I go out of office. Plans now call for the Form Book to be the Central feature of the Fall Legal Institute 1979. It is rare indeed for a Bar Project to be commenced and completed in a single year. I have been winding up projects this year that were started two, three and even four years ago. I'm sure President Elect Harley Cox will get to tie up the ribbons on some of the things begun this year. "
ARKANSAS BAR fOUNDA TION by Marvin L. Kieffer Chairman
It was a pleasure to present the names of a number of new Fellows olthe Foundation at the Reception for Fellows and their spouses, held at the Bar Center, on the evening of January 19th, during the Mid-Winter Bar Meeting. The names of new Fellows presented were as follows: James R. Rhodes III; Herman L. Hamilton, Jr.; David Pryor; Dick Jackson; John N. Killough; George Pike, Jr.; James R. Wallace; J. Frank Holt; Thomas L. Cashion; Darrell D. Dover; and O. W. Garvin. We are fortunate in having one of the earlier organized and outstanding Bar Foundations in the Country. The Arkansas Bar leadership, which set up the Foundation and the Institute for Continuing Legal Education, AICLE, is due a lot of credit for having the foresight to organize our Bar supported organizations in such a manner that we are in the forefront of Bar organizations in the Country. We have a built-in flexibility in our overall organization to adapt to most any changes that may be coming in our profession and the delivery of legal services. The Bar Association can deal with the "Trade Association" activities of the Bar. The Foundation, in addition to owning and managing the Law Center properties, serves as a receptacle for contributed funds, acts as a manager and trustee of the contributed funds for perpetual scholarships, support of education within the law schools and for the public, and provides special status to Fellows and Patrons in recognition of their contributions to the Foundation. AICLE has the responsibility of providing continUing legal ed ucation to the General Bar. The legal profession and Bar Associations have been coming under attack from a number of directions. There is increasing litigation, regarding Bar Associations; and, it is being considered that a single Bar Association, such as we once had, is no longer the best vehicle to handle all problems of the profession. Because of a
Bar Association's necessary involvement with professional housekeeping problems, it is unable to meet the present day demand for public-oriented programs. So, many of the Bar Associations are looking to Bar Foundations to carry out public service programs of the Bar. Because of the interest in the Foundation movement, leaders from various State Bar Foundations, held a meeting in Chicago, in 1977, attended by Colonel Ransick, our Foundation Executive Director, which resulted in the fonning of the National Conference of Bar Foundations. According to a Conference Survey, twenty-eight states now have active Bar Foundations. The survey revealed that six of these Foundations had no membership and that the others had various criteria for membership. A majority of the Foundations collected dues or assessments, usually on a voluntary basis, as compared to a restricted Fellows membership on a status basis, such as ours, It is suggested by Thomas H. Gonser, President of the Idaho Law Foundation and a member of the Executive Committee of the National Conference of State Bar Foundations, in his article on State Bar Foundations, in the December issue of the American Bar Journal, that there appears to be no reason why Foundation membership couk! not be broadly enough based, as to cover lay members of the public. This seems to fit with the idea of a Foundation being oriented toward public programs. The Florida Baropinion, that interest on Lawyer's Trust accounts should be available to the Florida Bar Foundation and Florida Legal Services, Inc. for public service programs, such as improving justice, providing supplemental protection to client through a security fund, expediting and improving grievance procedures, making loans to students, providing aid to the poor and enhancing the delivery of
legai services, has generated considerable interest because of the substantial money that could be made available from this source. Our Foundation and the Bar Association have appointed a joint study committee to make recommendations, regarding interest on Lawyer Trust accounts. I believe in the event the study committee does make favorable recommendations on collecting interest on Lawyers Trust accounts, that it would be desirable and provide further flexibility to our overall organization to set up, in effect, another separate Foundation, named, perhaps, the Arkansas Bar Public Service Corporation, ABPSC, to receive the interest on Lawyers Trust accounts, and maybe have a broad voluntary membership, including members of the lay pUblic, such as suggested by Gonser in his American Bar article. This should, in addition to providing further flexibility in our overall organization, put us another step ahead in being able to structure this new organization along the lines of similar State Bar Foundations oriented toward public serVice, without perhaps, disturbing or fouling up our present Bar Foundation and its support of legal education. Our present Foundation has, because of the way it is structured, been able to do only a limited amount of public service work. It could remain oriented more along the lines of support of education in the Law Schools, research in the field of Law, and publication of literary works on legal SUbject. The new organization, would provide a separate receptacle for the interest money on trust accounts and dues and assessments, if any, in addition to contributions; and, would, as a separate record and accounting unit, deal principally with the public service programs, using as a model possibly, the Florida Bar's Florida Legal Services, Inc. '"
April 1979/Arkansas Lawyer/51
Cover Story-
LAWYERS AS LAWMAKERS by ROBERT L. BROWN
Despite the suggestion of some political aspirants, the nation has refused, so far at least, to purge the Congress of the legal profession. The Ninety-Sixth Congress has 66 lawyers in the Senate and 194 in the House, for a total representation of almost 50%. In years past the ratio of lawyers to total membership has been even greater. There is no question, however, that political hay can be made from the anti-lawyer theme. In 1976, then campaigner Jimmy Carter made much of the fact that he wasn't an attorney, as if this fact alone would be the panacea to set Washington's ills aright. Dale Bumpers at the same time appropriately countered the demagogic theme in his speeches, both locally and elsewhere, by brandishing the fact that he was a lawyer and proud of it. Obviously, disparate professions are devoutly to be wished in Congress. Varied backgrounds and varied professional and business experiences are healthy and no one would suggest that a Congress of 100% attorneys would be a good thing, or that the House of Delegates of the American Bar Association could really improve on the job Congress is doing. Yet the rate of lawyers in legislative work is impressive, especially among Arkansas' representatives where John Paul Hammerschmidt is the only layman in a six-man delegation. It is difficult in some cases to know for certain whether a particular Senator or Representative was drawn to Congress because of his legal background and affection for the law, or 52/Arkansas Lawyer/April 1979
whether legal training was considered at an early age as the perfect springboard to a political career. But whatever the reason, "lawyering" has undoubtedly affected the performance of many members of Arkansas' delegation, and it is instructive to note precisely what that influence has been. The thesis of this article alone brings to mind the story of W. H. Arnold, a lawyer and grandfather of Federal District Judge Richard S. Arnold, who campaigned in 1903 for Miller County State Representative. His pitch was simple and undoubtedly based on his own legal experience. Using a set of Arkansas Statutes as a prop, he loudly proclaimed from the stump, "We have enough laws in Arkansas and if elected 1pledge to you I will never enact another law." He lost the election. LEGAL DISCIPLINE When Kaneaster Hodges hit Washington in January of 1977, he was admittedly unprepared for his new role. And, as a result, he was forced to look to his past more than most and draw on prior training and experience. He candidly says now that it was his legal background that sustained him throughout and conditioned him to controversy and to achievement through the give-andtake of the adversary system. "I was able to accept rejection of an idea on a case or issue and separate it from rejection of me personally," he says. "That's a real asset. You must know how to accept defeat and how not to take defeat personally. 1was
(EDITOR'S NOTE: Bob Brown is particularly qualified to write the cover story. During 1977 and 1978, he was Administrative Assistant to Arkansas Congressman Jim Guy Tucker; 1975 and 1976, he served as Legislative Assistant to Senator Dale Bumpers; and 1972-74, he was Legal Aide to Governor Dale Bumpers. He is now in private practice in Uttle Rock. We feel that "our staff cartoonist" outdid himself on the cover drawing. We refer, of course, to Chairman W. Christopher Barrier of the Public Education Committee of the Arkansas Bar Foundation, who authors the Regular Feature Context in The Arkansas Lawyer. Barrier also pre-
pares the Foundation's Hear Ye! Co!umn with cartoons and lega! questions with answers for the newspapers in Arkansas.)
used to controversy because of my legal career. I knew how to mix it up, whether on the Senate floor or across the luncheon table. "Senators are problem solvers," Hodges continues, "and that's what lawyers are. We're trained in the analytical approach-to break a problem down into its component parts. You don't necessarily have to be a lawyer to be a Senator, but it definitely gives you a leg up." Wilbur Mills echoes these sentiments. Generally credited with his ability to cite the Internal Revenue Code chapter and verse, Mills admits that without his legal preparation he would have been denied a seat on the
Ways and Means Committee, or at least he would not have acquired the seat as early as he did: "The study of law better prepared me to analyze complicated tax, social security, welfare, trade, medicare, and medicaid legislation. Without this school preparation. I know I could not have grasped these subjects as quickly as I did. It made it possible for the Internal Revenue Code to become interesting reading in my early years on the Ways and Means Committee when I had to learn the Code. Without legal training I'm sure I would not have been as able to detect flaws in drafted language for amendments to the Code. An example of this was my detection of a loop hole in the Revenue Act of 1954 that would have cost the Treasury at least a billion dollars in revenue in the first full year of the Act's operation. The error was corrected in February of the following year so that no loss occurred." Thorough preparation ranks high as a discipline learned in law school, and put to daily use in Washington. Even David Pryor, who has yet to deliver his eagerly-awaited address, "Famous Cases I Have Tried," attributes his thirst for information and precision to his legal training. As Governor, Pryor was noted for delving into an issue that interested him with dervish intensity. Whether the problem called for documentary evidence, charts, maps, or empiricai review, he immersed himself in data until he emerged safe in the conviction that he knew more about that particular issue than anyone else. Certainly more than his potentiai adversary. For a Bumpers or a Pryor or a Hodges, preparation revolves around the issue of the moment, whether it is strip mining, the Bell-Foley Dam, or ERA. "When practicing law," Bumpers says, "it is always said that if you are better prepared than your opponent in a trial you will probably win. This is also true in the Senate. The suriace owner consent debate during consideration of the Strip Mining Bill would be a good example of this. "During that debate," he continues, "I was attempting to show that land ownership in the western states was in such a checkerboard pattern that giving the suriace owners the right to object to any suriace mining on their property would give them veto power
over mining on other tracts and cost the Federal Treasury billions of dollars. The amendment first came up in the Senate on a day when few were in attendance and few paid attention to the debate. When the amendment was first introduced, two other Senators and I co-sponsored the amendment. The next day I decided to reoffer the amendment with additional evidence. This time, I supported my argument with a number of maps, visual aids so that the members of the Senate could understand more about the complexity of the problem. I also supported my argument with statistics furnished by the Northern Great Plains Resource Program. These statistics had not been brought out clearly in the debate the previous day. A combination of the new statistics and some courtroom-like argumentation helped reverse the vote of the previous day." No one, however, had a more awesome reputation for preparing his case than John McClellan. Perhaps, as some former aides speculate, the Senator's lack of a formal graduate education drove him to overprepare. But whatever the reason, Senator McClellan never entered a committee room (which he openly equated to a courtroom) without a full knowledge of the facts and with some degree of certainty of what the outcome would be. Whether the matter was revision olthe Federal Criminal Code, the TFX aircraft, labor racketeering, or patent and copyright law revision, his full attention to detail and grasp of the facts involved was impressive, but only attained after hours of intensive and meticulous preparation. His interrogation in committee could be withering and unquestionably was a style acquired during his days as a prosecutor. As one general was heard to say upon leaving a McClellan inquisition where he had been on the griddle: "In my second life, I want to come back as the ... who asks the questions." Fulbright is also remembered as an "adroit examiner" but in a manner that was altogether different. Where a McClellan might badger a witness into submission as part of a strategy to keep him constantly off balance, Fulbright had the reputation for luring his prey into a sense of false security and then springing the trap. The style was different from McClellan's inquisition, but according to observers
equally as effective. Moreover, whether it was McClellan v. Hoffa or Fulbright v. Rusk, those who remember are emphatic that the stepby-step progression had its origin in the Socratic method. DEMOSTHENES OR FOGHORN It's no coincidence that Arkansas' delegation has been blessed with an abundance, not only of attorneys, but of trial attorneys. And to be even more precise, former prosecuting attorneys. Senator McClellan is the best example of courtroom experience serving him well from the hustings to the committee room to the Senate floor. But there are other examples as well: Representatives Beryl Anthony and Ed Bethune also have prosecution backgrounds as do former Senator Kaneaster Hodges and former Representative Jim Guy Tucker. Hearing John McClellan argue a case on the Senate floor for a defense appropriation or crime bill, one could easily imagine his impassioned summations to a jury. The rhetoric was fiery and emotional. He was one of the few Senators who could fill the Senate chambers with a voice unaided by a microphone. Indeed, he eschewed this concession to modern convenience, when possible, to the end. Perhaps it's more chance than design that his immediate successor, Kaneaster Hodges, utilized the same fiery rhetoric, but he did. Mixing his trial experience with ecclesiastical fervor, Senator Hodges quickly developed into a debater of stature and a fierce competitor. (Senator Muskie on one occasion gave Hodges a C for his position but an A for his stories and rhetoric.) Hodges' bout with Senator Patrick Moynihan over the tuition tax credit legislation drew high marks from his peers. Moynihand towards the end of his losing cause was reduced to ridiculing Hodges' accent rather than the merits of his position. Hodges makes no bones about the importance of oratorical skills in Washington. Neither does Dale Bumpers whose rhythmic delivery has enchanted Arkansas voters for almost a decade and is having a similar impact in Washington. Bumpers attributes his skill primarily to a father who placed speaking ability at the top of the heap of skills that serve one
April 1979/Arkansas Lawyer/53
well in life. Disinterested observers analyze the Bumpers' style as one honed in the civil courtroom but with deep influences from the Methodist pUlpit and John F. Kennedy. The analogy between trial practice and Senate floor debate is very real indeed according to Bumpers. "Many of the same skills that are leamed in an effort to get a jury to pay attention (and agree with you) later come in very handy in gaining the attention of one of the most distracted groups on earth-the U.S. Senate." The problem, as alluded to by Bumpers, is that one can be William Jennings Bryan incamate and more often than not there will be only two or three fellow Senators on the floor to bask in the speaker's oratory. This has been particularly frustrating to Bumpers. "It is a shame that debate does not playa more important part in the legislative process of the Senate. Many times, very few members are on the Senate floor to hear a debate on a subject. On the other hand, there have been times when amendments have been brought up very late in the day, or in the evening when members have little else to do except go to the floor. At such times, an experienced debater can use skills that would otherwise be wasted on a nearly empty Chamber." Senator FUlbright's reasoned discourse was learned in a different forum. As a legal instructor at the University at Fayetteville, he spoonfed the law to students. Even in his later years in the Senate, former aids admit that the Senator was more at ease in a seminar atmosphere of 20 to 30 members. Obviously, a legal background assisted the Senator in his career, but the legal experience was more that of an instructor in logic than an expert in juridical persuasion. THE WELL-TURNED PHRASE Lawyerism, ij is suggested,leads to a fastidiousness with respect to the written word. Fulbright, for example, is known to abhor excessive language and slang. One former aide gives the example that the Senator would never allow words like "fantastic" or "swell" to enter his vocabulary. They are meaningless terms to him, the aide added. Yet he would spend an inordinate amount of time to grasp the full meaning of a word like "detente." Bumpers often rushes to the dictionary to educate himself or to 54/Arkansas Lawyer/April 1979
prove a semantic point. McClellan would labor hours over the right word or a well-turned phrase for a statement to be delivered on the Senate floor even to the extent of calling the Library of Congress or a government agency for assistance. "It's the lawyer in them," a nonlegal aide groused, "that forces this search for perfection. It's grounded in a love of facts and a desire to express those facts in the purest and best possible way." "No where more than in the Congress is the subtilty of changing a word or two as important," Kaneaster Hodges maintains. Ray Thornton agrees and says his legal experience enabled him to excell in reducing difficult concepts in the House Science and Technology Committee to clearly understandable language. "Because of my legal training," Wilbur Mills adds, "1 was able to sit in on drafting sessions on major tax bills and know what was transpiring. I actually enjoyed the times I had this opportunity and I know legal training made it possible." Senator Fulbright is remembered as one of the few Senators who would actually cite Supreme Court decisions and footnote authority in his floor statements. Fulbright is "tedious in detail," one aide recalls, "and was very big on documenting things in his formal statements. The Senator would also methodically 'brief' issues, identifying both the positive and negative arguments and then call on his staff to present oral argument on both sides. He enjoyed the whole process immensely." LAWYER-CLIENT RELATIONSHIP There is, too, a sincere feeling, especially among Arkansas' representatives in the House, that they represent their districts much the same way as a lawyer does clients. Bill Alexander, who just began his sixth term in the House and holds the prestigious position of Deputy Majority Whip, puts it this way: "1 don't feel like I ever stopped practicing law. The only difference now is that my clients are the people of the First Congressional District. While the job of representing the point of view of a political constituency does not mandate the services of an attomey, legal training enhances the understanding of lawmaking and contributes, I believe,to a higher quality of legislative action."
Arkansas' representatives make it a practice to ferret out what's bugging their constituents and then work to solve those problems. "The only difference is that congressmen can and should solicit business where lawyers do not," Jim Guy Tucker says. "Bill Alexander's repeated trips to his home district or my mobile office or Ray Thornton's civic club speeches, it's all part of an effort to make yourself available to your clients and to serve them. The analogy to law practice is obvious. "Some would say that's also good politics," Tucker added, "but most of it is doing the job the way it Should be done." LEGAL PREJUDICE A distinct bias has been detected on the part of some members of the delegation in favor of aides who are lawyers. McClellan was perhaps the worst offender in this regard, but Bumpers IS also known to have a similar preference. One explanation is that lawyers simply like to have lawyers around them, whether they be Richard Arnold, Ark Monroe Bruce Lindsey, or Julie McDonald: McClellan once described the perfect aide as a lawyer who knows politics and is able to articulate his views. For a Ray Thornton WOrking on the JUdiciary Committee during the Nixon impeachment hearings, or a Wilbur Mills or Jim Guy Tucker exploring tax reform on the Ways and Means Committee, a legal staff was essential. The same holds true for a Bumpers promoting legislation to shift the burden of proof in administrative law cases or a Hodges learning parliamentary maneuvering on the Senate floor. It should come as no surprise in light of the above, that many ~n足 tacted on this article believed the transition from lawyer to lawmaker to be a relatively easy one to make and perhaps even in the natural order of things. All were extremely charitable in expressing their gratitude to the law and what it had done for them. Only one question immediately comes to mind that might give current members in the House and Senate pause: Q. Will you retum to law practice after this term is over? A. Law practice? Well, now.. .hmmm...Iet me see...
"
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Arkansas Supreme Court cases on eminent domain compiled in digest form. Table of Cases; word index. 266 PAGES, HARDBOUND, 1964
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Probate Code of Arkansas and other laws of the Arkansas Statutes pertaining to probate practice in one convenient volume. 486 PAGES, HARDBOUND, 1961
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LAW DAY USA. MAY 1 E
SEX
-AND
RESPONSIBILITIES
WHAT IS LAW DAY? Law Day is set aside on May 1 each year by joint resolution of Congress and Presidential proclamation as "a special day of celebration by the American people in appreciation of their liberties" and as an occasion for "rededication to the ideals of equality and justice under law." The annual nationwide event is not a day set aside for lawyers, but a day established by the Congress to encourage every citizen to think about the central role of law in our society. Law Day was conceived in 1957 by Charles S. Rhyne, a Washington, D.C. lawyer and then president of the American Bar Association, the national organization of the legal profession in the U.S. which now has 250,000 members. On the occasion of the first observance of Law Day in 1958, President Dwight D. Eisenhower stated: "it is fitting that the American people should remember with pride and vigilantly guard the great heritage of liberty, justice and equality under law.... It is our moral and civic obligation as free men and as Americans to preserve and strengthen that great heritage." Rhyne said: "Today, after 350 years, the greatest strength of America lies in this concept of individual liberty under law. Other systems of government have produced great scientists, great musicians, and other outstanding achievements. But no system has produced the individual freedom which exists in America...." Our nation, through its citizens, pauses once each year to reflect on our legal heritage and the role of law in an ever-changing society. The special event is a time for reminding all citizens of the United States of the rights they hold under the U.S. Constitution and Bill of Rights: free speech, free press, 56/Arkansas Lawyer/April 1979
freedom of assembly, freedom of religion, the right to legal counsel and a trial by one's peers if accused of crime. It is a day, too, when all the people are asked to consider their individual duties as responsible citizens, such as: (1) to be informed on issues of government and community affairs; (2) to support and encourage efforts to update and modernize our courts; (3) to vote in elections; (4) to obey, respect and uphold the law; (5) to support those institutions and persons charged with law enforcement; (6) to respect the rights of others; (7) to practice and teach the principles of good citizenship in their home; and (8) to serve on juries and as a court witness if called. The primary purpose of the observance is to emphasize the values of living under a system of laws and independent courts that protect individual freedom and make possible a free society. That Law Day U.S.A. occupies only a single calendar day merely is symbolic. It is an annual reminder that while the principles embodied in the observance are constant, their Vitality cannot be taken for granted, but must be nurtured and sustained by every citizen every day of the year. "Our Changing Rights" is this year's theme. We would add "And Responsibilities"! While the Law Day message is directed at all citizens, the organized bar is best qualified to lead the way. It is essential that the local bar associations promote Law Day in their areas. The Arkansas and the American Bar Associations are prepared to assist the local bars in this connection. Judge John Lineberger and Jack Holt, Jr. are serving as the State Law Day Chairmen for the Bench and the Bar, respectively.
f.....
MORALITY IN GOVERNMENT LEON JAWORSKI
(Ed/tor's Note: Each year, we publish a "Law Day-USA" address in observance olthe occasion on May 1st. The theme lor Law Day '79 is "Our Changing Rights." We are seizing this opportunity to publish the historical and philosophico-governmental re/erences in the address delivered by Leon Jaworski to the University of Arkansas at Uttle Rock on September 14, 1978. We have deleted, for space reasons, his discourse on the facts of "Koreagate" -but in doing so, we do not detract from the tremendous theme of his address. Leon Jaworski needs no introduction to the lawyers in Arkansas. He has been the featured speaker at recent Association meetings. We are deeply indebted to this renown American!!)
When Thomas Jefferson was drafting the Declaration of Independence he devoted much time in research of historical facts, documents and pronouncements. He studied the governments of other nations. Undoubtedly he devoted much time and thought to what produced greatness in a nation-and also what caused it to fall. In addition to the drafted words of the Declaration of Independence he voiced his beliefs and philosophies on the structure and mechanism of a truly good government-one that served well in time of plenty as well as in time of need. He summed up the bottom line of his findings and his beliefs by this statement: "The whoie art of government consists in the art of being honest." This is a rather plain and simpie statement but its implications are many. Jefferson was talking about conduct in office based on forthrightness and not guilelessness; uprightness and not deciet; integrity and not doubledealing. He was speaking of fidelity to duty and not caprice; he meant undeviating truthfulness and not falsification or half truths; he referred to statesmanship and not demagoguery; he had in mind unvarnished patriotism and love of country-not self-service and avarice. He was speaking of presidents who spoke truthfully to their people
and he was talking about nominees for the presidency who promised the people a sound and constructive platform of reforms and changes and who, upon being elected, lost little time in revealing that these promises were lightly made and quickly broken. And finally, he was alluding to wholehearted service to one's country and its people and not of an obligation or allegiance to special groups or interests. Before passing on, let me say that if you consider Jefferson's statement on the art of government to be an over-simplification, then let me express to you my firm belief that Jefferson's premise at least must serve as the foundation of government, and if the honesty of which he speaks is absent, sooner or later the affairs of government are sure to falter. Now let us be certain that we understand each other. When we speak of morality in government we speak of the functions and processes of a government operated in conformity to the rules of right conduct. We are speaking of a government not only founded on these fundamental principles but whose officials observe and practice these principles. Nicholas Murray Butler was a great American who not only served as President of Columbia University but
also answered the call of our government in numerous post-World War I international peace conferences. About sixty years ago he delivered an address on "The Changing Foundations of Government." He referred to the startling changes that were taking place at the "very foundations of our political and economic life." He remarked that the "foundations of American government and of American life are being moved, and it is of high importance that we should understand what is moving them and whither they are moving." He added: "Only then shall we be able to determine whether the movement is for good or for ill." He spoke of "the steadily growing incapacity of representative government and the steadily increasing lack of confidence in it; of the unwillingness to subordinate an immediate advantage to a future gain; of the dissatisfaction with any principie or rule of conduct, however nobel or however hoary with age and honorable with service, that stands in the way of individual or group interest." One of his conclusions was as follows: "We need quickly to strengthen the foundations of representative government and thereby rebuild public confidence in it. This can April 1979/Arkansas Lawyer/57
only be done by attracting to the political service of the state (and nation) men and women of the highest type of intelligence and character, who have no personal or group ends to serve." Well, this was sixty years ago. Has anything come to out attention in recent years that makes Dr. Butler's words prophetic? Was he an alarmist or was he a seer? Let me direct your attention to the Report of the Watergate Special Prosecution Force. I did not write this Report, although most of what it contains is based on matters that came to light while I served as Speciai Prosecutor. But members of the staff, who saw what I saw and came to know what I had learned, wrapped up in these words what had occurred during what may be termed as the Watergate era-and some of which occurred even prior thereto. Here is what the Report says, and this part I fully approbate: "In considering what recommendations to include in this report, WSPF concentrated on what it did observe: criminal abuse of power by Government officials in high places; historical growth of secrecy in the Federal executive branch unchecked by Americans and their elected Congress; unchallenged, subjective judgments by the executive branch in identifying persons and organizations that constitute an impermissible threat to the national interest and to executive policy; an undemocratic condition wherein money is power, and skillful, cynical public relations cements that power; and finally, a silent, sometimes grUdging, sometimes willful conclusion by some Government representatives that ethical standards are irrelevant because quick implementation of policy goals is mandatory, but achievable only by sociai and personal injustices to others." Well, as the Watergate report points out, some of the wrongs and excesses of which it speaks did not begin with the so-called Watergate era. They escalated to unprecedented heights during that era. If there be those whose attitude is one of indifference to these disclosures-who dismiss it with a shrug of the shouiders and with the comment, "So what-it has been going on for a long time.", let met point out to them that Sa/Arkansas Lawyer/April 1979
more than one nation in history has experienced grave problems-some disastrous by just such an apathy of its people. It is apropos, I believe, to bring to your attention two writings, about a century and a half apart. In 1831 there was a young man from France, accomplished in scholarship, philosophy and statesmanship, who was sent by the French government to our country primarily to examine prisons and penitentiaries. He became intrigued by our system of government and its institutions, and therefore devoted considerable time to anaiyzing life in America. On his return he wrote his classic "Democracy in America," published in 1835 and again in 1840. This volume represented a wide-ranging study of the political and social institutions of the United States. Scholars have commented that the result of de Tocqueville's visit to America and the writings that followed brought forth not oniy "the greatest book ever written in America, but probably the greatest on any national polity and culture." In summarizing what he found in our country, he said: "I sought for the greatness and genius of America in her commodious harbors and her ample rivers, and it was not there. "I sought for the greatness and genius of America in her fertile fields and boundless forests, and it was not there. "I sought for the greatness and genius of America in her rich mines and her vast world commerce, and it was not there. "I sought for the greatness and genius of America in her public school system and her institutions of learning, and it was not there. "I sought for the greatness and genius of America in her democratic Congress and her matchless Constitution, and it was not there." Then, after he paid tribute to the pulpits that were "afiame with righteousness," in ringing words he declared: "America is great because America is good, and if America ever ceases to be good, America will cease to be great." Almost a century and one-haif later, there came to my desk a letter typical of countless similar communications I have received during the past few
years. It was written by a student in government. The pertinent parts of this letter read as follows: "I have majored in political science and history and have always thought of doing good for my nation. "Each day new revelations come out on how corrupt some men have made our government. I feel as if I have a complete void in my heart where the feeling of patriotism is to be. "This is why I am writing to you. Please, would you tell me how I can regain trust in my elected officials?" What is important, and what I want to reiterate, is that this does not constitute the isolated view of a disquieted student. To so believe is to stick one's head in the sand, because this identical concern, voiced in different ways, is deeply rooted among many young people across our land from shore to shore. I have concrete evidence of it and recent polls indicate a similar view exists among our older citizens as well. When de Tocqueville spoke of America being "good" what did he mean? The reasonable assumption is that he was using the word in connection with its usual definition. "Good" when de Tocqueville used the word, and as well today, is defined as "something that satisfies or commends itself to the ethical consciousness or is conceived as fitting in the moral order of the universe." It is defined as the character of human beings or of their attitudes, motives and actions that is morally praiseworthy. Let's take a closer look at de Tocqueville's ultimate finding. Note that he did not attribute America's greatness to the power vested in the executive branch-not to the power lodged in the legislative branch-not to the power lodged In the legislative branch-not in the authority and jurisdiction of the judiciary-not even, as you heard, in our "matchless Constitution." He regarded these as what they are-the processes and means whereby good government can be achieved. But these processes are all administered by human being,s and are all subject to human error and frailty. He looked beyond the visible structure of government. He went deeper and took a look at the foundation on which the edifice was built. He saw in America a foundation of mora-
lity which led her to greatness and in light of this unmistakeable truth he admonished the then generation of Americans as well as generations to come that "If America ever ceases to be good-it will cease to be great." Well, America had its Civil War and America fell from greatness. But America recovered and upon recognizing the mistakes that were made the people of that generation picked up their working tools and eventually restored the greatness once enjoyed. But let it be remembered that a restoration to greatness did not occur until there had been built foundations of morality and goodness. Each year we observe Independence Day in the marked reverence. On the last occasion my thoughts turned to a recent visit to Independence Hall where the Declaration of Independence was signed, and eleven years later, after four months of debate, deliberation, study and prayer, our Constitution was drafted. There were vast differences of opinions and a great contrariety of views permeating these extensive sessions of the Constitution, yet in the end dissents were largely resolved by an understanding approach to opposing views of the participants and the acceptance of sincereness and good faith on the part of all. The eventual result was a monumental document that has stood the test of time and has enabled us daily to enjoy the freedoms and the individual rights it guarantees. To remind me-almost to haunt me-{;ame the recollections of immortal words they penned-"that all men are created equal"-"Iife, liberty and pursuit of happiness"-and finally, the pledge to each other of "our lives, our fortunes and our sacred honor." Then I paused to wonderare these just empty phrases to many of us today-or are they still as radiant, as inspirational, and as binding in our pursuits as they were to these great founders of freedom and seekers of justice? I could not stop with these musings. What tortured my thinking was the undivided and unquestioned integrity and probity of these patriots-their trustworthiness and gUilelessness-as contrasted with the shams and deceits and corruptions perpetrated by some of their successors of modern times. Still fresh on my mind is the sadness of seeing one of the great
tragedies of modern history-men who once had fame in their hands sinking to infamy-all because eventually their goals were of the wrong dreams and aspirations. The teaching of right and wrong had been forgotten and little evils were permitted to grow into great evils-small sins to escalate into big sins. How did Alexander Pope put it? "Unblemished, let me live or die unknown. Give me an honest fame or give me none." The polls sadly show an alarming loss of public confidence in leadership in various levels of government, in private business and in most of the professions. The polls disclose, as U.S. News & World Report puts it" ... surveys tell of voter disenchantment with political parties and individual candidates, as well as such venerated institutions as the Presidency and the Congress." A commission appointed by President Ford had a task force study the subject of "public conduct." It reported late in 1976. The charge given the Task Force bluntly stated: "One of the critical challenges before our country today is the restoration of the public's fatih in equality and integrity of government." It further stated that "The maintenance of this confidence depends primarily on the quality of the men and women attracted to the public service and the public's trust in the processes of government." Under the heading "Philosophy of the Report" the Task Force said: "The polls show clearly that public respect for government officials has declined sharply in recent years." It further stated: "We regard the problem as serious." And it added: "Yet despite frequent reports of corruption, the Task Force believes that the present loss of confidence goes much further than the facts warrant." It was Disraeli who pointedly said that the "youth of a nation are the trustees of posterity." The voter disenchantment in these situations as disclosed by the polls is alarming enough but even more disquieting are the efforts of some writers and some speakers to paint a picture of alarm and distrust far beyond the true facts-the propensity of which is to unduly disturb the minds of the young. The surest way to have a high degree of morality in government is for all sectors of American life-business, labor, the professions and the
educational processes as well as others-to practice the principles of integrity. Parenthetically let me add that I will not address myself to the legal profession because it seems that the President of the United States has preempted this field. I was in the middle of "Koreagate"-as the news-media terms it-for a year. And I think that I can safely represent to you that I know every aspect of the investigation. I accepted the responsibility of Special Counsel with great reluctance, finally agreeing when I was assured the type of independence I had insisted on having before I accepted the Watergate assignment. From purely a personal standpoint it was clear to me that it was an undesirable and unattractive involvement-but there was more to consider.
****** It is my conviction that there should be-and I think there is-a better method of conducting inquiries into alleged wrongful conduct of high officials in our three branches of government than to resort to self-investigation. Differently stated, is the ferreting out of wrongdoing by alleged offenders in a branch of our government to be the responsibility of their fellow-members? I submit that this should not be the case in instances involving the executive and legislative branches, and I have grave doubts that it should be the procedure in situations involving the third branch-the jUdiciary.
My predominant objection to the present method emanates from the conviction that regardless of how objective, how thorough and how unbiased the investigation may be, if the task involves an inquiry into the wrongful conduct of members of the investigators' own official family, public skepticism and cynicism is certain to arise in some quarters questioning the integrity of the undertaking. It is a virtuai certainty that some members of the political party not then in control of that particular branch of government will fan the flames of a "coverup" charge-an effort usually aided and abetted by some politically-oriented columnists and editorial writers. This, we know, affects the image of the institution involved and damages the faith of the American people in the body. April 1979/Arkansas Lawyer/59
•••••• There are other reasons as well that point to such self-investigation to be undesirable. I deem it unfair for a member of Congress to be asked to investigate the wrongful conduct of his colleague. It places a burden on the investigator he should not have to bear. In similar situations a judge disqualifies and a juror is found to be disqualified. Still the members of the House Ethics Committee initially and the entire House eventually are called upon to conduct an inquiry that may lead not oniy to the expulsion of the member from the House but of course to criminal prosecution as well. Regardless of political differences, on the floor of the House they are all "distinguished gentiemen"-they experience a general camaraderiethey often eat together and drink together and although they may curse one another in their respective cloak rooms, they observe unusual amenities-they can't even speak demeaningly of one another on the floor of the House without violating the rules of the House. There is no need in spelling out further the awkwardness and dubiousness inherent in such a selfinvestigation. Apart from the unfairness of asking a member of the House to investigate his colleague, the rules of the House retard the celerity of such investigations. There are constant quorum calls and voting calls requiring presence on the fioor-there are other important committee meetingsthere are delays of one kind or another the committee faces due to House rules. Even the staff is hampered by such rules as that of requiring a member of the committee to be present when a witness is interviewed under oath. At the most crucial point of the interrogation, the House bell starts ringing and the member in attendance excuses himself.
•••••• My contemplations have run along the lines of separating the investigatory function from the prosecutorial function. When the executive branch is under investigation why not let a commission of qualified and dedicated citizens, not members of the executive branch or identified with it, conduct the investigation and transmit their findings to a special prosecutor. This would be an on-going commission already in existence when the cause for investigation arose. It SO/Arkansas Lawyer/April 1979
could be appointed by Congress. Once the facts are found and the members of a commission are in position to look over the shoulders of a special prosecutor, my concern of how he will function disappears, even though he may be appointed by the executive branch. In similar manner, if members of Congress are under investigation, an on-going commission appointed by the President should conduct the inquiry, find the facts and pass these along to the Justice Department for prosecution. This suggestion as it might apply to the judicial branch is somewhat more clouded, but I lean to the belief that even there an investigative body of non-judiciary members would be the most desirable vehicle to employ. Obviously what I have said to you is just a cursory outline of an approach to this troublesome problem. I must underscore the farsightedness of the framers of our Constitution. When it was being drafted, great concerns existed among those in attendance in the vesting of too much power in a central government. There were fears that the lifting of the BritiSh yoke would not grant permanent freedom and that a "strong central government" would eventually reestablish a tyranny of the type the Colonists had just conquered. It has been pointed out that the provision for a Bill of Rights solved the problem partly and that the establishing of three separate branches of government was designed to check excessive accumulation of power on the part of anyone of them. How well this foresight has worked as a practical matter was demonstrated when the Supreme Court ruled against the executive branch on the issue of executive priVilege and directed the release of the President's tape records in response to the subpoena of the Special Prosecutor. But excesses on the part of the executive or any other branch will not be precluded by a constitutional provision itself. It takes more. As the Watergate Special Prosecution Force official report points out, "democracies do not survive unless elected officials do what they are supposed to do and citizens maintain vigilance to see that they do. The public unfolding of Watergate abuses resulted from citizen, press, and official actions. Nothing can replace that kind of vigilance." Haile Selassie on January 28, 1972
in an address to the Un ited Nations Security Council summed up the inevitable result of an indolent attitude and a listless approach to public affairs in these striking words: "Throughout history it has been the inaction of those who could have acted, the indifference of those who should have known better, the silence of the voice of justice when it mattered most, that has made it possible for evil to triumph." The millennium will be reached when public service is rendered only by men and women of uprightness who have no selfish ends in mind; when the classes who have neither funds nor voices of leadership have the same representation in government as do all other groups; when no favoritism is shown either to capital or to labor; or to any other group or class; when all have an equal standing before legislative bodies, executive branches, quasi-jUdicial and judicial bodies. It is too much to dream for, you may well say. In answer, I embrace the words of Mahatma Gandhi when he said: "I am a dreamer. 1 am indeed a practical dreamer. My dreams are not airy nothings. I want to convert my dreams into realities as far as possible."
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In memoriam I \
D. LEONARD LINGO D. Leonard Lingo, 73, 01 Walnut Ridge, died June 8, 1978. Mr. Lingo graduated Irom the Arkansas Law School, and began the practice of law at Walnut Ridge in 1937. A lormer County Judge 01 lawrence County and lormer mayor 01 Walnut Ridge, he was currently serving as Municipal Judge lor Walnut Ridge and Hoxie. Mr. Lingo served as director 01 the First National Bank of Walnut Ridge and 01 the Lawrence County School lor Exceptional Children. He was a member 01 the first Board of Governors of the Lawrence Memorial Hospital and Lawrence Hall Nursing home, a lormer member of the Board of Trustees of the State TB Sanitorium, and was a Lawrence County delegate to the 1969 Constttutional Convention. Mr. Lingo was a longtime member 01 the Main Street Church of Christ, where he served lor many years as a teacher and deacon. Survivors included his wife, the lormer Ethel Marie Neidinger; a daughter, Mrs. Ted Coker; a brother, John Lingo; and a grandson, David Coker.
The recompense of a man's hands sha/I be rendered unto him. Proverbs 12:14
r WILLIAM J. KIRBY
W. W. McCRARY, JR.
Fonner Circuit JUdge William J. Kirby, 75, of little Rock, died January 3, 1979. A former assistant city attorney, Mr. Kirby served as one of four circu~ judges for Pulaski and Perry Counties from 1954 through 1978. He was a member of the PUlaski, Arkansas and American Bar Associations; the Eagles Club; and the Elks Club. Mr. Kirby was a member of the First Christian Church. Survivors include his wife, the former Freeda Thompson; a son, William J. Kirby, Jr.; a daughter, Mrs. Anne Hinshew; seven grandchildren and two great-grandchildren.
William Wttherspoon McCrary, Jr., 74, of Lonoke, died November 15, 1978. A graduate of Vanderbill University Law School, he was admilled to the bar in 1927. Mr. McCrary was a deacon and ruling elder 01 First Presbyterian Church of Lonoke, and had served as a Commissioner to the General Assembly 01 the National Presbyterian Church organization. Survivors include his wife, Mrs. Ma~orie Walker McCrary; two sons, W. W. McCrary, III and Chartes W. McCrary; a daughter, Mrs. C. E. McSwaim, Jr.; his mother, Mrs. W. W. McCrary, Sr.; brother, Rev. James P. McCrary; and eight grandchildren.
•
U.M.ROSE U. M. Rose, 66, formerly of Linle Rock, died November II, 1978 in Hobbs, New Mexico. A 1937 graduate olthe Linle Rock Law School, he practiced law in Linle Rock from 1937 to 1940. Mr. Rose enlisted in the Army in 1941 and served in the Judge Advocate General's Corps Irom 1943 to 1945. He senled in New Mexico in 1946, and retired Irom the Army Reserve in 1962 wtth the rank of Lieutenant Colonel. Mr. Rose was a past president of the New Mexico Bar Association, and the Junior Bar Association 01 Arkansas. He was a member of the First Presbyterian Church of Hobbs. Survivors include his Wife, Mrs. Batsy Bryant Rose; a son, Frank Rose; his mother, Mrs. Kathryn Nowlin Rose; and a sister, Mrs. Hoyt
Ware.
MEMORIAL GIFTS "It is more blessed to give than to receive"-However, a member profits hOlh ways wilh a memorial gift to the Arkansas Bar Fowldaliol1. One's gift is a beautiful way of honoring a former colleague. The family must be 11108t appreciative of such rememhrance. The gift is noted in the Fowldation's Memorial Book and, of course, is tax deductible. Memorial gifts may be scntto the Arkansas Bar Center. The memoriaJ card (below) of the Arkansas Bar FOWldatioll is fonnal and is promptly delivered upon receipt'of the memorial gift.
WE ACKNOWLEDGE WITH GRATEFUL APPRECIATION THE RECEIPT OF A GENEROUS MEMORIAL GIFT
FROM
SUZANNE LIGHTON Miss Suzanne Lighton, 73, 01 Fayeneville, died November 15, 1978. She received her lagel training under the late Judge Lee Seemster, and was the first lemale anorney in Washington County. Miss Lighton was the lirst releree for the Washington County juvenile court, where she served until ill heallh lorced her to resign. Active in community affairs, she was instrumental in founding the Fayeneville Girt Scouts. Miss Lighton was a member 01 SI. Paul's Episcopal Church. Survivors include a sister, Miss Baity Lighton; and a niece Mrs. Baity Murrell.
OF
IN MEMORY OF THE LATE
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LlTILE ROCK, ARKANSAS
THE ARKANSAS BAR FOUNDATIO 400 WEST MARKHAM LITTLE ROCK, ARKANSAS 72201 April 1979/Arkansas Lawyer/51
LEGAL ECONOMICS by Fran Shellenberger
MERGING WORD AND DATA PROCESSING-MYTH OR MIRACLE This article will attempt to accomplish three things for lawyers: 1) provide insight into the complex world of word/data processing as it exists in today's marketplace; 2) unravel some of the mystery surrounding the industry, and 3) predict trends in the development of word/data processing technology. Lawyers need both word processing and data processing capabilities in their offices. Lawyers already using word processing systems are eager to add data processing systems or install equipment offering both capabilities. Lawyers contemplating word processing or data processing equipment for the first time want to know whether one system can perform both functions adequately. Today's word processing (wp) and data processing (dp) systems are nearly identical in appearance; they are all computers. They all have a keyboard, a screen, a central processing unit, media storage and a high speed printer. If they are all computers, the question is can they all perform both wp and dp functions? The answer is, "er well ... uh ... yes ... er, no that is, ... hardly ever ... er well, sometimes." Why the Gilbert-and-Sullivan-type comment? To answer that question it is necessary to define the differences in the systems themselves. Those differences are in power, size of memory, media, programming and language. Listed below are the several types of systems available today and a 62/Arkansas Lawyer/April 1979
description of their capabilities. I. Stand-alone word processing systems utilitzing a screen, keyboard, floppy disk media and high speed character printer up to 16K memory. There are many of these systems available in today's marketplace; they are programmed by the vendor to process words, lines, paragraphs, pages and documents and they do that work extremely well. Those that offer data processing functions such as the ability to sort lists, select from lists and perform basic arithmetic may have the fOllowing limitations: A. If the system stores information by page, then it must sort or select from stored "pages" of information. For example, it could be necessary to sort several "pages" of billing entries separately to create a client's bill. B. Screen Memory. If sorting takes place in the screen memory, the amount of text or data which can be sorted at one time will be limited by the size of the screen memory. This size is determined by the vendor and varies among systems. C. Total Storage. The total amount of text which can be sorted or searched will be determined by the size and storage capability of the disk. Rather than trust the vendor's statement that the disk will store a number of "pages," determine the total number of characters which can be stored. D. Processing Speed. The combination of 16K memory and an 8" floppy disk media means that data processing functions will be carried
out slowly. The reason for this, ac路 cording to Dr. Geoffrey Webb, a Little Rock, Arkansas, programmer, is that low memory capacity in the central processing unit (cpu) requires the transmittal of small volumes of data from disk to cpu and back. The greater the volume of data to be processed and the more transmissions between cpu and disk, (a slow process in itself on these systems) the greater the time needed for processing. E. Mathematics. Even though some of these stand-alone systems offer basic arithmetic, they seldom perform all mathematical functions. This means that you may be able to add a column and get a total but you may not be able to multiply a number of hours by an hourly rate to set a fee for your services. F. Language. "Most of these systems use the vendor's programming language, called assembly language. This means that programmability is reduced to that programming provided by the vendor. New or enhanced programs are available only from the vendor and can be modified only by the vendor. Obsolescence protection is as good as the vendor's willingness to provide new programs," according to Geoff Webb, systems analyst. It is important to note that there are systems of this type available today which have power greater than 16K and some which store text in "variable length files" rather than "pages." These systems can offer more advanced arithmetic ability, more features (because the memory is larger),
and faster processing," according to Fred Zimmerman of CPT Corporation. Their greater power and larger memory are an improvement over the 16K systems; they are excellent word processing systems and they offer more powerful, faster data processing functions than the 16K systems, but they do not necessarily crunch numbers. The installation of one of these systems should be based primarily for word processing capabilities; the dp functions offered should be viewed as "extras." II. Small Business Computers. These systems generally offer separate software programs for full accounting functions plus a separate software program for word processing. Limitations due to size of memory, volume of storage and speed of processing will be similar to that on the word processors mentioned previously. If the programming language is an "assembly language" known only to the vendor then the lawyer must rely on that vendor for both hardware and software support and enhancement. Wp software on these systems may be completely satisfactory or extremely limited and varies greatly among vendors. "Lawyers considering these systems should first make a list of the word processing features desirable for the production of the firm's documents and then compare that list to the features offered by the vendor," according to Geoff Webb. "Only in this way can the lawyer accurately measure whether the wp capability of the computer will be adequate for the firm." A possible disadvantage of wp programs on computers is that computers are not oriented to secretaries. The programs are menudriven and more complex to operate than stand-alone word processing systems. Chuck Farrell of Wang Laboratories, Inc. commented that "those systems are data processing systems. They were designed to do a job very well, and that job is to punch numbers, to maintain files, to do jobs in a batch-oriented way. The human engineering is just not there. It wasn't designed as a product for a secretary to sit in front of.'" These systems should be installed where the primary need is for data processing; word processing should be considered as an "extra." How-
ever, according to Geoff Webb,lFthe program language is one of the MAJOR languages, such as BASIC, COBOL or FORTRAN, then the word processing package can be given more importance because it can be modified or tailored to suit the lawyer's specific needs if necessary. This modification can be performed by the vendor or by a programmer hired by the lawyer. III. Shared Logic or Cluster Systems. The main advantage of these systems is economy, in that several editing stations (keyboard and screen combinations) can be operated from one shared central processing unit. Another advantage is the ability on some of these systems to have larger files by having larger disks. These files can be permanently on-line, available to several operators at one time without the necessity of handling media or providing duplicate sets of media. A third advantage is the ability to grow within the system, adding another editing station if necessary rather than a full stand-alone system. Some of the shared-logic systems, however, provide only a 16K cpu utilizing floppy disks. While this may be satisfactory for one or two editing stations, in my opinion there may not be enough logic to share. It's important to note that sharedlogic systems are either computeroriented or word processing-oriented as are the small business computers and the stand-alone word processors. As with computers and word processors, it's important to choose the system for its primary purpose, either wp or dp. The dp-oriented system will crunch numbers; the wporiented one will not. Since the central processing unit is electronic-having no moving parts-it has a high degree of reliability. However, major consideration should be given to the fact that if the cpu goes down, the whole system is down. It is clear that today's technology offers two types of systems, wp and dp. Each does its work extremely well. If lawyers want to merge these functions today, the starting point should be sophisticated word processing system utilizing an 8" floppy disk, at least 16K memory (the more memory the better), preferably dual disk drives, and one which offers communications. Then choose a small business computer which
communicates in the same language. The two systems should cost approximately $30,000 at the time of this writing, ($15,000 each). Alternatively, choose a computer large enough to use a hard disk, which allows different types of printers to be hooked up to it and which is programmed in one of the major languages. If the company offers word processing software, the lawyer can buy it with the knowledge that the software can be modified either by the vendor or the lawyer's hired programmer. "Because of the use of the major language, the lawyer also has the option of shopping around for software, selecting one which most nearly meets the firm's needs and then allowing a programmer to customize it," according to Geoff Webb. Small firms should select a high quality character printer which provides printing quality satisfactory for legal documents. The same printer can be used for the firm's data processing functions. Larger firms could utilize both character and line printers, using the faster line printer for dp functions. This equipment, including both printers, should be available for approximately $40,000 at the time of this writing. In tomorrow's office, look for more powerful shared-logic systems with improved software and intelligent terminals. Instead of wp and dp, we'll have "central processing" systems combining OCR readers, high-speed printers, phototypesetting and communications. George Greenspan of Wordplex Corporation describes the office of the future in a recent article, ".. .it's very likely that in the future almost the whole office will be in some way interconnected to the typing system... every typist will have access to every facility in the office, and maybe the evolution will take us away from identitying that given system as a typing system and toward calling it the central controlling system that has typing as one of the facilities it offers."2 Today the merging of wp/dp is closer to myth than miracle. The miracle is a little further down the yellow brick road to the future, perched brightly on the horizon in plain view of those willing to trod the path. 'Modern Office Procedures, "Shared-Iogic WP Systems: What they are, what they do," November 1978. ~ 2lbid. ~
April 1979/Arkansas Lawyer/63
CODE Of PROfESSIONAL RESPONSIBILITY Procrastination (Editor's Note: In 1975, the American Bar Association's Standing Committee on Professional DisCipline and Center for Professional Discipline published the booklet "Avoiding Unintentional Grievances". The Arkansas Bar Association purchased and furnished copies to each of its members.
Under this RegUlar Feature--code of Professlonat Responsibilily-in The Arkansas Lawyer, we have published various parts of the Code and many related quizzes. It is our intention now to publish parts of "Avoiding Unintentional Grievances" for rereading and review by the membership. To this end, we have secured permission from the American Bar Association to so publish.)
, "
The most common complaint made by clients is that the lawyer "hasn't done anything." Many such complaints may be avoided by the simple expedient of forwarding to the client copies of pleadings, briefs, memorandums and relevant correspondence as the matter progresses. Despite their honest intentions to complete matters expeditiously, lawyers do sometimes procrastinate in violation of Disciplinary Rule 6-101 (A), which provides that: "A lawyer shall not:... (3)Neglect a legal maner entrusted to him." Such violations can result in disciplinary action. Actual neglect can be prevented by a systematic priority list, conscientiously adhered to, and by office procedures under which secretaries or other assistants are made responsible for reminding the lawyer of deadlines. Neglect of a client's affairs is often aggravated by the lawyer's failure to respond to the client's phone calls or letters. Such failure can cause complaints even when the lawyer has not actually neglected the client's matters. When a lawyer is unable to respond to a letter or phone call from his client, the lawyer should delegate to his secretary or assistant the initial responsibility for responding to the client's inqUiry. Thereafter, as soon as possible, the lawyer should respond to the client directly........ 64/Arkansas Lawyer/April 1979
" -The case ill coming along nicely; we're making rapid sirides. -Tbal'swhal you lold me four yeara ago; j(we keep siriding on much longer I IIl1aD be barefoot before we gel there. ..
~
1111
JURIS DICTUM by C. R. Huie Executive Secretary, Judicial Department
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I
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On November 3, 1978 the State Judicial Council 01 Arkansas consisting of all of the Circuit Judges, Chancellors, Supreme Coun Justices, Judges Elect and their guests concluded its Annual Meeting at Fon Smith where it had enjoyed the hospitality of the Sebastian County Bar, Crawford County Bar, Fon Smith Chamber of Commerce, and many other interested Fon Smith organizations and individuals. The final event of the occasion was the Annual Dinner held at the Hardscrabble Country Club at which Honorable James Duke Cameron, Chief Justice of the Supreme Coun of Arizona and Chairman of the Conference of Chief Justices, made the principal address which was the outstanding event of the Annual Meeting. Chief Justice Cameron's talks was so impressive that several Judges present suggested that we make it available to all lawyers generally and all recipients of the "Arkansas Lawyer". It is therefore with pleasure that we carry his address in this issue.
I It was the Lord Chief Justice of England, Lord Hewart, who, in describing the British courts, stated: "Her Majesty's judges are satisfied with the almost universal admiration in which they are held." I think I can safely state today in America the judiciary is not held in almost universal admiration. We are the subject of much criticism. Some of this criticism is justified but most of the time it is based on ignorance of our jUdicial system, a system that makes possible a strong but flexible system of constitutional government in a free society. I should like to talk to you tonight about some of the reasons we receive so much criticism. By understanding the causes of criticism of the courts, both judges and their families may find it easier to accept the fact that some of the antagonism on the part of the public toward the court will never
go away and is part of being a judge.
II The first and greatest cause of criticism of the judicial system is the result of the adjudicative function. We must decide between two citizens, as in the civil cases, and the state and the citizen in criminal cases. Someone has to lose. 1. Criminal. In criminal cases, we are asked to throw the book at the defendant from across the tracks, but are asked to be lenient and "soft" when it comes to that nice boy down the street who mows your lawn. 2. Civil. In civil cases, somebody has to lose and because many of our citizens feel that a legal judgment is also a moral judgment on their conduct, they are most unhappy with the judge. Even the winner finds it onerous to have to pay to have determined what he knew all along with the case, namely, that he was correct from the start.
We are, then, in a no-win situation in regard to the adjUdication function. The second greatest source of criticism is the political function of the court, that is, presiding over the delicate system of checks and balances that is the heart of the American system of government. As an oversimplification, a free society is a balance of two competing ideas: first is that the will of the majority shall be carried out and the second is that at the same time the rights of the minority shall be protected. The executive and legislative branches must pursue the popular cause. Indeed, if they do not, they will not long remain in power. Because of constitutional mandates, it is the duty of the jUdiciary to check the actions of the executive and legislative branches when they abridge the rights of the minority. We have to say, no matter how guilty the person is, he will get a fair trial before punishment. We must declare the best intentioned and most popular of laws unconstitutional.
April 1979/Arkansas Lawyer/55
III If these problems are enough to get us in trouble with the public, we now face an even greater problem and that is volume. Too many people are seeking our help. As Shirley Hufstedler has stated:
"We expected courts to encompass every reach of the law, and we expect law to encircle us in our earthly sphere and to travel with us to the alien vastness of outer space. We want courts to sustain personal liberty, to end our racial tensions, to outlaw war, and to sweep the contaminants from the globe. We ask courts to shield us from public wrong and private temptation, to penalize us for our transgressions and to restrain those who would transgress against us, to resusitate our moribund businesses, to protect us prenatally, to marry us, to divorce us, and, if not to bury us, at least to see to it that our funeral expenses are paid.
"These services, and many more, are supposed to be quickly performed in temples of justice by a small priestly caste with the help of a few devoted retainers and an occasional vestal virgin. We are surprised and dismayed because the system is faltering."
Not only are courts being asked to do more, but the disputes we are being asked to resolve are becoming more complex. For example, IBM is being sued for antitrust violations. In the IBM case, hundreds of lawyers and legal technicians are working on this lawsuit. The legal costs of the trial for IBM alone may reach 100 million dollars and we will never know the cost to the United States government. Some of the attorneys working on the case are being given extra pay because they will spend years on only one case. There are some 7 million exhibits and over 100 (mostly expert) witnesses. IBM is using a computer to index the evidence, and we assume that the government is doing the same. I would be interested to know if 66/Arkansas Lawyer/April 1979
it is an IBM computer. One judge, Judge Edelstein of the Southern District of New York, with the help of three law clerks, will have to digest the information necessary to decide this case. He is also expected to carry his regular load of 300 other cases as a Federal District Judge. Heaven help us if there is an appeal. Some, however, will say that courts should be more efficient. After all, if the courts would adopt good old American business methods and some of the practices of the quasijudicial bodies such as the NLRB or the State Industrial Commission and if judges would be less concerned with the rights of criminals and more concerned with the rights of society, they could get their job done and done quickly. I agree that in many cases the rights of society are seemingly ignored. I also agree that courts can improve their efficiency. The courts must not, however, in the desire for volume and public acceptance, lose something very precious in this country and that is individual justice. As Justice AI Tate has stated: "The judiciary is the last institution of government where individuals receive individualized treatment. No matter how hopeless a case may be, it is not frivolous to the party and may represent his only hopes for justice against the impersonal institutions of automated society. The court system must not become just another bureaucracy, cramming litigation papers into suitable slots or at least the closest-fitting cubbyhole."
Without individual justice, there can be no individual freedom. This means that we must continue some of the procedural due process practices that are so irritating to those outside the judicial system. We must continue to assure that every person who appears before our courts have an opportunity to be heard and to respond individually to the allegations of the other side. In an increasingly complex society, the courts are more and more the thin line between individual freedom and bureaucratic dictatorship.
IV The courts generally are underfunded. Most states appropriate one-half of one percent of the state's budget; the federal government, one-tenth of one percent.
Another problem we have with the public and some of our own members as well is the belief that law is a solution to all our problems-we should remember and we should remind the public that law cannot create resources. Law cannot repeal economics and law cannot change basic human nature. Our legal system simply cannot continue to operate if it tries to resolve every difference of view or interest and provide for every citizen and institution a lawsuit against every other citizen or institution. We cannot redress every perceived invasion of privilege or recompense every risk of living. Let there be no mistake, we can destroy the judiciary by too much business as well as by no business at all.
V I would like to close on a positive note. A mayor of New York once said: "I have a high opinion of lawyers. They are better to work with or play with or fight with or drink with than most other varieties of mankind." I feel the same about judges. American jUdges are intellectually honest and morally courageous and I am proud to be a part of a system without which the quality of life in this country would be much poorer. Knowing the deficiencies of the American system, I would rather submit my life, my liberty, and my fortune to an American judge in an American court than any other in the world. It was John W. Davis who described what we doideally, at least: "True, we build no bridges. We raise no towers. We construct no engines. We paint no pictures •• '. There is little of all that we do which the eye of man can see. But we smooth out difficulties; we relieve stress; we correct mistakes; we take up other men's burdens and by our efforts we make possible the peaceful life of men in a peaceful state."
#.... .
NEW WORK PROVIDES DEFINITIVE TREATMENT OF THE CURRENT STATE AND TRENDS OF THE LAW OF SEARCH AND SEIZURE West Publishing Company has announced publication of a definitive three-volume work, Search and Seizure, A Treatise on Fourth Amendment Law. The treatise is written by Wayne R. laFave, David C. Baum Professor of Law at the University of Illinois and "the reigning expert on the law of search and seizure." In addition to his academic post, Professor LaFave is Reporter to the Advisory Committee on the Federal Rules of Criminal Procedure and chairman of the Illinois Supreme Court Committee on Criminal Justice programs. Search and Seizure provides a systematic, comprehensive report on the current state and trends of Fourth Amendment law, as well as a critical assessment of how well the U.S. Supreme Court and lower courts have fared in giving content and meaning to the Fourth Amendment. Since the Supreme Court landmark decision of Mapp v. Ohio in 1961, there has been more litigation involving the Fourth Amendment than any other provision of the Bill of Rights. Thousands of appellate decisions based on the Fourth Amendment have resolved many issues, but there are many still to be decided. As the Supreme Court recently observed, it has not been possible to reduce "Fourth Amendment law to complete order and harmony." In the treatise, Professor LaFave discusses precisely which issues have been decided by the Supreme Court and how they have been resolved; those issues examined fairly regularly by lower courts and how those issues have been decided; and the issues which in the main have not been treated by the courts. He identifies weaknesses and inconsistencies in Fourth Amendment doctrine which suggest ample opportunities for effective and imaginative advocacy. The three-volume work examines: what constitutes a "search" for Fourth
Amendment purposes, including evaluation of a wide range of police investigative techniques; what constitutes "probable cause"; what are the Fourth Amendment limits on issuance and execution of search warrants; the limits on warrantless searches and seizures; what constitutes a valid consent search; what are the Fourth Amendment limits on "stop and frisk" and similar intrusions; what are the special Fourth Amendment Rules applicable to inspections and
regulatory searches; the exclusionary rule, and the scope of remedies for Fourth Amendment violations. The new treatise is designed for use by everyone engaged in the prosecution or defense of criminal cases-prosecutors, defense lawyers, judges, as well as law teachers, students and others concerned with the problems posed by the Fourth Amendment. ~
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SAFEGUARDING YOUR PROFESSIONAL FUTURE
When you march to a different drummer... make sure you keep the time! When handling cases which arise in other slates. don't assume that the statute of limitations is the same as in your
own state. Check out the slate statute of limitations immediately, and if necessary. refer the case 10 a local attorney.
April 1979iArkansas Lawyer/59
UNAUTHORIZED PRACTICE OF LAW One of the great advances in the regulation of the practice of law in Arkansas has been the action of the Arkansas Supreme Court in promulgating its RULE OF COURT CREATING A COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW. The RULE is published for the information and guidance of all concerned.
PER CURIAM 78-11 December 18, 1978 RULE OF COURT CREATING A COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW The Constitution and laws of this state vest in the Supreme Court the duty and authority to regulate the practice of law and to prohibit the unauthorized practice of law. Pursuant thereto, the following rule is adopted to become effective as of February 1, 1979, and shall apply to all complaints of and matters or inquiries dealing with the unauthorized practice of law.
-1The Court shall appoint a committee composed of four lawyers and three persons who are not lawyers. One lawyer member of the committee shall be from each Congressional district and the balance of the members shall be from the state at-large, all to serve at the pleasure of the Court. The committee shall select one of its members as Chairman and another as secretary. A majority of the committee shall constitute a quorum.
-lIThe name of the committee shall be "The Supreme Court Committee on the Unauthorized Practice of Law." The committee shall provide for its use a seal of such design as it may deem appropriate, and in the performance of its duties imposed by Rule of Court and by its own rules promulgated pursuant to Rule of Court, shall have authority to issue subpoena for any witness, including the production of documents, books, records, or other evidence, directed to any Sheriff or State Police officer within the state,
70/Arkansas Lawyer/April 1979
requiring the presence of any person before it. Such process shall be issued under the seal of the committee and be signed by the Chairman or Secretary. Disobedience of any subpoena or a refusal to testify may be regarded as constructive contempt of the Arkansas Supreme Court, and punishable by proceedings in that court. -11IAll inquiries and Complaints relating to the unauthorized practice of law shall be directed to the committee, in writing, through the Clerk of the Arkansas Supreme Court. Upon receipt of such inquiry or Complaint, the committee may: a. Without formal investigation make a determination that the action or course of conduct does not constitute unauthorized practice of law, or b. Determine that probable cause exists for the conduct of a formal investigation and to conduct such investigation as is indicated, including the calling of witnesses for testimony under oath. Thereafter, the committee shall 1. Make a determination of whether in the opinion of the committee, the action or course of conduct under investigation constitutes unauthorized practice of law. 2. Publish an advisory opinion directed to the interested parties and reflecting the decision of the committee. c. In the event of a finding of unauthorized practice of law and a continuation of the action or course of conduct after receipt of the committee's advisory opinion, the committee shall bring an action or actions in the proper Court(s) seeking to enjoin that conduct deemed to constitute unauthorized practice of law, and to pursue such action(s) in the name of the committee to a final conclusion. -IVThe committee shall adopt rules of procedure for the handling of inquiries and Complaints and a copy of said
(
rules of procedure shall be filed with the Clerk of the Arkansas Supreme Court and shall be subject to inspection and made available upon request of any interested person. -VExpenses of the committee: From the funds created under Rule VII, members of the Committee shall be entitled to receive their actual necessary travel and hotel expenses, reimbursement for postage, stationery, communications, an attendance allowance, and other incidental expenses, including stenographic bills, and court costs chargeable against them. All such items shall be paid by the Clerk of this Court by check on said fund, signed by the Clerk and countersigned by the Chief Justice. Accounts must be itemized and certified by the Chairman, Secretary or the Executive Secretary of the Committee as true and correct. -VIAll inquiries and Complaints which proceed to hearing(s} before this committee shall be open to the public and the news media. No advisory opinion issued by this committee shall be construed as an Order of the Court and such opinion shall have no binding or legal effect upon any affected party. However, nothing in this section shall be deemed to restrict or in any manner inhibit the committee from commencing such legal action as an arm of state government as it deems proper, to enjoin or restrain an activity or course of conduct deemed by a majority of the committee to be unauthorized practice of law within the statutes and laws of this state. Byrd, J., dissents.
Conley Byrd, Justice, dissenting. Over the years the individual lawyers of this State and the local and State Bar Associations have admirably handled the problems involved in the unauthorized practice of law by laymen by the filing of suits to enjoin such conduct. See Ark. Bar Association v. Union National Bank, 224 Ark. 48, 273 S.W. 2d 408 (1954). In the course of such proceedings discovery procedures were available and freely used as in any other type of civil litigation. Now, however, this Court upon no showing of any change of circumstances has created a committee and given it State wide subpoena powers such as that possessed by Prosecuting Attorneys to coerce witnesses to come to the committee. I cannot reconcile myself with the fact that this Court should treat the businessmen of this state as common criminals while in seeking to determine if they are encroaching upon what the committee may consider the unauthorized practice of law. Upon the procedure we have heretofore followed, a harassed citizen subpoenaed for a deposition had a right to apply to the trial court for relief from harassment, Ark. Stat. Ann. ยง 28-353, but under the rule here approved by the majority a witness subpoenaed like a common criminal from Hamburg to Fayetteville for the taking of his testimony prior to the Texas-Arkansas football game has nobody to whom he can apply for relief. In fact the rule of this Court says he is in contempt of the Supreme Court of Arkansas if does not go. For the reasons stated, I would not give the committee on the unauthorized practice of law the power of subpoena, but would leave them to proceed under the discovery rules '" applicable to all other civil litigants.
ARKANSAS BAR ASSOCIATION ARKANSAS INSTITUTE OF CONTINUING LEGAL EDUCATION
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Annual Meeting Arlington Hotel, Hot Springs June 6-8, 1979
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Fall Legal Institute Camelot Inn, Linle Rock September 13-15, 1979
Tax Seminar for General Practitioner Camelot Inn, Little Rock April 27-28, 1979
Midyear Meeting Camelot Inn, Little Rock January 17-19,1980
April 1979/Arkansas Lawyer/71
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JUDGE JOHN E. MILLER HONORED The Garland County Bar Association honored Senior U.S. District Judge John E. Miller in a special ceremony in the U.S. District Courtroom at Hot Springs, Arkansas on December 15, 1978. Highlight of the proceedings was the presentation of Judge Miller's portrait to the U.S. District Court. In the program on JUDGE MILLER "IN REVIEW", his early years, political years and judicial years were recounted by Messrs Richard H. Wootten, Jim Gooch, and Henry M. Britt, respectively. Former Governor Sid McMath and Past President Robert C. Compton of the Arkansas Bar Association were particularly eloquent in expressing "from the floor" their great admiration for Judge Miller.
JUdge and Mrs. Miller
JUdge Miller's biographical sketch runs some 15 legal-size sheets. His contributions and honors are legion. It is not possible to give full measure to these-the awards by the Arkansas Bar Association on June 10, 1966 and by the International Academy of Trial Lawyers on August 27, 1977 need only be repeated: "AWARD GIVEN BY ARKANSAS BAR ASSOCIA nON The bench and bar of the State of Arkansas gratefully recognize JOHN E. MILLER, UNITED STATES DISTRICT JUDGE, for twenty-five years of service on the United States District Court, Western District of Arkansas, of unequaled excellence in the administration of justice. Done in Annual Convention at Hot Springs, Arkansas this Tenth day of June, 1966. /s/ Courtney C. Crouch, President Arkansas Bar Association" 74/Arkansas Lawyer/April 1979
The "Honored"
The International Academy of Trial Lawyers presented him a scroll "In recognition of his unsurpassed 65year career as trial lawyer, Congressman, United States Senator and peerless United States District Judge and in appreciation of his dedicated service to his state, nation, the legal profession and the cause of justice." ........
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IIII lCP
April 1979/Arkansas Lawyer{fS
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(#fi/p • Arkansas statutes prescribe the application of the American Experience Table of Morality and the use of a four (4) percent per annum discount factor in determining the present value of the compensation annuity to the permanently and totally disabled worker. Special tables apply to a surviving widow, viz., the Danish Annuitant's and Dutch Remarriage Tables for the first thirteen (13) years of her widowhood. It is also possible that other mortality tables would have to be brought into use in the case of surviving minor children under the age of ten (10) years at the time of the expiration of an insured worker. The specification of the cited mortality tables and the discount rate to be applied are well known. The questions that seem to be unanswered are posed in the following sections. APPLICABILITY OF THE AMERICAN EXPERIENCE TABLE OF MORTALITY The American Experience Table of Mortality was founded by Sheppard Homans. The table starts at age 10 with a radix of 100,000 and terminates with three deaths between the ages of 95 and 96. The tables are considered a safe basis of American mortality amongst insured lives after the first effects of selection have disappeared and the tables are prescribed for valuation purposes by State Laws other than in Arkansas. At least in part, the American Experience Table of Mortality represents the experience of the Mutual Life Insurance Company of New York 76/Arkansas Lawyer/April 1979
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SOME ECONOMIC AND ACTUARIAL QUESTIONS ABOUT LUMP-SUM SETTLEMENTS BY DR. RAWLEIGH H. RALLS with their insured over the seventeen year period between 1843 and 1860. QUESTION: Why are we in the last quarter of the twentieth century using mid-nineteenth century tables based upon unspecified and unknown adjustments to an insured base population residing in salubrious districts after the effects of medical selection have been eliminated? QUESTION: Why are we not utilizing the most current and best documented basis for evaluation of life expectancy as published in the U.S. Life Table published by the National Center .for Health Statistics? (These tables distinguish males from females, white persons, the population other than white and the negro population and are based on most recent actualities and the best sources within the United States.) I don't know the answer to the above two questions but I do know that the alternative use of the American Experience Table of Mortality and the U.S. Life Tables would make a material difference in a lump-sum settlement award. Let us consider the hypothetical case of a worker born January 29, 1940 who is permanently and totally disabled on May 25, 1976; the average weekly wages of the worker is such that his entitlement is $77.00 per week. Let us further assume that it is in the best interests of the worker to be awarded a lump-sum settlement and that such an award were made on July 1, 1977. The present value of the $77.00/week annuity on July 1,1977 using the four (4) percent annual discount and the American Experience
Table of Mortality is shown in the table below. Also shown is the present value of the same annuity utilizing the U.S. Life Tables for white males, et ceteris paritus. Present Value Equivalent of a $77.00 Per Week Annuity Utilizing Two Different Mortality Tables American Experience
Table of Mortality U.S. Life Tables For White Males
$64,398.79 $71,248.46
The first conclusion that may be drawn is that the present Arkansas statutes are operating to the disfavor of the permanently and totally disabled worker, in the above hypothetical situation, to the tune of $6,849.67. Let us also investigate the division of the lump-sum settlement responsibility between the respondent and the secondary death and total disability fund. The respondents responsibility is for the first $50,000 of annuity payments or the present value thereof. In the same hypothetical situation, the workers should have already received $4,398.82 from his employer/employer's carrier leaving the balance of $45,601.08 as the respondent's maximum financial exposure. The remaining balance has a present value of $34,048.59 based on the American Experience Table of Mortality in continuation with the four (4) percent annual discount. The difference between the $64,398.79 and $34,048.59, i.e., $30,350.20, becomes the responsibility of the secondary fund. The alternative under the applica-
tion of U.S. Life Tables is $35,372.73 as the responsibility of the respondent and $35,875.73 as the responsibility of the secondary fund; the respondents burden increases $1 ,324.14 and that of the secondary fund goes up $5,525.53. The second conclusion that may be drawn is that if the worker was compensated on the basis of current mortality experience, then the secondary fund would bear the major financial burden. APPLICABILITY OF THE FOUR PERCENT DISCOUNT RATE The theory of discounting future incomes is to compensate for the timevalue of money; a dollar today is more valuable than a dollar at some future date given that the dollar can be employed to the benefit of the holder. This statement seems simple enough and it is within the common experience of most everyone and indeed it is part and parcel of "judicial truth" in many jurisdictions. The facts are that, since 1952, the earnings ability of invested funds in relatively "riskless securities" has exceeded the loss of the purchasing power of the U.S. dollar by a mere 1.44 percent per annum; in recent years the return has been outstripped by inflation. QUESTION: Why is the discount rate in the Arkansas statutes set at four (4) percent when in fact the earnings ability of secure investments has never been that high? QUESTION: Why don't the Arkansas worker's compensation statutes specify a discount rate consistent with
(Editor's Note: It is anticipated that Dr. Ralls' article will evoke some controversy concerning the inclusion of the so-called "secondary fund" and the proper usage of the Old American Experience Tabie.ln fact, Dr. Ralls noted some points of controversy when he submitted his final draft. We will, of course, welcome any refated article for consideration for future publication. "Dr. Ralls is a well-known economist with a fot of experience in trial work. I believe his article would be of value. "-Henry Woods)
recent experience or some value consistent with financial/economic theory and practice? The answers to this pair of questions are moot; those to the preceeding pair are not nearly so. There is almost universal agreement among the community of economists that inflation will remain an inherent characteristic of our economy; the internal arguments concern the level! If this forecast is true, then any specified discount rate is likely to be in error favoring either the insured or the underwriter depending upon the times involved. One approach that circumvents the question of the changing and transient conditions of our economy is to discount at a rate that is free from those influences. Such as a discount rate would be between 1.5 and 2.0 percent per annum. Let us now return to the hypothetical situation. The same $77.00 per week annuity discounted at 2.0 percent would yield those amounts shown in the table below. Present Value Equivalence of a $77.00 Per Week Annuity Discounted At Two Percent Using Selected Mortality Tables American Experience
Tables of Mortality. . . . . . U.S. Life Tables for White Males.
. .$85,471.95 .
$96,907.14
Payments of these amounts would certainly mitigate in favor of the current worker's compensation statutes being changed particularly in terms of
share of the financial burden to be assumed by various parties, but having been changed, the following benefits could obtain. 1. There would be no future need to consider changes in the statutes in order to preserve economic equity of awards other than for the vlaue of the weekly amount of the annuity. 2. The amount of the award would be consistent with the intent of the original concept of worker's compensation statutes, i.e., provision for fair economic compensation to an injured worker in lieu of seeking remedy from his employer. 3. The reduction of product liability insurance requirements for manufacturers of industrial equipment. 4. Integration of worker compensation underwriting with product liability underwriting under conditions of greater actuarial certainty. 5. Reduction of administrative costs presently born by employers, manufacturers and insurers which saving could be shared in by the insured. The discussion that becomes evoked by consideration of the benefits carries beyond the scope of this article. The purpose has been to demonstrate that the Arkansas worker is clearly being undercompensated when he receives a lumpsum settlement award today.
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Dr. Rawleigh H. Ralls is a graduate of the United States Military Academy (1955) who came to Arkansas in 1968 to accept a teaching position of the faculty at the University of Arkansas in Fayetteville. He organized and incorporated a research oriented business consulting firm in 1970 and first became active in consultation to
the legal profession in 1972. In 1975, he organized Attorney's Economic Consultants in order that the services of his com-
pany become more visible to practicing attorneys. Dr. Ralls has lectured at ATLA Circuit seminars, Workmen's Compensation seminars here in Arkansas and last
year was on the Civil Advocacy faculty at The Hastings College of the Law. For further information, see Attorney's Economic Consultants' advertisement on inside back cover.
April 1979/Arkansas Lawyer[77
IDENTIFYING THE PUBLIC RELATIONS PROBLEM "The MoBar-Pren/Hall and Other State and Local Attitudinal Surveys of Public Attitudes Toward the Profession" by James N. Woodson
(Editor's Note: We intentionally used George Fisher's classic cartoon in this issue (see page 82) to point up one concept in the legal profession's "PR" problem, and to encourage Arkansas lawyers to review the related study, "What's the REAL Image of Arkansas' Lawyers?", by Dr. Ken D. Bailey of the University of Arkansas, in The Arkansas Lawyer, April 1974. Dr. Bailey's conclusions are (1) Half of the adults in Arkansas have made use of legal counsel; (2) The lawyer is perceived as trustworthy, competent, and to a lesser degree, concerned with the welfare of his community; (3) The lawyer is ethical; and (4) Only 41 % thought that legal fees were too high. DR. BAILEY'S CONCLUSIONS ARE NOT BORNE OUT BY SOME TEN OTHER PUBLIC RELATIONS SURVEYS. Mr. James N. Woodson, Director of Public Information, Virginia State Bar, consolidated the results of these ten "PR" surveys, and presented the results at the Ninth Annual Bar Public Relations Workshop in December, 1978. Mr. Woodson's study is re-printed here for all Arkansas lawyers to consider in relation to themselves and their so-called "publics" (clients, other attorneys-at-law, the general public, judges, etc.). We think that Dr. Bailey's opening quotation to his article is worth repeating-"The Solar System has no anxiety about its reputation"-Ralph Waldo Emerson. Lawyers cannot feel so secure, what with the criticisms by Chief Justice Warren E. Berger and President Carter, and the "bad press" enjoyed (?) generally. We urge all lawyers to take one hour's time from their practice to read Mr. Woodson's study-1t could be the most profitable hour spent in a busy day.) 7B/Arkansas LawyerlApril 1979
I.
INADEQUATE KNOWLEDGE/INFORMATION ABOUT LAWYERS, THE LAW AND THE LEGAL PROCESS A. Virtually every study has shown this. B. A principal conclusion of ABA-ABF Legal Needs Survey-public needs better understanding of nature of legal problems, how best they can be resolved and part lawyers can play in the process. C. Problem of public inability to recognize legal implications of certain problem situations, many of which are rather commonplace (Nebraska). D. Need for clear definition of legal needs inextricably interwoven in this area-without a clear definition acceptable to both the public and the legal community, any attempt to identify and describe such needs is susceptible to criticism about improper assumptions and inadequately grounded conclusions. E. Public appears to lack knowledge of the legal implications of particular actions and is inclined to underestimate the usefulness of lawyers; education is a key on problem incidence in population. F. Knowledge of the law and one's rights before the law is a critical factor in determining both the frequency and the types of legal problems that an individual is likely to encounter. G. 1974-75 Nebraska survey of lawyers and lay persons provides further evidence of an information gap recognizing legal problems and usefulness of iawyers in certain sltuationsroof leaks, law mower blows up when
II.
started-where public said would only use lawyer as last resort and many lawyers said should go to lawyer first. Many people feel a professional other than a lawyer can handle the problem and get less than a satisfactory result. MoBar study showed similar information gaps, as did ABA-AFB survey, where sizeable minority took no action-in personal injury (31%), repossessions (32), constitutional infringements (42), child injuries (44), evictions (54) and job discrimination (71). PERCEPTIONS OF ATTORNEYS A. Public opinion surveys also give guidance on the question of how attitudes toward lawyers may influence the public to define a need or problem as one which requires legal assistance. B. To date, no survey has been conducted which seeks to assess comprehensively the American public's attitudes and perceptions toward lawyers. Drawing on the findings of the ABAABF study along with several statewide surveys, however, a composite picture emerges of a public that, at best, has very mixed feelings about lawyers. In some perceptual areas, majorities, or near majorities, exhibit negative views. In other areas, the public is more supportive of lawyers, but even in these disturbingly sizeable minorities express negative attitudes. C. A succinct indication of the public's attitude toward a particular institution or group is provided by survey questions asking about the degree of confidence people have in that institution or group. 1. For several years, Louis Harris and Associates have been tracking public confidence in important public institutions and professional groups. The effort reveals that the public's confidence in lawyers has dropped in recent years, moving from 24 percent in September 1973 to 14 percent in February 1977. 2. In part, the drop in ccnfidence reflects the "crisis in confidence" that has affected almost all national institutions since the decade began. The drop in confidence in this instance, however, is an even more precise expression by the public today of its skepticism of the effectiveness and intentions of lawyers, not the system in general. THE DROP IN CONFIDENCE REFLECTS THEN AN ACTUAL DISSATISFACTION WITH LAWYERS. 3. Supportive of these findings is a 1975 Virginia Bar Association public attitude study in which more than one Virginian in four expressed little or no confidence in lawyers. Only 19 percent expressed a "great confidence" in lawyers, ranking lawyers below doctors (58% "great confidence"), dentists (51 %), accountants (34%), plumbers (25%), and architects (22%), and ahead of television newscasters (16%) and members of city councils and boards of supervisors (12%).
III.
WHY THE LACK OF CONFIDENCE IN LAWYERS? A. Fees and Economic motivation perceptions 1. One of the primary reasons relates to the cost of a lawyer's services, specifically to the economic relationship between lawyer and client. The concern about the cost of a lawyer's services moves in two parallel directions. a. On the one hand, there is concern about the size of the fee and the adequacy of the services received in return. A general apprehension and lack of information prevails about the cost of a lawyer's services. This finding is confirmed in every survey in which questions about the cost of a lawyer's services were asked. b. According to the Legal Needs survey, 51 percent of the public agrees that "(I)awyers fees are not usually fair to their clients, regardless of how they figured the fee," and more than two-thirds (68%) feel that (m)ost lawyers charge more for their services than they are worth. Similar findings relating to the high cost or the perceived unfairness of legal fees are found in the studies conducted in Virginia, Nebraska, Missouri, North Dakota and Florida. c. The cost of goods and services is a highly sensitive subject to the public. As a rule, when asked about the fairness or appropriateness of the cost of a particular good or service, the public's response generally tends toward the negative. 2. Not to be ignored is the perception that those with more money get better service-lawyers work harder at getting clients than in serving them and are hired guns, Willing to argue any side of a case so long as they are being paid. Here enters the perception of economic motivation. a. There is considerable cynicism about the economic motivation of lawyers. Surveys show significant sentiment that a lawyer is sometimes motivated by economic gain rather than professionalism and a desire to obtain justice for his client. The public resents such a "mercenary mentality." (Texas study also shows this, and Florida). b. Lawyers, on the other hand have a different perception, both as to their fees and motivations. Take, for example, the Nebraska study, in which the lawyer respondents, contrary to feeling their colleagues overcharged, were critical that too many of them "undercharged." B. Ethics and Self-Regulation 1. While a majority offer positive assessments of lawyers' ethics, a substantial April 1979/Arkansas Lawyer/79
minority hold negative views in this area. Large segments of the pUblic are concerned both about the ethical behavior of lawyers and about the ability and willingness of lawyers to engage in effective self-regulation. a. Florida study, 20% said lawyers were dishonest or lacked ethics. In the Virginia study, 52% said there were too many dishonest and unethical lawyers around. In Nebraska, 47 per cent disagreed with a statement that lawyers seem to do a good job of keeping each other honest. Actually, Watergate had no more than 3% impact on this perception, if that much, surveys have shown. b. Lawyer disciplinary systems and actions appear too seldom, are timeconsuming and seem out of proportion to volume of complaints. The public perceives that the organized bar fails to deal with certain obvious problems typified by individual lawyers and judges who are either incompetent, dishonest, or prone to procrastination. c. The public perceives, too, that the primary purpose of the organized bar is to promote the self-Interest of the profession at the expense of the public interest. The public relates the organized bar with anti-no-fault programs and overly broad UPL regulations. It feels that when the organized bar recognizes the need for affirmative action it moves to slowly to implement such actions. (1) Some of the publics' perception is fostered by the criticism by lawyers of the courts and of other lawyers. (2) The public does not identified a unified bar as the governing organization of the profession in a given state; nor does it distinguish between such a bar and other "special interest" organizations of lawyers. (ABA-ATLA) C.
Attitudes Toward Working Behavior of Lawyers 1. The largest number of negative views here surfaces in relation to a lawyer's promptness in getting things done, with 59 per cent feeling in one survey that lawyers are generally not prompt. 2. Survey results show 33 percent feel lawyers work harder at getting clients than in serving them. 3. 30 percent feel lawyers needlessly complicate clients' problems. 4. 39 percent feel lawyers will take a case even if they don't know enough about the
aD/Arkansas Lawyer/April 1979
IV.
area of the law to handle the case well (COMPETENCE). 5. One of every four Nebraska study respondents agree that "most lawyers will take any case offered to them no matter how they feel about the case." 6. North Dakota-33 per cent feel lawyers do not care whether their clients fUlly understand what needs to be done and why. Virginia study shows a like percent. 7. 44 percent claim lawyers generally are not very good at keeping their clients informed of progress on their cases (COMMUNICATION). 8. In Virginia, 21 percent said they would be ill at ease going to a lawyer or in a lawyer's office, with the young respondents most ill at ease. 9. The public perceives that the administration of justice is too burdened with delaying tactics and reliance upon technicalities and attributes the foregoing problems to lawyers. Neither the public nor the media understand the legal process and the role of lawyers in the system. 10. The pUblic does not perceive that lawyers serve a preventive function as well as a remedial function. D. Nature of Relationship between Lawyer and Client 1. Again, promptness, confidence, interest, understanding and competence are key factors to negative views, along with communication. 2. Lawyers have a far different view of themselves than does the public. a. Florida survey results more or less typical-lawyers have a more positive opinion of themselves and an inflated view of what the public thinks of them than is actually warranted by public opinion. "My clients think I'm a good lawyer; they don't complain, at least not to me or those I know." CONCLUSION A. Major problem areas, in this speaker's judgment after reviewing the findings of surveys ranging from 1963 through early 1978, including the ABA-ABF survey and those in Missouri, North Dakota, Texas, the Harris polls, Nebraska, Virginia, Maryland, Ohio, Florida are: 1. Economics-<:harge too much, interest in economic gain over clients, those who pay more get better service, value received in return unequal, contingency fee serves no useful purpose. 2. Ethics-<:ut corners, too many unethical, dishonest lawyers, discipline inadequate. 3. Working behavior-not prompt, take cases where not competent, don't explain need for actions, keep client informed of progress, needlessly complicate things, responsible for delays in system and continued on page 95
OYEZ
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OYEZ
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by Barbara Tarkington Membership Secretary
Dan McCraw, Hot Springs, was represented before the U.S. Patent and Trademark office by Stephen D. Carver, Little Rock, and received a patent for an invention entitled "Disc Rolling Game of Variable Difficulty". Judge Tom Digby, Little Rock, is chairman of the State Judicial Council. Neva B. Talley-Morris, Little Rock, has been selected to have her biograph included in "International Who's Who of Intelligencia". Fred E. Briner, Benton, was appointed by the Arkansas Supreme Court to the state Board of Law Examiners. Dan M. Burge, Blytheville, was reappointed to the board and both terms will expire in 1981. Henry L. Jones, Jr., Little Rock. has been selected for the federal magistrate's position in the Eastern District of Arkansas. Don F. Hamilton, Little Rock, has been elected chairman of the Little Rock Planning Comrnissian. Ron Worthen, Ardmore. Oklahoma, was recently re-elected district attorney for the 20th District of Oklahoma. Henry W. Gregory, Jr., Pine Bluff, will serve as House Counsel for the Pine Biuff Warehouse Company with offices at East Barraque and Byrd Streets. William R. Wilson, Jr., Little Rock, was appointed by the Governor's office to the state Police Commission to complete the remaining six years of the late Robert Keenan. William C. Brazil, Conway, is the prosecuting attorney for the new 20th JUdicial District. W. S. Miller, Jr., L~t1e Rock, has been elected president of the Little Rock Boys Club Board of Directors. Judge John L. Wilson, Hope, has retired and James H. Pilkinton, Jr., is now serving as Municipal Judge for Hope and Hempstead counties. Judge W. H. Bengel, Newport, has retired and Larry Hartsfield will be the new municipal jUdge. Susan Weber and Robert R. Wright have coauthored a book, Land Use, which is pUblished by West. Robert Edwards, Searcy. recenlly eiected prosecuting attomey for the 17th Judicial District has also been newly elected to the Board of Directors of the Arkansas Prosecuting Attorneys Assn. and to the Prosecutor Coordination Commission. William R. Simpson, Jr., Little Rock, is the new chief deputy public defender for Pulaski County since the resignation of Alian Dlshongh. The two other deputies are William H.
Patterson, Jr. and James Phillips. Jim Stallcup, Walnut Ridge, is the new prosecuting attorney for the Third Judicial District with Harold Erwin representing Jackson County, Paul Hopper of Sharp County, David Mullen of Lawrence County, and David Throesch of Randolph County serving as deputies. M. Jeff Starling, Jr., Pine Bluff, was a speaker at a recent meeting of the John McAlmont Chapter, Daughters of the American Revolution. Talbot Feild, Jr., Hope, was the October speaker for the Philiips County Fuli Gospel Business Men's Fellowship International. Senator Ben Allen was the guest speaker at the January meeting of the Arkansas Association of Women Lawyers. At the February meeting of the AAWL, Juvenile Judge Judith Rogers, was guest speaker. Janet Burtness, Hot Springs, taught an eight week course on Law for Women, sponsored by the Garland County Community College. William C. Temple, formerly of Fort Smith, has moved to Birmingham, Alabama. James R. Marschewskl, Russellville, has joined Sanford and Pate for the general practice of law. Paul Petty, Searcy, has announced the association of John Patterson for the practice of iaw. A Little Rock law firm has been formed by Eugene Mazzanti and John E. Earl with offices at
#1 Spring St. Thomas Overtley, Little Rock. has opened a law office at 1700 First National Bldg. Fred David III, Pine Bluff, former chief deputy prosecuting attorney for the 11 th Judicial District, has opened his law office at 402 East 5th Ave. Fred H. Harrison and Robert L. Brown have formed the law firm of Harrison and Brown, PA, with offices in the Tower Building, Little Rock. Jeanie Johnson Hili, Fayetteville, has opened her law office in the Eason Building, Ste 201. Phli Herget, formerly of Costa Mesa, California, has moved to Paragould. Victra L. Feweli, NLR, has become associated with Wallace, Hilburn, Clayton, May & Calhoon. George Butler, Fayetteville, is now in the prosecuting attorney's office. Circuit Judge Russell C. Roberts, Conway. retired in December 1978 and has opened a law office on Front Street. John B. Plegge and Harlan A. Weber, Little Rock, have announced a partnership with Warren E. Wood, former JUdge for the Sixth Judicial Circuit, as counsel. Charles Medearis and Demaris Hart, Fayetteville, have announced their partnership with offices at 118 S. College. Phillip Wells, Jonesboro, has joined the McDaniei & Gatt law firm. Tom A. Buford & Kent Foster have become partners in the Little Rock law firm of Spitzberg, Mitchell & Hays.
NEW LOCAL BAR ASSOCIATION OFFICERS CONWAY COUNTY BAR ASSN Pres. HOWARD C. YATES Vice, Pres. NATHAN GORDON Sec/Treas. WILLIAM J. CREE
BOONE COUNTY BAR ASSN Pres. JOHN HOCKETT Vice-Pres. KANDY G. WEBB Sec/Treas. JAMES GRESHAM
JACKSON COUNTY BAR ASSN Pres. HAROLD ERWIN Vice-Pres. JOSEPH P. JAMES Sec/Treas. MAX BOWIE
NORTHCENTRAL BAR ASSN Pres. FORREST DUNAWAY Vice-Pres. BILL McKIMM Sec/Treas. HERBERT L. RAY
CLEBURNE COUNTY BAR ASSN Pres. MIKE IRWIN Vice-Pres. ANCIL REED Secretary JIM COOPER Treasurer EARL OLMSTEAD
BAXTER COUNTY BAR ASSN Pres. JAMES W. ATKINS Vice-Pres. NORMAN WILBUR Secretary F. S. SPENCER Treasurer CHUCK VANDERGRIF
SOUTHWEST ARKANSAS BAR ASSN Pres. ED McCORKLE Vice-Pres. JOHN C. FINLEY III Sec/Treas. TALBOT FEILD, JR.
GARLAND Pres. Vice-Pres. Sec/Treas.
COUNTY BAR ASSN R. KEITH ARMAN GEORGE CALLAHAN DONALD C. PULLEN
April 1979/Arkansas Lawyer/81
THE ALL-PURPOSE, BARGAIN-BASEMENT FINAL ARGUMENT by E. ROBERT WALLACH
(Editor's Note: We have been featuring a series of articles by E. Robert Wallach on practice skills. The Initial Interview appeared in the April 1978 issue: Settlement in a Personal Injury Case was carried in the January 1979 issue. In this article, final argument is discussed. Again, Bob Wallach is a nationally renowned practicing lawyer, a professor of law and consultant to the Dean at Hastings College of Law. He was a featured speaker-panelist on the Arkansas Bar Association's successful Civil Trial Practice Institute a few years ago. "He writes well and discusses practical problems faced by the trial lawyer. He is both a scholar and a man of wide trial experience. I hope he can continue to be a regular contributor to our publication. ... " -Henry Woods. In illustrating the article, we remembered George Fisher's classic cartoon (reproduced here), which was the cover of The Arkansas Lawyer, April 1974, and rather inappropriately highlighted the article, "What's the Real image of Arkansas' Lawyers?") 82/Arkansas LawyerlAprii 1979
INTRODUCTION
There is no segment of the civil jury trial more subject to romanticizing and ego-venting than the ali-important final argument. Lawyers, in company with television-addicted lay people, visualize the final argument as that tour de force which fully exemplifies the great powers of advocacy which are supposed to lie dormant within each trial lawyer merely awaiting the proper combination of factual drama and emotional pitch in order to spring forth in stentorian eloquence. For the trial jUdge who has spent a number of years subjected to the banal, unbelievably dull, rambling and inexpert facade that passes for
final argument in the overwhelming number of civil trials, the glitter of final argument is a hollow jest. For years it has been generally assumed that this is an unavoidable consequence of the apparent fact that most lawyers are neither eloquent nor charismatic. There are a number of jUdges and trial lawyers who believe that final argument is of little importance in the actual persuasion of a jury. They hold to the maxim that most jurors have their minds already made up before they listen to the tirades of partisan showmen seeking to persuade or dissuade when the facts often speak eloquently for themselves. I disagree. Although there may well be more truth to the proposition that final argument is without
substantial effect in the simple "runof-the-mill" lawsuit, even in that category of case there is a role to be played by the effective and well-organized final argument. Most assuredly, in the complex factual case or where severai rules of law must be translated into everyday experience in order that they may be applied, or in which substantial volumes of testimony must be summarized, organized and placed within a theme of persuasion, final argument otten is the determining factor in producing success for a litigant. In order to strip away the mystique that surrounds the concluding argument, it is essential to begin with the realization that eloquence, while desirable, is not the essential ingredient for an effective and persuasive final argument. We all recognize that the object of final argument is to persuade. What we less otten recognize is that that argument must contain two essential ingredients: A proper atmosphere and a persuasive organization of its content. THE ATMOSPHERE OF FINAL ARGUMENT A. The Physical Setting. Jurors possess a romantic image of the worthy advocate pleading with eloquence and fervor the cause of the client. This anticipation will remain until it is abated, if not eliminated, by the inept performance of the lawyer. It is essential, therefore, that the lawyer take advantage of this anticipation by commencing argument in a positive and innovative manner. Many lawyers begin with rather subdued notes of appreciation or general platitudes concerning the importance of the jury and system of justice which we enjoy. The comments, while essential at some point during the course of argument, otten tend to detour the jury's enthusiasm for the concept of argument before the lawyer has had an opportunity to really begin his presentation. The quality of final argument is otten dictated by SUbjective elements involved in any human relationship. 1. Physically it is desirable to commence argument in the morning when jurors are both alert and receptive mentally and physically to suggestions and ideas. If possible no
other legal events should take place before the commencement of argument (such as the reading of depositions or the final taking of evidence from a witness) in order that the full focus of the jury's attention may be directed to the important event which is to take place. It is imperative that all exhibits, documents and excerpts of testimony which the lawyer believes will be used during the course of argument be arranged in such a manner as to be readily accessible during the course of argument. Unnecessary pause or confusion is not only likely to undermine the trend of thought but will assuredly reduce the lawyer's image in the eyes of the juror. B. The Theme of Argument. The lawyer must know what is to be accomplished and where he/she is going before commencing argument. The task of persuading a jury is not nearly so difficult if the jury understands that a theme runs through the entire presentation. Every trial lawyer must recognize that the task of persuading a jury to return a verdict in favor of a client commences in voir dire or in opening statement. The theme which must underlie every case must be threaded through the presentation of evidence so that it can be fUlly expounded and logically defended in final argument. Even the simplest lawsuit, a rear end accident, begins with the theme that the rear ending vehicle must be responsible for the accident. Obviously the more complex the case, the more subtle the theme may be and it becomes even more important that it commence early in the presentation. Otten in a complex case it is not always possible to make that theme readily apparent with each and every witness on each successive trial day. This only increases the importance of final argument for it is the single opportunity which counsel has to demonstrate how the evidence fits together to fonm a whole theme that persuades and requires a favorable result. C. The Lawyer's Rapport With the Jury. The effective final argument requires not only that the lawyer be competent, but also believable. It is not appropriate for the lawyer to don a cloak of sincerity and emotional fervor
toward the client when commencing final argument. If it is not expressed, both in thought, word and manner, a solicitude for the client and a commitment to the cause during the course of trial, it is not going to persuade the jury that these are newly found qualities which existed latent during the course of trial. Counsel who has engaged in clever ploys during the course of trial or has given the appearance of being an obstructionist by repetitive objections and quarrelsome tactics stands little chance of persuading a jury that he/she has "seen the light" in the final presentation. While it is undoubtedly true that a jury "likes a fighter" it also wants to be assured 1hat it is having the benefit of all testimony so that it may make a decision based upon as much evidence as is possible to present for their review. The lawyer who attempts to justify the apparent exclusion of testimony from a jury will find little compassion for the argument that he/she is "protecting the client's rights." Lawyers must constantly be aware of the rather cynical regard in which the public holds this profession. The lawyer presenting the persuasive final argument cannot expect to be believed if during the course of trial counsel's conduct has been less than credible and concern for the client less than apparent. If, in fact, the jury is disposed to believe that this lawyer is truly involved with the outcome of this lawsuit because of personal concern about the well being of the client's rights, the chances of being believed during the course of final argument are immeasurably increased. All too otten during the course of trial, lawyers will ignore their clients during the recess, engage in banter with opposing counsel and generally conduct themselves as though it were not a very serious endeavor. To then attempt to transform the proceeding into a matter of great concern is an impossible task. If the lawyer is to establish the proper "atmosphere" for final argument, the intangible qualities which constitute "rapport" with that jury are more important than the mechanical organization and timing of the argument. It does not require an abunApril 1979/Arkansas Lawyer/63
dance of eloquence to demonstrate to the juror that a lawyer is sincere, credible and desirous of obtaining proper justice for the client. If those elements peNade the entire lawsuit from the commencement of jury selection to the conclusion of final argument, there will be success in establishing that rapport which is the basis for the jury's belief that the lawyer is in fact a sincere and loyal friend of the client. It is the establishment of this "atmosphere" for the final argument which will dispose the juror to listen attentively to the presentation of logic and facts in support of the lawyer's position even though the lawyer and juror might well wish for more Churchillian prose. Jurors may delight in eloquence but they will seldom penalize a conscientious, credible lawyer for the lack of it if logic commanding respect is utilized.
THE ORGANIZATION OF A FINAL ARGUMENT
of the law with the salient facts from the case so that the law's application is made immediate and convincing.
demonstrates that the burden has been met within its previously explained meaning.
Opposing positions may be demonstrated to be inappropriate in anticipation of arguments to be made by opposing counsel, or in response to them. In courts which will permit the actual language of instructions to be read to the jury it is often worthwhile to display an enlargement of the actual language of the particular instruction so it may be placed before the jury during argument and each word or phrase explained and applied to the particular facts of the case. In any event, the lawyer should make concerted effort to use the actual language of the instruction in explaining the concept to the jury so that the jury will recognize the language when it hears it from the judge's instruction, and concurrently, acquire increased confidence in the lawyer being verified by the judge.
Similarly, the defense argument can be anticipated, and a formidable task presented to opposing counsel who now must not only argue the case but rebut the arguments which have been previously made. These techniques are as available to defense counsel in its own presentation in order to add to the burden upon opposing counsel in the final summation. In this way each legal issue can be discussed in its factual context because a previous discussion of the law itself has already taken place. The theme of the argument is maintained by referring back continuously to the law and the question of proof and applying them to the factual evidence which has been presented.
The key to a well organized presentation is to make simple what is complex. If jurors can be made to understand both the law and the facts of a case by translating complex legal principles or congested and confusing testimony into well ordered and logical patterns, they will respond by accepting the logic of the individual who helps them through the artificial morass which is all to often the end result of the typical civil jury trial. Whether litigation be simple or complex, there is a recommended outline of approach which can be adapted to almost every case.
B. Discuss the Issues. The general instructions will begin with liability and end with damages. This is the logical format for the lawyer to follow in argument. Each issue should be separately discussed. As a visual aid, prepare a complete outline of the argument in written form so that it may be displayed before the jury and used by the lawyer as a guide as each point is discussed with the jurors. This also enables the jury to absorb the logic of the presentation with their eyes as well as their ears. It is not necessary that this outline be professional in its printing or expensive in its production. It is more important that it be logical and concise.
A. Explaining the Law. After an appropriate brief introduction, it is essential that a jury be oriented to the law which it must apply. This requires a discussion of burden of proof, proximate cause, direct and circumstantial evidence, and any other specific terms which the jury must interpret in order to render a verdict. Negligence, contributory negligence, assumption of risk, last clear chance, can all be explained in simple lay language, often drawing upon analogies of real life which can demonstrate why your client's interests are protected by the law or not adversely affected by the defenses raised by the opposition. Illustrate this discussion
For example, if the first issue to be discussed is the negligence of the defendant, under that general category would be each and every ground and basis upon which the jury could find from the evidence that the defendant was liable. It becomes relatively simple at this point to refer back to the discussion of the law just completed to demonstrate the various ways in which the jury may find that the law, as applied to the facts, demonstrates the neglect of the defendant. It is also possible to refer to the questions of burden of proof and show how the jury may not know unequivocably exactly what transpired, but that the "preponderance" of the evidence clearly
84/Arkansas Lawyer/April 1979
C. A Discussion of Damages. While a judge usually concludes instructions by informing a jury that it has been instructed on the issue of damages only because required to instruct them on all of the issues in the case, plaintiff's counsel would do well to deal with the issues of damages separate and apart from the issues of liability after first telling the jury that he is confident that they will reach this issue. Damages must be treated positively by plaintiff's counsel. It is a matter of legal right that injury must be compensated in an appropriate fashion. Where the injury has been the subject of much dispute, the same type of format may be utilized to not only explain the logic of the injury but also to anticipate and rebut negative implications. Once again a written presentation, in outline form, can be of substantial assistance. A jury will also be impressed by the fact that counsel has dealt with the opposing arguments fairly and logically rather than hoping the jury will ignore them. Lawyers complain that dealing with damages is the most difficult part of final argument. Often this is because they are reluctant to confront the issue forcefully. To accomplish this it is also important that the rationale upon which the demand for money damages is predicated be not only logical but reasonable. Many lawyers adhere to the "per diem" argument and will argue the value of each sec-
ond, minute, hour, day and year of pain and discomfort in an attempt to elevate the "general damages." Other lawyers despair this approach, believing that it is so mercenary and callous as to offend any reasonable juror. Obviously the appropriate technique must depend upon the individual case and the individual style of the lawyer himself. It may make a great deal more sense to argue a per diem argument when one is dealing with a catastrophic injury. There is no "good" or "bad" approach, but there is the essential requirement that a lawyer utilize those techniques which fit personally and which fit the case. Once again, by outlining for the jury each and every element of special and general damages which the court will instruct upon, and so visually demonstrating the many aspects of the damage claim, both past and future, it eases the difficulty in arguing for a substantial verdict in order to compensate for each component of the damage claim. There is much dispute about whether a plaintiff's lawyer should mention a figure to the jury In an individual case. Conversely, defense lawyers agonize over whether or not to mention a lower figure for the jury to consider as an appropriate verdict. Once again, no hard and fast rule can be promulgated. Jurors do seem to need guidelines for general ranges within which to operate. The plaintiff's lawyer takes the chance that in mentioning a substantial figure in a marginal liability case, it will discourage the jurors from returning a verdict for the plaintiff at all, because they feel that they cannot satisfy in any event and are unwilling to return the substantial dollars which have been requested. In an excellent liability case, there appears to be no reason why a plaintiff's lawyer should not mention a figure for a jury's consideration. In a case of marginal liability, plaintiff's counsel may choose merely to recite the prayer, to suggest a range that is reasonable, or to simply leave the figure to the jury itself without any suggestion of an amount. It makes little difference what approach is taken so long as it conforms to the lawyer's style of presentation and as long as it is a forceful and detailed discussion of the injury aspect of the case. Jurors are
remarkably perceptive in arriving at appropriate figures and have a tendency to discount what plaintiff's counsel suggested. Often a juror can be flattered by" the simple statement that he/she "knows" what a fair and reasonable amount will be in this case. D. The Closing Rebuttal. This is an area of argument most often wasted or abused by plaintiff's counsel. At this point in the trial, the jury has been regaled far too long a period of time by the oratory, or lack of it, of opposing counsel. At this juncture, it can well be said that most jurors may have made up their minds. However, it is also an opportunity to provide the clinching arguments which will persuade the wavering juror of the propriety of returning a verdict for the plaintiff. Many plaintiff's counsel "save" arguments for use in closing because they do not wish to hear them rebutted. Some plaintiff's counsel will abuse the decorum of final argument by indulging in emotional or flagrant arguments to which defense counsel cannot reply without interrupting the argument itself and possibly incurring the displeasure of judge and jury. Such tactics may occasionally aid a cause but they are counter-productive for the advocate who wishes to conclude presentation in the same candid, reasonable and logical format which has permeated the entire presentation and which has established that level of rapport and confidence between lawyer and juror which will provide the winning margin in a difficult case. Before commencing plaintiff's counsel should request a recess after the conclusion of defendant's argument in order to review notes and select those few matters to be dealt with in detail, and with force. Rebuttal is the time to deal with a select number of arguments made by defense counsel in argument and, possibly, to reiterate a select number of important points made by plaintiff's counsel in his opening presentation. It is a mistake, often fatal, to become enmeshed in attempting to answer each and every argument made by defense counsel. Succumbing to this "shotgun" approach that is often utilized by defense counsel will in-
variably lead to the unavoidable trap of providing inadequate responses to all arguments and perhaps unduly lengthening the rebuttal to the point of irritating and, quite often, losing the marginal juror. Finally, bring the argument to a conclusion which reemphasizes not only the correctness of his position, but also the essential reasonableness of a juror's returning a verdict for the plaintiff. Plaintiff's lawyers too often fail to recognize that juries must be persuaded of the reasonableness of returning a verdict forthe plaintiff, particularly if a large sum is requested. The average lay person views with some concern being accused of simply having returned a verdict for a plaintiff with severe injuries simply because of sympathy and compassion. That juror requires an adequate basis, both in law and in fact, in order to justify his verdict for the plaintiff. CONCLUSION Eloquence may make the entire experience of final argument more enjoyable but it is neither a prerequisite nor an inherent ingredient in making the final argument a worthwhile component of any competent lawyer's presentation. We recognize that the essential function of final argument is to persuade. What we really do is provide a jury with a sufficient logical rationale upon which to predicate its result. Jurors want to perform their functions with solemnity and with conviction. The juror who cares little for the true administration of justice in an individual case is a rarity. It is not without ample justification that the overwhelming number of trial lawyers and trial judges believe firmly in the jury system as the finest arbiter of justice discovered by the democratic process. All recognize that there are incidents in which verdicts are returned which shock and dismay both lawyer and judge. But these occurrences are few and far between and it is, therefore, incumbent upon counsel to utilize final argument as the primary vehicle by which they afford the jury ample basis for a logical and conscientious verdict. ~ April 1979/Arkansas Lawyer/a5
EXECUTIVE COUNCIL NOTES by James A. Buttry Secretary-Treasurer
HIGHLIGHTS OF HOUSE OF DELEGATES AND EXECUTIVE COUNCIL ACTIVITIES The major issue confronted and dealt with by the Executive Council and by the House of Delegates in recent weeks was Money, specifically, how to raise more of it. The Executive Council voted at its December 16 meeting to recommend to the House of Delegates two altemative structures for an increase in Association dues. After considerable study and lengthy debate, the House of Delegates voted at its January 20 meeting to increase Association dues for members of the Association admitted to practice for more than three years. For members admitted for from four to ten years, dues of $60 per year were approved; for members admitted for more than ten years, dues will now be $100 per year. A lengthy discussion of the dues increase and the considerations and reasons for the dues increase is set forth in your February News Bulletin. The dominant reason for the dues increase was that under the previous dues structure the Association was not in sound financial condition and could not assure continuance of existing programs, though there seemed to be a general consensus that the adoption of new and expanded programs, such as extemal public relations, would be in the interest of the Association and the profession. Serious concern was expressed regarding the fact that the Association has managed in recent years to balance its budget only by virtue of sales of the various Systems. Particularly as the more popular Systems have been the first produced and sold, it was pointed out that the Association could no longer depend upon the Systems as a reliable source of revenues. In other action, the Executive Council recommended and the House of Delegates voted to support legislation establishing an Intermediate Court of Appeals and defining its jurisdiction and structure. The most controversial aspect of the Court of Appeals legislation was the provision whereby four of the six judges shall be elected from congressional districts. After a lengthy discussion, the House voted to approve the bill in the form in which it was presented, providing for four judges elected from congressional districts and two elected from the state at large. The House also concurred in an Executive Council recommendation to support legislation providing, with certain 86/Arkansas Lawyer/April 1979
exceptions, for an even division of marital property in divorce and legislation providing for inheritance rights of illegitimate children. In action that is not unlikely to inspire some public attention, the House voted to add to the grounds for divorce a ground sometimes referred to as "no fault divorce," specifically, substantial irreconcilable differences that have caused an irretrievable breakdown of the marriage, upon agreement of the parties. Of interest to both lawyers and judges, the House resolved that circuit, chancery and appellate judges should run for their offices without party designation. From the discussion in the House, it would appear that the preference, and perhaps the future practice, of circuit and chancery judges may vary somewhat from circuit to circuit. The Council and the House considered, and in many instances took action, with regard to various matters of significance to the Association and Bar. It now appears that, due to the efforts Harold Simpson and his committee, prepaid legal insurance will be available in Arkansas sometime this summer. The Specialization Committee, under the chairmanship of Russ Meeks, has filed its plan with the Supreme Court, where it is under consideration. The House amended the By-Laws of the Association to create a Workers' Compensation Law Section and to permit the Savings and Loan Section to charge dues of $50 per year. The House also approved the proposed seminar program of the Savings and Loan Section but tumed down a proposal that the Section be permitted to amend its By-Laws by a vote of the Section members (without House approval). Members of the Association will want to consult the previous News Bulletin regarding Association's sponsored legislation and should review quickly future bulletins and reports on pending legislation. It is expected that a number of bills will be introduced that affect the Bar in various ways, and it may be expected that the Legislature will act rapidly with regard to some of those bills. Questions or comments should, of course, be addressed to Jim Rhodes, who suggests that he be contacted before or after normal working hours. ~
A'CLE NEWS by Claibourne W. Patty, Jr. Executive Director Arkansas Institute of Continuing Legal Education
OUTSTANDING ATIENDANCE AT MIDYEAR MEETING The Midyear Meeting of the Arkansas Bar Association held at the Camelot Inn, Little Rock, Arkansas, January 18 and 19, 1979, was invaded by a standing-roam-only crowd of lawyers, judges and law students. The CLE program dealt exclusively with the new Rules of Civil Procedure which have been adopted by the Arkansas Supreme Court and will become effective on July 1, 1979. In addition to this most timely program, all of the sections and committees of the Bar Association had their semiannual committee roundup on Thursday morning and the House of Delegates had its semiannual meeting on Saturday morning January 20th. The final count showed a total of 701 registrations, which includes 27 judges and 49 law students who are student members of the Arkansas Bar Association. This turnout has indeed broken all previous records of any bar meeting or CLE event ever held in Arkansas. The speakers, which included trial judges, practicing attorneys and a law school professor, dealt not only with the rules themselves but also such topics as a comparison of the Federal and Arkansas Rules of Civil Procedure, rules of appellate procedure, inferior court rules and proposed revisions of local rules of United States district courts for Arkansas. BASIC SECURITIES LAW COURSE FOR GENERAL PRACTITIONERS AICLE is jointly sponsoring a basic securities law course for general practitioners, with particular emphasis on the pitfalls common to a federal and state securities practice, which will have already been presented in Little Rock. on February
16th and 17th by the time the Arkansas Lawyer reaches the membership. This is the first time in recent years that there has been a jointly sponsored ALI-ABA CLE program in Arkansas, and I look forward to future programs of this sort. This particular program will not only attract Arkansas lawyers but also lawyers from the six states surrounding Arkansas who will also be invited to attend. Arkansas lawyers on the panel along with the visiting faculty will be Harvey Bell, Arkansas State Securities Commissioner, and Walter Davidson of Little Rock, who is active in the securities practice. Derrell Davis of Little Rock is the local program chairman. SECOND ANNUAL LABOR LAW INSTITUTE The Labor Law Section of the Arkansas Bar Association and AfCLE will cosponsor a seminar on employment discrimination law recent developments, OSHA and arbitration at DeGray Reservoir, Arkansas, on Friday, March 23, and Saturday morning March 24, 1979. Russell Gunter, Tucker Raney, and Fred Harris, program cochairpersons, emphasize that this seminar deals with subjects which are timely and of interest, not only to the labor law specialist but also to the general practitioner with business clients or with wage earner clients. Some of the speakers are: J. Dean Speer of the U.S. Department of Labor, Philip E. Kaplan, Tim Boe, and Pat Fields of EEOC. SPRING TAX SEMINAR FOR THE GENERAL PRACTITIONER The Taxation Section of the Arkansas Bar Association and AICLE will cosponsor a spring seminar on basic taxation subjects for the general practitioner at the Camelot Inn, Little
Rock, Arkansas, April 27 and 28. Joe Polk of Little Rock will be the program chairman and a brochure announcing the particular topics and speakers will be mailed to the membership shortly. REGIONAL WORKSHOPS ON NEW RULES OF CIVIL PROCEDURE Regional workshops using the new Rules of Civil Procedure adopted by the Arkansas Supreme Court will be scheduled this spring at strategic locations in Arkansas. The format will be that of a one day workshop with a three hour session in the morning and a three hour session in the afternoon. There will be a general mailing to the Bar membership announcing the exact dates and locations and the course content. Those of you who were not able to attend the Midyear Meeting will want to be sure and attend these one day workshops. PROGRAMS IN PROGRESS AICLE is presently working with the UALR School of Law to cosponsor a four day intensive trial skills workshop with attendance limited to 50 participants. This workshop will be patterned on the National Institute of Trial Advocacy model but will be of shorter duration and will be using the Hastings College of Trial and Appellate Advocacy Lesson Plan. The trial technics taught by qualified workshop leaders will be limited to civil litigation. There will be further details announced of this program and a maifing to the Bar membership. The Fall Legal Institute in September, 1979, will be centered around the new Arkansas Form Book to be edited by Professor Robert R. Wright of UALR School of Law and recent developments in Arkansas legisla-
tion.I..... April 19?9lArkansas LawyerlS?
CONTEXT By W. Christopher Barrier Chairman, Public Education Committee Arkansas Bar Foundation
BACK ON THE SOAPBOX. .. If this column has at times tended to sound preachy, it is intended to. The Gospel According to Context, as preached from this soapbox, is based on three articles of faith: (al Never since a handful of young lawyers whipped out the United States Constitution and the Declaration of Independence has our country been in greater need of effective legal services, in government and in personallife; (b) Seldom in our history has the public's image of lawyers interfered so drastically with the proper delivery of those services; (cl Although they will need help, lawyers are really about the only people who can do anything about this unfortunate dichotomy. While these convictions are broad and generaiized, James N. Woodson, Director of Public Information for the Virginia State Bar, confirmed them late last year with hard data. Addressing the Ninth Annual Bar Public Relations Workshop, Woodson summarized the profession's major problem areas in nine categories. Woodson came to his conclusions after reviewing the findings of surveys over a fiteen year period, which included the American Bar Association-American SS/Arkansas Lawyer/April 1979
Bar Foundation Survey, those in eight individual states, and the Louis Harris polls. The nine areas, summarizing the public attitudes and with comments of my own, are as follows:
1. ECONOMICS-Lawyers charge too much and are more interested in making a buck than performing a service for their clients. Clients who regularly pay larger fees get better, quicker service. The amount of the fee bears little relation to the value of the services. And a contingent fee is a rip-off. (Has anybody been convinced by our claims that we oppose no-fault insurance in the interest of our clients instead of our own?) 2. ETHICS-Lawyers cut corners, particularly when a small fee is involved, and tolerate too many unethical, dishonest lawyers among their ranks. (Arkansas probably has one of the better disciplinary mechanisms in the country, but do people know about it?) 3. WORKING BEHAVIORLawyers are not prompt, take cases they are not competent to handle, do not keep their clients informed of progress, do not explain in advance why they are going to take a particular action, needlessly complicate cases, and delay matters to suit their own convenience, regardless of the inconvenience to the client or the dam-
age to the system. (What else can I say?) 4. PUBLIC INFORMATlONLawyers fail to adequately infonm the public as to how to identify legal problems, what problems need a lawyer, how to select a lawyer and what to look for in terms of qualifications and expense. (We have barely scratched the surface in terms of public service announcements, question and answer spots on television and radio, and cooperation with local newspapers.) 5. FEES-Besides being uneven, lawyers' fees generally are simply too high in relation to the services. (This sounds like a repeat of item 1, which may indicate how important it is to clients. In any event, do we ever sit down with clients and talk about how our fees are set, overhead, actual billable hours, etc.?) 6. CLIENT RELATIONS-Too many lawyers are ill at ease with their own clients and remain distant, aloof and impersonal. (Have we responded to the lawyer-advertising controversy by shunning our bretheren who advertise, vainly trying to preserve the mystique of the profession?) 7. PUBLIC INTEREST/SELF INTEREST-The public generally sees the organized Bar as simply
another special interest group, like a trade association or a union, interested in promoting the interest of its members and not the public good. The public perceives the Bar's attempt to restrict the activities of others who attempt to do "lawyer work" as purely economically motivated-the "unauthorized practice of law" at less than lawyer prices bothers the public a lot less than it does lawyers. The organized Bar is seen as unresponsive to change, slow to deal with obvious probiems such as discipline and incompetence and unresponsive to public desires (even when meeting those desires would be beneficial to the lawyers). In this latter area, the public is impatient with lawyers' qualms over advertising. They particularly resent their inability to determine from the yellow pages where to find certain specialists and the lack of any standard as to what constitutes a genuine specialist. Generally, the response of lawyers to the new advertising freedoms has tended to swing between the stuffy
and the scruffy, with little in between. (One Madison, Wisconsin, attorney wears T-shirts with the message "Been Busted? Call Ken Hur" and gives his telephone number.) Although our own Arkansas Bar Committee on Advertising and Specialization has done a remarkable job, I have found little inclination among lawyers generally to think about what benefits might accrue to clients from some types of advertising. In the area of legislative action, I find that laymen are generally skeptical of Bar actions, such as opposition to the Uniform Probate Code and nofault insurance. We do a very poor job of explaining the Bar's legislative program generally. No town in Arkansas should be without a speaker's bureau established by its local bar association, ready to speak to civic clubs, not only about the Bar's legislative program, but about what is happening during the legislative session (and the Constitutional Convention, too).
8. TOO LITTLE TOO LATE-The public is unimpressed by the pro-
You're the only one who really understands me...
grams the Bar does sponsor, in terms of effectiveness or adequate funding. Lawyers are similarly unimpressed. The organized Bar is generally perceived to be slow to take on new programs and the American Bar Association unwilling or unable to coordinate any national effort. Programs are undertaken on a hit-or-miss basis without a clear delineation of priorities. Finally, organized Bars and their members react to problems rather than anticipating them and seeking to prevent them, which occasionally results in having a solution forced upon them by government (as has happened to other professions). This has happened in the area of legal services forthe poor. My own conviction is that there is a problem of equal proportions in terms of legal services for the elderly, which can best be met by the profession itself, but which will be met one way or the other, with or without our participation.
9. PUBLIC RELATIONS GENERALLV-Lawyers simply do not understand the need for effective public relations efforts by their Bar Associations, not simply in terms of institutional advertising, but in terms of relating lawyers to the public and vice versa, seeking out public opinion and assessment of what the public wants and needs from the legal profession. (Amen.) No one can change the public's perception of lawyers except lawyers themselves.
(EDITOR'S NOTE:-Normally, we would not pUblish the same message in two different articles in the same issue of The Arkansas Lawyer. However, putting Bar pUblic re/a路 tions into the proper prospective is one of the challenges facing the legal profession. The entire survey by James N. Woodson is printed beginning at page 78. Read Woodson's article. Then read Barrier's CON路 TEXT, and his final conclusion.)
April 1979/Arkansas Lawyer/B9
LAW SCHOOL NEWS Assistant Dean James K. Miller Assistant Dean Ellen Brantley
SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLE Professor Robert Knowlton is one of six UA faculty members who have been chosen by campus honorary organizations as "Outstanding Faculty" to be featured in the 1979 Razorback yearbook. Professor Knowlton, chosen by members of the Arkansas Law Review, joined the law faculty in 1976. Priorto joining the faculty, he was Distinguished Professor of Law at Rutgers University. He received his BA with distinction and his J.D. with highest distinction from the University of Iowa. He received his LL.M. from the University of Pennsylvania Law School and was awarded that institution's Bi-Centennial Fellowship. He is a member of Phi Beta Kappa and Order of the Coif. Professor Knowlton has served as chairman of the New Jersey Criminal Law Revision Commission, chairman of the New Jersey Governor's Committee on Standards and Goals for Criminal and Juvenile Justice, and for seventeen years was a member of the New Jersey Supreme Court Criminal Practice Committee. He has taught at the University of Pennsylvania, Baylor University, and the University of Toledo. Professor Knowlton has practiced law in Iowa and in New Jersey. The University of Arkansas Board of Trustees has approved a proposed LL.M. in Agricultural Law which will be administered by the School of Law, Fayetteville. The program is also subject to approval by the American Association of Law Schools and the American Bar Association. The purpose of the program will be to train a small number of carefully selected attorneys as specialists in the legal problems of agricultural production, distribution, and marketing. The probable range of courses include AgricUltural Business
Associations; Problems of Taxation in the AgricUltural Sector; Estate Planning for Farmers and Ranchers; Collective Bargaining in Agriculture; Federal Farm Legislation; International Trade in Agricultural Products; Commercial Law and Agriculture; Agricultural Policies: A Comparative Perspective; Environmental Legislation and the Agricultural Sector, and Social Welfare Legislation in the Agricultural Sector. According to Acting Dean Milt Copeland, students will be admitted into the program in the Fall semester, 1980. Thirty-seven students completed requirements for their J.D. degrees in December, 1978. The students and their hometowns are: Stephen E. Adams, Fayetteville; Russell D. Berry, Dewitt; Terrence W. Beverly, Little Rock; Gary M. Bond, Springdale; Rex W. Chronister, Fort Smith; James D. Conklin, Springfield, MO; A. C. Crater, Jr., Pine Bluff; Duncan M. Culpepper, Prescott; William R. Daniels, Monticello; Mark J. Davis, Pine Bluff; James L. Douglass, Little Rock; Ernest B. Farquharson, Little Rock; William T. Finnegan, Little Rock; Jay M. Gilpin, Albert Lea, MN; Richard C. Harding, Houston, TX; Sam T. Heuer, Batesville; Jerry R. Irvin, Ft. Smith; Joel D. Johnson, Pine Bluff; Lawrence R. Jones, Farmersburg, IN; Kevin N. King, Hardy; Paul K. Lancaster, Benton; Carol A. Linville, Nashville; Thomas M. Lovett, Little Rock; Gregory R. Maynard, Hollywood, FL; Diana Park McDonough, Ft Pierce, FL; Frederick McGrath, Collingdale, PA; Richard L. Miller, Texarkana, TX; James L. Moore, III, Rison; Cecil B. Nance, III. West Memphis; Byron C. Rhodes, Norfolk, VA; Edward A. Strenkowski, Linden,
NJ; Sally K. Svoboda, Hebron, NE; John W. Unger, Danville, IL; Gregory S. Verdonik, Wayne, NJ; Eugene A. Wahl, Jr., Ft. Smith; William W. Ware, Houston, TX, and Ann E. Williams, Jonesboro. A bar review course, sponsored by the Student Bar Association was conducted February 1st-4th at Waterman Hall. Participating faculty members included Professors Dick Atkinson, Wylie Davis, Robert Fairbanks, Mort Gitelman, Robert Knowlton, David Newbern, Steve Nickles and Tom Robinson; Lecturers Tom Burke and Sheila Bair, and Fayetteville Attorneys Matt Horan and F. H. Martin. According to Rick Wade, Editor-inChief, the Arkansas Law Review will pUblish a 30-year Index which will be distributed in March, 1979. The Index will be distributed, at no additional cost, to all subscribers of the Review. The work of Dr. Robert A. Leflar was a subject of discussion at the annual meeting of the American Association of Law Schools in Chicago last January. "Leflar on Conflicts" was the topic of the session dealing with conflicts of law. Dr. Leflar also was one of the speakers. Other faCUlty members attending the AALS meeting were Professors William Lancaster, David Newbern, Steve Pepper, and George Skinner. Professor David Newbern was a speaker at the Mid-Winter meeting of the Arkansas Bar Association. His topic was "A Comparison of the Arkansas Rules of Procedure and the Federal Rules." Assistant Dean David Malone was elected Mayor of Fayetteville at a January 2 meeting of the Fayetteville Board of Di-
rectors.
SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT LITTLE ROCK AALS VOTES MEMBERSHIP TO SCHOOL OF LAW The House of Representatives of the American Association of Law Schools
90/Arkansas Lawyer/April 1979
voted membership in the Association to the UALR School of Law on January 3, 1979, at the Association's Annual Meeting in Chicago. An inspection team from the
Association had visited the law school September 10-13. The members of that team, Dean Frederick M. Hart of the University of New
Mexico School of Law, Professor Cameron Allen of the Rutgers-Newark School of Law, and Professor Leo J. Raskind of the University of Minnesota Law School, visited classes, inspected the library, and talked with students and faculty. The MLS House of Representatives voted unanimously to accept the UALR Law School making it the 135th member, The Association's Accreditation and Executive Committees had previously recommended approval. The Association, founded in 1900, is legal education's major academic society. At the same meeting, the House of Representatives voted membership to the John Marshall School of Law at Chicago, which was founded in 1899. The UALR School of Law was founded in 1965 as a division of the University of Arkansas School of Law at Fayetteville, which is ABA approved and a member of the MLS. When the division was transferred to UALR in 1975 it was required to establish separate identity with both the ABA and the MLS. The ABA granted its approval a few months after the Law School became part of UALR, and in 1977 acquiesced in the School's expansion from a part-time to full-time program. "This is an extremely happy day for our school," said Dean Robert K. Walsh of the Law School. "Membership in the Association gives national recognition to the high quality of a law school. This recognition has been achieved in a short period of time through the united efforts of legislators, lawyers, faculty, students, university officials, and members of the community."
He said Association membership would help the Law School attract more out-ofstate students and would make ~ easier to place graduates, and also would aid faculty recruitment. To be eligible for membership in the AALS, a law school must be approved by the American Bar Association and have offered at least five years of instruction and have graduated ~s third class. KURLAND TO INAUGURATE AL路 THEIMER LECTURES Professor Philip B. Kurland, a renowned constitutional scholar, will present the first Altheimer lecture at the School of Law on Friday, April 20. The lectures are funded by a gift from the Ben J. Altheimer foundation created by Ben J. Altheimer, a native of Altheimer who practices law in Chicago. Mr. Altheimer acquired fanming interests at Altheimer, and the income from these interests funds the foundation's activities. The foundation will provide $20,000 over a five-year period to bring two renowned speakers to the law school each
year as Altheimer lecturers. The lectures will also be published in the UALR Law Journal. Professor Kurland will give the lecture in the courtroom of the Old Federal Building, which was renovated in part with a previous grant from the Allheimer Foundation. The lecture will be held at 8:00 p.m. on Friday, April 20. The School of Law extends a cordial invitation to all members of the bar. FACULTV NOTES Professor Ruth Brunson, Director of the Law Library, was named as an alternate delegate to the Governor's Conference on Library and Information Services by Governor David Pryor. She attended the conference held in Little Rock on November 15-17. The conference was preliminary to the White House Conference on Library and Information Services which will be held in Washington this fall. Professor Fred W. Peel served as a faculty member at an ALI-ABA course on domestic taxation of hard minerals held in Houston, Texas on September 27-29. The supplement to Professor Peel's book, Consolidated Tax Returns. was published by Callaghan and Company in September. Professor Robert R. Wight, a member of the council of the section on general practice of the American Bar Association,
attended a conference on the officers and council of the section in LaJolla, California, October 4-7. Professor O. Fred Har路 ris has been elected Vice-President of the Arkansas Black Lawyers. Professor Harris graduated from the Judge Advocate General's School in Charlottesville, Virginia as an honor graduate. The course ran from August 7to 18, 1978. On October 27-29, Professor Harris attended a meeting of the Association of American Law Schools in Chicago on "The Minority Law Teacher." Dean Robert K. Walsh visited the University of Toledo School of Law as a member of a joint MLS-ABA accreditation team on January 24-26. Dean Walsh addressed the November meeting of the Pulaski County Bar Association on Friday, November 10. He spoke about recent developments at the School of Law, and showed slides of the dedication of the Old Federal Building. Professor Andree Roal was named to the Recrullment Committee of the Division of Social Services. This committee recruits families to serve as foster and adoptive homes and advises the agency on its foster care program. Professor Roaf, who serves on the Board of Directors of the Arkansas Student Loan Authority, recently drafted an appeals
procedure for students whose loan applications have been denied. Professor L. Lynn Hogue was elected as fourth vice chairperson of the Local Government section of the Association of American Law Schools at the AALS's annual meeting in Chicago, held January 3-5. A number of law school faculty members attended the convention. Professor Glenn Pasvogel appeared on Channel 4's "For Your Infonmation" program on November 27 and 28. He explains the Equal Credit Opportunity Act. Professor Pasvogel and Professor Kenneth Gould participated in the Pulaski County Bar Association's Youth Awareness of Law program. Both addressed students at Hall High School on their legal rights. Assistant Dean Ellen Brantley moderated a panel on the changing roles and needs of women at work at a workshop held by the Women's Education and Development Institute on September 30. On November 15, Ms. Brantley also addressed the Cabot Business and Professional Women's Club on Wills and Inheritance. Professor Brantley and Professor James W. Spears presided over sessions of the Arkansas Bar Association's Midyear Meeting on the new Rules of Civil Procedure. The meeting, which was cosponsored by the Arkansas Institute for Continuing Legal Education is discussed by Dean Clalboume Patty, Director of the Institute, in his separate article in this issue. LAW SCHOOL COURTROOM IN USE The renovated trial courtroom on the third floor of the Old Federal Building has been the site of a number of judicial proceedings in recent weeks. The United States Tax Court held several hearings in the courtroom on November 6. Justice J. Fred Jones, who is serving as special judge, heard preliminary matters in the case of Files v. Munson (involving a contest of November's election for Chancery JUdge) in January. He has scheduled the case for trial in the courtroom on February
19. Judge G. Thomas Eisele of the United States District Court conducted ajury trial in the courtroom on December 11-14. During the spring semester, the courtroom will be used by both state and federal trial courts and possibly by a federal administration tribunal. During proceedings held in the courtroom, law students may observe either from the regular seals at the rear of the courtroom or from the glass-enclosed gallery, where discussion of the proceedings can be held without disturbing the court. ' " April 1979/Arkansas Lawyer/91
Lawyers' Marl
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BOOKS FOR SALE Volumes 2 through 188, both inclusive, Arkansas Reports, and Volumes 84-89 through 546-511, both inclusive, Southwest Second. With the exception of one or two volumes this represents the complete decisions of the Arkansas Supreme Court. They were formerly the property of D. Leonard Lingo of Walnut Ridge, Arkansas, now deceased. Anyone interested should contact Harry L. Ponder, Box 549, Walnut Ridge, Ar. 72476. Rabkin & Johnson Current Legal Forms And, Rabkin & Johnson Federal Income Gift & Estate Taxation. Complete set with current updates. It is a new set. $400.00 Bill Strait, P.O. Box 386, Danville, Arkansas 72833 Telephone: 495-2319. Corpus Juris Secundum complete, New condition; Southwestern Reporter 2d (Ark. Cases); Arkansas Digest; Ark. Stats. Contact: George W. Mason, III, 311 N. Jackson, EI Dorado, Arkansas 71730. Phone: 863-4020. Complete Law Library and office furniture, I have given up the practice of Law, and entered another field of work. Library consists of Arkansas Statutes, Arkansas Digest, Southwest Reports II D. (Arkansas Cases), AM JUR, and others. Telephone 352-5316 (Fordyce).
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Tax Return Preparers Won't Be Penalized For Failure To Compute Estimated Tax Penalties In November 1977, Treasury released final Regulations relating to income tax return preparers. Those Regulations indicated that a preparer would be subjecl to penalties under Sec. 6694 for failure to compute and report the additions to tax for underpayment of estimated tax. Treasury has reexamined those Regulations and concluded that such penalties are inappropriate. As a result, the Regulations have been amended to provide that a preparer will not be subject to a penalty for failure to compute and report estimated tax additions. Residential Energy Credits Tax credits of up to $300 for certain energy conservation expenditures up to $2,200 for renewable energy producing expenditures are available to taxpayers under the Energy Tax Act of 1978. To qualify, such Items must be installed in the taxpayer's principal residence after April 19, 1977 and through 1985. These credits reduce tax liability on a dollarfor-dollar basis. While there is no refund of any excess
credit, unused credits may be carried forward to offset any income tax liability the following year. The carryover period extends through December 31, 1987. Tax credits for qualifying expenditures made for the period April 20, 1977 through December 31, 1978, are to be claimed on 1978 tax returns. Taxpayers may not file amended returns for 1977 to claim the credit. These credits can only be claimed by filing a Form 1040. Fonn 5695, Energy Credits, should be allached to the return. The minimum allowable credit is $10. Capital Gains Provisions The amount of any net capital gain which a noncorporate taxpayer may deduct from gross income is increased from 50 to 60 percent. The remaining 40 percent of the net capital gain is includible in gross income and subject to tax at the otherwise applicable rates. The deducted gain is classified as a tax preference item for purposes of the new alternative minimum tax. However, under the new rules,
this deductible amount will not reduce the amount of perMember Arkansas Bar with five years General Practice. Desire position with large firm or corporation. For copy of resume contact: George W. Mason, III, 311 N. Jackson, El Dorado, Arkansas 71730. Phone: 863-4020. Attorney, member of Indiana Bar, with twelve years experience in all phases of the title insurance business and three years general practice experience seeks to relocate with a title insurance corporation as office counsel. Resume and salary history upon request. Reply to The Arkansas Lawyer.
OPPORTUNITY Seeking J.D. or LL.B. who is interested in Insurance Estate Planning, especially for business owners. Technical planning involves understanding taxation, contracts, trusts, wills, insurance and balance sheet analysis. Contact Barry Beck, First Financial Planners, 376-6321.
92/Arkansas Lawyer/April 1979
sonal service income, which is eligible for the maximum
tax. The provisions are effective for taxable transactions occurring, and installment payments received, after October 31, 1978. The amendment also provides that the amount of certain charitable contributions made after October 31,1978, of capital gain property is to be reduced by 40 rather than 50 percent of the gain which would have been long-term gains, if the property contributeq had been sold by the taxpayer at its fair market value. As a transition rule for 1978, generally, a noncorporate taxpayer may deduct from gross income 60 percent of the post-October and one-half of the pre-November capital gains. The present law treatment of a noncorporate taxpayer's capital loss is not changed. Alternative Tax For Capital Gains of Individuals Under present law, a noncorporate taxpayer may deduct from gross income 50 percent of the amount of any net capital gain for the taxable year. The balance is includible in gross income and taxed at regUlar rates. In lieu of taxing 50 percent on net capital gains at the regular rates, a partial alternative tax of 25 percent of the first $50,000 of net capital gains applies, if it results in lower tax rates than that produced by the regUlar method. The alternative tax is repealed, effective for taxable years beginning after December 31,1978.
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ADDENDA by C. E. Ransick Editor
SENIOR JUSTICES
Arkansas now has the senior supreme court justice, in years of service, among the 300-odd justices in the United States and also the senior chief justice, in years of service, among the 51 chief justices on the courts of last resort.
CARLETON HARRIS
GEORGE ROSE SMITH
94/Arkansas Lawyer/April 1979
With the retirement of Chief Justice Frank R. Kenison, 69, in 1977, ot"lhe Supreme Court of New Hampshire, Arkansas' Chief Justice Carleton Harris became the senior chief justice in the country. And with the resignation of Justice Denver N. Davison, 86, in August, 1978, of the Supreme Court of Oklahoma, Arkansas' Associate Justice George Rose Smith became the senior member of all the 51 courts of last resort. Judge Smith is now in his 30th year, Judge Harris in his 22nd year.
JUDICIAL ETHICS COMMITTEE Act 853 of 1977 established a Judicial Ethics Committee to advise the General Assembly in matters concerning impeachment of members of the Judicial Branch under Article 15 of the Constitution. See The Arkansas Lawyer, April 1978, at page 103, for other details. Arkansas lawyers Walter R. Niblock of Fayetteville and Warren Wiltshire of Wynne have been appointed as Committeemen by the Arkansas House Speaker. Another committee-person is to be named by the Governor; and two more by the Senate Committee on Committees. The Committee was established to "investigate violations of laws or canons of ethics and mental or physical disability of members of the judicial branch, and to file reports with respect thereto with the General Assembly in aid of the impeachment power of the General Assembly; and for other purposes."
INCREASE OF COMPENSATION TO FEDERAL WITNESSES U.S. Marshall Charles H. Gray of the Eastern District of Arkansas has requested that the following notice be published: 28 U.S.C. 1821 has been amended effective October 27, 1978, to provide for payment of witnesses as follows: (1) An attendance fee of $30 each day of attendance, or necessary travel, (2) The actual expenses of travel by common carrier or a travel allowance for the use of a privately owned vehicle equal to the mileage allowance prescribed for official travel by federal employees, (3) Toll charges, taxicab fares, and parking fees necessarily incurred, and, (4) When an overnight stay is required, a subsistence allowance not to exceed the amount prescribed for payment of federal employees on official travei status in the area of the witness attendance. The above schedule will also apply to the taxing of costs pursuant to 28 U.s.C. 1920 (3). The increase in mileage is from 10¢ to 17¢ per mile.
Get awayfrom the
SAME OLD GRIND
ABA PRODUCES FILM ON JUDICIAL SYSTEM "In Search of Justice" a new film produced for the American Bar Association, presents a behind-the-scenes view of how the justice system fits together. Scenes showing the rigors of law school, how the legal profession disciplines itself, and the many types of law practice are featured. The film also goes into the courtroom to show resolution of problems ranging from consumer disputes to murder. Narrated by Henry Fonda, the 16-mm color film is available free on loan to schools and community and business groups. Requests including first and alternate playdates should be sent to the American Bar Association Special Events Department, Department BL, 77 South Wacker, Chicago, IL 60606.
Public Relations continued from page 80
"Mr. Active Member" Profile Proves Value of Belonging As veteran members realize, participating in association work and programs is a road to individual growth. Every responsibility accepted and discharged increases a man's stature and his ability to handle bigger and bigger assignments. This accords with the formula, "Belonging + Participation = Success."
4.
5. 6. 7.
Of course, it involves more than just "going through the chairs." As a member climbs the ladder of organization affairs, he broadens his horizon, practices teamwork, masters communication and creates a circle of lifelong friends. Do you question this? Then look around you at our next convention. Study the members you must respect, and you will note some characteristics they have in common. Put those together, and you have a "profile" or conglomerate image of Mr. Active Member. He is: • Friendly and easy to be with, any time of day or evening, from breakfast through the banquet.
8.
• Composed, relaxed, never bothered over trifles. • As interested in what you say as he is in what he has to tell you. • Generous with praise for others' accomplishments, silent or understanding about their failures or faults. • Stimulating in his grasp of association and industry problems and potentials. • Innovative: receptive to new ideas, suggestions and approaches. • Always ready to help. The happiest thing about this profile is that it fits so many members-both reason and proof of our success as an association.
9.
technicalities. Fail to adequately inform public in how to identify legal problems, when need a lawyer, how to select a lawyer, qualifications and costs. Fees-too high in relation to services, part of 1. above. Relationships with clients-ill at ease, distant treatment, impersonal. Organized bars more interest in promoting self-interest over public interest, regulating own parameters in practice of law (UPL), moves too slowly on recognized need for affirmative action, fails to deal with certain obvious problems (discipline) typified by lawyers and judges either incompetent, dishonest or prone to procrastination, fails to aid pUblic in finding the right lawyer to handle a particular problem-no certification or advertising, specialization guidelines. Many existing programs respond in varying degrees to these problems but lack scope, proper direction or adequate funding to make substantial impact. New programs, strengthening existing ones and efforts coordinated nationally are needed, focusing on top priorities in this area and incorporating integration of public relations-public policy making into bar association management in problem anticipation and prevention rather than reaction. Public relations is still vastly misunderstood by bar associations and the legal profession and, if any1hing, equated more with advertising or something nice to do if you have a little extra money and want an ego trip for your officers or association.
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April 1979/Arkansas Lawyer/95
10
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11
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PUZZLE
The last legalese puzzle by Associate Justice George Rose Smith of the Arkansas Supreme Court proved most interesting-this one will prove most difficult. The solver has 15 minutes. Start your "pencils."
ACROSS 1. 6. 10. 14. 15. 16. 17. 19. 20. 21. 22. 24. 26. 27. 28. 31. 34. 35. 36. 37. 38. 39. 40. 41. 42. 44. 45. 46. 50. 52. 53. 54. 55.
By operation of law Short distance Queen of Carthage " ... to set the table on _ _ ." Hamlet. Catherine _ _ Sufficient, formerly A kind of case British gun Poet's word Nightfall Razorbacks' Nemeses Uncommon law, perhaps Poker hands An age Hustler Bountiful Dog Santa __ Choice Orifices Eagerly expecting Simplified Esperanto Member of McKinley's cabinet Pungs Trim the tree Hot Springs, for example Remove Not a covenant not to sue Stickler for details John or god _ _ non (whether or not) Lie next to Kind of hearing
96/Arkansas Lawyer/April 1979
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Nixon's downfall? A decree, in Paris To __ word (invent) a camera." Libel, slander Show mercy Add more adverse possession Silkworm Omens Give cause for divorce "What a terrible way to die'" Activist Has the fee Lachesis, for one A row at the stadium Mah-jongg piece 11 _ _
26. Chicken and cow 28. Furze 29. Idylls of the King character 30. Criminal charges 31. Jejune 32. Fixed 33. Civil or criminal 34. Box: Fr. 37. Shin _ _ (paper money) 38. Wings 40. A feed 41. Strips of wood 43. Addresses the jury 44. Covered with small figures: Her. 46. Fortification 47. Dispatch boat 48. Certain memberships 49. They: Fr. 50. _ _ Alto 51. Black 52. Prima donna 56. Bigshot 57. Quid pro quo for tit
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PROFESSIONAL INVESTIGATORS Fred Myers. Owner and Manager 14 Years Private Investigation Experience Former Police Officer Member. World Association of Detectives Former President, Arkansas Private Investigators Association • GtHf.1 Ilnltil.ti•• Seniti • [ .. Io,n Ttett luutil.tltll • Missil. '"rlMS 1",,,tilatiOll 0 C.sullJtioll Seniti • 1.lulius fur.i,hld
Cell ...
DAY OR NIGHT
372·1809
TOWER BUILDING/UTILE ROCK
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**** BEACH ABSTRACT. GUARANTY COMPANY REPRESENTING:
PIONEER NATIONAL TITLE INS. CO. ABSTRACTS-ESCROWS-TITLE INSURANCE
AND UNKNOWN HEIRS LOCATED NO EXPENSE TO THE ESTATE
WORLD-WIDE SERVICE FOR
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100 Center SI. - Little Rock: Ark. - FR 6-3301
J. George Owen
****
Sales Represenlative Shepard's Citations, Inc. 405 Andover Lane Ballwin. MO 63011 Telephone 314/227·5514
American Archive" A""ocialion INTERNATIONAL PROBATE RESEARCH 449 WASHINGTON BUILDING
WASHINGTON. D. C.
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P.O. Box 5683, Arlington, TX 16011 (811) 460-8621
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