YLS Young Lawyers Section
In Brief In this issue
A Periodic Newsletter of the Young Lawyers Section of the Arkansas Bar Association
Vol. 18 #1
FROM THE EDITOR 2 BROOKE MOORE
JUDGE TIMOTHY FOX JAMIE HUFFMAN JONES
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HOT TOPICS 4 REAL ESTATE: CLIFF MCKINNEY
JUDGE BRAD KARREN JOSH MOSTYN
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YLS NEWS 5
JUDGE MARY SPENCER MCGOWAN MEGAN E. WOOSTER
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ARKANSAS TRAVELER 7 CARL F. “TREY” COOPER MARY G. COOPER
JUDGE MACKIE PIERCE JOSH MOSTYN
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TASTY TIPS 7 RASHAUNA NORMENT
JUDGE RICHARD TAYLOR LYDIA WHETSTONE
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WHAT JUDGES WANT 8 JUDGE ROBERT HERZFELD 10 MEGAN E. WOOSTER
JUDGE RHONDA WOOD CHRIS BURKS
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JUDGE BART VIRDEN JESSICA VIRDEN MALLETT
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JUDGE D.P. MARSHALL, JR. MIKE A. CANTRELL
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JUDGE LAVENSKI R. SMITH MIKE A. CANTRELL
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JUDGE VICKI M. PICKERING JAMIE W. GILMORE
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EDITORIAL Editor-In-Chief BROOKE MOORE Assistant Editor RASHAUNA NORMENT Tech Tips Editor ALEXANDER BIGGER What Judges Want Editor MEGAN WOOSTER Tasty Tips Editor RASHAUNA NORMENT Hot Topics Editor JOHN PESEK Arkansas Traveler Review Editors TREY AND MARY COOPER Graphic Design & Layout ANNA HUBBARD YLS EXECUTIVE COUNCIL Chair: JESSICA S. YARBROUGH Chair-Elect: MATTHEW L. FRYAR Secretary/Treasurer: CHARLEY E. SWANN Immediate Past Chair: J. CLIFF MCKINNEY District A Rep.: AUBREY BARR District A Rep.: WILLIAM M. PRETTYMAN III District B Rep.: CALEB GARCIA District B Rep.: GREGORY J. NORTHERN District B Rep.: STEPHANIE A. LINAM District C Rep.: CHASE A. CARMICHAEL District C Rep.: LESLIE J. LIGON District C Rep.: CHRISTOPHER ALAN RITEENHOUSE At Large Rep.: AMBER DAVIS TANNER At Large Rep.: BROOKE MOORE U of A School of Law Rep.: TIFFANY NICOLE GODWIN UALR School of Law Rep.: NICHOLAS WILLIAMS YLS In Brief is published online quarterly by the Arkansas Bar Association.
Editor’s Letter
Brooke Moore, Editor-in-Chief
The Judges Have Spoken THIS ISSUE IS DEDICATED TO “WHAT JUDGES WANT.” I would like to thank all of the editors and contributors and a special thanks to “What Judges Want” editor, Megan Wooster, for all of her hard work, as well as, to all of the judges for their time and participation. Here’s what you have to look forward to in this issue… We have prepared a compilation of new and previously published “What Judges Want” articles, consisting of a variety of judges from across the state. Mary Cooper takes us along with her and her husband, Trey, into a favorite eatery for Pulaski county judges in their article “Where Judges Eat.” Rashauna Norment brings us an Easy Crab Cake recipe straight from the kitchen of Judge Rhonda Wood. Cliff McKinney continues to lend his expertise and analysis of pertinent case law in our “Hot Topics” section. In Brief is always eager to involve more young lawyers. Currently, we have a need for contributors to our “Hot Topics” section. It is our goal to have several YLS contributors each provide one brief update for each quarterly publication for at least one year addressing new case law pertinent to their respective practice area or interests. Additionally, the YLS Communications Committee is working on a public video series that will consist of short informational videos to educate and assist the public with various legal issues. I encourage everyone to consider getting involved with this newsletter and get plugged into YLS! If you have big news, don’t forget to send it to me for inclusion in our next issue! Brooke Moore is the Director of Policy & Outreach at Palco, Inc., where she also serves as the company’s Privacy Officer. Palco is a Counseling and Financial Management Services provider located in North Little Rock. Brooke is married to Capt. Adam Moore and they have three children: Parker, Brodie, & Kinlee. She can be contacted at k.brooke.moore@gmail.com or 501-626-9087. If you are interested in writing for In Brief, participating in the public video series or have any ideas, email me at k.brooke.moore@gmail.com. If you have big news, don’t forget to send it to me for inclusion in our next issue!
2 YLS In brief www.arkbar.com
ArkBar Handbooks are your shortcut to fast answers for your clients! Whether it is a substantive law question or a procedural issue, let ArkBar Handbooks be your guide. Learn from local leading lawyers in the following fields: Handling Appeals, Revocable Trusts, Probate, Domestic Relations, Bankruptcy, Real Estate Title Standards, Statute of Limitations, Debtor/Creditor, Workers Compensation, and Elder Law.” —Matthew L. Fryar Cypert, Crouch, Clark & Harwell, PLLC Co-Chair of the Editorial Board for Handbooks
More handbooks coming soon! For more information go to www.arkbar.com under the “For Attorneys” link or contact Michele Glasgow at 501-375-4606 or mglasgow@arkbar.com.
Hot Topics Real Estate Law J. Cliff McKinney A recent real estate case showed the value of old historic land records. In the case of Brann v. Hulett, 2013 Ark. App. 687, a dispute arose between landowners regarding the location of the true boundary. The case was resolved in favor of a survey based on the original General Land Office (GLO) survey from 1854. For those interested in knowing more about the original surveys of Arkansas, the Bureau of Land Management’s website has wonderful historical information available at www.glorecords.blm.gov. This site contains original GLO surveys, land patents, field notes and other fascinating information. As shown by this case this old and interesting information can still sometimes be very useful in resolving cases and determining modern boundaries. This information can also be a great place to start when researching title, determining a baseline for an accretion versus avulsion case or resolving a boundary line dispute.
In Brief Editors TREY COOPER, Arkansas Traveler Review Co-Editor, is an associate at Dover Dixon Horne PLLC, in Little Rock, with a practice focused on general and commercial litigation. Trey is married to Mary G. Cooper, Arkansas Traveler Review Co-Editor. Mary and Trey have practiced law since 2007 and have been married since 2010. They have one son, Cross.
MARY G. COOPER, Arkansas Traveler Review Co-Editor, is an associate at Cross, Gunter, Witherspoon, & Galchus, P.C. in Little Rock and practices labor and employment law and civil and business litigation.
RASHAUNA NORMENT, Assistant Editor & Tasty Tips Editor, is an attorney with Norment Law Firm. If you have a recipe to share, please contact Rashauna@NormentLawFirm.com or 501-319-7875.
J. Cliff McKinney is a transactional attorney with Quattlebaum, Grooms, Tull & Burrow PLLC in Little Rock.
MEGAN WOOSTER, What Judges Want Editor, is the owner of M.W. Law, PLLC, a domestic relations litigation firm, in downtown Little Rock, Arkansas. She can be contacted at (501) 372-3700 or megan@mwlawpllc.com.
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YLS News
HATS OFF
Congratulations to the new ArkBar members admitted to the practice of law May 2014 Nicholas H. Alexander Hailee Michelle Amox Nathan A. Aylesworth Samuel Collins Baber Aaron Scott Cash Christopher D. Cheadle Degen Duane Clow Anthony L. Coon Katherine Shea Crosby Andrew D. Curtis Zachary Thomas Deem John Paul Deitenbeck Sean P. Donegan Sharon Lynn Emerson Christopher Hollis Ezell B. Ashton Fallin Tyler Ross Farrar Bryan Dane Fisher LaDawna Siobhaun Fleckenstein Amanda Jayne Fray Bryan Christian Gibson Robert E. Goins Linda Bird Green Stephanie Gregory Johnny Shane Griffin Melissa Bernice Grisham Christy Hawkins Gustavo Antonio Heudebert Jimmy Burton Hicks David B. Jones Chad William Kelly Chad J. Keys Eun Sol Kim Lacie Marie Kirchner Jessica Marie Kuhn Robert Quinn Lea
Nicholas Russell Lyons James Andrew Marshall Whitney Marie Matney Brandy Leigh McAllister Brent Douglas McCabe Stuart W. McMahen Matthew David Mitchell Vanessa Regina Nehus Michael Nicodemus John Vanker O’Grady Breana Cheri Ott Anthony Aaron Owen W. Brett Papasan Jim Parker Megan Kathleen Paull Shalondra Lequette Pickford Emily Hsueh-Fuen Quan Elizabeth Lee Haney Richardson Peter D. Rucker James Lloyd Scott Amanda Elaine Simmons David Allen Sims Philip Nathan Smith, Jr. Natalie Lynette Smittle Sylvia Marie Talley Shane Taylor Thomas Alan Tougaw Stephanie Vang Jennifer Faye Wattman Paula C. Williams Jillian Wilson John Derek Womack Robin Elizabeth Wright Edward Alexander Zellmer
On June 2, 2014, Erin Vorhees of the law firm of Johnson, Vorhees & Martucci, will be moving her practice from the firm’s Joplin, MO office to their office located at 2525 Market Street, Ste. 200 Rogers, AR. There Erin will be working alongside Cephus Richard, III. Erin practices plaintiffs’ personal injury law with a focus on motor vehicle collisions, trucking accidents, premises liability, medical malpractice and products liability. Erin is a graduate of the University of Arkansas School of Law in Fayetteville and is licensed to practice in Arkansas and Missouri. Garrett Ham completed the Army’s Judge Advocate Officer Basic Course. It is a 17 week course held at Fort Benning, Georgia and on the campus of the University of Virginia. Ham is a JAG officer in the Army National Guard, and this was the initial entry training. Shana Woodard and Solomon Graves were married on May 10, 2014.
Congratulations to the YLS members elected to ArkBar House of Delegates and Board Governors Aubrey L. Barr, Delegate Brian M. Clary, Delegate Matthew L. Fryar, Delegate Kurt J. Meredith, Delegate Samuel M. Terry, Delegate Tiffany Nicole Godwin, Law Student Rep —University of Arkansas School of Law Nicholas Williams, Law Student Rep— UALR William H. Bowen School of Law Brian M. Clary, Chair of CLE Committee
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YLS News Meet the Chair
Jessica S. Yarbrough, YLS Chair Jessica S. Yarbrough, is the new YLS Chair for the 20142015 bar year. Jessica is a lawyer with McKissic & Associates, P.L.L.C. in Pine Bluff. Where were you born and raised? El Dorado, Arkansas When and where did you go college and law school? • Southern Arkansas University, Magnolia (Business Adm). 2004 • Southern University Law Center, Baton Rouge, LA 2007 What type of law do you practice? • General Practice • Emphasis on employment discrimination, civil litigation, workers’ compensation & personal injury. What do you love about what you do? Being able right the wrongs for those who are unable to do so on their own. There’s no greater feeling than receiving a thank you card from a client long after their case is over, and being hugged and thanked after the judge enters an order in my client’s favor. The greatest reward is knowing that people’s lives will not be the same. What do you enjoy doing in your free time? Free time is minimal, but when I do have free time, I enjoy watching HGTV, spending time with family and friends, reading inspirational books, and listening to jazz music. What are you looking forward to the most this year as YLS Chair? • Serving with passion and purpose! • Continuing the legacy of service to our respective communities and to our profession, • Partnering with other associations and non-profit organizations to impact communities, • Increasing membership and member participation, • Building upon the foundation laid by previous chairs to complete various service projects and provide professional development tools, • Maintaining friendships, and building more relationships among all young lawyers across the state!
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EVENT CALENDAR BAR EXAM SURVIVAL KITS: We all know how grueling the bar exam can be. Let’s pitch in to create survival kits for examinees. The Arkansas Bar Exam will be given Tuesday, July 29th and Wednesday July 30th. Volunteers are needed prior to the bar exam for preparing the kits, which will include items such as a pen, ear plugs, mints. Volunteers are also needed on the first day of the bar exam to pass out the kits. Contact Jessica S. Yarbrough to volunteer: jessicay@mckissiclaw.com or 870.534.6332.
Arkansas Traveler and Tasty Tips
Arkansas Traveler— Dave’s Place Restaurant, Little Rock By Carl F. “Trey” Cooper, III and Mary G. Cooper Want to dine be empty at the time with members of of our arrival). the bench? Well, We both ordered there is one lunch the “Andrewwood”, spot in Little named after Little Rock, where you Rock attorney Anare almost guarandrew Russell with the teed to spot at least firm Wallace, Marone of your favortin, Duke & Russell, ite jurists (even on PLLC. The Andrewa rainy, unseasonwood comes with Table of Justice ably cold Wednesham, turkey, bacon, day). Located at Swiss and Ameri210 Center Street, Dave’s Place is a laid back can cheeses, mustard, mayo, and lettuce restaurant that has been serving Arkansas’s and tomato on your choice of bread (sevjudges for decades (Pulaski County Cir- eral options). Trey ordered his Andrewcuit Judge Collins Kilgore was eating lunch wood on white bread with no mustard or when we visited). Even the lunch menu has mayo, and I ordered mine on sour dough. a judicial flare. For example, there is a sand- The hot sandwiches came out quickly with wich called “The Law” (Smoked Chicken, chips and a pickle. We both agreed that our Provolone, Mayo, Lettuce & Tomato on sandwiches were delicious with a very tasty Tomato Herb Bread) and “The Bar” (of the homegrown freshness. The bread, for exsalad variety) offers lunch goers two options: ample, tasted homemade, and the perfectly “Workin’ Judge” (small) and “Main Judge” ripe tomatoes reminded me of the ones (all you can eat). Our waitress, also the grown in our backyard every summer when daughter of the owner, informed us that the I was a child (if not just-picked locally, the “Main Judge” is named after the late Justice tomatoes were fabulous imposters). Serving Tom Glaze. The “Workin’ Judge,”named mostly sandwiches and salads, Dave’s does after Pulaski County Circuit Judges Mary have a few surprises like a three-egg omelet Spencer McGowan and Van Smith, is a and daily specials and soups (gazpacho, chili nickname given to the decision-making duo and a chili dog were a few on the day we by a former Dave’s employee, because both visited). This classically simple lunch place judges regularly dashed in-and-out with has something for every noon-time craving. only enough time to eat a small salad before Dave’s is a reliably good lunch spot in jetting off for the courthouse to get back downtown Little Rock within a block from to a busy docket. There is even a table at state and federal courthouses. The tasty Dave’s Place unofficially named “The Table and traditional lunch offerings explain why of Justice” because, we were told, it is the members of both the bench and the bar judges’ regular table (we were privileged to have frequented this staple establishment dine at the famous table, which happened to for years.
Tasty Tips— Judge Wood’s Easy Crab Cakes
(MIX INGREDIENTS AND FRY) (2) 6 OZ CAN OF CRAB MEAT 4 TBS. MAYO 2 TBS. HONEY DIJON 1 TSP PEPPER 1 TSP PEPPER ½ TSP SALT 2 ½ TBS. WORCESTERSHIRE SAUCE 2 CUPS OF BREAD CRUMBS (OR STOVETOP STUFFING WORKS GREAT, TOO) 1TBS. PARSLEY 2 EGGS ½ TSP CURRY
Judge Rhonda Wood was elected in 2012 to the Arkansas Court of Appeals.
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What Judges Want This series is a compilation of interviews with Arkansas judges by young lawyers. This is the first publication of the first four interviews, and the remaining six were published in recent issues of In Brief dating back to 2011. Megan E. Wooster, What Judges Want Editor
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DEFINITELY GET A MENTOR. Get to know as many other lawyers
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IT WOULD BE A MISTAKE TO TREAT THE
ADMINISTRA-
as you can and ask for help. The only thing a lawyer loves bet-
TIVE HEARING AS CIRCUIT COURT. An
ter than telling you how they handled a case is telling you how you should
administrative hearing is much more
handle your case.” —Judge Brad Karren Circuit Judge, 2nd Division, 19th West Judicial Circuit
relaxed; the rules of evidence do not
“
really apply. All evidence, even if it is hearsay, is admissible so long as it is not irrelevant, immaterial, or unduly
HUMILITY AND CANDOR are respected virtues in the courtroom. Remember, the appeal is not about the lawyer. It is more important
that the client’s interests are properly represented than that the lawyer’s pride
repetitious.” —Judge Vicki M. Pickering Administrative law judge (“ALJ”) for the Office of Medicaid Provider Appeals in Little Rock, Arkansas.
be preserved.” —Judge Lavenski R. Smith U.S. Court of Appeals for the Eighth Circuit
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A LOT OF PEOPLE have the perception that in order to be a successful attorney, you have to be a go-for-the-throat, no-holdsbarred, win-at-all-costs type of attorney, and I think that’s wrong.
It’s a small world in which we as attorneys and judges live. Attorneys need to remember that what goes around comes around. A little good faith and fair dealing can go a long way.” —Judge Mackie Pierce Circuit Judge, 17th Division, 6th Judicial Circuit
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IN MY COURT it is the plaintiff’s
obligation
to
insure that sufficient days
are allotted for the case to be fully tried. I don’t tell attorneys how long it will take them to try their case, but however many days they request are all that trial will be al-
“
YOUNG ATTORNEYS cannot graduate from law school and expect to only work an eight-hour workday. It takes time and dedi-
cation to develop legal skills and become acclimated to the practice of law.” —Judge Mary Spencer McGowan Circuit Judge, 9th Division, 6th Judicial Circuit
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lotted.” —Judge Timothy Fox Circuit Judge, 6th Division, 6th Judicial Circuit
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Good lawyers work harder, frame the issues well, give better advice and counsel, know when to settle, are prepared, better
articulate the facts, and argue persuasively. Additionally, good lawyers recognize that there are significant areas of common interest, even in the most litigious case.” —Judge Richard D. Taylor Chief Judge, United States Bankruptcy Court for the Eastern and Western Districts of Arkansas
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FOR
NEWER
ATTOR-
NEYS, try not to use first names in the courtroom,
even if you are familiar with the person you are talking to. Using last names with “ Mr.” or “Ms.” shows a respect for the judicial system. That is important for the other people in the courtroom. In open court, espe-
“
cially district court, try not to be too HANDLE THE LAW CAREFULLY AND THE FACTS EVEN MORE
casual or familiar because there are
CAREFULLY. Nothing so dents a lawyer’s character as saying the
always people watching and scruti-
record is X, when it is X + 1. Accept your bad facts boldly, for no case is with-
nizing everything we do.” —Judge Bart Virden District Judge, Conway County District Court
out some, put them in context, and explain why your client should prevail nonetheless. Do not shade the record.” —Judge D. P. Marshall, Jr. United States District Judge for the Eastern District of Arkansas
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AN IMPORTANT TIP: If you can show your humor in the courtroom
in an appropriate way, you will win more cases and have more fun.” —Judge Robert Herzfeld Circuit Judge, 4th Division, 22nd Judicial District of Arkansas
“
The most difficult aspect is giving your clients reasonable expectations from the start. It is not helpful to promise a full moon and
then six months later try to sell the half moon as the best outcome.” —Judge Rhonda Wood Arkansas Court of Appeals Judge, District 2, Position 2
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An Interview With
Judge Robert Herzfeld By Megan E. Wooster
What was the primary reason that you decided to attend law school? I wanted to be a lawyer since I was in the third grade. Also, with a B.A. in English and Sociology, my other career paths were somewhat limited (!).
Judge Robert Herzfeld was elected Circuit Judge for the 22nd Judicial District (Saline County) in 2008 and is unopposed for a second six-year term. Prior to taking the bench, Herzfeld served as the elected Prosecuting Attorney for Saline County and was in private practice for a total of six years with an emphasis in family and criminal law. Herzfeld graduated from Emory Law School in 1998. Herzfeld is married to the former Karma Schanzlin of Camden with whom he has two sons, Leo, 12, and Hank, 11.
Often, young attorneys struggle with maintaining a professional and personal life balance. Do you have any advice for young attorneys who are struggling with this issue? Find the area of the law you enjoy practicing most and become very good in that area. If you try to do a little of everything, you won’t be great at anything. Also, charge more. You will have fewer cases but make more money. Can you describe an average day in your courtroom? We typically have four to six family law/ probate cases set per day. I rarely set any particular case longer than half a day because I like to move fast, and I’ve discovered, if you set cases for a full day hearing, then attorneys try to use the full day whether they need it or not. My advice is to “Make your case, but cut to the chase.” Having repeated witnesses testify about the same secondary or tertiary issue is ineffective and wastes everyone’s time. What percentage of cases in your courtroom involve pro se litigants? Do you have any advice for young attorneys who have cases with pro se litigants? Probably 10-15%.
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Make it clear you are not their attorney, but take time to try to talk to them. If you make a fair offer and treat them with respect there is a good chance to settle the case. However, if you find out in the first few minutes they’re not rational or trustworthy, then end the conversation and set it for trial. What are some common mistakes that you see young attorneys make in your courtroom? 1) I cringe when I see attorneys checking off a list of questions on their yellow pad (or iPad) instead of going with the flow. Don’t write out your questions, use bullet points on issues you need to cover, and then make sure your direct or cross is as conversational as possible. Witnesses rarely answer the way you expect (even your own client) so working down a mechanical list or trying to cram their answers into your questions is awkward and often causes attorneys to miss critical follow-up questions. I hate seeing the look of panic on lawyer’s faces when they lose their place. 2) Don’t ask intentionally tricky questions (this should draw an objection if the other side is paying attention) or unfairly shade an answer when you restate it. Even if the witness doesn’t catch on (although they usually do), everyone else will see what you’re doing, and it destroys your credibility. That doesn’t mean on crossexamination that you shouldn’t nudge a witness out on limb and then cut it off behind them (the most fun you can have as a lawyer!), just don’t get too cute or come off as unfair.
3) Know the hearsay rules, and the exceptions! If the other side objects to your witness’s testimony as hearsay, don’t just withdraw the question, use the exceptions— especially if it’s present-sense impression, an excited utterance, or not for the truth of the matter asserted. 4) If the other attorney calls a witness who does not hurt your case and they have no information, which will help your case, then be brave enough to say, “No questions.” When it comes to oral arguments in your courtroom, what do you expect from young attorneys? In family court (90% of my caseload), experienced attorneys rarely make closing arguments. But, if there is an important point of law or testimony that you need to explain or emphasize—you should do so. Please make it clear to the court that you would like speak before the court begins to rule. Judges get very unhappy if you make it look like they have decided without considering your arguments. If you must make an argument, hit your high points and sit down. What advice can you offer to young attorneys who find themselves in the midst of a discovery dispute? Keep your cool. Threatening sanctions and/ or being a jerk never works. If the other side is obnoxious, call them up and try to de-escalate the situation. Snotty letters and emails only make things worse. If they don’t respond to your (sincere) efforts to discuss the situation, then keep your language and pleadings tight and professional and know that they are one of those kind of lawyers—the kind that you don’t want to be. How has the legal profession, based on your view, changed or evolved since you began practicing law, in terms of the style or manner in which attorneys interact with one another? It hasn’t changed much since I passed the bar in 1998. We had email and the Internet even way back then. In cases, in which pretrial briefs are not required, do you prefer that attorneys submit pretrial briefs to the court? Only if there is an unusual question of law or a case exactly on point.
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AN IMPORTANT TIP: If you can show your humor in the courtroom in an appropriate way, you will win more cases
and have more fun.” —Judge Robert Herzfeld Circuit Judge, 4th Division, 22nd Judicial District of Arkansas
Also, don’t cite cases in your opening statement or closing arguments that you haven’t submitted to the judge before court. If it’s me, I’m going to look the case up on my bench and make you wait while I read it. (Woe be unto you if you mischaracterize the case). What are your favorite aspects of being a circuit court judge? I enjoy making difficult decisions. I also like lawyers. You are some of the most interesting people in the world because your knowledge is broad and most of you have a good sense of humor. An important tip: If you can show your humor in the courtroom in an appropriate way, you will win more cases and have more fun. What is your average caseload? How has your caseload changed since you initially took the bench? I hear about 1,000 cases a year (actual incourt hearings), and sign documents on probably another 1,000 or so. It’s been pretty consistent since I started. Do you personally believe that litigants should try to mediate issues before litigating issues in court? Sure. Settlement is almost always better because the parties have ownership over their own agreement. However, sometimes people need their day in court and will not be satisfied with anything less. That’s not the end of the world. In fact, I’d much rather have an hour-long hearing and hash things out in court than wait around for three hours while the attorney’s try to cram a settlement down their client’s unwilling throats. What do you believe is proper courtroom attire? Do you believe that young attorneys are making poor decisions with respect to courtroom attire? Explain. It’s obviously easier for men. They just have to wear a coat and tie and not be dumb enough to show up in jeans. (Guys, don’t ever show up
without a coat and tie. Keep a spare set at your office.) Women need to dress professionally. There’s no way I would try to define that. Do you have any interesting courtroom stories that you would like to share? No. (Ha! I just wanted to be the first judge to say “No” to that question.) Would you mind if young attorneys observed court in your courtroom? If you permit courtroom observation, do you require that young attorneys request permission to observe court? I would encourage it. I certainly wouldn’t require someone to ask permission, but I would prefer he or she to come say “hello” beforehand so I don’t think they were waiting to see me. Do you have any final words of wisdom that you would like to share with young attorneys? If you are a new attorney—even if you aren’t a young attorney—find a mentor. Or two. Ask for advice. You will be amazed at how far people will go out of their way to help you—not just with forms and procedure but how to handle cases, clients, other lawyers and especially how particular judges like things done. Don’t forget that judges like to help too. Be careful not to ex parte, but if you have hypotheticals or want to know how a judge prefers you handle something, ask. Most of us like giving advice and all of us want you to handle yourself properly in our courts. Then, when you’re no longer a new attorney, go out of your way to help new lawyers yourself. They will never forget it and you will make a new friend. Isn’t that nice? Megan E. Wooster is the owner of M.W. Law, PLLC, a domestic relations litigation firm, in downtown Little Rock, Arkansas. She can be contacted at (501) 372-3700 or megan@mwlawpllc.com.
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An Interview With
Judge D.P. Marshall, Jr. By Mike A. Cantrell
D.P. Marshall, Jr. is a United States District Judge for the Eastern District of Arkansas. Judge Marshall was the chair of the Young Lawyer’s Section in 1996-1997.
“
HANDLE CAREFULLY
THE
LAW
AND
THE
FACTS EVEN MORE CAREFULLY. Nothing so dents a lawyer’s character as saying the record is X, when it is X + 1. Accept your bad facts boldly, for no case is without some, put them in context, and explain why your client should prevail nonetheless. Do not shade the record.” —Judge D. P. Marshall, Jr. United States District Judge for the Eastern District of Arkansas
The Section has asked me for some words of advice to young advocates. I offer two. Others may have a different list, perhaps a more–comprehensive one. But this is a start. CANDOR. All lawyers must be candid with the tribunal. Mod. Rules Prof. Cond. 3.3. This principle holds especially true for an individual recently called to the Bar, for you are an unknown quantity in a collegial profession. Handle the law carefully and the facts even more carefully. Nothing so dents a lawyer’s character as saying the record is X, when it is X + 1. Accept your bad facts boldly, for no case is without some, put them in context, and explain why your client should prevail nonetheless. Do not shade the record. It is easy—particularly now that so much law is “out there in the ether,” as Kent Rubens used to say—to find some helpful words in an opinion, paste them into your brief, and move on with your argument. Avoid this temptation. Pay attention to every case’s procedural posture, the context of the court’s words, and the sometimes blurry line between holding and dictum. Check, and double check, that you’re working from the current version of the statute or the rule. Argument comes down to character. In how you handle the facts and the law each day, you’re shaping your character as an advocate. Your brothers and sisters at the Bar, and the courts, are taking note. BREVITY. Judge Richard S. Arnold would remind lawyers from time to time
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that brief is an adjective as well as a noun. Wise words, like most everything he said. Your clients, your colleagues, and your courts are busy. Whatever you’re writing—a letter, a memo, or a brief—get to the point. Then stick to it. The same goes for oral argument. One of my colleagues tells this good story from his lawyering days. The argument from counsel opposite went along these lines: “This issue is controlled by Smith v. Jones and my client wins.” Whereupon the lawyer (being prepared) handed out copies of the opinion and sat down. Everyone read the case. Then the court ruled for the lawyer’s client. Many issues can be resolved by a grey mule precedent, a statute, or a court rule, though some cannot. Throwing light on all parts of a difficult problem will require you to sacrifice brevity. In these situations, craft a preliminary statement or summary that frames the issues as simply as you can. And remember: neither clear thinking nor industry is measured in the number of words. Fulfilling your duty of candor and striving for brevity require discernment. Trust your instinct for fairness. Trust your common sense about whether an issue is straightforward or complex. You’ll see the right answers more often than you might expect. Now, go be candid and brief. Mike A. Cantrell has enjoyed working as a federal judicial law clerk on the Eighth Circuit Court of Appeals and the District Court for the Eastern District of Arkansas. Contact him at mikecantrell.law@ gmail.com. ■
An Interview With
Judge Lavenski R. Smith By Mike A. Cantrell
What common mistakes do you see young attorneys making? Young attorneys, more frequently than experienced appellate counsel, tend to script their arguments in detail and try to cling to their prepared remarks even in the face of panel questions leading elsewhere. Accurately answering questions from the judges should always supersede the words on the legal pad no matter how convincing they seemed when written. Also, young attorneys, probably due to nervousness, tend to speak too rapidly. It is wise to relax and try to have a conversation with the court.
Judge Lavenski R. Smith received his Juris Doctor degree from the University of Arkansas and worked for Ozark Legal Services before opening Smith Law Office in Springdale, Arkansas. Judge Smith served as an Assistant Professor at John Brown University, as Chairman of the Arkansas Public Service Commission, and as a justice on the Arkansas Supreme Court before being appointed to the Eighth Circuit.
What do you see the most effective attorneys doing or not doing? The most effective appellate advocates write briefs that reflect diligent examination of the factual record and thorough research of the applicable precedents. These attorneys do not just throw these facts and law into a bucket of words and call it their brief. Instead, they carefully organize their arguments with cogent logic using digestible language. They do not raise issues with little or no merit. How about less effective attorneys? Less effective counsel tend to “shotgun” their appeal with numerous marginal issues and thus water down what merit might have been discernible in a few of them. What is the best thing a young attorney can do to prepare for oral argument? Study the record on appeal and know it well enough to answer anticipated questions from the panel and some that might not be
readily expected. It is simply unhelpful to tell the judges “I did not try the case.” You should know the weaknesses in your case as well as its strengths. It is particularly helpful to know the details of the cases you cite as authorities for your argument propositions. Expect the judges to know the facts and to have read the cases you rely on. I also highly recommend practicing with a moot panel of some sort to get a feel for the dynamic nature of oral argument on appeal. It contrasts sharply with closing argument at trial. What is the best way a young attorney can bounce back after making a faux pas? Admit it candidly and move on. Humility and candor are respected virtues in the courtroom. Remember, the appeal is not about the lawyer. It is more important that the client’s interests are properly represented than that the lawyer’s pride be preserved. Appellate judges understand that missteps and oversights occur but they do not look kindly on clever efforts to conceal them. What attitude or approach is most effective in the courtroom? Enter the courtroom with an attitude of respect for the law, the judges, the parties and the other counsel. Endeavor to appreciate the privilege of participating in the process whose goal is justice. Every individual possesses their own personality and their preferences for communicating. No one’s peculiar approach is superior. Genuineness and authenticity are usually perceptible and can aid an advocate’s credibility before a panel. Passionate advocates are welcome in court but passion has its place
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HUMILITY AND CANDOR are respected virtues in the
courtroom. Remember, the appeal is not about the lawyer. It is more important that the client’s interests are properly represented than that the lawyer’s pride be preserved.” —Judge Lavenski R. Smith U.S. Court of Appeals for the Eighth Circuit
and time and should be only wisely deployed for necessarily emphatic points. How can attorneys compose briefs most effectively? Over the years, I have come to marvel at the difference in how attorneys draft their initial brief and how they draft a petition for rehearing once they have lost. Even taking into account the tighter length limit, the petition for rehearing is generally much more concise, to the point and even persuasive. I suggest taking advantage of the urgency and constraints of the PFR process and write the opening brief draft with the perspective that you are trying to convince someone who has already decided against or is prone to do so. Sometimes counsel may hyperbolize a bit more in the PFR about the dire consequences of the decision but often they just seem to write with more purpose. What do you wish attorneys knew about how they could help you decide their case? Attorneys should remind themselves that appellate judges have already familiarized themselves with the case and indeed come into the courtroom expecting to discuss and tentatively decide the matter shortly after the hearing the same day. If they have any un-cited precedent helpful to the case, they should supply it to the court promptly. What one thing can an attorney do outside the courtroom to best guarantee success? Know the record. Young attorneys cannot help being inexperienced. What can they do to make up for it? Commit to not being ignorant of what can be known that affects your case. Inexperience is not an excuse for lack of diligence. Eighth Circuit oral arguments are recorded and posted online. I recommend identifying cases involving good attorneys and listening to the argument. It is not the same as being present but
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even just listening one can perceive some things that work and some that do not. It is also free. Also, attend relevant CLE programs and study good books on legal writing. How would you advise a young attorney to deal with difficult opposing counsel? Give everyone respect, even those who disrespect you for your youth or inexperience. The future return will far outweigh the investment. Be patient, with your mind firmly fixed on what your goals are in the case and do not let a poor relationship with counsel deter you from effectively advocating for your client’s interests. The outcome of the case generally will not turn on obnoxious but ethical behavior of opposing counsel. Make it irrelevant to your efforts unless it crosses into rule breaking or the unethical at which point appropriate motions are available. What formative experiences did you have that helped you become a better attorney? My first legal position was as a staff attorney at a Legal Services office. I was assigned cases from day one and had to “hit the ground running” to manage my case load. I learned a great deal about the law, people and courts from practicing before judges in four counties and representing clients in a variety of legal areas. During my first year I attended a National Institute of Trial Advocacy training session. This event put me head to head in trial competition with attorneys from across the country including prestigious Ivy League schools. Preparing and presenting a case against these attorneys before real judges eliminated many fears I had harbored about my readiness to enter the courtroom. I found that lawyers who work smart are really the smart lawyers who achieve advocacy success. How has the legal profession changed for the better since you began practicing law? Certainly, technological advances have made a significant change in how law is practiced. Electronic filing of pleadings, computer-aided
legal research, iPads and the like have all made the day to day work of attorneys and judges different than 30 years ago. Twenty years ago, a lawyer or judge wanting to review the record of case would have to get access to and examine and actual physical copy. Now, for many cases, the entire record can be transported in a USB drive and viewed on a variety of devices. Instead of loading multiple banker boxes of material into the trunk of your car, one can now simply put it all in a shirt pocket. How has it changed for the worse? On the negative side, the practice seems to involve less personal contact than in years past. Emails and texts have replaced coffee shop conferences. Personal trips to the courthouse for filing pleadings and talking to clerk office personnel and others present I suspect now are much rarer. What pursuits do you carry on outside of working as a judge? My pursuits outside of the law lean heavily towards family and church. I also serve on a college board of trustees. What non-legal reading would you recommend to a young lawyer? C.S. Lewis’s “Surprised by Joy.” Do you have any final words of wisdom that you would like to share with young attorneys? Be patient. For many, it will take years to find their niche within the legal profession. One positive feature of a legal education is that it may open doors in the future that at present one simply cannot contemplate. Changes in your interests and opportunities will almost certainly occur in your first decade beyond law school, if not later. Be flexible and willing to move outside of the familiar. Commit to excellence in every area of practice. If they are important to you, always make time for family and faith. Mike A. Cantrell has enjoyed working as a federal judicial law clerk on the Eighth Circuit Court of Appeals and the District Court for the Eastern District of Arkansas. Contact him at mikecantrell.law@gmail. com. ■
An Interview With
Judge Vicki M. Pickering By Jamie W. Gilmore
as counsel for the Arkansas Contractors Licensing Board for many years. Judge Pickering took a short break from the legal field to be a stay-at-home mom. When she returned to the legal field in the fall of 2013, Judge Pickering became an ALJ for the Office of Medicaid Provider Appeals.
Judge Vicki M. Pickering is an administrative law judge (“ALJ”) for the Office of Medicaid Provider Appeals in Little Rock, Arkansas. She grew up in Newport, Arkansas and has resided in Arkansas for the majority of her life. Judge Pickering received a B.A. in English, with a minor in Public Relations from the University of Arkansas at Little Rock. She attended the University of Arkansas, William H. Bowen School of Law and graduated in 1995. During law school, Judge Pickering worked for Justice David Newbern. Upon graduation from law school Judge Pickering became a law clerk for Judge Annabelle Imber. After clerking, Judge Pickering worked as an Assistant Attorney General for Winston Bryant. While working as Assistant Attorney General, she represented state boards and commissions, such as, the Veterinarian’s Board, Appraiser’s Board, and Architects Board. Judge Pickering also worked
Can you describe an average day as an ALJ with the Office of Medicaid Provider Appeals? The types of cases that I hear are appeals filed by Medicaid providers, who have been adversely affected by a decision of the Department of Humans Services (“DHS”), Office of the Medicaid Inspector General (“OMIG”), or its reviewers/contractors. This involves primarily denials of payment for Medicaid claims and services, eligibility denials, and OMIG’s fraud, waste and abuse determinations. My job was created by the Medicaid Fairness Act, Ark. Code Ann. §20-77-1701, et seq. Previously, the ALJs for Medicaid Provider appeals were housed at DHS. My cases are not heard in an actual courtroom. The majority of my cases are conducted by teleconference. The witnesses are either in the attorney’s office, or they are conferenced onto the telephone line. If an in-person hearing is requested, it is usually held in a conference room at the Arkansas Department of Health. Most hearings last one to two hours, while there have been a few have lasted all day. If a provider has more than one case pending, they can consolidate claims, which may extend the hearing time.
My average caseload varies. Right now, I have about 50 appeals scheduled for hearing. I have two per day scheduled for every day, usually excluding Fridays. However, the provider may withdraw their appeal, or the case may settle, so they do not always take place. Once the administrative hearing concludes, the ALJ issues a Finding of Fact and Conclusions of Law Order. The provider may appeal this decision to the circuit court. For young attorneys who may primarily practice at the circuit court or other levels, what are some differences which they should know at the administrative level? It would be a mistake to treat the administrative hearing as circuit court. An administrative hearing is much more relaxed; the rules of evidence do not really apply. All evidence, even if it is hearsay, is admissible so long as it is not irrelevant, immaterial, or unduly repetitious. The goal is to make sure that all records are introduced, and everyone has their chance to say what they need to say. If a provider fails to give a document prior to the appeal, it does not preclude the provider from introducing it at the hearing. The ALJ is there to regulate and guide the course of the hearing, rule on objections, and maintain order. Arkansas Medicaid Provider Manual 162.100 (G) states that the hearing officer shall control the taking of evidence in a manner best suited to ascertain the facts and safeguard the rights of the parties. Parties have an opportunity to cross ex-
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THE ADMINISTRATIVE HEARING AS CIRCUIT COURT. An administrative hearing is much more relaxed; the rules of evidence do not really apply. All evidence, even if it is hearsay, is admissible so long as it is not irrelevant, immaterial, or unduly repetitious.” —Judge Vicki M. Pickering Administrative law judge (“ALJ”) for the Office of Medicaid Provider Appeals in Little Rock, Arkansas.
amine witnesses and offer rebuttal. I will not close the record until I am sure that all evidence and testimony has been received, usually giving both sides ample opportunity to make their case. Hearing officers are also allowed to ask questions, which is something I almost always do. The ALJ also has the authority to issue subpoenas, administer oaths, and permit discovery by deposition or otherwise. The Arkansas Medicaid Provider Manual, 162.100 and DHS Policy both provide for discovery in administrative appeals. Specifically, DHS Policy 1098 states that parties are encouraged to agree informally on discovery procedures. If they cannot agree, the parties can ask the hearing official to enter a discovery order, guided generally by the Arkansas Rules of Civil Procedure. We encourage discovery procedures to be informal and worked out by agreement of the parties. What percentage of cases on your docket involve pro se litigants? Do you have any advice for young attorneys who have cases with pro se litigants? Probably about 50 percent of the cases that I oversee have a pro se party. The larger providers are usually represented by counsel, but some of the smaller providers/clinics choose to represent themselves. The best advice I can give would be to
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have patience. I think it is very important that I am flexible with the procedure because obviously the pro se litigants do not have the legal experience and are not as familiar with the process or the laws, so a little procedural guidance is usually necessary. We have to remember that the objective is to ensure that due process is served and a fair and just outcome is reached, regardless of whether the provider is represented by an attorney. With the enactment and amendments of the Medicaid Fairness Act, the General Assembly clarified its intent that providers have the right to fair and impartial administrative appeals. The right of appeal is to be “liberally construed and not limited through technical or procedural arguments.” Ark. Code Ann. §20-77-1704. The appeals are governed by the Medicaid Fairness Act (Ark. Code Ann. §20-771701, et seq), the Administrative Procedures Act (Ark. Code Ann. § 25-15-201, et seq), the Medicaid Provider Manual (Section 160.000, et seq), and DHS Policy 1098. Ark. Code Ann. §20-77-1704 sets out some guidelines for the hearings, providing: (c)(1) An ALJ shall be guided by the need to reach a just determination and may depart from strict adherence to the formal rules of evidence. (2) ALJ shall exclude irrelevant, immaterial, and unduly repetitious evidence. (3) ALJ shall receive oral or documentary evidence not privileged if the oral or documentary evidence is of a type commonly relied upon by a reasonably prudent person in the conduct of his or her affairs. When it comes to oral arguments in your courtroom, what do you expect from young attorneys? In some cases a party may file a Motion to Dismiss, for example, there may be an issue of whether the provider made a timely appeal or whether this office has jurisdiction of the appeal that has been filed. I always allow the attorneys to make oral arguments on these motions. I also encourage closing arguments at the end of an appeal hearing. The best advice I have for attorneys is to be prepared with citations to the law that supports your position. There are so many different sections to the Arkansas Medicaid Provider Manual and applicable statutes; sometimes, I may not be familiar with all of them. It is important to be prepared to give the ALJ the citations, including case law that supports your case.
What advice can you offer to young attorneys who might find themselves dealing with a difficult, or nonresponsive, opposing counsel? Use the statutory powers given to the ALJ. For example, if opposing counsel doesn’t respond to discovery, allow the ALJ to issue a discovery order. If dismissal is necessary, ask the ALJ for dismissal. How has the legal profession, based on your view, changed or evolved since you began practicing law, in terms of the style or manner in which attorneys interact with one another? Primarily, the use of e-mail for correspondence. We use e-mail correspondence quite frequently, especially with attorneys. It is a much more efficient way to communicate. Sometimes it does have its issues, but in emergency situations where you need an almost immediate response from attorneys it is much easier. Also the research aspect, it is amazing how far the research has advanced using online research sources. What was the primary reason that you decided to attend law school? Writing has always been one of my strongest skills, and it is something that I enjoy, which is why I majored in English. As I neared graduation, I struggled a little trying to decide what to do with an English degree. My dad suggested that I try law school. I knew I didn’t want to be a litigator, but after looking into it a little I decided that I could use my strengths as a writer in this field as well. What are your favorite aspects of being an ALJ? Just as I loved being a law clerk, I love hearing both sides of an argument, doing the research, and finding the correct result based on the law. I love how it all comes together when the decision is written. Jamie W. Gilmore is an attorney with the State of Arkansas, Office of the Medicaid Inspector General, a state agency charged with investigating Medicaid fraud, waste, and abuse. She can be reached at Jamie. Gilmore@dhs.arkansas.gov or (501) 5371586. ■
An Interview With
Judge Timothy Fox By Jamie Huffman Jones Originally published in the Summer 2011 issue of In Brief
Recently, YLS member Jamie Huffman Jones was given an opportunity to hear Judge Fox describe practice in his Court and learn the answers to the following questions: Q: What should a young lawyer not say to the jury? Judge Fox explains that if it is your first jury trial, you should not tell the jury! Doing so only undermines the confidence the jury has in your abilities. And, if you do tell the jury it is your first trial, Judge Fox advises that you have previously told your client. Judge Timothy Fox was born and raised in Little Rock, Arkansas. He received his B.A. in political science from Hendrix College in 1978 and his J.D. from the University of Arkansas in 1981. He subsequently practiced law for twenty-one years, representing individuals and corporations in a variety of litigated matters. In 2003, he was elected Circuit Judge of the Sixth Division of the Sixth Judicial Circuit (Pulaski County). In 2007, he was the first judge in the state of Arkansas to be awarded a Master in Judicial Studies from the joint venture between the National Judicial College and the University of Nevada at Reno.
Q: What is your judicial philosophy? Judge Fox now handles 100% civil cases. He explained that he believes “there are two general philosophical theories concerning civil jury trials. The first theory is that a civil jury trial is a quest for the truth. The second theory is that a civil jury trial is a purely adversarial proceeding governed by the rules of civil procedure and the rules of evidence, and perhaps in limited circumstances by the rules governing legal ethics.” Judge Fox’s philosophy is the second theory. Q: What is the jury told in orientation? Judge Fox advises lawyers to be familiar with what the jury is being told about the trial process. He explains: Attorneys are welcome to come to my jury orientations. Probably not a good idea to come sit with the venire panel if you have a trial during that four-month rotation but
any other time you are welcome. It might be helpful to know what they’ve been told about the process not just in my court but in any division or jurisdiction in which you have a jury trial. Judge Fox utilizes a two-segment orientation, which takes about an hour to complete. During the first part of the orientation, his deputy clerk and bailiff go over the basic housekeeping matters, such as calling in for service and parking. This takes about 15 to 20 minutes. Judge Fox does the remaining orientation himself. He explains the entire jury trial process including voir dire, opening statements, bench conferences, jury instructions and closing arguments. Judge Fox says, “I have found that jurors are much more forthcoming in answering voir dire questions if I have explained to them in orientation that each side gets three preemptory strikes and attorneys are asking questions not to pry or to be nosy but rather to discharge their professional responsibilities.” Judge Fox explains to the venire panel that they do not get to ask questions, and why, and the difference between opening statements and closing arguments. He emphasizes to the venire panel the importance of jury instructions, telling them that the “trial equation is testimony and evidence plus jury instructions equals verdict.” Q: How do you determine the number of days for which a trial is set? “In my court it is the plaintiff’s obligation to insure that sufficient days are allotted for 17
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IF IT IS YOUR FIRST JURY TRIAL, you should not tell the jury! Doing so only undermines the confidence the jury
has in your abilities.” —Judge Timothy Fox Circuit Judge, Sixth Division, Sixth Judicial District
the case to be fully tried. I don’t tell attorneys how long it will take them to try their case, but however many days they request are all that trial will be allotted. The litigants in the case set for the next day’s docket may have waited a year or a year and a half to get their day in court and they have a right to go to trial as scheduled.” Q: Do you issue scheduling orders? Judge Fox issues scheduling orders for all multi-day trials. Scheduling orders, according to Judge Fox, “assist attorneys in being ready for trial on the scheduled date(s) by providing external preparatory framework and to more efficiently utilize the docket days available for civil jury trials.” Where there are more than two days of trial requested, he includes a mediation requirement. If a party believes mediation would be helpful, he would be open to including a mediation requirement in the two-day scheduling order. He is considering adding an expert disclosure deadline to the scheduling order given experience in recent cases. Q: Do you enforce your scheduling orders? “My general position is the failure to disclose witnesses or exhibits if required by the Scheduling Order means those witnesses and/or exhibits will not be used during the trial.” Q: Can the attorneys modify your scheduling order? “I generally advise attorneys that if they wish to enter into modifications of the Scheduling Orders between themselves that is up to them, but that I am not modifying the Scheduling Order or sanctioning such agreements, so they better know who they’re dealing with because if there is a dispute as to any agreement I will be strictly enforcing the Scheduling Order deadlines.” Q: What is a trial day like in your Court? Attorneys will meet with the judge in chambers at 8:30 a.m. Judge Fox describes
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the remainder of the day: I also feel very strongly that jury trials should not be an endurance contest. We start with the jury promptly at 9:00 a.m., take one mid-morning break, one midafternoon break, and an hour for lunch. If the case is a one-day case, we stay until we get it done, however late that may be. But on multi-day settings I let the jury go at about 4:30 p.m. to 5:00 p.m., except on the last day, when we stay however late as is necessary to finish. Information overload sets in after a full day in the box and most are used to working a regular work day. Letting the jurors know that their evening activities will not be adversely impacted not only makes it easier to seat a jury but I believe leads to a more attentive panel for the time they are in the box. Lawyers should be prepared to work through the lunch hour so as to efficiently use the jury’s time. Q: Should my client come back to chambers with me? Yes, Judge Fox responds. “Clients are always welcome in chambers, it is after all their case, and we are only in chambers to be outside the presence of the jurors and witnesses.” Bringing your client with you to chambers only furthers the client’s understanding of the process and the court rulings. Q: How do you want jury instructions? Jury instructions should be tendered to Judge Fox in both hard copy and electronic Word format no later than 9:00 a.m. on the business day preceding trial. Judge Fox warns, “failure to comply with such requirement may result in removal of the trial from the jury trial docket.” Q: How do you conduct voir dire? Judge Fox first announces the case and asks the attorneys if they are ready for trial. He then welcomes the potential jurors, tells them how many days the case is set for, and that he is going to call the first eighteen
names. He reminds them that “there are no right answers or wrong answers just that the attorneys need information in order to intelligently utilize their preemptory strikes.” Attorneys should not waste time by calling for responses from those seated in the galley. Judge Fox further explains the process: I then give the jurors a very brief description of the allegations of the parties, introduce the attorneys, the parties, and identify all of the possible witnesses. I ask them if there is any reason they are unable to serve as jurors and about any prior jury service. My involvement in voir dire is minimal as I prefer to leave the questioning to the attorneys. In the event the case involves extremely sensitive matters such as sexual abuse I will often ask the questions on those subjects myself. I do this to relieve the attorneys from having to be the heavies on those issues and because those are the type of questions the jurors will raise their hands to ask to approach the bench to answer. I let them sit in the witness chair and give me their answer. If the answer clearly constitutes cause to strike I release the juror, then call the attorneys to the bench and advise what the answer was and that I have excused the juror for cause. If the answer does not reach the “for cause” threshold I send the juror back to their seat, have the attorneys approach the bench and give them the answer to use in making their preemptory strike decisions. Q: How do you rule on motions in limine? “I have three rulings I use to resolve motions in limine: granted, denied, and denied without prejudice. The attorneys who practice regularly in front of me know ‘denied without prejudice’ is a shorthand I use to advise them I believe the subject matter of the motion is not suitable for disposition without hearing the testimony or evidence.” Jamie Huffman Jones is a partner with Friday, Eldredge & Clark. Her practice focuses primarily on the defense of class actions, business, commercial disputes, and FELA litigation. She can be reached via email at jjones@fridayfirm.com. ■
An Interview With
Judge Brad Karren By Josh Mostyn Originally published in the Fall 2013 issue of In Brief
Judge Brad Karren is a Circuit Court Judge Division 2, Nineteenth Judicial Circuit West.
SOMEWHERE ON EVERY NEW LAWYER’S TOP TEN LIST OF THINGS TO DO ON THEIR FIRST DAY IN COURT (after “get justice for client” or perhaps even before “remember to address the judge as ‘Your Honor’”) is “TRY NOT TO LOOK LIKE A COMPLETE IDIOT.” That’s a tall order for some of us! Hopefully this helps. Although every judge is different, it is not necessary for a young lawyer to learn each judge’s idiosyncrasies to be successful in the courtroom. It helps to know a thing or two about how each court is run, but you can’t be expected to know everything on day one. A young lawyer—any lawyer for that matter— should know his or her own limitations. To improve, keep studying the law and don’t be afraid to ask for help. And never, under any circumstance, jeopardize your integrity. These are some of the pointers I picked up from Benton County Circuit Judge Brad Karren. I had the chance to sit down with the former Rogers District Court Judge and find out what he believes will help new lawyers begin their careers on the right foot in court. Me: What advice would you give to a young lawyer appearing in your courtroom for the first time? Judge Karren: I’d say to be prepared. That may sound broad, but I mean it in a broad sense. I’m not suggesting that you have to know every single detail of a client’s life story or interview all the witnesses before arraignment in a criminal matter, but be prepared as in speak with the client ahead of time and
know why you’re in court. I want lawyers to have checked out the file, to have reviewed the P.C. Affidavit, and to have advised their clients of their constitutional rights before coming to court. The last thing you want starting out is a Rule 37 Petition. Me: Remind me again please. What’s a Rule 37 Petition? Judge Karren: Ineffective Assistance of Counsel. Try not to commit malpractice on your first day, Josh. (Laughs). Seriously though, it’s going to take time to earn respect and gain experience…but only a moment to lose your integrity. Don’t do that. Develop a process for client intake and make it a habit. In criminal cases, judges ask whether counsel has reviewed the facts of the case with their client and advised the client of his constitutional rights. A lawyer looks really dumb when he answers “yes” while the client shakes his head “no.” Me: Excellent. This is what I’m here for…tips not to look stupid. So what happens in a situation like that? Judge Karren: I ask the lawyer to take his client out of the courtroom and talk. And I expect that to never happen again. Good luck to that lawyer trying to get a judge to sign off on a TRO in the future once word of his reputation gets out. Lawyers need to keep a reputation for truthfulness to be trusted by any judge. Me: So, hypothetically, if a new lawyer finds himself in that situation, where you ask a question and he should have spoken to his client 19
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CIRCUIT COURT IS MORE LIKE A REAL CAR CRASH. People can get hurt. People don’t just “go home.” What
you do as a lawyer has a longer lasting effect. Mistakes you make will affect your clients’ lives much more. It’s important to stay on top of your game and to stay current on the law. It’s what your clients expect, and it’s what the judges expect.” —Judge Brad Karren Circuit Court Judge, Division 2, Nineteenth Judicial District West
about it already, what should the lawyer do? Judge Karren: Ask the court for time to confer with the client. You may get moved down the docket, but you won’t be a liar. Of course it’s best to refresh yourself on the basics before ever going to court. Me: So what are the basics? Judge Karren: Depending on what court you’re in, know things like what’s needed for a search warrant to issue, Rules 609, 404(b), 401, and 403. Know what constitutes a proper 3.1 stop. Know what you need in a Motion for Summary Judgment or how to propound interrogatories. If you’re in a suppression hearing for an improper search, understand what constitutes a proper one. Me: Any other basics we should be aware of, pertaining to the particular court maybe? Judge Karren: Take the time to find out the court’s rules. Just call the clerks and ask. I’ve seen a lot of lawyers wasting time coming to court needlessly. In my court, you can waive an appearance to certain things by fax. You don’t need an Omnibus hearing? Fax it in. We’ll even allow lawyers to appear telephonically. You’ve got another hearing across town? Call in. Not every court utilizes the same technology that we do, but learn what’s allowed and you can save a lot of time and energy. Me: You practiced in both the District Court and the Circuit Court, and now you have had time on both benches. What would you say is the biggest difference for lawyers practicing in each court? Judge Karren: There’s a lot alike. Both courts use the same Rules of Evidence, Criminal Procedure, Civil Procedure, etc. But in Circuit Court, the consequences are more severe. You can think of District Court as the bumper cars at the fair. You get in, and there’s a lot going on all around you. It’s exciting, there’s a bunch of
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noise, and you’re bumping into one another. But when it’s over, everyone goes home. Circuit Court is more like a real car crash. People can get hurt. People don’t just “go home.” What you do as a lawyer has a longer lasting effect. Mistakes you make will affect your clients’ lives much more. It’s important to stay on top of your game and to stay current on the law. It’s what your clients expect, and it’s what the judges expect. Me: How should a new lawyer stay on top of his game? Judge Karren: Well you’ve got to get a game first. Take as many District Court cases as you can while starting out. Build that practice. Learn what you’re doing at the “DC” level doing misdemeanors. If you have a good “DC” practice, you’ll do fine in Circuit Court. It’ll take time to get experience and to get comfortable handling even the smaller cases. Then move up to Circuit.
Me: So what about the new-ish lawyer who finds himself in Circuit Court for a civil matter or takes a felony case to keep the lights on? Judge Karren: It’s always tempting to take a big case. You’ve got to get a little experience first. You can’t take a capital murder case right out of the gate. And you shouldn’t attempt to. But you also have to move up sometime, right? Start out with less complex cases to get your feet wet. Do some default divorces. And if one turns out to be contested—as they tend to become sometimes—then ask other attorneys in the local Bar for help. Benton County has a great Bar. There’s always someone willing to help out a young lawyer. A great way to learn the criminal side is to get certified by the Arkansas Public Defender Commission and become a conflict attorney. You can be appointed to cases when the PD’s office is already handling a co-defendant. Me: I also hear the Arkansas Bar has implemented a mentorship program. Judge Karren: Do it. Definitely get a mentor. Get to know as many other lawyers as you can and ask for help. The only thing a lawyer loves better than telling you how they handled a case is telling you how you should handle your case. JOSH MOSTYN co-founded Mostyn Prettyman, PLLC, in Northwest Arkansas, and handles both civil and criminal matters. He is a past recipient of the TC & Rosemary Carlson Memorial Award at the University of Arkansas School of Law in Fayetteville. ■
An Interview With
Judge Mary Spencer McGowan By Megan E. Wooster Originally published in the Winter 2014 issue of In Brief
Circuit Judge Mary Spencer McGowan currently presides as the Sixth Judicial Circuit Judge, Ninth Division, in Little Rock, Arkansas. She is a Shawnee, Oklahoma, native who has resided in Arkansas for the majority of her life. Judge McGowan received her B.A. from the University of Texas. Thereafter, she worked for the Congressional Research Service in Washington, D.C. Although she contemplated attending law school at Georgetown University, Judge McGowan ultimately decided to return to the South, where she attended law school at the University of Arkansas School of Law in Fayetteville, Arkansas. After graduating from law school, Judge McGowan accepted a federal clerkship position for a U.S. District Judge, which sparked her interest in the judicial system. Judge McGowan’s strong interest in politics and desire to serve her community influenced her decision to run for judicial office. After a successful judicial campaign, Judge McGowan was elected to the bench in 1990.
Are there frequent mistakes that you observe young attorneys making in your courtroom? Why do you believe young attorneys are making these mistakes? Theory of the Case: Young attorneys are not spending enough time developing the theory of their case. In other words, young attorneys are not developing the story that they are trying to convey. Young attorneys should not come to court and expect to only elicit testimony from witnesses. Young attorneys need to spend adequate time considering their client’s goals and developing a plan to achieve those goals. Young attorneys need to feel comfortable explaining to their clients that, “you are not going to get everything you want,” if that is the likely outcome. Young attorneys need to remember that they are counselors at law; communicating potential outcomes to clients is part of the counseling aspect of being an attorney. I feel that the counseling aspect of being an attorney is often overlooked. Similarly, I feel that law schools do not spend adequate time training law students how to counsel their future clients. Art of Persuasion: I also believe that young attorneys are not actively crafting the art of persuasion. Young attorneys can be effective and persuasive without being overly aggressive or disrespectful. I have observed young attorneys being disrespectful and aggressive with witnesses, opposing counsel, and the court. I feel that the skill of persuasion is not being taught in law schools. I believe that young attorneys’ lack of skill
and knowledge combined with the pressures they are under can result in aggressive behavior. This combination of factors ultimately makes the young attorney less effective in the courtroom. Objections: Young attorneys are often unable to state a basis for their objections. It is common for a young attorney to say, “objection,” but then when I asked the basis for the objection, the young attorney is unable to provide a basis. The “relevancy” objection is the objection that young attorneys most frequently state when they are uncertain of the grounds for the objection. There must be proper grounds for an objection to be made. I have rulebooks available in my courtroom for reference. As a young attorney, it is better to be prepared for trial. If you need to bring a rulebook or checklist with you so that you can remember the available objections, do it. Also, it is important to remember to stand up when you are making an objection. Young attorneys often fail to stand up when they address the court. When addressing the court, it is proper to stand up to show respect for the court and so that the judge can clearly hear your voice. Seasoned trial lawyers are able to effectively use objections to interrupt the flow of damaging witness testimony or to distract the jury; however, to use this trial tactic, you need to have years of experience and be certain that you know exactly how to effectively state the applicable objection.
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BE PATIENT. Experience will enhance your legal abilities.
Try to learn the rules of evidence and civil procedure forwards and backwards because the rules provide a complete foundation of the skills necessary to practice law.” —Judge Mary Spencer McGowan Circuit Judge, Ninth Division, Sixth Judicial District
Often, young attorneys struggle with maintaining a professional and personal life balance. Do you have any advice for young attorneys who are struggling with this issue? It is important to know your priorities. My priorities are my faith, family, and occupation. You have to be able to leave your work at work. It has always amazed me how attorneys are able to work directly with their spouse in the same law office. Do you have any advice for young attorneys who have cases with pro se litigants? My advice is for young attorneys to set a hearing in these types of cases. It is difficult to negotiate with pro se litigants because they are not familiar with the legal process. Let the court handle the pro se litigants. That being said, I would say that the hardest part of being a trial judge is dealing with pro se litigants because they do not understand that we cannot assist them. I usually advise all pro se litigations to retain an attorney; however, the majority of pro se litigants cannot afford an attorney. How would you advise a young attorney to deal with a difficult, or nonresponsive, opposing counsel? I would advise the young attorney to first attempt to address the issue with the opposing counsel. Usually, a telephone is an easy way to resolve any potential misunderstandings. At the beginning of a case, attorneys who have never worked together before should pick up the telephone and call one another to reduce the unknown and to be more personable with one another. A telephone call can help make the working relationship more personal and reduce future conflict. If opposing counsel is being completely nonresponsive, I would suggest contacting the court to schedule a conference call with opposing counsel. Typically, attor-
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neys respond to contact from the court. How has the legal profession, based on your view, changed or evolved since you began practicing law, in terms of the style or manner in which attorneys interact with one another? I believe that interaction between attorneys has changed significantly since I entered the legal field. I think that the change has resulted, in part, from the proliferation of lawyers. When I was a young attorney clerking for a federal judge, I knew every attorney in Little Rock, Arkansas. At that time, practicing attorneys were familiar with one another. Not only did you know the attorney personally, but also you knew the attorney’s areas of expertise. In other words, you knew that you would likely be working with an attorney again in the future. In the “old days” it was common for attorneys to be fast friends or to grab a drink together after a trial. It is crucial that attorneys do not take their cases personally. An attorney should advocate for his or her client to the best of his or her ability, but, at the end of the day, regardless of the case outcome, an attorney should be able to shake hands with opposing counsel. Do you believe that the advancements in technology have affected how attorneys interact with one another? Yes, definitely. With instantaneous communication, such as email and text messaging, attorneys can easily make the mistake of communicating a reactive, negative sentiment without analyzing the consequences of the correspondence. Before technological advancements, attorneys would have been forced to write a letter, possibly an aggressive reactive letter, to opposing counsel to address an issue. The act of writing a letter allowed the attorney time to reconsider whether it was appropriate to send the letter. Today, with emailing and text messag-
ing, you cannot recall the message after you select “send.” The message cannot be retrieved, and the damage is done. It is extremely important for attorneys to spend adequate time thinking about the message they intend to communicate, instead of reacting too hastily. How has your caseload changed since you initially took the bench? I have a varied docket. When I initially took the bench, I was a Circuit Chancery Judge. In 1996, I took on the task of developing the drug court in Pulaski County, Arkansas. This program has been very successful in reducing the recidivism rate of drug offenders. Also, I preside over a Veterans Treatment Court which is a Drug Court for Veterans. Currently, I hear all types of cases: criminal, civil, domestic relations, and probate cases. I also hear the same types of cases in Perry County, Arkansas. I enjoy the variety of cases. I also like it when attorneys are good trial lawyers; it keeps my job interesting. I love the stories and the drama.
Do you believe that it is appropriate for a young attorney to ask questions about judges on email distribution lists or Internet public forum? It depends. Asking a general question, such as, “Does Judge McGowan typically receive testimony from children?” is appropriate. I do not think it is appropriate to ask questions or make comments that pertain to the behavior of a specific judge. I think that the best advice is to err on the side of caution because you do not know how your comment or question will be perceived or used in the future. Ask yourself, if you would feel comfortable contacting the judge’s law clerk and asking the question. If the answer is “yes,” then your question is probably an appropriate question. For the purposes of sharing information, I believe distribution lists and Internet public forums can be helpful for young attorneys. Would you mind if young attorneys observed court in your courtroom? Do you believe courtroom observation is beneficial for young attorneys? I would encourage young lawyers to contact courts and request whether they can
observe trial. Young attorneys should call the court to express their interest to observe. The court can inform the young attorney of the upcoming hearings and confirm whether the hearing may be observed. It is best to call the day before a scheduled bench or jury trial to confirm that the hearing will be held. Observation is a great tool for young attorneys. Observation allows young attorneys to learn different lawyering styles, how different courts internally operate, and how the jury or judge reacts to specific arguments, communication styles, and trial tactics. It is important to remember that not all courts operate identically. Today, the state of the legal economy has an impact on the observation opportunities that are available to law students, and to young associates, working for law firms. To explain, in the past, it was common for multiple attorneys to attend a trial. There may have been a first chair, second chair, and third chair attorney on any given case. I believe that billing pressures, the state of the economy, and a proliferation of lawyers play a role in limiting the observation opportunities available. Today, law firms cannot af-
ford to have multiple attorneys or law clerks attend hearings for solely observation purposes. Law students should take advantage of their clerkships by requesting to observe trials without compensation. Young attorneys should reach out to courts to request to observe hearings. The knowledge gained from courtroom observation is priceless. Do you have any final words of wisdom that you would like to share with young attorneys? Be patient. Experience will enhance your legal abilities. Try to learn the rules of evidence and civil procedure forwards and backwards because the rules provide a complete foundation of the skills necessary to practice law. Young attorneys need to spend time thinking about how to apply the applicable rules and case law to their everyday law practice. I would suggest that young attorneys attend useful continuing legal education courses (“CLEs�). I believe that the most useful CLEs are those that address topics, such as discovery issues, practice skills, and civil procedure. Also, it is important to remember that it is far more difficult to earn
a living in the legal field today than it has ever been in the past. Young attorneys cannot graduate from law school and expect to only work an eight-hour workday. It takes time and dedication to develop legal skills and become acclimated to the practice of law. Television shows create a misconception about the legal profession and the time commitment required to be a successful attorney. Law schools and active bar members need to develop programs to educate future lawyers so that they have realistic expectations. That said, the practice of law is an honorable profession and one that will reward those who have chosen to pursue it. Megan E. Wooster is the owner of M.W. Law, PLLC, a domestic relations litigation firm, in downtown Little Rock, Arkansas. She can be contacted at (501) 3723700 or megan@mwlawpllc.com. â–
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An Interview With
Judge Mackie Pierce By Beth Burgess and Tom Buchanan Originally published in the Summer 2011 issue of In Brief
Beth Burgess: What drew you to the practice of law? Judge Mackie Pierce: Well, I’m colorblind, so I couldn’t be a pilot. I found that out at an early age, so I decided to be an attorney instead. My Grandmother Pierce always thought that I should be an attorney, so she always encouraged me to do that. I always liked government, history, and politics. I was just naturally drawn to it.
Judge Mackie Pierce is a Circuit Court Judge in the 17th Judicial District. The 17th Judicial District includes Perry and Pulaski Counties. Judge Pierce grew up in Pulaski County, outside of Jacksonville. He received his B.A. in Political Science and his law degree from the University of Arkansas.
Tom Buchanan: After law school, what drew you back to Central Arkansas? MP: I came back to Central Arkansas after law school in 1980 and clerked for Judge Lowber Hendrix for about nine months. I had always wanted to return to my home town of Jacksonville and practice law. I received an offer in Jacksonville and went into private practice with Ben Rice and Robert Batton in 1980. BB: What areas of law did you deal with in your law practice? MP: It was just a general practice—we pretty much covered everything from A to Z. I did some criminal work; Judge Hendrix had gone to a criminal docket while I was there, and I really liked that. We also handled civil cases, domestic relations, real estate and probate cases. In 1991, I left the Rice Law firm, and opened my own firm. I took over the practice of an attorney, Les Mattingly, who had become an Administrative Judge for Social Security. I was there from June of 1991 through December 31, 1998. BB: What went into your decision to run
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for Circuit Judge? MP: When I was a clerk for Judge Hendricks, it was something I thought I wanted to do someday. My goal was to practice law for 20 years and then get elected to a judicial position. I practiced law for 19 years before I was elected, so it worked out. TB: Has your case load changed since you were elected to the bench? MP: I was elected as a Chancellor, before Amendment 80 went into effect, so I originally handled equity and probate cases. Now I still handle domestic relations and probate matters, but I also have a civil mix. I now have law and equity cases. BB: What do you most enjoy about being a judge? MP: I enjoy the work. I enjoy the cases that are tried; it is so very interesting to me. I like to think I am good at what I do; that I reach a fair and proper decision in a majority of my cases. I enjoy seeing good attorneys try cases. I have a great staff. I enjoy working with them. They make my job and my life much easier than it could be. It’s just a great challenge, and I enjoy coming to work every day. TB: What advice could you provide to a young attorney who is to appear in your Court? MP: 1) Be prepared. 2) Know what it is that you want to achieve or what your goal is. 3) Understand what your burden of proof is. 4) Always conduct yourself as a lady or a gentleman in the courtroom. 5) Be familiar
with the Rules of Civil Procedure and Rules of Evidence before you come in to try your case. TB: What are some common mistakes you see young attorneys make in your courtroom? MP: I see attorneys, and not just young attorneys, who are ill-prepared, who have no idea what their burden of proof is when they present their case. One example that comes to mind is in a probate case, if you will look at the Probate Code, it will generally spell out for you what it is that you need to do—whether it is a guardianship, an adoption, a decedent’s estate, whatever the case may be—and it’s amazing to me that there are a lot of attorneys who never even bother to open the Code before they walk in the courtroom to have a hearing. There are attorneys who don’t understand what their burden is or what they are trying to accomplish in the case they are trying. I think there is a common misconception that anyone can try a domestic relations matter. Anyone can, but you need to know what you are doing. It is different from a motion for summary judgment, or a civil dispute. I would say lack of preparation is the biggest mistake I see. Not being familiar with the latest case law is the second biggest mistake. TB: In terms of feedback that you have received after jury trials, what are some complaints or frustrations jurors have with attorneys that you can share with us? MP: One complaint is that attorneys waste juror’s time too often, and that attorneys talk over their heads instead of talking to them as peers or equals. That’s a major complaint that I’ve heard over the years—that we waste a lot of juror’s time in trying a case. It is hard for an attorney because that attorney doesn’t necessarily know what the juror is looking for a lot of times. It comes back to a focus on the part of the attorneys as to what they are seeking to achieve with a jury or a judge, and keeping that in the front of their minds throughout the process instead of getting overwhelmed by all the details and tending to spew everything out there for the jury. BB: When it comes to oral arguments in your courtroom, what do you expect from attorneys, especially in cases that may have voluminous pleadings? MP: The first rule I would urge any young lawyer to follow is to keep in mind what the word “brief” means. It means short and
concise. If you submit a 30-page brief to me, I’m going to look at it; I’m going to read it. However, I am going to be able to do a better job when looking at a three to five-page brief than I am with a 30-page brief. There are very few cases where you can’t just hone down your argument to the basic issues that you need the Court to decide or consider. I understand that with some things there are often a lot of issues to decide. I try to read any motion or brief that is submitted. I urge all attorneys to send a copy of their pleading to my office prior to the hearing on the matter. Just because you file something with the clerk’s office doesn’t necessarily mean that the judge is going to get it in a timely manner, so I encourage attorneys to make sure my law clerk has a copy well in advance so that I can consider the arguments. If you come in on the day of oral argument, and I haven’t had the chance to read your pleadings yet, I’ll tell you, and I won’t make a ruling until I’ve read the material. But it just delays my ability to make a decision for you that much longer if you don’t make sure that I have received the pleadings in advance of the hearing. Also, I don’t need attorneys in oral arguments to go back through their briefs point by point or line by line. Just go back and hit the high points. Tell me what it is that you want me to consider, the relief that you want, and I can look at the brief and apply the law. It is not necessary for attorneys to spend an hour reciting what took them several hours to prepare in a multipage brief. Attorneys should never cite a case in support of an argument or point when it in fact does not. You lose all credibility with the court when you do that. I’ve been amazed a few times at the attorneys who will cite some law that simply does not apply to the case at hand. It’s disappointing because either the attorney has misread the case, misapplied the case, or is willfully attempting to mislead the court. TB: We handle civil cases and find ourselves spending the majority of our time dealing with discovery disputes. What advice do you have for attorneys on how to deal with the discovery issues that seem to inevitably come up in bigger, more complex cases? What are you looking for from your side of the courtroom because we’ve found that it is no longer the exception to have a discovery issue; it’s really become standard practice. MP: My least favorite activity is dealing with discovery disputes. It is the biggest waste
of the court’s time. I have very little patience with discovery disputes because the rules of discovery are pretty clear. There is very little that is not discoverable. If the information sought is proprietary or confidential, then draw up a protective order. I will gladly sign it. I don’t understand most discovery disputes. A lot of discovery disputes are just the result of the parties not cooperating, not willingly giving up information everyone knows is discoverable. I will grant a request for attorney’s fees and costs sometimes in these disputes, and if there is a willful failure to comply with an order to compel discovery, I’ll strike answers, or dismiss complaints. BB: So what advice can you offer to attorneys who find themselves in the midst of a discovery dispute? MP: I encourage everyone to keep fighting for everything to which they believe they are entitled—whether you are plaintiff’s counsel or defense counsel. The problems with dealing with discovery—I think it is a game that some people play. I just don’t have a lot of patience for these types of disputes. TB: How has the legal profession, based on your view, changed or evolved since you began practicing law, in terms of the style or manner in which attorneys interact with one another? MP: I believe that the practice of law has become more of a business and less of a profession. I can’t say that all the changes I’ve seen have been good. There is much less good will, trust, and professionalism amongst lawyers than there was 30 years ago. TB: How do we get back to the way practicing law used to be? MP: A lot of people have the perception that in order to be a successful attorney, you have to be a go-for-the-throat, no-holdsbarred, win-at-all-costs type of attorney, and I think that’s wrong. It’s a small world in which we as attorneys and judges live. Attorneys need to remember that what goes around comes around. A little good faith and fair dealing can go a long way. Tom Buchanan is the Managing Member and Beth Burgess is an Associate Attorney at the Law Office of Thomas G. Buchanan in Little Rock, where their primary focus is on personal injury litigation for plaintiffs. ■. 25
An Interview With
Judge Richard D. Taylor By Lydia Whetstone Originally published in the Winter 2011 issue of In Brief
Judge Richard D. Taylor is the Chief Judge for the United States Bankruptcy Court for the Eastern and Western Districts of Arkansas.
As the Chief Judge for the United States Bankruptcy Court for the Eastern and Western Districts of Arkansas, Judge Richard D. Taylor sees the best and the worst in litigation. Judge Taylor’s time in private practice and on the bench has taught him that preparation and effort are key in making a good impression before any judge. The following are answers Judge Taylor provided to my questions that I thought many young lawyers would like to ask him. Where did you go to college and law school? Centenary College of Louisiana. Then, U of A Fayetteville for law school. Why did you decide to go to law school? From grade school on, I thought I’d go to law school. It just always appealed to me for reasons not fully known. Then, I took the LSAT and scored about what you’d get for spelling your name correctly. I took that as a sign and sat out a year. A friend of mine from Centenary went on to Fayetteville and told me I’d like it up there. So, I applied and got in. Ultimately, law school was the right decision. I just wasn’t sure after the LSAT debacle. Where did you decide to practice after you graduated from law school? Friday, Eldredge and Clark kindly offered me a job, and I’ll always be grateful for the time I spent there. How did you end up practicing bank-
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ruptcy? I was hired to work with bank clients, mostly loan documentation and usury opinions. The new code had just gone into effect, and I had taken David Epstein’s bankruptcy class during my last semester. So, a partner asked me to get more involved in bankruptcy. It was a natural complement to my bank work, and I liked that it involved both litigation and transactions. How did you decide to become a bankruptcy judge? The bankruptcy bar knew that two positions would be opening up in early 2000. Judge Fussell encouraged me and several others to apply. Frankly, that’s when I started thinking real hard about the position and my prospects. My biggest concern, in addition to the selection process, was trying to think through how I should handle the job if selected. What do you enjoy the most about being a judge? I like the satisfaction of, hopefully, doing the task correctly and in a manner consistent with how a court should properly administer justice. We have a great justice system, tempered by a lot of factors, not the least of which is human frailty. I hope I can contribute to the system by mitigating frailty with preparation and attention to both the law and the facts. What do you expect from the attorneys that come before you in court? That is a rather interesting question. Licensed attorneys have a great deal of latitude and discretion in how they represent their clients. Good lawyers
work harder, frame the issues well, give better advice and counsel, know when to settle, are prepared, better articulate the facts, and argue persuasively. Additionally, good lawyers recognize that there are significant areas of common interest, even in the most litigious case. In those instances, good lawyers, because they are competent and trusted by the other side, achieve better results for their clients. As a judge, I take what they bring me. I certainly hope that lawyers appear in court well prepared and ready to present their case. I also have the reasonable, and in fact enforceable, expectation that they will conduct themselves in an appropriate manner while in the courtroom. I cannot, however, cure any deficiencies in the preparation of their case and can rule only on the facts and issues presented. Is there a code of conduct bankruptcy attorneys expect from the other lawyers they work with? Yes. Bankruptcies frequently present cases where mutual selfinterests are sharply juxtaposed against specific and discrete areas of dispute. More often than not, the parties recognize the statutory requirements of the code and can substantially agree on their treatment in a plan. But, there may remain specific areas that need to be resolved by the court. Given the amount of mutual self-interest, bankruptcy lawyers depend a great deal on the trustworthiness of opposing counsel. Bankruptcy proceedings frequently involve accelerated hearings with little or no discovery. The lawyers work with each other and cooperate on matters of discovery, exhibits, and trial presentation. The bankruptcy bar is a small fraternity, and how they interact with each other is extremely important and can have a significant positive or negative effect on your practice and ability
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LEARN FROM YOUR MISTAKES; just don’t make them from a lack of effort or willingness to prepare for a
hearing. Watch other trials, see what other lawyers do (good and bad), ask questions, and develop a comfort level in court. It comes with time, and you’ll be fine. “ —Judge Richard D. Taylor Chief Judge for the United States Bankruptcy Court for the Eastern and Western Districts of Arkansas.
to adequately represent your client’s interest. What are some of the biggest mistakes attorneys make when appearing in your court? Every court wants a legal path to do as you ask. Be prepared with the specific legal basis and the appropriate elements for the relief you are requesting. A good opening defines and frames what the court is about to hear. Your fact finder should not have to struggle to know what your case is about, and a good opening is very much appreciated. And never say, “I don’t do bankruptcy.” Admitting malpractice is not your best opening move. How would you advise a lawyer to deal with a difficult client and/or opposing counsel? Be direct, stay on top of them, be absolutely in charge of your emotions, letter them up if you have to, and, if necessary, fire the client. Same with difficult counsel except you can’t fire them. You can, however, stop trusting them, do everything by the book, and take the higher—and sometimes more difficult—road. Remember, each client is in it for the short-haul; you are in it for the long-haul. Do not let a bad client pull you
down and do not let a bad lawyer turn you into somebody you are not. Is there any advice you would like to give to young lawyers that are appearing in court for the first time? Yes. We know it’s your first time—at least in front of us. No need to apologize or tell us that you are brand new. Most judges have no interest whatsoever in embarrassing you. We have all been where you are now. What I’m looking for is preparation and effort. Bankruptcy, like a lot of other areas of the law, is difficult. I am absolutely confident that you will make mistakes, just like me and every other lawyer out there. Learn from your mistakes; just don’t make them from a lack of effort or willingness to prepare for a hearing. Watch other trials, see what other lawyers do (good and bad), ask questions, and develop a comfort level in court. It comes with time, and you’ll be fine. Lydia Whetstone is an attorney advisor for the Social Security Administration’s Office of Disability Adjudication and Review. n
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An Interview With
Judge Rhonda Wood By Chris Burks Originally published in the Summer 2011 issue of In Brief
Judge Rhonda Wood was elected in 2012 to the Arkansas Court of Appeals. At the time of the interview, she was a Circuit Court Judge in the 20th Judicial District. She is married to Dr. Michael Wood and they have 4 children. She graduated from Hendrix, magna cum laude with a degree in Politics, awarded with distinction. She received her law degree from the UALR Bowen School of Law with highest honors and was named the Arkansas Law Graduate of the Year by the Arkansas Bar Association and received the Top Score on the Arkansas Bar Exam.
Chris Burks: Thanks for sitting down for the interview, Judge! To start, what are key points of lawyering you look for in civil proceedings; brevity, clarity, concise factual statements from witnesses? Judge Wood: I am honored to have this opportunity to reach out to the Young Lawyers. Preparation, preparation, and preparation. It sounds simple, but know what you have to prove going in and then prove it. You don’t need to do any more or any less, both extremes are flawed. CB: What is the best advice you can give young lawyers who appear in trial court? JW: First, investigate the judge before you appear the first time. Visit with the trial assistant, law clerk, and local attorneys about their experiences. Second, have confidence. There can be a misperception that the more seasoned attorney has the advantage. I do not find this to be accurate and you should never feel intimidated. I have yet to find a required element in any cause of action that prescribes: “and the lawyer has practiced longer than the other lawyer.” In medical school residency they often say “watch one, do one, teach one.” Legal practice is very similar. CB: Often we’ll see seemingly small civil cases be passed down to young lawyers because of their complexity as to one particular issue or problems with a client. What advice do you have for a young law-
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yer who gets such a ‘problem case’ handed down to them? JW: Always be cautious before taking a case after previous lawyers have disassociated with it. These clients need representation, but you must be diligent to fully understand the reason for a change in representation. You do not want past issues repeated. Often, these cases can be very rewarding in the end because of the obstacles you have overcome. CB: With increasing filings in certain practices areas, including foreclosure and bankruptcy, what advice do you have for young attorneys about managing these high volume practices effectively? JW: If lawyers are working in these areas, then they either need to have great organizational skills or have a trusted employee that has these skills. Your staff can make you or break you. Lawyers have to determine their strengths and weaknesses. Focus your time on your strengths and hire someone to manage your weaknesses. CB: With the advent of e-filing, practice management techniques will become increasingly key to managing a caseload. What advice do you have about techniques such as paperless offices? JW: I am thrilled that we are moving to e-filing in the state of Arkansas. E-filing will change the way all of us function. If you practice in counties that are in line for e-filing, then I recommend you begin imme-
diately to develop your new case management system. For instance, service of pleadings will be electronic through an e-mail notification system. If you start planning and developing the systems, you will be ready and comfortable when it begins in your area. My office has slowly moved towards a paperless environment and it’s difficult. I can only relate it to one lent season when I tried to give up french fries. The withdrawls were horrible, but I came through it a better person in the end. Perhaps the Young Lawyers might consider a CLE on new case management techniques in light of these changes (hint hint). CB: Civil litigation is often tied up in discovery disputes, what advice do you have for young lawyers who want to efficiently proceed through discovery in a way that benefits their clients? JW: The rules do mandate you attempt to work out discovery disputes with opposing counsel prior to contacting the court. This should be substantive. Every attorney will have a time arise where the attorney will need an extension from another attorney. Keep this in mind and try to be reasonable regardless of which side you find yourself on. In addition, you will never get the perfect answer to everything you want from Interrogatories. You will have to conduct a deposition and a deposition is your friend. CB: For young attorneys who may take on juvenile or domestic relations cases, these cases can seem to drag on for some time. What advice do you have for getting clients a resolution to their problems fairly and efficiently? JW: The most difficult aspect is giving your clients reasonable expectations from the start. It is not helpful to promise a full moon and then six months later try to sell the half moon as the best outcome. It’s also important in these cases to convince the parties that they have to set aside past hurts and focus on moving forward. Until the parties are ready to move forward with their lives, they may not be ready to move forward with the case.
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WHEN YOU ARE SWORN IN, the oath you took states that you will use your license to reach out to the under privileged and not discriminate in your representation. Never forget the oath you took.” —Judge Rhonda Wood Arkansas Court of Appeals Judge, District 2, Position 2
JW: I don’t think you should use swear words in this interview (“Continuance”). Continuances are for unforeseen situations that prevent you from fully representing your client on the set date. Continuances are not for you to reschedule because you forgot about the date or haven’t prepared. If you do request a continuance, request it as soon as you know so that another case can benefit from your court date.
nearby and the counties cannot afford to mail the pleadings to the judges. Each time a judge goes to one of these counties, they collect the pleadings and distribute them back to all the other judges. Often weeks can go past before I get my pleadings from those counties. If you have a motion or are waiting on an order from a judge, don’t hesitate to call their chambers and check to make sure the judge has it regardless of the county.
CB: Summary Judgment motions are increasingly used as a discovery and litigation tactic to move a case along. However, we often hear that many judges don’t look favorably upon such a use of pre-trial summary judgment motions. What advice do you have about the use of summary judgment motions? JW: The legal standard for Summary Judgment is difficult, however, often very appropriate. I find that there is often not a need for a hearing on a Summary Judgment motion. I feel that it’s best to let the court decide if a hearing is necessary to flesh out anything in the briefs. There are often times in the middle of a bench trial where it so apparent that a summary judgment would have resolved the case months earlier.
Chris Burks: Thanks for your time Judge! Any other passing thoughts for the young lawyers out there? JW: Make a commitment to get involved in your community and represent those less fortunate. I remember early in private practice representing for free an elderly lady on social security. She was so grateful, that she brought me homemade cookies every week until she passed away. I never felt more appreciated by a client. When you are sworn in, the oath you took states that you will use your license to reach out to the under privileged and not discriminate in your representation. Never forget the oath you took.
CB: How do judges get our pleadings? JW: This can depend on which county. For instance, my staff picks up every pleading in my division from the Faulkner County courthouse daily (assuming the pleadings all make it into my box). In Van Buren and Searcy counties, the judges do not have staff
Chris Burks practices in Little Rock with the Sanford Law Firm, PLLC. At the time of the interview, Chris was a law clerk to Judge Wood. He is a 2007 Graduate of Davidson College and a 2010 Graduate of the University of Arkansas School of Law.
CB: Most attorneys balance many cases and clients. Scheduling issues often arise, what advice do you have about asking for a continuance?
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An Interview With
Judge Bart Virden By Jessica Virden Mallett Originally published in the Summer 2013 issue of In Brief
Judge Bart Virden is the Conway County District Court Judge.
“
FOR
NEWER
ATTOR-
NEYS, try not to use first names in the courtroom,
even if you are familiar with the person you are talking to. Using last names with “ Mr.” or “Ms.” shows a respect for the judicial system. That is important for the other people in the courtroom. In open court, especially district court, try not to be too casual or familiar because there are always people watching and scrutinizing everything we do.” —Judge Bart Virden District Judge, Conway County District Court
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YLS In brief
www.arkbar.com
All judges are different. That’s one thing I have learned in my two short years as an attorney. Unless you have been in front of a particular judge or talked to someone who has, you may be walking into a courtroom blind. Because I will never know from experience, I sat down with my father, Bart Virden, the newly elected district judge of Conway County, to find out what he wants and expects in his courtroom.
Me: What is your typical caseload? Judge Virden: I believe it is somewhere between 11,000 and 12,000 cases a year.
Me: So, as a judge, what do you want? Judge Virden: (Laughing) my own bathroom. No, don’t write that down!
Me: How many of the people who appear before you are represented by counsel? Judge Virden: Probably less than 5%.
Me: That was a broad question to start with. You’re the District Judge of Conway County. What makes up that district court system? Judge Virden: There are five divisional courts in the district, Morrilton, Plumerville, Oppelo, Menifee, and Conway County divisions. Conway County District Judge is a part time position, and I hold court in the five different divisions all in the same week, one week a month. My first week as judge, I had 1,600 cases on the collective dockets.
Me: What is an average day like in your courtroom? Judge Virden: Typically, court will start at 8:00 a.m. Usually there’s about a 32-page plea and arraignment docket with about 360 cases on it. Then there is the trial docket in the afternoon, which typically may have over 150 cases on it. On an average day, less than 25 of those will actually be tried.
Me: What type of cases do you hear? Judge Virden: Misdemeanor criminal offenses, small claims, and some civil cases. The misdemeanor criminal offenses category may be a bit misleading because traffic offenses are lumped in there as well.
Me: Of that, how many are criminal and how many are civil? Judge Virden: Like I said, traffic gets lumped in with the criminal category. Probably about 98% of my caseload is traffic and criminal offenses.
Me: With so many cases, why are there so few represented by counsel? Judge Virden: Mostly because of the cost of hiring an attorney compared to the fine they are facing if convicted. Now, commercial vehicle operators will often have an attorney because keeping a moving violation off their record is more important than for most other people. Janna Virden (Mom): Without an attor-
ney, can they get a fair day in court? Judge Virden: Well, pro se litigants are supposed to be held to the same standard as attorneys, but they really don’t know the rules of civil procedure or evidence. I generally give pro se litigants a little more leeway. A lot of times they just want to tell their story, so I let them. However, I will say, people who hire attorneys usually get a better result than those that don’t, even with speeding tickets.
bailiff or a court clerk where all the lawyers hang out before court starts. Out-of-town lawyers often will sit out in the courtroom, but it’s no problem to walk up to the local attorneys and introduce yourself. It’s actually important so that people know you are there. I try to get the out of town lawyers in and out first because I know they have to drive back somewhere. Then I get to the local lawyers.
Me: For new attorneys coming into your courtroom, what do you expect from them? Judge Virden: I expect them to know what their doing. (Laughs). But really, they need to be prepared. If they think they want to do trial work, go to work for a firm that lets them go to court. If they want to learn trail by fire, they should go to work for the prosecuting attorney’s office or the public defender’s office. When I first came out of law school, I clerked for Justice David Newbern on the Arkansas Supreme Court. Then I went to work for a lawyer who was the prosecuting attorney in Conway County at the time. Back then; District court was called Municipal court. He tossed me in the middle of a case, and I was scared to death. The next time when Municipal Court was coming around, I spend hours to get ready for each case. After it was over, I submitted a bill to him for going to court. The first thing on the bill was for court preparation. I had pulled the docket, looked up all the charges, and figured out everything I needed to prove in each case. He looked at the bill and told me that we didn’t do that for municipal court. But you really should. When you come into court, you should know all the elements of a case you have to prove. I’m also pretty casual, but I try not to use first names. For newer attorneys, try not to use first names in the courtroom, even if you are familiar with the person you are talking to. Using last names with “ Mr.” or “Ms.” shows a respect for the judicial system. That is important for the other people in the courtroom. In open court, especially district court, try not to be too casual or familiar because there are always people watching and scrutinizing everything we do.
Me: Why do people with lawyers go before the pro se litigants? Judge Virden: That’s generally the case unless the lawyer is there for a trial. Then he has to wait until the plea and arraignments or negotiated pleas are over. The attorneys go first because when they do their job, they generally have a negotiated plea, and I do those first. For any traffic or criminal case, I recommend trying to work it out before court. I realize that sometimes it’s not possible, but be persistent with the prosecutor or city attorney. They’re dealing with huge volumes of cases so sometimes it takes a couple of phone calls to get them on the phone. When a plea is negotiated before hand, chances are the case gets resolved quicker and you get to leave quicker. Also, District court is a high volume business. If you have a case to try, stipulate on as much as you legitimately can. This is really important. It helps the judge, you and the flow of court.
Me: I’ve had this problem, so I bet other young attorneys have, too, when they come into your courtroom, where should they go? Judge Virden: If it’s their first time in a particular court, it never hurts to ask the
Me: What about attire? Judge Virden: This again goes back to public perception and respect for the judicial system. I think men must wear a jacket and tie and women should wear the equivalent of a coat and tie. And take some time to talk to you clients about what they wear to court. If you have a client charged with possession, don’t let him walk into court wearing a t-shirt with a marijuana leaf on it. If you client is charged with domestic battery, don’t let him wear a wife-beater to court. Spend some time preparing your clients. Me: Sounds like you’ve already accumulated some good stories. Do you have any you’d like to share? Judge Virden: Well, I have started keeping little notes about things that happen in the courtroom. I’ve got a lot of them. One that comes to mind is last month a police officer testified that he gave a DWI defendant
a HGN (horizontal gaze nystagmus) test. He said that the defendant exhibited all six indicators of intoxication, two in each eye. I also had a pro se guy who was emphatic that he be allowed to plea “no content,” so I let him. Me: Would you mind if young attorneys came and watched your court? Judge Virden: Not at all. In fact, I would recommend watching court a day or two before you’re scheduled to appear. Another little thing, always remember to ask permission to approach a witness. If I know there are going to be several documents, I usually grant continued permission to approach. Also, recognize the difference between a judge and a jury. In district court, you are not trying to persuade twelve laymen. Judges are not impressed by courtroom theatrics. Me: Do you have any final words of wisdom? Judge Virden: I think this is a pretty old story. There was a barrister years ago back in England who was coming to the end of his career. He was asked why he had entered the law so many years ago. He said, “To think I had a sense of playing a part and justice being done. As a young lawyer, I lost cases I should not have lost because of inexperience. As I grew older, I found myself winning cases I should not have won because of my experience. I like to think that in the end, overall, justice was done.” I guess what I am saying is that losing should bother you, but it shouldn’t define you. There are cases that you will lose, but you should learn from them and be better next time. We can’t all be Denny Crane. Jessica Virden Mallett graduated from the UALR Bowen School of Law in December 2010 with High Honors. Shortly after graduation, she started working at The Law Offices of Peter Miller, P.A., were she specializes in personal injury law. She is licensed to practice in state and federal court, and is a member of the American Association for Justice, Arkansas Trial Lawyers Association, the Arkansas Bar Association, and the Pulaski County Bar Association.
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