The Arkansas Lawyer Summer 2020 by Arkansas Bar Association

Lawyer

The Arkansas

A publication of the Arkansas Bar Association

2020-2021 Arkansas Bar Association President Paul W. Keith

Vol. 55, No. 3, Summer 2020

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PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 421-0732 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins PROOFREADER Cathy Underwood EDITORIAL BOARD Anton Leo Janik, Jr., Chair Melody Peacock Barnett Luke K. Burton Dr. Frankie Martin Griffin Haley M. Heath Ashley Welch Hudson Jim L. Julian Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. William A. Waddell, Jr. David H. Williams OFFICERS President Paul W. Keith President-Elect Bob Estes Secretary Glen Hoggard Treasurer Joe F. Kolb Parliamentarian Aaron L. Squyres BAR ASSOCIATION STAFF Executive Director Karen K. Hutchins khutchins@arkbar.com Executive Administrative Assistant Michele Glasgow mglasgow@arkbar.com Director of Government Relations Jay Robbins jrobbins@arkbar.com Director of Education & Administrator of Staff Relations Kristen Frye kfrye@arkbar.com Data Integrity Specialist Alexis Teal ateal@arkbar.com Director of Finance & Administration Yan Chen ychen@arkbar.com Meetings & Membership Director Jennifer Jones jjones@arkbar.com Office & Data Administrator Cynthia Barnes cbarnes@arkbar.com Publications Director Anna Hubbard ahubbard@arkbar.com The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@ arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2020, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 55, No. 3

features 8 2020-2021 Arkansas Bar Association President Paul W. Keith By Anna Hubbard Cover Photo by Mike Pirnique

14 Jury Trials During the COVID-19 Pandemic A Guide for Courts and Lawyers By Steve Quattlebaum

24 Qualified Immunity—An Attorney’s Primer By Luke Burton

34 Wrestling with Expert Opinions: The Advisory Committee Considers Amending Federal Rule of Evidence 702 By Jamie Huffman Jones 46 Evolution and Modernization of the Electric Grid By Paul Suskie and Justin Hinton

54 Book Review by Gerry Schulze: Trial Handbook for Arkansas Lawyers (4th Ed., 2018) by John Wesley Hall

Contents Continued on Page 2

Lawyer The Arkansas Vol. 55, No. 3

in this issue ArkBar News

Affinity University article

ArkBar Inaugural Board of Trustees

ArkBar YLS Executive Council

ArkBar Annual Meeting

Disciplinary Actions

Arkansas Bar Foundation

In Memoriam

columns

President’s Report

Paul W. Keith

Young Lawyers Section Report

Chris Hussein

Fastcase Fast Facts Cathy Underwood

Board of Trustees

District A1-A2: Maggie Benson, Evelyn E. Brooks, Leslie Copeland, Jason M. Hatfield, Brian C. Hogue, Sarah C. Jewell, Alan L. Lane, George M. Rozzell District A3: Kesha Chiappinelli, Geoff Hamby, Jason B. Hendren, Ryan Scott District A4: Kelsey Kaylyn Bardwell, Craig L. Cook, Brinkley Cook-Campbell, Dusti Standridge Delegate District A-5: Melanie Ann Beltran, Joe Denton, Todd C. Watson, William “Zac” White District B: Jordan Bates-Rogers, Randall L. Bynum, Thomas M. Carpenter, Tim J. Cullen, Bob Edwards, Caleb Peter Garcia, Jesse J. Gibson, Steve Harrelson, Michael McCarty Harrison, Rachel Hildebrand, Anton L. Janik, Jr., Jamie Huffman Jones, Jessica Virden Mallett, Skye Martin, Kathleen M. McDonald, J. Cliff McKinney II, Molly McGowan McNulty, David Stockley Mitchell, Jr., Carter C. Stein, Patrick D. Wilson District C1-C2: Christopher Heil, Victoria Leigh, Stefan McBride, Jeremy M. McNabb, Meredith S. Moore, John Ogles, John Rainwater, George R. Wise District C3: Bryce Cook, Paul Nathaniel Ford, Brant Perkins, Paul D. Waddell District C4: , S. Taylor Chaney, Carol C. Dalby, Amy Freedman, Taylor Andrew King Delegate District C5: Kandice A. Bell, Laurie Bridewell Steele, R. Margaret Dobson, George A. Lea, III At Large Members: Brian Rosenthal and Chris Hussein; Liaison Members: Dean Theresa M. Beiner, Dean Margaret Sova McCabe, Harry Truman Moore, Gregory J. Northen, Judge Hamilton H. Singleton, Judge Cindy D. Thyer Law Student Representatives: TBA, University of Arkansas School of Law; Deepali Lal, UA Little Rock William H. Bowen School of Law

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ArkBar News New Logo Reveal

Members of the Branding Task Force revealed the new logo at the Arkansas Bar Center for a video that was presented during the virtual annual meeting conference. “As we transition and move the association forward, we believe the new logo reflects our dedicated and diverse membership,” said Karen K. Hutchins, Executive Director. Pictured above, top row from left: Lester McKinley and Branding Task Force Chair Jeffrey McKinley, Molly, Brian and Grant Rosenthal; bottom row: Heather Haywood, Heide Harrell, Michele Glasgow, Kristen Frye and Karen K. Hutchins. Committee members not pictured: Lange Cheek, Bob Estes, Anna Hubbard, Paul Keith, Mark Mayfield, Jay Robbins, David Wilson and Nicole Winters. Brian Rosenthal said, “This task force led us in a creative process that will benefit our bar for a decade. I hope that you will be inspired by the product. It was such a joy to work with Jeffrey McKinley. She has expressed how much she has enjoyed it as well. And we cannot be any more excited about our new logo.” The new logo was designed by Mangan Holcomb Partners (MHP) who graciously donated their time pro bono for this effort. “We were honored to help the Arkansas Bar Association reinvent its logo to be more reflective of the organization’s vision for the future,” Sharon Tallach Vogelpohl, with MHP said. Thank you to Jeffrey’s neice, Anna LaGrone, who took the above photos and produced the logo reveal video that can be seen on www.arkbar.com/annualmeeting.

Second Annual Spend a Day with a Judge Contest

Batson

Campbell

Oakes

Sponsored by the Legal Related Education Committee, the second annual Spend a Day with a Judge Contest did occur this year, despite COVID-19 preventing an actual “Day” with the judges. Special thanks to Beverly Brister, chair of the Committee.

Winners of the essay contest: 1st Place: Clarissa Oakes, Southside High School; 2nd Place: Sean Cunningham, Dewitt High School; 3rd Place: Maggie Batson, Conway High School; Honorable Mention, Jacob Jarding, Pea Ridge High School; Honorable Mention, Kylie McGraw, Joe T. Robinson High School Winner of the art contest: 1st Place: Nathan Campbell, Bay High School

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Michele Glasgow Celebrates 20 Years with ArkBar ArkBar’s Executive Administrative Assistant Michele Glasgow celebrated 20 years with the association on June 26, 2020. “Michele’s loyalty and dedication to the association have been unwavering,” said Executive Director Karen K. Hutchins. “Her ability and willingness to take on any challenge has been a continuous help to both members and staff...particularly me. She always thinks ahead and analyzes information to offer solutions. Her honesty and straightforward approach has created consistency in a workplace that deals with continuous change. Thank you Michele for dedicating your career to the success of the Arkansas Bar Association.” Past Executive Director Don Hollingsworth is proud to say that he hired Michele 20 years ago. “I first met Michele in May 2000 when I was home recovering from surgery and she was a temp with the Association,” he said. “She delivered mail and other documents to me. Thankfully, I did not scare her off. Without question Michele was one of the best hires I ever made during my years at Legal Aid and later the Arkansas Bar Association. I second everything Karen said above. And I thank Michele for her outstanding service to the Association and its members.” Michele provides administrative support to the Association’s leadership and works closely with many committees, primarily the Mock Trial Committee. “Every successful organization has heroes who keep moving it forward,” said President Paul Keith. “Michele, you are one of those heroes. Thank you.”

President’s Award Presented to Brian Rosenthal

Oyez! Oyez! 2020-2021 ARKBAR COMMITTEE CHAIRS Arkansas Bar PAC: Brent J. Eubanks; Audit Committee: Brant Perkins; By-Laws Drafting Sub-Committe: Brant Perkins; Continuing Legal Education Committee: Travis R. Berry; Disaster Preparedness Task Force: Kandice A. Bell and Samantha Vital; Editorial Advisory Board–The Arkansas Lawyer: Anton L. Janik, Jr.; Finance Committee: Joseph F. Kolb; Jurisprudence & Law Reform Committee: Sean T. Keith and Jamie Huffman Jones; Law School Committee: Harry A. Light; Legal Hall of Fame Task Force: J. Cliff McKinney II; Legal Related Education Super Committee: Beverly I. Brister; Legislation Committee: Lynn Foster; Mock Trial: Adrienne Morris Griffis and Anthony L. McMullen; Personnel Committee: Mark W. Hodge; Practice Closure Task Force: Stark Ligon; Professional Ethics Committee: Brad L. Hendricks; Website & Social Media Sub Committee: Christopher Hart Collins

2020-2021 ARKBAR SECTION CHAIRS (as of August 20, 2020) Business Law: J. Don Overton; Civil Rights: Brittany Nicole Edwards; Construction Law: Jeffrey W. Puryear; Criminal Law: T. Christopher Walton; Debtor/Creditor: Sarah McDaniel; Elder Law: Jennifer Elizabeth Glover; Environmental Law: Jennifer Loiacano; Intellectual Property & Technology: Alex Rogers; Juvenile Justice & Child Welfare: Diane B. Warren; Probate & Trust: Ashley D. Phillips; Real Estate Law: J. Cliff McKinney II; Section of Taxation: David Biscoe Bingham; Young Lawyers Section: Chris Hussein

WORD ABOUT TOWN

ArkBar President Paul Keith presented the President’s Award to Immediate Past President Brian Rosenthal for his service to the association as president for the 20192020 bar year. “Brian, you have been an inspiration to all of us,” Paul said during the presentation. “You have been an incredible leader. Your energy, compassion and kindness have shown through everything that you have done.” Visit www.arkbar.com/ annualmeeting/home to view the video.

Paul W. Keith Sworn In as 123rd ArkBar President

Kaye McLeod Law Firm, Inc., announced that Jon P. “JP” Tribell has joined the firm as an associate. Please send Oyez announcements to ahubbard@arkbar.com.

New Filing Deadline For 2022-2023 ArkBar President-Elect Based on ArkBar’s new Constitution that became effective at the June 2020 annual meeting, the deadline for the nominating positions is now January 31, 2021. The deadline was formerly October 31 of each year. The President-elect of the Arkansas Bar Association is elected by the vote of the entire membership of the Association. The position rotates each year among the three state Bar districts. The next president-elect designee will come from Bar District B, which encompasses all of Pulaski County. Please contact Karen Hutchins at 501-801-5663 for a petition.

The Arkansas

Lawyer A publication of the Arkansas Bar Association

Inside: Same-Sex Marriage Judicial Campaign Finance The Arkansas Supreme Court During World War II Arkansas LLCs Guardianships of Minors

Vol. 51, No. 1, Winter 2016 online at www.arkbar.com

Advertise in the next issue of The Arkansas Lawyer. Opportunities also available on ArkBar’s website & weekly ebulletins. www.arkbar.com/for-attorneys/ publications/the-arkansas-lawyer/ advertising.

Chief Justice Dan Kemp (pictured right) presented the oath of office to President Paul Keith, pictured with his wife Kandi, during a swearing-in ceremony at the Arkansas Bar Center. See the video at www.arkbar.com/.arkbar.com/aboutarkbar/presidents-message to view the video.

ARKBAR MID-YEAR MEETING FEBRUARY 4-5, 2021

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

PROUD TO SERVE THOSE WHO SERVE THEIR PROFESSION We are humbled by the positive reception to our recent pro bono logo design work on behalf of the Arkansas Bar Association. Equally, we are grateful for the opportunity to serve your historic professional organization. Everyone at MHP/Team SI offers our congratulations to the outstanding legal professionals recognized during the 122nd Annual Meeting and to those elected to serve for 2020-21. Marketing n Advertising n Public Relations n Digital/Social Media ManganHolcomb.com n TeamSI.com ArkBar Member 4A’sAd

- Half Page.pdf

8/17/20

CMY

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3:35 PM

PRESIDENT’S REPORT

Diversity–and Justice–For All Paul. W. Keith

A sign that you are getting long in the tooth is when people you once knew now have buildings named after them. Ben Kimpel, for whom Kimpel Hall at the University of Arkansas is named, is a reminder for me. It was 1973 and what is now Kimpel Hall was shiny and new and had been named The Communications Center. Ben Kimpel taught my freshman composition class there. He lit one Pall Mall cigarette from the previous one during the entire class–another indication of how things have changed in these years. The reading list included Dr. Martin Luther King’s Letter from a Birmingham Jail. The Letter was barely 10 years old, having been written by King after he had been arrested for creating unrest in 1963, and preceded the March On Washington and the I Have a Dream speech at the Lincoln Memorial by four months. It was addressed to white clergymen who had released a statement calling his activities “unwise and untimely.” As we celebrate the life of Congressman John Lewis and mourn the chasm between minorities and the majority, I am reminded that much remains to be done if we are to follow through on the Constitutional aspiration to “pursue a more perfect Union, insure domestic tranquility . . . and secure the Blessings of Liberty to ourselves and our Posterity.”

Paul W. Keith is the President of the Arkansas Bar Association. He is a member of Gibson & Keith, Monticello

Dr. King points out that we all have a stake in rising from “the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood”:

literally tore up the car searching for contraband that was not there.2 Judge Carlton W. Reeves’ moving opinion is a must-read for anyone with a law license:

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

The Constitution says everyone is entitled to equal protection of the law–even at the hands of law enforcement. Over the decades, however, judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called “qualified immunity.” In real life it operates like “absolute immunity.”3

Yet, 57 years later, “Black drivers accounted for nearly 80% of police searches and routine traffic stops in predominantly white Minneapolis,” according to a public defender’s study using city policy data.1 The study went on to find that Black and East African drivers were more often searched when pulled over during equipment or moving violations, with 26% of those searches resulting in arrest. And 57 years later a U.S. District Judge in the Southern District of Mississippi is bound by precedent to grant summary judgment to a police officer who stopped a Black man who was driving a Mercedes convertible on an interstate highway in Mississippi and detained him for 110 minutes while the officer

“But let us not be fooled by legal jargon. Immunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.”4 The Arkansas Bar Association is committed to a more diverse bar and bench. “In order to better implement its stated purposes, the Arkansas Bar Association is committed to fostering diversity among the bar and bench. . . . By mirroring the diverse population of Arkansas, a diverse bar and bench would provide greater understanding and access to justice to all its citizens. The Arkansas Bar Association through its leadership directly and by its Commission on Diversity seeks to achieve a greater understanding of diversity issues and greater

diversity of the bar itself.” Your Board of Trustees is exploring ways to make this commitment a reality, inside and outside of the Association. One step is to identify the barriers to minorities entering the profession. Having the lawyers’ part of the criminal justice system–prosecutors, defenders, and judges–reflect the community that it serves could go a long way toward establishing trust. Lawyers are uniquely situated to pursue that More Perfect Union. We can encourage courts to re-examine qualified immunity. We can propose legislative measures to limit the doctrine so that bad actors must account for the harm they do to their victims and to us all. And we can identify those obstacles to diversity and understanding that plague us all. Only then, may we “rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood.” Thank you, Ben Kimpel. Endnotes: 1. Study: Most Stops of Black Drivers, Arkansas DemocratGazette, August 8, 2020. 2. Jamison v. McClendon, 3:16-CV-595-CWR-LRA, slip op. 8/4/20. 3. Id. at 5-6. 4. Id. at 6. 5. 2014, Arkbar Mission and Diversity Statement, https:// www.arkbar.com/about-arkbar/ mission. 

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

Paul W. Keith 123rd Arkansas Bar Association President

Paul W. Keith of Hamburg is the 123rd President of the Arkansas Bar Association. Paul is an attorney with Gibson & Keith in Monticello and serves as Hamburg’s city attorney.

“My cup runneth over. I just repeated the oath of office taken by 122 bar presidents before me. And the Bible I used was given to me by my parents in 1966. Today we pause to remember those who have come before us, and who come after us. We truly stand on the shoulders of giants.” His first act as president was to recite a prayer by Alan Patton of South Africa called “Courage to do Justice.”

By Anna Hubbard Photos by Mike Pirnique Courage to do Justice “There can be no peace without justice,” Paul proclaimed during his swearing-in speech. “As lawyers we are called to be peace makers. And we are peace makers by helping others access what could be called a social contract that we commonly refer to as the rule of law.” Paul took the oath of office as the 123rd president of the Arkansas Bar Association before Chief Justice Dan Kemp during a ceremony at the Arkansas Bar Center. Paul addressed the bar with a brief speech thanking his family and friends before outlining his initiatives for the upcoming bar year. “We are called as lawyers to make that contract work. It is–as the billboard says– our calling. And it is important work. 8

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Because if this contract doesn’t work for everyone, then it doesn’t work for any of us. As lawyers in the United States we are uniquely situated to be those peace makers. We are uniquely situated to lead our society in this contract. Because we are grounded in the rule of law.” Paul described his swearing-in ceremony as a very special day with “honored friends and treasured family.” He doesn’t mention that the ceremony was not the traditional grand event held in front of hundreds of people during the association’s annual meeting. The ceremony was recorded and the video played during the association’s annual meeting that was held virtually due to the COVID-19 pandemic. He only speaks of how humbled he is to take the oath of office.

O Lord, open my eyes that I may see the needs of others; open my ears that I may hear their cries; open my heart so that they need not be without succor; let me not be afraid to defend the weak because of the anger of the strong, nor afraid to defend the poor because of the anger of the rich. Show me where love and hope and faith are needed, and use me to bring them to those places. And so open my eyes and my ears that I may this coming day be able to do some work of peace for thee. Amen. From Farmer to Lawyer After farming for 12 years in Chicot County, Paul decided to change careers in 1991, at the age of 35. He and his wife Kandi moved to Fayetteville with their three young children so Paul could pursue a new career in law. Paul thanked his children for helping him to get to where he is today, acknowledging that “they were plucked up from a very comfortable life on the family farm just so dad could go to law school.”

“As lawyers we are called to be peace makers. And we are peace makers by helping others access what could be called a social contract that we commonly refer to as the rule of law.” “The reason I chose law is I’ve always been interested in forming policy and helping make the rules. The law is the rule,” Paul was quoted as saying in a 1991 feature article in the Arkansas Gazette on “Farmers After Farming.” In the article, Paul was described as “a Chicot County cotton farmer, well known in farming circles.” He held leadership positions in the Arkansas Farm Bureau Federation and the Arkansas Soybean Promotion Board and was a regular at many state and national farm meetings. Paul told the newspaper that he “got out of farming because he felt squeezed between escalating fixed costs, such as insurance and living expenses, and low crop prices. ‘The bottom line is the profit had gone out of it.’” In addition to row crops, Paul and his family planted a you-pick peach orchard, which was great fun for the family and the people in the area. “We really enjoyed having guests come to the orchard. It was the only one around and people liked it.” Paul’s brother, Grady, still farms in Lake Village and took over some of Paul and Kandi’s farms when they moved, including the peach orchard. Grady said that the peach orchard was Paul’s “baby” and that it was a community-oriented venture. “Paul was on the cutting edge of the farm-totable movement in the early 1990s.” To help ease their way out of farming, Kandi went back to school so she could begin teaching. She supported the family by working as a special education teacher in Prairie Grove while Paul was in law school. “She was carrying that load,” Paul

said. “I had the luxury of not having to work while I was in school.” Kandi is still in education, currently serving as a Special Education administrator for the Hamburg and Cleveland County School Districts. While the farm provided a wholesome environment for the children, the new city provided adventures they all enjoyed, including a host of Razorback events. “The kids got to do some things in Fayetteville that they would not have been able to do in the Delta because it is a bigger place, more opportunities.” Kandi encourages anyone who is thinking about making a change or advancing their education to put aside any thoughts of limitations, especially age. “There is no age limit,” she said. “If Paul can pack up and change careers at age 35 and move his family anybody can. It’s not that we were financially wealthy and could just do anything we wanted to do. It’s just that’s what we did and we made it work. We had some very supportive family who helped make it work. You can do what you want to do. You can make it happen, but you are going to have to work very hard at it.” Paul graduated from the University of Arkansas School of Law in 1993 with a J.D. and in 1994 with an LL.M in Agricultural Law, completing both degrees in three years. “It was a busy time,” he said. He had previously earned a B.A. in Journalism from the university in 1978. Not many people know that he was on the Arkansas parachute team as an undergraduate, an activity he thoroughly enjoyed, and that he had his pilot’s license during that time.

Home in Hamburg Paul’s first job out of law school was with a law firm in Hamburg. After working there for a couple of years he was hired by his current firm in Monticello. He and his partner, Cliff Gibson, have experienced many challenges over their years in private practice together. Cliff expressed his thoughts about his long-time friend and partner by saying, “If you are in a fight with the Taliban, you want Paul in the foxhole with you. I have been blessed with a partner who is thoughtful, kind, sincere, and committed to our system of justice and all the good things that it stands for and attempts to be.” As a small-town lawyer, Paul practices all areas of law. “I have the privilege of working in an office where we do a lot of different things,” Paul said. “We may do probate in the morning, criminal law in the afternoon, contracts the next morning and family law the next. It’s always interesting. I think that’s why they call it the practice of law because you never get through learning about it. There is just so much out there to learn and to know.” Circuit Judge Byrum Gibson said he knew Paul back when he was a “dirt farmer” and described the Keith family as an “upright, hard-working family.” He said that as a lawyer, Paul is always prepared. “He tries a good case, and I’ve heard many of his cases,” Judge Gibson said. “Paul can always be counted on to send well-drafted orders that don’t require changes. He has a reputation for honesty and always being prepared. He is always gracious, always humble.“

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

Photo from the Swearing-In Ceremony at the Arkansas Bar Center From left front row: President Brian Rosenthal, Chief Justice Dan Kemp, Mark Van Pelt, Kandi Keith, Paul Keith, Collins Keith, Karen Keith, Lisa Gibson, Cliff Gibson, Grady Keith From left back row: Hollis Keith, Mary Keith, Jack Keith, Joanna Bergeron, Kinlee O’Neal, Joy Parr and Susan Knight Paul said that technology, specifically electronic research, has made it possible for lawyers in small firms and in small towns to compete and stand on the same footing with lawyers from much larger firms who would have traditionally had access to a lot more resources. “The electronic research has leveled that playing field to an extent. If you are willing to go find the law, it is there for you to find. When I started practicing, if you wanted to really dig into something you had to go to the law library in Little Rock and spend a day in the stacks. Now, I can find anything that’s in that library online and put it on my desktop and use it.” Paul said that his office is mostly paperless, but he does print or download materials when he goes to court because “when you get out in the countryside, so to speak, you can’t always depend on having internet so you have to carry it with you either on a tablet or paper.” Paul still lives in Hamburg, where he has served as the city attorney since 2002. “Hamburg has been our home,” Paul said. “We are members of the Hamburg United Methodist Church and it’s been a big part of our lives.” Paul and Kandi both sing in the choir, which has been suspended since March due to the pandemic. Paul also teaches Sunday school, and serves as a lay leader and on the Administrative Council. He is the Chancellor for the Southeast District of the United Methodist Church. One of his favorite things to do is teach the children’s sermon, which he has done for many years. “I enjoy doing it because you get to have fun and you get to do things that are a 10

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little different. On special occasions I try to bring in livestock, sheep and goats. I had a miniature donkey but I couldn’t get it through the front door.” Paul and Kandi have been married almost 41 years and have three adult children (Joanna Bergeron [Daniel], Joy Parr [Nate] and Jack Keith [Mary]) and three grandchildren (Kinlee O’Neal, Collins and Hollis Keith). “We are blessed to be together. It’s good to be married to your soul mate and best friend,” Paul said. When they moved to Hamburg, the family quickly became involved in the youth activities. This involvement eventually led to cooking around 500-600 turkeys each year for fundraisers. Now, Paul is happy to just be cooking the 30-40 turkeys each year for his friends and family. Cooking is something that Paul and Kandi enjoy doing together. They were one of the winning teams in the virtual cooking contest during the annual meeting. “It’s something we can do whether it’s fancy or not,” Paul said. Reflecting on her husband’s character, Kandi is rightfully proud: “He pretty much is amazing. He makes everybody around him want to be a better person and he kind of does make everybody be a better person just by the way that he is. What I would want everybody to know if they didn’t know him is that he is the most genuine, generous, devoted person that you could ever meet.” Grady described Paul and Kandi as a good team. “Paul is very family oriented,” Grady said. “Always has been. His family, not only his immediate family, but his extended family, is always at the forefront of his thinking and his efforts.”

Grady said that he and Paul may differ on opinions, but they can always have an open discussion and “at the end of the conversation we are still brothers. I highly respect his opinion and I feel like he respects mine. He is truly a person who is absolutely engaged whenever you visit with him.” Moving Forward Paul presided over the first meeting of the association’s new governing body, the Board of Trustees, on June 12, 2020, during the annual meeting. The new governance structure consists of a single Board of Trustees made up of representatives from 15 state-wide districts. The meeting of the 60 trustees, executive council and guests was held virtually as a Zoom meeting. “It worked out really well,” Paul said. “I was somewhat apprehensive of having such a large meeting electronically, but once we got into the swing of knowing how to do it that way it worked out just perfectly.” “The new governance structure is going to be an opportunity for us to be a bit more responsive,” Paul said, “especially when you combine the new structure with the technology that we are learning to use. If there were a big question that came up, we could meet quickly and discuss it and then go home. You don’t have to be concerned about asking people to drive from Jonesboro to Little Rock to discuss one issue. So as we learn to do this and as everyone gets the technology in place to do this, I think we are going to find that we like it a lot.” Paul is licensed to practice before all courts in Arkansas as well as before the 8th

“If the rule of law doesn’t work for everybody it doesn’t work for anybody.” Circuit Court of Appeals in St. Louis; he has also been admitted pro hac vice before the courts of other states. He has served as a Special Associate Justice of the Arkansas Supreme Court and has been appointed by the governor to serve on the Legislative Task Force on Private Property rights. In 2018, he was appointed to the Arkansas Supreme Court Committee on Professional Conduct. Paul has been actively engaged in the Arkansas Bar Association for many years, including serving as chair of the Board of Governors. He has also served as chair of the 2015 Annual Meeting and as chair of the Continuing Legal Education Committee for two years. He has served on the Mock Trial, Long Range Planning, Law Reform and Jurisprudence Committees. The Association has awarded him three Golden Gavel Awards. Paul said that the real privilege, and fun, of serving on committees and doing bar work is getting to work with smart and talented people. “It’s a real special thing to me to sit in a room, whether it’s a virtual room or around a real table, with people who are that smart, that talented,” Paul said. “I think that they make me a lot better than I would be otherwise. To me, that is the treat, the fun part. That’s what you get out of this.” Paul is looking forward to an exciting year for the association. “We have had so many great things that have come up in the last year. Brian Rosenthal is incredibly innovative and some of the initiatives that he began are carrying into this year, like the Legal Hall of Fame and a new “Level Playing Field” video. The work of the Legislation Committee, chaired by Professor Lynn Foster, will be a big focus because the Arkansas General Assembly will convene for a regular session on January 11, 2021. Prof. Foster, who was selected by both Brian and Paul, is serving her second year as chair of this committee. Paul said that Prof. Foster brings a lot to the table. “She is very talented, thorough and articulate.”

Prof. Foster said that she was deeply honored to be asked to chair the Legislation Committee, and is looking forward to working with Paul and the members of the Committee this year. “I’m pleased to see President Keith’s emphasis on the rule of law, which means not only that even the powerful are subject to the law, but also that those without power receive the benefits of justice.” Paul said that the Jurisprudence Committee had worked extremely hard on all of the proposed bills. “I want us to get as much of our legislative agenda adopted as possible,” Paul said. “That would include one that is really special to me, our Independent Expenditure Bill. It is about having people who run ads in appellate judicial races identify themselves so that the public knows who is doing the talking. “ “In the legislature, we need to stand up for individuals, to stand up for individual’s rights, and their right to remedies, their right to be heard, their right to seek redress. I’d like us to be known for standing up for the rights of people under our Constitution, as it stands. And that’s important. That’s the rule of law. If the rule of law doesn’t work for everybody it doesn’t work for anybody. That is one of my goals. To get that message out there.” Helping the public understand the importance of the work that lawyers do is another one of his goals. “The public needs to understand what we do, why we do it and why it is important. We have all seen the t-shirt, first we kill all of the lawyers. It is completely out of context. That is Shakespeare’s recipe for anarchy. It’s not something that you want to do.” Paul closed his swearing-in speech by inviting each member of the bar to make a difference. “Run for public office. Volunteer in a school on constitution day or speak on Law Day. Lend your expertise to a school board, a quorum court, a city council or your church. Let us all do some work of peace this day.” 

Kandi and Paul

Favorite quotes: “And what does the Lord require of you? To act justly and to love mercy and to walk humbly with God.” –Micah 6:8 “The quality of mercy is not strained.” –Shakespeare, from The Merchant of Venice Favorite app: Fibbage Favorite dish to cook: Delta-style hot tamales What I have missed most during the quarantine: Getting together with extended family and having dinner and playing cards with our friends. What I miss the most about farming: I don’t miss any of it. What I miss the least about farming: Same answer, I don’t miss any of it.

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Micromanage the Client Experience By Jennifer M. Ramovs, Director of Practice Management, Affinity Consulting Group This article is provided by Affinity Consulting Group as part of ArkBar’s member benefit Practice Link.

Micromanage?!?! What a horrible word. The connotation is negative. When we think about being micromanaged, we are likely frustrated and annoyed. We feel treated like children who are incapable of doing their jobs. But this is different. The first time we heard the word used that way was at a Rainmaker Retreat, by our friend Stephen Fairley. As legal professionals providing services to clients in a competitive market, micromanaging your client’s experience will not only result in happy clients, those happy clients become repeat clients, or, great referral sources. Micromanaging the client experience is mostly about managing expectations, looking at how your firm delivers service, and being willing to make changes in your approach or process for the benefit of your clients. Put simply, leave nothing to chance when it comes to the experience a client will have with your firm. Start micromanaging while they are still prospects. Respond to inquiries timely – and completely. Don’t just answer 1 of the 3 questions they asked you. Take the time to make sure you address everything they asked you – even if the question can’t be answered without a formal meeting or more information. Just skipping the question will make you look like you don’t know or are avoiding the question. Think about how your phones are being answered. Do prospects feel welcome when they call? Is there a friendly voice on the other end of the phone? Next time you walk into the front door of your office, look around. Try to see what a prospective client would see. First impressions are a very important part of micromanaging the client experience. Schedule follow up for prospects to happen quickly. It’s not about hounding them to become your client—it is showing that you are committed to their issue and want to make sure that they partner with the right law firm to protect their rights and interests. Send them a retainer letter and explain the way your firm operates. Communicate (email?) how you bill, how often you update on sta-

tus, who will work on their case, what your collections policy is. And then….do what you say. Ask your clients at every opportunity. “I see you spoke with one of our associates, Jenn, the other day. I hope you got what you needed – is there anything Jenn could have done better for you?” Clients might not tell you that Jenn seemed rushed, or unaware of recent developments in the case. But if given the opportunity—at the right time, to be heard—you will get valuable feedback about the way your team is performing for your clients. Never hesitate to ask because you are afraid of the answer. Train your team to ask the same thing when they deal with clients. “How are we doing? Are you happy with the level of communication?” Be AWARE of the status of your cases, even when they are delegated to other trusted professionals in your office. If you are a partner or were the originating attorney for a long term client that another lawyer in your office now manages, that doesn’t mean you can’t pick up the phone and ask how the client is doing, whether they are happy with the service they are getting, and how else the firm can help. Update your clients at least weekly, even when not much has happened on their case. Never make the client ask you for a status. At the end of the case, get feedback on how you did as a team. How was the intake process? Level of communication throughout your case? Would you recommend our firm? What would have made working with us easier? Follow up even after a case closes. A month later, three months later, etc. “How are things? Need anything else? Don’t forget we are here for you no matter what the situation.” Micromanaging the client experience will position you as a trusted advisor for your clients, and their instinct will be to call you no matter what they need. People want to do business with people they like, and, they want to feel heard. Don’t be afraid to overcommunicate, ask for feedback, and make adjustments to your team and your processes if the client feedback suggests you should.

New Member Benefit! ArkBar members get unlimited access to Affinity University. Log in to www.arkbar.com/practice-link to set up your free account. ArkBar members can schedule a free one-on-one, 30-minute video/phone consultation with an expert. All experts are former practicing attorneys who have spent years working with law firms on best practices, technology, management, and process.

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Seven Rose Law Firm attorneys have served as president A R K A N S A S B A R A S S O C I AT I O N of the Arkansas Bar Association since its formation, including U.M. Rose, the organization’s first president, as well as immediate past president, Brian Rosenthal.

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U.M. Rose (1898-1899) A R K A N S A S B A R A S S O C I AT I O N George B. Rose (1902-1903) J.F. Loughborough (1921-1922) Archie House (1948-1949) J. Gaston Williamson (1968-1969) Phillip Carroll (1980-1981) A R(2019-2020) K A N S A S B A R A S S O C I AT I O N Brian Rosenthal Nicole Gore

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Jury Trials During The COVID-19 Pandemic A Guide For Courts and Lawyers By Steve Quattlebaum

“Even during a global pandemic, it is vital to our democracy that our justice system function in a manner consistent with the principles upon which it was founded. This includes the resolution of civil disputes through the means of trial by jury…. As James Madison wrote in 1789, ‘Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the preexistent rights of nature.’”1 The right to a trial by jury is deeply rooted in our society and one guaranteed by our Constitution for civil as well as criminal cases. “How are we going to have jury trials when we are in the midst of a global pandemic?” That was one of the questions pondered by judges and trial lawyers across the country as we struggled with the realities of stay-at-home orders, courthouse closures, and the safety considerations occasioned by the pandemic. National President Luther Battiste of the American Board of Trial Advocates (“ABOTA”) recognized that ABOTA was well positioned to assist in the reopening of the courts for civil jury trials. President Battiste created the ABOTA COVID-19 Task Force with the request that it draft a white paper to guide courts in the best practices for conducting civil jury trials during the pandemic. The task force consisted of 12 ABOTA members from around the country representing the plaintiff and defense bars and the judiciary and was assisted by three scientific experts to advise regarding the safety issues involved. I was privileged to serve as the chair of the task force. Distribution of the Covid-19 white paper The work product of the task force was a white paper titled “Guidance for Conducting Civil Jury Trials During the COVID-19 Pandemic.” The white paper can be found on the ABOTA website at www.abota.org. Since its publication on June 9, 2020, the white paper has been widely distributed to all ABOTA members and federal and state trial judges in many jurisdictions, circulated by the National Center for State Courts, and published in the ABOTA magazine Voir Dire. ABOTA also sponsored a five-hour webinar on the topic on July 14

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Steve Quattlebaum is a managing member of Quattlebaum, Grooms & Tull PLLC in Little Rock. He is a current national board member and former national secretary of ABOTA. He served as the chair of the ABOTA COVID-19 Task Force. ABOTA is a national organization consisting of 7,600 plaintiff and defense trial lawyers and has as its mission the preservation of the right to trial by jury in civil cases as guaranteed by the Seventh Amendment to the Constitution of the United States. It is the desire of those involved in drafting the white paper that it serve as an example of the commitment and aspirations of the American Board of Trial Advocates to be an organization of service to our profession and the judicial system and a guardian of the Seventh amendment right to trial by jury in civil cases.

“The objective was to ‘provide our courts with information, ideas and innovations that provide a functional approach to conducting jury trials under these challenging circumstances.’”

21, 2020, featuring panels of federal and state court judges, court administrators, jury consultants, scientific experts, and trial lawyers from jurisdictions throughout the country. The panelists discussed jury trials that have occurred during the pandemic; steps taken to mitigate risks to jurors, lawyers, litigants, and court personnel; and the effects of the pandemic on the composition of jury panels, as well as how the pandemic has affected jurors’ attitudes and decision-making. This webinar was attended by over 800 people. ABOTA also participated in a national survey designed to obtain data from potential jurors to evaluate their willingness to participate in jury trials and how riskmitigation efforts by the courts impact their comfort level in serving as jurors. The purpose of this article is to provide a summary of the recommendations contained in the white paper and some points discussed during the ABOTA webinar. As explained in its introduction, the white paper focused on the challenges posed by the pandemic and procedural alternatives and innovations that will allow civil jury trials to proceed safely. The white paper was to provide suggested

guidelines designed to maximize the safety of all participants while providing a fair forum for adjudication as guaranteed by the Seventh Amendment. The task force also recognized the diverse circumstances that exist in various jurisdictions, and even community to community and courthouse to courthouse. It noted that the recommendations were prepared to address fundamental principles involved in civil jury trials. The objective was to “provide our courts with information, ideas and innovations that provide a functional approach to conducting jury trials under these challenging circumstances.” The paper addresses specific issues that arise in the following stages of a civil jury trial: 1. Pre-trial hearings and conferences; 2. Jury selection and voir dire; 3. Opening statements and closing arguments; 4. Presentation of evidence; and 5. Jury deliberations. The paper also includes a list of resources for additional information, including mandates and orders that have been issued by courts that have conducted or scheduled

jury trials during the pandemic, a pre-trial checklist of issues to be considered, and a model order of conduct applicable to all trial participants. Screening protocols Some of the more universal screening requirements include the following: First, before entering the courthouse, all jurors, lawyers, witnesses and staff should be screened through a series of questions regarding health and exposure. Each person’s temperature should be checked for temperatures above 100.3 Fahrenheit. Further, all persons should be required to wear masks meeting the requirements of the court upon entering the courthouse. It is true for everyone. This is especially true for jurors who may be confined to tighter spaces than are lawyers and witnesses. The courtrooms should undergo sanitation each day, including but not limited to wiping down high-touch surfaces such as chairs, tables, door handles, etc., with disinfectant wipes such as those included on the EPA’s List N found at https://www.epa.gov/ pesticide-registration/list-n-disinfectant-useagainst-sars-cov-2. The courtroom can be marked to indicate where counsel should stand when addressing the court or jury to

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

ensure social distancing at all times. The Court may prohibit the use of a shared podium. Similarly, all available space in the courtroom should be utilized to ensure adequate social distancing. Jurors must remain a minimum of six feet apart at all times. Finally, courthouses should prohibit attorneys from approaching witnesses, staff and the judge during all phases of the trial, absent specific leave of the Court. In all circumstances, as mentioned, a minimum social distance of six feet should be required. Safety practices The recommended safety practices specifically designed to provide extra protection for jurors include: 1. Avoid having jurors report until actually needed. For example, if the Court anticipates any other business will be conducted, such as a civil settlement, guilty plea, or parole revocation, schedule jurors to arrive after such matters have concluded. 2. Limit the number of jurors assembled in one location by asking jurors to report for service on a staggered schedule. 3. Provide hand sanitizer and masks to jurors. 4. Consider impaneling extra alternates to guard against delays or mistrials for any reason. 5. Require that jurors report directly to a courtroom as opposed to a jury assembly room. 6. To the extent possible, avoid passing exhibits between jurors (please see below). 7. Require jurors to report by phone each morning of trial, confirming that the juror has not experienced any symptoms consistent with COVID-19. The manifestations of COVID-19 are protean. If a juror reports symptoms consistent with COVID-19 by phone, the juror should not be allowed to come to the courthouse. If a juror experiences symptoms consistent with COVID-19 while at the courthouse, the juror should be subject to immediate quarantine and a test administered. To walk through this: If a person becomes ill, he or she will be immediately removed from the room and courthouse, sent home and asked to contact a physician. The Court cannot tell someone with symptoms to go into quarantine or get a test. The juror should be 16

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excused and, if alternates are impaneled, an alternate juror should be substituted. 8. To the extent possible, certain restrooms should be designated for juror-only use and should be cleaned with disinfectant after each break, lunch and at the end of the day. Ideally, restrooms should have an open window. If that is not possible, engineering should address the air flow in the restrooms. These places are particularly problematic as many people use restrooms and they are usually small rooms. Additionally, disinfectant wipes should be readily available in the jury room and the restroom for use throughout the day. A robust pretrial conference A robust and comprehensive pre-trial hearing is vital to avoiding cumbersome and unnecessary delays during the trial caused by bench conferences or sidebars. Courts should establish clear rules about the designated location for each participant in the trial, including court personnel, to maintain proper social distancing. The handling of exhibits is also important. To the extent possible, documentary exhibits should be displayed electronically to avoid touching. To the extent physical exhibits must be handled, precautions should be taken to sanitize the exhibits between handlings. Of course, the rules regarding the use of face coverings, movement about the courtroom, podium or document presenter (Elmo) use, and questioning from counsel table should be clearly communicated at the pretrial. Observation of the trial by the public must also be considered by the Court, and one possibility is allowing a section of the gallery to be designated for the public or providing for livestream video in another room of the courthouse. Jury section and voir dire present particularly difficult challenges because of the number of potential jurors on the panel. The use of video conferencing platforms like Zoom are being utilized by some courts, but difficulties arise with that option. Maintaining control over those on the panel, adequately identifying those who respond to the voir dir questions, handling jurors speaking over each other, and such issues are likely to require more time and much more interaction with the court than live voir dire would involve. A probing jury

Pre-Trial Checklist o Requirement of personal protective equipment (masks, shields, gloves, sanitizer, plexiglass dividers) o Screening of all participants for temperature, exposure risks, other symptoms o Procedure for jury orientation o Procedure for jury screening o Seating of the jury panel o Voir dire procedure and the use of jury questionnaires o Communication of for-cause strikes o Communication of preemptory strikes o Seating of jury o Public access o Seating of counsel o Whether movement in the courtroom and use of the podium is allowed o Procedure for use and disinfection of common equipment such as white board, document presenter (Elmo), enlarged exhibits and physical exhibits or demonstratives o Presentation of documentary exhibits (paper or electronic) o Handling of documentary exhibits o Jury breaks and bathroom protocol and disinfecting facilities o Anticipation of objections o Procedure for side bar conferences with court o Disclosure of exhibits in advance for direct and cross-examination o Breaks and protocol during breaks o Number of cleanings (wipe downs) of the courtroom that will occur each day o Sanitary storage of jury exhibit books, notebooks and other items at night o Consequences of positive testing or symptomology of any participant during trial (mistrial, adjournment, testing of all participants exposed?) o Bathroom protocol and cleaning

questionnaire is a mechanism for reducing questioning of jurors and minimizing the likelihood of something occurring that could jeopardize the trial. Conducting hardship challenges and even some general voir dire by video to reduce the panel to a manageable size is another option. Finally, bringing in qualified jurors in groups small enough to assure proper distancing in the courtroom is a step that should assist in balancing safety and efficiency. When the jury is selected, the Court should consider having sufficient alternate jurors in case someone fails the prescreening mid-trial. Seating jurors should be accomplished utilizing as much of the courtroom as necessary to assure proper social distancing. Some courts have also provided plexiglass partitions separating jurors. The jurors should be afforded a jury room that is adequate to allow for social distancing. A second courtroom may be necessary for doing so, depending on the circumstances of the particular courthouse. Some courts are also looking to facilities like auditoriums and theaters to use for voir dir or even the entire trial. Chief Judge Barbara Lynn of the United States District Court for the Northern District of Texas noted during the ABOTA webinar that she is considering a trial outdoors at a nearby law school when weather permits. There may be challenges getting witnesses to appear live at trial based on governmentmandated travel restrictions or a witness’s medical condition. Courts may elect to utilize live video presentation of witnesses by Zoom, or a similar platform, or require that the testimony be preserved by deposition. Jury deliberation is of the utmost importance because it is the time for the jury to work together, evaluate the evidence, and reach an informed decision. Thus, it is especially important that the jury be allowed to congregate in person; have access to the jury instructions, verdict forms, and exhibits (preferably digitally or with a set in a binder for each juror); and be in a location where they feel comfortable and can maintain proper distance from one another. The white paper covers other considerations and contains more detailed recommendations. The references at the end of the paper also provide valuable information sure to be of assistance to

courts and counsel considering jury trials during the pandemic. Adapting to the challenges The trial by jury in civil cases has been a hallmark among the guarantees provided by our Constitution. We have made many adjustments and adaptations to the circumstances peculiar to the exigencies of the time. We must do so during this pandemic, as well. As ABOTA National President Battiste noted in the foreword to the white paper: The American experiment in self-government is certainly being tested, yet we remain confident that our system will thrive. Madison reminded us of the need for a “chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. We must balance the desire to resolve civil disputes in a manner consistent with our guaranteed rights with the need to maximize the safety of all trial participants. With the recommended safeguards set forth in the white paper and being utilized by forwardlooking courts throughout the country, we hope jury trials can be conducted during these turbulent and challenging times in a safe and effective manner. Endnote: 1. Guidance for Conducting Civil Jury Trials During the Covid-19 Pandemic, page 5. 

General Order Regarding Rules of Conduct for Trial Participants The court hereby issues the following order regarding conduct applicable to all trial participants in this Court, including but not limited to lawyers, clients, witnesses, client representatives, members of the jury, court reporters, law clerks, and security personnel: 1. All entrances to the courthouse must be well marked with restrictions. 2. Start times must be altered to allow for slower admission of persons into the courthouse. 3. All persons entering the courthouse will be screened. This screening will include a non-invasive temperature check for temperature exceeding 100.3 and a series of questions regarding known exposure circumstances, recent illnesses and travel. Any persons who have traveled to a highrisk area in the preceding 14 days will be denied entry to the courthouse. 4. All persons in the courthouse must stay a minimum of six feet away from all other persons at all times. Exceptions to this rule may only be granted by the trial judge. For example, counsel may be permitted to approach a testifying witness for limited purposes. In this instance, the court may direct that counsel and the witness must cease speaking and wear their respective face masks. The Court may also require other measures to avoid encroachment within six feet, such as leaving an exhibit on a table to be retrieved by the witness. 5. All persons in the courthouse must wear an approved mask at all times unless an exception is granted by the presiding judge. (Specifications for masks may be designated by the Court). Due to difficulty of hearing speakers with masks, people may be permitted by the Court to speak and testify free from obstruction (i.e. without a mask or through the use of a transparent facial mask, face shield, or Plexiglass partitioning). 6. Personnel in the courtroom will be limited to as few as possible as determined by the Court. 7. Media may require remote viewing options to reduce the number of persons in the courtroom. Order continued on next page.

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

Order continued from previous page. 8. Witnesses must be on call or scheduled for their appearance to reduce exposure and unnecessary waiting. 9. The jury will only be brought to the courtroom for trial. Waiting pools of jurors are discouraged. 10. The use of shared podiums found in courtrooms will only be allowed by permission of the court. 11. Counsel, along with their clients and client representatives, must stay at their designated counsel table at all times except when speaking. Breaks will be liberally given to allow counsel to speak to their clients without the risk of being overheard. 12. Sidebar conferences are not permitted absent specific approval of the court. Participants may need to remove themselves from the courtroom and use a room that allows for proper social distancing. 13. When counsel is speaking, he or she should stay at his or her designated counsel table, or alternatively, must remain on the designated mark in the courtroom. 14. Physical handling and transfer of exhibits

is discouraged. All exhibits, with the exception of tangible exhibits that cannot be reproduced for the purpose of trial, must be shown electronically. All trial participants must have adequate viewing of the electronic exhibits either by shared screen in the courtroom or individual screens or tablets. 15. If a tangible exhibit must be passed among jurors, they will be provided hand sanitizer, instructed on the proper hand hygiene and offered court-supplied, disposable gloves. Further, jurors will be instructed to avoid touching of the face, eyes and mouth. Court personnel will assist in the proper handling and disinfecting of exhibits. 16. Each juror will be given his or her own copy of exhibits unless the volume or other characteristics of the exhibit render individual copies impracticable. In such cases, precautions will be taken to protect against transfer of contamination. 17. During breaks or deliberations, jurors will be taken into a jury room where there is adequate space to maintain a minimum distance between one another of six feet. Before entering the deliberation room, jurors will be required to use hand sanitizer. Upon exiting the deliberation

room, jurors will be required to use hand sanitizer. As previously stated, jurors must wear masks at all times, including when speaking in the deliberation room. 18. Breaks generally will be longer to allow for staggered trips to the restroom. 19. Courthouse cleaning crews will be responsible for ensuring that each courtroom undergoes cleaning each day, including but not limited to wiping down all chairs, tables, door handles, etc. with disinfectant solution or wipes. 20. Bathrooms designated for jurors’ use will be cleaned and disinfected by court personnel after the morning and afternoon breaks, lunch and close of court business for the day. Disinfectant wipes will be available for use by jurors in the jury room and bathrooms. 21. Courthouse security is empowered to enforce social distancing and other orders including the removal of persons showing signs of COVID-19. The foregoing rules have been recognized by this Court as necessary to ensure adequate protection of all trial participants. Failure to comply with these rules of conduct constitutes a violation of a court order. IT IS SO ORDERED.

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Introducing the Arkansas Bar Association Inaugural Board of Trustees The Arkansas Bar Association is very proud to introduce its new Board of Trustees. The Board of Trustees is the association’s new governing entity consisting of 60 trustees from 15 districts throughout the state. The districts were created in the new Constitution and approved by the Membership last December. The Constitution became effective at the Annual Meeting in June 2020. The new trustees were elected in May 2020 and began serving at the inaugural meeting of the Board of Trustees during the association’s

virtual annual meeting. The new streamlined governance structure will allow the association to be more responsive, as the legal profession continues to meet the challenges that require quicker responses and increased technology in the practice of law. The governance restructure proposal merged the longstanding Board of Governors and House of Delegates into a single governing body, creating the Board of Trustees. Four Trustees are elected from each of the 15 Trustee Districts. Each of the

initial 60 positions were open for election to members throughout the state. Article IV of the newly adopted Constitution outlines the responsibilities and terms of the Trustees. A member of the Association who serves six years as a member of the Board of Trustees shall be given the status of Tenured Trustee and be added to the long-respected list of Tenured Delegates. Tenured Trustees and Delegates will be ex-officio members of the Board of Trustees with the right to participate in all proceedings but without the right to vote. AT-LARGE

OFFICERS

Paul W. Keith President Gibson & Keith Monticello

Bob Estes President-Elect Law Offices of Bob Estes Fayetteville

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Aaron Squyres Parliamentarian Wilson & Associates, PLLC Little Rock

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Harry Truman Gregory J. Northen Moore Cross, Gunter, Goodwin Moore, Witherspoon & Galchus, PLLC P.C., Little Rock Paragould Delegate to the ABA Delegate to the ABA YLS Member

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Brian Rosenthal Immediate Past President Rose Law Firm Little Rock

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Dean Theresa M. Beiner UA Little Rock Bowen School of Law Ex Officio

Dean Margaret Sova McCabe University of Arkansas School of Law Ex Officio

Judge Hamilton H. Singleton Arkansas Judicial Council President Camden

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ArkBar’s Updated Mission Statement: To support attorneys; advance the practice of law; advocate for the legal profession; foster professionalism, civility, and integrity; and protect the rule of law.

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Evelyn E. Brooks Tolley & Brooks Law Firm, P.A. Fayetteville

Alan L. Lane Odom Law Firm Fayetteville

George M. Rozzell Miller, Butler, Schneider, Pawlik, Rozzell Rogers

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Leslie Copeland Leslie Copeland Law & Mediation Fayetteville YLS Member

Jason M. Hatfield Law Office of Jason M. Hatfield, P.A. Springdale

Brian C. Hogue Hogue Law Firm, PLLC Fayetteville

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Brinkley CookCampbell The Law Offices of Craig L. Cook, Fort Smith YLS Member

Jason B. Hendren Wright Lindsey Jennings Rogers

Ryan Scott Bailey & Oliver Law Firm Rogers

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Craig L. Cook The Law Offices of Craig L. Cook Ozark

Joe Denton Denton & Zachary, PLLC Conway YLS Member

Todd C. Watson Law Offices of Watson & Watson Newport and Fayetteville

William “Zac” White Attorney and Counselor at Law Heber Springs

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Melanie Ann Beltran Sprott, Golden & Bardwell Clinton

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Jordan Bates-Rogers Arkansas Access to Justice Commission Little Rock YLS Member

Randall L. Bynum Dover Dixon Horne PLLC Little Rock

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Thomas M. Carpenter City Attorney Little Rock

Tim J. Cullen Cullen & Co., PLLC Little Rock

Bob Edwards The Edwards Firm, PLLC Little Rock

Caleb Garcia Little Rock YLS Member

Jesse J. Gibson Gibson Law Firm, PLLC Little Rock

Steve Harrelson Harrelson Law Firm Little Rock

Rachel Hildebrand Barber Law Firm PLLC Little Rock YLS Member

Anton L. Janik, Jr. Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C Little Rock

Jamie Huffman Jones Friday, Eldredge & Clark, Little Rock Executive Council Representative

Jessica Virden Mallett Law Offices of Peter Miller, P.A. Little Rock YLS Member

Skye Martin Arkansas Department of Human Services North Little Rock

J. Cliff McKinney II Quattlebaum, Grooms & Tull PLLC Little Rock

Molly McGowan McNulty Arkansas Court of Appeals Little Rock YLS Member

David S. Mitchell, Jr. Rose Law Firm Little Rock YLS Member

Carter C. Stein McMath Woods P.A. Little Rock

Patrick D. Wilson Wright Lindsey Jennings Little Rock

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Christopher Heil The Brad Hendricks Law Firm Little Rock

Victoria Leigh Lion Legal Services North Little Rock YLS Member

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George R. Wise The Brad Hendricks Law Firm Little Rock

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Stefan McBride Mann & Kemp, PLLC Little Rock YLS Member

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John Ogles Ogles Law Firm, P.A. Jacksonville

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Amy Freedman Law Offices of Amy Freedman Texarkana Executive Council Representative

Brant Perkins The Perkins Law Firm, P.A. Jonesboro

Paul D. Waddell Waddell, Cole & Jones, PLLC Jonesboro

S. Taylor Chaney Chaney Law Firm, P.A. Arkadelphia

Carol Dalby State Representative, District 1 Texarkana

Laurie Bridewell Steele Circuit Judge-Elect, 10th District, Division 2 Lake Village

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Qualified Immunity An Attorney’s Primer

By Luke Burton George Floyd’s tragic death invigorated the debate about whether to reform the laws governing interactions between police and the public. One legal doctrine some have identified as being ripe for change is qualified immunity. Many attorneys (especially those who rarely, if ever, practice constitutional litigation) may have only a fuzzy understanding of qualified immunity and the current debates surrounding it. I wrote this article with the hope of clearing up this fuzziness. To do so, I will summarize the doctrine’s essential characteristics, its origins, its alleged shortcomings, and the current suggestions for revising or even abrogating it.

Luke Burton is the career law clerk to the Honorable Morris S. Arnold of the U.S. Court of Appeals for the Eighth Circuit. The views expressed in this article are the author’s and not those of the judge or the court for whom he works. 24

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What is Qualified Immunity? As the Supreme Court recently described it, “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”1 Though sometimes labeled an affirmative defense to liability,2 it’s also, as its name suggests, an immunity from suit—the pretrial denial of which is immediately appealable.3 As for why this immunity is “qualified,” consider that tort law recognizes broad, so-called “absolute” immunity for some parties, such as legislators, judges, and prosecutors, when they act in their official capacities.4 Those with absolute immunity generally receive complete protection from lawsuits. Those with qualified immunity, on the other hand, receive immunity only to the extent they do not violate clearly established rights. Additionally, absolute immunity protects only a few narrow classes of parties. Qualified immunity, though, is the norm for most executive officials whose duties require discretion.5 It therefore protects a wide swath of officials and employees, including police officers.

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Where Did Qualified Immunity Come From? The story of qualified immunity begins in 1871 when Congress enacted the Ku Klux Act, which was “designed to help combat lawlessness and civil rights violations in the southern states” during Reconstruction.6 It created what is now perhaps the most important statute in all of constitutional litigation—42 U.S.C. § 1983. Section 1983 generally entitles injured persons to damages when state officials, acting “under color” of state law, violate their constitutional rights.7 It subjects “[e]very person” acting under color of state law to liability for constitutional violations, and nowhere does it mention, either in the 1871 version or today’s version, immunities from suit.8 The Supreme Court addressed § 1983 immunities in Pierson v. Ray.9 There, Mississippi police officers arrested people for violating a state breach-of-the-peace statute. The arrestees sued, under § 1983, the police officers and a judge who convicted them.10 The Court held that the judge was entitled to judicial immunity even though § 1983 does not mention it. The Court explained that Congress enacted the Ku Klux Act in a common-law background where judicial immunity was well established, and if Congress wished to abrogate that immunity, it would have said so.11 As for the police officers, it turned out that after the arrests at issue, the Supreme Court in a different case held that the breach-of-the-peace statute was unconstitutional.12 The officers argued “that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid.”13 The Court agreed and noted that, as with judicial immunity, “[p]art of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.”14 During the next decade or so, qualified immunity began to

“During the next decade or so, qualified immunity began to swell beyond these humble beginnings.”

swell beyond these humble beginnings. That brings us to Harlow v. Fitzgerald,15 the case that probably did most to transform qualified immunity into the doctrine we now know. The Court there explained qualified immunity “as the best attainable accommodation of competing values,” namely, the vindication of constitutional guarantees on one hand and, on the other hand, the societal costs of doing so.16 The costs the Court identified included litigation expenses, the diversion of energy from pressing public issues, the deterrence of able citizens from public office, and the dampened ardor with which officials exercise their duties.17 The Court in Harlow recognized that qualified immunity, as it then stood, poorly balanced these societal costs because, by considering defendants’ subjective good faith, defendants who raised qualified immunity often had to proceed to trial because an official’s subjective good faith is often a question of fact that requires a jury determination.18 The Court therefore thought it wise to reimagine the doctrine so courts could resolve qualified-immunity issues as early in the life of a case as possible.19 So the Court eschewed an examination of the official’s subjective good faith and adopted in its stead a rule that officials receive qualified immunity “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”20 The idea was that, if the law at the time of the official’s conduct was not clearly established, then the official could not fairly be said to know that the law forbade that conduct.21

A few years later the Court appeared to backtrack somewhat from its discussion in Harlow about how qualified immunity represents a balancing of societal interests. In Malley v. Briggs, the Court reemphasized that its role in determining whether qualified immunity applies “is to interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy choice.”22 The Court has nonetheless reiterated this balancing-of-interests function,23 though it is not entirely clear whether this balance is the ultimate aim of qualified immunity or whether it is simply a result of the Court’s interpretation of § 1983. The Court’s next major qualifiedimmunity decision, Anderson v. Creighton,24 gave more substance to the idea of clearly established law. There the Court explained that the clearly-established standard “depends substantially upon the level of generality at which the relevant legal rule is to be identified.”25 So, for example, it’s clearly established that a person has a right to due process of law, but if rights are defined so broadly, “Plaintiffs would be able to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”26 As a result, rights must be defined more particularly so “that a reasonable official would understand that what he is doing violates that right.”27 That doesn’t mean that a court must have deemed the very action at issue unlawful, “but it is to say that in the light of pre-existing law the unlawfulness must be apparent.”28 In Saucier v. Katz, the Supreme Court held that a court’s evaluation of qualified immunity should proceed in two steps:

First, the court should determine whether officials violated the plaintiff ’s rights, and second, whether those rights were clearly established.29 Eight years later the Court unanimously held that this two-step procedure was no longer mandatory because it tended to waste scarce judicial resources on academic questions unnecessary to the resolution of a case,30 among other problems. In recent years the Court has been vigilant about ensuring that lower courts define rights particularly enough so that qualified immunity protects all “but the plainly incompetent or those who knowingly violate the law.”31 Particularity is especially important for claims brought under the Fourth Amendment, like for excessive force, where “the result depends very much on the facts of each case.”32 Qualified immunity today is designed to be decided as early in a case as possible,33 and officials may raise it in most, if not all, § 1983 cases no matter the constitutional right claimed to be infringed. What are Some of the Current Criticisms of Qualified Immunity? Critics of qualified immunity have attacked both the doctrine’s legal foundations and its current reach. One of the doctrine’s foundations, you will recall, is the idea that, since § 1983 did not expressly abrogate the immunities that existed in 1871 when Congress enacted it, Congress must have intended for those immunities to apply in § 1983 suits.34 Even as the Court began its qualified-immunity journey, there were detractors who believed that the absence of any reference to immunities in

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

§ 1983, and the fact that § 1983 subjected “every person” who violated its commands to liability, suggested that Congress had abrogated the existing immunities.35 This objection continues to resonate, as critics of qualified immunity often bemoan its absence from the statutory text.36 Relatedly, critics have started to question whether, even if Congress intended for common-law immunities to apply in § 1983 suits, a historical analogue to qualified immunity actually existed in 1871.37 If not, then Congress could not have intended for a non-existing immunity to continue to apply. There have also been attacks to qualified immunity’s functional foundation as a balance of competing societal interests. Some have argued that the balance tips too favorably toward the police, sending them a signal that they may “shoot first and think later” and sending the public a signal “that palpably unreasonable conduct will go unpunished.”38 Others maintain that it should be up to the political branches, not the courts, to balance society’s interests.39 Critics have also lamented qualified immunity’s expansive reach. For example, qualified immunity is now said to protect governmental officials “across the board and without regard to the precise nature of the various officials’ duties or the precise character of the particular rights alleged to have been violated.”40 So while there may have been a common-law analogue to qualified immunity to the claims raised in, say, Pierson, that does not mean that similar defenses applied in other circumstances, such as when officers use excessive force. Another common criticism is that the clearly-established-law requirement has become too demanding for plaintiffs. First, some decry that the plaintiff in many circuits bears the burden to show, after the defendant raises qualified immunity, that the law is clearly established41—a burden seemingly at odds with the notion of a defense. Second, some have attacked the results that follow from an overly strict interpretation of what constitutes clearly established law. For example, critics42 have pointed to a Ninth Circuit case where officers received qualified immunity when they stole $225,000 while executing a search warrant because it was not clearly established whether that act violated the Fourth Amendment.43 Or the Eleventh 26

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Circuit case where an officer accidentally shot a 10-year-old boy while aiming at a non-threatening dog.44 There are other examples, but suffice it to say that critics point to cases like these to show that the clearly-established-law requirement has gone awry, especially in cases where it seems obvious that certain actions are unconstitutional but where no factually similar precedent exists. It is worth noting, though, that the law can be clearly established in “obvious” cases even without precedent squarely on point,45 but it appears that the line between obvious and possibly debatable is fuzzy enough for criticism to persist. Other objections to qualified immunity include, briefly, that the doctrine does not advance the interests it purports. For example, though qualified immunity is meant to spare defendants from the burdens of litigation, often defendants must proceed to trial anyway so juries can resolve factual disputes.46 And though the doctrine is meant to attract able people to public service and encourage public officials to perform their jobs with ardor by shielding them from personal liability, in reality insurers or the officers’ employers nearly always foot the bill for the officers’ personal liability.47 Critics also maintain that allowing courts to skip the question of whether the defendant violated the constitution to resolve only whether the defendant violated clearly established law stunts the development of constitutional law.48 And finally, some have criticized the Supreme Court for giving qualified immunity “pride of place” on the Court’s docket, with the Court correcting errors that would not ordinarily fit the criteria for certiorari.49 What Are Some Current Proposals for Changing Qualified Immunity? Considering these and other criticisms, several proposals for reforming qualified immunity have been advanced. Some argue that change should come from the Supreme Court. One commentator has pointed out that at least five current justices have expressed or indicated a willingness to reconsider the doctrine.50 They could, theoretically, abrogate the doctrine completely or scale it back so that it applies in a Pierson-like fashion where the court considers whether the common law

as it stood in 1871 provided an analogous defense to the specific claims asserted.51 Or it could turn more on the official’s subjective good faith. The possibilities of a Court-led change are endless. There’s also been a push in Congress for revising qualified immunity, assuming Congress has the power to do so.52 The House of Representatives passed a bill that addresses myriad matters concerning policing, and that bill proposes to eliminate qualified immunity, whether based on clearly established law or an officer’s subjective good faith, though it would apply only to police officers and not all government officials.53 At this point it’s unclear that bill will have much, if any, traction in the Senate.54 Representative Justin Amash (L-MI) has introduced a short bill in the House that would abolish qualified immunity.55 That bill would add language to § 1983 stating that it would not be a defense or immunity for officials to claim that their conduct did not violate clearly established law or that they acted in good faith.56 This bill seems to strip all governmental officials of qualified immunity, not just police officers. Though this bill has not passed the House as of the date of this article, it has also been introduced in the Senate.57 Senator Mike Braun (R-Ind.) has introduced legislation that would not abrogate qualified immunity but would scale it back.58 Under this proposal, a defendant would be entitled to qualified immunity only if the defendant showed that, at the time of the events in question, the defendant’s conduct “was specifically authorized” by federal or state law; no court had yet invalidated that law; and the defendant reasonably believed the conduct conformed to the constitution.59 Or, if a court had held on the merits that the official’s conduct was consistent with the constitution, and the official reasonably believed the conduct conformed to the constitution, then the official would receive qualified immunity.60 As one can see, this proposal would return the doctrine to something akin to what it was when the Court decided Pierson, though the extent of the overlap might be the subject of debate. In addition to proposed changes at the federal level, some states have gotten into the mix. For example, Colorado recently adopted a state equivalent to § 1983 and

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provided that qualified immunity would not be a defense to an action brought under that equivalent.61 Colorado, like most states, has a bill of rights that largely mirrors the federal bill of rights, and now Coloradans may sue officials to vindicate those rights without having to deal with qualified immunity.62 Of course that doesn’t mean that when they sue under § 1983 the official can’t claim qualified immunity; it just means that they now have a “robust” state-law alternative.63 It’s possible that other states, including Arkansas,64 could take a similar tack. I hope this brief tour of qualified immunity has brought into focus some of the current debates. Whatever one’s views on the subject, it’s probably wise for attorneys to keep their eyes peeled for changes. Endnotes: 1. City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (per curiam). 2. See Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). 3. See Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985). 4. See Harlow, 457 U.S. at 807. 5. Id. 6. William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45, 49 (2018). 7. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). 8. See Baude, supra note 6, at 49–50. 9. 386 U.S. 547 (1967). 10. The opinion notes that one of the petitioners received a new trial in a higher court and obtained a directed verdict, leading officials to drop the cases against the other arrestees. Id. at 550. 11. Id. at 554–55. 12. Id. at 550 (citing Thomas v. Mississippi, 380 U.S. 524 (1965)). 13. Id. at 555. 14. Id. at 556–57. 15. 457 U.S. 800 (1982). 16. Id. at 813–14. 17. Id. at 814. 18. Id. at 815. 19. Id. at 817–18. 20. Id. at 818. 21. Id. 22. 475 U.S. 335, 342 (1986). 23. See, e.g., Ziglar, 137 S. Ct. at 1866; Anderson v. Creighton, 483 U.S. 635, 28

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638–39 (1987). 24. 483 U.S. 635 (1987). 25. Id. at 639. 26. Id. 27. Id. at 640. 28. Id. 29. 533 U.S. 194, 200–01 (2001). 30. See Pearson v. Callahan, 555 U.S. 223, 236–37 (2009). 31. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam). 32. Id. at 1152–53. 33. See Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). 34. See, e.g., Filarsky v. Delia, 566 U.S. 377, 383–84 (2012). 35. See, e.g., Pierson, 386 U.S. at 558–67 (Douglas, J., dissenting). 36. See, e.g., Baxter v. Bracey, 140 S. Ct. 1862, 1862–63 (2020) (Thomas, J., dissenting from the denial of certiorari). 37. See, e.g., id. at 1864; Wyatt v. Cole, 504 U.S. 158, 170 (1992) (Kennedy, J., concurring); see also Baude, supra note 6, at 55–58. 38. See Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting). 39. See Ziglar, 137 S. Ct. at 1871–72 (Thomas, J., concurring in part and concurring in the judgment). 40. See id. at 1871 (Thomas, J., concurring in part and concurring in the judgment); see also Baude, supra note 6, at 60. 41. See, e.g., Lewis v. City of St. Louis, 932 F.3d 646, 649 (8th Cir. 2019); see also Alexander A. Reinert, Qualified Immunity at Trial, 93 Notre Dame L. Rev. 2065, 2071–73 (2018). 42. See Billy Binion, A Cop Shot a 10-YearOld and Got Qualified Immunity. Tom Brady and 1,400 Other Pro Athletes Want To Fix That., Reason (June 12, 2020, 2:10 PM), https://reason.com/2020/06/12/tom-bradyqualified-immunity-police-drew-brees-stevekerr-justin-amash/. 43. See Jessop v. City of Fresno, 936 F.3d 937, 942 (9th Cir. 2019). 44. See Binion, supra note 42 (referring to Corbitt v. Vickers, 929 F.3d 1304, 1315 (11th Cir. 2019)). 45. See Kisela, 138 S. Ct. at 1153. 46. See Kenneth Duvall, Burdens of Proof and Qualified Immunity, 37 S. Ill. U. L. J. 135, 158 (2012). 47. Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1805–06, 1834 (2018) (noting

that “officers are more likely to be struck by lightning than to contribute to a settlement or judgment”). 48. See, e.g., id. at 1819–20; Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 6 (2015). 49. See Baude, supra note 6, at 48. 50. See Schwartz, supra note 47, at 1800, 1834 n.205. 51. See Baxter, 140 S. Ct. at 1864 (Thomas, J., dissenting from the denial of certiorari). 52. See Baude, supra note 6, at 80–81. 53. Ending Qualified Immunity Act, H.R. 7085, 116th Cong. (2020). 54. See Manu Raju, Clare Foran, & Ted Barrett, GOP and Democrats Clash Over Police Reform in Congress as Pressure for Action Mounts, CNN (June 16, 2020, 8:28 PM), https://www.cnn.com/2020/06/16/ politics/police-reform-senate-republicans/ index.html. 55. Id. § 4. 56. George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong. § 102 (2020). 57. Ending Qualified Immunity Act, S. 4142, 116th Cong. (2020). 58. Reforming Qualified Immunity Act, S. 4036, 116th Cong. (2020). 59. Id. § 4(b)(2)(A). 60. Id. § 4(b)(2)(B). 61. See Ilya Somin, States Can Reform Qualified Immunity on Their Own, Reason Volokh Conspiracy (June 26, 2020, 12:21 AM), https://reason.com/2020/06/26/ states-can-reform-qualified-immunity-ontheir-own/. 62. Id. 63. Id. 64. For what it’s worth, when sued under the Arkansas Civil Rights Act, defendants may claim a qualified immunity akin to federal qualified immunity. See Banks v. Jones, 2019 Ark. 204, at 5–6, 575 S.W.3d 111, 115–16. Though the two appear similar, they do not appear to overlap completely. See Faughn v. Kennedy, 2019 Ark. App. 570, at 4–5, 590 S.W.3d 188, 193. The extent of the overlap is beyond the scope of this article. Suffice it to say that advocates for reform have targeted states as well as the federal government. 

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YOUNG LAWYERS SECTION REPORT BY CHRIS HUSSEIN, YLS CHAIR

Young Lawyers Section

The 2020-2021 bar year is going to be one full of new challenges and hopefully new traditions and events from the Young Lawyers Section. I am very excited for the year ahead of us and to announce that we have eight new members serving on our YLS Executive Council this year. Learn more about the new board members on these pages. I am excited to work with this group and have no doubt they will do their best to progress the Young Lawyers Section and insure a smooth year for all. I am excited about our new board and all of the plans we have for this year. Going into this bar year I had a goal of reaching members in each of the districts by having at least one event in that district. While COVID has limited us for the foreseeable future we are still planning with that goal in mind. If possible we will have social/networking events in each district this year. We want to get our YLS members out and involved. Another YLS staple from the past people have been clamoring for is the YLS Christmas Party. This is something that will be brought back this year should we be able to gather in person. Should we not be able to meet in person we will hold several virtual events in place of the in person events. That may look like a trivia night, like the one at the Annual Meeting this year, or something similar. We are also in the beginning stages of planning our community outreach events for this year. We have several ideas and events already that we plan to do. First we have been and will continue to work with Legal Aid of Arkansas, Inc. on a virtual Wills and Estate planning clinic with people of lesser means around the state. We also plan to work with the Center for Arkansas Legal Services on an Estate Planning clinic for education workers in different parts of the state. If you are interested in helping out with either of these initiatives please email me at chussein@arlegalaid.org and I will get you plugged in. I am looking forward to a great year for YLS and know that it can’t be done without our section members. If there is an event you’d like to see take place, a service event you are interested in YLS putting on, or if you just want to get more involved please don’t hesitate to reach out to me. There will be more information in the coming weeks about the YLS calendar for this year. Make sure to keep an eye on the YLS Facebook page as well as the YLS listserv within the Bar Association’s ACE community for future updates. 30

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Chair

Hometown: Shreveport, LA Current town: Springdale Education: C. E. Byrd High School, Chris Hussein Shreveport, LA; University of Arkansas; University of Arkansas School of Law Currently work: Legal Aid of Arkansas, Inc. Favorite quote? “Dream as if you’ll live forever, live as if you’ll die today.” Why law school? Criminal Procedure with Judge Casey Jones during undergrad really made up my mind about going to law school. If you were not practicing law, what would your dream job be? If I wasn’t practicing law my dream job would be as an agent, whether in music or sports.

Chair-Elect

Hometown: Russellville Current town: Fayetteville Education: Russellville High School; Payton C. Bentley University of Arkansas; University of Arkansas School of Law Currently work: Clark Law Firm, PLLC What have you missed the most during the quarantine? Spending time with family and friends. Was there an event or class that made you want to go to law school? Civics in 9th grade.

YOUNG LAWYERS SECTION EXECUTIVE COUNCIL District A Representative

Secretary/Treasurer Hometown: Rogers Current town: Rogers Education: Rogers High School; Hendrix College; University of Arkansas School of Law

Caroline Wells Kelley

Currently work: Kelley Law Firm

Favorite quote: My grandfather would always say “Anyone who is good for excuses is good for nothing else.” I try to remember this when I am practicing law and in my daily life. What do you miss most during quarantine? US Pizza brunch with my friends. If you were not practicing law, what would your dream job be? My dream would be to work on the Hill in DC. I interned for a senator during a summer in college and thoroughly enjoyed the pace and meeting new interesting and influential people. My younger brother, Andrew, is currently a legislative correspondent for the same senator and I always look forward to him telling my family about his experiences.

Ezra Jeremiah Smith

Hometown: Batesville Current town: Batesville Education: Batesville High School; University of Arkansas; University of Memphis Cecil C. Humphreys School of Law

Alexandra T. Chunn Currently work: Blair & Stroud Favorite quote: “Atticus told me to delete the adjectives and I’d have the facts.” —Harper Lee, To Kill a Mockingbird Why law school? I owe my final decision to attend law school to Professors Gerald Jordan and Molly Boyd at the University of Arkansas. Professor Jordan (“Pro Jo”) left my drafts bleeding with red ink and molded me, despite my stubbornness, into the writer I am today. He also taught me that eloquence and swagger are never mutually exclusive. Professor Boyd introduced me to NY Times v. Sullivan and the Socratic Method. If you were not practicing law, what would your dream job be? Architect

District A Representative

Hometown: Fayetteville Current town: Fayetteville Education: Fayetteville High School; University of Arkansas (political science and international relations); University of Arkansas School of Law (see the trend?)

Hometown: Garland, TX Current town: Fayetteville Education: Bishop Lynch High School (Go Friars!); University of Arkansas; Fulbright College of Arts and Sciences; University of Arkansas School of Law

Currently work: Wales Comstock Favorite app and why? My podcast app has to be my favorite. I listen to an embarrassing number of podcasts per week. What have you missed the most during the quarantine? Is it wrong to say happy hour? I should say the gym, but I really do not miss it at all. What is your favorite quote? “Today I have got out of all trouble, or rather I have cast out all trouble, for it was not outside but within and in my opinions.”

Samantha Vital

Currently work: Herrera Law Group

Favorite app and why? The Furbo app. I love checking in on my pup, Marsh. What have you missed the most during the quarantine? The quarantine has been tough, and what I miss most is gathering with friends! Reconnecting with friends I haven’t seen in a while is a thing of the past as I try to keep my circle small. The silver lining being that my small circle has become a second family. What is your favorite quote? “O, let America be America again— The land that never has been yet—And yet must be—the land where every man is free…O, yes—I say it plain,—America never was America to me,—And yet I swear this oath—America will be!” —Let America Be America Again by Langston Hughes

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

YOUNG LAWYERS SECTION EXECUTIVE COUNCIL District B Representative

District B Representative

Andrew Payne Norwood

Hometown: Little Rock Current town: Little Rock Education: Catholic High School; University of Louisiana at Monroe; Ph.D. in Interdisciplinary Biomedical Sciences from the University of Arkansas for Medical Sciences; University of Arkansas at Little Rock William H. Bowen School of Law

Where do you currently work: Denton & Zachary, PLLC What have you missed the most during the quarantine? Being in court and seeing my lawyer friends in person. What is your favorite quote? “If you ain’t first, you’re last.” —Ricky Bobby. If you were not practicing law, what would your dream job be? Owning/running a BBQ restaurant.

Hometown: Jonesboro Current Town: Little Rock Education: Jonesboro High School; Arkansas State University; University of Arkansas School of Law

Wesley Bryan Watts

Where do you currently work: Associate Attorney at Reddick Moss PLLC

What is your favorite quote? “Far better is it to dare mighty things, to win glorious triumphs, even though checkered by failure... than to rank with those poor spirits who neither enjoy nor suffer much, because they live in a gray twilight that knows not victory nor defeat.” — Theodore Roosevelt What is your favorite app and why? Podcasts App for Iphone. I can’t get enough of podcasts. They are a great way to pass the time and make you feel like you learned something afterwards. If you were not practicing law, what would your dream job be? Sports Agent.

District B Representative

At Large Representative

Hometown: Little Rock Current town: Little Rock Education: Episcopal Collegiate School; Tulane; University of Arkansas School of Law

Robert M. Wilson

Currently work: Attorney’s Title Group / Wilson & Associates

What have you missed the most during the quarantine? Being able to go to events and socialize with friends. While my wife and I have had plenty of great conversations, our baby and our dog don’t seem interested in having long discussions with me. Where do you see the future of the legal profession in five years? I see a lot of technological changes with how we practice. E-filing is expanding across the state, but I think that there will be a lot more electronic hearings, notarizations, and communications than ever before. I believe it will end up being more efficient and cost effective for both our clients and our practices the more integrated everything becomes. If you were not practicing law, what would your dream job be? Chartering boats in the Caribbean to take people SCUBA diving and fishing

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Hometown: North Little Rock Current town: Little Rock Education: Little Rock Catholic High School; University of Arkansas; UALR Bowen School of Law

William Johnson Ogles

Currently work: Dover Dixon Horne Favorite app: Twitter, it’s the instant marketplace of news, sports, and memes.

What have you missed the most during the quarantine? Being able to see friends and family, and going out to eat with a large group of people. What is your favorite quote? I’ve got two: “No one remembers what happened yesterday, no one cares what is going to happen tomorrow–it’s all about today.” —J.B. Mauney “No matter how thin you make a pancake, it’s always got two sides.” If you were not practicing law, what would your dream job be? Sports Agent

YOUNG LAWYERS SECTION EXECUTIVE COUNCIL District C Representative

William Thomas Harris, IV

Hometown: Hot Springs Current town: Hot Springs Education: Lake Hamilton High School; University of Arkansas; University of Arkansas School of Law

Currently work: Heaton & Harris LLP What have you missed the most during the quarantine? No doubt, sports. What is your favorite quote: “Never let the fear of striking out keep you from playing the game.” —Babe Ruth If you were not practicing law, what would your dream job be? The answer is two-fold: An Athletic Director at a Division I University or a Front-Office Executive for an MLB Team

District C Representative Hometown: Hot Springs Current town: Hot Springs Education: Cutter Morning Star; University of Arkansas; University of Arkansas School of Law

Colin Heaton

Favorite app: Don’t tell my other fellow millennials, but I get a good laugh out of TikTok on a regular basis. My friends all make fun of me for it. If you were not practicing law, what would your dream job be? Two of my favorite things are traveling and playing golf. So playing golf professionally would probably meet the description for my “dream job.” Unfortunately, I’ve never even broken 80. How were you able to start a law firm straight out of law school? First, starting a firm has always been my dream. The circumstances right after school created the perfect storm for me to get going. I had some cases to keep my head above water right when I started from connections I made while I was clerking. I also developed great relationships with a lot of other, mostly older, attorneys in town who would send me cases they didn’t want to handle. I am very thankful for those attorneys who have been mentors and friends to me.

At Large Representative

Hometown: Little Rock Current town: Conway Education: LR Central High; Westminster College; University of Arkansas School of Law

Elizabeth L. H. Richardson

Currently work: Self-Employed solo practice attorney

Currently work: Heaton & Harris LLP

Ray Slaton

Hometown: Hot Springs Current town: Little Rock Education: Hot Springs Lakeside; University of Central Arkansas; William H. Bowen School of Law, J.D. (UALR); Frederic G. Levin School of Law, LL.M. in Taxation (University of Florida)

What is your favorite app and why? NONE

Currently work: Hyden, Miron & Foster, PLLC

What have you missed the most during the quarantine? Hugging friends and family

Favorite quote: “Do your best and leave the rest in the good Lord’s hands.”

What is your favorite quote? “Do the next right thing.”

Why law school: It was a combination of discussions with older classmates who were about to take the LSAT, classmates who were in the middle of law school, family members who were practicing attorneys, some of the courses I took at UCA, and my Dad asking me “where the hell do you see yourself in five years?” The latter really forced me to think about my future and what I wanted to do for my career.

Where do you see the future of the legal profession in five years? hopefully more accessible and equitable Was there an event or class that made you want to go to law school? AP - Environmental Science with Mrs. Snodgrass’ 11th grade (2000-01) If you were not practicing law, what would your dream job be? Stand-up Comedian

If you were not practicing law, what would your dream job be? Starting pitcher for the Atlanta Braves.

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

Wrestling with Expert Opinions: The Advisory Committee Considers Amending Federal Rule of Evidence 7021

By Jamie Huffman Jones

Federal Rule of Evidence (“FRE”) 702 currently provides: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the evidence is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. On October 19, 2019, the Chair of the Judicial Conference Advisory Committee for Evidence (“the Committee”), the Honorable Debra A. Livingston, addressed a panel of federal jurists convened to discuss the best practices of admitting expert testimony.2 “We’ve been wrestling with FRE 702 for some time now, addressing whether we should recommend to the Standing Committee of the Rules of Practice and Procedure to take up a possible amendment to the Rule,” she began. Specifically, she explained, the Committee is

Jamie Huffman Jones is a partner at Friday Eldredge and Clark, LLP in the Litigation Practice Group and is a member of the Firm’s Management Committee.

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looking now principally at the proposal to add a provision about overstatement of an expert’s conclusion to the Rule. The principal reason for our inquiry, the principal motivating factor when we took it up, was the special concern with forensic feature-comparison evidence. But members of the Standing Committee suggested that while we were engaged in this inquiry, we should take a look at Daubert too, as a whole, as it has been over twenty-five years since Daubert was decided, and this seemed like an opportune moment.3 A number of amendments have been suggested to the Committee.4 The purpose of this article is to educate regarding these possible amendments.5

The Enactment of the Federal Rules of Evidence The United States Supreme Court (“USSC”) circulated drafts of the FRE in 1969, 1971, and 1972, catching the attention of Congress. Pursuant to the Rules Enabling Act, Congress blocked implementation of the FRE pending Congressional study.6 On January 2, 1975, President Gerald Ford signed An Act to Establish Rules of Evidence for Certain Courts and Proceedings.7 Although statutory in nature, the USSC is given the authority to amend the FRE subject to Congressional disapproval. However, any modification to privileges requires affirmative approval by Congress.8 On December 11, 2011, a “restyled” FRE became effective. The Gatekeeping Function of FRE 702 Litigation often involves specialized theories, which are not in the normal understanding of a lay person. Experts are therefore necessary to assist the jury. FRE 702 seeks to reduce the risk that a jury is given bad information: “for the very reason that an expert is needed (because lay jurors need assistance) the jury may well be unable to figure out whether the expert is providing real information or junk.”9 A form of FRE 702 was included in the 1975 implementation. In the 1990s, however, the USSC decided a trio of cases that set out standards for the admission of expert testimony: Daubert v. Merrell Dow Pharmaceuticals, Inc.,10 Kumho Tire Co. v. Carmichael,11 and General Electric Co. v. Joiner.12 Following Daubert, the Circuits differed on how to interpret its requirements. The Committee noted: Some courts approach Daubert as a rigorous exercise requiring the trial court to scrutinize in detail the expert’s basis, methods, and application. Other courts hold that Daubert requires only that the trial court assure itself that the expert’s opinion is something more than unfounded speculation.13 Ultimately, FRE 702 was amended in 2000 and affirmed the trial court’s role as gatekeeper.14 Professor Capra, Reporter for the Committee, has identified particular issues in applying the trilogy to FRE 702:

1. At times, Daubert is a “schizophrenic opinion” with an inconsistent message; 2. General Electric “emphasized that trial courts have significant discretion in the gatekeeper review,” but also that trial courts must be concerned about any gaps between methodology and conclusion; and 3. Kumho Tire extended the gatekeeper function to nonscientific testimony.15 Professor Capra concludes that “[t]he bottom line from the trilogy is that the trial court must ensure that the expert is using the same degree of intellectual rigor in reaching the in-court opinion as you would expect them to use in their job outside of court.”16 Professor Capra and Judge Livingston’s comments thus allude to the issues the Committee wrestles with today. Suggested amendments are discussed below. The Gatekeeping Function “The trial judge in all cases of proffered expert testimony must find that it is properly grounded, well-reasoned, and not speculative before it can be admitted.”17 This is what is known as the gatekeeper function, to screen the testimony before it reaches the jury. Professor Capra has explained the procedure: It is not the case that the judge can say, “I see the problems, but they go to the weight of the evidence. After a preponderance is found, then any slight defect in either of these facts becomes a question of weight. But not before.18 In the 20 years that have passed since the amendment, Judge Livingston has noted that “a fair number of courts have treated the Rule 702 reliability requirements of sufficient basis and reliable application as questions of weight and admissibility.”19 Professor Capra is blunter, stating “the fact remains that some courts are ignoring the requirements of Rule 702(b) and (d).”20 He concluded that the issue is that some courts “have a different, less stringent view of the gatekeeper function.”21 Professor Capra further suggested that “it may be possible to tweak the existing language in some way, and then write a Committee Note that strongly reaffirms the admissibility requirements in

Rule 702 and criticizes the cases that treat these requirements as questions of weight rather than admissibility.”22 Such comments invited suggested amendments, citing to lack of circuit uniformity. Specifically, the proponents cite to opinions whereby particular flaws in the factual basis for the expert’s opinion or in the expert’s methodology are held to go to the weight or credibility the jury should give the testimony.23 Multidistrict Litigation Cases (“MDLs”) whereby a case can be won or lost based on how the circuit applies FRE 702 illustrate the issue.24 For example, in the Roundup MDL, the district court admitted that inter-circuit differences on how to apply FRE 702 “could matter in close cases” and that the Ninth Circuit’s approach “has resulted in slightly more room for deference to experts in close cases than might be appropriate in some other circuits.”25 Proponents argue that depending on the circuit, issues such as the reliability of “trending data,” opinions regarding general causation, and the role of drug studies might be admitted whereby the same testimony was excluded in another circuit.26 While initially the Committee was looking at this broad focus of the gatekeeping function, at the Committee’s symposium in 2018, “all of the judges [present] raised questions about amending Rule 702, suggesting that it was functioning properly in its current form.”27 The pushback likely narrowed the Committee’s focus. Following that symposium, Professor Capra stated, “[a]s to the weight/admissibility issue, the Committee has resolved that the text of the Rule should not be changed to address it, because Rule 702 already establishes that the reliability requirements are questions for the court, to be decided by a preponderance of the evidence.”28 A Focus On Regulating Expert Overstatement Instead of the broader focus of the gatekeeping function, “[a]fter the symposium, the Committee determined that it would focus on the possibility of an amendment . . . that would limit ‘overstatement’ by expert witnesses.”29 An example it has given is “an expert stating an opinion as having a ‘zero error rate’ where that conclusion is not supportable by the methodology.”30 Specifically, the current amendment drafted by the Committee

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

would add the following to the list of admissibility requirements under FRE 702: “the expert does not claim a degree of confidence that is unsupported by a reliable application of the principle and methods.”31 There Is No Presumption Of Admissibility The Committee is further primed to amend regarding burden of proof. While FRE 702 is silent, FRE 104(a) places the burden on the proponent of the evidence (by a preponderance). However, courts have stated that the presumption is that expert testimony is admissible, arguably altering the burden of proof.32 Such decisions often cite to the Committee Notes stating “a review of the case law . . . shows that rejection of the expert testimony is the exception rather than the rule.”33 Amendment proponents argue that this statement is taken out of context, and that it was “simply an empirical observation” that before the 2000 Amendment, the courts did not regularly exclude.34 As a cure, amendment proponents have suggested: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent of the testimony establishes by a preponderance of the evidence . . . .35 Current Status On October 25, 2019, the Committee conducted a miniconference with the judiciary on “Best Practices in Managing Daubert Questions.”36 The Committee stated that it was considering: Two possible changes to Rule 702: 1) an amendment regulating overstatement of expert conclusions (directed toward, but not only toward, forensic experts); and 2) an amendment (or Committee Note) that the admissibility requirements set forth in the rule—most especially sufficiency of basis and reliability of applications—are matters that must be decided by the court by a preponderance of the evidence under Rule 104(a).37

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It is anticipated that the comments from that conference will be discussed by the Committee.38 Generally it meets in April and October, with subcommittee meetings occurring in between. None have been posted since the October 2019 conference. Those interested should watch the process, and submit comments to any recommended amendment. Conclusion Twenty-five years after Daubert was rendered, the Advisory Committee now wrestles with whether FRE 702 is being applied as it was intended. Amendments designed to focus on regulating overstatement of expert conclusions and clarifying that the burden of proof is placed on the sponsor of the evidence by a preponderance of the evidence are anticipated. Endnotes: 1. This article concerns Federal Rule of Evidence 702, and not the separate Arkansas Rule of Evidence (“ARE”) 702. Like the Federal Rule, the case law interpreting ARE 702 does apply Daubert v. Merrrell Dow Pharm., Inc., 509 U.S. 579 (1993) and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). See Farm Bureau Mut. Ins. Co. of Ark. v. Foote, 341 Ark. 105, 116 (2000); Coca-Cola Bottling Co. v. Gill, 352 Ark. 240, 262 (2003). Potential differences in application of the two rules are beyond the scope of this Article. 2. Conference on Best Practices for Managing Daubert Questions, 88 Fordham L. Rev. 1215, 1217 (2020) (part of The Philip D. Reed Lecture Series Advisory Committee on Evidence Rules). 3. Id. 4. All are from defense-oriented organizations or corporations, including Federation of Defense & Corporate Counsel, Thomas Sheehan, Washington Legal Foundation, 50 Companies, Altec, Inc., and Lawyers for Civil Justice. See also David E. Bernstein & Eric G. Lasker, Defending Daubert; It’s Time to Amend Federal Rule of Evidence 702, 57 Wm. & Mary L. Rev. 1, 48 (2015) (“Many courts continue to resist the judiciary’s proper gatekeeping rules, either by ignoring Rule 702’s mandate altogether or by aggressively reinterpreting the Rule’s provisions.”). 5. The Advisory Committee for Evidence documents are all available through the

Judiciary’s website: https://www.uscourts. gov/rules-policies/records-rules-committees (last visited July 19, 2020). 6. Kirsi Luther, Wading in Erie’s Murky Waters: A Federal Court’s Constitutional Duty to Deny Supplemental Jurisdiction When Faced With A Conflict of Privilege Law, 52 Tex. Tech. L. Rev. 561, 570 (Spring 2020). 7. Pub. L. 93-595, 88 Stat. 1926. 8. 28 U.S.C. § 2074. 9. Daniel Capra, Memorandum at 132, https://www.uscourts.gov/sites/default/ files/advisory_committee_on_rules_of_ evidence_-_final_draft_agenda_book.pdf (last visited July 19, 2020). 10. 509 U.S. 579 (1993). 11. 119 S. Ct. 1167 (1999). 12. 118 S. Ct. 512 (1997). 13. Report of the Advisory Committee on Evidence Rules (May 1, 1999) at 7, in Advisory Committee on Evidence Rules October 1999 Agenda Book 52 (1999), https://www.uscourts.gov/sites/default/files/ fr_import/EV1999-10.pdf (last visited July 20, 2020). 14. Advisory Committee Notes 2000. 15. Fordham Law Review supra note 2, 1218–1220. 16. Id. 17. Advisory Committee Note to 2000 Amendments. 18. Memorandum from Reporter Daniel J. Capra (April 1, 2018) at 43, Agenda Book April, 2018 meeting (emphasis in original), https://www.uscourts.gov/sites/default/files/ agenda_book_advisory_committee_on_ rules_of_evidence_-_final.pdf (last visited July 20, 2020). 19. Memorandum from Debra Ann Livingston, Chair, Advisory Committee Evidence Rules, to David G. Campbell, Chair Committee on Rules of Practice and Procedure (May 14, 2018), Agenda Book for June 12, 2018 Standing Committee meeting minutes, p. 21, https://www.uscourts.gov/ sites/default/files/2018-10-evidence-agendabook_0.pdf (last visited July 20, 2020). 20. Memorandum from Reporter Daniel J. Capra (April 1, 2018), Agenda Book for Advisory Committee on Rules of Evidence April, 2018 meeting, https://www.uscourts. gov/rules-policies/archives/agenda-books/ advisory-committee-rules-evidenceapril-2018 (last visited July 20, 2020). 21. Memorandum from Daniel J. Capra, Reporter, Advisory Committee on Evidence Rules, Forensic Evidence, Daubert and Rule

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

702 (April 1, 2018) at at 50. 22. Id. at 53. 23. See Puga v. RCX Sols, Inc., 922 F.3d 285, 294 (5th Cir. 2019) (“As a general rule, questions relating to the bases and sources of an expert’s opinion affect the weight to be assigned that opinion rather than its admissibility.”); Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013) (“The soundness of the factual underpinnings of the expert’s analysis and the correctness of the expert’s conclusions based on that analysis are factual matters to be determined by the trier of fact, or where appropriate, on summary judgment.”); Nebraska Plastics, Inc. v. Holland Colors Americas, Inc., 408 F.3d 410, 416 (8th Cir. 2005) (“As a general rule, the factual basis of an expert opinion goes to the credibility of the testimony, not the admissibility, and it is up to the opposing party to examine the factual basis for the opinion in crossexamination.”); United States v. Shea, 211 F.3d 658, 668 (1st Cir. 2000) (“[A]ny flaws in [the] application of an otherwise reliable methodology went to weight and credibility and not to admissibility.”). 24. Letter from Thomas Sheehan to Bebecca

A. Womeldorf, Secretary, Committee on Practice and Procedure (June 9, 2020), https://www.uscourts.gov/sites/default/ files/20-ev-e_suggestion_from_thomas_ sheenan_-_rule_702_0.pdf (last visited July 20, 2020). 25. In re Roundup, 390 F. Supp. 3d 1102, 1109 (N.D. Cal. 2018). 26. See Sheehan Letter Suggestion supra, note 24, 19–21. 27. See October 25, 2019 Meeting of Advisory Committee Minutes, at 89, https://www.uscourts.gov/sites/default/ files/advisory_committee_on_rules_of_ evidence_-_final_draft_agenda_book.pdf (last visited August 3, 2020). 28. Id. at 131. 29. Id. 30. See October 2019 Meeting of Advisory Committee Minutes, supra note 27, p. 51. 31. Id. at 63 (emphasis added). 32. See e.g. Price v. General Motors, LLC, No. CIV-17-156-R (W.D. Okla. Oct. 3, 2018) (“[T]here is a presumption under the Rules that expert testimony is admissible.”) (quotation omitted); Crawford v. Franklin Credit Mgt. Corp., 08-CV-6293 (S.D.N.Y. Jan. 22, 2015) (“In assuming this role,

the Court applies a presumption of admissibility.”). 33. 2000 Amendments. See, e.g., E.I. du Pont de Nemours & Co. C-8 Pers. Injury Litig., No. 2:18-CV-00136, 2019 WL 6894069, at *2 (S.D. Ohio Dec. 18, 2019) (citing to this language). 34. Washington Legal Foundation Suggestion, Gatekeeping Orientation, A Rule 702 Amendment Can Correct Judicial Misunderstandings About Expert Evidence at 15, https://www.uscourts.gov/sites/default/ files/20-ev-d_suggestion_from_washington_ legal_foundation_-_rule_702_0.pdf (last visited July 20, 2020). 35. Federation of Defense and Corporate Counsel Suggestion Letter, https://www. uscourts.gov/sites/default/files/20-ev-f_ suggestion_from_federation_of_defense_ and_corporate_counsel_-_rule_702.pdf (last visited August 3, 2020). 36. Fordham Law Review, supra note 2. 37. See October 2019 Meeting of Advisory Committee Minutes, supra note 27, p. 61. 38. Fordham Law Review, supra note 2 at 1217. 

ARKANSAS OWNED AND OPERATED

info@facilicominc.com THE SELECTED TELECOMMUNICATIONS PROVIDER OF THE ARKANSAS BAR ASSOCIATION 38

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THANK YOU FOR A SUCCESSFUL ANNUAL MEETING VIRTUAL CONFERENCE! ARKANSAS BAR ASSOCIATION 122ND ANNUAL MEETING Thank you for being part of the historic 122nd Meeting of the Arkansas Bar Association. For the first time ever, we were together but we were apart. We are pleased to have done our part to keep you and yours safe. We will all get together again as soon as possible. This special event would not have been possible without the incredible support from our sponsors, speakers, exhibitors and volunteers! Save the date for next year—June 16-18, 2021.

ArkBar Annual Award Recipients Arkansas Bar Association 2019-2020 President Brian Rosenthal presented the awards in a virtual ceremony during the Annual Meeting. Go to www.arkbar.com/annualmeeting/home to view the video.

Presidential Awards of Excellence Maggie Benson, Littler Mendelson, Fayetteville, for work as Public Service Academy Co-Chair.

Joe F. Kolb, j. kolb, Little Rock, for work as Treasurer and Annual Meeting Co-Chair.

Nathan C. Looney, Arkansas Children’s Foundation, Little Rock, for work as Public Service Academy Co-Chair.

Dean Skip Rutherford, University of Arkansas Clinton School of Public Service, Little Rock, for work on the Public Service Academy.

Nikolai DiPippa, University of Arkansas Clinton School of Public Service, Little Rock, for work on the Public Service Academy.

Aaron L. Squyres, Wilson & Associates, PLLC, Little Rock, for work as Parliamentarian and Chair of the Bylaws Redrafting Committee.

Other Awards

Judith Ryan Gray Outstanding Young Lawyer Award Chris Hussein, Legal Aid of Arkansas, Inc., Springdale, for extraordinary, outstanding contributions and promoting the public welfare on behalf of the Young Lawyers Section.

CLE Award Mary Claire Hyatt, Arkansas Department of Education, Little Rock, for work elevating the quality of continuing education provided through ArkBar CLE.

YLS Award of Excellence Caroline Kelley, Kelley Law Firm, Rogers, for outstanding work in the Young Lawyers Section.

Outgoing Board of Governors Award Brandon K. Moffitt, Moffitt & Phillips, PLLC, Little Rock, for work as Chair of the Board of Governors.

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Golden Gavel Awards Kandice A. Bell, Office of Arkansas Governor Asa Hutchinson, White Hall, for work as CoChair of the Disaster Preparedness Task Force.

Heide Harrell, Director of Marketing & Business Development, Rose Law Firm, Little Rock, for work as Marketing Advisor, Branding Task Force.

Howard W. Brill, School of Law, University of Arkansas, Fayetteville, for work as Steering Committee member and Speaker in the Public Service Academy.

Heather Haywood, APR, Director of Marketing & Public Relations, Mitchell, Williams, Selig, Gates & Woodard, P.L.L.C., Little Rock, for work as Marketing Advisor, Branding Task Force.

Beverly I. Brister, The Brister Firm, Benton, for work as Chair, Law Related Education Committee.

Glen Hoggard, Hoggard Law Firm, North Little Rock, for work as Secretary.

Judge Earnest E. Brown, Jr., Circuit Judge, Pine Bluff, Judicial District: 11th West, Jefferson and Lincoln Counties, for work on the Steering Committee of the Public Service Academy.

Chris Hussein, Legal Aid of Arkansas, Inc., Springdale, for work as Interim Young Lawyer Section Chair.

Tim Cullen, Cullen & Co., PLLC, Little Rock, for work on Legislative Drafting and Constitutional Research.

Jamie Huffman Jones, Friday, Eldredge & Clark, LLP, Little Rock, for work as Co-Chair, Jurisprudence and Law Reform Committee.

Representative Carol Dalby, State Representative, District 1, Texarkana, for Leadership and Service to the Association.

Sarah C. Jewell, McMath Woods P.A., Fayetteville, for work as Mid-Year Planner.

Bob Edwards, The Edwards Firm, PLLC, Little Rock, for his work on Association sponsorship categories and sponsorships.

Sean T. Keith, Keith Law Group, Rogers, for work as Co-Chair, Jurisprudence and Law Reform Committee.

Bob Estes, Law Office of Bob Estes, Fayetteville, for work as Chair, Redistricting Task Force.

Cindy Kolb, Cross, Gunter, Witherspoon & Galchus, P.C., Little Rock, for work as CoChair, Annual Meeting.

Julie DeWoody Greathouse, PPGMR Law, PLLC, Little Rock, for work as Chair, Emeritus Attorney Rule.

Jeffrey E. McKinley, Attorney at Law, Little Rock, for work as Chair, Branding Task Force.

Please visit www.arkbar.com/annualmeeting/home to view videos from the Virtual Annual Meeting Conference including the awards ceremony. Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

Golden Gavel Awards (cont.) J. Cliff McKinney II, Quattlebaum, Grooms & Tull PLLC, Little Rock, for work as Chair, Legal Hall of Fame Task Force.

Jordan Bates-Rogers, Arkansas Access to Justice Commission, Little Rock, for work on Emeritus Rule Drafting.

Anthony L. McMullen, Associate Professor of Business Law, University of Central Arkansas, Conway, for work as Chair, Mock Trial Committee.

Speaker Matthew J. Shepherd, Speaker of the Arkansas House of Representatives, State Representative, District 6, Shepherd & Shepherd, P.A., El Dorado, for Leadership and work on the Steering Committee of the Public Service Academy.

Regan Gruber Moffitt, Winthrop Rockefeller Foundation, Little Rock, for work on the New Student Initiative.

G. S. Brant Perkins, The Perkins Law Firm, P.A., Jonesboro, for work as Chair, Constitution Information Advancement Committee.

Scott C. Trotter, Trotter Law Firm PLLC, Little Rock, for work in Legislative Drafting and Constitutional Research.

Samantha Vital, The Herrera Law Group, Rogers, for work as Co-Chair, Disaster Preparedness Task Force.

Celebrating 50 Years Congratulations to the following members who have been admitted to the practice of law in Arkansas for 50 years:

Judge Samuel N. Bird Larry W. Burks Jerry L. Canfield George Randall (Randy) Coleman, Jr. Thomas (Tom) A. Daily Al J. Daniel, Jr. John C. Everett Larry Froelich Stephen A. Geigle Sam Gibson John C. Gregg Robert L. Hart, Jr. Donald B. Kendall Jerry Mazzanti Jack A. McNulty J. Conley Meredith

Jim Roger Nash Bobby Lee Odom Eudox Patterson Jerry Dean Patterson David J. Potter Lonnie A. Powers Robert J. Reid J. Mark Spradley George Edwin Steel Boyd A. Tackett, Jr. Allyn (Lynn) Tatum David S. Taylor Byron Thomason William M. Warren John Dewey Watson Timothy F. Watson, Sr.

Please visit www.arkbar.com/annualmeeting/home to view the video that celebrates the 50-year members with video testimonials from the members speaking about their experiences in the legal profession and some advice for new lawyers. 42

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Arkansas Bar Foundation and Arkansas Bar Association Joint Awards

The Arkansas Bar Foundation and the Arkansas Bar Association selected the following persons to honor this year because of their outstanding contributions. Those selected are:

Outstanding Lawyer-Citizen Award

Outstanding Lawyer Award EDDIE H. WALKER, JR.,

JAMES A. (JIM) MCLARTY III,

Walker, Shock & Harp, P.L.L.C., Fort Smith, in recognition of excellence in the practice of law and outstanding contributions to the profession.

Attorney at Law, Newport, in recognition of outstanding participation in and excellent performance of civic responsibilities and for demonstrating high standards of professional competence and conduct.

C.E. Ransick Award of Excellence JEFFREY E. MCKINLEY, Attorney at Law, Little Rock, in recognition of outstanding contributions to the profession.

James H. McKenzie Professionalism Award C.C. (CLIFF) GIBSON III,

Gibson & Keith, Monticello, in recognition of sustained excellence through integrity, character and leadership to the profession and the community.

Equal Justice Distinguished Service Award STEVEN B. DAVIS, Attorney at Law, Harrison, in recognition of commitment to and participation in equal justice programs, including pro bono efforts through legal services programs.

Outstanding LawyerHumanitarian Award WILLIAM C. (BILL) MANN III, Arkansas Municipal League, Little Rock, in recognition of outstanding humanitarian service.

Outstanding Jurist Award JUDGE JOHN N. FOGLEMAN, Retired Circuit Judge, Marion, in recognition of exceptional competency, efficiency and integrity on the Bench and exemplary service to the administration of justice.

Arkansas Bar Foundation Writing Awards Legal Category: Kyle E. Burton and Paul Charton “Navigating the Uncharted Course of the Electronic Appeal Project” published in the Winter 2020 issue of The Arkansas Lawyer General Category: Marquisa Wince “Access to Justice: New Developments and Future Plans” published in the Summer 2019 issue of The Arkansas Lawyer

Outstanding Local Bar Associations Pulaski County Bar Association

Sebastian County Bar Association

Burton

Charton

Wince

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

We commemorate the life of our beloved member and friend.

Tim Boe 1948-2020

A leader and statesman within our firm and in the field of labor and employment law for over 40 years.

Need to manage your cases from home? No problem.

Arkansas Bar Association members get a 10% discount on Clio products. Sign up today at Clio.com/arkbar.

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CROSS, GUNTER, WITHERSPOON & GALCHUS, P.C.

There are two attributes that ring equally true with Dover Dixon Horne – we are committed to excellence in our legal practice, and we value the relationships we have with our clients. As a firm, we combine our strengths and experience into teams that work with clients to address and resolve their legal needs. Dover Dixon Horne offers a full span of legal resources to address the many challenges our clients face, without sacrificing personal attention and individual oversight. Each client receives the collective expertise of our entire, highly accomplished team. 425 W. CAPITOL AVE., STE. 3700, LITTLE ROCK, AR (501) 375-9151 | DDH.LAW

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RICHARD MAYS LAW FIRM, PLLC Richard H. Mays, formerly of Williams & Anderson PLLC, has relocated his office to 2226 Cottondale Lane, Little Rock (adjacent to the Arkansas Bar Center), and will continue his practice with emphasis on: • • • • • •

Environmental Law Oil, gas and natural resources law Eminent domain Flooding and Levees General litigation Real Estate and Business transactions

Richard Mays represents individuals, citizen groups and environmental organizations in cases against governmental agencies, such as the U.S. Army Corps of Engineers and the Federal Highway Administration, and companies such as electrical utilities, oil and gas production companies, and national pipeline companies regarding private and public-works projects harmful to landowners and the environment of Arkansas.

Richard Mays Law Firm

Over fifty years of fighting for the environment and the rights of individuals. Referrals welcome. 2226 Cottondale Lane • Suite 100 • Little Rock, AR 72202 • 501-891-6116 • rmays@richmayslaw.com

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

Evolution and Modernization of the Electric Grid

By Paul Suskie and Justin Hinton How Arkansas-based Southwest Power Pool coordinated federal, state and local laws and regulations to transform the electric grid in the Midwest.

Suskie

Hinton

Paul Suskie serves as Executive VicePresident & General Counsel for Southwest Power Pool. Justin A. Hinton serves as an Attorney for Southwest Power Pool.

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The United States’ electric grid is the largest and most complex machine on the earth and is believed by many to be the greatest engineering achievement of the 20th century. Considering that the delivery of electricity over seven million miles of electrical lines is an essential and critical part of our nation’s economy and Americans’ everyday lives, these descriptions about the electric grid seem appropriate. Since 1941, Southwest Power Pool (SPP) has been coordinating the flow of electric power. And for the last 16 years, SPP, headquartered in Little Rock, Arkansas, has been quietly facilitating a transformation of the electric grid throughout the United States’ Great Plains. This article summarizes the evolution of our nation’s electric grid through federal laws and policies that transformed the once nonexistent commodity of electricity to, arguably, the most critical necessity of our lives and economy. The article also explains how federal, state, local and corporate policies have influenced and transformed how SPP and its members produce and dispatch electricity in the nation’s heartland. Electric Utilities Origins Monopoly-based Regulation From its inception, the electric industry recognized the advantages of being “natural monopolies.”1 Because the electric industry benefited from economies of scale and needed huge capital investment, it was “natural” for one electric company to be a monopoly. During the early 1900s there was a consolidation of electric power firms to exploit the benefits of the new largescale turbine generators and to build transmission lines for the alternating current electric system. Therefore, it became necessary to have regulations to ensure that the ratepayers received the benefits created by these “natural monopolies.” The early electric providers were either municipalities or state agencies. Federal Powers Act of 1935 The generation and distribution of electric power was unregulated by the federal government until Congress amended the Federal Water Power Act of 19202 by enacting the Federal Power Act (FPA) of 1935.3 One of the purposes of the FPA was to establish an independent regulatory body called the Federal Power Commission (FPC). The FPA granted the FPC the authority to regulate the interstate and wholesale transactions as well as transmission of hydroelectric power.

Rural Electrification Act In 1936, almost 90% of the farms in rural America were without electricity because building infrastructure to deliver electricity was cost prohibitive. Due to the lack of electricity in rural American homes, “[i]n 1936 Congress enacted the Rural Electrification Act (RE Act) … empowering the Rural Electrification Administration (REA), an independent federal agency, to provide rural America with low cost electricity and telephone service by lending funds to rural electric and telephone systems directly at below market interest rates.”4 The REA was a huge success. “By 1953, more than 90% of U.S. farms had electricity.”5 Federal Policy Changes in the Last 50 Years In response to a national energy crisis, the Department of Energy Reorganization Act6 was enacted in 1977 “to establish a Department of Energy in the executive branch by the reorganization of energy functions within the Federal Government in order to secure effective management, to assure a coordinated National energy policy.” This law changed the name of the FPC to the Federal Energy Regulatory Commission (FERC). Since its name change, FERC has adopted and implemented a number of policies that have changed the regulatory construct of our nation’s electric industry. Public Utility Regulatory Policies Act As an additional response to the energy crisis in 1978, Congress enacted a number of energy policies, including the Public Utility Regulatory Policies Act (PURPA). “PURPA set forth a framework to encourage the development of alternative generation resources that do not rely on fossil fuels

and cogeneration facilities that make more efficient use of the heat produced from the fossil fuels that were then commonly used in the production of electricity.”7 Specifically, PURPA created rules that required public utilities to purchase power from a new class of electricity-generating facilities called “qualifying facilities” (QFs). These QFs were “renewable generators smaller than 80 megawatts and cogenerators that generate electricity as a byproduct of an industrial process.”8 Public utilities were required to pay QFs for electricity provided to the grid.9 PURPA was the first federal action moving toward deregulation of electric utilities by requiring public utilities to purchase electricity from QFs and allowing nonpublic utility companies into the electricity marketplace. Energy Policy Act of 1992 In an effort that further moved toward deregulation, Congress enacted the Energy Policy Act of 1992 (EPAct 1992). EPAct 1992 allowed a wholesale electric company to petition FERC for an order requiring a transmitting utility to provide transmission services to the applicant at fair rates. “This change [was] designed to open the highways of electricity commerce, which until now have been accessible almost exclusively to transmission-owning electric utilities.”10 EPAct 1992 allowed non-public utilities the ability to compete in the wholesale electric generation market and effectively prevented vertically-integrated public utilities from setting the wholesale electric generation rates. FERC Order 888 On April 24, 1996, FERC issued its landmark Order 888, which required public utilities regulated by FERC to provide open

access transmission service on a comparable basis to the transmission service they provide to themselves.11 Order 888 required all public utilities that own, control or operate transmission facilities used for transmitting electric energy in interstate commerce to file open access non-discriminatory transmission tariffs that contain minimum terms and conditions of non-discriminatory service. FERC stated that the goal of Order 888 was to remove obstacles to competition in the wholesale bulk power marketplace and to bring more efficient, lower cost power to electricity consumers.12 FERC Order 2000 On December 20, 1999, FERC issued Order 2000 with the belief that regional transmission organizations (RTOs) would continue the electric industry’s momentum toward restructuring and open access that first started with Order 888.13 The goal of Order 2000 was to promote efficiency in wholesale electricity markets and to ensure that electricity consumers pay the lowest price possible for reliable service. Like independent system operators (ISOs), RTOs encourage competitive generation markets by bringing all transmission control under the management of the RTO.14 ISOs and RTOs in North America Since the issuance of FERC Orders 888 and 2000, there has been huge growth in ISOs and RTOs. ISOs and RTOs account for two-thirds of the electric consumers in the U.S. and more than 50% of the population of Canada. ISOs and RTOs have helped to reliably integrate a diverse mix of power resources onto the electric grid and instantaneously match power generation with demand to keep the lights on. On February 10, 2004, FERC issued

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

an order granting SPP status as an RTO.15 This approval made SPP the last FERCrecognized RTO in the United States. Today, SPP is one of nine regional market operators in North America. SPP currently has 100 members, including 16 investorowned utilities, 14 municipal systems, 20 generation and transmission cooperatives, 8 state agencies, 16 independent power producers, 12 power marketers, 11 independent transmission companies, 1 federal agency and 2 large retail customers. As an RTO, SPP administers open access transmission service for 17.5 million customers across its 66,900 miles of transmission lines. SPP’s transmission owners cover all or part of 14 states and operate the Integrated Marketplace that includes a centralized day-ahead and realtime energy and operating reserve market. Renewable Generation Policies Shortly before and since the creation of RTOs, several governmental policies— federal, state and local—have promoted renewable generating resources, and many companies are now setting corporate goals for renewables. This new focus on renewables has shifted our nation’s new generation build away from traditional generation resources, such as coal, gas and nuclear, to more intermittent resources, such as wind, solar and, more recently, storage. Federal Production Tax Credits Federal production tax credits (PTCs) are one of the primary reasons for the investment and deployment of renewable energy technology within the last few decades. Since 1992, the federal government has offered PTCs to entities that generate electricity using renewable resources. The amount and mechanics of those PTCs have changed over the years, but the federal policy of promoting renewables via tax policy remains the same. State Renewable Portfolio Standards A number of states have adopted renewable portfolio standards (RPS) or goals. An RPS is a state regulatory mandate to increase production of energy from renewable sources, such as wind, solar, biomass and other alternatives to fossil and nuclear electric generation. Currently, there are only 13 states without some sort of RPS. These policies have led many states to invest in and purchase electricity from renewables. Local Governments Setting Renewable Goals 48

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Many local governments have also determined renewable energy technology is an important environmental and economic policy. A large number of local governments have instituted goals of renewable energy use.16 These goals range from a city’s use of a certain amount of megawatts (MW) of renewable energy to a target to become 100% renewable. Corporate Policies for Renewables In addition to governmental interest in renewable energy, many corporations have made renewable energy goals an important part of their corporate strategy. There have been corporate announcements from major companies such as Walmart17, Google18 and Facebook19 announcing their intentions for aggressive renewable goals. The purchase of renewable generation by corporations has rapidly increased in recent years. According to a recent survey, “US corporations have signed power purchase agreements (PPAs) for 5.9 gigawatts (GW) of renewable energy in the first half of 2019, up from 4.4 GW for the same period in 2018. The 2018 US total was 9.1 GW, rising from just 0.6 GW in 2015.”20 SPP and the Transformation of the Electric Grid The amalgamation of government and corporate renewable goals combined with the abundance of wind in the Great Plains has caused SPP to see an enormous growth in wind generation. In the early 2000s, SPP’s generating fleet included less than 400 MW of wind, and for years wind was reported in the “other” category in SPP’s fuel mix data. Times have changed. In 2019, the SPP region had over 22,000 MW of wind-generating capacity on the system, and wind was the second most dispatched source in the region. Looking into the future, SPP expects wind to be the most dispatched resource by 2021, replacing coal, the leading generation source for decades. SPP has reliably transitioned the production of electricity by optimizing the dispatch of traditional generating sources and incorporating large amounts of renewables. This is a significant accomplishment. From an environmental perspective, this transition has reduced carbon dioxide (CO2) emissions by an estimated 21%. From a wholesale price perspective, “SPP prices remain … the lowest in any organized market” in the

country.21 SPP has successfully managed this transition of the region’s grid triggered by these governmental policies and transitioned the region’s grid as discussed below. The Big Three: Consolidated Balancing Authority, Integrated Marketplace and a Robust Transmission Buildout Three major accomplishments have been key to SPP successfully transitioning the electric grid: (1) the consolidating of 17 electrical balancing authorities (BAs); (2) the launch of the Integrated Marketplace; and (3) the investment of $10 billion in new transmission. Consolidated BA and Day-Ahead Market The consolidation of BAs and the launch of the Integrated Marketplace both occurred on March 1, 2014. The consolidation of BAs means that instead of 17 local utilities simultaneously balancing electricity production with electricity use, SPP balances the entire region as one large BA. This consolidation allows utilities to share low-cost power in a more cost-effective and reliable manner, saving customers tens of millions of dollars annually. SPP’s Integrated Marketplace is a dayahead electricity market where participants buy and sell wholesale electricity in real time and for the next day. The market works by giving utilities a place to buy electricity a day in advance, based on the next day’s projected energy consumption. Likewise, the market provides sellers a fair price for electricity production. The market matches buyers and sellers based on capacity on the electrical grid. Once this happens, the market clears with dispatch instructions to generators for the next day, which creates savings for end-use customers. Since the launch of the Integrated Marketplace, SPP has saved customers $3.5 billion. Robust Transmission System An essential part of any market is the ability to move products from supplier to consumer. The electricity market is no different. Currently, the primary means of moving electricity in large volume is through electric transmission lines. To enable the transfer of large volumes of electricity across SPP’s 14-state footprint, SPP’s members made significant investments in transmission infrastructure. SPP’s Regional State Committee (RSC)22 helped SPP reach consensus on how to pay for approximately $10 billion in infrastructure investments.23

ARCF AR Lawyer Ad 2020 FINAL.pdf

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Arkansas Community Foundation recognizes our 2019-2020 Golden Key Society partner attorneys C

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who use our smart giving resources. We collaborate with lawyers like you to provide tools and information that help you achieve your clients’ philanthropic goals. Learn more at arcf.org/advise.

2019-2020 Golden Key Society Attorneys Robyn Allmendinger, Little Rock Rose Law Firm

Lyle Foster, Little Rock Hyden, Miron & Foster, PLLC

John Shram, Little Rock Winburn, Wilson, Schrader & Shram

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Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

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Conclusion By synchronizing and aligning policies— both public and private—SPP, as an RTO, has helped to transform the production and delivery of electricity to 17.5 million Americans over the last 16 years. With rapid technological changes in batteries, storage and solar, the transformation over the next few years will be exciting to watch. Endnotes: 1. Dr. Richard Hirsh, Emergence of Electrical Utilities in America, National Museum of American History Behring Center, https://americanhistory.si.edu/powering/ past/history1.htm. 2. 16 U.S.C. §§ 791a–825r. 3. 16 U.S.C. §§ 792–825u. 4. Matter of Cajun Elec. Power Co-op., Inc., 109 F.3d 248, 251–52 (5th Cir. 1997). 5. History: The story behind America’s electric cooperatives and NRECA, NRECA, https:// www.electric.coop/our-organization/ history/. 6. H.R. 4466–95th Congress: Department of Energy Organization Act. 7. Qualifying Facility Rates and Requirements, 50

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Notice of Proposed Ratemaking, 168 FERC ¶ 61,184 (2019). 8. Ari Peskoe, Public Utility Regulatory Policies Act of 1978 (PURPA), Regulatory Rollback, Harvard Law School Environmental & Energy Law Program (Sept. 23, 2019) (https://eelp.law.harvard. edu/2019/09/public-utility-regulatorypolicies-act-of-1978-purpa/). 9. 18 C.F.R. § 292.101(b)(6) (1983). 10. Jeffrey D. Watkiss and Douglas W. Smith, The Energy Policy Act of 1992-A Watershed for Competition in the Wholesale Power Market, 10 Yale Journal on Regulation 447 (1993). 11. Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, Order No. 888, 61 Fed. Reg. 21,540 (May 10, 1996), FERC Stats. & Regs. ¶ 31,036 (1996) (Order No. 888). 12. Id. 13. Regional Transmission Organizations, Order No. 2000, 65 Fed. Reg. 809 (January 6, 2000), FERC Stats. & Regs., Regulations

Preambles July 1996–December 2000 ¶ 31,089 at 31,226-27 (1999). 14. Id. 15. Sw. Power Pool, Inc., 109 FERC ¶ 61,009 (2004), order on reh’g, 110 FERC ¶ 61,137 (2005). 16. Renewable Energy in Cities - Overview, United States Conference of Mayors, http://www.usmayors.org/wp-content/ uploads/2018/10/Overview-of-citypractices.pdf. 17. Walmart Launches Project Gigaton to Reduce Emissions in Company’s Supply Chain, Walmart, https://corporate.walmart.com/ newsroom/2017/04/19/walmart-launchesproject-gigaton-to-reduce-emissions-incompanys-supply-chain. 18. Achieving Our 100% Renewable Energy Purchasing Goal and Going Beyond, Google, https://static.googleusercontent.com/media/ www.google.com/en//green/pdf/achieving100-renewable-energy-purchasing-goal.pdf. 19. On Our Way to Lower Emissions and 100% Renewable Energy, Facebook, https:// about.fb.com/news/2018/08/renewableenergy/. 20. Moving organizational energy use toward 100 percent renewables—aspiration or destination?, Deloitte, https://www2. deloitte.com/us/en/insights/industry/powerand-utilities/organizational-energy-use-100percent-renewables.html?id=us:2el:3pr:4di 6387:5awa:6di:100219:&pkid=1006707) (citing BloombergNEF, 2H 2019 Corporate Energy Market Outlook, August 12, 2019). 21. 2019 State of the Market Report, A Staff Report to the Commission, March 19, 2020 (https://www.ferc.gov/sites/default/ files/2020-05/2019-som.pdf ). 22. The RSC is a board of state utility regulators in the SPP region that sets policies for the region on various matters including who pays for transmission investments. Through this compact, states decide how to equitably allocate cost among utilities in the region. Without the cost recovery certainties of these agreements, utilities would be reluctant to invest billions of dollars. 23. The History of the Regional State Committee for the Southwest Power Pool, Inc., Southwest Power Pool, https://www.spp.org/documents/58610/ history%20of%20the%20rsc%202019%20 update.pdf. 

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LEGAL BRIEFING Handling all your briefing needs Robert Tschiemer is the author of the Arkansas Bar Weekly Case Summaries, available at www.arkbar.com. For a complete list of decisions see www.tschiemerlegalbriefing.com

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Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

Fastcase Fast Facts By Cathy Underwood Alerts – Let Fastcase keep you up to date automatically. You’ve created the perfect search query, selected the databases that you need to search, and gotten some good results! This is an area of law that you work in frequently, so you want to make sure you stay up to date on new cases. Fastcase allows you to save the search as an alert, and any time a new case is decided that meets your search criteria, Fastcase sends it to you. You can set it up to receive alerts daily, weekly, or monthly, and can even set up the alerts to be sent to you and one or more others. It’s super easy to do! Simply create your search and run it. Then, click on the icon in the search bar that looks like a bell with a plus sign in it. Note that once you’ve clicked on it, the bell turns orange; when you hover your mouse over the bell, it now gives you an option to “Remove this search from Alerts.”

That’s it. It’s that simple. But what did we just do? What happens now? Let’s look at the options available to customize the way the Alerts feature works for you. First, let’s look at our saved alerts. Click on the “History and Favorites” icon in the very top right of your screen (that’s the one that looks like a clock). Now you should have on your screen the “History, Favorites, and Alerts” menu. The last option on the right is “Caselaw Alerts.” Clicking on that shows a list of your saved alerts. On the right, just under the Caselaw Alerts heading, is an option to send as individual or digest. (Individual is the default.) If you have only one alert set, this is meaningless. But if you have multiple alerts set, you can choose here whether to receive them all in one email (that’s the Digest option), or have each alert sent in a separate email. Basically, there are two options with this list: (1) click on the trash can to delete an alert, or (2) click on the edit button to edit the options for the alert. Clicking to edit an alert allows you to: • •

•

name the alert (or change the name of the alert, if you’ve already named it) change the frequency for delivery of the alert (the default is daily, but you can change it to weekly or monthly; if you choose weekly or monthly, another question pops up that asks you on which day of the week or month you wish to receive it) choose whether or not to receive an empty message if there are no new cases that meet your search criteria (but honestly, why would you want to receive an email just to tell you there is nothing to tell you? Leave it on the default, which is don’t send empty message) additional recipients (share your alert with a coworker – just type in the email address(es) you want to send it to)

Join the Fastcase User Forum in the ACE Community 52

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Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

Book Review Trial Handbook for Arkansas Lawyers (4th Ed., 2018) by John Wesley Hall (Arkansas Practice Series, Vols 3 and 3A), 3017 Pages. Book Review by Gerry Schulze These volumes, and their predecessors, have guided Arkansas lawyers preparing for trial for over 30 years. These volumes are a crucial aid to some of the complicated issues that can arise even during a simple trial. It is a useful quick reference for many of the procedural, legal, strategic, and ethical issues that can occur in a trial. The amount of content has expanded, but thanks to the organization of these volumes, it is still easy to find what you want. Jeff Woodmansee of the UALR William H. Bowen School of Law advises his research students when they discuss secondary sources and practice materials: “The Arkansas Trial Handbook is the trial practice Bible for Arkansas.” Even the most prepared lawyer will have to respond to surprises and unexpected developments. As the author reminds us early, “A trial often is really a series of unanticipated events” (§1:5). For example, there is a very useful and practical discussion of Batson challenges. It is difficult to anticipate that in jury selection an attorney might seek to control the racial composition of a jury. Such a practice is rarer than it used to be. But it occurs, both in criminal and civil cases. We have to be ready for it, but how can we

be ready for something like that? It is particularly difficult because a timely objection is essential. There is a short but complete—step by step—discussion of how a Batson challenge is supposed to function. This book is a great brainstorming tool for a trial. You can look through the table of contents and see if anything catches your attention. Another valuable use of this book is as a research tool. There are exhaustive references to relevant cases, statutes, and other resources. These volumes seems to be not just a guide to trial practice, but in some areas it is an encyclopedia of law as well. It is a great place to start your trial preparation, so that at the end of the day, you can end up where you want to end up. According to the author: “This new edition has expanded into sort of a mini-legal-encyclopedia, including caselaw on every topic; it also includes numerous trial advocacy suggestions for lawyers still new to trial advocacy on how to do opening statements, direct examination, cross-examination, and closing argument, something none of the other 30 or so Thomson-West trial handbooks does.”

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Disciplinary Actions ATTORNEY DISCIPLINE ACTIONS Final actions from April 1 – June 30, 2020, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online either at http://www.arcourts.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.] REPRIMAND: Charles Sidney “Chuck” Gibson, II, ABN 90030, of Dermott, on August 20, 2018, was charged in federal court with one misdemeanor count of failing to file a federal individual income tax return for 2012. He entered a guilty plea on November 28, 2018, and was sentenced to three years’ probation, 200 hours of community service, six months home detention with electronic monitoring, and ordered to pay restitution to the IRS of $344,162, covering his failure to file returns for 2010, 2011, and 2012, on estimated and imputed taxable income of $1,093,308. Gibson’s admitted conduct violated AR Rule 8.4(b), committing a criminal act. In Committee Case No. CPC 2019-022 he consented to a reprimand in a Consent Findings & Order filed June 19, 2020. Robert A. Newcomb, ABN 73087, of Little Rock, in Committee Case No. CPC 2019-043, on a complaint by James Blackwood, by a Consent Findings & Order filed April 17, 2020, admitted to violations of AR Rules 1.1, 1.3, and 8.4(d), for which he agreed to a reprimand and restitution to Blackwood of $3,000. Blackwood was approached in early 2017 by two investors to join them in a new Cajun-themed restaurant in Conway, and bring to the venture his restaurant management expertise, a full-service liquor permit he held, and a modest capital contribution. Blackwood did work for the venture, but problems arose in mid-2017, and Blackwood engaged Newcomb for representation and eventually paid him about $3,000. Newcomb filed suit in state court against the other two members of the venture, alleging a verbal contract with Blackwood and money damages. Defective summonses were issued. The case was dismissed without prejudice on motion of one of the defendants. In February 2018, Newcomb refiled the same basic suit, praying for damages of

$52,000. Defective summons were again issued. A motion to dismiss was filed, to which Newcomb failed to file a response. In September 2018, the motion was granted, with dismissal with prejudice. Blackwood then sued Newcomb for legal malpractice over the two failed lawsuits. That case, No. 60cv-19-2139, is still pending. Robert A. Newcomb, ABN 73087, of Little Rock, in Committee Case No. CPC 2020-001, on a complaint by Arthur Kaye, by a Consent Findings & Order filed April 17, 2020, admitted to violations of AR Rules 1.1, 1.3, 1.4(a)(2), 1.4(a)(3), and 8.4(d), for which he agreed to a reprimand and restitution of $3,000 to Kaye. In early 2017, Kaye employed Newcomb and paid him about $3,000 to sue his former employer of 28 years in federal court for wrongful termination. Discovery issues arose, to which Newcomb failed to file responses or keep his client properly informed. The case was dismissed without prejudice in July 2019, but Kaye only learned of that from a later visit to the clerk’s office and a review of his file there. Kaye had no communication from Newcomb about the status of his case after August 2019. Any refiling for Kaye may have been time-barred by then. Kaye is not aware that Newcomb ever refiled or offered to refile his suit. CAUTION: Jacqueline Chronkhite (formerly Dodd), ABN 2011180, of Fort Smith, in Committee Case No. CPC 2020-006, on a complaint by Karen Johnson, consented to a disposition of a caution for violations of AR Rules 1.3, 1.4(a)(1), 1.4(a)(2), 1.4(a)(3), and 1.4(b) in a Consent Findings & Order filed June 19, 2020. Chronkhite undertook representation of Johnson in a medical malpractice matter arising from eye surgery on Johnson in June 2015. In June 2017, Chronkhite filed suit specifically to beat the statute of limitations, but informed Johnson that Chronkhite needed $500 from Johnson to serve the several defendants, and Chronkhite, a solo practitioner at the time, could not herself fund what would be an expensive case if pursued. Chronkhite claimed to have sent several letters to Johnson reminding her of the need for the service funds. Johnson claimed she received none of the letters. Chronkhite filed for an extension of time to serve summons. The court set the motion for a hearing, learned Chronkhite had not yet had summonses issued, and denied the motion, effectively killing the lawsuit and cause of action, as the statute of limitations had by then run. At the hearing, Chronkhite chose to not disclose certain information about her dealings with her client, believing the attorney-client privilege did not allow her to do so. Chronkhite accepted the fault for what happened to Johnson’s suit. 

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Arkansas Bar Foundation 2224 Cottondale Lane, Little Rock, Arkansas 72202 www.arkansasbarfoundation.com • 501.801.5670

Judge Cindy G. Thyer Elected Arkansas Bar Foundation President Judge Cindy G. Thyer, of Jonesboro, began her term as President of the Arkansas Bar Foundation Board of Directors for the 2020-21 bar year immediately following the Annual Foundation Meeting on June 3, 2020. Judge Thyer earned her B.A. Degree in Business Administration from the University of Arkansas at Little Rock and her Juris Doctorate from the University of Arkansas in Fayetteville. After serving as a deputy prosecuting attorney and practicing law for a number of years, Judge Thyer has served as Circuit Judge for the Second Judicial District, Division 4, since 2005. She has been a Fellow of the Arkansas Bar Foundation since 2004 and is a Sustaining Fellow. Judge Thyer has served the Foundation as Secretary-Treasurer and VicePresident of the Board of Directors and as a member of the Trust Committee. She is a past member and past Chair of the Arkansas Bar Association Board of Governors and served on the House of Delegates and as Parliamentarian. She also has been an active member of the Association’s Legislation Committee and the Arkansas Supreme Court’s Civil Jury Instruction Committee. Judge Thyer currently serves on the Arkansas Judicial Council’s drug court, bar liaison and trial court employee committees. She recently received her master’s degree in Judicial Studies from the University of Nevada. She is currently a member of the American Law Institute serving as an Adviser on the Children and the Law Restatement project and is an alternate panel member on the Arkansas Judicial Discipline and Disability Commission.

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Memorials and Honoraria The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period May 1, 2020, through July 31, 2020. In Memory of Tim Boe Brian and Susie Rosenthal Judy and Glenn Vasser In Memory of Sidney P. Davis Judy and Glenn Vasser In Memory of George D. “Bucky” Ellis Justice Annabelle Imber Tuck Judy and Glenn Vasser

In Memory of Charles Owen Justice Annabelle Imber Tuck James D. Sprott Judy and Glenn Vasser In Memory of Nicholas H. Patton Judy and Glenn Vasser

In Memory of L. D. Gibson John V. Phelps

In Memory of Claibourne W. Patty, Jr. Judge Rita and Judge Wayne Gruber John L. Rush Justice Annabelle Imber Tuck Mike Wilson

In Memory of Frank Huckaba B. Jeffery Pence James D. Sprott Judge Bill Wilson and Judge Cathi Compton

In Memory of James Robert Rhodes III Don A. Eilbott Justice Annabelle Imber Tuck Judy and Glenn Vasser

In Memory of Scott Hunter Michael R. Gott

In Memory of William Sherman Justice Annabelle Imber Tuck

In Memory of Judge Tom Keith The Buck Family Stephen and Clo Butler Elliott & Smith Law Firm Judge Alan and Sherry Epley David M. Hargis Rosalind and Kirby Mouser Mr. and Mrs. Ronald Patterson Mary W. Schneider Mr. and Mrs. Stephen Sharum Taylor Law Partners Wagstaff & Cartmell Sandra C. Wanasek

In Memory of Betsy Smith Don A. Eilbott

In Memory of Robert Kinchen Charles D. Roscopf In Memory of John G. Lile III Judge Robert Dawson Don A. Eilbott, Jr. James D. Sprott Justice Annabelle Imber Tuck Judy and Glenn Vasser In Memory of Robert Franklin Morehead Don A. Eilbott

In Memory of Kenneth R. Smith Judge Robert Dawson In Memory of Tom Streetman Don A. Eilbott Justice Annabelle Imber Tuck In Memory of Marvin Dell Thaxton Jeffrey and Lester McKinley Jim McLarty In Memory of Judge Harvey Yates Judge John M. Pittman James D. Sprott

The Arkansas Bar Foundation is grateful for a generous contribution from Wanda Roe establishing as a memorial the Ramona J. Roe Scholarship Fund. Arkansas Bar Foundation grant applications for law-related projects are due Friday, October 9, 2020.

in memoriam Eric W. Bishop of Ashdown died Thursday, June 11, 2020, at the age of 79. He was a graduate of Centenary College in Shreveport, LA and the University of Arkansas School of Law. He served as Clerk for Judge Lyle Brown of the Arkansas Supreme Court. He was the first City Attorney for Ashdown and was the Deputy Prosecuting Attorney for the Ninth Judicial District West for several years. Myron Timothy Boe of Little Rock, died July 2, 2020, at the age of 71. Tim received his Bachelor of Arts (Phi Delta Theta), 1970, and Juris Doctor, 1973, from the University of Arkansas, Fayetteville and his Master of Laws, 1976, from Southern Methodist University. He was a commissioned officer in the United States Army with the Adjutant General Corps. Upon his death, Tim was a senior partner at the Rose Law Firm, which he joined in 1980. His mentorship of young lawyers and care for his clients fostered lasting friendships over his 46-year career. Frank J. Huckaba of Mountain Home died May 16, 2020 at the age of 85. Frank was a lawyer, a deacon in his church, and an active leader in the community and in his profession. He enlisted in the United States Army and served in the Korean Conflict. In 1958, he graduated from Arkansas State College in Jonesboro with a degree in accounting. He graduated from the University of Arkansas School of Law with a Juris Doctorate in 1961. He clerked for Arkansas Supreme Court Justice George Rose Smith. Following that, he served three years as an FBI Special Agent in Tampa, Florida and in Washington, D.C. In 1965, Frank and his young family moved to Mountain Home and he began the practice of law. He actively practiced law over 50 years.

Thomas Scott Hunter, Sr., of Jonesboro died June 10, 2020, at the age of 84. Hunter served in the United States Air Force until 1957. He graduated from the University of Oklahoma in 1961 and from OU Law School in 1964. He became licensed to practice law in Arkansas and Oklahoma, and then joined the Federal Bureau of Investigation as a Special Agent. Eventually, he would relocate to Jonesboro to enter private practice. He remained an esteemed general practice lawyer for 17 years at which time he was elected to serve the Second Judicial District of Arkansas as Prosecuting Attorney. After a decade as Prosecutor, Mr. Hunter returned to private practice where he remained until his retirement in 2018. Judge Tom J. Keith of Bentonville died June 23, 2020, at the age of 81. Tom started his career as a newspaper reporter following his honorable discharge from the United States Marine Corps. At the age of 28 he enrolled as a student at the University of Arkansas while working at the Northwest Arkansas Times and graduated with his Juris Doctorate in 1973. He moved to Rogers to start his law practice. He was Benton County’s first Public Defender. In 1982 he was elected Municipal Judge of Rogers and subsequently elected as a Circuit Judge where he served as Senior Circuit Judge until his retirement in 2008. Judge David James Manley of Little Rock died March 20, 2020, at the age of 72. He attended Westark College before joining the U.S. Air Force. He earned a Juris Doctorate in 1978 from the University of Arkansas. David first practiced law in Texarkana, Texas, at East Texas Legal Services. In 1982 he moved to Little Rock where David joined the staff of Legal Services of Arkansas. In 1997, David became an Administrative

Law Judge (ALJ) with the Social Security Administration Hearing and Appeals Office in California. He returned to Arkansas two years later to serve as Chief Judge in the Little Rock office, and he remained an ALJ until he retired in August, 2017. Lane Strother of Mountain Home died May 25th, 2020, at the age of 75. He graduated from Ouachita Baptist University with a BA in English and from the University of Arkansas at Fayetteville where he received his Masters of Education before heading to Fort Knox, KY, where he served as a 1st Lieutenant in the U.S. Army. Lane and his wife Judy enrolled in law school at the University of Arkansas at Little Rock in the fall of 1976. After obtaining their juris doctorates in the Spring of 1979, Lane and Judy moved to Mountain Home and opened The Strother Law Firm where they practiced law together for 40 years. In 1995, their oldest daughter, Jodi, joined them in their practice. Claibourne Watkins Patty, Jr., formerly of Little Rock, died May 8, 2020. Clay graduated from The University of the South (Sewanee) in 1955 with a degree in Political Science. Following his 1957 honorable discharge from the Army, Clay attended the University of Arkansas School of Law in Fayetteville, graduating in 1961. His employment included clerk for United States District Judge John Miller; private law practice with his longtime friend, Bill Henslee; chief attorney for the State of Arkansas Insurance Department; trust officer for Union National Bank; Executive Director for the Arkansas Institute for Continuing Legal Education and Assistant Dean of the then-UALR School of Law; clerk for the 2nd Division of the Chancery Court of Pulaski County; and, finally, a return to private practice, specializing in bankruptcy and estate planning. The information contained herein is provided by the members’ obituaries.

Vol. 55 No. 3/Summer 2020 The Arkansas Lawyer

CASE STUDY

Arkansas Bar Association Publications on Fastcase The Arkansas Bar Association has partnered with Fastcase to revamp our publications. Deskbooks are now available in new print editions, as PDFs and within the Fastcase legal research system.

How to order: Go to www.fastcase.com/ product-category/arkbar • Find the handbook you want, and choose “Select Option.” • Choose from print copy or pdf download, and then add to cart. • Click on “View Cart,” enter your discount code* in the “Coupon” box, and then click “Apply Coupon.”

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Arkansas Business Associations Handbook

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Handling Appeals in Arkansas Supplement

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Arkansas Form Book Domestic Relations Handbook Arkansas Debtor-Creditor Handbook

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STUDENTS WITH DISABILITIES IN PUBLIC EDUCATION

THE DEVIL IS IN THE DETAILS - HOW TO MAP AND FIX YOUR LAW OFFICE PROCESSES

SUCCESSION PLANNING FOR SOLO, SMALL AND GROWING OFFICES

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