The Arkansas Lawyer Magazine Winter 2021 by Arkansas Bar Association

Lawyer The Arkansas

A publication of the Arkansas Bar Association

Vol. 56, No. 1, Winter 2021 online at www.arkbar.com

Perspectives on the Practice of Law In Arkansas The Experience of the African-American Lawyer

SPRING 2021 CLE LIVE WEBINARS AND VIRTUAL CONFERENCES

REGISTER NOW! APRIL/MAY Thursday, April 8 Noon - 1:00p Topic: Immigration Courts and Recent Changes to the Law Presented by Jonathan Martin, Monterrey Law Firm PLLC

MARCH Thursday, March 4 Noon - 1:00p (ETHICS) Attorney’s Fees and Fee Agreements in Arkansas Presented by Stark Ligon, Chief

Disciplinary Counsel of the Arkansas Supreme Court Office of Professional Conduct and Executive Director of the Committee on Professional Conduct

Thursday, March 11 Noon - 1:00p Focus Groups + Mock Trials = More Predictable Verdicts Presented by Sach Oliver We will discuss the process of conducting focus groups and mock trials. We will outline the critical steps that must be taken to ensure that accurate and usable information is gathered. Then we will cover how to use the data and information collected in discovery and trial. Thursday, March 18 — FREE FOR MEMBERS Noon - 1:00p Cloud Computing - Pros, Cons and Ethical Issues Presented by Affinity Consulting Members register at www.arkbar.com/practice-link

View agendas and register online at ArkBar’s new 2021 home for all things CLE— CLE CENTRAL. Also, the On-Demand catalog is updated with new presentations monthly. ARKBAR.COM/CLE--EVENTS/CLE-CENTRAL

Friday, April 9 Construction Law Virtual Conference Watch for agenda

Thursday, April 15 Noon - 1:00p Topic: Federal CDC Eviction Moratorium – Application and Effects on Landlords Presented by Josh Carson, Rausch Coleman Homes

Friday, April 16 Labor & Employment Law Virtual Conference Watch for agenda

April 29-30 Debtor Creditor Law Virtual Conference Watch for agenda

Thursday, May 6 Noon - 1:00p Topic: Ethics and Appellate Court Presented by Judge Bart Virden Date TBA Environmental Law Virtual Conference Watch for dates and agenda

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. Brett D. Watson David H. Williams OFFICERS President Paul W. Keith President-Elect Bob Estes Immediate Past President Brian Rosenthal President-Elect Designee Joe F. Kolb Secretary Glen Hoggard Treasurer Joe F. Kolb Parliamentarian Aaron L. Squyres BAR ASSOCIATION STAFF Executive Director Karen K. Hutchins Executive Administrative Assistant Michele Glasgow Director of Government Relations Jay Robbins Director of Education Kristen Frye Data Integrity Specialist Alexis Teal Director of Finance & Administration Yan Chen Meetings & Membership Director Jennifer Jones Office & Data Administrator Cynthia Barnes Publications Director Anna Hubbard

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 2021, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 56, No. 1

features 10 Trying Times During COVID-19 By David P. Glover

14 Perspectives on the Practice of Law of in Arkansas: The Experience of the African-American Lawyer

Pictured l to r: Arkie Byrd, Antwan Phillips, Jonathan Warren, Judge Joyce W. Warren and Judge Dion Wilson 25 Privilegium By Bill Waddell

32 Arbitration in a Cyber Forum Technology and Preparation By David Fuqua

Contents Continued on Page 2

Lawyer The Arkansas Vol. 56, No. 1

in this issue ArkBar News

columns

Arkansas Bar Commission on Diversity and Inclusion (ABCDI)

President’s Report Paul W. Keith

ABCDI Survey

Young Lawyers Section Report Chris Hussein

Arkansas Access to Justice

2020 CLE Speakers and Planners

Disciplinary Actions

In Memoriam

Arkansas Bar Foundation

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: Hayden Gore, University of Arkansas School of Law; Deepali Lal, UA Little Rock William H. Bowen School of Law

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Is it Time to Change Your 401(k) Provider? The ABA Retirement Funds Program has just made that decision much easier. The ABA Retirement Funds Program (“Program”) is working with plan sponsors to address many top concerns. Fiduciary protection, revenue transparency, and governance play an important role in how your firm’s plan is structured. As the retirement landscape continues to change you need a provider that strives to maximize the value of your plan, improve retirement outcomes, and help you manage your plan expenses. We have been doing just that for nearly 60 years. The ABA Retirement Funds Program is an employer-sponsored 401(k) plan designed specifically to address the retirement needs of the legal community. The Program is structured to provide affordable pricing whether you are a sole practitioner or a large corporate firm. The ABA Retirement Funds Program is available through the Arkansas Bar Association as a member benefit. Please read the Program Annual Disclosure Document (April 2020), as supplemented (November 2020), carefully before investing. This Disclosure Document contains important information about the Program and investment options. For email inquiries, contact us at: joinus@abaretirement.com. Registered representative of and securities offered through Voya Financial Partners, LLC (member SIPC). Voya Financial Partners is a member of the Voya family of companies (“Voya”). Voya, the ABA Retirement Funds, and the Arkansas Bar Association are separate, unaffiliated entities, and not responsible for one another’s products and services. CN1474756_0123

Built By Lawyers, Powered By Pros® Now is the time. Contact an ABA Retirement Funds Program Regional Representative to set up a complimentary consultation and plan comparison. Call 800.826.8901 today and experience the difference.

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ArkBar News Deadline for submission of Annual Award Nominations Friday, March 5, 2021

It is time to nominate deserving candidates for this year’s Arkansas Bar Foundation and Arkansas Bar Association Annual Awards. The awards open for nomination are: • • • • • • •

Outstanding Lawyer Award Outstanding Lawyer-Citizen Award C.E. Ransick Award of Excellence James H. McKenzie Professionalism Award Equal Justice Distinguished Service Award Outstanding Jurist Award Outstanding Local Bar Association

These awards will be presented at the Annual Meeting in June. You are encouraged to nominate Arkansas lawyers, judges and local bar associations who deserve recognition. Nomination forms may be submitted by any Association member or Foundation Fellow. Forms are available at www.arkbar.com/for-attorneys/ award-nominations or you may submit a written letter of nomination to Ann Pyle at the Arkansas Bar Foundation at 2224 Cottondale Lane, Little Rock, Arkansas. Please call Ann Pyle at 501-801-5670 with any questions.

Lawyer Community Legacy Award Nominations Due Feb. 28

The awards are presented to attorneys and judges who have performed volunteer public services out of a sense of duty, responsibility and professionalism. The awards will be presented during the association’s annual meeting. www.arkbar.com/for-attorneys/ award-nominations

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Oyez! Oyez! Bilenda Harris-Ritter, State Attorney for the Arkansas Department of the Military and the Arkansas Army National Guard, received the Arkansas National Guard Judge Advocate General Corps Award for Excellence in Legal Assistance for 2020. Adrienne Griffis of Dover Dixon Horne has been elected to partnership. Jordan Bates-Rogers has been selected to lead the Arkansas Access to Justice Commission and Foundation effective January 1, 2021. Skye Martin joined the Board of Directors for Pulaski County CASA. James, House, Downing & Lueken, P.A. announced that Charley Swann is now a partner and its new name is James, House, Swann & Downing, P.A. The firm also announced that Carla Miller has joined the firm as an attorney. Cross, Gunter, Witherspoon & Galchus, P.C. announced that George R. Ernst was promoted from Associate to Director of the Firm. The firm also announced that Michael J. Berry has joined the Firm as an Associate Attorney. Friday, Eldredge & Clark, LLP has elected four new partners: Kathy McCarroll, Joshua C. Ashley, Katie M. Eaves and Michael McCarty Harrison. The firm also announced that Michael S. Moore has been appointed practice group leader of the Labor and Employment Practice Group and a member of the firm’s management committee. Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. has named the following attorneys as members of the firm: Wade Bowen, Ashley Gill, David Koehler, Graham Talley, Jordan Wimpy and Lauren Ybarra. The firm also announced that Jordan Wimpy has been selected to the Environmental Law Institute’s Emerging Leaders Initiative and that Anna Regnier has joined the firm as an associate in the Rogers office, Amanda Orcutt has accepted membership to the International Association of Defense Counsel, and Stuart Miller was appointed State Committee Chair for the International Association of Defense Counsel. Wright Lindsey Jennings announced the addition of two associate attorneys to the firm’s Little Rock office: Collins Hickman and Shelby Howlett. PPGMR Law, PLLC announced that its Little Rock office moved to a new location in downtown Little Rock’s Heritage West Building. Quattlebaum, Grooms & Tull PLLC announced that Steve Quattlebaum has been selected for the Lawdragon 500 Hall of Fame. Ledbetter, Cogbill, Arnold & Harrison, LLP announced that Laura J. Pearn has been elected as a partner. Submit your Oyez! news to ahubbard@arkbar.com. Look for the Oyez feature with photos in ArkBar new Monthly Electronic newsletter. Visit arkbar.com/ for-attorneys/publications/member-newsletter.

ArkBar’s new #MoreThanALawyer campaign highlights all the ways Arkansas Bar Association lawyers impact lives within and outside of their profession. In all of these roles, they make a difference in their community. Do you know an ArkBar lawyer with a great story to share? Self-nominations are encouraged! Nominate a #MoreThanALawyer by emailing ahubbard@arkbar.com. For more information visit www.arkbar.com/for-attorneys/for-attorneys-more.

Advertise in the next issue of The Arkansas Lawyer. Show off your new hires, job openings or areas of expertise. Opportunities are also available on ArkBar’s website and weekly ebulletins. Go to www.arkbar.com/ for-attorneys/publications/the-arkansas-lawyer/ advertising

Joe F. Kolb of Little Rock elected the new ArkBar President-Elect Designee

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The Arkansas Bar Association is excited to announce that Joe F. Kolb is the new Arkansas Bar Association President-Elect Designee. Joe was elected without opposition at the close of nominations on January 31, 2021. He is the principal member of the law firm, j. k o l b, in Little Rock. He obtained his undergraduate degree in economics and business from Hendrix College and his Juris Doctor from Southern Methodist University Dedman School of Law. He practices in the areas of bankruptcy, business, and corporate law. “Joe has been a dedicated association leader for several years,” said Karen K. Hutchins, ArkBar Executive Director. “During these years he has been a visionary for the Association, focusing on planning for future success and sustainability.” Joe is currently serving as treasurer of the Association, a position he has held since 2017. He is also serving on the Arkansas Bar Association Commission on Diversity and Inclusion and the By-Laws Drafting Sub-Committee. The Association honored him with the Presidential Award of Excellence last year for his work as both co-chair of the 2020 Annual Meeting and as Association Treasurer. He also received a Golden Gavel Award for his work as co-chair of the 2018 Mid-Year Meeting. He chaired both meetings with his wife Cindy. He has led ArkBar as Chair of the Finance Committee and as Chair of the Audit Committee, served on the Hall of Fame Sponsorship Committee, Engagement Task Force, Committee for a Modern Judiciary, CLE Committee, Strategic Governance Task Force, and the Governance Committee. Joe joins the Association’s leadership track composed of President Paul W. Keith, President-Elect Bob Estes and Immediate Past President Brian Rosenthal. He will assume the office of PresidentElect at the June 2021 Annual Meeting.

Vol. 56 No. 1/Winter 2021 The Arkansas Lawyer

PRESIDENT’S REPORT

I Love to Tell the Story

Today we celebrate the story of Scipio Africanus Jones, who convinced the U.S. Supreme Court to declare that mob rule must yield to the rule of law. Born into slavery in Dallas County,1 Scipio Africanus Jones became one of Arkansas’ most prominent black citizens. In his most famous effort, he convinced the U.S. Supreme Court to articulate the duty of federal courts to examine state criminal trials when defendants’ rights to due process under the Fourteenth Amendment are under assault.2 Jones received his early education in an all-black school near Tulip, working in the fields as a day laborer, and moved to Little Rock around 1881. He continued to work as a farm hand and, after saving some money, entered Philander Smith College, then known as Bethel University.3 After four years of preparatory work, he moved to the newly-formed Shorter College, received his bachelor’s degree, and began a stint as a public school teacher while continuing his work as a farm laborer.4 He began reading the law under the supervision of some Little Rock judges; though he had no formal legal education, he was admitted to the bar on June 15, 1889.5 Thirty years into his legal career, events unfolded in Phillips County that would land him before the U.S. Supreme Court. In the Fall of 1919, an all-white Phillips County grand jury returned indictments against 122 blacks (including 73 charges of murder) for their alleged participation in what local authorities had identified as an “insurrection” against the white communities and institutions of the area.6 Twelve black men were ultimately found guilty of murder and sentenced to death. Justice Holmes wrote that it was alleged7 that a local “Committee of Seven” had promised the community that it would 6

The Arkansas Lawyer

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

Photo credit: Scipio A. Jones, G5123, Arkansas State Archives, Little Rock, AR see “that the law would be carried out, if the people refrained from mob violence,” and that “the Committee made good their promise by calling colored witnesses and having them whipped and tortured until they would say what was wanted, among them being the two relied on to prove the petitioners’ guilt.”8 Of the ensuing trials, Justice Holmes wrote, “[o]n November 3 [1919], the petitioners were brought into Court, informed that a certain lawyer was appointed their counsel and were placed on trial before a white jury–blacks being systematically excluded from both grand and petit juries. The Court and neighborhood were thronged with an adverse crowd that threatened the most dangerous consequences to anyone interfering with the desired result. . . . [Appointed counsel] called no witnesses for the defence although they could have been produced, and did not put the defendants on the stand. The trial lasted about threequarters of an hour and in less than five minutes the jury brought in a verdict of guilty of murder in the first degree.”9 After the trial, George W. Murphy, prominent white attorney and former state attorney general, was hired by the National

Association for the Advancement of Colored People to defend the condemned and he selected Scipio Jones to assist him, but after Murphy’s death in November 1920, Jones was forced into the leading role.10 In a decision that has been recognized by legal scholars as the first modern civil rights case, the U.S. Supreme Court reversed a refusal by a local federal district court to examine the trial. “[T]he possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can[not] prevent this Court from securing to the petitioners their constitutional rights.”11 On November 11, 1925, the prisoner’s sentences were commuted by Governor T. C. McRae, and they were released several months thereafter.12 It is little wonder that Scipio Africanus Jones will be in the first class of posthumous honorees in the Arkansas Bar Association’s Legal Hall of Fame. And it is equally fitting that the U.S. Post Office in Little Rock is named the “Scipio A. Jones Station” and that a portrait/mural of Scipio Africanus Jones will be placed in that station. Nothing less will do for that baby born into slavery in Dallas County. Past Arkansas Bar President John Gill is leading an effort to raise funds for that portrait. We salute him for that and encourage you to be part of that effort. Donations for the portrait/mural of Scipio Jones in the Little Rock Post Office can be sent to: CALS Foundation - Scipio Jones Portrait and mailed to: Carolyn Owen 425 West Capitol Avenue, Suite 3800, Little Rock, Arkansas 72201

The Arkansas Bar Association is your advocate at the State Capitol. Visit the Legislative Resources website at www.arkbar.com/legislativeresources for information on ArkBar’s legislative advocacy/government relations program. Watch for weekly updates in ArkBar’s e-bulletin.

For more about Scipio Africanus Jones, see Bill Waddell's article “Scipio Africanus Jones–Appreciation for a Journeyman Lawyer” in the Fall 2019 issue of The Arkansas Lawyer.13 Endnotes: 1. “A goodly amount of mystery and confusion surrounds the birth and parentage of Scipio A. Jones. Rumors, reminiscent of a William Faulkner novel, had it that a prominent white man was the father of the newly born slave. Regardless of the identity of the father he was probably a white man since Scipio was listed in the 1880 census as a ‘mulatto.’ His legal father was Horace Jones, husband of Jemmima [a slave woman], and neither was a mulatto. Scipio's death certificate adds more confusion to the situation by listing his father as ‘unknown.’” Tom Dillard, Scipio A. Jones, 31 The Arkansas Historical Quarterly 201 (Autumn, 1972). 2. Moore v. Dempsey, 261 U.S. 86, 89 (1923). 3. Dillard, supra. 4. Id. 5. Id. 6. Justice on Trial: The Phillips County Riot Cases, Harrison Bennett, http://www.clt. astate.edu/sarahwf/elainrt/justicehb.html (Arkansas State University, 1999). 7. The matter was before the Supreme Court on demurrer, so all allegations of the petition were taken as true. 8. Moore v. Dempsey, 261 U.S. at 89. 9. Id. 10. Dillard, supra. 11. Moore v. Dempsey, 261 U.S. at 91. 12. Bennett, supra. 13. 54 Ark. Law. 12 (Fall 2019). ■

President's Message On January 11, the 93rd Assembly of the State of Arkansas came to order. But long before that gavel dropped, the Legislation Committee of your Arkansas Bar Association had been hard at work. Our Bylaws and Constitution charge us with reviewing legislation and commenting on that legislation that directly impacts the practice of law and that has a significant impact on the administration of justice. The 2021 Arkansas Bar Association legislation committee is chaired by Professor Lynn Foster. Other members of the committee are listed below. Collectively these members review every bill that is filed in the Arkansas legislature. Then on Fridays they meet to discuss those bills and take a vote to support, oppose or remain neutral on those bills. The Legislation Committee also reaches out to you as members of the Association and to the sections and committees of the Association who have expertise on particular pieces of legislation. It is also the Legislation Committee’s job to support the Association lobbyist in the passage of the Association’s Legislative Package which is developed by the Jurisprudence and Law Reform Committee. Taken together, they are a formidable team and do the heavy lifting for the Association. They have in mind in everything they do the best interest of the Association and by extension the best interests of the citizens of Arkansas. We owe them a big debt of gratitude. They are your Arkansas Bar Association at work. To view ArkBar President Paul Keith’s messages to the members visit www.arkbar.com/ about-arkbar/presidents-message.

Legislation Committee

Payton C. Bentley

Sterling T. Chaney

Bob Estes

Lynn Foster

Jason Hendren

Glen Hoggard

Jamie H. Jones

Paul W. Keith

J. Cliff McKinney

Blake Montgomery

Ezra J. Smith

Aaron Squyres

Vol. 56 No. 1/Winter 2021 The Arkansas Lawyer

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YOUNG LAWYERS SECTION REPORT Chris Hussein is the Chair of the Young Lawyers Section. He is a staff attorney with Legal Aid of Arkansas, Inc.

Serving Others As we start 2021 we do so with the goal of serving others in mind. This has been a theme for the Young Lawyers Section this bar year. We have participated in different Estate Planning Clinics with the Legal Services Organizations throughout the state, as well as cosponsoring a Record Sealing Clinic in October. Our latest clinic was held on January 29, 2021. This clinic was a Name and Gender Marker Change clinic. We had 10 volunteer attorneys and partnered with Arkansas Access to Justice, Transequality Network, PFLAG, Legal Aid of Arkansas, Inc. and Q Law to sponsor this event. We look forward to being able to offer a broader array of clinics in the future! With serving others still in mind, our annual Wills For Heroes clinic is tentatively scheduled for early to mid April. We will have more details out soon about specific dates! This year’s Chair-Elect Payton Bentley is running our Wills For Heroes event this year. At this event we prepare various estate planning documents for first responders.

Our biggest groups served tend to be Police Officers, followed by Fire Fighters. This past December we had an opportunity to host a small Wills for Heroes clinic with the Pea Ridge Police Department. They reached out to us with a need due to the COVID-19 crisis, and we were able to get them plugged in with private attorneys and assist them with their estate-planning documents. With all of the excitement of clinic planning, time to sign up to serve on the YLS Executive Committee is upon us. There are six open positions: 1. ChairElect, 2. Secretary-Treasurer, 3. At-Large Representative, 4. District A Representative (Northwest Arkansas), 5. District B Representative (Pulaski County), 6. District C Representative (Everywhere Else). The nomination period is now open and will end on March 31st. As things presently sit those eligible for the Chair-Elect position must have served as a section chair or member of the YLS Executive Council, and be from District B since they will serve as Chair alongside the person elected as President for the

2022-2023 Bar Year who will also be from District B. If no nominations are received for candidates that meet that criteria then nominations will be taken from the floor at the YLS Meeting at the Annual Meeting this summer. If it reaches the stage of floor nominations any member of YLS is eligible to run for the position. For the SecretaryTreasurer position we will take nominations from the floor at annual meeting. For the Representative positions a petition must be filed like for the Chair-elect position. You need to be from the district you are running for to be eligible for the representative position. Petitions for ChairElect and Representatives can be found at this link: www.arkbar.com/arkbaryls/home. I would encourage you to get involved and run for an Executive Committee position. If you have questions about any of the positions, please feel free to email me at chussein@arlegalaid.org. Serving on the YLS Executive Committee as well as Chair has been a privilege, and I am excited and hopeful for the next round of Executive Committee members!

YOUNG LAWYERS SECTION EXECUTIVE COUNCIL Visit arkbar.com/arkbaryls/home for Executive Council members' profiles. Frank C. Elcan, II Young Lawyer Leadership Award Nominating Petitions due March 15, 2021. Nominations for YLS Executive Council due March 31, 2021. Chris Hussein

Payton C. Bentley

Caroline W. Kelley

Alexandra Chun

Ezra J. Smith

Samantha Vital

Robert B. Wilson

William J. Ogles

William T. Harris IV

Colin Heaton

Elizabeth Richardson

Andrew P. Norwood

Rob Riley

Wesley B. Watts

Ray Slaton

Vol. 56 No. 1/Winter 2021 The Arkansas Lawyer

Trying Times During COVID-19

By David P. Glover

David practices with his partners at Wright, Lindsey & Jennings LLP where he defends healthcare works including physicians and hospitals in medical malpractice lawsuits. 10

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he Chicot County Courthouse in the town of Lake Village, Arkansas, sits on the western shore of Lake Chicot, a glistening oxbow lake in the far southeastern corner of Arkansas. From the front steps of the courthouse, beyond the parking lot, the veterans’ memorial and a small amphitheater, houses line the eastern shore of the lake facing back toward the town. Beyond those homes lies a few miles of dark, alluvial farmland and then the Mississippi River which roils towards the Gulf. To the west of Lake Village are miles and miles of more delta farmland. It’s a beautiful setting. Dr. Mayfield and I were standing underneath a yellowing Gingko and two Southern Magnolias on the courthouse lawn, their red seed pods lying all around, while awaiting the jury’s verdict. It was November 5, 2020. We had just completed the first civil jury trial I know of in any Arkansas state court since the COVID-19 pandemic shuttered the courts in March. The sun shone brightly. The only visible reminder of the pandemic was the masks on the hospital staff supporting Dr. Mayfield who loitered outside with us. Three days earlier, on November 3, Election Day, 28 out of 45 jurors who were summoned for jury duty arrived at 8:00 am as instructed. Josephine Griffin, the Circuit Court Clerk, met each potential juror at the building entrance and took temperatures. Deputy sheriffs escorted each person to the upstairs courtroom. The courtroom into which we all piled is a large rectangular box with high, water-stained ceilings aglow with fluorescent light. Like most courtrooms, the gallery took up the back half of the rectangle. The gallery is divided by an aisle that bisects two sections of 10 rows of church pews. In the front half of the rectangle, a long counsel table faces the bench, court reporter and witness stand. To the right of counsel table is the jury box. The deputy sheriff escorted the first potential juror to the first row of the gallery, spacing each new arrival at pre-marked intervals. Judge Bynum Gibson had court staff designate where jurors were not to sit by taping white x-marks so that people would be socially distanced. While the venire gathered, Judge Gibson called the attorneys into chambers, which in normal times is the jury room. The jury room sits atop the southeast corner of the courthouse overlooking

the lake. Had I been there years earlier, I would have preferred being on the lake fishing. But, on this morning, in my 21st year of trying cases, I was fully present in the moment. My last trial had been in January. Then, when the pandemic hit, 12 cases set for 2020 were continued—all except this one in Lake Village. So, instead of wishing I was there to fish, I was grateful to have a career as a trial lawyer. And, any resentment based on fear of trying this case during a pandemic had transformed into gratitude for the judge nudging the trial forward. The anxiety about who would win the election, whether there might be rioting, or concern about the pandemic—all of this faded away in order to focus on trying the case safely, efficiently and effectively. In chambers, the defense renewed a pretrial motion that had already been denied. It concerned the identification of the hospital’s insurance carrier as a named defendant instead of substituting the hospital as a named defendant. The judge affirmed his previous ruling denying the motion, then instructed us that the trial would run from 8:30 am to 4:30 pm daily with a one-hour lunch break. We were reminded that, unless we were at the lectern, we were to wear our face masks. We asked how many alternate jurors we could have and were told one. We asked what to do if anyone present in the courtroom became symptomatic during the trial. The judge, in essence, told us we would deal with that problem if it happened. We asked how to deal with bench conferences and were told there would be none. The judge limited voir dire and opening statements to 15 minutes for each side. With those preliminary matters resolved, we returned to the courtroom to select a jury. With 28 potential jurors, court staff and attorneys in the courtroom, the space looked and felt full. Everyone wore masks and spread out as much as the space allowed. Prior to the trial beginning, Judge Gibson had the county install approximately four-foot-high transparent plexiglass panels along the rails separating the jury box and gallery so that, at least in a sense, the jury and spectators would be shielded from the witnesses and attorneys. Likewise, the witness box was surrounded by plexiglass on each side and in the

front. Each witness sitting behind these plexiglass shields looked like a defendant in a European criminal trial—caged. The clear plexiglass along the rail of the jury box made it feel, at least to me, like the jurors were in a different room. As the judge read the statement of the case, I thought that from the jurors’ perspective behind the plexiglass screens, it must be like watching TV or like they were observing a marketing test behind a one-way mirror to see what product sold best. The judge then introduced the parties and their attorneys and asked the jurors if they knew anyone. In compliance with the judge’s instructions, Dr. Mayfield and the hospital had already identified former patients and former hospital employees from the jury pool and those people were told not to come. Jurors with health issues were also excused before having to appear for duty. Each party was given 15 minutes to question the entire panel. The time constraint made it difficult to cover everything I might normally have tried to achieve. Some jurors wore ballcaps and others wore glasses. All wore masks, which made non-verbal gestures (that I typically react to intuitively) almost impossible to recognize. When a person is wearing a mask, it is much harder to discern facial expressions or even whether someone was looking up, down or sideways in response to questions. People, I have noticed, tend not to make eye contact, especially with strangers, when they have on a mask. This required asking direct questions of as many people as possible and limiting the topics to those essential to our defense. Not a single person requested to be excused because of a health concern over COVID-19. Prior to trial, counsel for the plaintiff—a very experienced trial attorney—and I both reviewed the American Board of Trial Advocates (ABOTA) white paper and its recommendations for COVID-19 trials. My staff prepared a separate set of exhibits for each of the witnesses and jurors. This added expense to the trial, but we felt that we had to be prepared for anything especially if our technology failed. Plaintiff ’s counsel and I also agreed on the authenticity and admissibility of all exhibits before trial, including all of the patient’s medical records and pertinent medical bills. We also shared

“Going forward, until a widely distributed vaccine eradicates the risk of exposure, the risk versus benefit analysis of whether to try individual cases will need to be made on a caseby-case basis. When trials do go forward, perhaps some of the processes successfully utilized in our trial will help.”

technology and each used Trial Director, a program that employs a bar code scanner to easily zap and project records onto a screen. By agreement, we published exhibits and testimony for the witnesses and jurors to review in order to avoid having to approach any witness. To a large degree, this negated the need to lay a foundation before publishing information to the jury and sped the trial up considerably. The technology worked, and we never had to utilize any of the voluminous paper copies that we had prepared. Our opening statements, also limited to 15 minutes each, set out the competing theories. The patient who died had been a remarkable woman. She had raised three children (all now adults) in Dumas, a town 40 miles north of Lake Village. While the deceased was in declining health, plaintiff ’s counsel argued she still enjoyed life at home with her youngest son and caregiver. Her untimely death was the result of an avoidable surgical error that happened because the defendant surgeon went too fast when he put the feeding tube through the colon while passing it into the stomach because he selected a placement site too low in the patient’s abdomen.” “Three physicians will testify in this case,” I began in my opening. “One is

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FORENSIC PSYCHIATRY GERALD S. STEIN, M.D. Phone: 479-202-0622 Cell: 479-244-5776 FAX: 970-987-5100 e-mail:gsteinmd@gmail.com See CV: www.geraldsteinmd.com Wife and Office Manager Rebecca Stein 479-244-5060

645 CR 235, Eureka Springs, AR 72632 an expert for the plaintiff and the other two are Dr. Mayfield and his expert. All three witnesses will testify in agreement about three things: first, no surgeon can ever guarantee a good outcome; second, all surgery carries risk; third, an accepted risk of this surgery, which was disclosed, is injury to the intestines.” I told the jury about the patient’s very poor health, about our expert’s expected testimony and about Dr. Mayfield himself. Witness testimony lasted through the morning of the third day of trial. Each witness wore their masks until seated and then, after being sworn and seated in the plexiglass-protected witness box, removed their masks. The attorney conducting the witness examination, likewise, could remove his mask while asking questions. The expert witnesses and the defendant physician, at varying points, had to leave the witness stand during their testimony. The plaintiff ’s expert left in order to physically point to a medical illustration. The defense expert left in order to operate the software on my computer to teach the jury about relevant CT imaging. Dr. Mayfield left the witness 12

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box to demonstrate how to perform the surgical procedure that was at the heart of the lawsuit. None of the witnesses wore masks when they left the witness stand, but the attorneys were all socially distanced from them and the jurors were shielded by the high plexiglass walls. The judge limited closing arguments to 15 minutes for each side plus an additional five minutes for the plaintiff ’s rebuttal. At 1:25 pm on the third day, we were adjourned outside so that the jury could deliberate in the larger space of the courtroom. While standing underneath the magnolias and gazing at the lake, we debriefed about the trial. The bailiff then came downstairs to retrieve us for the jury’s verdict at 1:41 pm. The jury found for the defendant physician and for the hospital’s insurer, and the verdict form was signed only by the foreman, which meant the verdict was unanimous. Surgeries carry risks of injury and even death that must be weighed against the potential benefits if they go as intended. In order to try this case, maybe for the first time since the last largescale pandemic

in 1918, the court and the parties had to weigh the risks of someone being exposed to the virus versus the benefits of moving the civil docket forward and giving resolution and finality to the parties. In a follow-up call with the Circuit Court Clerk, she told me that none of the jurors, many of whom she knows, or court staff were exposed to the virus during the trial or ever became symptomatic to her knowledge. Looking back on the experience, when jurors came into or left the courtroom, they did so single file, spaced at intervals that kept them separated from one another. At lunch, I noticed that most ate alone in their cars and trucks or drove off to eat somewhere else. Keeping the jurors shielded from witnesses and attorneys with the plexiglass screens and keeping them masked and socially distanced seems to have worked. Going forward, until a widely distributed vaccine eradicates the risk of exposure, the risk versus benefit analysis of whether to try individual cases will need to be made on a case-by-case basis. When trials do go forward, perhaps some of the processes successfully utilized in our trial will help. In Lake Village, Arkansas, we allowed the justice system to do what it does—decide an outcome. In doing so, a plaintiff confronted the grief of losing a parent. A surgeon confronted the grief of being accused of negligently killing a patient. A jury heard the proof and decided that the surgeon’s care was reasonable. We all confronted fear of the unknown—the fear that an invisible, aerosolized virus might infect some or all of us who were present in the small courtroom, and we took precautions to avoid that happening. That fear passed, fortunately, unrealized. Dr. Mayfield and I walked out of the courthouse and hugged briefly. We both then drove back to our own lives while the afternoon sun glistened on the oxbow lake that lies like a smiling backdrop against the small delta town of Lake Village. ■ This article was originally published in the FallWinter 2020 issue of Voir Dire and is reprinted here with permission from the American Board of Trial Advocates.

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Perspectives on the Practice of Law in Arkansas: The Experience of the African-American Lawyer

Arkie Byrd

Antwan Phillips

Jonathan Warren

Judge Joyce W. Warren Judge Dion Wilson

Moderator Note:

During the summer of 2020, The Arkansas Lawyer’s editorial board considered how to bring into focus for Arkansas lawyers the issues underlying the protests following the deaths of George Floyd, Breonna Taylor and others. The panel discussion that follows is the result of that initiative. The editorial board sought panelists with different perspectives, including types of legal work and varying levels of experience. Most of all, the board desired candid observations about everyday issues faced by African-American lawyers in Arkansas. The voices you hear below are speaking important truths we all need to hear and consider seriously. —Bill Waddell, Moderator. Mr. Waddell is a partner with Friday, Eldredge & Clark, LLP. Introductions Mr. Waddell: We're pleased today to have a stellar panel of attorneys to help us think through some of the current events that are going on in our society and in the context of the practice of law. And each of them has been chosen because of the perspective that they have. We're grateful that they are willing to share those perspectives with us. So I'd like each of them to introduce themselves and just briefly tell where they are in the law or the law practice. I'll start with you, Ms. Byrd. Ms. Byrd: Well, as you said, my name is Arkie Byrd and I am a native to Little Rock. I was born and raised here and I attended public schools all the way. And I attended the U of A Fayetteville undergraduate and law school. My early career after law school was in Washington, D.C., and I did public policy for a public interest nonprofit group. And then I matriculated home to practice law at what is now Mays, Byrd & Associates, P.A. We were on Main Street for many, many years, and now we're over on Center Street. We are litigators and general practitioners, although everybody has some areas of emphasis. 14

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And one of my areas of emphasis has been in civil rights. While in D.C., the organization I was employed by is a part of nonprofit advocacy groups in Washington that included the NAACP Legal Defense and Education Fund, which most people know as LDF. When I moved home, because I had a prior relationship working with LDF, it was pretty much assumed that I would be a cooperating attorney with LDF. As a result of being a cooperating attorney, I have done impact litigation in Arkansas since '84, '85. And I currently have an active voting rights case on my docket. On occasion, the Hunt judicial redistricting Voting Rights Act case requires attention. There's been some recent activity in the Hunt case that has required my attention, as well as my co-counsels at LDF. Mr. Waddell: And the Hunt case is Hunt versus State of Arkansas, which I think was decided in 1991 and went into effect in 1992. So a long-standing case, right? Ms. Byrd: It was, yes. Interestingly enough, the State, at that time, conceded liability. And we ended up negotiating a consent decree with the State of Arkansas. And that consent decree is still in effect. And, periodically, it's tinkered with a little because of population changes after the census. But it is still in effect and in place. Hunt ushered in African-American judges, because, in the history of the State of Arkansas, there had never been an African American elected to trial courts of record (Circuit Courts). And I don't know to what extent anyone is familiar with the mechanics of voting rights litigation but you have to first start backwards with the remedy. You have to first be able to fashion a remedy and then move forward under the guidance of the case law and what are called the Senate Factors. The Hunt judges are still in place. We have seen non-African-Americans run in the subdistricts. There's nothing that prohibits that. And, like I say, so far, that decree has held up.

Mr. Waddell: Thank you, Ms. Byrd. And I'm going to come back to you with some more questions about that. I appreciate your comments. So I'm going to move to the youngest member of the panel, Mr. Phillips at Wright, Lindsey and Jennings. And just tell us a little bit about who you are and where you practice, that sort of thing. Mr. Phillips: Absolutely. Antwan Phillips, partner at Wright, Lindsey and Jennings. I'm Little Rock born and built, as I say. Graduated from John L. McClellan High School. I went to undergrad at Bowdoin College in Brunswick, Maine, where I earned a degree in American Politics before returning home and attending the UA Bowen School of Law. I graduated there in 2009 and started practicing at Wright, Lindsey and Jennings, and I've been there for 11 years now as an attorney. I'm happy to be a part of the panel. I understand these issues are important, especially from a legal standpoint. Because, when we were at the zenith of the protests, I'm sure everyone received calls from other people in the bar and from families and friends, because people look to us in these times. So I'm happy to be a part of this conversation, happy to provide my perspective on growing up in Little Rock, practicing law in Little Rock, practicing law throughout the state, which tends to be a little different than in Pulaski County. And I'll hopefully share one of those stories a little bit later. But that's who I am and I'm happy to be here. Mr. Waddell: Thank you. And, before we started the interview and the discussion, you were kind of kidding around with some of the other folks on this panel, so it sounded to me like maybe you've had some experience with them and maybe look up to and respect them. Mr. Phillips: Absolutely. And I know we may get to this later, but that's the idea of representation matters. People

say it all the time and that doesn't make it any less true. And when you can have a case or when someone looks like you where you can build a rapport, even though we have different jobs to do, but understand that we can be on opposite sides and still be friends and understand the issue that we face as black attorneys in the state of Arkansas and build a friendship through that process says a lot. And other people on here, I probably wouldn't be a lawyer without them reaching out to me first. Ms. Byrd’s firm was the first law firm I practiced at. I guess I wasn't practicing. I was a law clerk. But my first time in a law firm as an employee of any sort was working with Ms. Byrd. So the people on this call happen to have had a big impact on my legal career and that's another reason why I'm happy to be here. Mr. Waddell: Thank you for that. We look forward to hearing more from you. Judge Warren, are you one of those who is a beneficiary of the Hunt Decree? Judge Warren: I am! I was the first black person elected to a state level judgeship in Arkansas when I was elected in November of 1990. That was an 8th Division circuit-chancery juvenile judge position. My position was actually included in the Hunt Decree–so that's how I became a Hunt judge, and I have benefited immensely from it. I am Joyce Williams Warren, 10th Division Circuit Judge, 6th Judicial District, which encompasses Pulaski and Perry Counties. I preside over juvenile cases mainly, with a very small percentage of domestic relations cases. The courtroom over which I preside is located on Roosevelt Road in Little Rock. I graduated in 1976 from UALR Law School, becoming the first female judge in Arkansas when I was appointed to be a juvenile referee under the county system in 1983. That county system was declared unconstitutional in 1987. Between that time and 1989, when the state juvenile system began, I served as a master for chancery cases and a referee for paternity cases. That’s why it’s very difficult to figure

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out–with a degree of certainty–how long I've been judging. Anyway, I have been on the state bench since August 1, 1989, and I am very proud to say that Judge Ralph Wilson and I are the second longest-serving circuit judges–and the longest-serving juvenile division judges– in Arkansas. Judge Wilson and I also share the same birthday–but I am one year older than he is. We will both retire shortly after midnight December 31st, so our official retirement date is January 1, 2021. As I mentioned earlier, the vast majority of the cases over which I preside are juvenile cases. I love what I do, and am very happy and honored to do it! When people ask me how long I have been on the bench, I can give an accurate number of years I have been a state judge, but it is hard to give an accurate number of the total of number years I have been on the bench, as I indicated earlier. I'm thinking about that now–when I retire, I will have served 31 years and 5 months. If I add the four years I served under the county system and then add the time I served as a master and referee, which is about one year–that is a bit over 36 years. As I said, it's hard to tell the time I judged after the county system stopped, because we had so much stuff going on in that time and I did not document every date–so I’m not quite sure, and I've been trying to piece it together ever since. I even had a “walk down memory lane” get together with staff and others with whom I worked, in an effort to get specific dates or lengths of time. Still no success with specifics, so far. Mr. Waddell: Well, that's an amazing record and we're grateful for your service. There's another person on the panel, Judge Warren, that I think you know pretty well. Could you maybe introduce us to him? Judge Warren: I am very proud to introduce my oldest son, Jonathan Quentin Warren, who was born when I was in law school. He was my first child I had while I was in law school. I had my second child, also a son, three years later, while I was still in law school. I have a special affinity for Jonathan! 16

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Mr. Warren: Thank you. Thank you. You're not so bad yourself.

Judge Warren: You're welcome. Thank you! Mr. Waddell: It's amazing that Mr. Warren didn't get an odd name if you were born during law school. You know, Jonathan Palsgraf Warren or something like that. Mr. Phillips: Now you're just showing off, Bill. Mr. Waddell: Jonathan, tell us a little bit about you. Mr. Warren: I'm Jonathan Warren. I'm born and raised in Little Rock, been here my whole life absent probably six months, three months as a baby in Memphis, three months as a baby in Houston. I was born and raised in Little Rock, product of Little Rock School District. Graduated from the one and only Little Rock Central High School in 1990. So this year is my 30th year being removed from high school. Went to UALR for undergrad, UALR Bowen for law school. Graduated there, failed the bar the first time, took the bar again–which ended up being a blessing, because, then, I was able to clerk for now retired Justice Annabelle Clinton Imber Tuck for the Supreme Court for one term. And, had I passed the bar the first time, I would not have been able to do that. So that was a blessing in disguise. I then became a deputy prosecutor at the prosecutor's office; was there for about five years and then left there to practice at the attorney general's office under both generals McDaniel and Rutledge; and then left there to go to Rainwater, Holt and Sexton where I've been since June of 2020 where I do personal injury law. I must mention that I ran for a Hunt seat–10th Division–my mother’s seat, and was not successful in my run. However, it was a blessing and a great experience to be able to run. And I have some interesting stories to tell! You know, growing up, with my mother

being who she is, sometimes you forget, man, she's done all this stuff and she's a Hunt judge and she's touched all of these lives and accomplished so much. But I see her as my mother first. So sometimes, when I'm out and she gets an award or something and they name all these accomplishments and accolades that she's done, it's like, man, she has done that. And so just being able to grow up and be around attorneys and have her be one of my role models and learn how to be a wonderful person, first and foremost. And my father has half of that credit too. She can't take all the credit! I'm just happy to be here and give whatever perspective I can to add to this conversation. Right now, the world is a messed up place and we need to be talking about these important issues. I’m also married to Courtney, and we have a seven-year-old son. We are very, very scared–just to be honest–of what kind of world are we leaving for our kid. What kind of world is he growing up in? We have GOT to do something. Mr. Waddell: We really appreciate the perspective. And I appreciate you running for the judgeship. Mr. Warren: Thank you. It was fun. It was fun. Mr. Waddell: That takes a lot of effort, and not many people are willing to do it, so thanks for doing that. So, speaking of being born and built, I was born and built in Phillips County in West Helena. Our last panelist is Judge Dion Wilson. Were you actually born in Phillips County as well, Judge? Judge Wilson: Yes, sir. I was born in Phillips County. I have lived here all my life. I graduated from Central High School here in Phillips County and then went on to Fayetteville for undergrad and law school. I came back to Phillips county to practice with my dad, Jimmie Wilson, and ended up practicing, opening up an office on my own and did that for 22 years. I was able to make some headway in all areas of personal injury,

criminal, civil rights, and disability law. In Phillips County, you get everything from disorderly conduct to a medical malpractice case in one day. I had to learn early on my feet and I had some great people to learn from–Judge Kathleen Bell, Judge Olly Neal, my Dad, Judge Victor Hill, and Attorney Sam Whitfield. I had a great group of people around me who were able to share a lot of wisdom and point me in the right direction in a lot of areas. I got to meet a lot of people, the late, great John Walker, Darrell Brown and Ms. Byrd. My Dad was the guy a lot of lawyers called for advice, so I got to meet a lot of great people. I used the knowledge I gained from all of those people to shape my career. I was able to do some great things in Phillips County and was also able to, most importantly, take care of myself and my family. So, an opportunity arose for me to run for Circuit Judge. I resisted at first because, in the words of some people, I did have a well-paying job at the time. But it was more of an opportunity to shift from one area of life into another. And I think that sometimes we don't get those opportunities and I had that opportunity so I took it. I’m a lawyer and I’m here to practice law today. I hope to serve as Circuit Judge in the same way as those who came before me and I want to leave the gate open for others to come after me. So that's my story.

doing, being fair, and doing a good job as a judge. Mr. Waddell: And I connect with that, Mr. Phillips, because I get to do some pro bono work over there in Monroe County. And Judge Wilson is one of those who hears our cases. I know he remembers this, but one of the times I will never forget is a little African-American boy was intimidated by being in court on a guardianship and he started crying. Judge Wilson came down from the bench, picked him up, and held him, and told him it was going to be okay. The impact of that, not just on that little boy, but the whole courtroom, is something that I've never seen before. I can't say enough good things about the way Judge Wilson handles these cases. They matter to people. You know, it's not even just getting it right. It's treating people right and it's a wonderful attribute. So thank you, Judge Wilson, as well.

Mr. Waddell: Sure.

Discussion Questions Mr. Waddell: So let's kind of get into some of the issues. One of the reasons the editorial board wanted to have this discussion, they were saying, there's so much going on in the world all around us. Black Lives Matter is happening. There are protests. It seems like there's more attention on how minorities have been treated and related issues. I'll just start with you, Mr. Warren. How do you think all these events that we've been experiencing in 2020 led to Black Lives Matter and police issues and all that? How are they affecting you and how do you think they're affecting the rule of law?

Mr. Phillips: Because I wanted to cosign what the judge said. He was a prolific plaintiffs’ attorney in eastern Arkansas. He had a lot of cases with me and our firm. And I know people in our firm, we've heard some of the people saying, why would he run for judge, he has a well-paying job. Now, I have been fortunate enough to actually be in front of the judge since he has taken the bench and just wanted to commend him publicly for the work he's

Mr. Warren: This is going to be a long answer. You've got years and years and years and years of police brutality. We live in a nation that was founded on violence and theft–meaning slavery and taking land from Native Americans, basically, that nobody really wants to really talk about and acknowledge these facts and realities. And so I'm paraphrasing this a little bit, but Bryan Stevenson, I saw a documentary on him, and he basically said, until this

Mr. Phillips: Can I jump in here real quick?

nation acknowledges the atrocities of slavery and we deal with that, we're never going to progress. Okay? So you've got years and years and years and years and years of just all these horrible events that we've been through. We're in the middle of a pandemic that some people still don't want to acknowledge and think that it's a hoax and fake news. And then you have George Floyd, Breonna Taylor, Ahmaud Arbery, and I'm sure I'm forgetting other people and I don't mean to. But you've got all of this in a powder keg that basically explodes. George Floyd, I think, was the catalyst that made a lot of people sit back and go, whoa, something's wrong, something's not right; something’s not right–even more so than usual. In my role as a deputy prosecutor, I worked side by side with a lot of GREAT police officers who are great people and who do the job the right way and want to help people and protect society. I’m not anti police officer by any stretch of the imagination. But I am anti bad police officer. And so people get that mixed up. They think that, if you protest a bad officer, that you're protesting police, and that's not the case. That's like when Colin Kaepernick kneeled, he said at the outset it wasn't about the flag. And a military veteran was the one who first recommended that he kneel out of respect for the flag and his silent protest, but people don't want to talk about that. It has affected me as a person because I and my wife–who's not black, by the way. My wife is white. Some people know that, some people don't. But she grew up in a predominantly white area, didn't really grow up around a lot of black people. And like many people–both black and white–she has had an awakening, if you will, by recent events. People, black and white, young and old, I've had so many conversations with people who realize truly how messed up society is. There's still racists among us. Not all racists wear sheets and white hoods. Some of them wear jackets and nice looking shirts. And it's got to change. So it has bothered me because you're seeing more and more of it. We have a president who would not denounce white supremacy in a debate on a global stage

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which gives people the mindset that they can do and say whatever they want to do with no consequence. And that's a problem. So that bothers me. I support legal non-violent protesters because that's the only way that we're going to get anything changed, because that's really the only thing that's getting people's attention. I do not condone violence in protests. Mr. Waddell: Has there been conversation, Mr. Warren, in your firm that's been generated by the events in the United States? Mr. Warren: Yes and no. I mean, there has been, in terms of after George Floyd and due to the protests, our firm put out a statement condemning racism, which was great. But in terms of like, hey, let's sit down and do this or let's do this or let's address this, no, there has not been that conversation. No. But I have had many conversations with numerous people in my office about the current events that are going on and people, generally, are bothered by it. Mr. Waddell: Well, Ms. Byrd and Judge Warren, you all have quite a perspective. And what's the world look like to you today with all this movement and all these protests and all this discussion? And I'll just start with you, Ms. Byrd. And, Judge Warren, you just jump in. Okay? Ms. Byrd: Well, I think you have to have some perspective when it comes to the long view and the history of where this country has been. I know these are turbulent times. We have to remember this country has been through turbulent times before, some of the darkest being just prior to the Civil War and after the end of World War II. You see resurgence in efforts to push forward to make the law apply to everyone in a manner that is just. I like to quote President Kennedy. I don't know from what speech it was. Black Lives Matter reminds me that I'm living through the “torch being passed” to another generation. That is a good thing, in my opinion. 18

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But that's the good thing. Even though I know the protests have been intergenerational, I think it is time for another generation to move forward with the unfinished business of equal justice under the law and equal opportunity in America for all. And if that means taking to the streets– I'm in the legal arena, but I have taken to the streets. I tell people I've marched in my day. My feet are tired but I am not giving up. And, Jonathan, I know it seems like a really dark, deep time. My cocounsels in my current voting rights case that's pending in Federal court, are all of a different generation. They are excited, they are eager, they are smart, they work hard, and they all want to make a difference. And they all want to have a choice about careers in terms of their work at LDF. And I get a lot of energy from them and I sometimes have to give them pep talks when per curiam opinions come down from the U.S. Supreme Court that just sort of leaves them flabbergasted. But you have to stay the course. And what I like about the younger generation is that they bring another perspective to how to look at race. They bring another perspective on the tools that one can use to dismantle a white supremacist system. They have a level of fearlessness about them and some naiveté but so did my generation. Okay? None of us bring everything to the table. It is an evolving and learning process. So when I make the choice to be hopeful, I make the choice every day that we have to keep working, we have to be respectful of each other, respectful of each other's perspective, but you can never take your eyes off the prize, ever. Mr. Waddell: Thank you so much for that. You all are amazing. What you're saying here is so important for people to hear, so thank you so much, Ms. Byrd. Judge Warren, what's your perspective on what's happening in the world? Judge Warren: I agree with Ms. Byrd and Jonathan. We are living in turbulent times. We are fighting wars on several fronts and it is very

concerning and mind-boggling. You just must be ever vigilant. You feel downtrodden. You feel sad. You feel hopeless sometimes. But we know, if it were not for the hope of things getting better, why are we on Earth at all? We have to know that people have the capacity to change. Now, until we, as a country, come to the realization that we need to value each person as a human being with dignity and worth, and have those hard, honest conversations about what has happened that has divided us, the things that we have in common that can continue to cement us to move towards a better nation–I know things won’t get better. I worry for our children who are living now. What are we doing to help them know that we are capable of doing better and treating each other better? We have to instill in our children–from early on–the value of self-respect, dignity, honesty, and good moral practice. Basically, treating others the way you want to be treated. We not only have to tell these things to our children–we have to show these things to our children. Our actions must speak the words. We must be motivated by love of ourselves and for all others. You know, one of my favorite books is “All I Really Need to Know I Learned in Kindergarten” by Robert Fulghum. In it, he talks about some of those things: hold hands, stick together, take naps, share, clean up your own mess, and play fair. I know everyone did not go to kindergarten, but the people who did not go to kindergarten should know most of those basic rules and know they need to practice those basic rules. However, we have to make a conscious effort to practice what we know we need to do–irrespective of how hard it may be at times. The beauty, I think, of America is that we are so diverse, and you don't want anyone to be in lockstep with one thing all the time, to think the same thing all the time. That's the beauty of having different minds and brains come together, coalesce, and have different ideas that can be vibrant, productive, and move our country forward. Anyway, until we get together and actually have honest, respectful, thoughtful, appropriate, and hard conversations about

the divisiveness in our country, it's going to stay like this. That is why it boils to the surface for a while, and then it simmers down and boils under the surface for a while–but it is always there! I don't think we're ever going to eradicate racism and prejudice, but I do think we can certainly work towards making this country more open and inclusive where people can at least treat others with some basic common dignity. That’s what I want! So, that's the way I see us–in a time of turbulence–but certainly hope is down the road. You know, there's a light at the end of the tunnel. I just don't want the light to be the train that runs us over and kills us! Mr. Waddell: When you started judging years ago as a referee until now, have you seen attitudes and things change about racism, even within the parents or the children, the juveniles that you take care of and address in juvenile court? Judge Warren: I have seen attitudes change for the better, for the most part. I have seen more biracial and multiracial children in court. First of all, as you know, people aren't knocking the door down to come to the juvenile court, but I have seen more of a willingness for people to see people as people and not objects or somebody to be ridiculed or overlooked. Now, of course, we know that's still there. But, in the arena where I sit, I see the focus on children–the need to help them and surround them in a cocoon of services as best we can, and acknowledge that these are our children, irrespective of their background, what they look like, what they say, and how they act–and that's the focus. There are still times when I see things that appear to be racially motivated–as far as how people are treating each other. Yet, I have to keep this in mind–just because someone's mean to someone or says something very demeaning doesn't mean it's based on racism. Some people are just mean! Some people just don't know what to say. Now, that does not condone or excuse their inappropriate behavior–it just may explain it. There are also things you do not see about which a person has a problem. Let me

give an example: there was an attorney ad litem several years ago who was practicing in 10th Division–I think it was 10th Division then–and one of my staff brought this to my attention. The staff member said, “You know, I think this lawyer has a bias toward Hispanics.” I said, “What? My goodness!” That had taken me by surprise, as I did not even realize it. It took a while for me to realize this lawyer did not like people of Hispanic background. Then it became clear to me. In an effort to try one avenue to alleviate this issue, I did not assign her to new cases. I need to note that she functioned well otherwise, but she had a particular bias. I don't know what it was, and I never did talk to her personally about it. When she was in the courtroom, she would be demeaning to Hispanics–and I cut that off immediately. I was not and did not allow that to continue, as it was not appropriate. Upon further reflection, I was not aware that she was particularly demeaning to a certain group of people, because, at times, she could be inappropriate to other groups of people. As a judge, it's my responsibility to control the mode, manner, method of interrogation, and how attorneys and others treat people in the courtroom. So, that’s the long answer. Things are getting better, at least from my perspective, about how people are relating to each other in court. People are coming together to support children of all races and backgrounds. For example, I had a case involving great grandparents who didn't particularly like the black putative father, but they did like the Hispanic mom–and they all came together and put those differences aside to help the children. To that extent, I see some improvements, but as you know, we have a lot more work to do in a lot of areas. Mr. Waddell: Thank you so much. Judge Warren: You are very welcome. Mr. Waddell: Judge Wilson, everybody else is in central Arkansas. How has Black Lives Matter or some of the social unrest that's been going on played out over in east Arkansas, in the Delta?

Judge Wilson: Well, you know, when these incidents come up, the first thing people do is they want to get my perspective on what's going on. And just from my background over here in Phillips County–and excuse me, because I well up when I start talking about these things. I know racism exists. I've seen it first hand, second hand, third hand, fourth hand, and fifth hand. But what I try to do, as Dion Wilson–and this is one of the things I had to remind people of once I was elected. They didn't elect the judge to be Dion Wilson. They elected Dion Wilson to be the judge. So, whoever I was before then, that's who the people wanted to be judge. So, when I look at these issues, I look at it from the perspective of–I think everything that has been said, I agree with it. I agree that black lives matter. And what I try to do personally, in my household, is to educate my kids on how to love. Because, if I can't teach them how to love everyone, then how can I make this world a better place? I've had places I've gone as a lawyer where I got there at 8:30 and all I wanted to do was get a continuance and I would have to sit there until 4:30. And I don't take those experiences with me on the bench to now get somebody back or any of those things. I want the lawyer who comes before me now to never have to experience some of the things that black attorneys have had to experience over the years of walking into a courtroom where–or walking into a courthouse and what's the first thing they say when they see you is, are you a preacher. No, ma'am, I'm not a preacher, I'm a lawyer, I'm here to practice law today, dah, dah, dah, dah, dah. And the stares you get when you come from the back of the courtroom and then you cross over into the bar area, the stares from the bailiffs to basically looking at you like you don't–this is for lawyers. And I've had bailiffs come up to me and ask me for an ID card. We don't have ID cards in Arkansas. But I had to explain myself, that I'm a lawyer. When you see these incidents of police brutality on the news, I try my best to

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educate my kids as to what should be done, what I think is right, what I think is wrong. And it's sad to say but, Mr. Waddell, I had to take my kids through a course on what to do if you're stopped by the police. I have a son who is 21 years old, goes to the University of Arkansas at Fayetteville, he's a senior. I have a daughter who is a registered nurse and I have a young daughter who's 12 years old. And so, we have courses on what to do when you're stopped by the police. And we've also gone to the extent of making sure that your insurance card and your registration, all of that is in one envelope in the car, in the glove compartment, so you don't have to fumble around so that you won't be subject to any kind of unnecessary, what you doing, unnecessary movement. Here's the envelope, hand it to the officer and get the ticket. Whatever it is, get the ticket, come home, I will handle everything else. And it's those types of conversations that I watch. I watched my dad when I first got back to practice law. The first two cases I got was Lakeview versus Tucker and State of Arkansas versus Jimmy Wilson in a bar proceeding. So, I had to learn fast the Rules of Professional Conduct for attorneys. And so I ramble a lot, but the Black Lives Matter movement, as far as over in eastern Arkansas, it's always there. It's always there. In the towns that I lived in, Helena and Forrest City, we have predominantly black police officers and black police chiefs, so we don't have as much of the police brutality that other cities see. And we have a black police chief in Marianna. So the areas that I have lived in don't see it that much but I am aware of it. So, the areas that I travel and preside as Judge in, I don’t see many claims of police brutality. And what I try to impart upon all that I come in contact with, yes, black people have been mistreated by the police. Yes. It has happened in the past and it's going to happen in the future. Yes. But what I want to impart upon you and what I want to leave with you is we also have to learn to treat each other better. We also have got to learn to treat each other in the same way that you want other people to treat us. 20

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If we are not treating each other in the manner that we want to be treated, how do you think other people are going to treat you? Judge Warren: As if they don’t matter. Judge Wilson: So that's me. Judge Warren: Could I say one thing before Mr. Phillips says anything? Because it's 3:02. I did not have any hearings scheduled, but I had to reschedule one because the mother is in the hospital and she can participate in the hearing this evening at 3:45. I want to add my response to your question, Mr. Waddell, about what I see from the perspective of conducting juvenile delinquency cases. There is still–and it's increasing in the cases that come before me–an issue of too many young black males being stopped by the police simply because of the color of their skin. These juveniles often end up having multiple charges and being placed in detention. Then, when these young black males come to court for the detention hearings, and I have to determine probable cause, I'm finding no probable cause more often than I used to–because there's no probable cause for the initial stop and the arrest in the first place. I am fortunate enough to have a public defender and deputy prosecuting attorney assigned to 10th Division who argue the pros and cons about probable cause. However, if I don't find probable cause existed for the offenses for which the juvenile was arrested, I don't make a finding of probable cause. More often than not, I tell the young people who appear in court before me that they don’t have to like the rules and they don't have to like the laws–but they do have to obey them, and they do have to obey authority. I also tell them the rules, the laws, and the authority figures can be wrong–but they can worry about that later–they just need to be respectful and obey in those situations, so they can get through it and can live to tell their parents, guardians, or custodians about it. Then, those caretakers can take it up and try to fight those issues later.

The young black males are, of course, very angry about it–and I don't blame them. However, I did the same thing Judge Wilson is talking about–with all three of my children–who are black males. When they were growing up, my husband, James, and I told them what they needed to do, what they needed to say, and how they needed to act when the police stopped them–because the police were likely going to stop them. The police did stop them! We told our sons to always be respectful, don’t make sudden moves, don’t argue, and try to stay calm. That, unfortunately, is some of what black people have to learn and to do to make sure they can try to live to fight for better opportunities the next day. It is a shame that, even with black people doing all those things to try to live–some are still being killed because of the color of their skin. It is a disgrace and it is unconscionable! Thanks–I just did want to say that. Mr. Waddell: Thank you so much. Judge Warren: You are welcome. Mr. Waddell: Everything you all are saying is just golden. It's so important for people to hear. Mr. Phillips, I'm going to move to you. So let me just kind of restart this with you. I'm interested in your view as well about how Black Lives Matter has affected you and your firm. But I also want to introduce, as a part of your discussion, this concept of being in a big firm. You and I are in bigger firms in Arkansas. How does the Black Lives Matter work with you there? And then this whole idea of code switching, which I was blind to until I heard one of my partners talk about it, and how he treated me one time when he was talking to me or a judge and then how he talked and treated others in a different way. So I know that's a lot, but could you kind of address those and get us started there? Mr. Phillips: Absolutely. So I won't add to what's been said because I think it's all on point, as far as the state,

the Black Lives Matter movement and its impact on us. First as black people; second as Arkansans; third as members of the bar, so I cosign all that. To get to your point about being in a big firm, it's an interesting place to be for a bunch of different reasons. One is I've had conversations with other black lawyers who'll ask me about being black at a big firm. And I've had people say, man, are they still treating you good; you ready to leave yet? And, if I wasn't happy, I would have left a long time ago. But I'm at a place where Antwan can be Antwan. And that's why I was excited about working at Wright, Lindsey and Jennings. That's why I'm still there after 10 years. But that doesn’t mean it doesn’t come with challenges or responsibilities. I understand that, out of a firm of 70 attorneys, we have four black attorneys and we have just hired a fifth. So, I know that people are still reaching out to me because I’m their closest relationship to a black person. They work with Antwan, stuff like that happens (e.g., events centered on racial issues), they call Antwan, they send me the e-mail, do you mind talking. I don't think I asked for that responsibility but I do recognize it. And I know that them hearing from me may be the initial filter or information they get to kind of evaluate what's going on around them in the world. And I learned something in Trial Academy, as a trial attorney, that no matter how persuasive I think I am, I may not be able to get every juror. But can I give the jurors enough information so when they go to the jury room, they can get the other jurors. And that's how I see my relationships with my white partners. They probably can get people I can't get, but can I give them enough information, enough perspective, enough of my life where, when they have this conversation or they're hearing these conversations, they can be the other juror in the jury room. So it's a responsibility, but I accept it. I know why I am where I am in my law firm. To the issue of code switching, I mean, that's a life issue. That's not a law issue. That's life, Bill. Mr. Warren: Seconded.

Mr. Phillips: Yeah. And it's real and it's something that we grow up with. I've teetered on the line and I had internal battles with myself about this for a very, very long time. And Ms. Byrd can probably attest to this, that when I was in law school, other, older, black attorneys would call me and they would say, well, Antwan, you can't go to law school with your du rag on; we've got to do things a certain way. And I remember thinking, no, I'm Antwan, I went to McClellan; I want to wear a do-rag, I'm wearing a do rag. And I wanted people to realize that, just because I'm in law school or I'm a lawyer, that I'm no different than the black male you'd see at the gas station. We're the same. I just have a different job. I don't see myself as any different than anyone else. You may work somewhere else; I work at Wright, Lindsey and Jennings. And I was trying to be intentional about not changing who I was because I was going into this profession. So I really have dealt with that. And I've learned that, just like anything else in life, there's rules of decorum, you just can't do certain things in certain places. I'm not going to listen to certain music when I pull up to the church parking lot. It's the same kind of concept, right? But, even with all that being said, it's a battle. And I think a lot of black people deal with it, whether you're a lawyer or not. And I listen to a lot of Jay-Z. And Jonathan knows that. Mr. Warren: Yes. Mr. Phillips: And one of my favorite Jay-Z verses is, "people look at you strange and say you changed, like you worked that hard to stay the same; people look at you strange and say you changed, like you worked that hard to stay the same." That really gave me the mindset to change the fight I was having with the idea of code switching, so to speak; that, okay, Antwan, you're not changing who you are as a person and the core of you, but you can work hard. I mean, you've read a lot of books, spent a lot of time learning torts. Like Jonathan, I had to take the bar twice.

I didn't go through all that to be who I was in 2002 when I graduated from McClellan. But then trying to grapple with being who I was in 2002 when I graduated from McClellan, it's a challenge. And a lot of people in my law firm, they don't have to deal with it. It doesn't affect them. It never becomes a part of their life. But it's something that I think about constantly. So I can take up the rest of the 30 minutes, but I'll stop there. Mr. Waddell: Well, Mr. Warren, you're animated on this topic. I'm watching your picture. So how does that work with you? Does it resonate with you what Mr. Phillips is saying? Mr. Warren: You talking about the code switching? Mr. Waddell: Yes, sir. Mr. Warren: Okay. He hit the nail on the head. It's a life thing. It's not being an attorney thing. For instance, I grew up, went to Central High School, went to Little Rock Public Schools. So I had friends who grew up in housing projects, I had friends who grew up on Edgehill. So my parents taught us, treat people as people, you know, do unto others as you would have them do unto you, so I'm friends with everybody, right? So code switching, there are white attorneys who I work with who, quote/ unquote, code switch. I will use any excuse I can to drop a Snoop Dog reference to somebody, if I can do it. That's my goal. If I can drop a Snoop Dogg or a Dr. Dre reference, I'm going to do it. But you can't do that with everybody, right? And so if you need to explain something to somebody, in my job as an attorney to represent a client is to make sure, okay, I need you to understand exactly what I'm saying because I'm your counsel, I advocate for you, but you've got to know what I'm talking about, you have to realize–and this could be related to anybody's color or station in life. But you have to realize, okay, how can I get through to this person.

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I am always the same person and I do not change my personality or ethics or values, but I can talk Tupac… And so I can talk Tupac or Jay-Z to somebody or I can talk Metallica and Anthrax with somebody else. Mr. Phillips: Yeah, you're a lot more diverse than I am in your music. Mr. Warren I try to be. I try to be. But Antwan and I had lunch together when I was running for judge. And one of the things that he and I talked about, and this stuck with me–Antwan, you can jump in if you need to and tell this story. But I think it was a judge or something in some trial who–wasn't it like a terroristic threatening trial or something we talked about? But the kid has posted like a Jay-Z lyric. And Antwan saw it and he was like he's not threatening anybody, he's posting a rap lyric. So, I mean, you've got to be able to identify with people. And, whether you're a deputy prosecutor or a public defender or representing somebody on personal injury or a judge, if you can't identify with people and where they come from, that's a problem. Mr. Phillips: Yeah. And I will jump in there. And that really calls me–you mentioned me working at a big firm. I love my firm. And that was the one time I was sitting in court, like we always do, and the criminal docket goes before the civil docket, and they were arguing about this case. And that was the one time where I thought to myself I'm doing the wrong work. I'm like I'm not where I need to be. Because, if I was that guy's lawyer, I would be able to explain what he did because I do it and I still do it today, where I post lyrics on my social media. But they didn't get it. And I'm thinking the work I do, and I think I'm good at my job, but you can plug somebody else in to represent the trucking company. You can plug somebody else in to represent the doctor. Can I plug somebody else in to 22

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represent the person who grew up south of 630 who's posting rap lyrics that's being taken out of context and being criminally charged, that stuck with me for a long time. And that is part of the reason why I started to get so active outside the firm in charitable and community oriented things. I knew that I have to influence my community in some kind of way if I’m not going to be there as a lawyer for the guy who is being prosecuted for a crime and then examined about rap lyrics. Mr. Waddell: It's kind of an integrity issue for you, isn't it?

more I have embraced so much about my life and who I am and what I see in the world, I'm not as aware of the switching as I used to be, in terms of how I approach it. Some of it is that I'm letting go of really caring a lot about what other folks think. And it's how I choose to approach and navigate the world. The law can be constricting because we're in a forum that has rules and regulations and you name it, I have to adhere to. But I try to bring me to everything. And I don't apologize for who I am, my perspective. I know how to be respectful. But I'm not switching up as much. At least that's what I'm noticing over time.

Mr. Phillips: Yeah. Mr. Waddell: So, Ms. Byrd, I want to pivot here a bit. I'm interested in how you view this code switching idea. I've been practicing since '84, so you're ahead of me, but we're more of a different generation about this. And then I also would ask you about the Isabel Wilkerson book, Caste. Particularly, one thing that just resonates with me is Ms. Wilkerson says, "we're all players on the stage that was built long before our ancestors arrived in this land." And this idea that I'm here but I'm on a stage that somebody else created and there's all these things that are there that affect me as a person and affect the way I practice law and do–what I say to whom, I mean, how does that strike somebody that has the long experience that you have, Ms. Byrd? Ms. Byrd: Well, on the matter of code switching, just read W.E.B. Du Bois. He talked about all of this in the “Souls of Black Folks.” This is nothing new. Being of two minds having to wear the mask. I'm not educating most people on this panel, they know who Du Bois is and his writing and other works. So it's just that we've given it a more contemporary name. Also, what I like about young people today is the way they describe it and its impact upon them and the different ways that they notice it. The older I have gotten and, I guess, the

Mr. Phillips: Can I jump in there real quick, Ms. Byrd? Ms. Byrd: Yes. Mr. Phillips: Why do you think that is? Is that because you've been successful enough where you say I am who I am? Ms. Byrd: I make my living primarily in the AfricanAmerican community. I believe I am accountable to that community. However, I have worked for corporations, we have done defense work. I've represented municipalities and governmental entities and individuals. I've had a broad capacity here in terms of the kind of clients we have. I also do criminal defense. I'm still a member of the CJA panel in Federal court. And the CJA panel is the statutory creation of a panel of attorneys to carry forth Gideon versus Wainwright. I’m saying something you all recognize, implemented in the Kennedy administration, when Bobby Kennedy was the attorney general. That program still exists today. I have African-American clients, white, Hispanic, all across the board. Code switching is just some things I've gotten (to quote Fannie Lou Hamer) “sick and tired of being sick and tired.” I’m not very concerned if a judge doesn't like me, but I'm going to be me. Du Bois said we don't always, as African Americans, recognize the burden and the toll that we

carry when we are code switching. There is a psychic debt that is paid when you are of these diverse minds and going back and forth. We know it has been a tool of survival. And a tool of survival to negotiate a white supremacist system that is judging us constantly, based upon factors that bear no relationship to who and what our humanity is. I discovered this some time ago as I got better, at least I think better, that I am a better lawyer and that juries really appreciate you being you and being able to speak to them and meet them where they are. I think you do that best when you bring who you are to the table. And I also think that we have to start unlearning some things that we have used as tools of survival and to compensate for how we have been treated. Things don't have to stay the same way forever. Remind me what the other question was about. Mr. Waddell: I was just referring to the Isabel Wilkerson book, Caste, and this idea that we're all players on the stage that was built long before our ancestors arrived. Ms. Byrd: Well, I have her book but I haven't gotten to read it yet. It sounds Shakespearean. All the world's a stage and we all have a part to play. But what I think Ms. Wilkerson is getting at, at least the context in which you're giving because I haven't read the book, is that at the founding of this country African Americans did not have a say but were impacted in a multitude of ways. Unfortunately, we don't live in a country right now where we are teaching our children a truer history of America. And so, therefore, when you have these conversations about history, it can be dicey. Not just our children but, you know, we've all grown up miseducated and uneducated about the history of not only this country but the history of the world. And that we have generations that have come before us that were on that stage and had to negotiate how to survive on that stage. Our impact on the stage and the story of America is still

there and is still strong and is part of what makes this country what it is. We are players on a stage that we did not initially create. We were kidnapped, we were sold, we were brought here. We've had to recreate/reinvent ourselves. Life is constant reinvention, reimagining for African-American people. And we're not the only ones that have had to do this in order to maintain ourselves and exist in a system that has not totally recognized our full humanity. Mr. Waddell: You're right on target. What I was going to ask, if I may, Ms. Byrd, I'd like each of you to give us kind of your words of wisdom on this last question that I have given you, which is, what does the bar in Arkansas need to hear from you, as an African-American lawyer, practicing in 2020? Could you start, Ms. Byrd? Ms. Byrd: Can I briefly say that I would reverse that. I think we need to hear from the bar. It needs to be held accountable for what it has not done and that it has participated and been complicit with maintaining power structures and privileges in the state of Arkansas and throughout the country for generations. And they've never been held strictly accountable for that. We have the W. Harold Flowers Law Society because the Arkansas Bar Association did not admit African Americans until, what, the '60s? They've never been held accountable. We have large law firms who, for years, would not recruit African Americans, and you all know this, or give excuses about finding so-called qualified people as if African Americans are presumptively unqualified. The Bar hasn't challenged that. Law partners haven't challenged that. We have seen and still see tokenism. And, once you bring African Americans into that structure, what do you do to support their staying there, their growth, their professional maturity, their professionalism? I've had young associates in New York and other cities who have been in some of the larger firms that recognize that they have been used as props and not provided with the necessary support and inclusion that white

associates receive as a matter of due course. So I think it should be reversed. What is the Bar bringing to the table? Mr. Waddell: Well, I certainly appreciate that perspective. Ms. Byrd: Okay. That's more than enough. Mr. Waddell: I really do. And I'd love to talk with you further about that. Judge Warren: I have to leave to start the 3:45 Zoom hearing. This is fascinating! This is really, really, really a lot of food for thought, and I'm just so sorry we didn't schedule it for a longer period of time. This is wonderful and I'm just–I can hardly wait to see the finished product! I just wanted to tell everybody thank you so much for what you do, and thank you so much for allowing this to be! I love Ms. Byrd's last comment. She's right on point. She's right on point. Ms. Byrd: Every one of us are connected. I'm connected to everyone that's on this panel.

Judge Warren: Absolutely. Ms. Byrd: By family, by history, everybody. These are people I've embraced and been in my life for a long time. Judge Warren: As we say in the ZERO TO THREE Safe Babies Court Team– connections matter! Ms. Byrd: They do. Judge Warren: Thank you for letting me be a part of the conversation. Take care. Thank you. Love you. Love everybody. Love you too, Sweetie. Thank you so much. Take care. Mr. Waddell: Judge Wilson, can you give us your words here as we wrap up?

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Judge Wilson: I agree totally with Ms. Byrd. And I just believe that the Bar needs to hear from African-American attorneys because there are stories that have not been told that would probably shock the conscience of the Bar. If you could hear some of Ms. Byrd's stories about going to courthouses and going to different places throughout the state of Arkansas and what she has encountered as not only a black attorney but a black female attorney, it would shock the conscience of some of the people who sit there. Ms. Byrd: And I know his dad. He's telling the truth. Judge Wilson: And the way he taught me to beat code switching was he said be the smartest person in the room and you never have to change. Mr. Phillips: To highlight two things Judge Wilson said, one, you're absolutely right. And I appreciate that. Once people recognize the work you do, other stuff doesn't matter. And you can kind of lose some of the need or understanding. That's why I asked the question to Ms. Byrd, why do you feel comfortable doing this. Because, at some point, people just know, they get it done, irrespective of other things, everything else. But we come with that barrier first. Maybe other people who don't look like me don't have to worry about proving themselves first. I've got to prove myself first. So I just wanted to highlight that. Second thing, some of those stories, Judge Wilson, apply to me today. Now, I had a case up in Corning, Arkansas, representing a dentist. And my client told me, you know, we were getting ready to go to the jury trial, do you think you can bring one of your white partners with you because I think the jury would appreciate that. That was two years ago. This was not a long time ago. You do not have to practice for a long time–

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Judge Wilson: I agree with you. Mr. Phillips: –to have some of these stories. But I agree with what's been said about the Bar. The other thing I think we can do, from a Bar perspective, one, we have the annual bar meeting. Obviously, we didn't have it in-person this year. But that's the opportunity to really go into in-depth discussion on these issues. Not just the same old, same old, knowing that the Bar is different than it was 30, 40 years ago. This event should look different than it did 30, 40 years ago. The events being offered should be different, both CLE and recreational events. The other thing, from a completely legal perspective, you're talking about police brutality, which immediately goes to prosecutors and judges. If you talk about what happened to Breonna Taylor, you're talking about no-knock arrest warrants, prosecutors, judges, those are people who are members of the bar. And we need to have the discussion–and bring some perspective to the other side of the story. You're just not doing your job by signing the warrant. There's more to it than that. So we need to make sure that those folks in those positions have a perspective of how this is impacting communities, families, in fueling the social unrest in our society. They have an integral part to play in it and we need to make sure that that's understood. And I think having that at the Bar meeting or some other venue would be the opportunity to make sure that those stories are shared. Judge Wilson: All right. Antwan, go be great.

Mr. Waddell: Thank you, Mr. Phillips. I think one thing I've heard today–and I'm coming to you, Mr. Warren, for the final word. But one thing I've heard is that one of the problems is that I come at it with a perspective that doesn't fully appreciate– that last question that I asked was

thinking not in the criminal context and the parts of the bar that are the criminal justice system. And you picked up on that. And, I mean, that plus all these other things that we've heard today, for people like me who are older white lawyers who–my kids tell me I don't have good self-awareness sometimes. But I've learned a lot from you today. And I apologize for some of the questions, in a way, if they appeared to be not getting to the perspective. But I'm going to give Mr. Warren here the final word and then we'll wrap up. What would you, as an AfricanAmerican lawyer, say to the Arkansas Bar? Mr. Warren: Well, I cannot discount or disagree with anything that anybody has said, first and foremost. Secondly, I'll say that the Arkansas Bar Association, from personal knowledge, is working to make things better. I am a part of the Commission on Diversity and Inclusion, so I know that there is active work being done with this regard. For 14 years I've been a licensed attorney. With the exception of one attorney at my current job, who is now not at the firm anymore, with the exception of a year, I've always been the only black male attorney at every job I've ever been in. Okay? So that's something that I've noticed. Does it bother me, yes, because there are plenty of people out there who, as Ms. Byrd was saying, you know, are qualified. But, also, what comes with that is do a lot of black male attorneys want to be deputy prosecutors? No, they don't. And I struggled with that, and had a conversation with a black female attorney who's a good friend of mine who was there before I was, and we probably had a four-hour conversation. And she was basically like, hey, I grew up in the hood, I did it, as long as you're you, people will respect you, and you do your job. And she was basically the catalyst for me to go there, because we had the conversations. And one of the golden nuggets of info she said was we have to have people who look like us to be in these positions, to be judges, to be prosecutors. And, like Antwan was saying, people who know how it is, how people are affected by

this, to make sure that the system goes fairly and treats fairly. I've had conversations with my bosses when I was at the prosecutor's office, when I was at the attorney general's office. And they know that there's a lack of minorities, if you will, at these positions. Now, can I look back, can I look at these offices now and go, okay, how many black folks are at the prosecutor's office, and answer that question, I can't answer that question. How many black people are at the attorney general's office, attorney wise, I don't know the answer to that. But I can tell you I don't think that there are any black male attorneys at the attorney general's office right this minute. I think there's zero. I'm the only black male attorney at my job now. Why is that? Does it bother me? Sometimes, yeah. Does it affect the way I work? No, because I'm a driven person, and I'm going to do the best I can for my clients and for my job and self respect and all that. But I do know that the Arkansas Bar Association wants to do better. Everybody's got to do better. We are at a pivotal, pivotal point in this nation where we have got to get it right. If we don’t get it right–from my perspective–we are going to go down a road that we don’t need to go down and will cause irreparable harm. A lot of progress that has been made and a lot of hard work that people literally died for will be undone. There will be more of us coming, black attorney wise. And, like Ms. Byrd was saying, the younger generation is fired up. They're going to come, they're going to be heard from. It's going to get better. But, from my perspective, man, I have a hard time seeing that these days. But it's got to get better because we don't have a choice. But I've got to do something to do my part. And I'm trying, whether it's in the Bar Association's task force or my kid's school. You know, they've got a diversity and inclusion task force that I'm on that's doing good and hard work to make the world a better place. But, man, we've got to do something. Whatever that something is and whatever that something is that touches you that makes you say, hey, I've got to do something, then we have to do it. And, like Judge was saying, following

back up on what he said, I don't know why people don't want to talk about it. And we've gotten to the point in this nation to where people think that talking about racism makes you racist. Somehow people think that. It's like, no, I can't talk about racism because then that makes me racist. No, no, we've got to talk about this. And we've got to get to the root of the problem and talk about it, because that's the only way that we deal with it and we work through it, is to talk about it. I saw another quote one time that made you stop and think. And it's like racism is so engrained in America that, when you protest racism, people think that you're protesting America. How did we get here? Ms. Byrd: Propaganda, miseducation, misinformation and denial, among others.

Mr. Warren: It's crazy. Well yeah. But, I mean, it's crazy. It is absolutely crazy.

Mr. Waddell: Well, I knew you'd be a good way to end this. I really appreciate your comments. Mr. Warren: Thank you. Thanks for having me. Mr. Waddell: I appreciate each of you giving us the time. I know I personally needed to hear what you had to say and I appreciate you doing it for the whole Bar. And I think the Bar will benefit greatly. And, hopefully, this is maybe a step towards doing some of the things that you all have said we need to be doing. ■

Privilegium By Bill Waddell, moderator of the Symposium panel.

The concept of privilege has more than one connotation in the practice of law. Of course, there are evidentiary privileges that the courts have established, and these apply to all litigants if the factual context is right. In this sense, a privilege is available to all regardless of their individual status. The word privilege comes from the Latin word privilegium, which is a combination of the words for private and law.1 In our U.S. legal system that is founded de jure, if not de facto, on the concept of equal justice under the law, a “private law” applicable to only certain persons is clearly incompatible with our declaration that all are created equal. Yet, while nominally and facially equal and blind to status, including race, gender, ethnicity, class and caste, the administration and application of the law sometimes appear to be influenced by privilege. The recent events in our nation related to the deaths of AfricanAmericans at the hands of law enforcement officers reinforce that appearance. As a lawyer who acknowledges that I was born of privilege, I have grappled with what my response should be. One thing I have learned is that my view as a 64-year-old white lawyer can be myopic and paternalistic, no matter how sincere and well-intentioned I am.

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While the use of the word privilege in the English language dates to the 12th century according to the Merriam Webster Dictionary, the concept of privilege in the law has always been with us. In the 5th century B.C.E., Roman tribunes initiated a movement that led to The Twelve Tables.2 The tribunes faced criticism for their initiative that led to The Twelve Tables, and in the end, no plebeians were allowed to be members of the group that met to codify the laws that would become The Twelve Tables. However, the result was a public record of commonly accepted laws that all could know and use in the enforcement of their rights, such as they were, no matter whether plebeian or patrician.3 The complaint of the Roman plebeians was that the law was applied in one manner for them and in a more favorable way for patricians. Decisions by magistrates “conformed to the character of the magistrates who were appointed to office on the basis of good birth.”4 In other words, the magistrates were accused of deciding matters based not on stated objective principles and equality under the law but rather their own view as privileged persons. The Roman Antinquities of Dionysius of Halicarnassus contains a particular discussion of privilege in the context of personal abuses of others by a young patrician named Caseo Quintius. When he was accused of a crime against the state, he refused to testify. His father, Lucius Quintus, defended him on the basis of what he had done for his country, asking for mercy even though the evidence of his personal abuses was clear and compelling. One of his accusers, Versinius, told Caseo’s father that he could understand the father’s defense of the son before the father knew of the son’s personal abuses, but the accuser said he could not understand the father’s defense after he became aware of what his son had done.5 History is replete with more examples of privilege in the law, often resulting in harm to society as a whole and any notion of justice in particular. One glaring example was the privilegium de non appellando established in the Holy

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the law and equal access to justice. Doing nothing only perpetuates privilege, and I cannot live with that legacy. —Bill Waddell

Roman Empire of the 15th century. As the phrase suggests, this privilege protected persons (mostly of the noble class with large estates) from appeals to the higher court in the empire. While there were exceptions, the government and the church often worked to effectively limit the feasibility of using those exceptions. Privilege clearly had its advantages, and the power structures of the day reinforced that privilege.6 With our 21st century perspectives about justice, lawyers and non-lawyers alike bristle at this example of unequal treatment under the law, and we would not tolerate or support that type of privilege. Yet, we may be blind to structural privileges that exist in our legal system today, and we may be those about whom future generations wonder how we allowed such privileges to exist. In her book, Caste, Isabel Wilkerson writes that African-Americans are players on a societal stage that was erected before their forbears were brought here.7 Her words resonate with us in this time when the issue of privilege and its continuing effect on persons of color are front and center. We, too, are players on that same stage that was built before we were born. Whether we were naive or blindly and arrogantly ignorant of the position of privilege on that stage, the words of Versinius echo loudly and incessantly in our ears: “Nevertheless, though I acquit you of joining with him in injuring us at that time, I blame you for not joining us now in resenting those injuries.”8 Now that I know, it is indefensible to continue performing on the same old stage instead of working with others to rebuild it in a way that ensures equality under

Endnotes: 1. https://www.merriam-webster.com/ dictionary/privilege (Retrieved Dec. 9, 2020). 2. https://avalon.law.yale.edu/ancient/ twelve_tables.asp (Retrieved Dec. 9, 2020). 3. Article by George Long, Lex Duodecim Tabularum, pp. 688-690 in William A. Smith, A Dictionary of Greek and Roman Antiquites (London 1875) (Retrieved on Dec. 9, 2020 from http:// penelope.uchicago.edu/Thayer/E/Roman/ Texts/secondary/SMIGRA*/Lex_XII_ Tabularum.html). 4. The Roman Antinquities of Dionysius of Halicarnassus, Vol. VI, Book X, p. 165 (Loeb Classical Library ed. 1947) (Retrieved on December 9, 2020 from https://penelope.uchicago.edu/ Thayer/E/Roman/Texts/Dionysius_of_ Halicarnassus/10A*.html#3 (hereinafter “Roman Antiquities”). 5. Id. at 177-181. 6. Rowe M. (2009) The Political Culture of the Holy Roman Empire on the Eve of its Destruction. In: Forrest A., Wilson, P. (eds) The Bee and the Eagle. War, Culture and Society, 17501850. Palgrave Macmillan, London. https://doi-org.hendrix.idm.oclc. org/10.1057/9780230236738_3, pp. 5051 (Retrieved December 10, 2020). 7. Isabel Wilkerson, Caste: The Origins of Our Discontent, p. 40 (Random House 2020). 8. Roman Antiquities supra, p. 181. ■

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ARKANSAS BAR COMMISSION ON DIVERSITY AND INCLUSION 2020-2021 ABCDI Members:

Kandice Bell Chair, ABCDI Office of Arkansas Governor Asa Hutchinson White Hall

Judge Ernest Brown Dean Terrence Cain Circuit Judge, Associate Dean Pine Bluff, Judicial for Faculty District: 11th West Development Jefferson and William H. Bowen Lincoln Counties School of Law

Joe F. Kolb j. kolb Little Rock

Paul Keith ArkBar President Gibson & Keith Monticello

Deepali Lal 3L, Bowen School of Law Bowen Law Student Representative

Brian M. Clary Saline County Prosecuting Attorney Benton

Caleb Garcia Little Rock YLS Member

Philip E. Kaplan Cross, Gunter, Witherspoon & Galchus, P.C. Little Rock

Molly McGowan McNulty Arkansas Court of Appeals, Little Rock YLS Member

Marie-Bernarde Miller Deputy City Attorney, City of North Little Rock

Dean Cynthia Nance Dean Emeritus and Nathan G. Gordon Professor of Law U of A School of Law

THE ASSOCIATION'S DIVERSITY STATEMENT

Brian Rosenthal ArkBar Immediate Past President Rose Law Firm Little Rock

Gwendolyn Rucker Law Clerk, United States District Court - Eastern District of Arkansas

Jonathan Warren Rainwater, Holt & Sexton Little Rock

The Arkansas Bar Association announced its Commission on Diversity and Inclusion (ABCDI) this bar year. The commission’s goals are to protect the rule of law, to aid in perfecting an imperfect Union, to ensure our representative democracy casts a wide tent, and to ensure that government metes out equal justice under law.

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as approved by the Board of Governors in 2014 states: In order to better implement its stated purposes, the Arkansas Bar Association is committed to fostering diversity among the bar and bench. Diversity is an inclusive concept and encompasses, without limitation, race, color, ethnicity, gender, sexual orientation, gender identity and expression, religion, nationality, age, disability and marital and parental status. A more diverse bar enables greater innovation and more civility in the legal profession by exposing its members to a wide variety of backgrounds, perspectives, life experiences, and talents. 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.

ARKANSAS BAR COMMISSION ON DIVERSITY AND INCLUSION (ABCDI) SURVEY This anonymous survey is for benchmarking and helping monitor the Arkansas Bar Association’s efforts in the areas of equity, social justice and inclusion. This survey will be used by the ABCDI to develop strategies to enhance opportunities for inclusion in the Association. We appreciate your input and thank you for taking the time to complete this survey. The term “diversity” as it is used throughout this survey is an inclusive concept and encompasses, without limitation, race, color, ethnicity, gender, sexual orientation, gender identity and expression, religion, nationality, age and disability. 1. What gender do you identify as? ❒ Male ❒ Female ❒ Nonbinary 2. What is your age? ❒ 20-30 ❒ 31-40 ❒ 41-50 ❒ 51-60 ❒ 61+ 3. What is your ethnicity? ❒ Hispanic or Latino ❒ Non Hispanic or Latino 4. What is your race? ❒ American Indian or Alaska Native ❒ Asian ❒ Black or African American ❒ Native Hawaiian or Other Pacific Islander ❒ White 5. What best describes your practice? ❒ Private ❒ Public or government ❒ Academia ❒ NPO ❒ Retired 6. How many years have you practiced? ❒ Newly licensed-5 ❒ 6-10 ❒ 11-25 ❒ More than 25 7. Do you consider your practice: ❒ More rural than urban ❒ More urban than rural ❒ Equally urban and rural 8. Is your place of employment? ❒ In northwest Arkansas ❒ In northeast Arkansas ❒ In southwest Arkansas ❒ In southeast Arkansas ❒ In central Arkansas ❒ In State-other (please specify): ❒ Out of State 9. Do you feel the Association reflects the diversity of the legal community in Arkansas? ❒ Yes, based upon: ______________________________ ❒ No, based upon: _______________________________ ❒ Unsure: _______________________________

10. If you perceive a lack of diversity within the Association, do you perceive it as intentional or unintentional? ❒ I do not perceive a lack of diversity ❒ Intentional, based upon: ________________________________ ❒ Unintentional, based upon: ________________________________ 11. The Association would benefit from greater diversity among its members. ❒ Strongly agree ❒ Agree somewhat ❒ Neutral ❒ Disagree somewhat ❒ Strongly disagree 12. What do you perceive as the most significant obstacle(s) to greater diversity in the Association and why? _______________________________ 13. Do you have ideas about how to overcome any obstacle to greater diversity you identified in the previous questions? ❒ Yes, please describe your idea(s): _______________________________ ❒ No

17. Are you willing to take active steps to increase the level of diversity within the Association? ❒ Yes, I am willing to: ________________________________ ❒ I see a need, but don’t know what I can do to address it ❒ I do not see a need 18. Is the Association sensitive to areas of implicit bias in its: Governing Bodies: ❒ Yes, because: ________________________________ ❒ No, because: ________________________________ ❒ Unsure: ________________________________ Committees, Task Forces & Sections: ❒ Yes, because: ________________________________ ❒ No, because: ________________________________ ❒ Unsure: ________________________________ 19. In what ways could our Association help facilitate diversity initiatives in its: Governing Bodies: ______________________________ Committees, Task Forces and Sections:

14. Have you experienced or witnessed discrimination or implicit bias in your interactions with the Association? ❒ Yes, please describe your experience(s) on an anonymous basis: ________________________________ ❒ No 15. The Association should take an active role in developing programs to promote greater diversity among its members. ❒ Strongly agree ❒ Agree somewhat ❒ Neutral ❒ Disagree somewhat ❒ Strongly disagree 16. The Association should take an active role in developing programs to promote greater diversity in its leadership. ❒ Strongly agree ❒ Agree somewhat ❒ Neutral ❒ Disagree somewhat ❒ Strongly disagree

________________________________ Relating to the practice of law in Arkansas or relating to the administration of justice in Arkansas: ______________________________ Within the Association in general: _______________________________ 20. On page 28 is the Association’s Diversity Policy; is it adequate? ❒ Yes ❒ No 21. Overall, on a scale of 1-10 how inclusive is the Association? Low 1 2 3 4 5 6 7 8 9 10 High (Choose one)

Complete the survey online at www.arkbar.com/for-attorneys/abcdi You can also print and mail with additional paper to the Arkansas Bar Association at 2224 Cottondale Lane, Little Rock AR 72202 or email to mglasgow@arkbar.com Vol. 56 No. 1/Winter 2021 The Arkansas Lawyer

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Arbitration in a Cyber Forum Technology and Preparation

By David Fuqua

If I could survey you, the readers of this article, about whether you think you are better oral advocates in person or on the telephone, your responses would be overwhelmingly one-sided. We are all better advocates in person. In law school and in the practice of law, we train for two kinds of advocacy, in person in a courtroom and in writing in a brief. We receive little training in any other kind of advocacy, including in front of a computer screen. Given how ubiquitous electronics have become in our lives and how central they have become to modern business communication, the need to teach virtual communication skills to lawyers is increasingly apparent. Further, the array of audiovisual business tools (Zoom, Skype, WebEx, for example) makes advocacy in a cyber forum an essential lawyering skill.

David Fuqua is a partner with Fuqua Campbell, P.A. in Little Rock.

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Arbitration in a Cyber Forum Again, if I surveyed you, the reader, about why audiovisual tools are now essential to the practice of law, you would most likely say because of COVID and the pandemic shutdown of in-person meetings. A friend who lives in New Orleans told me he learned to text after Katrina hit the city and learned to use Zoom during the COVID pandemic. If we want to succeed as advocates, we must learn to adapt and use the tools we have at hand. And yet many lawyers, at least among those I encounter, doubt or distrust the efficacy of audiovisual platforms for advocacy and want to proceed in person despite the health risks or wait out the pandemic until an in-person forum can be convened. This is no less true in arbitration, where a cyber solution is practical and easy to implement. Fortunately for lawyers who have to arbitrate a case, technology affords fully-formed tools for a cyber forum when an in-person hearing is impracticable. The reasons a cyber forum works so well in arbitration track many reasons arbitration is a good alternative to the jury or court trial for dispute resolution. Arbitrations are resolved expeditiously by professional arbitrators who are not juggling a large trial docket. The rules of procedure are stripped to essentials, discovery is limited, and hearings are less formal than a trial, especially a jury trial. Despite the preference for live forums or a fear of change, a cyber forum can be effective. First, a cyber hearing is in person. What it lacks is the physical presence lawyers love to exploit in a courtroom—the indominable stature of the experienced trial advocate with a finely tuned voice pitched to perfect inflection and underscored with a knowing nod to the jury. This image of ourselves standing astride a courtroom is hard to replace with a passive figure sitting in front of a computer with a conference room, or living room, for a background. Unfortunately, for the present and foreseeable future, we are more likely to try our cases in a cyber forum than in a courtroom. With this reality in mind, we should not just accept but embrace arbitration in a cyber forum. Clients will appreciate the convenience and cost savings. Arbitrators will appreciate

“The probability of your successful participation in the cyber forum is directly proportional to how far ahead you think and plan and practice. After that, your advocacy skills can take over.”

the flexibility available when the hearing goes online. And you can still be an effective advocate! Although you may have aversions to cyber advocacy, you will be forced into this new forum because there is often no viable alternative other than to wait until the pandemic passes. This approach is dilatory and does not serve the interests of clients or our legal system. We must bend to reality. This article provides guidelines and pointers for successful arbitration in cyberspace. If, as you read this article, you detect bias on my part for arbitration in a cyber forum, I will confess I am biased, because I have arbitrated cases for 35 years. I understand what helps and hurts the fair and expeditious resolution of cases. Moving the case to cyberspace does not degrade fairness for the parties and enhances prompt, economical resolution. First the Technology Whether we like it or not, and I know many lawyers do not like it, managing technology has become a significant part of our daily work. The practice of law is hard enough without having to worry about menial concerns, such as adequate computer functioning, email connection, or the possibility of losing an important email in a spam filter. Little wonder that lawyers are prodigious consumers of tech support to help keep the whole apparatus of our practices turned on and working. Knowing things can go wrong with technology, when entering a cyber forum, the first rule should be to have the right technology and have it work correctly on the day you need it.

Bandwidth How much data can your internet connection sustain? For successful connection to your cyber forum the more bandwidth the better. If you are sharing bandwidth, which is the case at the office and most particularly at home, try to discourage data hogging by other users during your hearing. This means refraining from activities such as streaming movies or gaming while the hearing is in progress. Cyber forums are video events, which require significant bandwidth, so you want to know what you have available and what your connection can handle. First, you need to have a connection fast enough to handle the video streams coming to your computer and leaving your computer. The more participants in your hearing, the more bandwidth you need. Depending on the quality of your video stream, you may need as much as three megabits per second (Mbps) for upload and download. You can easily test your speeds with a Google speed test. Second, you need to know how much bandwidth you consume in total during the hearing. This is important if you are connecting with a managed (or, more correctly, rationed service) that keeps track of your total consumed data in a billing cycle. In these cases, you will either be charged (a lot) by the minute for bandwidth exceeding your plan cap or your speeds will be slowed drastically (to dialup speeds) and effectively end your hearing. It is possible to participate using your cell phone or tablet. However, avoid using your cellular data. A cellular connection can be unstable and

subject to data limits. The most reliable connection is a wired connection with plenty of bandwidth and unlimited data. For maximum functionality on the Zoom platform, such as screen sharing for exhibits, you should use a laptop or desktop computer. Cell phones and tablets do not have all the functionality the platform offers, and you want to be able to take advantage of all the features. Peripherals What? Camera and microphone: You need both of these to participate in a virtual hearing. Most recent computers— desktops, laptops, tablets, and phones— have quality cameras and microphones. The important thing here is to know what you have and how to make it work. Do not wait until the hearing to test these functions for the first time. Test them in practical ways, such as through FaceTime chats with friends, so you can learn how to adjust the volume and position the computer to display your face to the best advantage. You do not want a distracting background or a strong backlight casting your face in a shadow. Also, you want a microphone that produces a clear sound that can be placed at an optimal distance from you, while still allowing the camera to display your face clearly. If your built-in camera and microphone do not work well for you, you can buy good, inexpensive video cameras and microphones to plug into your computer. If you use a tablet or phone for your connection, you will be limited to the built-in camera and

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microphone, so test these to make sure you are satisfied with the output.

Resources from the American Arbitration Association

Virtual Hearing Guide for Arbitrators and Parties This article includes tips on: • Optimizing the virtual hearing experience • Virtual hearing security considerations • Preparing for the virtual meeting • At the start of the hearing For full article go to: tinyurl.com/5h54lpxm Virtual Hearing Guide for Arbitrators and Parties Using Zoom This article includes tips on: • Optimizing the virtual hearing experience • Zoom Technical Support • Virtual hearing security considerations • Preparing for the virtual meeting • At the start of the hearing • Considerations for recording a Zoom hearing • Recommended Zoom settings for Cloud recordings • Recommended Zoom settings for local recording • Suggested Zoom default settings for virtual hearings including schedule meeting settings, in-meeting basic and advanced settings, email notification settings and other settings For full article go to tinyurl.com/1pqbx7tp

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Group Participation Often, you need other people with you during the arbitration hearing—another lawyer, your paralegal or assistant, your client, a witness. Group participation requires planning and practice. There are several options, depending on your working needs, your technology, and your willingness to plan ahead and practice. One solution is to have everyone on your team together in the same room. If everyone in the room uses separate microphones, you will likely get some very annoying and disruptive audio feedback. If everyone uses a single microphone, it needs to be movable. This solution can become awkward if the microphone and camera are in the computer and need to be passed back and forth for questions and answers. Using this method, you and your witness cannot be visible at the same time, unless you sit next to each other. Another solution (for a bigger investment) is to have a large display screen to mirror your computer screen and use a peripheral video camera that can capture the whole room and display all those present. This solution can be an effective visual presentation, provided the participants are not so far from the camera they look too small. Practicing the room setup will help you stage an effective presentation. Audio is a different matter. You can use the microphone built into the computer or a peripheral attached to the computer, but in a large room, you can get echo and distortion that will degrade your presentation. You cannot solve the problem by having all the speakers in the room use separate microphones (by using a telephone connection, for example), as this will cause annoying and disruptive feedback between several devices. If you need multiple participants in the same room during the hearing, try to limit the number of speakers to no more than two at a time. If the microphone (preferably an omnidirectional one) can be placed between the two speakers, close enough to each that you need not move it back and forth, the audio presentation should be clear and seamless. Again, the key to success is

to practice and experiment with different options until you work out a good solution. The other obvious choice is to have all the participants in different locations and on different computers. This arrangement eliminates many of the camera and microphone issues associated with group presentations but does not eliminate the need to test, practice, and fine-tune the presentation. Test, Test, Test (and Practice) Once you decide on your technology and select participants, you should practice operating in the virtual environment. Practice can be as simple as scheduling meetings on a virtual platform, meetings you must have anyway to prepare for the hearing. Rather than meet in a conference room, meet under the conditions you plan to implement for the hearing, whether that be from home, together in a conference room with a big screen, or in separate offices. You should do this with clients and witnesses to ensure they have the necessary connections and equipment to participate and knowledge of how to use it effectively. Assuming someone has basic computer skills is fine, until you realize your client or witness is one of those odd ducks who prints all his emails and hand writes a response for someone else to type into an email. These people do exist! A few practice sessions will quickly expose deficiencies in skills and technology. Besides practicing with your own team, ask your arbitrator (if he or she does not initiate a practice meeting) to schedule at least one practice session with all the attorneys to ensure they are familiar with the virtual forum and the arbitrator’s hearing preferences. Practicing with the arbitrator will afford the lawyers the best opportunity to discuss technical issues, like connecting witnesses and presentation of exhibits during the hearing. Handling Exhibits Exhibits can be more cumbersome in a cyber forum. But remember, the prehearing process of selection and preparation of exhibits is the same as for an in-person hearing. The issue in the cyber forum is how best to present exhibits. Two methods come readily to mind,

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PRESERVE THE JURY TRIAL

and the nature of the case and number of participants and exhibits may dictate your choice. First, using paper exhibits may be the best and easiest option. If the participants and number of exhibits are few, consider distributing a notebook before the hearing with your exhibits. You can use exhibits in digital form, provided you have discussed the issue in advance with the arbitrator and other attorneys. Use of digital exhibits requires accessing the documents on a computer while also viewing the hearing on a computer. Having two computers, one for viewing documents and one for viewing the hearing, is an option if you have this capacity. Inevitably, disruptions and delays will abound unless all participants have the same two-computer setup. Paper exhibits are easier to access while using the computer to view the hearing itself. Use of paper exhibits, however, requires a coordination of effort to ensure everyone, including every witness, has the exhibits in hand before the hearing. Second, the parties can agree to display exhibits in real time during the cyber hearing by using the screen sharing feature. By agreement, the parties can designate someone (usually the arbitrator) to control the exhibits and display them when asked to do so. Alternatively, the parties themselves can use the screen share feature to control the display of exhibits during witness examination. Whichever screen share option you choose, understand how the feature works and practice with it, a lot. And remember to turn off screen sharing when you complete your witness examination. You do not want to be the lawyer who displays some unintended screen content. Handling Witnesses Everything you need to do to ensure your own successful participation in a cyber arbitration applies to your witnesses. They need to have access to a good computer with adequate bandwidth, an absence of distractions, and the correct link and information to enter the forum. Your witness needs to know how exhibits will be handled. If hard copy exhibits will be used, the witness needs to have them in hand well in advance. Unless the parties agree otherwise, each witness should have access to all the exhibits to ensure no disruption 36

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of the proceedings if a witness is unable to refer to an exhibit during examination. If a witness wants to manipulate an exhibit during the hearing, such as a PowerPoint presentation or photographs, you as the presenting attorney need to practice with the witness to ensure he or she knows how to accomplish the presentation flawlessly. Until you know for sure, do not assume your witness is adept at connecting to the cyber forum and participating appropriately. Like every other aspect of cyber arbitration, testing and practicing with your witnesses is essential to success. The Record Most arbitration hearings are not recorded, either formally by a court reporter or informally by the parties. Cyber arbitrations are easy to record. Zoom, for example, has a record button. Only the host can control the record function, unless surrendered to another participant. The parties must agree to make an “official” record of an arbitration, something other than the arbitrator’s notes and recollection of the testimony and evidence. A recording of the cyber hearing might be an easy way to create a record but not the most effective if a record is important for a later review. Zoom does offer a sort of transcript of meetings. This function is enabled by an automated technology like voice recognition. As such, it is not a reliable record for a legal proceeding if a written record is needed. If the parties want a written record, the best choice is always to use a court reporter. As a part of your pre-hearing practice, make sure the parties and arbitrator have a clear agreement about recording the hearing and if the chat feature will be utilized during the hearing. The meeting host can select who can chat with whom, but the chats are ultimately not private. Best practice would be to avoid using this feature during the hearing. You can communicate with cocounsel, witnesses, and clients by email and text messaging outside the host application. One caution about using other means to communicate with clients and witnesses— the possibility of coaching cannot be overlooked. Parties can stipulate there will be no coaching while testimony is in progress. The witness can be asked at the end of the testimony if any coaching occurred.

Advocacy in the Cyber Forum Your advocacy in a cyber forum is not constrained by the technology, provided you understand its limitations. The chief, and most distracting, limitation in the cyber forum is the delay between your speaking and the other parties hearing you. The delay may be slight, but it is accentuated when participants talk simultaneously or interrupt each other. If the arbitrator does not offer a protocol for speaking, like when and how to make an objection, then you should ask to discuss the issue in advance to ensure everyone follows the same rules. For example, if someone has an objection, that person might raise his or her hand (or use one of the hand icons built into the Zoom platform), say “objection,” and pause before stating the basis for it. This allows the arbitrator to refocus everyone’s attention to the objection and avoid others talking simultaneously. Some voice overlap is inevitable, but too much of it will make the testimony and statements of counsel more difficult to hear and understand. We have all experienced the frustration that occurs when too many people speak simultaneously during a trial. The negative effect is amplified greatly when it occurs on a video conference. If your goal is to be understood and to communicate clearly with the arbitrator, the best strategy is to wait your turn to speak and signal your objections before making them. Conclusion As in any serious endeavor, the key to success for a virtual arbitration is preparation and forethought. Developing your case strategy should include incorporating the technology demands of the cyber forum and the additional preparation needed to have your case, your exhibits, and your witnesses ready for the hearing. The probability of your successful participation in the cyber forum is directly proportional to how far ahead you think and plan and practice. After that, your advocacy skills can take over. ■

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Access to Justice Honors Six for Their Efforts to Improve the Justice System

The Arkansas Supreme Court declared October Access to Justice Month to “draw attention to the justice gap in Arkansas, recognize the valuable contributions made by legal aid and pro bono attorneys throughout the year, and to encourage pro bono participation to address the legal needs of low-income Arkansans.”1 As part of the observances, the Arkansas Access to Justice Foundation held a virtual gala on October 6, 2020, to honor six individuals and organizations who have made outstanding contributions to improving the justice system. Below you can read about how each honoree has worked to make justice for all a reality. You can also watch the entire event, which includes remarks from Justice Robin Wynne and a performance by Bonnie Montgomery at arkansasjustice.org/ATJmonth. Tabitha Lee Tabitha was presented with the Outstanding Pro Bono Service Award in the small/solo firm category for the countless hours she has spent preparing petitions to seal criminal records and organizing expungement clinics. Through her work, she has helped lowincome Arkansans with a record get a fresh start in life by improving their housing and employment prospects. This work ultimately benefits all Arkansans by lowering recidivism and allowing those re-entering society to become productive members of the community. Sol Kim Sol was recognized with the Outstanding Pro Bono Service Award in the medium-sized firm category for his years of consistent pro bono service. He has shown up to help at clinics and provided pro bono and low bono services to clients. Sol’s service is particularly important because he provides assistance to immigrants. This group of clients is often ineligible for traditional legal aid services, making private-attorney-led pro bono particularly necessary in this field.

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Brian Rosenthal Brian was recognized with the Outstanding Pro Bono Service Award in the largesized firm category for his efforts to elevate the cause of pro bono during his tenure as President of the Arkansas Bar Association. Under his leadership, the Arkansas Bar Association developed a proposal to permit retired and voluntary inactive attorneys to provide pro bono service. That proposal was ultimately adopted by the Arkansas Supreme Court and helps to address a shortage of pro bono attorneys in Arkansas. During his tenure, the Bar also developed a proposal to encourage pro bono service in the wake of natural disasters. Judge Thomas Fowler Judge Fowler received the Judicial Leadership Award for his work to make the courtroom more accessible for those unable to afford a lawyer. During his time on the bench, he has created a presentation that explains court procedures for the public and implemented an amnesty court program. He also created a “sign up docket” that allows those who are behind on court obligations, such as fine payments or public service, to appear in his court to discuss their situation without fear of a warrant being served.

Our House Our House received the Nonprofit Partner Award. Our House has worked in many areas to combat homelessness. Of particular note, though, is their re-entry work. Our House helps clients with a criminal record to overcome the challenges of finding jobs and housing. They have worked both independently and in partnership with the Center for Arkansas Legal Services to offer record sealing clinics to their clients and others in the community. Southern Bancorp Southern Bancorp received the IOLTA Preferred Bank Award. Southern Bancorp is one of the longest-standing members of the IOLTA Preferred Banks Program. However, their commitment to equal access to justice goes far beyond this. For years, they have sponsored tax preparation clinics for lowincome residents of the Arkansas Delta. To help families build intergenerational wealth, they worked with volunteer lawyers from the Friday Firm and other organizations to offer estate planning services at these clinics. Southern Bancorp also works to actively address economic racism through investments in the Arkansas and Mississippi Delta Region. Endnote: 1. In re Arkansas Access to Justice Month, 2020 Ark. 294, 1 (2020).

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TSCHIEMER

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

Robert S. Tschiemer

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Vol. 56 No. 1/Winter 2021 The Arkansas Lawyer

THANK YOU

2020 ArkBar Volunteer CLE Speakers & Planners Vanessa Cash Adams William Cain Avant Joyce Bradley Babin Amber Wilson Bagley Darryl E. Baker Judge Kristine G. Baker Lisa Cox Ballard Sherman Banks Jordan Bates-Rogers Daniel Joseph Beck Lawrence E. Bengal Maggie Benson Matthew Benson Melinda Bentley David Biscoe Bingham Katie Watson Bingham William B. Birch Matthew C. Boch Misty W. Borkowski Dylan James Botteicher Professor Howard W. Brill Roby Brock Nicholas Jacob Bronni Judge Timothy L. Brooks Ashlea Brown John Brummett Christopher Wesley Burks Caitlin Alana Campbell Jason J. Campbell Dr. Joseph D. Candido George F. Carder, III Brad A. Cazort Professor Carl J. Circo Judge David Mayo Clark Steve Clark Representative Nicole Clowney Stephen Coger Representative Andrew J. Collins Judge Cathleen V. Compton Nate Coulter Junius Bracy “JB” Cross, Jr. Gregory L. Crow Christine A. Cryer Charles C. Cunningham C. Michael Daily Thomas A. Daily Representative Carol C. Dalby J. David Daniel Jeannie Denniston Amanda W. Denton

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Deborah S. Denton Nikolai DiPippa Jennifer Donaldson Melissa McJunkins Duke Katelyn Marie Eaves Daniel Knox Faulkner Daniel Garrison David Gearhart Erika Gee Judge R. Bynum Gibson, Jr. Clay Glasgow Carol Goforth April R. Golden Professor Sara Gosman Rick Green Adrienne Morris Griffis Joshua Hallenbeck Charles J. Harder Betty J. Hardy Megan Dooley Hargraves Jewel H. Harper Judge Brandon J. Harrison David M. Harrison Raymon B. Harvey Gina Hendryx Mark Henry Robert (Skip) L. Henry, III Daniel Lee Herrington Judge Robert L. Herzfeld, Jr. Basil V. Hicks Jr. Scott Samuel Hilburn Henry "Hank" Hildebrand Denise Reid Hoggard Lori L. Holzwarth Robert M. Honea Lauren White Hoover Charles R. Hoskyn Lori D Howard Kasper F. Huber Justice Courtney Hudson Amanda A. Hull Mary Claire Hyatt Sarah Coppola Jewell Judge Amy Dunn Johnson Darnisa E. Johnson Judge Carlton D. Jones Michael Kiel Kaiser Dak Kees Chief Justice John Dan Kemp William L. Kerst, Jr.

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Tom Kirkham Cynthia Worthing Kolb Joseph F. Kolb Jeffrey S. Krause Traci H. LaCerra Robert J. Lambert, Jr. Giuseppe Leone Stark Ligon Julie Chapman Linck David A. Littleton Jennifer L. Loiacano Nate Looney Eva Camille Madison Angela Michelle Mann Eric Andrew Marks David Mathews Dean Margaret McCabe Dana Karen McClain Steven Michael McClelland Benjamin R. McCorkle Sarah Murphy McDaniel Kathleen M. McDonald Representative Gayla Hendren McKenzie Jerald Cliff McKinney, II Gene McKissic Kaye McLeod Alex George Miller Matthew Miller Stan D. Miller Cristina S. Monterrey Beatrice Moore Brooke Moore Collier Moore Jeffrey H. Moore Keith Morrison Michael A. Mosley Dean Cynthia Nance David G. Nixon Gregory J. Northen Bradford Nye Laura O'Bryan Kevin O'Dwyer Chad R. Oldham Kelly Browe Olson Paul Osborn Erin Page Nelson Peacock James (Jim) Robert Pender Constance Brown Phillips

Kathrine Boone Pipkin Judge Steven R. Porch Jerrad Powell Dequeshia Prude-Wheeler Jeffrey W. Puryear Rodolfo Quilantan-Arenas Robert Reynolds Dr. Casey Carder Rockwell Brian Rosenthal Attorney General Leslie C. Rutledge Courtney Salas-Ford Rodrigo Morales Salazar R. Doug Schrantz Judge Candice A. Settle Representative Matthew Shepherd John Thomas Shepherd Shaneen K. Sloan O. C. "Rusty" Sparks Brooke F. Steen Ashley Stepps Jocelyn A. Stotts Edward C. Swaim Mary-Tipton Thalheimer Andrew Thornton Judge Cindy Thyer Geoffrey B. Treece Scott C. Trotter Cathy Underwood Scott Varady John Vines Kim Vu-Dinh Elisabeth A. Walker K. Lloyd Warford Brett D. Watson John Dewey Watson Stewart Whaley Representative David Whitaker Elisa M. White Thomas G. Williams Jordan P. Wimpy Teresa Wineland Megan Elizabeth Wooster Judge Robert H. Wyatt Alan J. York Dan C. Young Danna J. Young Harold Wayne Young Mary Zunick J. David Zurborg

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* The National Distinguished Neutrals is an invitation-only professional association of over 1000 litigator-rated mediators & arbitrators 42 TheAcademy ArkansasofLawyer www.arkbar.com throughout the US and a proud sponsor of the AAJ and DRI. For more info, please visit www.NADN.org/about

Attorney Disciplinary Actions Final actions from October 1 – December 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.] DISBARRED/SURRENDER: Moritz, William Kurt of Hope, Bar No. 99021, was disbarred by the Arkansas Supreme Court by order dated December 17, 2020, in Supreme Court Case No. D-20-477. Moritz was the subject of two Committee disciplinary cases involving Shawn Marie Stevens, CPC No. 2018-016, and Stephen Lee Swender, CPC No. 2018-020. Stevens, a resident of Indiana, was charged with state criminal offenses in Indiana in 2013. While visiting her hometown of Hope, Arkansas, she met with Moritz and discussed the pending matter. Moritz, who is not and has never been licensed to practice law in Indiana, stated he could represent her in the Indiana matter. Moritz received $3,500 for the representation. In 2015, Stevens received a letter from the Indiana court about her case. She called Moritz and he stated that this was a court error and he would take care of it. During a routine background check by her employer, it was discovered that there was an active warrant for her arrest for failure to appear on the 2013 criminal charge. Stevens filed suit against Moritz in Hempstead County Circuit Court. Moritz filed a response to the lawsuit, but failed to respond to requests for interrogatories. Stevens filed a motion for partial summary judgment for Moritz’s failure to file a response. The motion was granted, finding that Moritz had received $3,500 for representation in a criminal case in Indiana where he was not licensed to practice law, had not practiced law in Indiana, and did not represent Stevens in a generally-accepted standard of practice of an attorney. Swender, a resident of Michigan, owned a home in Arkansas. Swender contacted Moritz in January 2018 about representing him in a landlord-tenant matter. Moritz agreed to represent Swender for $750. Following

payment of the fee, Swender experienced difficulty contacting Moritz. Swender then searched the internet and learned that Moritz’s license to practice law had been suspended effective June 12, 2017, and had not been reinstated. The Committee on Professional Conduct voted that disbarment proceedings be initiated against Moritz. Criminal charges of theft by deception were also filed in 2018 against Moritz in five other and separate criminal cases. On September 27, 2019, Moritz entered five guilty pleas to misdemeanor theft of property and was placed on probation for six months, fined, and ordered to pay costs. A Petition for Disbarment was filed on July 31, 2020, and Moritz was served on October 23, 2020. Moritz failed to file a timely response to the Petition for Disbarment. On December 17, 2020, the Arkansas Supreme Court granted Petitioner’s motion for order of default judgment of disbarment. SUSPENSION: May, John Marshall of Harrisburg, Bar No. 2000039, in CPC 2019-018, by Findings and Order filed December 1, 2020, was Suspended for a period of five years (60 months) for violations of Rule 8.4(b) and ordered to pay $300 costs. May entered a guilty plea to one felony count of Possession of Drug Paraphernalia in Poinsett County Circuit Court Case No. CR-2017-417, and he was sentenced under the Arkansas First Offender Act and received three years’ probation with conditions. The effective date of Marshall’s suspension is August 20, 2019, when Marshall was placed on Interim Suspension. CAUTION: Marshall, James Andrew of Conway, Bar No. 2014023, in CPC 2019-040, by Findings and Order filed October 8, 2020, was Cautioned for violations of Rules 3.4(c) and 8.4(d), ordered to pay $2,500 restitution to Anitha Carter, and ordered to pay $500 costs. Marshall’s license was automatically suspended in April 2019 when he failed to pay his license fee, and his license remained suspended while he represented Carter. Marshall was served with the Complaint and did not file a response. Marshall later filed a Motion to File Belated Response, which was accepted by the Panel as a timely response. 

Ask the Tech Expert

HAVE YOU HEARD ABOUT TECHIE TUESDAY CONSULTATIONS? Book your free consultation with a legal tech expert. as part of your ArkBar member benefit Practice Link. Select a time to be booked with a consultant who will answer any question about the management and technology at your firm. This is your chance to meet with a legal tech expert one-on-one for 20 minutes to answer your questions and offer advice, follow-up on an email tip, or suggest ways to improve your practice. Appointments are available the 3rd Tuesday of each Month throughout 2021. Practice Link can be your go-to resource for all of your law office management and technology needs —and it is all included in your ArkBar membership. No extra fees, no separate login. Just the resources you need to make good decisions and run a successful law firm.

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Vol. 56 No. 1/Winter 2021 The Arkansas Lawyer

INSURANCE MARKETPLACE

From health to term life, and everything in between. The ArkBar Insurance Marketplace is a multi-carrier private insurance exchange for members of the Arkansas Bar Association—as well as their staff and eligible dependents. Compare plans, get quotes, speak with licensed benefits counselors, enroll online, and receive year-round support. Coverage is available for both individuals and employer groups.

memberbenefits.com/arkbar 800-282-8626 Products sold and serviced by Business Planning Concepts, Inc dba Member Benefits, the program administrator. The Arkansas Bar Association is not a licensed insurance entity and does not sell insurance.

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in memoriam William R. Bullock of Dardanelle died December 16, 2020, at the age of 86. He graduated from Russellville High School in 1951, and received a B.S. in Business Administration from the University of Arkansas in 1959. He graduated with a Juris Doctorate from the University of Arkansas Law School at Fayetteville in 1962. He served as Yell County Municipal Judge, Prosecuting Attorney for the 15th Judicial District and Circuit/Chancery/Juvenile Circuit Judge for the 15th Judicial District. The photograph in the printed issue was inocrrect. Danya Elise Cravens of Magazine died December 27, 2020, at the age of 42. She was an attorney with the state of Arkansas. She loved chuck wagon racing and spending time with family and friends. Jim Cypert of Fayetteville died November 12, 2020, at the age of 86. He married Gaye Warren, his high school sweetheart, in 1956. He graduated in 1956 from the University of Arkansas with a bachelor's degree in business and received his law degree in 1959. In 1959, Jim joined Crouch, Jones, and Blair Law Firm in Downtown Springdale, later becoming senior partner and practicing for 56 years before retiring in 2015. Jim was very active throughout his life in his profession, community, and church. His fervent commitment to law began early as he was President of the Arkansas Young Lawyers in 1962. Beginning in 1976, Jim was active in the Arkansas Bar Association. He served the Bar as a member of the House of Delegates (1976-1979), Chairman (1978), Director (1980), and, eventually, President of the Bar (1981). He was honored with several awards

on behalf of the Bar including the Arkansas Bar Foundation Special Award (1980) as well as the Lawyer-Citizen Award (1986). Additionally, he was chosen as a member of the Arkansas Supreme Court Committee on Specialization. Throughout his life, Jim was honored for his service to the law and his community. He was appointed as a delegate for the 1964 Democratic Convention. Paul L. Davidson of Bentonville died November 22, 2020, at the age of 73. Following his graduation from high school, Paul served in the United States Marine Corps. Following his military service, Paul earned both his undergraduate and law degrees from the University of Arkansas, Fayetteville. Paul practiced law in Bentonville for over 40 years. Allen Paul Roberts of Camden died January 15, 2021, at the age of 81. He attended college at the University of Arkansas. In 1964, Allen finished law school at the University of Arkansas and began his law practice in Fort Smith. In 1966, he moved to Camden, where he resided and continued to practice law until his death. Allen was passionately devoted to the law and to bettering American legal institutions. He was a strong believer in the genius of the law as a mechanism for articulating and defending the rights of all Americans. He was an early supporter and defender of the Civil Rights Movement in the South. Allen served in the U.S. Marine Corps. Don Martin Schnipper of Hot Springs died January 4, 2021, at the age of 81. After high school, he attended Tulane University and the University of Arkansas. At the university, he met and married the love of his life, Mary Ann Evans. Don attended the University

of Arkansas School of Law. Upon his graduation from law school, they relocated in 1964 to Hot Springs to begin and establish his legal career and practice. Schnipper, or Schnip to his legions of friends, was the consummate lawyer's lawyer. He found his life's calling when he joined Jim Chesnutt and Ray Smith in 1964 at the then-Wood, Chesnutt and Smith Law Firm. Smith, Schnipper, and ultimately Philip M. Clay grew their practice at their decades-long offices located at 123 Market Street in Hot Springs. Don proudly maintained an AV rating as an attorney throughout his long legal career. While his law practice thrived, he also maintained a keen interest in community and statewide activities. He was a former president of the Arkansas Bar Association, a founding member of the Five States Past Presidents' Bar Group, past president of the Greater Hot Springs Chamber of Commerce, past president of the Hot Springs Country Club, past president of the Arkansas Alumni Association, a founder of the original Magic Springs, numerous boards at the First United Methodist Church, and a member of virtually every other civic or community organization in the area. KW (Kelley) Webb of Jonesboro died December 19, 2020, at the age of 85. He attended college at Arkansas State University receiving his Bachelor of Science Degree in Agriculture and Masters Degree in Education. Webb then attended the University of Arkansas School of Law. After graduation he returned to northeast Arkansas where he practiced law in Trumann and Jonesboro for over 45 years before retiring. Webb served in the Arkansas House of Representatives from 1979 to 1984. In 2009, Webb received the Outstanding Volunteer Award for his pro bono work and in the same year was appointed Special Associate Justice of the Arkansas Supreme Court. The information contained herein was provided by the members' obituaries.

Vol. 56 No. 1/Winter 2021 The Arkansas Lawyer

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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 November 1, 2020, through January 31, 2021. In Memory of Judge Harry Barnes Jane and Justice Jack W. Holt, Jr. In Memory of Judge William R. Bullock Peel Law Firm, P.A. Judge Bill Wilson and Judge Cathi Compton In Memory of Professor Bob Covington Judge Bill Wilson and Judge Cathi Compton In Memory of Jim Cypert Cyril Hollingsworth Judy and Glenn Vasser Tom Womack In Memory of Vincent W. Foster, Jr. Judge Dick and Beverly Moore In Memory of Gary Garland Tom Womack In Memory of Judge Melinda Gilbert Judge Dick and Beverly Moore In Memory of John Frank Gibson, Jr. Cliff Gibson Paul W. Keith Judy and Glenn Vasser In Memory of Judge David M. “Mac” Glover Jane and Justice Jack W. Holt, Jr. Judge D. Price Marshall, Jr. In Memory of John G. Lile III Patti and Charles Coleman Jane and Justice Jack W. Holt, Jr. In Memory of Judge Andre E. McNeil Mike Wilson In Memory of Bobby Odom Judge Robert Dawson Judy and Glenn Vasser In Memory of Charles Owen Jane and Justice Jack W. Holt, Jr. In Memory of Justice Andree Layton Roaf Jane and Justice Jack W. Holt, Jr. 46

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In Memory of Allen P. Roberts Cyril Hollingsworth Philip E. Kaplan Mike Wilson

HONORARIA, SCHOLARSHIP CONTRIBUTIONS, AND OTHER GIFTS In Honor of Judge David and Niki Bogard Hayden and Gordon S. Rather, Jr.

In Memory of Don Schnipper Patti and Charles Coleman Judge Robert Dawson Nancy and Judge John Fogleman Martin G. Gilbert Cyril Holllingsworth Ruthe and Philip Kaplan Janet K. Moore Hayden and Gordon S. Rather, Jr. Charles D. Roscopf Susie and Brian Rosenthal Jan and Jim Sprott Sharon and Fred Ursery Judge Bill Wilson and Judge Cathi Compton Tom Womack Mike Wilson

Friday, Eldredge & Clark/ Herschel H. Friday Scholarship Fund Friday, Eldredge & Clark

In Memory of Jim Walter Judge Bill Wilson and Judge Cathi Compton

James H. Larrison, Jr. Scholarship Fund Diane Allen and Rene Bressinck

In Memory of K. W. “Kelly” Webb Michael R. Gott Judy and Glenn Vasser

McKinley Family Scholarship Fund Jeffrey and Lester McKinley

In Honor of Judge Joyce Warren Hayden and Gordon S. Rather, Jr. Arkansas Bar Foundation #GivingTuesday2020 Judge Cindy G. Thyer E. Charles Eichenbaum Scholarship Fund Peggy and L.R. Jalenak

In Memory of Roxanne Tomhave Wilson Judge Dick and Beverly Moore

Justice George Rose Smith Scholarship Fund Dr. Laurie Smith Fisher

In Memory of William H.L. Woodyard Judge Dick and Beverly Moore

David Solomon Scholarship Fund Helena Marine Services

As we embark upon this new year together, I invite you to visit the Foundation's website at www. arkanasbarfoundation.com for a mid-year bar update of our 2020 activities since July 1. Due to the pandemic, you will note several in-person events were cancelled. JUDGE CINDY G. THYER PRESIDENT

CONGRATULATIONS!

The Arkansas Bar Foundation congratulates all Arkansas law school student recipients of the Foundation administered endowed scholarships for the 2020-21 year. We are grateful to all who made these scholarships possible with your contributions to these endowments. Please see the opposite page for this year’s scholarship listing.

ARKANSAS BAR FOUNDATION SCHOLARSHIPS 2020-2021 Name of Endowed Scholarship

Law Student Scholarship Recipients UA Little Rock Bowen School of Law

ABF Misc. Scholarship ( in honor of Sebastian County Bar, Mike Gorman, U.M. Rose, Edward Wright) Donald J. Adams Guy Amsler, Jr. Arkansas Association of Women Lawyers* Barrett/Deacon Bogle-Sharp Ruth Huskey & John H. Brunson John A. “Jack” Davis III E. Charles Eichenbaum R. A. Eilbott, Jr. Justice John A. Fogleman Vincent W. Foster, Jr. Friday, Eldredge & Clark/ Herschel H. Friday Judge J. Smith Henley Justice J. Frank Holt W. Jane Knight James H. Larrison, Jr. Ernest G. Lawrence, Jr.* Edward Lester Brian MacMillan Austin McCaskill Horace and James McKenzie McKinley Family Col. William A. “Bill” Martin Judge John E. Miller Judge William R. Overton Col. C. E. Ransick Rather, Beyer & Harper Justice Andree Layton Roaf Ramona J. Roe Charles B. Roscopf Rose Law Firm U. M. Rose Sebastian County Bar Association Shackleford/Phillips Justice George Rose Smith Smith Stroud McClerkin Dunn & Nutter Stella Boyle Smith David Solomon M. Jeff Starling, Jr.* Judge Thomas Clark Trimble C. R. Warner Harry P. Warner Bernard & Bud Whetstone Roxanne Tomhave Wilson Wilson & Associates Ethics

Monica L. Iracheta Rodriguez

University of Arkansas School of Law

Courtney Ross Ciera Runner

Hannah Rivera James Gift Luke Vance UA at LR Law Review Editorial Board

Brandon Brown Julian Sharp Alex Mickel

David Cole Monica Woolems Monica Spier Hannah Rivera Shaina Andrews Bailey Gambill Jailene Hernandez Samantha Gum Drew Roberson Erica Linville

Adam Mote Badria Mryyan Courtney Baltz

Jesus Torres-Rojas Madison Miller Amanda Apple

Lenard Fryar

Christina Redmann Olivia Rottman

Alexis Acello Hannah Hines Julian Sharp Sharri Bell Nicholas Chafin Byron Keaton

Eliza Rogers Martha Kay “Gus” Mettler James Dillon Pitts Christina Chen Tara Crippen Donta Dismuke Jordan Sharp Tristan Cross Gabrielle Davis Jaci Roberts Julie Hill Mariajose Reyes Michael Graff Jailene Hernandez Clayton Orr Michael Stiritz Monica Spier

Jonathan Valley Courtney Baltz Badria Mryyan Dana McGee Clinton Summer

Wright, Lindsey & Jennings LLP Paul B. Young Judge Henry Woods

Samantha Preblich

Justin Gunderman Dana McGee Alexis Acello Taylor Wilbourn Justin Gunderman

Arkansas Bar Foundation Professor of Law

Professor Lindsey P. Gustafson

Professor Will Foster

* Scholarships not awarded at this time Vol. 56 No. 1/Winter 2021 The Arkansas Lawyer

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123 AN N UAL ARKANSAS BAR ASSOCIATION

1. REBOOT 2. RECHARGE 3. RECLAIM

MEETING REIMAGINING OUR PRACTICES FOR THE BEST TOMORROW

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KEYNOTE SPEAKERS HILARIE BASS

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STACY LEEDS

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