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~=1996 We'>! Pl"bj,.r.'"9 6-9464-5/2-96 616287

1·211-100-1

VOLUME 31, NUMBER 1PUBLISHER

Arkansas Bar AssociationARKANSAS BAR ASSOCIATION-100 II. \larkham Littl. Rock, Arkansas 72201

Guest Columnist

The Continuing Case for Merit SelectionofJudges in Arkansas

By Lawrence H. Averill. Jr., .Professor of Law, University of Arkansas at Little Rock

EDITORStacey DeWill

ASSOCIATE EDITOR,LAYOUT & DESIG

Sara Landis

EDITORIAL BOARDThomas M. Carpenter

Susan GoldnerSarah James

Al Schay

OFFICERSPresident

Carolyn WitherspoonPresident·Elect

Harry Truman MoorePresident-Elect Designee

Jack A. McNultyImmediate Past President

Robert L. Jones IIISecretary -Treasurer

Frank B. SewallExecutive Council Chair

Sandra CherryYoung Lawyers' Section Chair

Stuart MillerExecutive DirectorWilliam A. Martin

Assistant Executive DirectorJudith Gray

EXECUTIVE COUNCILTeresa M. Wineland

A. Glenn VasserR. Scott Morgan

Don HollingsworthCharles L. Carpenter, Jr.

Stanley D. RaulsCharles L. Ham'ell

Robert R. EstesLouis B. Jones, Jr.Donald P. Raney

Mike EverettMichael E. IrwinDavid K. Harp

Mark CambianoLynn Williams

The Arkansas Lawyer (USPS.546-Q.W) is published quarterly by the Arkansas Bar Association. Second class postagepaid at Uttle Rock, Arkansas. POSTMASTER: sendaddress changes 10 The Arkansas Lawyer, 400 WestMarkham, Little Rock, Arkansas 72201. Subscription priceto non·mcmbers of the Arkansas Bar Association $t5.oo peryear and to members 510.00 per year included in annualdues. Any opinion expressed herein is that of the author,and not necessarily that of the Arkansas Bar Association orThe Arkansas Lawyer. Contributions to n,e ArkansasLawyer are welcome and should be sent in two copies toEDiTOR, n,e Arkansas Lawyer, 400 West Markham, LittleRock, Arkansas 72201. All inquiries regarding advertisingshould be sent to n,e Arkansas Lawyer at the aboveaddress. Copyright 1996, Arkansas Bar Association. Allrights reserved.

The awhor's opinion in Ihis article is his/herown and in flO way reflecls Ihe posilion of theArkLmsas Bar Associaliofl.

Judicial selection refonn is still a topical issue in Arkansas. Several mattersconcerning judicial elections were acted

on during the last legislative session. IMore comprehensive reforms continue10 be discussed and advocated. In reference to the comprehensive refonn proposals, I want to express my skepticismabout one of the prominent suggestionsfor reform, i.e., nonpartisan election forall judges. While I will concede thatreform sometimes needs to be evolutionary not revolutionary, and that changingour judicial selection system from partisan elections to nonpartisan electionsmight be viewed as that type of incremental progress, I firmly believe thatthis change is an example of treatingsome of the incidental symptoms andignoring the real causes of the problem.In my opinion this "remedy" neitheraddresses the problem nor improves theresult.

I have written about this previously2and thus am reminded of the story of thenew preacher at the church. During thefirst Sunday sennon the preacherharangued against sinful and evil conduct he had observed in parishioners'conduct the previous week. The parishioners were pleased. The second weekthe preacher gave the exact same sermon. The parishioners were surprisedbut patient, it was a good sennon. Whenthe preacher gave the same sermon thenext two weeks, several of the eldersdecided to discuss the matter with thepreacher. They expressed the thoughtthat sermons ordinarily should be different each week. The preacher retorted,"When I see that the conduct of themembers of this congregation is reflecting the admonitions of my sermons, I'llchange my sermon." I urge all to read

my previous sermon.3

The point here is, until suggestedreform addresses the "sins and evils" ofour current system, these reforms are at

best diversions and at worst are dishonest. It is clear to me that modificationswhich do not address the real problemsshould not divert the real reform effortneeded. I fear merely changing to nonpartisan elections is such a diversion.

I have studied this problem of judicialselection from all angles. During myseventeen years in Wyoming, I was ableto see how judicial selection by nonpartisan election compared to a merit selec

tion system.4 It is my firm conclusionmerit selection is by far the better system. It is worth emphasizing that whenWyoming went to merit selection, it wasabandoning nonpartisan elections as itsjudicial selection process.

There are sincere, honest and intelligent persons who believe that switchingto nonpartisan elections is meritorious. Irespectfully disagree. As I stated recently:

From an analytical standpoint of desirable features for a judicial selection system, a nonpartisan election system maybe the worst of all selection methods.First, it does nothing to remove the corruptive aspects of a contested electionsyslem. Judges must still obtain campaign funds, must still spend inordinatetime campaigning, and campaigns canstill create judicial ethics problems overcampaign issues. In addition, it has beensaid that nonpartisan elections are often

Continued on Page 39

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Features1

PAGE

THE CONTINUING CASE FOR MERIT SELECTION OF

JUDGES IN ARKA 'SASby Lawrence H. Averill, Jr., Guest ColumnistAnother side to last issue's article by Justice Robert L. Brown

On the Cover: The artwork on the cover wascreated by David D. Wilson, a partner in the LittteRock law firm of Friday, Eldredge & Clark. Wilsonis a 1990 graduate of the University of Arkansasat Little Rock School of Law.

How TO WRITE A LOSING BRIEF

by Coleen M. BargerA unique offering of rules to make the judges' decision in your nextappeal easier... write the losing brief.

10

How ONE OUGHT TO WRITE 14

by Judge William R. Wilson, Jr.An excerpt from the 1993 publication The Scribes Journal oj Legal Writing

NOTICE OF ApPEAL: TIMING IS EVERYTHING 13by John J. WalkinsWhy it is imperative to File a timely appeal.

THE CLIENT SECURITY FUND

FULFILLING OUR OBLIGATION TO THE PUBLIC 20by Justice Andree RoafA review of the efforts Arkansas lawyers have made to protectclients from losses caused by the dishonest conduct of members of the

State Bar of Arkansas.

24THE GAMING AMENDMENTPro by Janne Giroir Siegel and Can by Larry L. PageA Pro/Con piece on the gaming amcndmcnl

In Every IssuePRESIDENT'S REPORT, by Carolyn WitherspoonEXECUTIVE DIRECTOR'S REpORT, by William A. MartinLAW OFFICE TECH OLOGfES, by David G. NixonCLE DIRECTOR'S REPORT, by Charlotte Morrison GreerApPELLATE PROCEDURE, by D. P. Marshall, Jr.LAW, LITERATURE AND LAUGHTER, by Vic FlemingDISCIPLINARY ACTIONS/ADVISORY OPINIONS

IN MEMORIAM

4678

41

424348

President's Report

Equal Justice Under the Lawby Carolyn Witherspoon

1996."

appropriations are

Our country's democracy was founded on the simpleconcept of equal justice under the law. We Ihe people of IheUnited States, in Order w... establish justice....

This democracy and our justice system are a wonderfulpartnership but are mutually dependent upon each other.Judge Learned Hand said:

"If we are to keep our democracy, there must be onecommandment: Thou shall not ration justice,"

In my opinion, we are faced with that very situation rationing justice to the poor in Arkansas. That situation issimply unacceptable. We must keep our promise that libertyand justice for all is Iruty for all.

When Fay asked for money to buy milk for her baby,her husband started kicking her. Their clzildren watched ashe cOflfillued to beat he/: She was finally able 10 mil oul ofIhe house and into the woods. She walked 10 a friend'shOllse and called Ihe police. The neXI day she lVelll 10 LegalServices for help. She had nOlhing. Wilh Ihe help of herlegal services lawyer, she gOl a protective orde,; custody ofher childrell, safe !lousing, and she began divorce proceedings.

Mrs. Smith was Ol'er 70 years of age and disabled whenshe gave a deed to her home and a power of attorney to aman who promised to take care of her personal needs forIhe resl ofher life. Even thol/gh she was so feeble Ihal shewas bedridden and unable to feed herself, the man neglected her, sometimes leaving her little more thall a bucket ofwater for 1Iourishmellt. A Legal Services lawyer filed acourt action on her behalf to set aside the deed of her homeand dissoll'ed the power of attorney. The court action wassuccessful. The attorney also helped herfind a replltablepersall who could wke care of her needs and act as herguardian.

These stories are all too familiar 10 the staff and probono lawyers who represent Arkansas' low-income citizensthrough the local Legal Services Programs.

Unfortunately, Legal Services staff are finding itincreasingly difficult to sustain services for poor people inArkansas. While appropriations are not yet certain. LegalServices Program anticipate a 27% loss in federal funds in1996. This cut will cost the State $1.2 million in fundingfor legal services. This comes on the heels of a three percent loss in 1995.

The Legal Services Corporation (LSC) is the entity thatmakes direct grants to local Legal Services Programs ineach state. LSC funds are to be used by these programs 10

provide legal help in civil matters for those at or below thepoverty level. LSC is run in an extremely efficient mannerwith 97% of all funds appropriated by Congress goingdirectly lo local programs. Six local programs provide ser-

4 The Arkansas Lawyer Spring 1996

vice in Arkan as: Center forArkansas Legal Services, EastArkansas Legal Services, East TexasLegal Services, Legal Services of

ortheast Arkansas, Ozark LegalServices and Western Arkansas LegalServices.

Each Legal Services Programoperates at the direction of a localgoverning board. These communitybased boards set the priorities fortheir programs, determining, forexample, to focus on representing thevictims of domestic abuse, the legal ..._-_..._-"""-problems of the elderly, or other noncriminal legal problems. This local com- "WI 'lmunity involvement is a key to the suc- II ecess of these programs.

In 1995, the Legal ServicesPrograms in Arkansas handled 14,380cases which benefited over 32,636 low- not yet certain, Legalincome Arkansans. Over 90 percent ofthe funding for this work came from the Services Programsfederal appropriation given to the LSC.This year the federal funds for Arkansas anticipate a 27% lossprograms will IOtal approximately $3.1million. in federal funds in

Legal Services is a bargain. Lastyear the average cost per case inArkansas was 531 I. This representationis crucial 10 Mrs. Smith, Fay and manyother people who need a lawyer but cannot afford one.

II is too soon to predict the precise effect the fundingcuts will have on the client community. However. it is clearthat services will diminish. both in number of clients servedand the types of cases the programs will be able to handle.Collectively, Legal Services Programs in Arkansas have lost9.75 lawyers, 4 paralegals. I executive director, I administrator, I assistant pro bono coordinator. and 145 supportstaff. Four (4) branch offices have been closed. More layoffs are anticipated and some are already scheduled.

Legal Services' silent partner is the private bar. Twothousand private attorneys work with their local offices torepresent the poor people in their community. During 1995.the value of these donated services to the poor is estimatedto be $1,286,713. Some members of Congress argue thatprivate attorneys can fill the gap created by the reduction(and proposed elimination) of federal funds for LSCthrough donated services. That is not realistic, and it is notjustice for alL

CALS OLS LSNEA WALS EALS ETLS

MCKENZIE, GRAVES, MCRAE & VASSERAttorneys at Law

is pleased to announce that

M. CHAD TRAMMELL,licensed to practice law in Arkansas and Texas,

has associated with the Firm at its Hope Office.

FEDERAL FUNDS

to all Arkansans, regardless of income.Please educate your friends and clients on 1995 1996the concept that equal justice is not just afancy phrase that we all learned in school, CALS $2,008,444 51,488,324

but should be a reality for everyone in ourOLS 5587.504 $445,572State. Please respond positively when we

call on you to speak to local organizationsLSNEA 5505,186 5379,848

and corporations to urge their support forthe Legal Services program. WALS 5412,409 5312,780

EALS 5756,761 5488.544

ETLS 5189,052 5138,97

••I

• 1995

• 1996

I

122 East 2nd StreetP.O. Box 599

Prescott, AR 71857

1111

201 South Elm StreetP.O. Box 458

Hope, Arkansas 71801

$0

$500,000

$1,500,000

$1,000,000

$2,500,000

$2,000,000

Reductions in Federal Funding

In 1991, the American BarAssociation estimated that 80% of OUf

Nation's poor citizens did nol receiveneeded legal service. Congressionalattacks on funding for legal services areexpected to be more concerted and fiercein 1996. Thus. those numbers could go upwith each cut. If poor people are going tocontinue to have meaningful access to thecourts, alternate funding sources must bedeveloped within our State.

The Arkansas Bar Association and theArkansas (OLTA Foundation co-sponsored a meeting on February 16, 1996, toaddress the cutbacks in federal fundingfor civil legal services to the poor. Thepurpose of the meeting was to develop along-range plan for maintaining federalfunding, diversifying the funding for legalservices in Arkansas, and maximizingexisting resources such as pro bono.

Since the early 80's, when federalfunding to the Legal Services Corporationcame under fire, many states have begundeveloping new sources of income withinthe state so that all is not swept awaywith each turn of the political tide.Nationwide, the method having thebiggest payoff was the formation of acomprehensive IOLTA program. Arkansashas a comprehensive IOLTA program butthe revenue generated is not sufficient tomake up the loss created by the federalcuts.

The second largest revenue producingapproach is to seek state funding. Theparticipants at the February 16 meetingdecided that the possibility of a stateappropriation or some other mechanismof state funding should be tudied. I haveappointed a task force. headed up byMaurice Mitchell, to begin exploringfunding for Legal Services in Arkansas.

More than two hundred years ago, thefounders of our nation attempted in thepreamble to the Constitution to state theirrationale for forming our new nation. It isno accident that the first reason given wasto "establish justice." In the rush to cutthe federal bUdget, we run the risk of forgetting that justice is not simply anothergovernment entitlement - it is the historic mandate of a free society.

We must all work together as a tearnto educate ourselves, the general public,and our legislators on the importance ofan independent Legal Services organization in Arkansas. Let us join together insolving the problem of how to keep equaljustice and access to the courts available


Executive Director's Report

Reno and Ramo - Problem Solvershy William A. Morrill

derived from the will

of the people and we

must give all people

Lawyers must be problem solvers-that was the principle theme woven throughout their addresses when AttorneyGeneral Janet Reno and American Bar President RobertaCooper Ramo spoke to the mid year meeting of theAmerican Bar Association House of Delegates.

Our education, the skills we develop through our practice of law and our experience in analyzing facts. understanding complex situations and developing realisticapproaches make us better able to solve problems Lhan mostother people. We know how to understand the opposing person's concern and how to build bridges as well as be slrongadvocates for our clients. We owe it to our clients and to ourcommunities to be problem solvers and peace makers.

The Attorney General emphasized that resolving dispUles by means other than litigation is oflen faster. betterand less expensive. She quoted Abraham Lincoln's admonition to discourage litigmion because often thc apparel1l winner is the real loser. Whcn a disagreement is decidcdthrough litigation the undcrlying problem often remains.When a case is seuled by agreement or though the use ofone of various alternate dispute resolution mechanismsthere is a far greater likelihood the basic problem will besolved and the panies will avoid having the dispute eruptagain.

She told the House of Delegates that the JusticeDepartment is committed to solving problems in the mostappropriate and effective manner possible. While litigationmay be a useful tool. enforcement of Federal law and regulations through litigation is 10 be a last resort. An ExecutiveOrder on civil justice from Prcsident Bill Clinton directs allmeans of attempting to resolve disputes be used and encourages the settlement of claims as early as possible. AttorneyGeneral Reno noted that securing convictions does not treatthe underlying crime problem which must be a major concern of lawyers.

She also talked about the need for lawyers to addressthe problems of how to make the law more simple, straightforward and real to the people we serve. Lawyers also havea role in reaching out to young people to educate themabout the law and changing their attitudes so they respectthe benefits of living under the rule of law.

The Attorney General is working on the problem of previous lack of government lawyer involvement in the community by developing pro bono programs for JusticeDepartment lawyers and encouraging them to serve on barcommittees to improve the quality of justice. In turn sheurges bar associations 10 reach out to government lawyersand make sure they are includcd and heard in the work ofthe organized bar. Mceting the ul1mct legal needs of lowand middle income Americans is a problem both theAttorney General and President Ramo urged lawyers to COI1-


tinue to work at solving. We must bea voice for those who are not heard.The common law is derived from thewill of the people and we must giveall people access to justice. As misinformation is circulated we must knowthe facts and take pan in educatingpeople about how our justice systemworks. We who do baule for clientsmust do baule for the justice systemand keep the greatest justice systemin the world from being destroyed. Ifthe justice system is not working wecannot expect citizens 10 believe other

pans of democracy will work. -----------

Especially imponant is saving "The commoll law islegal services. It works, is not politicalor partisan, and is a required part ofour democracy. Lawyers have gonebeyond what might normally beexpected in attempting to makcCongress and the public understandhow essential the Legal Services

Corporation is in today's complex access to justice"society if the poor are to have accessto justice. We must continue oureFrons. lin Arkansas. MauriceMitchell is heading a task force to seek ways to insure suchservices continue. My shorthand description of the terribleeffects of thc absence of a systcmatic means of making probono services available is that ultimately the poor mightresort to alternate dispute resolution in the form of gUlls andknives in the streets. Lawyers must not let the situation getbad enough for this happen.]

Among the American Bar Association problelnsPresident Roberta Ramo is working at solving is the declinein membership. She has teams of lawyers reviewing whatservices attorneys are looking for. They are developingmembership outreach - a practical communicationsapproach and improved partnerships with state and local barassociations. President Ramo ended her talk by remindingus we are concerned about and working to solve thc prob·ICl11s affecting the justice system not because of pocketbook issues but because of what the solutions do forAmericans. The Attorney General concluded by telling theHouse she loves lawyers and loves the law but does not likegreedy and indifferent lawyers. This is a time of challenge.\Vhere lawyers care they solve problems and things changefor the better.

Law Office Technology

Windows 95 in the Small Law Officeby David G. Nixoll

Purpo,e of AnicleThe purpose of this article is to share

OUf experiences with those of you considering a switch from Windows 3.1 orWindows for Workgroups 3.1 I ('"WFW")to Windows 95.Prior Experience/Sy\lcm

OUf office has been committed forseveral years to the ideal of utilizing newtechnology where we can oblain a favorable combination of quality. efficiency.control and price. In that quest. our computer operming system had evolved fromDOS to Windows to pemlit "multitasking" and easier transfer of data from program to program. From, there we adopted\Vindo\Vs for Workgroups to permit inexpensive networking, e-mail and sharing ofresources such as printers, files and faxmodems. We also chose to move from

lIsing a wide variety of software from different manufacturers to so-called "officesuite" software. We changed. for example, from WordPerfect for Windows andLotus 1-2-3 to Microsoft Word andMicrosoft Excel. While some resistanceand retraining naturally resulted from themove, it has proven clearly beneficial fora variety of reasons which are beyond thescope of this anic1e.Diffcrence~ from Window., forWorkgroups 3.11 and Windows 3.132 bit is more stable

We were having a tremendousamount of trouble with system failuresusing WFW 3.11. Typically, we wererebooting our system at least once perday. This one fact alone prompted us tomove to Windows 9S when we did. Wewere understandably reluctant to move toa completely new and untried operatingsystem, especially consideringMicrosoft's significant delays in releaseof the product.

I am happy to repon that we experienced an immediate and significant gainin platform stability. We still have toreboot our system now and then, since weleave our system running all the time, butmuch less often than before. Also, it ismuch easier to recover from system lock-

ups without rebooting by simply tenninating individual programs which mayhave stopped running.Admini\tration of Sy..,tcm

I have typically been the one responsible for administering and maintainingour computer system. With WFW, thatinvolved owning and delving into theMicrosoft Resource Kits and various··*.inj"· files from time to time. I havefound I need to do much less of that inWin95.Longer file names

One of the touted benefits of Win9S's32-bit architecture is the ability to assignlong file names. We have found thatusing the longer file names permitted byWin95 has been a plus for our office. InWFW, we utilized a file-naming convention that involved specifying the type ofword-processing document. Le. a letter. abrief or an order, by the three-characterextension at the end of the file name.Since Win95 and Office 95 prefer thesame file extension for all word-processing files. i.e., ··doc". we have learned tospecify the type of document within thetile name itself. Except for that inconvenience unique to our office. the availability of long file names has more than compensated for the inconvenience of thechange.Toolbar and informati\'c icon...

Two of the things we really like aboutWin95 are the use of the loolbar and theinformative icons in the lower right-handcorner of the screen. If I have a numberof programs running simultaneously(which is usually the case). even if mycurrent program hides the program forwhich I am looking. I can find and openit instantly by going to the toolbar.

Win9S also exhibits icons at thelower right-hand corner of the screenwhich indicate which background functions are at work. e.g.. printing. faxing.sound. time and date. One also has directaccess to those functions by "c1icking" onthose icons and can then modify the parameters of that function or terminate itentirely.

Binder...Office 95 utilizes what it refers to as

··binders". While we have not yet mastered their use in our office, they appearto permit one to group together a numberof separate, but related, office files, suchas word-processing, spreadsheet, databaseand presentation. For example, youmight have an Excel spreadsheet analyzing the effeclS of a proposed contract"bound" to the contract, promissorynote(s). security agreements. etc. in Wordformat. Because they are "bound"together. they can be stored. e-mailed andformatted as a cohesive unit.Shortcut\ and programming a linle confu\ing at fir\t.

For those of us familiar with theWindows 3.1 desktop and its formatting,personalizing and modifying Win95 mayprove a little cumbersome and confusingat first. However. we have found that setting up program groups and ··shortcuts" isnot that hard once one has done it a fewtimes. Once set up. the access to programs through the desktop and the "Stan"button really is more convenient. We likethe toolbars provided by Microsoft Officeas well. They give direct access to email. schedule and document processingfunctions we use regularly.

etwork ServiceOne complaint I have with Microsoft

is its decision 110t to provide free supportfor what it calls "network" issues. Theseissues include not only networking per se.but also. I believe. e-mail. remote faxingand group scheduling issues. which forus. at least. are the key tools for which wepurchased the software. It also happensthese are usually the issues which tend topop up more often since they are themorc complex uses of the software. Inspite of this drawback. we have foundMicrosoft's technical support to be consistentlyexcellent.Hardware pgrade Required

You will probably find that yet another hardware upgrade will be required to

See Law Oll1ce TechnologyPage 37


CLE Director's Report

MCLE Serves Not Only the Profession,But the Public

by Charlatt. Morrison Creer

NEED YOUR ETHICS HOUR?

For more information or to register, call Virginia at(501) 375-3957 or 1-800-609-5668.

Space is limited.There will not be at-the-door registration.

Please pre-register.

June 6,19968:30-9:30 a.m.II :30- I2:30 p.m.5:00-6:00 p.m.

Non-members: $40.00Members: $25.00

May 30,19968:30-9:30 a.m.11:30-12:30 p.m.5:00-6:00 p.m.

The Arkansas Bar Association will be offering severalopportunities for you to obtain your one hour of ethicsbefore the June. 1996 reporting period. A video replyfrom the 1996 Mid- Year Meeting, Ethical Dilemmas,will be shown at the Bar Center. The replays are as follows:

continue to encounter the asserlion that what lawyers need toknow is only learned throughexperience and not in a classroomsetting. The saying that "experience is the best teacher" does notaccount for what can be describedas the gross inefficiencie andfrequent failures of learning onlythrough the daily experience oflegal practice. MCLE has causedattorneys who would nol otherwise have done so to attend conlinuing education programs. Asa result of this attendance, their knowledge of the law (animportant component of competence) has increased. How couldthis not have helped the public?

From where I sit, it is as clear as sunrise on a cloudless daythat requiring lawyers to attend some minimum amount of continuing legal education has a positive effect on lawyers. on thequantity and quality of CLE programs, and, ultimately, on theclients lawyers serve.

I opted not to spend time discussing whether formal continuing education is important to lawyers. I assume lawyers wouldagree that it is or there would not have been a market for thiseducation before it became mandatory. I believe the real question is whether attending CLE increases the knowledge oflawyers who would not have gone but for the mandatory continuing legal education (MCLE) requirement? It is on this pointthat those arguing against MCLE somelimes quote the old saying "You can lead a horse to water, but you can't make it drink,"Maybe not, but if you take the whole herd, most of them aregoing to have a drink.

MCLE has its best effect on those lawyers who believe CLEcan help them, but without the requirement, did not regularlyattend CLE due to the demands of daily practice. Under theMCLE requirement, these lawyers pick programs that can benefit their practices, anend those programs, pay altention, and takewhat they learn back to the office or counroom and put it to usefor their clients.

How large is this group of lawyers? I believe it is sizable.The best estimates from The Arkansas Institute of ContinuingLegal Education (AICLE) prior to MCLE were that one-founhto one third of Arkansas lawyers attended any CLE in a givenyear. Although there cenainly must be attorneys who have wasled the opportunities presented by the courses they have taken tosatisfy MCLE requirements, I do not believe they are any significant portion of the bar. Rather, I believe that a large portionwould agree that the requirement are an incentive to takecourses they should take but would otherwise find weak excusesnot to take.

Obviously. MCLE has increased the number of CLE courses offered in Arkansas. By increasing the demand for CLE programs, MCLE has allowed the Bar to offer CLE in smallertowns than would have otherwise been feasible. Specializedseminars are also more available under the requirement. Finally.MCLE improves the quality of CLE offered because MCLErules require written materials, appropriate environments, andother faclors that contribute to quality. Sponsors, in competingfor attendance. look to quality as an area for improvement.Taken together, MCLE means more available, more varied, andbetter CLE programming.

Allhough lawyering competence most assuredly isenhanced by experience in the practice of law, legal educators


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How to Write a Losing Brief

by Coleen M. Barger

In every appeal. one side wins andone side loses.1The merits of the caseought to have something to do with it. butsometimes they don't. Instead, the effortsof the lawyer writing the appellate briefinnuence the outcome of the appeal. Youprobably know that numerous helpfularticles and books already exist to provide guidance on writing the winningbrief.2 I can't add anything new to all thegood advice Lhat's already been published. So I have a different thesis. Willyou accept the proposition that appellatejudges are very busy people? For everycase, they have to decide who wins, andwho loses, and why. Will you agree thatcases take a long time 10 go through theappellale process? Is judicial economy agoal 10 be desired? If you answered "yes'to al1lhese questions. I offer you the following rules to make the judges' decisionin your next appeal much easier, muchquicker: Wrile Ihe losing brier.

Rule I. Don't bother to check thecourt rules. Following this nile may be

Ihe fastesl way of al1 10 lose an appealyou can halt the progress of your briefright at the c1erk's office, before a judgeever sees it.3 For example. if you're drafting a brief for an Arkansas appellatecourt, try submitting a wordy brief whoseArgument section runs about 28 pages inlength.4 Or abstract witness testimony inthe third person. or reference severalpages of the record al once5 Or try 10

conserve paper by squeezing in a coupleof extra lines per page. Will it maner thatyour margins are less than one inch? Yes,it will. 6

For those fascinated with computertechnology, try using one of those fancynew fonts that came with the wordprocesSOl'. If you use a font that's small enough.you can fit a 28-pagc Argument into 24pages7

If you're drafting a brief for a federalappcllatc coun, though, some of these

10 The Ark'U1sas Lawyer Spring 1996

tricks may nOI work. The federal clerksare more likely to return the brief to you(again and again), until you finally get itrighl and they can forward il 10 thejudges. So we'd better go to the next rule.

Rule 2. Raise as many issues aspossible. Remember how you learned 10

spot issues on law school exams? Themore you found, the more your professors liked your paper. ow you can putthat talent to work again. When you represent the appellant. comb the record forevery conceivable ruling, objection,instruction. and put each one into its ownpoint of error. No appellate court will buyyour arguJ11clll that the trial judge madethat many prcjudicial errors. Buryyour good point in a haystack of losers.Or save it to use as your last point: thejudges' attention will be gone long beforethey ever make it that far in your brief.

Rule 3. Get a head start on yourargument b)' attacking the trial courtin lhe Statement of the Case. Belinlethe trial judge. Accuse the judge of fol-

lowing his own agenda. ThaI's the Slrategy used by counsel in one Arkansas case.and it worked8 If you're rude enough.the court may even strike your entirebrier. a result Ihat really shoncuts thecourt's time in making a decision.9 Andyou can certainly put the court in theproper frame of mind to rule against yourclient if your Statemenl of the Case distorts the facts, omits m::uerial informationthat favors your opponent, or argues thesignificance of facts on your own client'sside.

Rule 4. Distort the standard(s) ofreview. There are several ways to distortthe standard of review. One, you can pretend it doesn't exist, and simply arguewhatever seems to work, whether theappellate coun can give you thal relief ornot. Two. you can misstate the standard.For example, did the trial judge excludeyour proffered evidence as more prejudicial than probative? Argue a de 1101'0 standard (Latin always sounds educated). 10Three, for a multi-issue appeal, state a

low this rule properly, it helps if you'llforget thalthe typical appellate judgereads scores of briefs per year. (Don'tthink of the possibility that if we recycledall the paper in those briefs, we couldsave at least a half-acre of pulpwood perjudge. 13) Unfortunately. judges don't getto choose which briefs they'll read. Afterall, aren't they paid to read every singleword and the next word and the nextword. lOO?

It's a simple mailer of psychology,really. When you were in law school, didyou prefer reading the four-page tortcases or the twelve-page constitutionallaw cases? Quick, tell me the facts of?alsgraj. Now tell me the facls ofMarbury v. Madison. Judges are no dif·ferenl. As between the ten-page brief lhatsuccinctly addresses the issues and thethirty-five page brief that rambles on andon. which one will the judges read? Thelosing brief is the one that stays on thedesk.

Rule 8. Don't worry about con·structing Ihe lable of contenls or thelable 01' authorilies. No one ever looksat them. If you provide inaccuratetables-whether because of citationerrors, wrong page numbers, omissions.or incomplete information-you've foundanother sure-fire way Lo reinforce thejudges' notiollthat you don't know whatyou're doing. Type or dictate "S.W.2d"when the case was in the SouthernReponeI' 2d. Get the volume numberwrong. Never Shepardize anything. Make

single standard of review, even thougheach issue you raised obtains reviewunder a different test. Let the appellatejudges sort it Ollt. They ought to knowlheir job.

Rule 5. I)on't include any poinlheadings within the brief, or if ),oumust draft some, make them as non·specific and topical as possible. Somejudges have the silly notion lhat by skimming your argumentative headings, theycan get a sense of your argument'sscheme and structure. Such judges lind itextremely helpful 10 ~ncounter headi,~gs~like this one: 'The tnal court abused Its

discretion by admitting twenty-five goryand repetitive photographs of the corpse."Rather than draft a heading that clearlyasserts your position on the issue. keepyour headings simple: "Admission ofphotographs." Drafting this kind of heading works whelher you're the appellant orthe appellee, so you don't even have to

. h' h'd ' IIkeep up with W Ie 51 e you re on.Rule 6. Quote whatever you like, as

much as you can. The writer whose briefis resplendent with quotations, stitchedtogether by citations, not only persuadesthe appellat.e court that he or she has doneno original thinking, but also, if the quotations are long enough to merit blockformat. gives the judges a handy way toskip reading large sections of the brief.Here's an example:Legal argumelll based on a knowinglyfalse represelllatioJl of law COllstillltesdishonesty toward the tribunal. A lawyeris not required to make a dishl1erestedexposition oj the law, bill must recognizethe existetlce ofpertinent legal Gwhorities. Furthermore, as stated ill paragraph(a)(]). all adl'ocale has a dllty 10 disclosedirectly adverse authority in the cOll1m/ling jurisdiction which has not beef! dis·closed by the opposing parry. The ill/der·lying concept is that legal argumelll is adiscllssion seeking to determille the legalpremises pmperly applicable to the case.

Sec how easy it is to just skip thatentire paragraph? 12

And here's another tip: Quote fromheadnotes, even though their author is apublishing company's employee. not lhejudge who wrote the opinion of the court.After all, the language of the headnotemight lT'lean something distinctly differentin the actual context of the repol1ed case.

Rule 7. Be wordy, verbose, loquacious, prolix, and long-winded. To fol-

the judges' law clerks hunt for the case.After all, they were probably some ofthose law review geeks who earned allthe A's and memorized the Bluebook.Serves them right.

No point in making the tables easy toread either. Run the citation all the wayacross the page so that the page numbers,date of decision. statute numbers. andpages of the brief are in t.he same visualfield. Guaranteed to irritat.e.

Rule 9. Do not - I repele - do nolproofreed. This rule is important becauseeven though you want lO write the losingbrief, it's nice to give the judges a goodlaugh while they're ruling against you. 14

Make enough mistakes, and you increaseyour chances of distracting the judgesfrom noticing anything meritorious thatyou might have inadvertently included inthe brief.

Rule 10. Make 'em work for it. This

rule may seem contrary to my openingthesis-that you can save the legal systema lot of time by writing a brief so bad thatthe judges will quit reading in disgust andquickly rule ill favor of your opponentbut it's here for an important reason.Some judges are so stubborn that theywill persist in reading your brief, lookingfor any kernel of insight. despite yourbest efforts to follow my tirst nine rules.For these judges, then, you must turn toyour ultimate weapon: fog.

Think about it. Fog is gray. dense.See Writing a Losing Brief

Page 36


ot 100 long ago. a good friend whohails from the Delta was meeting withseveral coworkers abollt a major project.

In her sort Southern drawl. she emphasized more than once that "timing iseverything:' As a decision was about tobe reaehed. one of the other partieipanlshad a question..,( understand where we

are going with this:' he asked. "but justwho is this 'Tommy' fellow you think isso important?"

Misunderstandings aside. my friendcould well have been talking aboul thenOlice of appeal. lhe first slep in theArkansas appellale process. The failure LOfile a timely notice of appeal. even in theevent of mistake or unavoidable casualty.deprives the appellate court of jurisdiction.1A notice is untimely not only if it istoo I3Ie.2 bll\ also if il is too early: if filedprior to the day on which the order beingappealed is entered. the notice has noerfcc1.3 It is imperative. therefore. toaseertain lhe period during which lhenotice must be filed. This brief articlefocuses on that issue in the context ofcivil litigation.I. The Fimllity Doctrine

The starting point in any appeal, ofcourse. is the finality doctrine. As a general mle. appeals may be taken only fromorders. decrees or judgments that "dismiss the pal1ies from the COUI1. dischargethem from the aClion. or conclude theirrights to the subject matter in controversy:'~ This principle. embodied in Rule2(a)( I) of the Arkansas Rules ofAppellate Procedure - Civil (Ark. R. App.P. - Civ.). is jurisdielional5

Al the heart of the finality requirement is the notion that cases should notgo to appellate courts on a piecemealbasis but rather as a whole. onetheless.immediate appellate review of a non-finalorder may on occasion be efficient interms of judicial administration or necessary to protect the rights of a party.Various exceptions to the finality requirement have thus emerged. Pursuant toRule 2(a). for example. an immediateappeal may be takcn from an order thatgrants a new trial. strikes an answer orolher pleading. disqualifies an aHorney. orgrants or denies a motion for class ccrtific3tion.6

Rule 54(b) of lhe Arkansas Rules ofCivil Procedure (Ark. R. Civ. P) is a different sort of exception.7 Ordinarily. ajudgment or order in a case involvingmultiple pmties or multiple claims is not

appealable unless il "coverls] all of thepanics and all of the claims:'8 However,Rule 54(b) permits an appeal from a"lesser judgment" if the trial court so certifies in accordance with the rule.9

However. failure to seek certification doesnot preclude an appeal when the entirecase is resolved. IO

This certification. I I which should bereserved for the infrequent harsh case.12

has two components: the trial coun's"express direction for the entry of judgment:' and its "cxpress detennination.supported by faclual findings. lhal there isno jusl reason for delay:·t) Abselll propercertification. the appellate court lacksjurisdiction and lhe appeal will be dismissed without prejudice. 14

II. The Notice or AppealIf an order is appealable. either

because it is final or because it falls within an exception to the finality doctrine.the rules governing the notice of appealcome into play. The relevant provisionsappear in Ark. R. App. P. - Civ. 3 and 4.Strict compliance with the timing requirements of Rule 4 is essential. lS and therecord on appeal must renect that theyhave been smisfied.16

Pursuanl LO Rule 3(b). an appeal istaken "by filing a nOliee of appeal wilhthe clerk of the coun which entered thejudgment. decree. or order:'17 With cerlain exceptions. Rule 4(a) provides thatlhe nOlice must be filed "wilhin lhirty(30) days from the elllry of the judgmenl.decree or order:' t8 Under Rule 4(e). suchan "entry" occurs when the judgment.deeree. or order "is filed with the clerk ofthe court in which the claim was tried:'The point at which a judgment becomeseffective is not relevant.19 nor is the dateof the clerk's docket notation or recordation in lhe judgment book 20

There are two exceptions lO Rule-tea}: an extension of time available whena pany does not receive notice that thejudgmcnt. decree. or order has beencntered, and an automatic extension whencenain posttrial motions are filed. Inaddition. the time for filing the notice ofappeal may begin 10 mn at a differentpoinl in some Ark. R. Civ. P. 54(b) cases.A. Party Unaware 01' Judgment

Added 10 the appellale rules in 1986.the first exception is of limited scope.Rule 4(a) provides that lhe lrial court"may extend the time for filing the noticeof appeal by any parly:' ror a period notto exceed sixty days from the expiration

of the otherwise applicable deadline,upon a showing of "failure to receivenotice of entry of the judgment. decree ororder from which appeal is sought." Such3n extension "may be granted before orafler the [deadlinel has expired:' The trialcourt must determine. as a factual matter.whether there was a "failure to receivenotice:' and the record must reflect adequate support for that finding 2t

This provision is obviously based onfairness considerations. nder longstanding Arkansas custom. counsel for the prevailing party prepares the judgment ororder and submits it to the court forapprova1.22 Although opposing eounselusually has an opportunity to review thedocument. "circumstances have arisenwhere [he or she] did not receive thaIopportunity and did not otherwise receivenOlice that a judgment had beenentered:·23

B. Posttrial MotionsThe second exception. described in

par:lgraphs (b). (e) and (d) or Rule 4.applies when certain posttrial motions aremade. If any party files a timely motionfor JNOV. a new trial. or addilional findings of facl,24 lhe deadline for all partiesto tile a notice of appeal is extended. Inthis situation, the notice must be filedwithin thirty days from the entry of anorder granting or denying the motion. solong as the order is entered within thirtydays of the motion's filing.

If no dispositive order is enteredwithin that time frame. however, themotion is "deemed denied" as of the thirlieth day. and the lime for filing thenOlice of appeal begins 10 mn al thaIpoint.

Moreover. a premature notice has noeffect. and a new filing is necessary lO

perfect the appea1.25 Rule 4(c) expresslyprovides that a notice is ineffective iffiled "before the disposilion of [the posttriall motion" or. if no such order isentered. "prior to the expiration of thethirty-day period" for consideration of theposttrial motion. In the latter situation. anotice filed on the thirtieth day is ineffective.26 With respect to a dispositive order.howcver. a notice ··counts·· if filed on thesame day as the order but actually priorin timc.27

Although this procedure was adoptedIn 1988 to simplify previous Arkansas

Sec Timing is Ever)'thingPage 34

13 The Arkansas L<'lwyer Spring 1996

How One Ought to Writeby William R. Wilson, Jr.

Most folks have heard lhe story aboutIhe mule lhat jumped OUI of Ihe mule penand ran in the Kenlucky Derby. Ofcourse. he came in dead 1asi. and when hejumped back into the mule pen. the othermules chided him for this hopeless effort.The outclassed runner replied, "1 knew Icouldn't win. but I lhoughl lhe association would do me a world of good:' Iwouldn'I repeat lhis chestnut but for lhefact il so aptly describes how I felt aboutwriting alongside Judge Robert Keetonand Professor Charles Alan Wright - andthe other luminaries who contributed to aproject I worked on.

Abraham Lincoln supposedly wrote."With educated people. the semicolon is al11~lller of rule; with me, iI's a maHer offeeling:' This pretty much describes theway I write. My missives do not squarewilh Strunk and While (nor do they meelthe Bryan Garner standards). It's not LhatI didn't have Ihe opportunilY to pick upthe rules of grammar and construction since my parents were schoolteachersfrom Ihe old school. Proper grammarwas an article of faith with them. To borrow from Merle Haggard. "Mammatried"; but unfonunntcly. (00 liule stuck.

Despite this shortcoming. I havealway~ loved to read and write. For betler or worse. Mark Twain. Josh Billings.and Bret Harte were my early favorites.Additionally. my maternal grandfatherW3S a rock-ribbed. circuit ridin', shoulin',whiskey hatin' Methodist preacher. so theHoly Writ (King James Version. ofcourse) has been a staple for me.

When I was a young man I had theprivilege of hearing the Ime OswaldJacoby give a lalk on poker (which. incidentally. he preferred to bridge). His lalkwas chock·full of interesting anecdotes.After his presentmion. I visited with himbrieny. and commented on his skills as araconteur. He said. "I learned long agoIhat if you will entertain first. educationmay follow:'

I doubl that my students of the laware much differcnt Ihan those who wouldimprove thcir game of chance.


When I was growing up (in Ihe 40sand 50s) my elders had just wealhered theGreat Depression. and their language wasrich wilh figures of speech, born of Ihalcxperience. Onc might preface a rumorwith, ''This is just what I heard. but'course now. you can hear anything butmeat fryin' and money jinglin'''' Howbelter 10 express the lack of reliability ofhearsay - at least to listeners who knewfull well of Ihe scarcity of meat and hardmoney during the Depression?

Similes and metaphors common to aparticular area or occupation have alwaysbeen a favorite study of mine. For some-

Whatever my writing skillsmay be, I lay no claim tooriginality. My scholarly

friends tell me thatShakespeare himself was a

shameless thief of lines; andif the Bard himself could

purloin thoughts fromothers, surely an ordinarystreet lawyer call. Properattribution is in ordel; butMark Twain might have

added, "only ifone is fairlycertain to get caught."

one who grew up around livestock. andremembers Ihe first days of DDT. howbetter to describe a weird person than"crazy as a sprayed Oy:'

I am sorely afraid. however. that television is homogenizing our language.The disappearance of the farm familyalso concerns me. Will "crazy as a peachorchard boar" mean anything to a personwho has never secn a hog drunk onpeaches that fell to the ground and fermented? Perhaps it is my rural background that draws me 10 the bucolic

aphorism.Whatever my writing skills may be. I

lay no claim to originality. My scholarlyfriends tell me lhat Shakespeare himselfwas a shameless thief of lines: and if theBard himself could purloin lhoughts fromolhers. surely an ordinary street lawyercan. Proper attribution is in order. butMark Twain mighl have added. "only ifone is fairly certain to get caught:'

Drafting and redrafting have alwaysbeen a necessity for me. I am in awe ofthose speakers and writers who can justlet it now, but I simply have not acquiredthat abilily. Perhaps lhis is a rare skill.When I was first called 10 lhe bar. I heardan inspiring speech by a lawyer of yesteryear who was known as a great extemporaneous speaker. After his lalk. I askedhim if his skill was inherited or acquired.He told me that he had always invested agreat deal of time in rehearsing hisimpromptu speeches.

Redundancy is abhorred by lhe purist.but I simply cannot resist in truth and infact. Irregardless is scorned. but doesn'tit make something more irrelevant thanregardless? (Ir-by-God-regardless is usedin the Ouachita Mountains for especialemphasis.)

For anyone who has ever climbed atree and drug a squirrel out of its hole.SHying dragged grates on the ear. So thatyOll can let the reader know lhat you havehad passing exposure 10 proper grammar,it is best. in this instance, to go ahead andadd your own sic.

It is my belief that from time to time.digression is good for the writer's soul. ifnOl for Ihe reader's train of Ihought. Ifone does not stray too far afield. a digression may even lighten the load for thereader. Funher. it is my firm belief thatone should get some fun out of writing sothat one does not dread the experiencelike a teenager facing a two-hour sermon.

In fine. my notion of writing waspretty well described by the laIc DizzyDean's 3dvice for living: "Be yo-self:'

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School of law. Scott served as

law clerk to Justice Glaze at the

Supreme Court of Arkansas and for the

past two years has been in

private practice in Fayetteville.

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The Client Security FundFulfilling Our Obligation to

the Publicby Justice Andree Roaf

One of the most dishearteningoccurrences for most lawyersis to learn that a colleaguehas betrayed the trust of his

or her clients by misappropriating clientfunds. It is particularly painful to read ofsuch events in our daily newspaper andknow that our profession has suffered yetanother blow to its image and reputation.

It is of no consolation LO consider that allprofessions and disciplines have a shareof dishonest members or that dishonestlawyers comprise only a very small fraction of the total membership of the bar.In this day of lawyer jokes and lawyer

bashing from all corners. these occurrences are especially hurtful and damaging to lhe image of our profession. and tous as individual attorneys. It is thereforeboth timely and appropriate to review theefforts that Arkansas lawyers have madeto protect clients from losses caused bythe dishonest conduct of members of theState Bar of Arkansas.

Client security funds first came intoexistence in ew Zealand. which established the Security Fund in 1929. A number of countries soon followed. withEngland creating the Law Society's Fundin 1942. In 1959. Vermont was the firststate in this country to establish a fund. I

Today. the overwhelming majorily ofstates operate some type of client securityfund. The genesis of the fund in Arkansaswas a resolulion adopted by the Ethics

and Grievance Committee of theArkansas Bar Association in 1968, which


recommended the establishment of a fundby rule of the Arkansas Supreme Court.The Bar Associalion subsequel1lly presented its proposal in a petition LO the

court. and the Client Security Fund wascreated by per curiam on April 30. 19732

The initial fund was financed by voluntary contributions from members of theArkansas Bar and by transfer of surplusfunds from attorney's license fees.

Beginning in 1974. the fund received 52of the annual license fee paid by eachattorney: claims were initially limited to

5.000. There have been a number of

changes in the ensuing years LO increase

the annual contribution per lawyer and toraise the claim limit. From 1973 to 1990the annual per lawyer contribution was

2. from 1990 to 1994. 4 and. in 1995.the supreme court raised the contributionto SID. The per claim limit was 55.000from 1973 to 1991. In 1992 it was raisedto S25.000 and in 1993 it was againraised to S40.000. There has never been aper-lawyer cap on claims in Arkansas.although many other stales have a limiton the dollar amount paid on claimsattributable to anyone individual.

The Client Securily Fund is administered by a committee appointed by lheArkansas Supreme Court. The rules forthe committee can be found in the CourtRules volumc of the Arkansas Code.Some of Ihe more significant provisionsare:

I) Only losses caused by the dishonestconduct of a lawyer and which arisc out

of the lawyer - client relationship are

covered. The Fund is not designed tocover negligence or similar acts.

2) Reimbursements arc a matter of grace,not a maller of right. and no claimant

has any right in the Client Security

Fund as a third party beneficiary or otherwise. The Client Security Fund

COlllmittee may admit or reject claims

in whole or in part.

3) Claims must be filed no later thanthree years ancr the claimant knew orshould have known of the dishonestconduct of the lawyer.

4) No claims may be paid until the

Committee on Professional Conducthas certified that the member of the barof Arkansas has been disbarred. is suspended from practice. voluntarilyresigned from the practice of law andsurrendered his license. or died before adisablement. suspension. or surrender

of license could take place.5) Lawyers may not be compensated for

prosecuting a claim against the fund.In 1993. the supreme court authorized apress release to further publicize theexistence of the fund. TheAdministrative Office of the Courtsalso prepared and distribuled a pamphlet which provides inform3lion aboulthe fund. Consequently. the claims filedhave increased dram;llically with thepublic awareness of this fund. The following chart sets OUl the hisLOry of the

submission and payment of claimssince the inception of the fund

YEAR NO. CLAIMS FILED NO. CLAIMS PAID' TOTAL PAID1973 0 0 01974 3 0 01975 2 2 $ 960.211976 2 1 3,351.401977 4 7 3,424.981978 1 0 01979 0 0 01980 1 0 01981 7 2 2,667.341982 4 1 400.001983 0 0 01984 1 0 01985 8 1 5,000.001986 10 9 16,938.801987 10 5 12,990.001988 4 12 15,948.211989 3 0 01990 3 1 125.001991 8 0 01992 7 3 41,636.381993 43 5 35,753.041994 29 11 136,658.861995 6 20 152,276.00

* otc thal the claims paid in any given year are nor necessarily from applications received during that year.

EEOCDiscrimination

Consultant

* In the past, the fund has always paid allapproved claims in full. AI the presentfunding level of $1 0 annually per licensedattorney, the fund will receive a maximum of $70,000 per year. If the amountspaid in 1994 and 1995 are an indicatorfor the future. it is obvious (hal the fundcannot continue to pay all approvedclaims in full without additional monies.

The supreme coun and the ClientSecurity Fund Committee are deeplycommincd 10 Ihe objective of continuingto meet the losses of clients who havebeen victimized by unscrupulous lawyers.Toward this end. the court and the committee are involved in an ongoing reviewof the current procedures and are considering options for other fundingsources.The Client Security Fund is animportant aspect of the self govemance ofour profession and we must continueto accept this responsibility to the public.It als:J presents an excellent opportunityto demonstrate Ollr commitment to maintaining the integrity of the legal profes-


sion. It should indeed be a source of pridefor all Arkansas lawyers lhat we haveundertaken this ~df-irnpusetl responsibility to our clients and to our profession.

ENDNOTESI Mullin, Clients' Security Fund. 5 Ark.Lawyer 186 (197 I).2 254 Ark. 1075.493 S.W.2d 422(1973).

Charles Bucher(501) 224·0877

The supreme court and the ClientSecurity Fund Committee are

deeply committed to the objectiveof continuing 10 meet the losses of

clients who have beenvictimized by unscrupulous

lawyers.

Retired from EEOC with20 years experience

Opening Announced forExecutive Director's Position

The Arkansas Bar Association, a statewide associationlocated in Little Rock, Arkansas, with 3900 members, afull-time staff of thirteen (13) and an annual budget of$1,080,000, seeks an Executive Director. The duties ofthe successful candidate will commence on December 2,1996.

The position requires the ability to implement the goals,policies and programs of the Arkansas Bar Associa tionas adopted by the President, Executive Council, andHouse of Delegates. Included in the duties will besupervision of staff members, management of buildingfacilities, financial administration and budgeting, planning and coordination of meetings, supervision of thepublication of Association periodicals and other printedmaterials and maintenance of communications andcooperative relations with the American Bar Associationand with the various specialty, local and state bar associations.

Qualifications include at least a bachelor's degree and110 less than 3 years of experience in management, financial administration and personnel supervision. Alaw

I degree or graduate degree in a related field is preferred.Management experience in non-profit or volunteer organizations is desirable. The successful candidate shouldpossess excellent communication skills.

Minimum salary is $65,000 (plus benefits) and is negotiable based on qualifications and experience.

I

Applicants should send a cover letter, resume, andsalary requirements to Search Committee, Arkansas BarAssociation, P.O. Box 5130, North Little Rock, AR 72115by August 15. Resumes and inquiries will be kept confidential. The Arkansas Bar Association is an equal

I opportunity employer. ~

THE LAW FIRM OFDAVIDSON, HORNE & HOLLINGSWORTH

Announces the Change of the Firm Name to

HORNE, HOLLINGSWORTH & PARKERAProfessional Associahan

AND TAKES PLEASURE IN ANNOUNCINGTHE FOLLOWING ADDITIONS TO THE FIRM

FRANK j. WILLS

JOYCE BRADLEY BABIN

BRADLEY S. CHAFIN

EDM.KOON

HORNE, HOLLINGSWORTH & PARKERA PROFESSIONAL ASSOCIATION

401 West Capitol, Suite 501Post Office Box 3363

Little Rock, Arkansas 72203-3363Telephone (501) 376-4731

Telefax (501) 372-7142

Allan W. HorneCyril HollingsworthMichael O. Parker

james P. BeachboardMark H. Allison

Frank j. Willsjoyce Bradley Babin

Bradley S. ChafinEd M. Koon

Walter W. DavidsonRetired

Garland W. Birllls, jr.of Counsel


The author's opil/ions iff this article are !tis!lter OWII and i" 110 Imy reflect 'he position of ,he Arktmsas Bor Associm;oll.

while committing to become a responsible conscientious member of the communityat the same time. The communitieswho enjoy successful partnerships withthe casino industry are those who havedefined their goals and expectations asthey relate to the gaming industry. Theyhave chosen their partners carefully andgiven serious thought to the terms oftheir relationship with the casino operators. Some communities which have welcomed the industry may have experienced growing pains: however. thesecommunities may very well have beenunprepared for the tOlal impact of thecasino industry.

An obvious success story of the gaming industry is Tunica County.Mississippi. The impact of gaming inTunica surpassed anyone's expectalions.The unemployment rate in Tunica wentfrom 26.2% in 1992 to 4.9% in October

of 19935 The welfare department's collection rate has increased while the number of welfare recipients has decrensed.Casino Gaming has brought moreemployment opportunities to Tunica thanthere were residents of the County in1990. The casinos present vocational andeducational opportunities via a trainingschool 10 leach potential employees thenecessary technical skills to work in thegaming atmosphere. Once employed. thecasino employees earn an average annual

salary of 525.000.006

The ancillary benefits of casino gaming in Tunica have been new housing.service sector businesses. recreationalvehicle parks and the construction of newrestaurants and motels. The casinos alsobenefit the infrastructure within the counties. as Mississippi gaming law requiresthat a cerwin percentage of casino revenue go to the counties. In Fiscal Year1995 the revenues allocated to the counties in Mississippi amounted to$2.500,000.00. In addition. new localhighways are being constructed. budgetsof local law enforcement and fire departments have experienced increases. twoncw utility districts have been formed,


relationship to a local community andSlate by commilling to an incrcase inemployment opportunities. increased taxrevenue and increased capital investment.

Lady Luck Casino in Tunica, Mississippi

each should be evaluated individually:however. the remainder of this articlewill focus on casino gaming.

Casino Gaming offers a symbiotic

y

In

machines. blackjack tables. craps. baccarat. roulette and other games of

chance.4 Each of the three forms of gaming have various consequences andeffects, both positive and ncgative. and

of keno machines. video poker. videoblack jack a"d other video display terminals that orten appear in bars, restaurantsand truck SLOpS. "Casino Gaming" is afull scale dedicatcd gaming and cntertainment establishment containing slot

by /anne Giroir Sieael

"Gambling is now bigger than baseball. more powerful than a platoon ofSchwarzenegers. Speilbergs. Madonnasand Oprahs. More Americans went tocasinos than to major league ballparks in

1993. inety-two million visits!"1

Communities who have sllccessfulpartnerships with the gaming industryexperience an economic resurgence dueto new jobs. lax revenues and capital

investments. 2 The purpose of this articleis not 10 discuss whether gaming ismorally right or wrong: that is an individual decision. Rather. the purpose ofthis article is to give an overview of thegaming industry.

The gaming industry is a fast growing industry thal has been intensely scrutinized and studied both internally andexternally. No other industry has been thesource of more debate on both a politicaland an emotional level than the gamingindustry. Current arguments against gaming maintain that it is a regressive formof taxation. results in extensive socialcosts. reshufnes the local economy as(the) residents spend money on gamingwhich would otherwise be spent at localestablishments. and finally increasesstreet crime and attracts organized

crime.3 While these arguments arerepeatedly and commonly assertedagainst legalized gaming. it has beendemonstrated in several existing modelsthat these claims do not reflect the realities of legalized gaming's effect on thecommunities.

For background purposes. it is important to understand that there are actuallythree different types of gaming. "Lottery"is a state sponsored and promoted type ofgaming. "Convenience Gaming" consists

24 The Arbnstls Lawyer Spring 1996

Pro

general, thesHive effects of

•caSInoin ust havefar-reachingbenefits in diversesectors of the local

•economIes.

and the public school system has been

completely overhauled.? In fael. gamingrevenue has provided $1.400.000.00 ofadditional funding for the 1994 schoolyear. Clearly. Mississippi has carefullychosen what results il wanted from legal-


ized gaming and its choices have lead toa successful partnership between thegaming industry, the cOlllmunities and

the SIale8

In general, the positive effects of thecasino industry have far-reaching economic benefits in diverse sectors of thelocal economies. For instance and nOl byway of limiLatiol1, the following industries continually directly benefit from theexpanded effect of casinos in a localeconomy: the Real ESlalC Industry; the"Other Business Services" (those businesses that provide professional servicesall a contractual fee basis: credit reporting, computer programming, temporarystaffing. security services. printing services. elc.); the Advertising Industry, theConstruction Maintenance Industry(additional construction of casinos aswell as on-going maintenance and renovation of the facilities); Electric Utilities:Landscape Architecture and Services;Plastics Manufacturing (wall panels,ceiling tiles, plastic lighting fixtures andother constmction products); WholesaleTrade (Ihe chief funclion of which is tosell goods to trading establishments, contractors or professional business users):Equipment Maintenance and RepairServices (slot machines, heating and airconditioning, video equipment, officeequipment, etc.); Banking industry(checking and savings accounts 10 meetpayroll and purchase obligations, linesof credit to meet purchase and payrollobligations); Food and BeverageServices (restaurants, bars and caterers);Management Consulting; Attorneys;Accountants; and the

Telecommunications Industry.9In addition to the above economic

benefits. the casino gaming industrystrives to contribute to and become aviable member of the community wherever it is located. For instance, in Iowa,Ihere is partnership between Ihe casinooperators and non-profit local entitieswhereby the non-profit entities will distribute casino partners contributions todesignated charities. educational foundations. development groups and other

charitable organizations. IO Indianarequires all casino operators to obtain a"certificate of suitability". This certificale is granted only pursuant to a hearingbefore Ihe State Gaming Commissionwhereby it is determined Ihat the casinooperator is commining to the community

development through a range of qualified

projects. II In Las Vegas. Harrah'sCasino brought IOgether four corporatesponsors for the Kids' Cafe which provides one free hOl meal to the neediestchildren in the area on a daily basis. TheKids' Cafe project also requires thatthose children 14 and over participate in

and give back to the program. 12 InAtlantic City, nQl only have the RescueMission and Uniled Way been greatlyimpacted by the casino industry, but sohave the local schools via the Adopt-ASchool program whereby the casinooperators choose a school and assist invarious areas of the children's

education. 13

While the casino gaming industry iscognizant and righlfully proud of its positive effects on the economies of thelocal communities and its communityinvolvement, it has often found itselfunfairly linked with an increase in crime.Specifically, it has been alleged thai casinos cause an increase in street crime aswell as bring an influx of organized

crime into the host community. 14Typically. Las Vegas and Atlanlic

City are the leading examples used bythose who oppose legalized gaming.However, those who cite crime as a reason to oppose legalized gaming. not onlyignore the realities associated with legalized gaming, but instead, focus on mis

leading interpretations of statistics,I5 Infact, Las Vegas is among the safesl ciliesin America, and Illinois, the country'sforemost river boat casino state hasexperienced no increase and even somereduction in crime in SOme of ils river

boat communities. 16 Numerous lawenforcement officials from Joliet.Illinois: Aurora, Illinois; Davenport.Iowa; Alton. Illinois; East St. Louis,Illinois: and Biloxi, Mississippi allunequivocally agree that crime has eithernot increased or has actually decretlsedas a result of legalized gaming in their

communities.17

Atlantic City is often ciled as anotherfavorile example by the opposition 10

support Ihe claim that legalized gamingincreases street crime. Gaming wasintroduced in Ihe Atlantic CilyBoardwalk in 1978. At that time, thetown population included a large numberof unemployed and unemployables andwas noted for poverty. welfare. and

crime. However. since that time and withthe construction of a number of casinos.research has indicated that the individualrisk of victimization in Atlantic City wasactually less than it was before theadvent of casinos. In addition. a higherpercentage of crimes are being reporteddue to the presence of casino related

security. 18Lastly it should be recognized that

the claims, made by those who opposelegalized gaming with respect to organized crime dominating the gamingindustry, can be easily countered. Todaythe gaming industry is tightly regulatedat several levels: the federal level via theInternal Revenue Service and theSecurities and Exchange Commission;the state level via gaming regulationsand licensing requirements; and on aninternal level via various internal controls relating to financial reporting whichrecognize the in1portance of the industry's publicity to shareholders, investorsand stock analysts. Many of the gamingcompanies are publicly traded companieswho are unwilling to jeopardize theircredibility or create the risk of being

investigated or prosecuted. 19The gaming industry is also sensitive

to the problems associated with theindustry. namely the problem arisingfrom compulsive gambling. As such, thecasino gaming industry addresses theissue by committing resources to stopunderage and compulsive gambling.Specifically, two such projects are"Operation Bet Smart" and "Project

21".20 Operation Bel Smart educatesemployees, patrons and the industryabout compulsive gambling and providesassistance to those who are battling gambling problems. Project 21 teaches educators, parents, students and casinoemployees about the dangers of under

age gambling. 21 Furthermore, severalstates require an allocation of a portionof the casino revenues to a CompulsiveGambling Fund to assist in the treatment

of a person's addictions to gambling.22

In conclusion. our State is surrounded by states who are benefiting andgrowing because of the casino industry.with the most obvious success storybeing Mississippi. We should not shyaway from the benefits the gamingindustry offers based on misguidedapprehensions. In essence. we have the

benefit of learning from the existingmodels in other communities. evaluatingits strengths and weaknesses and thenplanning our strategy ensuring thai itwould met the goals and integrity of ourState. We should, with thorough licensing requirements and an elaborate regulatory scheme, choose those casino operators who commit to our economy. commit to supporting the infrastructure anddevelopment of the host communitiesand commit to becoming a partner andresponsible member of the community.As such, the casino industry would be awelcome addition to our State.

END NOTESI. The New York Times Magazine, July17.1994. as quoted in Harrah's Survey ofCasino Entertainmelll, 1995.

2. Harrah's Survey of CasinoEntertainment. p. 2 ( 1995)

3. See Professor Robert Goodman: TheLuck Business: The DevastatingConsequences and Broke" Promises ofAmerica's Explosion. (1995)

4. Reifel', This Emperor Has No Clothes,Casino Journal. p. 38, December J995

5. Testimony of Webster Franklin,Executive Director. Chamber ofCommerce, Tunica County. Mississippi atThe House of Representatives. COlllmittee011 Small Business hearing regarding TheNational Impact of Casino GamingProliferation. p. 18 (September 2 t. 1994).

6.ld.

7.ld.

8. Id.

9. The Direct Impact of the CasinoIndustry: Purchase and EmploymentEffects in the Major Supply Industries. TheWEFA Group. August 1994. The WEFAGroup is a leading international consultingfirm specializing in analysis of industryand econometrics. WEFA was formed fromthe merger of Wharton EconometricForecasting Associates and ChaseEconometrics in 1987.

Rutherford. The CaseJor Citizen Gaming,p. 36. Casino Journal (February 1996)

t t. Id.

12. Kids' Cafe: Serving Hope and a Hot

Meat. p. 38. Casino Journat (Februaryt996)

13. Katz Herriot. Working to Make a difference iI/ Atlall1ic City, p.58, Casino Journal(February t996)

14. Statement of Jeremy D. Margolis,Former Assistant United States Attorneyand Director of Illinois Stale Police al theCommittee on the Judiciary of the UnitedStates House of Representatives 011 H.R.497 regarding the National GamblingImpact and Policy Commission Act,September 29, 1995.

15.ld.

16.ld.

17. Harrah's Survey of CasinoEntertainment. 1995.

18. Statement of Jeremy D. Margolis,Former Assistant United States Attorneyand Director of Illinois State Police at theCommittee on the Judiciary of the UnitedStates House of Representatives all H.R497 regarding the National GamblingImpact and Policy Commission Act,September 29, 1995.

19.1d.

20. Rutherford, The Case for CitizenGaming. p. 58. Casino Journal (Februaryt996).

21. td.

22. See N.J. Sial. AIIII 45: /2-/45 (Wesl/988). Several states also allocate a portionof louery revenues to programs which treatcompulsive gamblers. Del. Code Anll. Tit.29.§ 48/5(b)(2) (/994). See also Go CodeA'lII. § 50-27-24(7/)( /992) (allocating aportion of unclaimed prize money, not (Q

exceed $200,000 annually. to lheDepartment of Human Resources for thetreatment of compulsive gambling andrelated educational programs). and Minl/.Slat. AIIII.§ 297£./6(3)(0) (Wesl /994)(allocating 10% of the proceeds generatedby the sale of confiscated gambling contraband to programs established to treat compulsive gamblers).

Conlinue on to Page 28 for the flip sideto this issue...


Conby Larry L. Pa~e. Executive Director. Christian Civic Foundation or Arkansas

There are several contexts in whichone can examine the issue of gambling.Certainly, gambling as it relates to personal morality is one of the more significant contexts. For many people Ihal canbe the overriding factor.

However. for purposes here I willaddress legalized gambling outside of themoral considerations. even though thoseare quile significant to me personally.This Iremment of gambling will be within the confines of the economic implications of casino and lottery gambling.

I can find no better premise uponwhich to build lhe economic case againstgambling than the definitive stalcmCI1l byPaul Samuelson. the Nobel Prize-winning economist. He said. "There ... is asubstantial economic case 10 be madeagainst gambling ... it involves simplysteri Ie transfers of money or goodsbetween individuals. creating no newmoney or goods.... gambling subtractsfrom the national income:'

To conduct a study of Ihe effects ofgambling without looking at the costs toIhe economy and society is simple-minded at best and deceptive at worst. Yel.that is precisely what the gamblinginduslry and its apologisls do. Theyfinance study after study which invariably presel1l the rosy. but scandalouslyinaccurate. scenario for (he economicpanacea they tout - casinos. lotterygambling or a combination of those.

Robert Goodman. a LemelsonProfessor of EnvironmeJ1lal Design andPlanning at Hampshire College and afonner columnist for Ihe BOSIOII Globehas done the most objective. serious andscholarly work in this issue over thecourse of Ihe last four years. As a resuhof his extensive research. he has foundthe following:

"In the course of all Ihis work. I wasconsistently struck by how much mis·leading information is rOluinely used bydecision makers and people in the mediato estimate the economic benerits IhaLnew gambling enterprises will bring. The

28 The Arkan ...as Lawyer Spring 1996

research to support these claims wasalmost always underwrillen by lhe gambling industry itself, carried out by paidconsultants. and trumpeted by legislatorswho were already commilled to the pro·jecls. The result is that critical publicpol icy decisions have been made on thebasis of complelely biased projections.(Roben Goodman. The Luck Business:'Manin Kessler Books. New York. 1995.p. ix.)

In addition. he found that in the fourteen such studies he analYl..cd. claims ofeconomic benefils were exaggerated.while costs were undersl::ued. Most ofthe studies could nor be consideredobjeclive descriptions of economic bene·filS and COSls. (Robert Goodman.Legaliz.ed Gambling as a Strmegy JorEconomic Developmell1. Center forEconomic Development. University ofMassachusetls at Amhers!. 199-1. p.16.)

In light of this. it is imperative thatArkansans receive objective. reliable andbalanced information about gamblingbefore they wrile into their state constitution something as serious and significanla~ tht: It:galiLi.1lion of casino and 101lerygambling. This ankle is an example ofthe kind of objective data Ihal is needed.

The case - the objective caseagainst gambling is really quite damaging to the out of state gambling interestswho arc seeking to expand their opera·tions in Arkansas and elsewhere. Whatfollows is a brief summary of the caseagainst legalized gambling as viewedthrough the economic prism.

The New York Times made the following observations:

"But even as the $30 billion-a-yeargambling juggernaut gains momentum.economists and regional planners arepredicting that it will chew up moreincome than it creates.... Compulsivegambling. bred by easy access. reduceslabor produclivity. and has been linked toincrcases in white collar crime embezzlement. fraud and the like. Lnlc·nighl gambling adds to Ihe cosI of polic-

ing traffic. not to menlion the toll fromdrunk driving and other alcohol-relatedviolence.... these eXlernalities equalroughly half the revenues of casino gam·bling - and these costs. ultimalelyborne by Government, are far more thanthe direct and indirect laxes on the industry:· (peler Passel!. ''The False Promiseof Development by Casino:· The Nell'York Times. June 12. 199-1.)

Research highlighted in that articlealso found thm the amount of taxes collected by a state on gross casino receiptsper person were fony dollars. Thai iscontrasted with Ihe average cost per per·son of I\VO hundred dollars. These COSIS"include regulatory oversight legal services linked wilh criminal aClivity. andlosl job productivity associ.lled withaddicted gamblers:' (Passell. The NewYork Times .)

Professor John Kindt of theUniversity of Illinois concludes that forevery dollar of gambling revenuereceived by the state. taxpayers must putup a minimum of three dollars to coverexpenses created by gambling. He foundthese costs include infrastructure expenditures. regulatory costs. expenses related to the criminal justice system andlarge social-welfare costs. (John Kindt.Slalemenl before a hearing of Ihe U.S.House of Representatives Committee onSmall Business. Seplcmber 21. 1994.)Conneclicut conducted a study of its1991 gambling industry. Its findingswere nothing shOl'l of shocking. Thestale generated 362 million. bUI al awhopping cost of $554 million. (EarlGrinols. ··Bluff or Winning Hand?Riverboat Gambling and Regional"Employment and I1cmployl1'lent:'Illinois Business Redel\'. niversity ofIllinois at Urbana-Champaign. Spring199-1. Volume 51. limber 1. p. 8.)

Maryland. a state that docs not havecasino gambling. but does permit IOllery.horse racing. slot machines and bingo.did" two-year sludy of its gamblingoperations. The Slate found that gam-

"In addition to boasting about the huge boon tostate revenue that comes with gambling, the pro

moters of gambling make wildlyexaggerated promises of new, good-paying jobs..."

bling costs its taxpayers $1.5 billionannually in lost work productivity,unpaid taxes. bankruptcies, gamblingrelated criminal activity and other considerations. (Maryland Department ofHealth and Mental Hygiene, Alcohol andDrug Abuse Administration. "FinalReport: Task Force on GamblingAddiction in Maryland," 1990. p. 2.)

In his study conducted for the FordFoundation. Robert Goodman refersoften to the "cannibalization" of nOI1

gambling businesses, a term which heuses to describe the substantial declinesin both jobs and revenues experienced bymany nearby enterprises.

Money for gambling is usuallydiverted from people's discretionaryexpenditures. Not only are dollars diverted from other products and services. butgovernments often lose sales taxes whichwould have been spent on those productsand services. (Goodman, Legali:edGambling. p. 5/.)

In addition to boasting about thehuge boon to state revenue thal comeswith gambling. the promoters of gambling make wildly exaggerated promisesof new. good-paying jobs as a result ofgambling expansion. These promisessoon prove lO be empty. University ofIllinois economisl Earl Grinols made asludy of ten Illinois counties in whichcasinos were opened between 1990 and1993. He concluded that the net effecl ofgambling was lhal roughly one job waslost for each gambling job crented. (EarlGrinols, Testimony before a hearing ofthe U.S. House of RepresentativesCommittee on Small Business,September 21. 1994.)

In 1993. Bostoll Globe reportersMitchell Zuckoff and Doug Baileyreported that gambling operations generally offer "Iow-paid service jobs that provide no transferable skills." (Doug Baileyand Mitchell Zuckofr. ·'Cities WeighQuick Cash vs. Social Costs;· BOSlonGlobe, September 30. 1993. p. I.) Theyfound that casino promoters often innarelhe average wages of gambling workersby including lhe salaries of a few highlycompensated executives.

A recent Arkansas Law Revieu' article authored by John Kindt pointed outthat "Iegalized gambling is nol a 'painless lax.'" It goes on to state:" ... gambling is del1nitely not painless.especially to that 10'70 of the population

who will become problem economicgamblers (PEGS) or the 1.5% to 5% whowill become compulsive economic gamblers (CEGS). A guaranteed 10% ofpractically any U.S. population base willredirect proportionately large amounts ofconsumer dollars away from the preexisting economy and transform those dollars inlO gambling dollars once gamblingis legalized by the state government (i.e..the ·acceptability factor')'·. (John Kindt."Legalized Gambling Activities asSubsidized by Taxpayers:' Arkallsas um'

Reviell'. Volume 48. Number 4. 1995. p.896.)

Robert Goodman concludes in his

study what should be obvious to everyone. There is "a direct increase in thenumbers of people with pathologicalgambling problems as a result of increases in legalization:" (Goodman, Legali;.e(1Comb/iI/g. p. 9.) Howard Shaffer, headof the Harvard Medical Schoors Cemerfor Addiction Studies, estimates thatbetween 3.5 to 5% of those exposed togambling will develop il1lo pathologicalgamblers: the percentages are even higher for adolescents and young adults.(Stephen Simurda. ··When GamblingComes (Q Town," Columbia JournalismReview. January/February 1994. pp. 3638.)


As n w gambling venturesdrai potential investmentcapit I for other businesses,as ex'sting businesses lose

•more 0 e consumerdollars to gambling ventures,more businesses are beingpushed closer to decline andfailure...

The chair of the research committeefor lhe Nalional Council on ProblemGambling, Rachel Vol berg. has determined that the annual cost to the publicof the average palhological gambler isS 13,600. That figure is arrived at by considering 10Sl income due to gamblingbehavior. prosecution and incarcerationcosts for gambling-related crimes and"bailout costs" - money given by othersto meet financial needs crealed by gambling losses. (Goodman, LegalizedGambling. pp. 61-63.) Olher expenshave pUl the figure as high a S52.000.(John Kindt. "The Economic Impacls ofLegalized Gambling AClivilies:' DrakeLaw Review. volume 43. 1994.)

ESlimales of the extent of the pathological gambling problem suggesl lhal asmany as ten percent of American adultsmay be afilicted. ("Relying on Gamblingis Taking a Long Chance," USA Taday.April 6. 1994, p. 12A.) GamblersAnonymous estimate that there may beas many as 10 million compulsive gamblers in the country. That's an increasefrom 3 million in 1986. (Earl Eldridge,"Nation's Steamy Love Affair withGambling Still Growing," Gannett NewsService, May 19. 1994.)

By every indicia, the plight of thecompulsive gambler and the circumstances of the members of the gambler'sfamily are desperate indeed. One of fivepathological gamblers attempts suicide.The spouse of a male compulsive gambier i three times more likely to attemptsuicide than her counterpan in the general population. Stress-related physical illnesses in the spouse of a male compulsive gambler are eight times more common than in the general populalion. (The

ational Council on Problem andPalhological Gambling. Inc.,"The eedfor a alional Policy on Problem andPathological Gambling in America".1993)

Children of pathological gamblers doworse in school than their peers. aremore apt to have alcohol, drug. gamblingor eating disorder problems. and aremore likely to be depressed and attemptsuicide twice as often as their classmates. Two of three pmhological gamblers eventually commit illegal acts to

pay gambling debts. A study of gamblersin recovery found that 47% of them hadengaged in insurance fraud or thefts inwhich insurance companies had to pay


the victims.(The alionalCouncil onProblem andPathologicalGambling. Inc.)

The seriou~

problems associated withcompulsivegambling affectmore than thegamblers andtheir families:sociely has topay a staggeringamount as aresult of thatirresponsiblebehavior. HenryLesieur, whochairs thedepanment ofcriminal justiceat Illinois SlateUniversity, hasfound that compulsive gamblersengage in aneSlimaled SI.3billion in insurance-relatedfraud each year.(Henry Lesieur."CompulsiveGambling:'SnriPT)'.May/June 1992.p.45.)

In terms ofthe costs thatwould be associated with a twobillion dollarcasino proposed for the city of Chicago.Professor John Kindl calculated that lheincreased criminal justice costs for thecomplex would have exceeded one billion dollars. That sum would represent a40 to 50% increase in cost of the state'scriminal justice system. (John Kindt."Increased Crime and LegalizingGambling Operalions: The Impact on theSocio-Economics of Business andGovernment;' Criminal UlIV Bulletin,NovemberlDecember 1994, pp. 552554.)

Perhaps some focus ought to bebrought to bear on the lottery. In some

ways. lhe lottery can be described as themost insidious form of gambling. Twofeatures of the 10ltery justify thaIdescription. First. the regressivity of thelottery as a tax is such an established factthat even the 1110st clever economistshired by the lottery proponents can nOlconvincingly refute it.

Second. since the stnte operates thelottery with lhe knowledge of the 1011 ittakes on the economically disadvantaged.it is a case of the state acting as an economic predator of its weakest citizens.The studies that demonstrate the inefficiency and counterproductive nature ofthe lottery are numerous.

Thomas Jones and John Amalfitanoin their book America's Gamble highlighted a study of the equity of state lotteries that was conducted by theSociology Department of the Universityof Connecticut. 'The report concludedthaI the Connecticut lottery primarilyallracts poor. unemployed. and less educated players. The study recommendedthe discontinuance of the IOllery. claiming that it is a regressive means of raising state revenue:' (John Amalfitano andThomas Jones. America's Gamble:Public School Finance and SrateLotteries. Technomic Publishing Co..Inc.. Lancaster. 1994. p. 55.)

Two Olher imponant finding byJones and Amalfitano have to do with theinefficiency of the lottery and the poorrevenue source that it represents. Theystated, "As a fund-raising device. thestate lottery is also criticized as beingdeplorably inefficient.. .. Inefficiency intaxation suggests excess costs to the taxpayer and taxing jurisdiction."(Amalfitano and Jones, p. 61.) They discovered that on average 10llery statesspend 40 cents to raise one dollarthrough the lottery. "Viewed as a tax. lotteries are incredibly costly to administer." (Amalfitano and Jones. p. 62.)

But doesn't the louery provide desperately needed resources to education.making it attractive to states that lacksufficient assets to fund their obligationsto provide public education? That is theselling point that is invariably offered upby the louery proponents.

Lotteries do contribute millions toelementary and secondary education.This is indisputable. But the lotteryfunds are used in place of other funding.Some work suggests that funds for basicprograms are actually eroded overall as101lery revenues become the norm. Ifusing lotteries for education does notresult in significant fiscal enhancement.then lotteries produce no education benefits. This assumption has imponantimplications for education policy. Thegamble that loueries actually wouldimprove America"s public schools ortheir funding is a gamble we can surelysay is already lost. (Amalfitano andJones. pp. 149-150.)

A very thorough and extremely accurale research sludy was performed byMary Borg, Paul Mason and StephenShapiro. They compiled Iheir findings in

the book The Ecollomic COllset/uellces ofStale wfferies. The conclusion theyreached are not good news for lotteryproponents.

Borg. Mason and Shapiro found.among other things. that lhe 101lery is"not an equitable way of raising staterevenues:' (Mary Borg. Paul Mason andStephen Shapiro. The EconomicCOl/sequences ofState Lofferies. Praeger.New York, 1991. p. 32.) ..... there is consensus from most economists that earmarking lottery funds does not work.Most studies conclude that 101lery fundsonly supplant funds from the generalrevenue for their designated beneficiary:"(Borg. Mason and Shapiro. p. 14.) Theywent on to say:

As a result in all regards. lotterieshave likely increased the inefficiency ofstate government revenues and haveprobably done lhe same to expenditurepolicies indirectly. Therefore, even whileignoring the equity implications of statelotteries. which are also quite negative.state lotteries are a bad deal for stategovernments and their constituencies.(Borg, Mason, and Shapiro. p. 48.)

The authors sum up their findingswith this statement." ... the lotteries havedone much more to hann education inthe states lhat employ them lhan theyhave done to help:' (Borg, Mason andShapiro, p. 47.) Knowing that. whywould any state be giving any kind ofserious consideration to instituting a lottery?

Robert Goodman makes some veryastule statements and asks some pene·trating questions in the preface to hisbook, The Lllck Bllsilless. I think it fitting to close with lhese thoughts andquestions - questions that weArkansans will soon have to answer. Itrust we will have the good sense toexamine this issue fully before castingour votes next November. ProfessorGoodman proposes the following:

As new gambling ventures drainpotential investment capital for Olherbusinesses. as existing businesses losemore of their consumer dollars to gambling ventures. more businesses arebeing pUshed closer to decline and failure. more workers are being laid off. andenormous public and private costs areincurred to deal with a growing sector ofthe population afnicted with seriousgambling problems.... do we rcally want

our governments so dependent on gambling that they are forced aClively to promote an activity that takes disproponionately from those who can afford it least.does great damage to existingeconomies. and can be highly addictive?If governments are going into business.couldn't they find alternatives that createless trouble and offer more real longterm economic and social value?(Goodman. Lucky pp. xiii -xiv. )

The case against casino and lotterygambling is solid, compelling and persuasive. Arkansas can do better thanwhat the ganlbling promoters have t.o

offer. The Natural State should remainjust that.

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Timing is EverythingContinued From Page 13praclice.28 problems continue to ari e. Infact. some aHomeys probably agree withJustice Darrell Hickman's conclusion"that it is hazardous for a lawyer to fileany motion for postjudgmenl relief:'29For example. some confusion apparentlyexists as 10 the applicmion of Rule 4(c)when a posttrial motion is filed by onebut not all of the defendants. This is sodespite the fact that the rule "clearly provides that when allY party files a specifiedposllrial motion. the time for appeal foral/ parries runs from the entry of theorder disposing of the motion or from thedeemed-denied date:'30

AnoLher question is the effect of posttrial motions not mentioned in Rule 4(b).What. for instance. happens to the timefrume for the notice of appeal when amotion for remittitur or a motion for stayis filed? By its terms. Rule 4(c) applieswhen "a timely motion listed in section(b) of this rule is filed in the trial court ... :'Not surprisingly. the Arkansas SupremeCourt has held that motions "not contemplated" by Rule 4(b) do noL cxtend theperiod for filing Lhc notice of appcal 31

On a related point. the court has concluded. quite reasonably. that an amendmentto a posttrial motion covered by the rulerelates b~lck to the date on which the original motion was filed and docs not commence a new thiny-day period for thetrial judge to act.32

A different problem OCCllr~ when theposttrial motion is made prior to the entryof judgment. That was the situation inFinf Pyramid Life Insurance Co. \'.Slollo33 After the jury returned its verdict but before a judgment was entered.Fi"t Pyramid filed motions for JNOVand a new trial. Thc trial court entered afinal judgment in accordancc with theverdict about two weeks later. having previously held a hearing on the motions. Onthe day following entry of the judgment.First Pyramid filed a not icc of appeal.Stoltz claimed that the notice was premature: because the trial judge had neverentered a formal order disposing of theposttrial motions. he argued. they werenot "deemed denied" until well after thenotice had been filed. The supreme courtdisagreed. holding that the final judgmentconsistelll with the jury verdict necessarily renectcd the trial judges dcnial ofFirst Pyramid's mol ions. 34

3-1 The Arkansas Lawyer Spring 1996

On occasion. lawyers and trial judgesseem to forget the significance of Rule4(c)"s thirty-day deadline for action on aposttrial mOlion. The burden falls on theattorney to obtain a ruling on his or hermotion within this period.35 and a belateddecision is irrelevanl insofar as the timingof the notice of appeal is concemed36

Indeed, the supreme coun has made plainthat the trial coun has no jurisdiction toact on the motion beyond the thirty-dayperiod37

The notice of appeal nlso has animpact on the filing of the record onappeal. Under Ark. R. App. P. - Civ. Rule5(0). the record must be filed with theclerk of the supreme coun and court ofappeals "within 90 days from the filing ofthe first notice of appeal." unless anextension is granted by the trial coun.38

Rule 5(b) provides that the time may notbe extended "more than seven (7) monthsfrom thc date of the entry of the judgment. decree or order. or from the date onwhich a timely postjudgment motionunder Rule 4(b) is deemed LO have beendisposed of under Rule 4(c). whichever islater:'39

These provisions seem relativelystraightforward. except for the fact thatRule 5(b) apparently establishes as theswning point the date on which a posttrial motion is deemed denied. even if thetrial coun actually rules on it in a timelyfushiol1.~O However. application of therule is not so clear in a case with multipledefendants who file posltrial motions. InPennington v. J-ItlITeSf foods. l"c..41 thesupreme coun divided sharply on theissue.

The nine defendants in that casesought to appeal a judgment entered onOctober 25, 1994. Three filed postlrialmotions covered by Rule 4(b) on

ovember 4. and the others followed suiton November 7. The trial court entered anorder on December 7 denying allmotions. and timely notices of appealwere filed. On February 17. 1995. all ninedefendants jointly moved for a sevenmonth extension pursuant to Rule 5(b).asking that the deadline for tendering therecord be pusbed back to July 7. The trialcourt granted the motion but did not specify a date. and the record was subsequently filed on July 7. In a motion to dismissLhe appeal as to the three defendants whofilcd posltrial motions 011 November 4,Lhe plaintiff-appellee argued LhaL (I) those

motions were deemed denied pursuant toRule 4(c) on Dccember 4. and (2) the trialcoun's extension for filing the recordcould not. under Rule 5(b). extend pastJuly 5.

The supreme coun agreed in a~curiam upinion joined by four justices.Rule 4(c) deals specifically with the posttrial motions of Illultiple parties. the courtsaid. and was intended to eliminate confusion over the time frame for the noticeof appeal when multiple panies have filedposllrial motions. Rule 5(b). however, issilent on thc mailer and need not be construed in the same fashion because of"the discretion each party has in designating the record on appeal:' Accordingly.lhe court read Rule 5(b) literally andgranted the appellees motion.42

C. Rule 54(b)Another twist in cases with multiple

parties involves Rule 54(b) of theArkansas Rules of Civil Procedure. Assuggested previously. the time for filingthe notice of appeal may vary dependingon the posture of thc casco

When the trial court certifies a claimfor immediate review under Rule 54(b).the lime for filing the nOlice of appealshould. in general. begin to run upon theentry of final judgment pursuant to thecertification.~3 If the judgmcnt is enteredfirst. however. the relevant date is apparently the filing of the certification. for thcjudgment is not appealable ulltilthe trialcourt so cenifies.+I

While these questions have not beensquarely answered by thc supreme coun.it is clear that the trial judge cannot enterthe necessary Rule 54(b) certification.mlllc pro tunc. after the record has beendockeLed in the appellate cOllrt45

Suppose, however, thm the certificationoccurs before the record is lodged butafter the nOlice of appeal has been filed.The general rule. of course. is that anotice of appeal filed prior to entry of afinal judgment is ineffective.46 and finality in a Rule 54(b) case depends upon certification.

Nonetheless. the supreme coun hasheld that a premature not icc of appeal iseffeclive in this situation and. accordingly. that a new notice after certification is110t necessary. -17 This approach is consistenL with that taken by the fedcralcourts. which have held thm certificationvalidates a premature notice of appeal.48

Continued

III. ConclusionMy friend was righl.

Timing is everything. especially with regard 10 appellatepractice in Arkansas.NOTES

I. Eddillg~ I'. Lippe. 3Q.t Ark. 309.802 S. W.2d 139 ( 1991): Hawki/ls I'.

SUIte Farm Fire & Cl/S/lllll)" Co.. 302Ark. 582. 792 S.W2d 307"( 1990):Burris I'. Burris. 278 Ark. 106. 643S.W.2d 570 (1982); LaRue \\ ulRue.268 Mk. 86. 593 SW2d 185 (1980).

2. E.g .. Robinson v. O'Bryan. 320Ark. 95. 894 S.\V.2d 921 (1995):Hawkins v. Stale Farm Fire &Casualty Co.. 302 Ark. 582. 792S. w.2d 307 (1990).

3. s(~(! gl'fU'rlilly Kelly 1'. Kelly. 310Ark. 244. 835 S.w.2d 869 (1992).Ark. R. ApI'. P. - Gv. 4(f). as amended in 1995. provides thaI "lal noticeof appeal fi led on the same day as thejudgmem. decree. or order appealedfrom shall be effective:' See III reNotices ojAppelll flied beforeJlldgl/ll'llts. 321 Ark. 699. 900 S.W2d560 (1995). Prior 10 this amendment.a notice was ineffective if filed on thesame day as. bUi only minutes before.entry of the order. E.g.. Ll/lvre/lceBrothers. Inc. I'. R.J. "Bob" JonesE.w:m'olillg Cotllracfor. IlIc.. 318 Ark.328.884 S.W.2d 620 (1994).

4. Kelly I'. Kelly, 310 Ark. 244. 245.835 S.W.2d 869. 870 (1992). To befinaL an order "must be of such anature a~ to not only decide the rightsof the partic~. but to put the court'sdirective into execution. ending thelitigation or a separable pan of it:' Id.a! 245. 835 S.W.2d at 871. Under Ark.R. Civ. P. 54(a). the term "judgment"includes "a decree and any order fromwhich an appcallies:'

5. AllJerlY I'. Widema". 312 Ark. 434.850 S.\V.2d 3[4 (1993): Mueller I'.Killam. 295 Ark. 270.748 S.W2d141 (1988).

6. Ark. R. App. P- C;v. 2(a)(3). (4).(8) & (9)

7. As olle court has observed. the ruleis nOt so much an exception as it is"an adjunct to the requirement offinality." RePass I'. Vreeland. 357 F.1d801. 804 (3d Gr. 1965).

8. Maroney I'. CilY ofMah'em. 317Ark. 177. 181. 876 S. W.2d 585. 587(1994); lVifliamwm I'. Miumer. 316Ark. 192. 194.871 S.W.2d 396. 398(1994). The record musl reneci thedisposition of all claims and parties.£.g. SOllrh COllllty. Illc. I'. FirstWestern L/}{III Co.. 311 Ark. 501. 845S.W.2d 3 (1993).

9. Bam!wfl \'. Cil)' of !:"ayeuel'il/e.316 Ark. 742. 744. 875 S. W.2d 79. 81(1994).

10. McCmn I'. Johllso1l. 196 Ark.231. 755 S.\V.2d 566 (1988).II. This tern, does not appear in Rule

54(b) but is frequently u~ed. £.g,f)rigger.f I'. Locke. 323 Ark. 63. 66.913 S.W.2d 269. 270 (1996): Reel'e!t'I~ flillkle. 321 f\rk. 28. 30. 899S. W.2d 841. 8..J2 (1995): Cortese I'.

Atlal/lie Richfield. 317 Ark. 207. 209.876 SW2d 581. 582 (1994).

12. Mllrry I'. Stale Farm MutllalAI/ro/llobi/~ "1.\. Co.. 291 Ark. 445.725 S.\V.2d 571 (1987): Tulia I'.

Arkansas BIlle Cm,\',\' & Blue Shield.283 Mk. 278. 675 S.W.2d 369 (1984).

13. Ark. R. Civ. P. 54(b). TheArkansas Supremc Court has cmpha+sized Ihm "strict compliance" withthese requirement50 i~ necessary. St.Palll Fire & Marilll' IllS. CO. I'. Fir,~r

Commercial Bank. 304 Ark. 298. 300.801 S.w.2d 652. 653 (1991).

14. £.g.. CilyofMarilllllla 1'.

Arkansas Mllnicip€11 Leaglle. 289 Ark.473.712 SW2d 305 (1986).

15. Kefly I'. Kelly. 3 [0 Ark. 2-1-4. 835S. W.2d 869 (1992).

16. £.g.. Bi,,"s I~ Heck. 322 Ark.277.908 S.W.2d 328 (1995) (noticeof appeal. while reproduced in anappendix to appellant's brief. did nOi

appear in the record. and appellant didnOt liIe a motion to supplement therecord to include it): £dditf8S \'. Lippe.304 Mk. 309. 802 S.W.2d 139 (1991)(nothing in the record indicmed thatthe trial court ever ruled on appel+lant's motion for new trial).

[7. A notice IiIcd in the wrong court.even if timely. is not sufficient RossiI'. Rossi. 319 Ark. 373. 892 S.W.2d246 (1995). The contents of the noticearc sct out in Rule 3(e): the name ofthe appellant: the judgment. decree. ororder being appealed: the contenLS ofthe record on appeal: and a statemcntthm the appellant has ordered a transcript. While substanti..l compliancewith this provision is sufficient. anappeal will be dismissed if its requirc+ments are complelely ignored.Johl/so/l I'. Ca"l,enrer. 290 Ark. 255.718 S.\V.2d 434 (1986); Hilt/SOli 1'.

HlIllsolI. 277 Ark. [83.641 S.\V.2d I(1983). A proposed amendment toRule 3(e) would ft.--quire a statementthat the appellant ha~ "made anyfinancial arrangcmcnts required by thecourt reporter" ror preparation or thet.ranscript. puriluant 10 Ark. Code Ann.§ 16-13-510(c)(RepL (994). 1111'1.'

Recomme"dflt;otl.f of rhe A rklmslIsSf/preme COllrt Commiuee 0" Cil'ifPractice. 322 Ark. No.6. appendix.908 S.W2d No.3. LXXVIII(November [3. 1995).

18. This paragraph also state.. a noticeof cross-appeal lllUSt generally befiled within ten days after receipt ofthe notice of ;Ippeal. However, thecross-appellant h:1S at least thirty daysfrom the entry of the judgment.dl.:cree. or order in which to acLConfusion lllay arise in detemliningwhether a litigant should tile an origi+nal appeal or a cross+appeal. e.g..JOhllSOIl I'. Carlu'lIlet. 290 Ark. 255.718 S.W2d 434 (1986). or whether anappellee mu<;{ Cfos..-appeal tQ rai~e aparticular issue in the appellate court.

£.g.. Moose v. Gregory, 267 Ark. 86.590 S.W.2d 662 (1979).

19. Effecti\'eness is governed by Ark.R. Civ P. 58. under which a judgmentor decree is not effective unless it is asepar.l.te document "cntered as provid+cd in Administrative Order No.2:' Asused in the order. the term "entered·'refers to the clerk's nOlation of thejudgment or decree in the docketbook. Consequently. the date of rendi+tion i<; immaterial. S,mulridge I'.

Standridge. 298 Ark. 494. 769 S.W.2d12; Morrell I'. Morrell. 48 Ark. App.5..J. 889 S.W2d 772 (199..J). For pur,poses of taking an appeal. however.Rule 4(e) defines "entercd" to mean"filed with the clerk:' Unfortunately.the RCl>oner's Notes accompanyingRule 58 muddy Ihe water somewhat.According to the notes. "for appealpurposes, the date of entry or filing oflhe judgment or decree is the effectivedale. as opposed to the date of rendition." On at least one occasion. theArkans.15 Supreme Court has citedthis statement in conncction with thetiming of a notice of appeal. See Kellyv. Kelly. 310 Ark. 244. 835 S. W.2d869 (1992).

20. Schaefer I'. Me.:Chee, 284 Ark.370.681 S.W.2d 353 (1984). Accord.Arkllltsa.f Dep't of HlllnlU/ Sen'ices I'.flrm/y. :316Ark. 119.871 S.\V.2d352 (1994): HawkillS 1'. Stale Fan71Fire & Ca.walIY CQ.. 302 Ark. 582.792 S. W.2d 307 (1990).

21. Arklll/saJ SWle HighwayComm'" I'. Phifrile f){'I·t'lopmellt, !IIC..

30 Ark. App. 88. 782 S.W2d 595([990). Even if the appellant failed toreceive notice of the judgment. thetrial court cannot act to cxtend thetime when more Ihan sixty days havcpassed since the notice of appeal wasdue. JOlles-Blair CO. I'. Hammett. 51Ark. App. 112.911 S.W2d 263(1995).

22. See Reporter's Notes to Ark. R.Civ. P.58.

23. Addition to Reporter's NOles.1986 amendment to Ark. R. App. P.Civ 4. TI,c federal rules comain a similar provision. added in 1991. SeeFed. R. App. P. 4(a)(6). As an additional safeguard. the clerks or federaldistrict courts arc required to prornpt+Iy mail copies of judgments andorders to all partie~. Set' Fed. R. Civ.P. 77(d). Strong objections from thest:lle c1erl..·s association doomcd apropo"..1to add such :t requirement tothe Arkansas rules.

24. See Ark. R. Civ. P. 50(b). 52(b)& 59.

25. For u case involving not one buttwo prcmature notices..Iee Glol'er I'.Ltmgford. 49 Ark. ApI'. 30. 894S.W.2d 959 (1995).

26. Kimble" Crt/y. 40 Ark. App.196.842 W2d 473 (1992). af!,d.313 Ark. 373. 853 S.W.2d 890.Accord. Glol'er I'. umgford. 49 Ark.App. 30. 894 S.W.2d 959 (1995).

27. See Ark. R. App. P.- Civ 4(f). dis+

cussed in nOie 3. supra. AlthoughRule 4(1) mentions only a notice filedon Ihe same day as '"Ihe judgment.decree. or order appealed from:' itwas clearly intended to apply as wellwhen the notice is filed carlier in Ihe"'ame day as an order disposing or aposttrial motion. See Coun'sComments to Ark. R. App. P.-Civ.4(f) (this provision "overrules"Lawrence IJro.f" lllc. I: R.J. "Bob"Jones Excal'{lting Co1ltractor. Inc..318 Ark. 328. 884 S.W.2d 620 (1994).which held ineffective a notice ofappeal filed on the same day as. butprior in lime to. entry of the Irialjudge's order denying a mOl ion rorJNOV). However. Rule 4(1) docs notaddress the situation in which thenotice of appeal is filed on the sameday that a posurial mOl ion is "deemeddenied:' In contrast, the criminalappellate rules expressly provide thata notice of uppeal is effective if "filedon the same day lhat the judgmel11 ororder appealed from is eillered or onthe day that a posnrial motion isdeemed denied...:' Ark. R. App. P.Crim 3(b). Accordingly, the Kimblecase cilcd in note 26 presumablyremains good law in civil cases.

28. See Kelly I'. Kelly. 310 Ark. 244.835 S.W.2d 869 (1992): Blish I'. Blish.306 Ark. 513. 816 S.\V.2d 590 (1991):Phillips I'. Jacobs. 305 Ark. 365. 807S.W2d 923 (1991). As the supremecourt has pointcd out. cases applyingthe fonner version of Ihe rule may bemisleading. See Blish I~ !Jush. SlIpra:Knight I'. AlIslllle !IIS. CO.. 300 Ark.203.779 SW2d 138 (1989) (Punle.J.. concurring).

29. Poole 1'. Poole. 298 Ark. 550.551. 768 S. W.2d 544. 545 (1989)(Hickman. J.. concurring). A lawyerwho docs so, Justice Hickmanwarned. will enter a "maze" of rulesand dccisions that qualify for the"Scrbonian Bog" award. Id.

30. Cmig I'. TtIJlor. 323 Ark. 363,366.915 SW2d 257. 258 (1996)(emphasis original). The plaintiff inCJ:gjg won a jury verdict against onedefendant after the other had successfully movcd for summary judgment.Shortly after a judgment was enteredin accordance wilh the \erdict. theplaintiff filed a notice of appcaltoattack the summary judgment. Theappellee moved to dismiss the appealon the ground that the notice was pre+mature. having been filed prior to theother defendant's motion for JNOVand the trial court's denial of themotion. The supreme coun W:1S clearly prepared to :Igree but pointcd OUI

that the record did not include themotion for JNOV and the order. ifany. disposing of it. "On the recordbefore us:' the court said. "appellant'snotice of appeal was filed within thirty days of the final judgmcnt and wastherefore timely." Id.

31. Pel/nil/gtoll" Han'eSI Foo<ls,IIIC., 322 Ark. 820. 823, 913 S.\V.2d758.759 (1995) (motion for remittitur). Acconl, McCraw,'. McCraw. 46Ark. App. 236. 878 S.\V.2d 3 (1994)Continued on Page 40Timing is Everything End Notes


Writing a Losing BriefContinued from Page II

uncomfortable. With very little effort, youcan achieve the same effect on p3per andin the reader's brain. Put text into long,long paragraphs. There's nothing likeIllrning a page and seeing a mass ofwords, unbroken by indentation or whitespace. But don't stop there. Fog your sentences. too. Use of the passive voice andinsertion of strings of long prepositionalphrases, coupled with the particularlyeffective technique of using many, manywords 10 separate the subject of the sentence from its verb, are among the mostsuccessful methods employed by the masters of fog.

So there you have it, ten proven waysto keep your brief from being read.Choose from a panoply of technical violalions of the court fules. Employ clumsy,wooden writing. Dull the attention ofappellate readers. who will find it far easier La put down the brief than to scour itfor some redeeming value. Do your partto accelerate the appellate process. Writethe losing brief.

Coleen M. Barger is aI/ instructor at theUnil'ersily ofArkansas at Little RockSchool of Lt,W. where she teachesjirstyear legal writing and lipper-level appellate advocacy. and in her spare lime.coaches moot court teams.

ENDNOTESI. I couldn't find a case that s:lid thi!>. hUI for ~nl1l'" rCi!

son I think it's true. Write a leller to the Arkm/sll.\"ulII'yer if you find an authority thllt S3yS otherwise.

2. Here arc just :I few examples: Andrew L. Frey & RoyT. Englert. Jr.. How /0 Write II Good AppelfClfI! Brit,!L1TIG .. Winter 1994. at 6: Girvan Peck. WRITINGPERSUASIVE BRIEFS (1984): Robert Barr Smith.PersullsiOIl on Appeal, 41 OKLA. L. REV. 463 (1988).

3. See, ",g.. Ark. R. S. 0. 4-1(d): "Non-compliance.Briefs nOl in compliance with this Rule shall nOI beaccepted by the Clerk:' Or try Ihis one. Ark. R. S. Cl.4-2(c). which says it a lillie differently: "NonCompliance. Briefs not in compliance with the formatrequired by this Rule shall not be accepted for filing bythe Clerk:'

4. For Arkan~..s rules governing the length of the argument. see Ark. S. Cl. R. 4-I(b) (civil) and 4-3(e) (criminal). For fedcr:tl appeals. see Fed. R. App. P.28(8).

5. Su Ark. R. S. Cl. 4-2(a)(6).

6. See Ark. R. S. Ct. 4-I(a): "The margin [ltthe top.allier edge. and bottom of each page shall not be lessthan one inch ... :' The feds make you subtr:tct fractions10 figure out the 1113rgins: "[Briefs) shall be bound involumes hllving pages not exceeding 8 1/2 by II inchesand typed mailer not exceeding 6 1/2 by 9 1/2 inches... :' Fed. R. App. P. 32(a).


7. See JOlles v. 101l,.S, 320 Ark. 157, 896 S. W.2d 431(1995). After deciding lones, the Arkansas SupremeCourt amended Rule 4- l(a) to read: 'The style of printshall be either mono-spaced. measured in characters l)Crinch. not 10 exceed 10 chamctcrs per inch. or producedin a proponional serif font, measured in point sizes. nOito be less than 12 poinls..

8. See Hellry I'. Eberhard. 309 Ark. :nn. R12 S W 2d467 (1992) (striking all p3ges in the brief that containedlanguage offensive and disrespectfUl to the trial judge).

9. See McLemore \'. Elliott. 272 Ark, 306. 614 S.W.2d226 (1981) (striking brief in its entirety).

10. Your opponent's brief will probably respond thllt insuch inSlances. the stand3rd of review is abuse of discretion. but this just means thai he or shc had to put inSOllle research time to find out whal the heck Ihe correct

standard was. The coun gCt.. the right information. andyou gel to avoid a trip to thc library.

II. The Federal Rules of Appellate Procedure suggestthat you use namcs or descriptive nouns in~tcad of thepotentially confusing Icnns "appellant" and "appellee:'See Fed. R. App. P. 28(e). But don't give in.

12. The quot3tion comeo: from the Commenl to Rule 3.3of the Arkansas Model Rules of Professional Conduct.

13. I have absolutely no authority for the foregoing statistic, but you get the idea.

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NonPartisan Judicial ElectionsContinued from Page I

ill name ollly. that panies still supponcertain candidates over others on a formal endorsement or informal endorsement basis. True nonpartisan electionsmay exacerbate the campaign financingproblems of the candidates because contributions may be more difficult toobtain and campaign costs higherbecause of the greater difficulty candidates will have in getting their messageacross. Some contend that the electorateis actually more in the dark about nonpartisan judicial elections than in partisan ones. At least in partisan electionsthe electorate has some reference pointsfor the electorate such as party identification and its normal philosophicalmeanings. In addition. nonpartisan elections draw lower voter interest and participation. voter decisions are made onthe bases of incumbency or ballot labels.such as judge. or district allomey.5

These resuhs are hardly all endorsement of the nonpartisan election system.It seems to me that Arkansas would bebetter off retaining its current systemthan to go to nonpartisan elections. It isnot the type of reform that is needed andI fear that if adopted. the legislature willthink it has properly reformed the system.6

I have heard three general critici ms ofmerit seleClion. I will brieny addressthem. First. merit selection substitutesone political system for another. Thiscomplaint goes both too far and too little. Indeed. in a democratically basedrepublic. all systems for selecting ourrepresentatives, including members ofexecutive. legislative and judicialbranches. involve some element of politics. Unless we selected these personsby some ulliversallollery. politics willaffect the selection is some way orother. My salient point here is that theevils of the "politics" of merit selectionplans pale in significance when compared to the evils of the "politics" ofcontested elections. Isolated examples ofabuse (and I believe the record provesthat they have been isolated) of a meritselection plan have been elevated bysome to condemn a system that hasworked efficiently. fairly and effectivelyin the overwhelming vast majority ofsituations.

The second objection expressed to meby severnl current and want-to-be judgesis that they resist merit selection because

"they would not be able to becomejudge under such a system:' I don'tunderstand this. If these people are saying they are not qualified to be a judgethen they should not be one even underan election system. In practice. however.merit selection will not only cull outincompetent and unethical lawyers itwill encourage a greater number oflawyers to seek judicial office. Theseatlributes are hardly valid criticisms of amerit selection system.

learly an inference of personalincompetence is not what these judgesand lawyers mean. None of the currentor want-to-be judges mean they are notcompetent or lack merit. This leaves theinference. or more accurately the perception. that merit selection has anunwritten criteria which excludes a vastnumber of lawyers from consideration.My observation of the experience inWyoming is that this is not true. Meritselection committees decisions arebased on ability and performance; allcharacteristics that the nay-sayers apparently possess. The only difference is thatthe field of potential lawyers is biggerand the competition greatcr. Rcmember,also. the election system clearlyexcludes lawyers who are patently qualified to be judge but who do not want togo through economic debilitating andethically and personally embarrassingelection processes.

A merit selection system may andshould discourage attorneys from participating who do not have a good professional reputation or who have had ethical difficulties. Unfortunately. electionsystems have sometimes had the opposite result. Candidates having undistinguished careers and even ethical committee reprimands have been electedbecause of the electorate's interests innonqualification criteria.

The third argument against meritselection is that a contested election system is better because such elections areopen. public events. incorporate ourrepublican tradition. produce a voterselected representative and accountablejudiciary. provide a means to educatethe public about judicial candidates. andas elected officials. the judges possessgreater political stature and credibility.Unfonunately. the election system doesnot deliver what it promises. Underevery circumstance that can arise, thecontested election systems for judicialselection and retention has disadvantages7

A major problem of a nonpartisancontested election system is the electionprocess itself. Campaigns take time.money and personnel. The monetarycosts of the election systems are toohigh. unnecessary. ethically corruptibleand impose serious adverse harm on theentire judicial system. The monetarycosts to the candidate in an election system is pure economic dead weight.Other than the financial support provided to printers. the postal services. theadvertising media. and campaign workers, if any are paid, the pay back to thejudicial system for the expenditures isnil or even results in a negative balance.Whereas contributions to the campaignof legislative and executive candidatesmay result in the contributor gaining asupponer in the panicular office if thatcandidate wins. support for a winningjudicial candidate must ethically beignored by the judge or a serious connict of interest may arise either in particular litigation or by a desired rule oflaw or procedure.

Lawyers and the bar should continuethe struggle to gain merit selection forthe Arkansas judiciary, Being divertedby a proposal to merely change 10 aninferior system than we currently have isnot reform and needs to be resisted.

Endnotes

I Su 1995 Ark. Acts 901 (Setting up Slaleprimary eleclions) and 1995 Ark. Acts 1211(Funding primary elections with stale funds).These acls may remove or at least reduce someof the opposition to judicial seleclion refonn.See Lawrence H. A\-erill. Obsen'mimls 011 tire\~'omi"g £:rperiellCl' witlr Merit Selection ofJudge:.: A ModelforArkllll.ms. 17 UALR L.J.281. 325 (1995) (Footnotes omitted).2 See Averill. supra nOle I (Footnotcs omitted).3./d .4. Meril ~elcclion. generally. refcr.!> to "A permanent nonpanisnn commission of lawycrs andnon lawyers that inilially and independentlygenerales. screens and ~ublllits a list of judicialnominees to an official \\ ho i~ legally or volunlarily bound to make a final ~Iection from IheIi,.... ALLA 'ASHMAN & JAMES J. ALFlNI. THE KEY TO JUDtCIAL MERIT SELECTtON: THE NDMI ATt 'G PROCESS t2(191~). Excluded from this definition are systems that use a strict appoinlmem or popularcontesled elections as the selection s)slcm. IdThe "merit'· part of Ihe namc refers to the supposition thai the cOlllmission will select itsnominees on the basis of the members' JX:rceptions of good qualities for judges includingaspech of character. experience. and abililY.5.ld. at 322~23 (FoolnOlcs omiued).6 See id.1.ld. at 297·301 (Footnotes omitted).


Continued from Page 35

(molion for stay pending appeal); PhillipsConstruction Co. v. Cook. 34 Ark. App. 224, 808S.W.2d 792 (1991) (motion under Rule 60{b) to setaside award of anomey's fees). See also £"os v.Slate. 313 Ark. 683, 858 S.W.2d 72 (1993) (motionto set aside judgment in criminal case is not analo·gous to any of the motions listed in Rule 4(b».Compare Scherz v. M/lIldaca Inveslmem Corp.. 318Ark. 595, 886 S.W.2d 631 (1994) (motion to vacatecouched in terms of a mmion for new trial will betreated as such); Guthrie l'. Twin City Bank, 51Ark. App. 201. 913 S.\V.2d 792 (1995) (motion tosel aside summary judgment characterized as amotion for new trial).

32, Williams v, Hudson, 320 Ark. 635, 898S.W.2d 465 (1995).

33. 308 Ark. 260. 822 S.IV.2d 389 (1992).

34. The coun did note, however. that the trial judge"should have entered a formal order" denying themotions. 308 Ark. aI 261, 822 S.\V.2d at 390.

35. Eddings v. Lippe. 304 Ark. 309, 802 S.W,2d139 (1991).

36. An illustrative case is Reis v. Yt'l1es, 313 Ark.300. 854 S.W,2d 335 (1993). Judgment on a juryverdici was entered for the plaintiff, who, dissatisfied with the amount of damages, filed a timelymotion for a new trial on June 29. 1992. That same day.the circuit judge mailed the panies a notice thut a hearingwould be held on September 8. The judge heard themotion as scheduled and ten days Ialer entered an ordergranting it. 1lle defendant appealed, and the supreme counreversed. Under Rule 4(c), !.he motion had been "deemeddenied" on July 29, and under Rule 4(d) the period for filing a notice of appeal had expired on August 28, thirtydays Ialer.

37. The leading case is Phillips I'. Jacobs. 305 Ark. 365,807 S.W.2d 923 (1991). Accord, Reis I'. flues. 313 Ark.300.854 S.W.2d 335 (1993): Arkansas Slare HighwayComm'n I'. Ayres, 3tt Ark. 212. 842 S.W.2d 853 (1992):Wal-Mars Stores. Inc. II. Isely, 308 Ark. 342. 823 S.W.2d902 (1992). The thiny-day limit set out in Rule 4(c)applies only to motions listed in Rule 4(b) and does notapply (0 a request under Ark. R. Civ. P. 6O(a) to correci an

order. Upton I~ estate of UplOlI. 308 Ark. 677, 828 S.W.2d827 (1992).

38. See. e.g.. McCraw I'. McCraw. 46 Ark. App. 236. 878S.W.2d 3 (1994) (record was nOllendered until 116 daysafter appellant's notice of appeal and did not indicate that anextension had been obtained). The trial court's order grunting an eJltension of time must be entered prior to !.he expiration of the otherwise applicable period for filing the record.See, e.". Willis ,~ Sw/c, 323 Ark. 41, 912 S.W.2d 430 (1996)(extension order signed on the last day of the 9O-day periodwas ineffective. since it was not actually entered until thefollowing day).

39. Sl!e e.g.. Sw.IOI.d EllIerprises, Inc. 1'. Andrews. 314Ark. 229, 861 S.W.2d 311 (1993) (clerk properly refused toaccept record tendered tWO weeks after expir.ttion of theseven month period measured from date that motion for newtrial was deemed denied). To obtain an extension longerthan seven months. the appellant must file a panial record inthe appellate coun and show a compelling reason. such asunavoidable casually, why more lime should be granted.Morris II. Stroud. 317 Ark. 628. 883 S.W.2d [(1994): In reESI(l/e of \Vilkinson. 311 Ark. 311, 843 S.W.2d 316 (1992).

40. See Poole I( Poole, 298 Ark. 550, 768 S.W.2d 544(1989).

41. 322 Ark. 820. 913 S.W.2d 758 (1995).

42. Id. at 822-23. 913 S.W.2d al 759-60. Chief JusliceBrodley Jesson. wriling for !.he three dissenters. argued thatin this situation the deadline for filing the record "should bethe latest date it is due for anyone appellant, rather than theearliest:' Such an approach. he added. would be consi~tent

with !.he fact th,1t "there is only one record in a case.... nota separ.tte record for each appellant:' /(/. at 824. 913 S.W.2dat 760.

43. This is the rule in the feder.tl courts. £.g., Pagl' I'.

Preiss"" 585 F.2d 336. 338 (81h Cir. 1978). Although thereare apparently no Arkansas cases directly on point, thisresult is clearly consiSlenl with Rule 4(0).

44. See City ofMarianna I'. Arkansas MlIIlicipal Le08/f~,289 Ark. 473. 474A. 712 S.W.2d 305, 306 (1986) (absenlcertification complying with Rule 54(bl. "no final judgmenthas been entered and no appeal may be taken at this stage ofthe proceeding"). In Corr/ell I( NadeOiI. 321 Ark. 300, 900S.\V.2d 556 (1995), the trial coun's Rule 54(b) certificationwos made more !.han a year afler!.he entry of summary judgment in favor of one of the two defendants. An appe:11 Wl\~

taken after the certificalion. long afler expirulion of the thirty-day period for filing the notice a§ to the summary judgment. The supreme coun held that it had jurisdiction andaccepted the appeal. Id. at 302. 900 S. W.2d at 558.However, two other cases suggest, without squarely holding.th3lthe relcVlIm date for notice of appeal purposes is theentry ofJudgment. even if the certification comes later. ~Albmy I'. Wideman. 312 Ark. 434, 850 S.W.2d 314 (1993):Tillio I'. Arkansas Blue Cross & BIlle Shidd. Inc.. 283 Ark.278.675 S.W.2d 369 (1984).

45. Mllrry I'. SIlI/e Farm MUI/wl AWomobile Ins. Co.. 291Ark. 445. 725 S.W.2d 571 (1987). This result follows fromthe gencmJ rule that the trial coun loses jurisdiclion whenthe record is filed. £orl~ I'. Bennett. 289 Ark. 448. 711S.W,2d 829 (1986): Andrews I'. ulIIener. 229 Ark. 894. 318S.W.2d 805 (1958). Although there is an exception for "matters that are collateral or supplernenlalto the trial court'sjudgment," Alexander I'. fjrst National Btmk. 278 Ark. 406,408.646 S.W.2d 684. 686 (1983), a Rule 54(b) certificationdoes nOt qualify in light of Mllrr)'.

46. Kelly I', Kelly. 310 Ark. 244. 835 S.W.2d 869 (1992).

47. Albert)' \'. iV/deman, 312 Ark. 434. 436, 850 SW.2d314,315 (1993).

48. £.g.. Martillez I'. Arrow Truck Sales. fnc., 865 F.2d 160(8th Cir. 1988): mdell FillGl.cilll Corp. 1'. Palo TIre Sen/iel',Inc.. 596 F.2d 604 (3d Cir. 1979).

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Appellate Procedure

On Appeal: Resources for ArkansasAdvocates

by D.P. Marshall, Jr.

way to win on appeal?

By recognizing and

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You know the old joke:Lawyer #1: What's the best way to win on appeal?

Lawyer #2: Win at trial.

True enough. But what is the next best way to win onappeal? By recognizing and then taking advantage of theunique opportunities for advocacy offered by the appellateprocess.

With this issue of The Arkansas Lawyer, the editorialboard presents a smorgasbord of appellate practice. I'vebeen invited Lo continue that meal in coming issues with acolumn about handling cases on appeal. Here are some of

the things I plan on writing about: taming the abstractingdragon; meet your best friend on appeal; the standard ofreview; the uses and abuses of amicus curiae briefs, andwhen not to appeal.

Differing opinions are welcome. So are suggestions forcolumns and question. I look forward to hearing from you,and to exploring the opportunities for effective and creativeadvocacy on appeal in Arkansas. For now, though, put yournapkin in your lap. Here's the first serving of On Appeal.

Lawyers appealing cases in Arkansas already have animportant reference book on their shelves. Sixteen yearsago, Jacqueline Wright (the Arkansas Supreme CourtLibrarian) wrote the Arkansas Appellate AdvocacyHandbook. The Handbook was sponsored by the ArkansasBar Association and the Arkansas Judicial Department.Wright supplemented the guide in 1984. You probably havethe Handbook in your law library. If you don't, you need it.Call the Arkansas Sar Center and you can get a copy for$25. Though changes in the Court Rules and sixteen yearsof cases have overtaken some of the Handbook's practicaladvice. because of its thoroughness and learning, theHandbook remains a valuable reference for appellate advocates.

Another resource is in the mill: Handling Appeals inArkansas. The new Arkansas Bar Association AppellatePractice Committee (appointed by President Witherspoonand chaired by Job Serebrov of the Washington CountyBar) and the Young Lawyers Section have joined hands tocreate this new practice guide. Handling Appeals inArkansas aims to guide lawyers through filing their noticeof appeal, filing the record, filing the briefs, oral argument,and, if necessary, petitioning for rehearing. The book willalso cover motion practice and extraordinary writs on

appeal. This practice guide is designed for those handlingtheir first appeal - and for those handling their first appealin the last couple of years.

The guiding tests for the handbook are the newly recodified Arkansas Rules of Appellate

Procedure - Civil, Arkan as Rules of "What is the next bestAppellate Procedure - Criminal, andthe Arkansas Supreme Court Rules.Handling Appeals will not replacecareful study of those rules. Rather,the book integrates the Court's ruleswith practical suggestions for handling cases on appeal.

My friend, Clint Miller, theSenior Appellate Advocate for theAttorney General, is fond of saying advocacy offered by thethat a good lawyer can never have too "many tools in his tool box. Those of appellate process.us working on Handling Appeals inArkansas want to create a new tool for appellate advocates.We hope to have it in your toolbox by June 1997.

What is the best way to win on appeal? Win at trial.What is the next best way? Stay tuned.

Price Marshall practices law at Barrett & Deacon inJonesboro. After graduating with honors from Harvard Law

School, he clerked for Ihe Han. Richard S. Arnold, ChiefJlIdge, U.S. COllrl ofAppealfor Ihe Eighlh Circllil.

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Law Laughter & Literature

Truth is Stronger Than FictionCopyright 1995 by Vic Fleming

Sam Clemens. aIkIa Mark Twain, once remarked. "Why

shouldn"t lfUlh be stranger than fiction? Fiction, after all,

has to make sense:'

For almost 12 years now. this column has operated out

of the philosophy that what goes on in the real world of

business. law and politics is far morc humor-intensive than

jokes. or other forms of legal fiction. including. without

limitation. the works of the Great John Grisham.

This is Irue (in keeping with Ihe appellate theme of this

issue of the magazine) at the couns of appeals in This

World.

Peler MacDonald's book. Court Jeslers (1985), relates a

couple of examples involving a nOled Canadian barrister.

George Walsh. Walsh is described as a brilliant and willy

gentleman who ultil11alcly sal all Lhe Supreme Court of

Ol1lurio.

An appellate judge once asked him, as court was open

ing for the day: "Mr. Walsh. do you appeal all of your cases

to Ihis coun?"

To which the quick-willed Walsh replied. almosl sponta

neously.·' 0, My Lord, only Ihe ones I lose:'

MacDonald reports thaI. in Ihe I930s, Walsh came to

represent a man who was din poor. So much so that, at the

time of his divorce. his eSlranged wife signed a separation

agreement calling for him (0 pay her 25 per mOlllh. Years

later. during the Depression. the defendant husband became

very wealthy. prompling an action for an increase in alimo

ny.

Mr. Walsh and his client successfully resisled the

increase at lrial. primarily on the evidenliary slrength of the

separation contract. The ex-wife's counsel then pursued an

appeal.

Walsh's argumenl before the Onlario Court of Appeal

was simple: The man had never missed a payment and

never would. The woman signed a contract and must live by

her word as stated therein. And then there was this

exchange:

Mr. Justice Fisher. Oh. Mr. Walsh, would you ask your

wife to live on 25 a monthT

Mr. Walsh. I'd prefer if Your. Lordship could ask her.

Peler Miller. of lillie Rock. recalls his Very First appel

late argument to the Arkansas Supreme Court:

"I took a deep breath and addressed Ihe court: 'Ladies

42 The Arkansas La\\ yer Spring 1996

and gentlemen of the jury...:" only

10 be interrupled by Ihe voice of one

of Ihe judges: "Mr. MilicI'. il is genlle

men of the Court:'

Walter Paulson of Lillie Rock has

also shared the experience of his first

appellate argument" II was a compJi

caled case before Ihe Eighth Circuil

Court of Appeals. Being a very recenl

graduate of law school. Walter was

actually sworn in by the panel. and in

from of his client. before the argu

ment began: else. he would not have

been ad milled 10 practice before the

court. "Why shouldll't truthWalter had drawn a large graphic

map 10 assist Ihe Court in ils under- be stranger thallstanding of the fact situation. Walter

modestly recall hi art work a "a fiction.? FictiOIl,rather magnificent four-color portrayal

of an otherwise nondescript [area]." after all, has toWalter sal ncrvously, as appellant's

k "counsel took the podium and. explain- ma e sense,iug ht:r \'t:rsion of lhc facts. beganmaking reference to Walter's chan. It -----------

was an area that had not been

addressed in law school: whether or nol to objecl to appel

lant's counsel having the audacity to do this.

Walter, in a combination of fear and courtesy, made no

objection and "did not point out that it was actually

appellees exhibit" Appellanl's counsel sat down. It was

Walter's lum. "I began by explaining the fact situation.

using a pointer and my now-prominent map. The senior

judge on the panel Slopped me. lumed 10 lappellanr's coun

sell. and asked, '00 you have any objection 10 Mr.

Paulson's using your map?'"

Vic Fleming is a lau·yel;mediator. and professional speaker.

Send Vic true stories about humorous occurrences i" busi·

lIess. politics, olld lolV - 3801 TCBY Towel: Lillie Rock AR

72201: FAX (501) 372-3359; e-II/oil [email protected]/.

Clinton Scott ClarkA letter of reprimand was issued to

Clinton SCOll Clark for violation of ModelRules 1.1. 1.3 and 8.4 <d) upon the complailll of Betty Shivey. These rules slale.in pan. that a lawyer shall provide competent representation (0 a client. Competentrepresentation requires the legal knowledge. skill. thoroughness and preparationreasonably necessary for the representation: shall act with reasonable diligenceand promptness in representing a client:and shaJl not engage in conducl that isprejudicial to the administration of justice.

Shivey explained lhe occurances following her hiring Clark 10 appeal a divorcedecree for her. Shivey paid Clark52000.00 on July 5. 1994 as his fee to handle lhe mailer. A Notice of Appeal wasfiled by Clark on thaI date as well. Clarkinformed Shivey that as soon as hereceived the transcript from her he wouldfile it with lhe Supreme Court Clerk. OnNovember 2. 1994. Clark oblained anOrder Extending Time To File Transcriptbut this was oLitside the 90 day time periodfor such an Order to be timely. OnDecember 30, 1994. a second invalidOrder was obtained by Clark. The opposing counsel filed a Motion To Dismiss theappeal with the Supreme Court Clerk onDecember 5. 1994. Clark filed noresponse to that Motion with the Clerk.The mandate dismissing the appeal wasissued January 9. 1995. Clark told Shiveyhe would ask the Court to reconsider thedismissal bUI he did nol do so. Further.after Clark's services were terminated, hefailed 10 forward information 10 Shiveythat he had received in connection withanOlher Chancery Court proceeding.

In his response. Clark asserted thatShivey actually hired him on June 22.1994 and paid him 52000.00 of a tOlal5000.00 quoted fee. According to Clark,

Shivey was confused and vague as to whathad occurred at trial. Clark explained thathe defended a Motion To Dismiss filed inlhe proceeding which was filed in PulaskiCounty before enlry of the ConwayCounty Decree. which as the Decree fromwhich the appeal was 10 be laken. A hearing was held on the Motion To Dismissand the COLIrt deferred any action until thematter had been decided by lhe Court ofAppe,lIs. Clark also represenled Shivey inthe Conway County proceeding on aMotion For Contempt. as well as anOlhercollateral matter. Clark asserted lhat hefiled a Response 10 a MOlion To DismissThe Appeal with lhe Conway County

disciplinary actions

Chancery Clerk. afler opposing counselfiled a Motion to Dismiss with that Court.

lark further acknowledged an Order ForExtension Of lime To File The Transcriptwas signed on ovember 2. 1994, and thatanother Order was signed on December30. 1994. When the opposing counselfiled his Motion To Dismiss with the Courtof Appeals. Clark was under the belief lhaljurisdiction was still with Conway CountyChancery Court so he elected to wait untilthe mailer was heard by lhe ConwayCounly Chancellor and did nothing further. On the date the mandate was issued.he was informed by the Conway Coul1lYClerk lhal she had just received the transcript. When he advised Shivey of this,she tOld him she did nOI want to pay lhereSI of lhe money for the transcript. Clarkcontinued his response by asserting thatlhe major problem in lhis appeal was thaIhe could not get the transcript. He alsoslaled that he believed the correspondencehe received concerning the other ChanceryCourt matter was informational only sincehe had already advised the Court's Clerkthat he no longer represented Shivey. Thiswas the reason given for not forwardingthe correspondence the Shivey or the attorney she hired after terminated his services.

Andrew L. ClarkA letter of reprimand was issued to

Andrew L. Clark for violation of ModelRules 1.1. 8.4 <c) and 8.4 <d) upon theComplaint By Judicial Officer. Theserules stale. in part. that a lawyer shall provide competent representation to a client.Competent representation requires thelegal knowledge. skill. thoroughness andpreparation reasonably necessary for therepresentation: shall not engage in conductinvolving dishonesty. fraud. deceit or misrepresentation: and. shall not engage inconduct lhal i prejudicial to lhe administration of justice.

Honorable Mary Davies Scott provided information to the Committee concerning Clark's representation of Erica Fieldsin a bankruptcy matter. Judge SCOlt filedlhis complainl following a Section 341 <aJmeeting in Ms. Fields' bankruptcy matter.Various pleadings and schedules werefiled in Ms. Fields' bankruptcy proceedingwhich appeared to have her signature onthem. During her sworn testimony at the341 (a) meeling. Ms. Fields lestified thatshe had not signed any of the documenls.She also testified that her name wasaffixed on the Petition For Attorney's Feeswithout her authorization. Ms. Fields tes-

lified further lhal allhough she providedClark with correct up-lo-date informationfor her bankruptcy documents, he includedincorrect infom13tion. The informationwas false and misleading. In a Motion ToWithdraw. Clark admilled signing Ms.Fields' name and also making errors whilepreparing the various pleadings.

Clark's response explained thaI thebankruptcy proceeding from which thisComplaint arose was the second bankruplcy proceeding filed by his firm on Ms.Fields' behalf. The first was dismissed forfailure to make limely payments to theTrustee. Upon learning that Ms. Fields'automobile was in danger of being repossessed, Clark hurried to get M . Fields'bankruplcy re-filed. The information inthe second bankruptcy filing was an exactduplicate of the firsl filing. Because of therush and lhe inabilily 10 reach Ms. Fieldsby lelephone, Clark signed her name to thebankruplcy documents. He acknowledgedhaving signed clients' names to documentson more than one occasion under certaincircumstances. Ms. Fields never contactedhim about any errors nor about signing hername after he provided her copies of thesedocuments. Ms. Fields advised him lhalshe became scared at the 341 <a) meelingand so she did not know what to say.According to Clark. he did nol have thenew employment information on Ms.Fields prior 10 the second bankruptcy filing. After learning of lhe problems thatarose at lhe 341 <a) meeting, he filed corrected schedules and a Motion toWithdraw his Application for Anomey'sFee. Clark also asserted that is was Ms.Fields' decision 10 voluntarily dismiss herbankruptcy not the Court·s. tn conclusion.Clark set out thaI no one has been prejudiced or harmed and that when protectinga client's interests. he does not always playby lhe rules. However. Clark averred 10

never sign another client's name 10 a bankruptcy pleading.

Alvin Leonard SimesAlvin Leonard Simes was issued a let

ter of caution for violation of Model Rules01.3 and 1.4 <a) upon the complail1l ofSheila D. Jarrett. These Rules stale. inpart. lhal a lawyer shall act with reasonable diligence and promptness in representing a client and a lawyer shall keep acliem reasonably informed about the staIuS of a mailer and promptly comply withreasonable requests for information.

Ms. Jarrell Slated that in July 1993,Simes was retained to represent her in


legal matters involving her employer. InDecember, 1993, the EEOC sent Ms.Jarrell a Notice of Right to Sue. The

otice indicated that a copy was also sent[Q Simes. When Ms. Jarrett received the

Olice she discussed with Simes thegrounds on which she wanted to sue heremployer. Simes filed a lawsuit on March14. 1994. however, this not within theninety-day time limit. An Answer wasfiled which pointed out the late nalUre ofthe lawsuit. Simes filed no responsivepleading. An Order was entered on July13.. 1994 directing him to serve one of thedefendant and tile proof of service.Simes did not and the case against thatdefendant was dismissed for failure toprosecute. Simes did not advise his clientof this dismi sal. Five months later hefiled a Motion for COlllinuance wherein headmitted an inability to serve a defendantand requested a continuance to investigatehis whereabouts. A Pre-Trail ConferenceSheet was tiled on January 23, 1995,wherein he mentioned having filed aMo'ion 10 Compel and an AmendedComplaint. Neither of these pleadings areon the District Court's docke' sheet. Ms.Jarrett stated that she tried, unsuccessfully,to contact Simes on several occasions.Then on May I, 1995, he explained to Ms.Jarrell that the lawsuit was not timely filedbecause of some erroneous informationregarding the receipt date of the Notice ofRight to Sue. However, Ms. Jarrellaverred that there was no misunderstanding and he was told the correct date. Alsohe received his own copy as attorney ofrecord. Ms. Jarrett terminated his servicesand requested her file. Simes would notrelease her file without her signing a notewhich he prepared. She then retainedcounsel who did receive a portion of thefile. He filed a Motion to Withdraw, butnever served Ms. Jarrett with a copy.Upon learning of the Motion, Ms. Jarrettdid file a Respon e. The Motion wasgranted and Ms. Jarrell has been unable toretain another attorney.

For his response, Simes stated that Ms.Jarrett had everal claims against heremployer. A complaint was tiled inFederal District Court alleging sexualharassment: 'he assault. battery and falseimprisonment allegations were pendantstate claims. Since the ba is for thewrongful discharge was race, it was filedpursuant to 42 U.S.c. §198J. Simes stated that he had several office conferencesduring which he explained her claims. Herequested documentation showing when

-44 The Arkansas Lawyer Spring 1996


she received her Right to Sue leller, but noresponse was received. In December 1993and January 1994, Ms. Jarrell advised himof her desire to drop her case. Believingshe was being stalked, she then wanted todiscuss other matters. Among them wastha' she was told that Simes would "sellher and her case out," She believed thatand advised him to drop her lawsuit. Thisfact. he stated, coupled with her other personal matters and her state of mind made itimpossible for him to "zealously representher." He averred that these issues alsomade it difficult for him to plan strategyand proceed with discovery.

Further, he had advi cd M . Jarrell thather sexual harassment claim would be forever lost if a federal lawsuit was not filedwithin ninety days from the day shereceived the Right to Sue Leller, however,he was of the impression she wished todrop the case. Subsequently, in March1994. she contacted Simes and advisedtha' she was ready to proceed and advisedthat 'he Right 10 Sue leller was received onDecember 19, 1993. It was with thatinformation he tiled the complaint onMarch 14, 1994.

He stated with regard to service on oneof the defendants 'ha' his specific whereabouts were unknown, but that he was in amental institution. Although Ms. Jarrellwas going to contact Simes regarding aprivate investigator. she never did.

In April 1995. Ms. Jarrett advised ofher desire not to pursue her claims ofunlawful termination. false imprisonmentand assault and battery, but in May 1995.she changed her mind. After May I. 1995.she refused to keep any appointments.Sime promptly complied with Ms.Jarrell'S request for her file and filed aMotion to Withdraw. The Motion wasgranted and a new trial date seL

In conclusion. he asserted that if anyof Ms. Jarrett's claims were lost it was dueto her own misrepresentation.

John W. FinkJohn W. Fink was issued a leller of

caution for violation of Model Rule 8.4 (d)upon the complaint of Ruth L. James.This rule states, 'ha' a lawyer shall notengage in conduct that is prejudiciallO theadministration of justice.

The allegations by Mrs. Jamesinvolved a lawsui, Fink filed on behalf ofhis client, Independent Service Finance.against Mrs. James and her brother, JohnShelman. As a result of three hospitalizations. Mr. Shelman incurred a sizeable

debt. Mrs. James signed the hospitaladmission forms for the first hospitalization causing her to be liable for the amountof tha' bill. When Mr. Sherman ceasedpayment of the bills, Fink filed a lawsuit 10

collect the debt. Mr. James was servedon November 18, 1992. and filed anAnswer on ovember 19, 1992. OnNovember 23, 1992, the Judge signed aDefault Judgement which was not entereduntil January I I, 1993. The DefaultJudgement stated that the defendants hadbeen served for more that twenry days andhad failed to appear and defend. It omilledany reference to the amount of Mrs.James' liability. if any. On the date theJudgment was signed, Mrs. James hadonly been served for five days and herAnswer had been on file for four days.Mrs. James was never served with theDefault Judgment. Based on the DefaultJudgment Fink caused a Writ ofGarnishment to i sue against Mrs. Jameson August 26, 1994. Mrs. James stated inher affidavit that she was never servedwith a copy of 'he Writ. Her employerinformed her that they received the Writand Mrs. James then obtained a copy formthe Clerk's office. She then learned thatshe was being held responsible for theentire judgment amount. Mrs. James fileda Motion to Quash the Writ. She averredlhat without notice to her Fink contactedthe Judge abou, amending 'he DefaultJudgment to reflect a judgment 'akenagainst her. Subsequently, Fink sent a letter to the Judgt: with a MOlion to AmendDefault Judgment for Clerical Error. TheMOlion omits to say that Mrs. James'Answer was on file. Approximately Lhreeweeks later, Fink agreed that a Order dismi sing the garnishment should beentered. Mrs. James alleged that Finksfailure to thoroughly check the records andproperly supervise this file set a chain ofevents in motion that prejudi cd her. Shetestified that, in addition to the expense ofhiring an attorney. as a consequence of theaforementioned facts she lost her job, suffered marital discord, and experiencedmedical problems.

From Fink's affidavi' of response andtestimony it was learned that. althoughMrs. James filed an Answer to theComplaint. she did not serve him with acopy as required by 'he Arkansas Rules ofCivil Procedure. It was his belief tha', hadhe received her Answer, none of the ensuing events would have occurred. Headmitted that the Default Judgment waserroneous in that it referenced only ajudg-

ment again t Mr. Shelman and waambiguous as to the liability of Mrs.James. You averred that, despite her nonreceipt of the Writ of Garnishment, it wassent to Mrs. James as indicated on theWrit. Around September 8, 1994, when helearned that the Writ was inaccurateregarding the amount of Mr . James liability, he sent an Amended DefaultJudgment to the judge who required LhatMrs. James be nOLiced. He did so. Twodays later he received the Motion to Quashthe WriL and this was the firsL time he sawMrs. James' answer. Subsequently heagreed to a Dismissal Without Prejudicewhen he confirmed that Mrs. James hadfiled an Answer. His te timony explainedthe procedures used by his suppon taffwhich led to the events herein.Specifically. the file jacket did not notethat there were two defendants named inthe lawsuit. This resulted in the recordaLion of only one date of service, that ofJohn Shelman. It wa that date which governed when the Default Judgment was prepared. Because the Court's file was neverchecked. it was twenty-three monthsbefore he learned that Mrs. James had filedan Answer and seven months after that(May 1995) that the Order of Dismissalwas entered. Although he admitted thaterrors were made as regards the caseagainst Mrs. James he denied that his conduct in this matter violated any of theModel Rules of Professional Conduct.

Charles O. PearrowCharles O. Pearrow was suspended

from the practice of law for a period ofthree months for violation of Model RulesI. I and 1.3 upon the complaint of Allen W.Wallace.

John L. KearneyUpon the petition for reinstatement to

the practice of law, John L. Kearney's petition was granted by the Committee onDecember I I, 1995.

Robert D. BrittonUpon the petition for voluntary inac

tive status, Robert D. Britton's petitionwas granted by the Committee onDecember 18. 1995.

Judge Thomas BrownThe Judicial Discipline & Disability

Commission admonished Pine BluffCircuit/Chancery Judge Thomas Brownfor violaLions of the Code of JudicialConduct.


An investigation of the allegationscontained in the complaint concerned fourincidents. The first dealt with a juvenilewho appeared before Judge Brown. Afterthe juvenile was told he was being sent toa youth services facility, be became agitated and began cursing the judge. makingthreats and using profanity. The judgeinstructed the juvenile to come before thecourtroom bench. When the juvenilereached the bench, the judge stood up,reached over the bench and latched ontothe juvenile's jacket. A scuffle ensuedwith the juvenile grabbing the judge'sthroat. The judge's actions resulted in disorder in the court and a diminution incounroom decorum. The judge also failedto maintain the expected and required dignity during coun proceedings.

The second allegation concerned anex-parte discussion between the judge andthe juvenile's legal guardian. The judgeknow the legal guardian was repre entedby an attorney and that the attorney wasplanning to file a motion requesting thejudge to step aside from funher considering this matter. The judge, nevertheless,met with the legal guardian without herattorney nor the other parties present. Thecourtroom incident and the attorney'srequest that the judge step aside were discussed by the judge and the legal guardian.Such a discussion was found to be animpermissible ex-pane communicationand discussion.

Another incident investigated as aresult of the complaint concerned thejudge discussing with juveniles, out of thepresence of their attorney, matters concerning their guilt of innocence or the factsunderlying the charges. Another incidentconcerned the judge continuing to discussa case with a juvenile, after a request for aLrial was made. The Judicial Discipline &Disability Commission found under thecircumstances of these cases it was inappropriate for the judge to have a discussionwith the juvenile concerning the incidentin the absence of the juvenile's attorney, ordiscussing the matter further after arequest for trial has been made.

The Commission found that, under thecircumstances, Judge Brown's actionsdenigrated public confidence in the judiciary and his actions were inconsistentwith maintaining the high standards essential in preserving the integrity and impartiality of the judiciary.

Murray F. ArmstrongUpon the recommendation of the

Committee the Court accepted the surrender of Arkansas Law License of Murray F.Armstrong on February 19. 1996.

Josepf V. HobsonA letter of caution was issued to Josepf

V. Hobson for violation of Model Rules1.3, 1.4 (a) and 8.4 (d) upon the complaintof Margie Lineberry. These Rules state, inpan, that a lawyer shall act with reasonable diligence and promptness in represeoting a client; shall keep a client reasonable informed about the status of a mallerand promptly comply with reasonablerequests for information; and shall notengage in condUCl lhat is prejudicial to theadministration of juslice,

Lineberry's complaint arose from herhaving hired Hobson during August 1994to represent her in relalion to a lawsuitwhich was filed again I her in SebastianCounty Chancery Court. Ms. Lineberrycontacted Hobson immediately after beingserved with the complaint of August 6.1994. Hobson did not file an Answer onMs. Lineberry's behalf until August 31.1994. Because the Answer was filed pastthe time allowed by law, a DefaultJudgment was taken against Ms.Lineberry. Ms. Lineberry learned of theDefault Judgment through her bank andthen notified Hobson. He filed a Motionto Vacate Default Judgment which wasdenied after he failed to respond to theCourt's letter requesting information onwhy the Answer was filed late.

In responding, Hobson acknowledgedthat the sequence of event in lhis matterwere as Slated by Ms. Lineberry. He alsoacknowledged that he failed to file theAnswer wilhin the time allowed. Heassened that upon learning of the DefaultJudgment. he immediately filed a Motionin an effon to vacate the Judgment. Sincehe did not have an acceptable reason forhaving filed the Answer late, he did notrespond to the Coun's request. Afterdetermining lhat an appeal would beunsuccessful, he obtained the funds to satisfy the judgment so Ms. Lineberry wouldnot suffer any monetary loss.

John L. KearneyJohn L. Kearney was issued a letter of

caution for violation of Model Rule 1.3and 1.5 (c) and 8.4 (d) upon the complaintof Carol Inez West. These rules state, inpan, that a lawyer shall act with reasonable diligence and promptness in representing a client; and, a contingent feeagreement shall be in writing.


During October 1993. Carole Westhired Kearney to represent her minordaughter in a persona) injury maner. Hisfee agreement with Ms. West was a ol1ethird contingent fee. This fee agreementwas never reduced to writing. At the timehe was hired, he was provided an executedMedical AUlhorizmion from Ms. Westalong with her written account of theinjury and the idcnrities of witnesses.From the time Ms. West hired him untilMarch 1995 almost nothing was done inthis matter 011 her daughter's behalf. Two1110nths after Ms. West spoke with him inMarch. Kearney comacted the opposingparty by leller dated May 25, 1995.Approximately two weeks later, Ms. Westagain contacted him to express her dissatisfaction with the lack of work performedby him in the one and a half years sinceshe had hired him. At that time he advisedMs. West that she needed to come andretricve her file which she promptly did.

Kearney's response contained hisexplanation thaI he came into COl1lact withMs. West through a Business Law classthat he taught at the University ofArkansas at Pine Bluff. He acknowledgedthat Ms. West provided him with a statement relating the facts and witnessesinvolved in the matter. He denied ever verbally discussing a fee with Ms. West andasserted that she has to have signed anAttorney-Client contracl when she firstvi ited hi office. Further. he asserted thathe could not slale for certain whether shehad done so since she obtained her file inhis absence from the office. He stated thatthe opposing party refused to discuss thematter with him when he contact.ed him sohe informed Ms. West that because of herdaughter's tender age it would be best towait and see if the scars would be pennanent and he understood that Ms. West hadagreed.

Robert F. MeurerRobert F. Meurer was issued a leuer of

caution for violation of Model Rules 1.3and 8.4 (d) as a result of a Per Curiamfrom t.he Arkansas Supreme Court. appellam Johnny Martin. These Rules state. inpart. that a lawyer shall act with reasonable diligence and promptness in representing a cI ient; and. shall not engage inconduct that is prejudicial to the administration of justice.

On October 30, 1995. a Motion ForRule On The Clerk was filed by Meurcr.In his Motion For Rule On The Clerk, hestated that he failed to calendar the due



date of a transcript and admitted responsibility. On ovember 20. 1995. a PcrCuriam was granted by the ArkansasSupreme Court. In its Per Curiam. theArkansas Supreme Court forwarded acopy of the opinion to the Committee onProfessional Conduct.

Willard C. Smith, Jr.Willard C. Smith, Jr. was issued a ICI

ter of caution for violation of Model Rule7.2 (d) upon a Complaint Before TheCommittee. This rule states. in part. thatany communication made to a prospectiveclient shall include the name of at least onelawyer responsible for its content.

It was brought to the Committee'sattent.ion that Smith placed advertisementsin the 1994 Southwestern Bell YellowPages for Fort Smith and Van Buren.Neither advenisement contains the nameof the attorney responsible for the advertisements content.

For his response. he asserted that theModel Rules of Professional Conduct differentiated between a communication andan advertisement wherein a communication required a lawyer's name due to itsnature whereas an advertisement. such aslistings in the telephone directory. do notrequire the lawyer's name.

Charles L. HoneyCharles L. Honey was issued a Ieller

of caution for violation of Model Rules 1.2(a). 1.3 and 8.4 (d) upon a ComplaintRefore The Committee. These Rules state.in part. that a lawyer shall abide by aclient's decisions concerning the objectives of representation: shall act with reasonable diligence and promptness in representing a client: and. shall not engage inconduct that is prejudicial to the administration of justice.

Honey represented Johnny Bradley ina jury trial on the charge of rape for whichMr. Bradley was found guilty and sentenced to life imprisonment. There was noappeal taken from the sentence despite Mr.Bradley's request for an appeal. A pro semotion to proceed with a belated appealwas filed on August 23. 1995. A copy ofthe pro se motion was delivered to himrequesting an affidavit regarding the mat·ter. On October 5. 1995. he provided theCoun his affidavit of response. He did notdispute Mr. Bradley's request for appealbut indicated that there was no reasonablegrounds for appeal. On October 23, 1995.the Arkansas Supreme Court delivered anopinion granting Mr. Bradley's pro se

Illotion because Mr. Bradley requested anappeal. Honey was allorney of record. andan appeal was nOI filed. A copy of theCourt's opinion was forwarded to theCommittee on Professional Conduct.

In his response. Honey acknowledgedrepreseming Mr. Bradley. He cxplainedthat Mr. Bradley paid only $800 of a$2500 quoted fee but that he representedhim in a jury trial on the criminal chargesanyway. Honey asserted that he told Mr.Bradley what his fee would be for anappeal and also informed him if he couldnot afford to pay Honey that he would askto withdraw so someone else could beappointed by the Court to represent him.Further. he averred that he heard nothingelse from Mr. Bradley until after the timefor filing an appeal had expired.

Charles L. HoneyCharles L. Honey was issued a leller

of caution for violation of Model Rulcs 1.4(a) and 1.4 (b) upon the complaint ofRebecca O' Bryant Dye. These rules state.in part, that a lawyer shall keep a clientrcasonably informed aboul the status of amatter and promplly comply with reasonable requests for information: and. shallexplain a matter to the extent reasonablynecessary to permit the client to makeinformed decisions regarding the representation.

Ms. Dye averred that in 1991 Honeyrepresented her in a divorce action. In1992. a Petition For Change of Custodywas filed and Honey agr~tx1 10 representMs. Dye in this mailer. He filed a responseand seven months later. Ms. Dye's ex·husband was granted custody and aTemporary Order to that effect wasentered. Four months later, in July 1993. afinal hearing was held and both Honey andhis client appeared. The Judge orderedcustody placed with the ex-husband Wilhvisitation to his client. No counsellingwas ordered and the docket sheet statedthat no other issues were remaining.Honey advised Ms. Dye not to begin childsuppon payments until the Order wasentered. She contacted his office severaltimes over the next two years and was toldthat nothing had been signed. However.during June of 1995. while allempting toget a home loan. Ms. Dye discovered thatthe Order was signcd September 22, 1994.and child support backdated to August 15.1993. She then called Honey's office. butwas again told that nothing was signed orin her file. Ms. Dye then weJ1l to theClerk's office and saw that Honey had

signed this order, but never provided herwith a copy.

His affidavit of response stated thatopposing counsel was to prepare theprecedent following the final hearing inJuly of 1993. He averred receipt fromopposing counsel of a precedent with thechild SUppOI1 sum left blank. His recollection was that the amount of child supportwas to be agreed upon following hisreceipt of Ms. Dye's financial information.Upon receipt of the financial information,Honey stated that he returned a completedprecedent which was never returned to himand have heard nothing further. In thisconnection, he and Ms. Dye have had several conversations and he made severalcalls to opposing counsel as well as theJudge in an effort to get the Order entered.Additionally. he inquired at the Clerk'soffice as to whether the Order had beenenlered but was told thai it had not. Healso stated that he discovered that theOrder was finally signed and entered onSeptember 27, 1994, some 14 months following the hearing. In conclusion. neitherthe Judge, opposing cOllnsel, nor theClerk's office advised him that the Orderwas signed and entered but that he took allreasonable steps to insure such was done.

David William Malaby, Jr.David William Malaby, Jr. was dis

barred from the practice of law for violation of Model Rules 3.5 (c) and 5.5 (a);and §7D of the Procedures of the ArkansasSupreme Coun Regulating ProfessionalConduct of Attorneys at Law. as a result ofcomplaints of Virginia Fuller and DavidBullard.

Frank E. ShawA letter of reprimand was issued to

Frank E. Shaw for violation of ModelRules 1.2 and 8.4 (d) upon the complaintof Glenn Edmonson. These rules state, inpart, that a lawyer shall abide by a c1ient'sdecisions concerning the objectives of representalion. subject to paragraphs (c), (d)Hnd (e). and shall consult with the client asto the means by which they are to be pursued; and. shall not engage in conduct thatis prejudicial to the administration of justice.

Shaw was appointed to representGlenn Edmondson on January 18, 1994 ona first degree battery charge in FaulknerCounty, where he is a public defender.Edmondson stated Shaw wa difficult tocontact from the beginning of his representation of him. Shaw repeatedly asked


for money from his family because hewould be unable to defend Edmondsonwithout money. His sisters paid Shaw$5000.00 per his request. Shaw explainedhe was hiring two (2) investigators toassist with the defense. His family understood the investigators were being paidfrom the $5000.00 paid to Shaw.Edmondson advised Shaw after trial thathe wanted to appeal his conviction. Asevidence of this, Edmondson provided anewspaper article wherein Shaw discussedthe decision to appeal. A Notice OfAppeal was never filed on Edmondson'sbehalf. Through all the pleadingsEdmondson sent the Trial Court trying toobtain an appeal. Shaw never contactedhim, nor provided him with any information.

Shaw acknowledged being appointedas counsel initially but Slated that the family requested his status be changed toretained counsel. He asserted his statuswas changed in open court with everyonepresent. but no docket entry was made. Heaverred the record was being reviewed forthis change of status proceeding.According to him, everyone was awarewho was responsible for the investigativefees and that only $500 of the $5000.00was for the same. He also stated thatEdmondson and his family agreed anappeal was unnecessary after trial. Thedecision not to appeal was solely the decision of Edmondson. In concluding hisresponse, Shaw asserted it was only afterthe time for appeal ran that Edmondsonrequested an appeal of his conviction.

David E. MorrisDavid E. Morris was issued a letter of

reprimand for violation of Model Rule1.15 (b) as a resllit of a complaint fromRobel1 E. Sullivan. This rule states, inpal1. that upon receiving funds or otherproperty in which a client or third personhas an interest. a lawyer shall promptlynotify the client or third person. Except asstated in this Rule or otherwise permittedby law or by agreement with the client, alawyer shall promptly deliver to lhe clientor third person any funds or other property that the client or third person is entitledto receive and, upon request by the clientor third person, shall promptly render afull accounting regarding such propelty.

Sullivan stated in his affidavit and inhis testimony at the heming that duringOctober 1993, he and Morris' client,Anoland Sullivan. were divorced inWashington County, Arkansas. A portion

of the Divorce Decree dealt with the saleof certain marital property. The proceedsof the sale of the marital property wereplaced in Morris' trust accoul1lto pay certain outstanding marital debts. Beginningin May 1994, Sullivan requested thatMorris provide him with an accounting ofthe funds along with proof of paymentsmade. A Ithough Morris responded to several of Sullivan's letters, he never providedan accounting of the funds. Finally inNovember 1994, Sullivan requested theExecutive Director to intervene on hisbehalf. Pursuam to that request, a letterwas sent requesting that Morris provide anaccounting of the funds. Sullivan furthertestified that Morris did not render a fullaccounting of the funds pursuant to thatletter. During his testimony, Sullivan provided to the Committee the computerbreakdown of the use of the funds deposited into his trust account, copies of the cancelled checks and dcposit slips which hefinally provided to him on or aroundNovember 30, 1995.

In his testimony before the CommitteeMorris provided copies of his trust accountstatements, cancelled checks, and depositslips which related to the monies derivedfrom the sale of the Sullivans' real estate.He also provided copies of several lettershe wrote to Mrs. Sullivan in response toMr. Sullivan's requests for an accounting.Morris explained to the Committee that hehad provided an accounting to both partiesby way of verbal explanation but did notdo so in writing. Morris offered no excusefor his failure to respond to the Committeeother than he felt he had done nothing inviolation of the Rules. In addition, heoffered no explanation for the reason whyhe waited until November 30, 1995 to provide Sullivan with the written documentation he had requested from Morris.

Upon their verified petitions for voluntary transfer to inactive status. the following named attorneys were placed on voluntmy inactive status by the Committeeduring January 1996: John Phillip Cobb,Douglas J. Stanley, Molly D. McKay andJames W. Woods.

Upon their verified petitions for voluntary transfer to inactive status. the following named attorneys were placed on voluntary inactive status by the Committeeduring February 1996: Steven D.Townsin, Lynn-Marie Crider, Mike E.O'Neal, Russell A. Hollrah and Andrew J.Reynolds.


Terrell Marshall

A Past President of the Arkansas BarAssociation (1951-52), TerreJl Marshall ofNorth Littlc Rock died in March at the age of8 .

Mr. MarshaJl engaged in the practice oflaw in Little Rock, Arkansas from 1931 untilhis retirement in the early 1980's. He graduated from the Arkansas Law School and wasadmilled to practice in July 1931, havingmade the highest score on the Arkansas BarExam.

He served as a member of the Board ofTrustees of the Arkansas Law School from1949 until it merged with the UALR Schoolof Law in 1967. He was a member of the OldLittle Rock Bar Association, the PulaskiCounty Bar Association, the Arkansas BarAssociation, the American Bar Association,and the American Judicature Society.

In 1939 he was appointed the firstExecutive Secretary of the Arkansas BarAssociation, and served in that position forthree years. Subsequently, Mr. MarshaJl waselected Secretary-Treasurer of the ArkansasBar Association, serving for seven years.

Mr. MarshaJl is survived by one son, Dr.Terrell MarshaJl, Jr. of Roslyn, Pennsylvania;five grandchildren and four great-grandchildren.

In Memorium

Judge Osro Cobb

Judge Osro Cobb of Lillie Rock died inJanuary at the age of91.

Prior to World War n, he was a SeniorPartner of the law firm of Cobb, Cazort andHolt. In 1936 he accepted the Republicannomination for Governor, campaigning theentire state and giving out some 250,000corncob pipes. In 1954 he became the UnitedStates Attorney for the Eastern District ofArkansas by appointment by PresidentEisenhower. As United States Allorney it feJlto his responsibility in 1957 to handle theentire period of integration at Little RockCentral High School. In 1965 he wasappointed a supreme court justice, becomingthe first Republican to serve upon the highesttate court since I 74.

He was active in the Pulaski County BarAssociation, the Arkan as Bar A sociation,the American Bar Association. the AmericanJudicalure Society. and was organizing president of the American Chapter of the FederalBar Association.

He is survived by his wife, Martha JaneDickinson Cobb of Little Rock; one son, JohnP. Cobb of Conway; one brother; three grandchildren; and two great-grandchildren.

Calvin Joe Hall

Calvin Joe Hall of Linle Rock died inJanuary at the age of 35.

He was a 1978 graduate of Stephens HighSchool, where he wa a valedictorian. a 1982graduate, Magna Cum Laude, from OuachitaBaptist University and a 1985 graduate, withhigh honors, from UALR School of Law.

Hall was a partncr in the Friday, Eldredgeand Clark Law Firm, and was a member ofthe American, Arkansas, and Pulaski CountyBar Associations. He served on the Boards ofDirectors of Our Way, Inc., Ouachita Baptist

niversity Former Students Association, andthe Regional AIDS Interfaith etwork.

Hall specialized in medical malpracticedefense litigation and tried cases all acrossthe state of Arkansas. His sense of humor andpersonal honor were well recognized andappreciated by the judiciary and both plaintiffand defense bars.

He is survived by his parents, Mr. andMrs. Charles Hall of Stephens; his paternalgrandmother, Euna Hall of Stephens; sixaunts; one uncle; several cousins; and Lwospecial friends - George Prange and GayleCorley, both of Little Rock.

RONALD E. BUMPASS, J.D.ARBITRATIO

Labor/Management arbitration, Employee benefits, EEOC/discrimination, Sales commission disputes,Broker-dealer-manufacturer-representative disputes, Architect-engineer-contractor-developer dis

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Workplace conditions, Lay-offs, Reduction in force, CaJl-back, Assignment of work, Contract and warranty disputes, Malpractice of accountants, attorneys, physicians, hospitals and nursing homes

Private arbitrator and mediator appointments acceptedAll proceedings held in strict confidence

PROFESSIONAL ASSOCIATIO 5

Arbitration Panel of the U.s. Department of Labor's Federal Mediation and Conciliation ServiceLabor Panel and Commercial Panel of the American Arbitration Association

National Health Lawyers Association's Alternative Dispute Resolution Service PanelUnited States Postal Service/American Postal Workers Union, AFL-CIO,

Panel for the Southern and Southeastern RegionsCPR Institute for Dispute Resolution, .Y., .Y.

LAW OFFICES OF RONALD E. BUMPASS

2241 North Green Acres Road, Fayetteville, AR 72703(501) 521-3172 or 1-800-400-3172 • FAX (501) 521-5928

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Why

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• •1S 1mportant

to attorneys

Call Rebsamen for more information.Telephone (501) 664-8791Fax (SOl) 664-9487

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The CNA Insurance Companies became one ofthe largest writers of lawyers professionalliability insurance in the nation earlier this yearwith their acquisition of Continental InsuranceCo. The CNA member companies now insureover 50.000 attorneys in 49 states.

The Merger makes the CNA more valuable bothto the firms we now insure and to those thatare considering our coverage.

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Firms currently insured by CNA can nowexpect even more value for their premium dollar.For firms not insured with CNA. we candemonstrate how we will perform for you.

The Arkansas Bar Association endorsed ProfessionalLiability Program is underwritten by ContinentalCasualty Company. ooeor the CNA Insurance Companies.CNA is a registered service mark of the CNA FinancialCorporation. CNA Plaza. Chicago. IL 60685.

Documents

VOL.30_NO.4_SPRING 1996