President’s Message

The ZealousAdvocate

1st Quarter 2012

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A Newsletter of the Litigation Section of the Utah State Bar

You Never Get a Second Chance toMake a First Impression

We are fortunate in Utah to have astrong, positive culture among ourlawyers. This belief has been rein-forced with occasional experienceswith out-of-state counsel who seem tobelieve that advocacy should be judged

by decibel volume and that opposing counsel is neverto be trusted. Although our numbers continue togrow, Utah lawyers continue to make sure that a case isjust a case, and that litigation should never “get person-al” among counsel. One reason for our positive cul-ture is the role of mentoring, both formal and infor-mal, in the lives of all Utah lawyers.

Years ago, a mentor asked me to always remember that“you never get a second chance to make a first impres-sion.” Just as she asked, or perhaps because she asked, Ihave always remembered that advice. It certainlyapplies to all of us as lawyers. We have the opportunityto make a good first impression on new clients, on newopposing counsel, and as we appear before judges forthe first time. Consciously and unconsciously, we aremeasured by our preparation, our appearance, our con-fidence, our integrity, and our demeanor.

Another mentor taught me that we have two things tooffer our clients—our knowledge of the law, particular-ly the process of litigation, and our reputation.Reputations in our legal community are built through

first impressions and subsequent interaction. If we lackintegrity, if we refuse to grant extensions, if we areunprepared in court, if we misstate the holdings ofcases, if we refuse to look for resolutions to problems,or if we refuse to acknowledge mistakes, word getsaround, negative reputations are formed, and our cul-ture is weakened. Thankfully, Utah lawyers largelyseem to understand the importance of preserving a cul-ture of excellence and professionalism.

Knowledge of the law and the process of litigationcome through experience, which is often the bestteacher, though sometimes the harshest. Other educa-tional sources include our mentors and CLE. As men-tioned in the last newsletter, our Litigation Section isstriving to provide excellent CLE to allow Sectionmembers many opportunities to strengthen their legalknowledge.

With recent changes to the discovery rules, all Utahlawyers have something to learn about the new litiga-tion process. There are many traps for the unwary. Asa Section, we have provided numerous CLE opportuni-ties to learn about the new rules. For example, we justhad an interesting and informative Quarterly Lunch onFebruary 21, 2012, where the Section provided sum-maries of the changes in the Rules of Civil Procedureand discussed the new practice-specific disclosure rulesfor family law and personal injury cases. At that lunch,Judge Toomey also provided valuable guidance aboutCONTINUED ON PAGE 8

ByJonathan Hafen

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Judge Deno HimonasJudicial Profile“We are entering a new generation”with electronic filing, the digitization

of court files, and the new tiered Utah Rules of CivilProcedure, said Third District Associate PresidingJudge Deno Himonas during a recent interview.Himonas is no stranger to technology. He believesthat in 1989 he was the first attorney in Jones Waldoto use a personal computer at his desk. In selectinghis first computer he enlisted the assistance ofLawrence Lessig—who according to Wikipedia hasgone on to become a Harvard Law School professorand founder of the Sanford Center for Internet andSociety. Himonas is the first to admit that he faceschallenges with the changing technology but he seesit as inevitable and is “not resistant to it.”

Originally from Price, Utah, JudgeHimonas attended law school at theUniversity of Chicago graduating in1989. Following law school he went towork at Jones Waldo. In May of 2004he was appointed to the bench byGovernor Olene Walker.

Judge Himonas describes his 7 1/2years on the bench with excitementand respect. He humbly admits thatthe learning curve is steep and “neverstops.”

Current challenges

When asked about the current challenges he faces asthe Associate Presiding Judge of the 3rd District heimmediately responds with a long list of administra-tive challenges. The main items he is currently grap-pling with are as follows (not necessary in order ofimportance):

• New Rules of Civil Procedure. The new UtahRules of Civil Procedure will present challenges andwill take time to sort out. The changes are sig-nificant and are considered a “pressing matter”for Judge Himonas. For example, in response tothe new rules the 3rd District Court rapidlyissued a Local Supplemental Rule to expedite

discovery disputes under the new rules: Rule10-1-306. Expedited procedures for resolving discoveryissues. Due to the aggressive deadlines dictatedby the new Rules, the normal discovery disputemechanism takes too long; Rule 10-1-306 waspromulgated to address this.

• Digitization of court files. The Court continuesto move to fewer documents and to computerbased technologies. There are great challenges—both physical and fiscal—in making this move.Judge Himonas states that electronic filing isgaining momentum and is inevitable. He is afirm believer in e-filing and is clearly excitedabout the day when e-filing is universal.

• Court resources. Given the realitiesof funding, Court personnel arestretched thin. Judge Himonas rec-ommends that all attorneys andattorney staff realize this reality andwork to take this into account inevery interaction with the Courts.Simple examples of what the barcan do to help the Courts are notto file duplicate copies of docu-ments as exhibits and not to usestaples or tabs which make scan-ning more difficult. The smallthings make a big difference.

• Judicial retirements. Expected retirements willresult in adjustments in administration. This isan exciting time for the 3rd District and presentsa different set of challenges.

Judge Deno Himonas

ByKent Holmberg

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ContinuedJudicial ProfilePractice tips.

Judge Himonas does appreciatecourtesy briefs at least two daysbefore a motion hearing. He rec-ommends you vet your argumentswith other attorneys who are notemotionally involved in the caseand anticipate the Court’s ques-tions. He is a believer in doingmock arguments and even usingmock juries.

Although Judge Himonas willgrant a request for an over-lengthmemorandum, he states that agood brief is succinct and itspoints are supported by solidauthority and are well reasoned.String sites are not necessary unless you need to drawon the law of other jurisdictions.

Final impressions

At the conclusion of the interview of JudgeHimonas, the overriding impression is thatJudge Himonas is taking his charge as theAssociate Presiding Judge seriously. He isidentifying the issues that need attention,meeting them squarely, and finding prag-matic solutions. Thank you Judge DenoHimonas.

Judge Himonashumbly admitsthat the learn-ing curve issteep and

“never stops.”

Summer Convention AwardsThe Board of Bar Commissioners is seeking nominations for the 2012 Summer Convention

Awards. These awards have a long history of honoring publicly those whose professionalism,public service and personal dedication have significantly enhanced the administration of justice,the delivery of legal services and the building up of the profession. Award nominations must besubmitted in writing to Christy Abad, Executive Secretary, 645 South 200 East, Suite 310, Salt

Lake City, UT 84111 or adminasst@utahbar.org, no later than Friday, May 18, 2012.

The award categories include:

1. Judge of the Year

2. Distinguished Lawyer of the Year

3. Distinguished Section/Committee of the Year

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Jordan KendellPractitioner ProfileI first met Jordan Kendell on theopposite side of your typical Utahpersonal injury case brought underadmiralty law. Yes, admiralty law . .. in Utah. Although it may havebeen daunting to work on the case,and thereby (jokingly) become oneof the foremost experts in Utah on

admiralty law, Jordan has never been one to shyaway from a challenge. From trying his first crimi-nal case five days after having been sworn in, tobecoming the youngest partner, at age 29, atEisenberg, Gilchrist & Cutt, Jordan has never beenintimidated by hard work.

Jordan attributes this confidence andimpressive work ethic to his father.Jordan’s father graduated Summa CumLaude from Utah State University inaccounting. From there, Jordan’s fatherstarted as an intern at a bank andworked his way to the position ofPresident of the bank. Following hisfather’s example, Jordan began as anunpaid intern at Eisenberg, Gilchrist &Cutt in 2005 and has worked his wayup to becoming a partner in 2011. Inthose years, Jordan has become a well-established litigator, experienced in allforms of plaintiffs’ work.

Ironically, Jordan did not always want to be a litiga-tor, in fact, he did not even want to be an attorney.Growing up, Jordan wanted to be a doctor.Unfortunately, being a self-admitted “germaphobe,”his plans quickly turned to law. Jordan attended law

school at Thomas M. Cooley Law School inLansing, Michigan. During law school, Jordanalways envisioned becoming a transactional attorney.Because he was not going to be a litigator, he soughtout a litigation internship to say that he had tried it.However, on his first day, he was assigned to workon an insurance bad faith case. From that momenton, he knew he wanted to work as a plaintiffs’ attor-ney and help people who needed the law’s protec-tions. To this day, Jordan states that the best part ofwhat he does is helping people. Every year, hereceives Christmas cards, letters, and food basketsfrom former clients, grateful for his help.

Jordan has all the typical accolades. He graduatedMagna Cum Laude from law school.He received five Blue Book Awards(awarded for the highest grade in class)during his time in law school. He hasbeen named a Rocky Mountain RisingStar for the last couple years. He hasalso been named an “Up and ComingLegal Elite” by Utah BusinessMagazine. He has first or secondchaired at least 10 trials (civil andcriminal) to resolution. He has recent-ly been asked to serve on the Board ofDirectors of the Special Olympics ofUtah and serves on the executive com-mittee of the Young Lawyers Division

and is a co-chair for the And Justice for AllCommittee. Despite all this, he says his greatestaccomplishment is his family. He and his wife havebeen married for going on five years, and they areexpecting their first child, a boy, in June.

Jordan Kendell

ByPatrick Burt

An Evening with the Fourth District CourtJoin us on March 8, 2012 from 6:00 – 7:30 p.m. at the courthouse at 125 N. 100 W., Provo.Presiding Judge Samuel D. McVey will provide our keynote address.Please RSVP to onlineservices@utahbar.orgWe hope you will join us.

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Customer Service for Lawyers

Presiding Judge McVeyEmphasizes Customer Service,Gives Cell Number

Judges have been around for cen-turies. But recently, one here inUtah may have accomplished a first.

Judge Samuel D. McVey, newlyinstalled as Presiding Judge of the Fourth District, isproviding local Bar members a piece of informationnever before available: his cell phone number. JudgeMcVey says attorneys are welcome to call or text himabout virtually any needs or concerns they have withthe Court—provided all ethics rulesare adhered to, of course, includingrestrictions on ex parte communica-tions. For example, if you can’t reach ajudge for an emergency hearing or aproblem in a deposition, he says to callor text. As soon as he can, he will dohis best to ensure you get you whatyou need. The same goes if you havesuggestions or comments about mat-ters related to the Court: just call ortext, and he will respond.

The Friday Afternoon Problem

Judge McVey’s willingness to share hiscell number stems partly from thewidely held notion along the WasatchFront that you can’t get a judge on Friday afternoon.He hopes that by providing his cell number he canhelp dispel that notion—and ensure that counselalways have access to a judge.

Attorneys’ Eyes Only

To avoid misuse, Judge McVey asks that the numbernot be given to, or used by, anyone other than attor-neys. The concern is partly that pro se litigantsmight not grasp the sensitive issues connected with

ex parte communications. And non-attorneys mightbe inclined to misuse instant access to a presidingjudge.

A Focus on Customer Service

Judge McVey is motivated by a desire to providewhat he describes as better “customer service” tosome of the Court’s primary “customers”: lawyers.

And he wants the cell number to be a meaningfulresource. “I want you to call me if there is a prob-lem,” he says, “not just because this is a lonely job,but because I want to ensure timely justice, helpyour practice, and enhance your standing with

clients in the process.”

Get the Number

If you are an attorney and would liketo have Judge McVey’s cell number,please contact his chambers at 801-429-1067.

“Open Court” Sessions

Judge McVey’s “customer service” focusextends beyond providing attorneys hiscell number. He is reinstituting theOpen Court meetings initiated yearsago by then-Presiding Judge RaymondHarding, now retired. On the fourthFriday of each quarter, attorneys andstaff are welcome to come in for these

sessions, which he says “will be totally informal—informal dress if you want. I will just ask what’s onyour mind, answer questions and hear out your com-ments and concerns. You can come late and leaveearly if you want.” The sessions are scheduled to lastan hour and a half, but the judge says he’s happy tostay past that if needed. “If anyone wants me to getany other judge, commissioner or clerk there, just letme know in advance and I’ll ask them,” he adds.Upcoming sessions are slated for April 27, July 27

Judge McVey ismotivated by adesire to providewhat he describesas better “customerservice” to some ofthe Court’s primary

“customers”:lawyers.

ByIsaac Paxman

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ContinuedCustomer Service for Lawyers

and October 26, 2012 in Courtroom 302 in theCourthouse at 125 North 100 West in Provo.

Going Paperless

The first four to five months after Judge McVey wasnamed Presiding Judge in July 2011were largely occupied with the Court’seffort to go paperless. He is glad toreport that almost every judge in thedistrict is now able to take the benchwithout hard-copy files and that theCourt’s archives are now largely avail-able in electronic form through theonline access system known as X-Change, thanks, in part, to two part-time employees who, for the past sev-eral months, have been dedicated tonothing but scanning. Within thenext 18 months, he anticipates that allFourth District Court filings, from atleast as far back as 1990, and throughto the present, will be available online. Attorneysand others may still file paper versions of documentsif they prefer, but thirty days after filing, the docu-ments will be destroyed by the Court (after scan-ning).

With more computer terminals slated to be installedin courthouse lobbies, and with attorneys now able

to access Court filings from even their mobiledevices, the move away from paper can be seen asone more effort to better serve the public and theBar.

On the Shoulders of Giants

Judge McVey is quick to acknowledgethat his measures would not be possi-ble without the foundation laid byprior presiding judges, particularly thetwo immediately preceding him: JudgeJames R. Taylor and Judge Derek P.Pullan. Judge Taylor pushed hard toget another judicial position for theFourth District. Judge Pullanunclogged judicial calendars throughpolicies designed to move cases along,particularly in the family law arena.This foundation freed Judge McVey tomake new headway in other areas.

Paradigm Shift

A guiding star to Judge McVey’s efforts is this view:“I want a culture where the Courts serve the public(and you as the people’s representatives) and not theother way around.” Members of the Bar and theirclients are sure to applaud that paradigm—and themeasures resulting from it.

Judge Pullan alsodiscussed how theconcept of propor-tionality led to thecreation of a newthree-tier systemof pleading and

discovery

“What I Wish the Other Side Understood”Join us on March 7, 2012 from 8:00 a.m. – 9:00 a.m. at Utah State Bar Building.Our panelists will be: William B. Bohling, Bohling Mediation, LLC;Gregory J. Sanders, Kipp & ChristianJeffrey D. Eisenberg, Esienberg Gilchrist & Cutt1 Hour CLETo register, please email RSVP to sections@utahbar.org or fax (801) 531-0660.Please include your name and bar number on all RSVP’s.

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On December 12, 2011, theLitigation Section sponsored a time-ly CLE quarterly luncheon focusedon how judges may understand anddeal with the proportionalityrequirement embedded in the newRule of Civil Procedure 26. Thatrule became effective on November

1, 2011. The CLE presentation was entitled “AJudicial Perspective on the New ProportionalityRequirement of Rule 26.” The panel was comprisedof two members of the judiciary: Judge Derek P.Pullan and Judge David M. Connors. Each sharedimportant information regarding such topics as thepromulgation and implementation of this rule andrelated rules and providedhelpful insights into how thejudiciary may use the pro-portionality requirement tocontrol discovery and to pre-vent discovery abuses.

Judge Pullan began the dis-cussion with a slide presen-tation highlighting some ofthe features of the new rulesgenerally, including thefront-loading of informa-tion, proportionality, andcurbing the costs of expertdiscovery. Turning hisattention to proportionality, Judge Pullan explainedthat in litigation, one size does not fit all. He notedthat the Advisory Committee Note to Utah Rule ofCivil Procedure 26(b) states that proportionality“means that the cost of discovery should be propor-tional to what is at stake in the litigation.” UnderRule 26(b)(3), the burden of showing that discoveryis proportional is always on the party seeking the dis-covery. Judge Pullan explained that under Rule

37(c)(10), a court can allocate discovery costs to theparty seeking the discovery to achieve proportionali-ty.

Judge Pullan also discussed how the concept of pro-portionality led to the creation of a new three-tiersystem of pleading and discovery. In Tier 1 cases (inwhich $50,000 or less is at stake), litigants are limit-ed to three (3) hours of fact depositions, five (5)requests for production, and five (5) requests foradmission. This discovery must be completed with-in 120 days. Notably, interrogatories are not permit-ted in Tier 1 cases absent a court order or the agree-ment of the parties. In Tier 2 cases (in which morethan $50,000 but less than $300,000 is at stake or in

which non-monetary reliefis sought), litigants are lim-ited to fifteen (15) hours ofdepositions, ten (10) inter-rogatories, ten (10)requests for production,and ten (10) requests foradmission. This discoverymust be completed within180 days. Finally, in Tier 3cases (in which more than$300,000 is at stake), liti-gants are limited to thirty(30) hours of depositions,twenty (20) interrogatories,twenty (20) requests for

production, and twenty (20) requests for admission.This discovery must be completed within 210 days.Additional discovery can be sought in an extraordi-nary case, but such a motion cannot be filed beforethat party has reached the limits of standard discov-ery as outlined above. Such a motion must bebrought before the close of standard discovery. Thediscovery sought will be granted only after such dis-covery is shown to be necessary and proportional,

ByRyan Frazier

CLE Luncheon New Proportionality Requirement of Rule 26

Judge Derek P. Pullan, Judge David M. Connorsand Moderator Ryan Frazier

and the party has reviewed andapproved a discovery budget.

Judge Connors discussed the new rule10-1306, which has been adopted bythe Third District Court entitled“Expedited Procedures for ResolvingDiscovery Issues.” It is a rule designedto “further the just, speedy, and inex-pensive determination of civil actions”by expediting the briefing and deter-mination of discovery disputes. Itapplies to all discovery motions,including a motion for extraordinarydiscovery (discussed above), a motion

to compel, or a motion for protectiveorder. The Rule can be found on theThird District Court’s website:http://www.utcourts.gov/courts/dist/distsites/3rd/. The Rulehas also been adopted in the FourthDistrict.

The December 12th Litigation SectionQuarterly Luncheon materials can befound in their entirety at:litigation.utahbar.org/clearchives.html.

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ContinuedCLE Luncheon

Judge Pullan alsodiscussed how theconcept of propor-tionality led to thecreation of a newthree-tier systemof pleading and

discovery

CONTINUED FROM PAGE 1 new local Rule 10-1-306 governing resolution of alldiscovery disputes (regardless of whether the case wasfiled under the old discovery rules orthe new discovery rules) in the ThirdDistrict, the Fourth District, and halfof the Second District. She has writtena brief article for this newsletter aboutRule 10-1-306.

We have many upcoming events inother areas of the law as well. OnMarch 7, we will have a “Rise andShine” breakfast CLE at the Law andJustice Center on “What I Wish theOther Side Understood.” This CLEwill focus on ways to communicatewith opposing counsel in litigation andduring mediation to get cases resolved.The next day, we will hold our first“Evening with the Fourth District Court,” where wewill hear from, among others, Presiding Judge McVeyand veteran litigator Dayle Jeffs. We will also have aquestion-and-answer session with a panel of FourthDistrict Judges. We look forward to our nextQuarterly Lunch with Justice Tom Lee on April 23,

and the Fifth Annual Southern Utah Federal LawSymposium on May 3-5 in St. George.

Through these CLE events, we not onlyhave the opportunity to expand ourknowledge of the law and the process oflitigation, we also have the opportunityto meet and mingle with our judges andfellow lawyers. While most would callthis “networking,” I strongly believe that(in addition to networking) such inter-action strengthens our legal culture byaffirming our commitment to be capa-ble and prepared lawyers who enjoy get-ting together as colleagues.

After practicing for a few years in anoth-er state and then moving to Utah, I hada very favorable first impression ofUtah’s lawyers and Judges. That initial

impression has never changed. Opposing counseloften become colleagues, friends, and referral sources.Judges continuously offer to support our Section byparticipating in CLE, helping with Bench Books, andproviding guidance for programs and events.

Simply put, Utah is a great place to be a lawyer.

“Opposingcounsel often

become colleagues,friends, and

referralsources.”

ContinuedPresident’s Message

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giokl jista senn. Margil forat renmill sengra klatu nicktu bara-da. Lorem Ispsom jango boba quigon jin obiwan fett. Temnllgiokl jista senn. Margil forat renmill sengra klatu nicktu bara-da. Lorem Ispsom jango boba quigon jin obiwan fett. Temnllgiokl jista senn. Margil forat renmill sengra klatu nicktu bara-da. Lorem Ispsom jango boba quigon jin obiwan fett. Temnll

giokl jista senn. Margil forat renmill sengra

klatu nicktu barada. Lorem Ispsom jango boba quigon jinobiwan fett. Temnll giokl jista senn. Margil forat renmill sen-gra klatu nicktu barada.

Lorem Ispsom jango boba quigon jin obiwan fett. Temnllgiokl jista senn. Margil forat renmill sengra klatu nicktu bara-da. Lorem Ispsom jango boba quigon jin obiwan fett. Temnll

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May 3-5, 2012Southern Utah Federal Law Symposium

Fifth Annual

Southern Utah Federal Law SymposiumPlease join us for the Federal Bar Association’s Fifth Annual Southern Utah Federal Law

Symposium May 3-5, 2012. This event promises to be our best Symposium yet! The highlightof this year’s symposium will be a United States Supreme Court Swearing in Ceremony con-

ducted by Gen. William Suter, the Chief Clerk of the United States Supreme Court.

The event will start on May 3 with an evening reception atTuacahn Center for the Arts, where we will have the oppor-tunity to chat with General Suter, and with Federal Judgesfrom Utah and Nevada. Following the reception, Tuacahnwill provide entertainment, and Fern Bomchill, the FBA’sNational President, will give her highly regarded presentation“Negotiating Ethics.”

On Friday, following breakfast, our participating Federal Judgesand other distinguished presenters will provide informativeand entertaining CLE in a variety of Federal practice areas.Our lunch speaker will be Gen. Suter, who will give us his“Supreme Court Report.” Following his remarks, he willconduct the Supreme Court swearing-in ceremony.

For you golfers, on Saturday, May 5, there will be a scramble golf tourna-ment at the beautiful Coral Canyon Golf Course. You are free toarrange your own foursomes, or we will match people up. Prizes willbe awarded.

To review the complete agenda, and to register, go towww.utahbar.org/cle/events and click on the link to the Southern UtahFederal Law Symposium. For any questions regarding registration orto register by phone, call (801) 297-7036.

See you there!

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The UtahSupreme Courtrecentlyaddressed Utah’sexemptionstatute and therequirements forretirement plans

to qualify as exempt, as well as the jurisdictionalauthority of district courts to issue writs of attach-ment concerning extraterritorial property. Thosedecisions are summarized below. We encourage youto visit Opinion Watch on the Litigation Section web-site here to review and take advantage of additionalsummaries of important Utah appellate decisions.

• In re Reinhart, 2011 UT 77 (Dec. 16, 2011)

In Reinhart, on certification from the Tenth Circuit,the Utah Supreme Court undertook an analysis ofUtah Code Ann. section 78B-5-505, the Utahexemption statute, and “whether a retirement plancan be ‘described in Section 401(a)’” of the InternalRevenue Code (“IRC”), as required by section 78B-5-505 to be exempt, “when it fails to fulfill that sec-tion’s requirements for tax qualification.” Id. ¶ 1.The court concluded that a retirement plan is in fact“described in Section 401(a)”—and therefore quali-fies for exemption—if the plan “substantially com-plies with that section.” Id.

Reinhart filed a voluntary chapter 7 bankruptcy peti-tion in Utah. With his petition, he submittedschedules claiming that the funds in his Keoghretirement plan were exempt from bankruptcy pro-ceedings pursuant to Utah Code Ann. section 78B-5-505(1)(a)(xiv). Id. ¶ 4. The bankruptcy courtdetermined that, although Reinhart’s Keogh planwas not “technically” tax qualified under IRCSection 401(a) due to operational defects, it was“nonetheless, described in Section 401(a)” and there-fore exempt under section 78B-5-505. Id. ¶¶ 5-6.The trustee appealed the bankruptcy court’s exemp-tion order to the district court and then to the TenthCircuit, which certified to the Utah Supreme Court

the state law question identified above. Id.

In reviewing Utah’s exemption statute, the courtnoted that such statutes are to be construed liberally“in favor of the debtor to protect him and his familyfrom hardship.” Id. ¶ 10. Examining the plain lan-guage of section 78-5-505(1)(a)(xiv), and the UtahLegislature’s use of the phrase “described in Section401(a)” rather than “qualified under”—as is used inother state exemption statutes—the court concludedthat the phase “described in” is more broad. Thecourt likewise determined that the legislature’s use ofthe phrase “described in” is consistent with the IRC,“which makes it clear that a retirement plan does notnecessarily lose its tax exempt status as a result oftechnical defects in the plan.” Id. ¶ 13. Specifically,the court noted the existence of the IRS-createdEmployee Plans Compliance Resolution System,through which a retirement plan that is otherwisetechnically deficient is permitted to retain its taxexempt status while the employer cures the opera-tional defects. Id.

The court further determined that its interpretationof section 78-5-505(1)(a)(xiv) is consistent with theoverarching purpose of the bankruptcy code “to helpa debtor obtain a fresh start.” Id. ¶ 14. And becausethe court “believe[s] that the legislature did notintend for a debtor to lose his entire retirementexemption because of technical violations of 401(a),”the court held that “a retirement plan is ‘describedin’ section 401(a) if it substantially complies with therequirements of that section. And an unqualifiedplan is in substantial compliance with the provisionsof 401(a) if the defect does not violate the underly-ing purpose of 401(a),” i.e., the defect is “not theresult of an attempt to avoid tax.” Id. ¶ 16.

Justice Lee wrote a substantial dissent to the majori-ty’s opinion, which is not discussed herein.

Full opinion available at:

http://www.utcourts.gov/opinions/supopin/Gladwell121611.pdf

http://scholar.google.com/scholar_case?q=gladwell+re

Opinion Watch

ByHeather Sneddon

ByRick Kaplan

11

inhart&hl=en&as_sdt=4,45&case=17684616768738508620&scilh=0

• Aequitas Enterprises, LLC v. Interstate InvestmentGroup, LLC, 2011 UT 82 (Dec. 23, 2011)

In Aequitas, the Utah Supreme Court held that a dis-trict court lacks the requisite authority to issue a writof attachment on extraterritorial property, even incases where the court has in personam jurisdictionover the parties.

Aequitas Enterprises, LLC (“Aequitas”) and InterstateInvestment Group, LLC (“Interstate”) entered into areal estate contract for the sale of 388 properties, alllocated outside the state of Utah. Aequitas paid $2.6million in exchange for title to all of the properties,but Interstate claimed, due to circumstances beyondits control, that it could not deliver the titles.Aequitas subsequently sued Interstate in personamfor breach of contract and moved the district courtfor an extraterritorial prejudgment writ of attach-ment to secure its place in the chain of title.Interstate challenged the court’s authority to attachreal property located outside the state of Utah. Thedistrict court granted Aequitas’ motion to attach theproperties and entered an order vesting title to all ofthe properties in Aequitas. The Supreme Courtgranted Interstate’s request for interlocutory appeal.Id. ¶¶ 1-6. Significantly, however, Interstate did notappeal the district court’s finding of personal juris-diction. Id. ¶¶ 9-10.

The issue before the court, therefore, was “whetherthe district court had authority to enter an extraterri-torial prejudgment writ of attachment in a proceed-ing in which it had in personam jurisdiction over theparties.” Id. ¶ 11. Because the authority to issuewrits of attachment is grounded in state law, thecourt reviewed Utah Rules of Civil Procedure 64(Writs in general), 64A (Prejudgment writs in gener-al) and 64C (Writ of attachment), but found “noanswer to the question of whether an attachmentmay be issued against extraterritorial property.” Id. ¶14. The court noted that the parties interpreted thatsilence differently. Id.

Recognizing that general rules of statutory construc-tion apply in interpreting procedural rules, the courtreviewed the precise language of the controlling pro-cedural rules concerning prejudgment writs and heldthat “because [they] omit any reference to authorityto issue extraterritorial writs of attachment, we mustconclude that the omission was intentional and thatno such authority exists.” Id. ¶ 17. Specifically, thecourt quoted Rule 64(d)(1), which instructs "theclerk of the court [to] issue the writ [for seizure ofreal property] to the sheriff of the county in whichthe real property is located," and found that “Utahcourts and clerks have no authority to direct sheriffsof other states' counties to seize property.” Id. Thecourt similarly looked to Rule 70, which providesthat "[i]f real or personal property is within the state,the court in lieu of directing a conveyance thereofmay enter a judgment divesting the title of any partyand vesting it in others and such judgment has theeffect of a conveyance executed in due form of law."Id. The court found that Rule 70 “says nothingabout real or personal property not located in thestate.” Id.

The court likewise determined that its conclusionwas consistent with questions of due process andcomity that might arise if the court were to authorizethe issuance of extraterritorial writs of attachments,and analyzed cases from other jurisdictions. Id. ¶¶18-22. Please see the full opinion for this additionalanalysis.

Full opinion available at:

http://www.utcourts.gov/opinions/supopin/Aequitas122311.pdf

http://scholar.google.com/scholar_case?q=aequitas+investment+utah&hl=en&as_sdt=2,45&case=7164608141138781387&scilh=0

(continued)Opinion Watch

The Third District Courts NewLocal Supplemental Rule

Effective November 17, 2011, theThird District Court adopted a localsupplemental rule intended to providefor a rapid and inexpensive means ofresolving discovery disputes short of aformal motion, which could take

months to brief, argue, and resolve. The court did thisbecause the new Rules of Civil Procedure, whichbecame effective on November 1, and are intended tosimplify, streamline, and reduce the expense of litigationby requiring more comprehensive initial disclosures andcomparatively limited discovery, providedeadlines intended to keep cases movingquickly towards resolution. Discovery-related motions, such as motions tocompel and motions for protectiveorders, might not be ripe for decisionwithin these new time frames, and thejudges in this district concluded that liti-gants and their counsel would benefitfrom a rule that offered a more expedi-tious manner of quickly resolving disput-ed issues without requiring counsel tofile a motion and the related memorandaprovided under Rule 7.

The rule, which was reviewed by theBoard of District Court Judges onDecember 2, 2011, and ratified by the Judicial Councilon December 12, is available on the Third DistrictCourt’s homepage, which you can reach through thecourts’ website, athttp://www.utcourts.gov/courts/dist/distsites/3rd/. Therule provides as follows:

Rule 10-1-306. Expedited Procedures for ResolvingDiscovery Issues. Intent: To further the just, speedy, andinexpensive determination of civil actions. (Utah R. Civ.P. 1).

Applicability: This rule shall apply to the Third DistrictCourt.

Statement of the Rule:

(1) Status and scheduling matters are handled different-ly by each judge. Contact one of the judicial assis-tants for the assigned judge for specific questions. Inall cases, however, counsel shall:

a. Promptly notify the court of any stipulations forextraordinary discovery entered pursuant to Rule26(c)(6)(A), including notice to the court of anystipulations that extend the presumptive deadlinesset forth in Rule 26(c)(5). Stipulations shall beprepared on or substantially comply with theform accompanying this rule; and

b. Promptly notify the court of any settlements orstipulations in the case, particularly wheresuch settlements or stipulations mayaffect a pending motion or trial date.

(2) The parties shall do the followingbefore filing with the court any dis-covery motion, including a Motionfor Extraordinary Discovery (Utah R.Civ. P. 26(c)(6)(B)), Motion toCompel, or Motion for ProtectiveOrder (Utah R. Civ. P. 37):

a. Meet and confer regarding the issues,in person or by telephone, andattempt in good faith to resolve ornarrow the issues without courtinvolvement.

b. File and serve on all parties a “Statement ofDiscovery Issues”, in a form consistent with therequirements of Rule 10. The statement shall notexceed four pages, shall not include exhibits, andshall include a certification stating that the partieshave met and conferred regarding the issues andattempted in good faith to resolve or narrow theissues without court involvement. The statementshould contain at least the following: (1) the preciserelief sought, (2) the basis or reason for the reliefsought, (3) a statement regarding proportionality(Utah R. Civ. P. 26(b)(2)), and (4) a statement incompliance with Rule 26(c)(6), if applicable. Theparty shall also file a separate proposed form of Order

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Rule 10-1-306.Expedited

Procedures forResolvingDiscoveryIssues.

By JudgeKate A. Toomey

New Local Supplemental Rule

consistent with the relief sought.

c. Within five days following service of the“Statement of Discovery Issues”, any party object-ing to the relief sought may file and serve a“Statement in Opposition” in a form consistentwith the requirements of Rule 10. The oppositionshall not exceed four pages and shall not includeexhibits. The opposition should briefly addresspertinent issues raised in the statement. The partyshall also file a separate proposed form of Orderconsistent with the relief sought. The parties’written submissions will be docketed and placedin the court file.

d. Upon filing the opposition, or expiration of thetime for doing so, either party may, and the partyseeking relief shall, file with the court a Requestto Submit for Decision. (Utah R. Civ. P. 7(d)).

e. The court will promptly set a telephone confer-ence to discuss the matter, and will advise the par-ties by email or telephone of the date and time forthe conference. The court reserves the right todecide the issue(s) without a telephone conferenceif it determines that a conference is unnecessary,and in its discretion, may require the appearanceof counsel and/or the parties in lieu of a tele-phone conference.

f. The court will resolve most if not all discoveryissues during or in advance of the phone confer-ence. The court anticipates that no discoverymotions will be necessary, but if appropriate, thecourt will use the telephone conference to set abriefing schedule for a motion addressing all unre-solved issues together with a hearing date, if need-ed. In most circumstances, the court anticipatesadopting one or the other of the proposed Orders.

(3) The parties are reminded that stipulations forextraordinary discovery pursuant to Rule26(c)(6)(A) are appropriate only “after reaching the

limits of standard discovery imposed by [the] rules .. . ” and only if that discovery is proportional.

(4) Upon the filing of a responsive pleading, all casessubject to Rule 4-510.05 shall be referred to theADR program, unless the parties have participatedin another ADR process, such as arbitration, collab-orative law, early neutral evaluation or a settlementconference, or unless excused by the court. At theclose of the presumptive case deadline, the partiesshall file with the court a certificate confirming thatgood faith mediation (or other ADR process) hasbeen completed or excused. (Utah R. Civ. P. 16(b)).

(5) If the discovery deadline passes and a Certificate ofReadiness for Trial has not been filed, the court mayat its discretion issue an order to show cause why thecase should not be dismissed. At that hearing, thecourt will dismiss the case without prejudice, orderdeadlines for specific actions to be taken, or set atrial date. If actions are not completed as ordered,the matter may be dismissed without further notice.If parties wish to stay proceedings, they should filean appropriate motion during the pendency of thecase deadlines.

(6) Proposed orders should be prepared and circulatedin accordance with the requirements of Rule 7(f)(2)of the Utah Rules of Civil Procedure. Additionally,the order should be electronically filed with theclerk’s office, or a copy of the order in native elec-tronic form (e.g., Word or WordPerfect) should beemailed to the court’s judicial assistant includingorders provided pursuant to paragraph 2(b) and (c)above.

The Fourth District has adopted the same rule, on aninterim basis, and the Judicial Council has referred it tothe Policy and Planning Committee for consideration asa statewide rule.

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ContinuedNew Local Supplemental Rule

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On November 4 and 5, the regionalrounds of the 62nd Annual National

Moot Court Competition were held at theUniversity of Utah S.J. Quinney College of Law.Both of the College of Law’s teams excelled in thecompetition. The team of Kim Child, Matt Dodd,and Corey Sherwin advanced to the semifinal round.The team of Levi Cazier, Matt Kauffman, and AdamPace made it to the final round, where they lost to ateam from the University of Colorado. By virtue oftheir second place overall finish, Cazier, Kauffman,and Pace will participate in the final round of thecompetition in New York City in January. Cazierearned an award for best oralist in thefinal round.

The teams of Jessica Samowitz/MattPernichele and VeronicaMcDougal/Ben Lawrence ably repre-sented the University of Utah S.J.Quinney College of Law in the recentregional rounds of the ABANegotiation Competition (coveringCalifornia, Nevada, Arizona andUtah). The competition was heldNovember 5-6 at Santa ClaraUniversity in Santa Clara, California.The team of McDougal and Lawrenceplaced sixth out of 28 teams. But theCollege of Law was assigned to the“weaker” side; as a result, althoughthey were the second-best team on that side, theywere not in the top 4 that advanced to the finalround.

The National Jurist announced that it is recognizing61 law schools in five different categories that bestprepare students for public service. Although thecomplete lists of schools will not be published untilJanuary, the magazine provided an advance list fortwo of those categories: (1) top schools for govern-ment jobs and (2) top schools for prosecutor/publicdefender jobs. The University of Utah S.J. QuinneyCollege of Law was among only 15 schools national-ly that were included in the latter category.

On Saturday, November 19, more than fifty S.J.Quinney College of Law alumni and students cametogether to provide hours of community service at

the James Russell Head Start School inSalt Lake City as part of the YoungAlumni Association’s annual “Serviceand Schmoozing” event. The projectwas co-sponsored by the College ofLaw’s Professional DevelopmentOffice. Volunteers assembled informa-tion packets for parents, helped prepare“wish list tags” for the annual“Operation Chimney Drop” toy andclothing drive, and painted recyclingbins.

For more information and news aboutthe College of Law, please visit:http://today.law.utah.edu.

What's New at the S.J. Quinney College of Law?Campus Notes

“The StudentLitigationSociety, a student

organization,was foundedthis year.”

ByNicholas Caine

Judicial Restraint, Activism and the Rule of LawJoin us on April 23, 2012 from 12:00 a.m. - 1:00 a.m. at Law and Justice Center.The presenter will be Justice Thomas R. Lee.We hope you will join us.

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As fireworks flared and a balldropped in NYC, the law school atBYU closed out an eventful year fullof exciting events, notable rankings,and further academic success. Anddespite the crunch and stress thatfinals bring to each holiday season,BYU found several ways to make the

season brighter and more festive. As the coming yearrolls forward, the future promises more of the samefor BYU.

The J. Reuben Clark Law School continued its tradi-tion of providing an impressive legal education to itslaw students throughout 2011, includ-ing the last few months. In November,BYU was named 2nd overall in valueby the National Jurist, with a 2 yearemployment average of 96% and anannual tuition of only $10,280. At thesame time, BYU has added several newmembers to its staff, both in full-timeand part-time positions. These andother faculty members have providedstudents with the opportunity to partic-ipate in a variety of unique educationalexperiences that will provide real-worldand long-term benefits. Among theseexperiences, students were able to par-ticipate in writing and submitting anAmicus Brief to the United StatesSupreme Court in support of the Petitioner inHosanna-Tabor Evangelical Lutheran Church andSchool v. EEOC. The case resulted in a unanimousdecision in favor of the petitioner, a decision that fur-thered religious protection from governmental inva-sion. Of particular interest to the Litigation Section,BYU’s annual Linda G. Anderson Trial AdvocacyCompetition ended November 7. During the compe-tition, students were placed in a trial setting and givenpractical experiences before actual practitionersincluding opportunities to question witnesses, raiseobjections and give opening and closing arguments.

Jeffery Stott and Aaron Banks, third-year students,won the competition by a narrow margin over IvyRivera and Laura Marquez, both in their second-year.

While considerable attention has been paid to the aca-demic success of BYU students, these future lawyersfind ways to enjoy law school outside of the class-room. During the holidays, while final exams couldhave been focusing students on themselves and theirbooks, many students took time out of their busyschedules to participate in the annual BYU LawSchool Christmas Service Project to benefit theRonald McDonald House. Students donated itemslike aluminum foil and canned goods to needy fami-

lies lacking basic household items.Students also channeled the spirit of theholidays by participating in the CareerServices Office’s annual Ugly SweaterContest and the new Carols in theCommons event presented by the BYULaw School Choir. Each of these eventshelped students to remember the festivenature of the holidays and not lose sightof what will always be important, evenafter finals are over.

Overall, 2011 was a wonderful year atBYU, full of accolades and new experi-ences. Students were able to participatein a variety of ways and enjoy a vastarray of programs and services. Looking

forward, 2012 promises to be a year with much of thesame, if not better.

Larsen, Rebecca, “Best Value Law Schools”, National Jurist, November2011, p. 25,

“U.S. Supreme Court Decision -- BYU Law Students Assisted in AmicusBrief”, BYU News and Events, http://www.law2.byu.edu/news, postedJanuary 2012,

Carmack, Heidi, “Prosecution Team Wins Linda G. Anderson TrialAdvocacy Competition”, BYU News and Events,http://www.law2.byu.edu/news, posted November, 2011.

“BYU Law School Christmas Service Project”, BYU News and Events,http://www.law2.byu.edu/news, posted November, 2011.

“Over the pastyear, the law

school has beenimproving its facil-ities in order to

provide students with abetter learningenvironment.”

BySeth Oxborrow

Campus Notes The Blue and White in Winter: BYU LAW

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Upcoming EventsDate: March 7, 2012Time: 8:00 a.m. – 9:00 a.m.Event: “What I Wish the Other Side Understood”Panelists: William B. Bohling, Bohling Mediation,LLC;Gregory J. Sanders, Kipp & ChristianJeffrey D. Eisenberg, Esienberg Gilchrist & CuttModerator: Patrick Burt, Kipp & Christian Location: Utah State Bar BuildingCost: $25 Litigation Section Members and $35 forall others.1 Hour CLEAdditional Information: Breakfast will be provid-ed To Register: Kindly email RSVP tosections@utahbar.org or fax (801) 531-0660.Please include your name and bar number on allRSVP’s.

Date: March 8, 2012Time: 6:00 – 7:30 p.m.Event: An Evening with the Fourth District Court”Presiding Judge Samuel D. McVey will provideour keynote address. Then prominent litigator M.Dayle Jeffs, a bar member for over 50 years, willgive us glimpses into what practice here was likewhen he first started—and how things havechanged since then. We’ll hear brief remarksfrom the clerk’s office, and the presentation willconclude with a panel of distinguished judgesresponding to questions collected from practi-tioners. Light refreshments will follow this freeinaugural event. We hope you will join us.Location: The courthouse at 125 N. 100 W.,Provo, Utah 84601Please RSVP to onlineservices@utahbar.org

Date: April 23, 2012Time: 12:00 a.m. - 1:00 a.m.Event: “Judicial Restraint, Activism and the Ruleof Law.”Presenter: Justice Thomas R. LeeLocation: Law and Justice Center

Date: May 3rd – May 5th, 2012Time: TBAEvent: Fifth Annual Southern Utah Federal LawSymposiumUnited States Supreme Court Swearing inCeremony conducted by Gen. William Suter, theChief of the United States Supreme Court.The event will start on May 3 with an eveningreception at Tuacahn Center for the Arts, wherewe will have the opportunity to chat withGeneral Suter and with Federal Judges from Utahand Nevada. Following the reception, Tuacahnwill provide entertainment, and Fern Bomchill,the National President of the Federal BarAssociation, will give her highly regarded presen-tation “Negotiating Ethics.”On Friday, following breakfast, our participatingFederal Judges and other distinguished presen-ters will provide informative and entertainingCLE in a variety of Federal practice areas. Ourlunch speaker will be Gen. Suter, who will giveus his “Supreme Court Report.” Following hisremarks, he will conduct the Supreme Courtswearing-in ceremony.For you golfers, on Saturday May 5, there will bea scramble golf tournament at the beautifulCoral Canyon Golf Course. You are free toarrange your own foursomes, or we will matchpeople up. Prizes will be awarded.To review the complete agenda, and to register,go to www.utahbar.org/cle/events and click onthe link to the Southern Utah Federal LawSymposium. For any questions regarding regis-tration or to register by phone, call (801) 297-7036.

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Upcoming EventsDate: May 9, 2012Time: 12:00 pm-1:30 p.m.Cost: $15.00 Event: “Body Language”: Amy Walker will comeand speak on how to read the body language ofyour clients, opposing counsels, witnesses andjudges. She has taught classes around the stateand her trainings are in great demand.Location: The Farmington Court HouseLunch will be provided1 hour CLE, please RSVP by May 2nd, to cather-ine@hoskinslegal.com.

Date: August 3, 2012Time: 12:00-1:30 p.m.Cost: $10.00Event: Changes with Justice Court: Davis CountyJustice Court Judges will come and speak onpractice pointers and changes to Justice Court. Location: The Farmington Court HouseLunch will be providedPlease RSVP by July 27th, tocatherine@hoskinslegal.com.

Date: October 5, 2012Time: 12:00-1:30 pm. Cost: $10.00Event: Meet and Greet with Weber County Judges- This is a great opportunity to get some pointersand learn something new about the WeberCounty Judges.Location: Ogden Court House, Judge DiReda’sCourt roomLunch will be provided Please RSVP by September 28th tocatherine@hoskinslegal.com.

Date: November 2, 2012Time: 12:00-1:30 pmCost: $10.00Event: Contempt of Clerk, Joan CommissionerDillon’s Clerk will speak on how to win andinfluence clerks. For example do speak civilly tothem at all times, do not fax over a ream ofpaper the night before a hearing and then be out-raged when the Court did not have time toreview it.Location: The Farmington Court HouseLunch will be providedPlease RSVP to catherine@hoskinslegal.com byOctober 26th.

2012 Summer Convention AwardsThe Board of Bar Commissioners is seeking nom-inations for the 2012 Summer ConventionAwards. These awards have a long history ofhonoring publicly those whose professionalism,public service and personal dedication have sig-nificantly enhanced the administration of justice,the delivery of legal services and the building upof the profession. Your award nominations mustbe submitted in writing to Christy Abad,Executive Secretary, 645 South 200 East, Suite310, Salt Lake City, UT 84111 oradminasst@utahbar.org, no later than Friday,May 18, 2012.

The award categories include:1. Judge of the Year2. Distinguished Lawyer of the Year3. Distinguished Section/Committee of theYear

Do you have ideas, questions orcomments about this newsletter? We want to hearfrom you, our members. Pleasesend your questions or com-ments to editor Nicole Farrellat nfarrell@parsonsbehle.com.

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Message from the Editor

OfficersChair - Jon HafenChair-Elect - Ryan FrazierTreasurer - George BurbidgeSecretary - David Castleberry

MembersRyan HarrisSammi Anderson Alec McGinnElaina MaragakisPatrick Burt Keith A. Call Bryan PattisonIssac D. PaxmanHon. Stephen RothHon. Denise P. LindbergNicole Farrell

Randall Jeffs Emily SmithDan SteelePatrick TannerKent HolmbergHeather ThuetHeather SneddonRichard KaplanJoe StultzJenifer TomchakSeth Oxborrow, ex officio member (BYU)Nicholas Caine, ex officio member (U of U)

Executive Committee Members

EditorNicole Farell