SPRING 1993

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The Arkansas Lawyer

FAX POLL

2. Did you agree w~h the verdict inthat trial?

1. Did you follow the criminal trialof the officers accused of usingexcessive force against RodneyKing?

noyes

9. 00 you think 'police brutality· isa major problem in the UnitedStates?

10. 00 you think 'police brutality'is a major problem in Arkansas?

yes no

8. 00 you think the two officersacquitted should have beenconvicted of aiding and abetting?

yes no

noyes

This issue's FAX Poll 'ocuses onIhe Rodney King lrials which havejusl concluded al press time.Please circle your response.Commenls are welcome, pleaseallach additional sheels 10 yourFAX Poll if necossary.

2. Do you Ihlnk Ihe use ot English Rule would discourage Irlvolous orquestionable IIl1gatlon?

?8% Yes ZZ% No

3. Do you think use of contingency lees discourages frivolous or questionablelitigation?

28% Yes 72% No

1. Some view the idea 01 English Rule or 'oser pays"' as the only fair way 01paying lor IItlgalion. Do you think Ills "fair?"

50% Yas 50'10 No

5. Do you think the Implementation or English Rule would Increase thenumber of earty settlements?

?8% Yes 22% No

4. Do you Ihlnk Ihan Ihe use 01 English Rule would Inhlblilhose wllhmeritorious claims from seeking compensation?

66% Yes 34'10 No

Results of the Winter 1993 FAX POLLWe nce/red 32 rt/sponses 10 our FAX POil from the Winter 1993 ;ssue. Withthe readership cu",ntly numbering approxfmatlJ/y 4,200, this Is obviously nDtan aceural. "sUrv.y" of Ih. "adBTShlp and Is nollnl.nd.d 10 "p"s.nl such.The FAX Poll exists to provide a format for readers to voice their opinions and/0 open discussion on Issues which may be explored further In articles oressays In th, magazine. If any reader would like 10 comment on the Issuesdiscussed hert In the form of an essay Dr artie/e, please send to Editor,Arkansas Lawyar Magllin., 400 W. Markham, Lilli. Rock, AR 72201. B.loware the "sults. figured by percentage. Some percentages will not add 10100% as more than one answer or no answer was gir,n.

6. Do you think English Rule should be Implemenled In Ihe United Slates onI national basis?

44% Yes 53% No

7. Do you think Individual states should Implement English Rule?44% Yes 53% No

8. II you answered yes to either or the previous two questions, do you leel"loser pays" should be limlled to IIl1gation Involving prlvalely lundedIndividuals lacing Instllullons? (i.e., Joe SlIpSla" vs. MelronallonalInsurance)

9% Yes 44% No

yes no

3. 00 you feel the justice syslemin the U.S. showed ~s faulls duringIhe first trial?

yes no

4. Did you follow the King civilrights trial through the media?

11. 00 you think the police inArkansas take seriously the lawsagainst using excessive force?

yes no

12. 00 you think the ollicersconvicted should receive themaximum penalty even thoughthey have no criminal records?

9. Do you 1001 legal Aid services should be exempt Irom "loser pays" rules?47% Yes 41% No

yes no yes no

10. Do you think Value Billing would be a good step lowant improving Ihejustice system in the United States?

37,.. Yes 41% NoNolo: Acoupl. 01 "spons.s ask.d whal .alue billing Is. Value blillng Is Ihepracl/ce Dr billing by Ih. lob Ins'ead 01 by Ihe hour, lor ..ampl., ha.'ng abasic charg. 011500 lor dramng a will.

5. Did you agree w~h the verdict?

yes no

13. 00 you think justice will beserved in Ihis case?

yes no

12. Do you think the national or local government should be able to regulatebilling· be it value or hourly?

12% Yes 75% NoNotB: Several respondents voted -no· on this one BVBn If they didn't knowwhat value billing was· a sign of the times?

11. Do you 'value bill" now?6% Yes 28% No 44% Somellmes

6. 00 you think the two officersconvicted of using excessive forceshould have also been convicted ofaiding and abetting?

yes no

14. 00 you think our system ofjustice has been dealt a major blowby the outcome of these cases?

yes no

Comments: _

13. Do you think Ihe American Bar should lake asland on value billing?50% Yes 34'10 No

7. 00 you think the two officersacquitted should have beenconvicted of using excessive force?

14. Do you think lhe Mansas Bar should take a stand on value billing?53% Yes 31% No yes no

FAX this completed sheet to:The Arkansas Lawyer at 375-4901

or mail to 400 W. Markham. Little Rock. Arkansas 72201

Nothing in Lifeis FreeBy Paige Beavers Markman

"Just remember, nothing in life is free." I probably heard this from my motherat least once a month, and I'll probably say the same to my daughter. It's truereally, and something all of those in the legal community are experiencing now.With the election of President Bill Clinton, many good things came to Arkansas more business, a better public image, increased tourism. But with his departure,we also lost. Besides losing the Clinton family, we are now losing several leadersin the legal field to the White House. The past three months here at theAssociation office have been charged not only with excitement about "FOB's"[Friends of Bill] we know going, but also with sadness as we watch some of ourmost active members - leaders in the Association -leaving.

One of those leaders has been very special to many of us here. He's one ofthose people whom most of us look at and say "How does he do itT' and thenfigure that he must never sleep, eat, or spend any time having fun. But aftergetting to know him, you find that serving, leading and giving are his enjoyment.He serves in many capacities in the legal community, giving his tireless effortstoward improving the system and each lawyer with it, enriching the lives of thosein the field by simply being a part of it. He is the one you call when you reallyneed something done - you know he'll take care of it. He may run in at the lastsecond with it, but it will be there. This leader, the one who has paved the wayfor many and will continue to do so in more ways than one is Rodney Slater.Many of you know him as our Secretary-Treasurer, others know him as PastPresident of the Harold Flowers Law Society, Chairman of the HighwayCommission or Director of Governmental Affairs at ASU. We know him, not onlyas all of these, but as our advisor, our advocate and our friend.

As he leaves to take the post of Administrator of the Federal HighwayDepartment, we are saddened. We will miss his racing in here with the minutestwo days before the Executive Council Meeting; we will miss kidding him abouthis inability to keep his private life from us because he is constantly in the news;we will miss his understanding and willingness to listen and his wise wordswhen we need them.

Watching Rodney leave, we know the country will be a better place if he hasanything to do with it, and we are happy for that -- but nothing in life is free. Wehope the loss is only temporary.

4 ARKANSAS LAWYER SPRING 1993

VOLUME 27, NUMBER 2

PUBLISHERArkansas Bar Association

EDITOR & ART DIRECTORPaige Beavers Markman

Director ofPRiMarketing

ARKA:"SAS BAR ASSOCIATION400 W. Markham

[ inle Rock. Arkansas -220 I

OFFICERSPresident

John P. GillPresidem-Elecr

E. lamar PettusImmediate Past President

James H. McKe.nz.ieSecretary -Treasurc:r

Rodney E. SlaterExecutive Council Chair

Rosalind M. MouserExecutive DirectorWilliam A. Martin

Assis£ant Executive DirectorJuditb Gr.ly

EXECUTIVE COUNCILJoe Benson

Sanford BcshearWilliam Clay Brazil

Thomas M. CarpenterMichael H. Crawford

Boyce R. DavisVincent Fonce, Je.Seephen A. GeigleDave W. Harrod

Henry C. KinslowRobert Lynn Lowery

Jerry C. POSt

J. Thomas RayEddie H. Waiker.Jr.

Rober< E. Young

EJ(.{)FFlCIOJohn P. Gill

E. Lamar PettusJames H. McKenz.ie

Rodney E. SlarerRosalind M. MouserLucinda McDaniel

The AJ'bnsu Lawyer (USPS 546-040) ispublished quarterly by the Arkansas BarAssociation. Second class postage paid at LittleRock, Arkansas. POSTMASTER: send addresschanges to The Arkolnsas Lawyer, 400 We51Markham, Little Rock, Arkansas 7220l.Subscription price to non-members of theArkansas Bar Association $15.00 per year and tomembers $10.00 per year included in annual dues.Any opinion expressed herein is that of theauthor, and not necessarily that of the ArkansasBar Association or The Atkansas Lawyer.Contributions to The Arkansas Lawyer arewelcome and should be sent in two copies toEDITOR, Arkansas Lawyer, 400 West Markham,Little Rock, Arkansas 72201. All inquiriesregarding advertising should be sent to TheAtbnsas Lawyer at the above address.

In This Issue:

4 Letter from the Editor By Paige Markman

7 Letters to the Editor

8 Belts or Suspenders?Perfecting a Security Interest ina Trademark or Copyright By Nancy Bel/house May

12 Disciplinary Actions

19 Book Reviews-

20 The President's Message By John P. Gill

22 Law Practice Management By Jerry Schwartz

24 Executive Director's Report By William A. Martin

27 Law, Literature & Laughter By Victor A. Fleming

30 Law, Psychology & Paper Moons By Robert M. Berry, Ph.D. &Samuel A. Perroni

38 COVER STORY: Cover Art provided by West Publishing Co.

AVLE . Ten Years Later from their'Art & the Law" Collection.

The Vision is Even Clearer Story Photos by Andrew Kilgore.

43 In Memoriam

45 Young Lawyers Section Column By Lucinda McDaniel

46 Law School News

48 Law Office Technology Review By Barry D. Bayer &Benjamin H. Cohen

50 General Practitioners PrimerEffective Video Presentation at Trial: By Steven W QuattlebaumPut on a Good Show, But Cut to the Chase

57 Arkansas Bar Association CLE Calendar

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LETTERS TO THE EDITOR

Dear Editor.The "FAX Poll" contained in the last

issue of The Arkansas Lawyer reflectsthat 80% of those polled believe lawyeradvertising hurts the image of the legalprofession. [n fact, I think the vastmajority of us are of the opinionadvertising is generally unprofessionaland, in many instances, on a par withambulance chasing.

In the same issue, on page 20, youran an ad which seeks to propagatelawyer advertising. This ad, amongother things, states that with anextraordinary advertising campaign, alawyer can reap an additional $50,000.00per month in new client personal injurysettlements and "earn a whopping 20times Return on Investment from youradvertising campaign."

I find the ad distasteful and amunsettled that you would run it ..., orany other ad promoting lawyerad vertising.lim HallPine Bluff

Dear Edi tor:Lose the FAX Poll! It reminds me of

the old Arkansas Democrat's phone-inpoll. It, like this FAX Poll, was neitherscientific nor relevant. Besides, if youobtained only 35 responses out of over4,000 members of the Arkansas Bar[Association] that receive The ArkansasLawyer, I would say this is not much ofa survey. Only those readers who holdthe strongest opinions are going torespond.

Now, in regard to your latest FAXPoll wherein you asked lawyers aboutthe "English Rule" which you define asthe "loser pays" rule, do you have anyidea how the English Rule works inEngland? Or do you have any idea how

many lawyers actually know how theEnglish Rule works? Without addressingthese questions, the poll is meaningless.In reality, differences between the Englishand American systems are SO pronouncedand varied that a true "loser" in Englandvery rarely pays anything towards theother side's costs of litigation.

Besides, the FAX questions have noncontextual basis. Why don't you ask howlawyers would feel about a "loser pays"rule in a situation where the litigants areffiM and their grandmother?

Until you are able to make yourquestions more fair, relevant and asked inthe proper context-lose this poll!David H. WilliamsLittle Rock

Editor's Note: To make sure that no onethought we were trying to represent theanswers 10 the FAX Polls as any killd ofsurvey or accurate representation of the entiremembership of the Arkansas Bar Associationwe agreed that each time published, tirenumber of responses received would be given.The language introducing ti,e responses in thisissue will perhaps illustrate that moreeffectively. As to it's relevance, we can onlyreiterate what we said in introducing the FAXPoll ill April 1992, that it is jlltended to givemembers a place to voice their opinions, to setup aforum for diswssioll if needed.

The qllestions for the FAX Poll ill thelallllary 1993 isslle were formlliated by theeditor after reading the November 1992 issueof the ABA /ou"lol which contained alengthy article 011 "English Rule." Twolawyers reviewed the questio'1s, offeredsllggestions alld approved the Poll forpublication. The assumption was made,perhaps ill error, that the readership wouldhave a general understandillg of the concept.Your concerns are noted, and the magazineinvites more discussion on the issue of English

Rule, from you or other interested partieswho wollid like to explore this area of the lawfurther. Additionally, if you have any ideasfor questions for fuillre FAX Polls, pleasese"d them in - our goal is to hear from ourreaders.

[The following is an excerpt from letterregarding October FAX Poll dealing withImage of the Pro{essioll[

Dear Editor:I have been active in the Arkansas

Bar Association and local barassociations in the St. Francis and nowBenton Counties since 1972. Lawyers dohave a serious image problem - alwayshave. I've done my little bit along theway to help, but we really need toseriously address this problem and comeup with some effective ways to addressit. By the way, I own a Lawyers' JokeBook and enjoy a good lawyer joke asmuch as anyone. But, we [the BarAssociation) desperately need to keepour sense of humor and perspectiveabout the problem. The problem did notdevelop suddenly and won't be solvedin the short term. We may not ever beheld in high esteem (due in part to thenature of our work), but we can andshould do a better job telling the publicabout the good lawyers and the goodthings lawyers do as people as well asprofessionals. End of speech. Keep upthe good work!LOJlis B. "BJlcky" Jones, Jr.Belltonville

Tire Arkansas Lawyer welcomes allcomments, suggestimJs, etc. from readers.Please send to: Editor, The ArkansasLawyer, 400 W. Markham, Little Rock,Arkansas 72201.

A BLU.El'IUN'l' t'UR THE21ST CENTURY LAWYER

THE 1993 ANNUAL MEETINGJUNE 9-12, 1993

THE ARLINGTON HOTEL • HOT SPRINGS NATIONAL PARK

limits, and may also exact costs and attorneys' fees from the

infringer.

Like a trademark, then, a copyright can be a valuable

property, worth considering as security for a loan. Unlike the

Lanham Act, though, the Copyright Law provides for a single

centralized recording syst~m. Security interests in registered

copyrights must be recorded at the Copyright Office. See 17

U.S.c. §20S (providing for recordation of any document

transferring ownership in a copyright or any other document

pertaining to a copyright). Failure to record there can be fatal,

Unsecured Creditors Committee v. Zenith Productions (In re AEG

Acquisition Corp.), 127 B.R. 34 (Bann. CD. Cal. 1991); see also

Natiollal Peregri"e, 116 B.R. at 203, for the UCC

yields to a comprehensive federal recording

scheme.5 Consequently, although there is

probably no harm in including the debtor's

registered copyrights in a UCC filing made for

other reasons with the relevant state authority

(perhaps because it also covers the debtor's

trademarks), the creditor taking a security

interest in a registered copyright must be sure

always to record at the Copyright Office.

Each registered copyright should be

described with accuracy in the document filed

(whether a copy of the security agreement, the

financing statement with attached exhibit, or a

schedule expressly prepared for this purpose),

by reference to its name and registration

number, SO that it can be indexed appropriately

in the records at the Copyright Office. Should

the lender also take a security interest in a

copyright for which a registration application is pending, the

application should be identified by name, type, claimant and

filing date. The certificate of registration eventually issuing will

include this information as well, making it relatively easy for

interested parties to trace the application through the records.

As the preceding discussion indicates, the rule for perfecting

a security interest in a copyright is pretty straightforward.

There is, however, one important exception: the recordation

provisions in the Copyright Law apply only to documents

affecting registered copyrights. 17 U.s.C §20S(c)(2). Since the

copyright holder need not register, this exception is significant;

unregistered copyrights are relatively common, and a secured

party can perfect its interest in one only by filing as the VCC

directs. In fact, even if the borrower provides assurances that its

unregistered copyrights are soon to be registered, the ca.reful

lender will plan to make a UCC filing unless and until the

perfectiont il·omorrow.

II · the lenderchoo ing both beltand suspenderstoday ... is the

lender mostlikely to be

clothed with

Copyrights

A copyright grants the owner essentially

exclusive rights in its particular expression of an

idea by prohibiting others from copying that

expression. Even though the copyright does not

enable the owner to monopolize the idea itself, it

grants the owner, among other things, the

exclusive right to make and distribute copies of

the copyrighted work. Thus, the Walt Disney

Company's copyright in the movie Beauty and

the Beast protects its pa.rticular rendition of that

classic fairy tale. 0 one may reproduce the

fiLm- or indeed, any of the Disney characters or songs featured

in it- without Disney's permission. There is a limit to the

copyright's reach, however: assuming the story itself is in the

public domain, the copyright does not prevent others from

using the idea of animating it and adding a musical score. They

may do so, provided they do not copy Disney's work.

A copyright owner need not register its copyright in order to

invoke the protection of the Copyright Law. The work will be

protected as soon as it is fixed in tangible form, but as with a

trademark, registration-and in particular, prompt registration

of a copyright conveys significantly enhanced rights. Once the

owner of a work in which the copyright was registered during

the statutory window period has proved infringement at trial, it

is required to prove neither the amount of the infringer's profits

nor its own damages. Instead, the copyright owner may simply

ask the court to set damages in any amount within the statutory

under-secured, because an unperfected security

interest can be held subordinate to others'

interests in the same property.

would seem unnecessarily risky to rely on a description

couched in general terms when it is possible to

describe the specific intellectual property

covered by the security interest. Taking that risk

could leave the lender either unsecured or

marks and pending federal registration applications, and to

describe any unregistered marks. Although some courts appear

to have accepted the language of the UCC and its comments at

face value, ., Heille-Geldem v. ESle Cnpitnl Uti re Magnum Opus

Elec.), 19 U.CC Rep. Serv. 242 (S.D.N.Y. 1976) (trademark); 111

re Chnttallooga Chao-Choo, 98 B.R. 792 (Bank<. E.D. Tenn. 1989)

(service mark); cf. Holt v. U"ited States, 13 U.CC Rep. Serv. 336

(D.D.C 1973) (patent and patent application); C Tek Software v.

New York State Busi"ess Ve"ture Part"ership (I" re C Tek Software),

117 B.R. 762 (Bankr. D. .H. 1990) (copyright); 1" re Specialty

Foods, 98 B.R. 734 (Bank<. W.o. Pa. 1989) (trademark license), it

borrower actually produces evidence that the registration

applications have been liled. Recording only at the Copyright

Office before an application to register has been filed may well

be ineffective. AEG Acqllisitioll, 127 B.R. at 41 11..8.6

Trade Secrets, Trade Dress, and Patents

The lender should also remember that a debtor willing to

grant a security interest in its trademarks and copyrights might

also own a valuable trade dress, some trade secrets, and a

patent or two, all of which could potentially provide additional

security for the contemplated loan. The trade dress and trade

secrets can be handled like the trademarks and the unregistered

copyrights, since there is no national registry in which to record

security interests in trade dress or trade secrets. The proper

procedures for creating and perfecting a security interest in a

patent (let alone securing a priority position) are open to debate,

however, so the lender should be sure to consult a patent

attorney before deciding where to file.'

Conclusion

The lender taking a security interest in both registered and

unregistered trademarks and copyrights would do well to

prepare a schedule listing the registrations by name and serial

number, and describing the unregistered marks and copyrights.

A copy 01 the schedule should be made an exhibit to, and

should be incorporated into, any UCC-l filed at the state level to

cover all trademarks and the unregistered copyrights, and

should also be filed with the Copyright Office to cover the

registered copyrights.8 It would not be imprudent to file the

schedule at the PTO as well, to put anyone searching its records

on notice. Despite the National Peregrine court's fears about the

confusion likely to be engendered by multiple filings, it appears

that the lender choosing both belt and suspenders today- that is,

the lender filing as comprehensively as possible- is the lender

most likely to be clothed with perfection tomorrow.

Nancy Bellhouse May is a partner with the Wright, Lindsey &

Jennings Law Firm in Little Rock. She practices in the areas of

Copyrights, trademarks, trade secrets, unfair competion and related

litigation.© 1993 by Nalley Bel/hollse May

ENDNOTES1. This article addresses only the perfection of security interests, and

does not address the niceties of priority. As the UCC can be preemptedeither entirely or as to perfection only, compare Ark. Code Ann. § 4-9-104(entire VCC preempted) with Ark. Code Ann. §4-9-302(3) (UCCperfection preempted), the distinction is crucial. Even if it appears thatperfection is controlled in a particular transaction by one of the federalstatutes discussed here, then, state law (or the law of bankruptcy) maystill apply to priority and related issues. See generally Nationaf Peregrine,116 B.R. 2()4.{)7.

2. In an Arkansas transaction, this may be the secretary of state, thecircuit clerk and recorder in the county where the debtor is located, orboth. Ark. Code Ann. §4-9-401.

3. The proposed section provided in pertinent part:A security interest in a registered mark, or a mark for which

an application to register...has been filed ...may be obtained and will besuperior to any interest subsequently granted to a third party,provided-

(B) notice of such interest is filed in the Patent and TrademarkOffice-

(i) within ten days after the interest is granted if the interestpertains to a registered mark or if it pertains to a mark which is thesubject of an application for registration under (the intent-to-useprovisions] ..., or

(ii) within four months after the mark is registered if theinterest pertains to a mark which is the subject of a [use-basedapplication) ...and the person holding the interest has a valid, perfectedinterest pursuant to state law at the time the mark is registered.

Senate Rep. No. 1()()..SlS, l00th Cong., 2d Sess. (1988), reprinted I" TheTrademark LAw Revision Act of 1988 (U.S.T.A. 1989).

4. If the contemplated transaction involves actually assigning aregistered mark to the lender instead of merely granting a securityinterest, that assignment must be recorded at the PTO. This requirementmay be of little practical consequence, however, as it seems unlikelythat many lenders would be willing to expose themselves to the risksassociated with actually becoming trademark owners. Among otherthings, assignees may acquire responsibility for product liability claimsinvolving the trademarked goods. C/. Torres v. Goodyear Tire & Rubber,901 F.2d 750 (9th CiT. 1990) (trademark owner, as licensor of name,liable for injury caused by defective product).

5. There is at least some question whether the Copyright Law'sprovisions are sufficiently comprehensive to override the vee, becausethe references to copyrights in the VCC are less than clear. Compare Ark.Code Ann. § 4-9-104 comment with Ark. Code Ann. § 4-9-302 comment.Nonetheless, recording at the Copyright Office would now seem to beappropriate, for the Copyright Law provides a more comprehensivescheme of regulation than did the act in force when the most recentcomments to the VCC were drafted. See 17 U.S.C §§ 101,201,205(documents memorializing transfers, including mortgages andhypothecations, to be recorded at Copyright Office).

6. Since a copyright registration ordinarily will date back to the dayon which the application was filed, it seems unnecessary to wait untilthe certificate has actually issued before recording at the CopyrightOffice. If no registration has issued when it is time to renew any vcefiling, however, that filing should not be allowed to lapse. It is alwayspossible (albeit unlikely in most cases) that the Copyright Office willdeny registration. Unless the lender has maintained the UCC filing, itsinterest will be unperfected should the certificate of registration fail toissue.

7. A filing sufficient to protect the secured party's interest in apatent against subsequent purchasers for value or mortgagees, forexample, may not be suffident to resist a claim of priority by a trustee inbankruptcy or debtor in possession. As note 1 indicates, though, issuesof priority -and certainly of priority in connection with patents- arebeyond the scope of this article.

8. Since there is no foolproof system for automatically securing aninterest in after-acquired copyrights, see e.g., National Peregrine, 116 B.R.at 202-03 n. 10, the lender must in addition keep abreast of the debtor'sactivities to be sure the security interest continues to reach all thedebtor's copyrights. To cite a concrete example, consider amanufacturer of computer software that routinely enhances andupgrades its products. Each new version may be separatelycopyrightable (or might at least contain new material subject tocopyright), so the lender probably should require this kind of borrowerboth to register any revisions to previously registered works (and anynew works) promptly, and to provide the lender with any informationnecessary for preparing updated schedules.

Arkansas Code Annotated $990Terms available. Call for free

catalog, Allin R. Jones, Michie Co.,1-800-448-5110.

DISCIPLINARY ACTIONS / ADVISORY OPINIONS

ROBERT R. CaRT/NEZRobert R. Cortinez, Little Rock, was

issued a letter of caution for violation ofModel Rule 1.8(j) as a result of acomplaint by Brenda Brighton.

In her alfidavit, Ms. Brighton statedthat, following dismissal of her previousattorney, she engaged Mr. Cortinez inearly February 1989 to represent her in apending divorce action. No retainer feewas required and an agreement wasmade for compensation by the hour. Theclient stated that the lawyer said the feeswould be payable at the conclusion ofthe divorce action. The parties, throughtheir respective attorneys, wereattempting to reach a voluntarysettlement for the division of the maritalproperty. There was considerabledisagreement between the parties as toan acceptable division, and severaloffers and counter-offers were made.Part of the marital property consisted oftwo condominiums. The settlementnegotiations, among other things,variously contemplated each partyreceiving one of the properties or thatone would be sold and the husbandkeep the remaining condo.

As the matter progressed, Ms.Brighton said she received a couple ofmonthly statements for fees andexpenses. She contacted Mr. Cortinezand was informed that the billings wereautomatically generated by thecomputerized bookkeeping process andshe should disregard them. The clientmaintained that, although she waswilling and offered to pay the lees on acurrent basis, she was told that it wouldnot be necessary and she would becharged when the divorce was final. Thecase had been set for trial on June 1,1989, in Garland County. In a finalattempt to negotiate settlement, theparties and their attorneys met in Mr.Cortinez's offices on May 26, 1989. Alterspending considerable time in anunsuccessful attempt to compromise theproperty division, Ms. Brighton spoke toher lawyer privately. Ms. Brighton saidshe was advised tu try to settle theproperty rights and get on with her life.She stated that Mr. Cortinez suggestedshe take both condominiums. When sheinquired about this variance of theprevious offers Mr. Cortinez told herthat he would buy one Irom her. Ms.Brighton returned to his office on May30,1989. She appeared on that date and


Mr. Cortinez had a divorce decree with aproperty settlement agreement for hersignature. The decree, among otherthings, provided that her husband giveup his interest in both condos. A saleagreement for Mr. Cortinez's purchase ofone of the condominiums was prepared.The transfer contemplated the lawyer'sassumption of the outstanding mortgageliability and credit for payment of Ms.Brighton's legal fees and expenses.According to Ms. Brighton, shereluctantly signed the documents. OnMay 31, her husband signed the propertysettlement agreement and executed quitclaim deeds to the properties. Hisattorney presented the decree to thechancellor who granted it on June 1, 1989.In early 1990, Ms. Brighton contacted Mr.Cortinez concerning some difficultieswhich had arisen with the mortgagecompany. She expressed her opinion thatshe thought it unlair that the lawyerobtained the property for attorney feeswhich she lelt was less than her owner'sequity based on a previous purchase offerto her and her husband. Mr. Cortinezdeclined to consider an adjustment andadvised Ms. Brighton and the lawyerassisting her that they could sue if theybelieved legal grounds existed.

Mr. Corti nez's response admittedassumption of Ms. Brighton'srepresentation following her dismissal 01her previous attorney because of inabilityto obtain a satisfactory propertysettlement. He stated that there wasconsiderable animosity between theparties which added to the difficulty inpursuing an agreed division of maritalproperty. Numerou conversations withhis client, discovery, depositions andexchange of offers and counter-offerswere accornplisheu by the attorneyduring the course of the the meeting ofMay 26, 1989, Ms. Brighton was notagreeable to the settlement terms offeredbecause she did not feel she was receivingenough cash money. After approximatelytwo hours of negotiations, Ms. Brightonagreed to accept an increased amount ofcash, both condos, and the other terms assubsequently set out in the decree. As shewas leaving the attorney's office, sheasked if he would accept one of thecondos in exchange for attorney fees. Shewas told that it could be discussed whenshe returned on May 30 to sign theagreement and the decree which wouldbe prepared by that date. She returned on

May 30, 1989, reviewed and executed thesettlement agreement. According to Mr.Corti nez's affidavit, Ms. Brightonprovided some photographs of thecondo and discussed the transferproposal at length. She felt it would bedifficult for her to sell the extra condobecause of the depressed real estatemarket at that time. She wanted toexchange it for fees and expensesbecause she preferred not to use the cashshe was receiving from the settlement.The lawyer agreed to assume themortgage payments on the property andprepared a sale agreement. Ms. Brightonleft the office and presumably had lunch.She later returned and signed theagreement in the presence of a notarypublic. Mr. Cortinez personally took theproperty settlement agreement and thedecree to Hot Springs on May 30 anddelivered them to the opposing counsel.The decree was entered the followingday. Thereafter, Mr. Cortinezrepresented Ms. Brighton in a litigateddispute over ownership of certain boatslips at the condominium complex. Healso prepared a will for her and chargedno fee for either of these services.

The attorney stated that Ms. Brightonexpressed no dissatisfaction with thelegal services or the fee arrangementuntil February 1990. She had contactedMr. Cortinez and requested financialassistance. He told her he could not giveher any money and suggested that herfinancial difficulties might be a result ofher non-employment. Shortly therealterthe lawyer was advised of Ms.Brighton's dissatisfaction with theproperty transfer. Mr. Cortinez statedthat the client paid no retainer becauseshe was financially unable andrequested that payment of fees be madeat the conclusion of the divorce. Shenever offered to pay the fees as theyaccumulated. An affidavit from theattorney manager was offered in supportof this contennon. Mr. Cornnez statedthat the fee amount which Ms. Brightonattributed to the consideration for theproperty transfer was inaccurate. Ms.Brighton relied on the billing throughApril 1989, and no bill was sent for workand expenses for the month of Maybecause the property transferarrangement had been concluded. Thepurchase offer to which Ms. Brightonreferred was received almost a yearprior to the sale agreement. Theprevious offer to purchase was not


JAMES MICHAEL HANKINSJames Michael Hankins, orth Little

Rock, was issued a letter of reprimand forviolation of Model Rules 1.3, 1.4 and8.4(d) as a result of a complaint filed byLee X. Franklin.

Mr. Franklin, an inmate in theArkansas Department of Correction, fileda civil action in the U. S. District Courtagainst certain employees of theDepartment. The Court appointed anattorney to assist Mr. Franklin in hislawsuit. The appointed attorney hadlimited experience in cases of this natureand sought Mr. Hankins' assistance and

accounting of the settlement proceeds. Shesaid Mr. Kinsey promised to do so but,despite several telephone requests, hefailed to provide a settlement statement.

Mr. Kinsey's response admittedrepresentation of the Hausers on acontingent fee basis. He stated that therewere two separate personal injury casesbeing pursued on behalf of the Hausersduring the period of his legalrepresentation. Ms. Hauser had beeninvolved in a second automobile accidentin July, 1990. Both cases ultimately settledabout the end of November, 1991. TheHausers were called to his office wherethey approved the settlements. TheHausers executed the release of claimsand endorsed the insurance draft onDecember 2, 1991. Mr. Kinsey wrote acheck to the clients and, contrary to hisinstructions, Ms_ Hauser deposited thecheck for collection. It was dishonored bythe bank because the draft had not clearedthe issuing bank. When informed of thisoccurrence by Ms. Hauser, Mr. Kinseytold her to redeposit the check. Theresponse reflects that various checks wereissued by the insurer on behalf of one ofthe liable parties payable to the attorney,the clients, and in most instances, tocertain medical providers. These checkswere endorsed by the necessary partiesand remitted to the medical providers orother entitled parties. The other case wassettled by the acceptance andendorsement of the draft on December 2,1991. Mr. Kinsey presented copies ofchecks disbursed from his trust account inconnection with this matter and statedthat the proceeds were fully accounted forin accordance with the agreement withthe clients. The response, however, didnot reflect that the clients were provided awritten settlement statement upon thesuccessful conclusion of the legal matters.

©

necessary for Mr. Kinsey to file suitagainst the liable party. Thereafter, in lateNovember or early December, 1991, thelawyer informed the clients that asettlement agreement had beenconcluded. Ms. Hauser said that she wasinformed that the settlement would coverthe outstanding medical bills, which theattorney would satisfy from the proceeds.The clients received a check drawn on thelawyer's trust account and, according toMs. Hauser, they were to receive anyexcess proceeds after deduction of legalfees and payment of medical bills. Due tosome apparent miscommunication ormisunderstanding, Ms. Hauser depositedthe check for their part of the settlementon the same date as the clients hadendorsed the insurance company's draft.The check was dishonored by Mr.Kinsey's bank. When Ms. Hauser learnedthat the check had not cleared his bank,she called Mr. Kinsey. Ms. Hauser statedthat Mr. Kinsey advised her to redepositthe check. The check subsequently clearedthe bank on or about December 18, 1991.Ms. Hauser had requested a complete

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PHILLIP K. KINSEYPhillip K. Kinsey, Fort Smith, was

issued a letter of caution for violation ofModel Rule 1.5(c) as a result of acomplaint by Ann Hauser.

In her affidavit, Ann Hauser statedthat she and her husband retained Mr.Kinsey in August 1989 to pursue theirclaims for damages arising out of anautomobile accident. The legal serviceswere to be provided on a contingent feebasis. Subsequently, in 1991, it was

performed and the earnest moneyforfeited. According to the real estatebroker, the only other offer on theproperty was in late January 1989 andwas for an amount $8,000 less than theoffer to which Ms. Brighton referred. Oneof the adjoining condos subsequently soldfor an amount even less than that. Mr.Cortinez denied that Ms. Brighton wasunduly influenced or treated unfairly. Infact, he contended Ms. Brighton hadexperience in the management and sale ofreal estate and was fully knowledgeableof the agreement she made.


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guidance. Mr. Hankins was apparentlyagreeable to assist 011 the lawsuit and toact as lead counsel. On December 19,1990, the Court, citing the initial lawyer'sattempts to render adequaterepresentation, but noting his lack ofexperience in that type of litigation,entered an order appointing Mr. Hankinsco-counsel. The Court extended the timefor response to the defendants' motion forsummary judgment to January 7, 1991.According to Mr. Franklin's affidavit, Mr.Hankins accepted the role as lead counseland the primary responsibility to respondto the motion. Mr. Hankins visited Mr.Franklin at the penitentiary to obtaininformation for the response to themotion for summary judgment.

When Mr. Hankins failed to respondto Mr. Franklin's subsequentcorrespondence, he contacted the otherattorney to inquire about the status of hiscase. The other lawyer forwarded Mr.Franklin's correspondence to Mr. Hankinsand requested that he communicate withthe client. Receiving no communicationfrom Mr. Hankins, Mr. Franklin againcontacted the other lawyer. Over the nextsix weeks, the other attorney wrote andtelephoned Mr. Hankins several times inregard to this matter. either Mr.Franklin nor the other attorney received

any acknowledgment or response fromMr. Hankins. On May 31, 1991, the otherlawyer, under the belid that Mr. Hankinshad answered the summary judgmentmotion, was startled to learn that Mr.Hankins had not responded to the motionand that the U. S. Magistrate had issuedfindings and a recommendation to grantsummary judgment. On May 31, 1991, theother attorney filed an objection andattempted to submit a belated affidavit ofresponse to the motion for summaryjudgment. These actions wereunsuccessful and Mr. Franklin's lawsuitwas dismissed. Mr. Franklin also averredthat Mr. Hankins failed to return his filesand documents to him.

Although Mr. Hankins did notrespond to the formal complaint wheninitially filed against him, he requested ade novo hearing subsequent to theCommittee's action by written ballot vote.At the hearing, Mr. Hankinsacknowledged his representative capacityin Mr. Franklin's legal matter and he didnot contest the allegations of the affidavitof complaint. Mr. Hankins stated that hevisited with Mr. Franklin and obtainedinformation relating to his claims.Afterwards, Mr. Hankins was of theopinion that Mr. Franklin, who had filedseveral actions previously, did not have a

meritorious cause of action in the pendinglawsuit, However, Mr. Hankins admittedthat he did not properly convey hisopinion to Mr. Franklin nor did he takeany further action in the matter.

James Michael Hankins, North LittleRock, was issued a letter of reprimand forviolation of Model Rules 1.3, 1.4(a) andB.4(d) as a result of a complaint by VickieYvonne Bush.

In her aflidavit, Ms. Bush stated thatMr. Hankins was retained and paid hisrequested attorney's fee in August 1990,to file a divorce action on her behalf. M .Bush has been able to make contact withMr. Hankin on only one occasion sincethat time. The divorce complaint was filedbut, to Ms. Bush's knowledge, nothinghas been done since the filing. The clienthas been unable to make contact with Mr.Hankins despite her numerous attempts.Ms. Bush would telephone his office onlyto be told that he was on another phonecall, in court, or out of the office. Mr.Hankins failed to return her calls orcommunicate with her.

Although Mr. Hankins did notrespond to the formal complaint wheninitially filed against him, he requested ade novo hearing subsequent to theCommittee's action by written ballot vote.In his testimony, Mr. Hankins admittedrepresentation of Ms. Bush and did notcontest the allegations of her complaint.He stated that the defendant wasincarcerated and his attempts to obtainservice or a waiver of service wereunsuccessful. The case was laterdismissed for failure to perfect service ofthe complaint within the allotted time,and Mr. Hankins did not pursue it furtherat that time. Mr. Hankins advised that hehas since discussed the matter with Ms.Bush and that she is agreeable to Mr.Hankins reinstitution of the divorceaction and pursuing it to conclusion.

MARK B. CHADICKFollowing a three month suspension

from law practice imposed on October 3,1992, the Committee on ProfessionalConduct has reinstated the license ofMark B. Chadick, Pine Bluff, effectiveJanuary 3, 1993.

CHARLES A. POTTERFollowing a one year suspension from

the practice imposed on ovember 1,1991, the Committee on ProfessionalConduct has reinstated the license of


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ArutiJrIDalltuIHouslo,,/Ok1tJJtolftll Cltyll:J P(J!')iS,n AnJofliD

Charles A. Potter, Texarkana, effectiveNovember 1, 1992.

G. B. "BING" CaLVI IIIFollowing a six month suspension

from the practice 01 law imposed on July6, 1992, the Committee on ProfessionalConduct has reinstated the license 01 G. B."Bing" Colvin III, Dermott, effectiveJanuary 6, 1993.

DAVID SCOTI POSTUpon recommendation of the

Committee, on ovember 23, 1992, theArkansas Supreme Court accepted thesurrender of the license of David ScottPost, Fort Smith, to practice law in theState of Arkansas. The United StatesAttorney filed a criminal informationagainst Mr. Post. Mr. Post admitted in hispetition for surrender that his conductviolated Model Rules 1.2(d), 4.1(a), 8.4(b),8.4(c) and M(d).

HARRELL A. SIMPSON, JR.Upon recommendation of the

Committee, on November 2, 1992, theArkansas Supreme Court accepted thesurrender of the license of Harrell A.Simpson, Jr., Pocahontas, to practice lawin the State of Arkansas. Having receiveda suspension in ovember, 1991, Mr.Simpson failed to comply with therequirements 01 Section 70, Procedures ofthe Arkansas Supreme Court RegulatingProfessional Conduct of Attorneys at Law.Pursuant to the Procedures, contemptproceedings were initiated against Mr.Simpson. Thereafter, Mr. Simpsonsubmitted his petition for voluntarysurrender of his law license. His petitionacknowledged that he untimely compliedor failed to comply with certain of theduties imposed by Section 7D 01 theProcedures and that his conduct wasprejudicial to the administration of justice

and violated Model Rule 8.4(d).

CHRISTOPHER DONALDMITCHELL

Upon recommendation of theCommittee, on December 21, 1992, theArkansas Supreme Court accepted thesurrender of the license of ChristopherDonald Mitchell to practice law in theState of Arkansas. Mr. Mitchell hascriminal charges pending against him andadmits his conduct violates Model Rule8.4(b) and 8.4(c).

hristopher Donald Mitchell, ofJonesboro, was suspended from thepractice of law December 3, 1992, for oneyear for violation of Model Rules 1.3,1.16(d) and 8.4(d) as a result of acomplaint by Curtis Leo Branscum.

In his affidavit, Mr. Branscum statedMr. Mitchell was paid $SOlI to representhis son on a OWl charge. Trial wasscheduled for November 14, 1991. Thecomplainant's son was charged withanother OWl offense on November 1,1991, and plea and arraignment wasscheduled lor November 18. Mr. Mitchellwas paid an additional $350 on or aboutNovember 7, 1991, for representation onthe second charge. Mr. Branscum's sonwas found guilty on the first charge andMr. Mitchell agreed to prosecute anappeal lor $150. The complainant's sonpaid Mr. Mitchell at that time. Mr.Mitchell failed to appear at plea andarraignment on November 18, 1991, andthe client entered a guilty plea. He alsodecided to abandon the appeal of the firstconviction. When later contacted abouthis absence at the second proceeding, Mr.Mitchell explained that he had beenmixed-up about the court date. Thecomplainant requested that Mr. Mitchellrefund $500 of the advance fee paid lorprosecuting an appeal and representation

on the second DWI charge. Mr. Mitchellagreed to send Mr. Branscum a $500refund but has failed to do so. Thecomplainant's subsequent attempts tocontact Mr. Mitchell produced noresponses.

EVERETI O. MARTINDALEEverett O. Martindale, Little Rock, was

issued a letter of caution for violation ofModel Rules 1.1, 1.3, 1.16(d) and 8.4(d) asa result of a complaint filed by AlWilliams.

Mr. Williams stated that Mr.Martindale was employed in February1988, to continue a lawsuit he hadpreviously instituted in July 1986, againsta bank and an automobile dealershipinvolving his dissatisfaction with a van hehad purchased, an attempted swap of thevehicle and the subsequent repossessionof the van. During the course of thebusiness dealings, Mr. Williams becameinvolved in an altercation with one of thedealership's employees and desired topursue an action for assault and batteryagainst the individual. Mr. Martindalesubstituted as counsel 01 record and filedan amended complaint adding theindividual defendant. At the same timeMr. Martindale filed certain discoverydocuments and caused them to be servedon opposing counsel. About the end ofMarch 1988, the individual defendant wasdeposed. Five or six weeks later Mr.Martindale called Mr. Williams andadvised that the court reporter hadcompleted the transcript of the deposition.Mr. Williams obtained a copy from Mr.Martindale and attempted to file it withthe circuit clerk. The clerk refused to Iilean unsigned, uncertified copy. Mr.Williams stated that he contacted Mr.Martindale for the signed original andwas informed that he had only received acopy from the reporter. Mr. Martindaleadvised him that he would attempt tolocate and obtain the original transcript.According to the complainant, hetelephoned Mr. Martindale over the nextseveral weeks inquiring about thedeposition and the lack of the delendants'responses to the pleadings filed inFebruary. Mr. Martindale repeatedlyadvised Mr. Williams that the courtreporter wanted her fee and needed to bepaid. Mr. Williams refused to do so. Hecontended that he shouldn't pay for thetranscript until he had the properlyexecuted original in his possession. Aboutthis time Mr. Martindale advised Mr.Williams that he didn't intend to use the


deposition at trial in any event. Mr.Martindale insisted that Mr. Williams goahead and pay the reporter, but herefused to do so until he received theoriginal transcript.

In September 1988, Mr. Martindalesent Mr. WiUiams a copy of a letter to thecourt requesting a trial setting and astatement for attorney's fees expected toexpended at trial. The court subsequentlyscheduled the trial for December 29, 1992.On October 28, 1988, Mr. Martindale fileda motion to be relieved as counsel ongrounds that substantial conflicts haddeveloped with the client over thehandling of the case. A hearing on themotion was held on December 5, 1988.The court permitted Mr. Martindale towithdraw. M.T. Williams was unsuccessfulin obtaining substitute counselor gaininga continuance. On the scheduled trial datethe suit was dismissed without prejudice.On December 28,1989, Mr. Williamsrefiled his lawsuit against the threedefendants. The individual defendantresponded with a motion to dismiss ongrounds that the statute of limitations hadrun. Mr. Williams discovered that asummons had never been issued for theindividual defendant when he was addedto the amended complaint in February1988. The individual defendant prevailedsince service was never had on him andthe dismissal without prejudice inDecember 1988 did not toll the running ofthe statute as to him.

Mr. Martindale's response reflectedthat he undertook representation of M.T.Williams although Mr. Martindaleinformed him that it did not appear hehad a very good lawsuit. Mr. Williamspersisted and prevailed upon Mr.Martindale to represent him. Mr.Martindale agreed to do so on the basisthat the fee be paid in advance forexpected services and expensesimmediately paid when due. The clientpaid a retainer but refused to remit anyadditional fees for anticipated services orto sa tisfy the court reporter's charges forthe deposition. Mr. Martindale eventuallypaid the court reporter but Mr. Williamsdeclined to reimburse for thatexpenditure. Mr. Martindale sued Mr.WiUiams for that debt and the balance ofthe attorney's fees and was awarded ajudgment that remains unsatisfied. Mr.Martindale stated that, following theindividual defendant's deposition, headvised the client that there did not seemto be a sufficient basis to pursue a lawsuitagainst the individual and Mr. Martindale


did not intend to use the deposition attrial. Mr. Martindale averred that theclient led him to believe that he agreedwith Mr. Martindale's assessment and djdnot desire to pursue that claim.

According to Mr. Martindale'sresponse, Mr. Williams was a verydifficult client. The relationship furtherdeteriorated due, in part, to his failure topay expenses and advance fees as agreed.Mr. Martindale stated that Mr. Williamsknew at the time he sent the letter ofOctober 28, 1988, seeking withdrawal thatMr. Martindale was not intending torepresent him further. Mr. Williams wasadvised that he should seek other counseland if he wished to pursue his potentialcause of action on the assault and batteryclaim it would be necessary to obtainservice of the individual.

G. B. "BING" CalVIG. B. "Bing" Colvin, III, Dermott,

received a reprimand for violation ofModel Rules 1.3 and 8.4(d) as a result ofthe Arkansas Supreme Court's per curiamgranting appellant john L. Lewis' motionfor a belated appeal.

Mr. Colvin represented john L. Lewisat trial on the charge of robbery. Lewiswas found guilty and the judgment wasentered on july 29, 1987. olice of ap!"",lwas timely filed on August 14, 1987, andan extension of time to lodge thetranscript was entered. on ovember 12,1987. On or about March 4, 1988, Mr.Colvin attempted to lodge the transcriptand it was rejected by the clerk asuntimely. A motion for rule on clerk wasfiled wherein Mr. Colvin maintained thedelay resulted from the circuit clerk'serror in calculating the extension timefrom the filing of notice of appeal ratherthan the entry of judgment. The SupremeCourt rejected Mr. Colvin's contention ofunavoidable error or excusable neglectand issued a per curiam on March 28,1988, stating that permission to file therecord would be granted upon Mr.Colvin's filing a motion and affidavitresponsibility. On May 14, 1992, theappellant filed a pro se motion for rule onclerk citing Mr. Colvin's failure torespond to his numerous requests laperfect the appeal. The Court issued a percuriam on june 8, 1992, finding that Mr.Colvin never filed an affidavit acceptingresponsibility for the untimely tender ofthe record. Appellant was granted abelated appeal and counsel appointed to Irepresent him.

Mr. Colvin's response to the complaint

reiterated the matter of the circuit clerk'smiscalculation as contained in his originalmotion for rule on clerk. Mr. Colvin slaledthat he thought the original motionsufficiently accepted responsibility, and itwould not be necessary for him to file anadditional affidavit of responsibility.Although he admitted some confusionconcerning the actions he should havetaken and sought counsel and guidancefrom others, he stated that he became adeputy prosecutor on August 1, 1988, andbecause of the excessive workload theappeal completely slipped his mind.

GEORGE W. MAso , IIIGeorge W. Mason, ill, El Dorado, was

issued a reprimand for violation of ModelRules 1.1, 1.3 and 8.4(d) as a result of theArkansas Supreme Court's per curiamgranting appellant Byron Hooper'smotion for a belated appeal.

The Supreme Court's per curiam ofjune 15, 1992, and the associated recordreflect that Mr. Mason was the appointedcounsel Byron Hooper, an indigent, inpursuing the appeal of his conviction forpossession of cocaine with intent todeliver. Mr. Hooper had been sentencedto life imprisonment following triallasting more than two days. Subsequentto the Court's granting Mr. Mason'smotion for rule he filed an abbreviatedabstract and brief on February 3, 1992.The Attorney General moved the Court tocompel the appellant's compliance withCourt Rule 9 and ll(f) regarding thesufficiency of the abstract. The AttorneyGeneral noted that the trial recordconsisted of 740 pages and appellant'sentire abstract and brief comprised only25 pages. The Court granted the state'smotion and directed Mr. Mason toresubmit the abstract and brief by April 4,1992. An extension of time was obtainedfrom the clerk but he did not tender therevised abstract and brief within normalbusiness hours on the due date. Mr.Mason was rcauired to obtain oermission

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to file a belated brief. Thereafter, heresubmitted the abstract and brief in May1992. Again, the state averred that theabstract was insufficient and moved tocompel compliance with Court Rules 9and 1I(f). The state asserted that theabstract of the record was inadequate fora clear understanding of the issues raisedon appeal and that, again, the appellanthad failed to provide the requiredjurisdictional statement. The Courtgranted the motion and, inter alia, foundthat the abstract was so inadequate thatcertain points for reversal submitted bythe appellant could not be reached ordecided. The Court relieved Mr. Mason ascounsel of record and appointed newcounsel for the appellant.

Mr. Mason's response asserted thatrepresentation of the indigent appellantplaced a great burden on his time andresources as an individual practitionerengaged in the general practice of law.Mr. Mason explained that the resubntittedabstract was tendered twenty minutes latebecause of traffic conditions heencountered in the attempted delivery tothe clerk's office. He felt that the recordwas properly abstracted and if theAttorney General's office was dissatisfiedthey could have utilized their abundantresources to prepare the abstract. Further,Mr. Mason maintained that additionalcounsel could have been appointed toassist him prosecute the appeal for anindigent.

GREGORY FERGUSONGregory Ferguson, Little Rock,

received a letter of caution for violation ofRule 1.8(e) of the Model Rules as a resultof a complaint by Rickey Wayne Sntith.Mr. Ferguson received the cautionfollowing a public hearing held onNovember 21,1992. Mr. Ferguson hasfiled notice of appeal from theCommittee's decision.

According to Mr. Sntith's affidavit, hehired Mr. Ferguson in May 1987, torepresent him on a claim for workers'compensation. Unable to work, Mr. Sntithexperienced considerable financialdifficulty. During the course ofrepresenting Mr. Smith on the workers'compensation claim and some other legalmatters, Mr. Ferguson, at the client'srequest, made loans of money oradvances to Mr. Smith, to some of hisrelatives and to third parties on his behall.In December 1991, Mr. Sntith's workers'compensation claim was settled in thefinal amount of $4,200, an amount less

than had been anticipated initially. At thattime Mr. Ferguson had extended loans oradvances on periodic occasions over thepreceding two years in the approximateamount of $7,845. Mr. Smith signed anaffidavit acknowledging that he, andothers at his request, had received moniesfrom Mr. Ferguson and he was indebtedfor those amounts from the settlementproceeds.

Mr. Ferguson's response andtestimony adntitted representation of Mr.Smith on the workers' compensationclaim. Additionally, Mr. Fergusonrepresented him and his wife on someunrelated matters. Mr. Ferguson statedthat it was about january 1990, after hisassumption of legal representation on Mr.Smith's workers' compensation case, thathe came to Mr. Ferguson destitute and inneed of financial assistance. Mr. Fergusonfelt extremely sorry for Mr. Sntith and hispredicament and, at his request, beganproviding him monetary assistance. Mr.Smith anticipated an income tax refundand also appeared to be a distributee ofhis grandfather's estate which was beingsettled. Mr. Ferguson viewed the loansmade to Mr. Smith and others on hisbehalf as being unrelated to the workers'compensation claim and that his otherpotential sources of income were theprimary source of funds to which he waslooking for repayment. Mr. Ferguson feltthe assistance he provided was fair,reasonable, fully explained, and ahumanitarian gesture for the welfare ofthe client. Mr. Smith still owes Mr.Ferguson for a portion of the moniesadvanced and Mr. Ferguson feels that hemay have been the victim of thesetransactions as a result of some of themisrepresentations.

ROGER TRENT JEREMIAHRoger Trent Jeremiah, Van Buren, was

suspended from the practice of lawFebruary 1, 1993, for three months forviola lion of Model Rules 1.3, 3.2 and8.4(d) as a result of a per curiamcomplaint.

The Court's per curiam of May 4, 1992,and the associated records reflect that Mr.jeremiah lodged the record on appealfrom a criminal conviction on behalf of hisclient, Richard Lee Mitchell. He failed tofile a brief and did not respond to theclerk's several requests to do so, nor didhe offer any explanation for the failure.The Court issued an order for Mr.Jeremiah to show cause why he shouldnot be held in contempt of court. A specialmaster was appointed and received

evidence in the matter. Mr. Jeremiahtestified that he thought the client haddecided to abandon his appeal. He alsostated that he was unfamiliar with therules of practice requiring him to eitherdismiss the appeal or withdraw ascounsel. Upon the findings by the master,the Court found Mr. jerentiah in contemptand assessed a fine of $500.00.

The complaint was served on Mr.jerentiah August 4, 1992. No response wassubntitted to the Comntittee on his behalf.On October 20, 1992, Mr. jeremiah wassent a letter notifying him of theCommittee's action and advising him ofhis right to request a de novo hearing. Mr.jeremiah timely requested a hearing and ahearing was scheduled for January 9,1993. Prior to that date he decided towithdraw his request for a hearing. TheComntittee's action from which he soughta de novo adjudication then became afinal decision.

NOTICE: TIle Arkansas BarAssociation lIas set up an OpinionsSubcommittee of tI,e ProfessionalEthics and Grievances Committee forthe purpose of giving AdvisoryOpinions to licensed attorneys. TI,echarge is $50 for members of tl,eAssociation and $75 for non-members.Requests for opinions slrall relate toprospective cotlduct only and shallcontain a complete statement of allfacts upon whic1, tl,e opinion isrequested, atld a concise question ofprofessional ethics. The requestingindividual shall include with tl,erequest a concise memorandum settingforth his or her own research andconclusions concerning the questionand tIle statement that the matter isnot the subject of a pending disciplinary proceeding. The idetltity of theindividual, who is the subject of tIlerequest, shall be disclosed to tIreCommittee. TIle procedure for obtaining an opinion was printed in the Fall1992 NEWSBULLETIN, if you need acopy, please call tire Association at(800) 482-9406 or 375-4605.

Advisory Opinion 92-01 (Arkansas BarAssociation, December 2, 1992): ReferralFees

The Professional Ethics andGrievances Committee of the ArkansasBar Association issued an advisoryopinion discussing the sharing of fees

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LEGALMANAGEMENT

SERVICES

which the sibling will appear of record asattorney or assists in any way in thepreparation or trial. However, theCommittee advised that it may be a ,visecourse for the judge to always disclose therelationship on the record and invite theparties and attorneys to offer anyadditional facts that could possiblyrequire disqualification.

LAW UBRARY FOR SALE: Extensive law library for sale. Cal (501) 225-3602 day orevening for details.

FOR SALE: Arkansas cases, SW, and SW2d, complete to date. ALR 1, Ark. Digest,Blashfield Auto Law, Am Jur, Personal Injury Valuation, Shepards. All with, orwithout shelving. CaU 329-5330. Make an offer for all or part. Good Condition.

FOR SALE: Arkansas Code Annotated, Complete, Up-te-Date as of January 1, 1993,Price $695 per set, if picked up at our office. Otherwise, add cost of transportation.The offer does not include the Court Rules Volume but does include the indexvolumes. Daily, West, Core, Coffman, & Canfield, P. O. Box 1446, Fort Smith, AR72902,782-o36l.

ARKANSAS TRIAL LAWYER'S ESTATE SALE: Library includes S.W. ReportersArkansas Cases, Arkansas Code Annotated, Arkansas Digest, CaseBase and otherpertinent materials. Please contact Margaret Belford at 372-7771.

Advisory Opinion 92-06 (ArkansasJudicial Ethics Committee December 17,1992)

Ln an advisory opinion, the ArkansasJudicial Ethics Committee stated that,where a judge's Sibling is an attorneyemployed in the litigation division of thestate attorney general's office, the judgemay sit in cases that involve the office ofthe attorney general, except those in

The most complete source of material avail·able on current Arkansas evidence law; thecommentary 10 each nie and each anootationhave been wriUen especially for this book.More than 1,000 annotations in handsomeloose-leaf binder; 278 pages; annual supple·mentation at reasonable prices. Satisfac·tion guaranteed; may be returned within 30days for full refund.

among lawyers in different law firmaccording to Ark. Rule of ProfessionalConduct 1.5 (e). Although the rulepermits different options, the most typicalscenario permits fees to be divided orshared without regard to the division ofwork, labor, and services between thelawyers, provided the total fee isreasonable, the client consents, and bothlawyers accept joint responsibility for therepresentation. For purposes ofmalpractice litigation and disciplinaryproceedings, the lawyers are treated as ifthey are partners in a single firm. Ifproperly done, a fee may be shared evenif one lawyer has done nothing other thanto refer a client to a second lawyer. (Acopy of the complete opinion is availablefrom the Arkansas Bar Association.

Advisory Opinion 92-05 (ArkansasJudicial Ethics Committee ovember 19,1992)

Ln an advisory opinion, the ArkansasJudicial Ethics Committee stated thatArkansas judges who hold offices filledby election may purchase tickets to andattend the inaugural ball for Bill Clintonregardless of whether the ball isconsidered a celebration or a politicalgathering and regardless of whether theadntission charge is used to defray costs Iof the event, is given to a charitableorganization, or is used to supportDemocratic Party activities.

ARKANSAS RULES OFEVIDENCE

with Cor,lmentary and Annotationsby

Mort G~.lm8ll, Marcia Mcivor, & Carl E. Sm~h

Complete with 1992 Supp.-$75

Send check for $75.00 payable to:

m & m PressP.O. Box 338

Fayetteville, AR 72702

Jerry Schwartz(901) 385-1185

Serving the legal community for over ten years


THE ARKANSAS BARASSOCIATIONTRIAL NOTEBOOK

Committee Chaired bySamuel A. PerroniReviewed by Henry Woods

No attorney primarily engaged intrial practice or aspiring to such acareer should be without the TRIALNOTEBOOK prepared by adistinguished committee of Arkansastrial lawyers and edited by SamPerroni. Rarely has so muchinformation been compressed intorelatively few pages. Every aspect ofthe trial is covered from voir dire tosummation. There are also valuablechapters on the roles of paralegalsand the use of exhibits anddemonstrative aids. I wish that allattorneys that practice in my courtwould pay special attention to thesection on exhibits. One of their mostfrequent deficiencies is to appear andannounce ready for trial withouthaving their exhibits marked andlisted and without having consultedopposing counsel as to stipulationson admissibility.

The chapter on expert witnessescontained many highly valuablesuggestions as to the presentation ofexpert testimony, that expensive andcontroversial aspect of the moderntrial. The chapters on direct and crossexamination contain many practiceobservations along with IrvingYounger's famous "Ten Commandments of Cross Examination." Byclosely following the chapter on

'Making Your Record: many apractitioner will be spared theembarrassment of having an appealdismissed on a technicality.

When I was admitted to the barover 50 years ago, no such valuablepublication was available to me ormy contemporaries. We had to learnthe hard way by trial and error andhard experience which wassometimes very costly to our clients. Iwish such a trial notebook had beenavailable to us!

THY KINGDOM COME

by john S. "Bud" ApplegateReviewed by Thomas G. Williams

For anyone who has enjoyedeither of james Herriot's books ALLCREATURES GREAT AND SMALLor ALL THINGS BRIGHT ANDBEAUTIFUL, you will appreciateTHY KINGDOM COME. For thoseof you unfamiliar with Herriot'sbooks, they are a charmingcompilation of the experiences of aYorkshire veterinarian serving thecountryside community where heresides. This book, subtitled "Tales ofa Small Town Lawyer" is comprisedof a collection of short stories, somecontrived, some fact, which reflectthe experiences of the fictionalcharacter john Stirlen, a small-towntrial attorney. Each of the stories is setin the town of Galarna, Washingtonduring the period following WorldWar II.Mr. Stirlen's courtroom adventuresare based primarily on the

experiences of the book's author,john S. "Bud" Applegate, a retiredlawyer from Yakima, Washingtonwith a 50 year certificate of servicefrom the Washington State BarAssociation. Applegate's alter-ego,john Stirlen, is a dedicated trialattorney who attacks each case withequal vigor, inc! uding his pro-bonoappointments. Although each storydoes not result in a successfuloutcome for Mr. Stirlen's clients, theyare equally delightful and, likeHerriot's books, reflect the author'sdedication and love for hisprofession.

THY KINGDOM COME iswonderful reading for both thelawyer and non-lawyer. For the nonlawyer, the stories are not onlyentertaining, but also informative.The author takes considerable time toexplain, in layman's terms, legalprocedure and terminology.

Additionally, the reader is giventhe occasion to track Stirlen's legalanalysis and trial strategy as heworks his way through a myriad ofcases. Although the lawyer may findthese detailed asides elemental, theyare presented in such a manner so asnot to detract from the reader'soverall enjoyment of the book.Thy Kingdom Come is perfectsummer reading and would make anexcellent gift for a lawyer's familymembers or friends. The book is selfpublished and, therefore, notavailable at most bookstores.However, it may be ordered from itspublisher, Vantage Press in NewYork City, or from the author himself.

PRESIDENT'S MESSAGE

The ThinGray Suit LineBy John P. Gill

Arkansas born General DouglasMacArthur immortalized the long grayline in his farewell to West Pointl

That long gray line has stamped outoppression and evil. OUf militaryslrength has yielded peace amongnations, and the military has protectedour freedom from outside threat.

But walk the halls of our juvenilecourts and see if there is peace. Look atthe "no public rest room" sign at theconvenience store and see if there isfreedom for all citizens to use facilitiesserving the public. Talk to the adult childwho agonizes over the do-it-yourselfliving will executed by her unconsciousaged mother and tell me that the war ofthe soul is over. See the frustrated frownof a CEO who wants to offer hisemployees an opportunity to own sharesin their own company only to learn thatthousands of pages of laws andregulations limit his doing so. Plenty ofwork remains for the men and women inthe gray suits - the gray suit line oflawyers. There may be a peace dividendfrom a deactivated military, but there areno peace dividends for human suffering,and society needs the long gray suit linenow more than ever. Yet lawyers areunsure of themselves because societyquestions their role.

The divorce war is a classicillustration of a place where theprofessional can bring peace. Theprofessional will resolve a disputequickly and leave bridges in place for anunderstanding about the children'sfuture. The unprofessional will attackand delay and confuse and charge by thehour treading on other people's misery.Ethics calls upon us to resolve thedispute. The unethical lawyer willcontribute to the agony.

There are many things the soldiers inthe long gray suit line can do to protectfreedom. I'll mention only two. NumberOne, maintain an ethical lifestyle.

umber Two, push back the paradigms


of the judicial system.Number One. As Michael Josephson

said at our last annual meeting: There isa tendency to approach ethics rules as ifthey were tax laws - which is to look forambiguities and loopholes. It seems tome that as long as lawyers approachethics as a set of rules, we will alwayslook for loopholes. We've been taughtthe Socratic approach since law schooland we can't change the looking forloopholes habit. What we can do isapproach ethics as a way of life in whichthere are basic truths - not rules. Weknow these truths. No one can receiveseven years of higher education withoutknowing the simplistic differencebetween right and wrong, especiallyafter learning the law. Lawyers arehighly educated. They know what isright and true and ethical. We are theone group in America who know how todo right. Enough said.

Number Two. The judicial system inArkansas is a tattered and tom disgrace.We spend far less than 1% of the state'stotal revenues on one-third of itsgovernment, the Judicial Branch.Incredibly, the state spends more formedical care and feeding of prisonersthan the entire appropriation foradministration of justice. We have judgeswithout secretaries, we have jury roomswithout chairs, we have judges electedwithout independence because they havetaken an oath, under God, to support onepolitical party and not the other. Wehave municipal court fines used to paythe retirement and salary of the judgewho decides whether or not the fineshould be imposed. We have jingles toeducate the electorate on who should bea judge. We try the same capital caseover and over again because we can't tryit right the first time. We have no way ofinsuring that an attorney can get paid forhis work since it is easier to get amechanic's lien on an automobile than itis to get an attorney's lien on a fee.

Clients have no means for resolving feedisputes except filing another law suit.We have staggering malpracticeinsurance rates. And a whole lot more. Inshort, we have out-of-date justice. All ofthese paradigms have been in place foryears, and they deny justice and stealfreedom.

On June 13,1992, I asked the lawyersof Arkansas to challenge the paradigmsand solve these problems; by midAugust many solutions were aLready onthe table and more are coming. Its called21st Century Lawyering and is in theNovember issue of The Newsbulletitt.The long gray suit line is working inArkansas. It is highly educated.Motivated. Well trained. It's a line oflawyers today that stand for freedom.Freedom and justice for all.

I'm very proud to have served in thatline with you this past year. However,our work is not done and we cannot rest.The Arkansas justice system is nearlybankrupt and even judgments to payfines are ignored - with impunity inmany cases. Refusals to comply withdiscovery requests are commonplace.Uncivilized conduct among lawyers isadmired by unprofessionals. And clientsand iawyers alike (even judges) worshipthe billable hour, when uur prooecessorsworshipped serving the client by solvingproblems. Happily, lawyers in theArkansas Bar Association are spendinghundreds of "billable hours" solvingthese and many other problems.

If you don't have a place in the marchto 21st Century Lawyering, let me knowand you can have one, because, together,you and I can stop the cause for lawyerbashing, be it a misunderstanding ofwhat freedom is all about, out-of-datejustice, or loss of professionalism.

Remember the long gray suit line isthin. Its only you - one lawyer - thatstands between justice and injustice.

1. Witlt 11Ie lIelpofafrw Marilles.

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LAW PRACTICE MANAGEMENT

Beyond ComputerIlliteracyBy Jerry Schwartz

Many years ago we sat at the kitchentable or in the living area of our housewith our parents and were tau~ht theletters of the alphabet. Some of us werevery lucky to have had flash cards thathelped us to learn our alphabet a littlefaster than the other children. Ourparents probably made a game out oflearning our alphabet, and we were allprepared for elementary school, wherethe teacher taught us how to form ourprinted letters and later how to writewith good penmanship. Those skillslearned in our early years were essentialto our success as professionals today.Without the abiJity to read and write, onecannot perform the tasks required of anattorney at law.

Many lawyers long hand or dictatedocuments today using the skills learnedas a child. Years ago these documentswere typed by secretaries on typewritersand sent to the courts or partiesassociated with the case. This methodsufficed for many years but because ofthe volume of work and difficulty inmaking changes to the document, theword processor was d~v~loped by anumber of companies. The typewriterbecame obsolete with the new innovationwhich allowed data to be electronicallystored so changes could be made withease, therefore increasing the volume ofdocuments which could be completed.The word processor hardware andsoftware were proprietary to thecompany that developed them. They didnot have the ability to communicate withother word processing equipment orsoftware. A higher skilled person wasneeded to operate the word processorsbecause the commands to enable themachines to operate were code intensive.The lawyer was insulated from the


output of written documents andcontinued to perform the tasks requiredof an attorney at law, which had beenbasically the same for decades.

A little over ten years ago the rules ofthe game changed with the developmentof the personal computer. We now had apiece of hardware which would acceptsoftware developed by different peopleand companies. The creative energies ofthe American marketplace took over andmany software packages became "userfriendly" which enabled more peopleincluding lawyers to use a personalcomputer. The importance of learning tooperate a personal computer is asimportant to you today as those daysspent learning the alphabet and how toform your letters. The entire world iscomputerized and thust: that resist willfall behind and will not have the skills tocompetitively perform the tasks of anattorney at law.

L.:,wyers readily admit that they arecomputer illiterate, as if that makesthings all right. The true fact is that it isnot all right. The cost of qualified supportstaff is rising ilnnually. Using outdatedequipment in the office affects law officeprofitability in many ways: efficiency ofthe equipment is poor; maintenance costof old equipment is expensive;productivity of support staff is reduced;and other helpful computer programscannot be used. If you are going topractice law (or the next five years youmust take the time to learn how tooperate and use personal computerhardware and software available for lawoffices.

All law offices must make thetransition from older word processingequipment to personal computers. Thetransition should be slow but steady.

Rather than starting with a computernetwork, the law office may start withstand-alone personal computers. Oncethe support staff is productive, thelawyers should get computers. When thelawyers are comfortable with computeruse, the office should consider acomputer network. At every stage ofimplementation training is critical to asuccessful installation. The cost oftraining should range between 20 and25% of the cost of the eqUipment. Thiscost is often overlooked and the lack ofknowledge undermines the potentialincrease in productivity.

The hardware selection should bebased on more than cost. Support andservice is crucial to the long term successof the instaUation. This is an investmentin the practice and although you shouldseek out the best price available, thecheapest is not always in the best interestof the law office.

The cost of the transition should belooked at as an investment in the futureof the practice and should be spread overthe useful life of the equipment. Manylaw offices resist change because they payfor purchases out of current doUars. It ismore reasonable for the law office tospread the cost of the acquisition over thelife of the equipment by borrowing forthe acquisition or leasing the equipment.The law office cannot tolerate much moredelay. The technology is not "new" aftermore than ten years of use; it is the"standard" which clients have come toexpect and which they deserve.

Jerry ScJnoortz is tile owner of Legal MQlwgemelltServices of Memphis. Tetlllessee, a cot/suiting andma"ageme"t services firm specializillg illprofitability improvcmellt for smalf and mediumsiu law OffiCes.

NOTICE TO ARKANSAS BAR AsSOCIATIONMEMBERS ON HISTORY OF THE BAR

By ROBERT R. WRIGHT

UALR SCHOOL OF LAw, 1201 McA1.MONT, LITILE ROCK, ARKANSAS 72202

The Arkansas Bar Association hasdesignated me to write a history of thebench and bar of Arkansas. This leads meto ask for your help.

Although most of the recent history oflawyers and judges is known to us, noteven all of that is known to me. Moreover,when you move back into the period ofthis century prior to World War n, it takesyou to a time more shrouded in thememory of a few older people. In thatsituation, particularly in the early part ofthis century, some colorful local lawyersmay slip through the cracks.

Of course, it becomes even moredifficult when you move back into the19th century. It becomes primarily a Imatter of research as opposed to memory.

So. this is how I need your help: Iwould like for every lawyer, judge orlayman, who wishes to contribute to thiswork, to send me a letter or memorandurnpertaining to your recollection ofArkansas Lawyers and judges whosehistory should be a part of this book. Iwould particularly urge you to include"stories" of some interest about Arkansaslawyers with regard to entertainmentvalue. I do not want this to be a pure

history book or biographical discourse. Iwant to write it in such a way that it willbe of interest to the reader and alsoenjoyable to read.

We will use some pictures in this book,and you may wish to submit some ofthose. I am creating a set of files with thematerial divided according to theanticipated chapters. I currently plan todivide the State into regions, such as theDelta, and discuss the lawyers and judgesof that area separately from other areas.

It is my expectation to have a chapterpertaining to women lawyers, anotherwith regard to African-American lawyers,another as to the federal judiciary, anotheras to the Supreme Court and Court ofAppeals, and another as to the lawschools. Because of the small size of thebar and judiciary in the early part of the19th century, I may separate that part intoa chapter all its own.

Let me emphasize that even though Iwill be writing this book, it is your book. Iwill have to take the blame for anymistakes or historical inaccuracies. But ifyou want material in the book aboutcertain people or events, whether seriousor humorous, you will need to do your

part. I have begun to do interviews withlawyers and judges in Arkansas, but thatalone will not suffice. Give me your helpand let us make it a book that we can allenjoy and appreciate in the years to come.

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EXECUTIVE DIRECTOR'S REPORT

Proud to bea LawyerBy William A. Martin

"He makes me proud to be alawyer," was my reaction when Iheard Morris Dees when he was thekeynote speaker for the openingsession of the 1991 American BarAssociation meeting. Our President,john Gill, heard Morris Dees inanother setting and knewimmediately he was a must speakerfor our Annual Meeting.

Morris Dees conveys his messageabout the importance of the rule oflaw and our role as lawyers inupholding it in a quiet, calm mannerand without big words or carefullyturned phrases. In a sense, themessenger is the message as he tellsabout how he and other lawyers atthe Southern Poverty Law Centerrepresented people who werevictims of injustice and vindicatedtheir rights. His appearance alonewill make your coming to ourAnnual Meeting worthwhile.

Dees became a lawyer for theright reasons. He tells of his interestin the law as a means to right wrongsgoing back to a time when he was 16and his father sent him to anAlabama justice of the peace courtwith a black worker from the familycotton farm who was wronglyaccused of drunk driving. The policeand jP considered black peopleunworthy of belief and there was aconviction. Dees told his father thatwas not right and the reply was: "Ifyou want to do something about it


why don't you be a lawyer someday."Dees has been doing something aboutit for well over a quarter century andis probably best known for his civilsuit following a Klan inspired murderthat resulted in a judgmentbankrupting the Klan. For his work inmaking hate crimes expensive, he hasbeen recognized by ABC's Peterjennings as "Person of the Week."

We need to take time occasionallyto reflect on the magnificent thingslaw and lawyers do for our society. Inthis day of frequent lawyer bashingby politicians and the press it is easyto become discouraged with ourchosen profession. The stress ofeveryday practice and the pressure toproduce "billable hours" have made asubstantial number of lawyers whorespond to surveys say they aredissatisfied.

To help us put things inperspective we have other parts of theAnnual Meeting program to addressSOme of these issues. A presentationabout Value Billing will start us onthe road to looking for alternatives tothe inefficient and unsatisfactorybillable hour tyranny. We will have adebate about whether law is aprofession or a business and howconflicting pressures to make it eithercan be resolved to make it the best ofboth. Besides programs to tell us whatthe law is our Annual Meeting willgive us time to reflect on what weindividually and our profession must

be as we approach the 21st Centuryto make ench of us continue to beproud to be a lawyer.

Of course we do not have to waitfor meetings to think about why weare proud to be lawyers, butsometimes they focus our attention.We know from the very beginningdays of our nation that lawyers werethe people who had the foresight toestablish a system of governmentwhich gives us the world's longestsurviving democracy. Today wehave lawyers, and especiallyArkansas lawyers, in the highestpositions in state and nationalgovernment. We have lawyerseffectively running many businesses.We have lawyers who have beenresponsible for the progress we havemade in recognizing, extending andprotecting individual rights.Without the knowledge andinspiration flowing from a legaleducation and the mentoring, thecompanionship and the example oflawyers passed on from generationto generation OUf state and nationwould not have the strength andpotential to get better and better thatit has.

The title to an old Charles Wesleyhymn, "A Charge To Keep I Have,"sums it up. We all have a charge todo the things and to be the thingsthat make us all proud to be lawyers.

ARKANSAS MEDIATION / ARBITRATION SERVICE

An Affiliate of Oklahoma Mediation / Arbitration Service

is pleased to announce that

Fayetteville Attorney, David Morris, has become a

member of our mediator panel.

Attorneys Bart Virden & J. R. Buzbee

will continue as members of our Little Rock

mediator panel.

ADMINISTRATIVE OFFICEJohn D. Rothman, Legal Director

7666 East 61 st StreetTriad Center I, Suite 335

Tulsa, OK 74133(918) 459-0100

Fax (918) 459-0103

Toll Free 1-800-753-0100 Little Rock 501-372-5152

GIves Meaning to the Numbers

Attomeys know the law, accountants knowtheir numbers, and when a case in litigationinvolves complex accounting, tax andfinancial issues, you bring in a CPA to "makesense of the numbers:'

That's where BKD can help your case. 'fakea recent business dissOlution case, forexample. We objectively determined the valueof the business in question, then testifiedabout the tax consequences, the company'sfair value and the independence of the parties

involved.Call us for more information about hoW ourtax and financial exPertise can help your casein business splits, business continuations orstructuring noncompete agreements.

Little Rock372-1040

Pine Bluff534-9172

LAW, LITERATURE & LAUGHTER

ADog and Mule Showof PrecedentialProportionsBy Victor A. Fleming

Back to the issue: Which is mostentertaining - testimony, pleadings, orjudicial opinions?

Jacqueline Wright, Arkansas SupremeCourt librarian, submits State v. Jackson,Ian appeal from a conviction for refusingto comply with a "lawful order of (aJpolice officer [directing] traffic,"contending a man on an animal was not"traffic:"

"The animal ... was named Frieda.Frieda's mother apparently had animpeccable equine pedigree - indeed,the events of this case suggest origins inthe hunt country of Maryland or Virginia,with strains of hunter, Morgan, orperhaps saddlebred in her background.Unfortunately, like many young ladies ofbreeding she made a love match farbelow her station. Her mate may havehad charm, and clearly had animalmagnetism, but he was also indisputablya jackass. Frieda, the product of thisunhappy union, was a mule.

"She was no ordinary mule, however.Although genealogy and geography hadconspired together to deprive her of herrightful heritage, Frieda could not becontent with a mule's customaryplodding fate, shackled to a plow orwagon, with no hope of pleasure in youthor even progeny to comfort her in oldage. Encouraged by her owner and by acoonhound named Buck - reportedlyvalued at $1500 • Frieda took up thatnocturnal ritual known as coon-hunting.She was an apt pupil. From her fathershe had inherited a surefootedness whichproved advantageous on rough and rockyground. From her mother she hadacquired talents which, with a littlepractice, enabled her to clear a four-footfence with ease ...

"[W]hile returning from one of herfavorite evening outings, ... Frieda had

her present brush with the law. It wasalmost midnight and Frieda, tired fromthe chase, was riding in the back of herowner's pickup, swaying gently betweenthe stock racks and looking forward tospending the rest of the night peacefullyin her pasture on the banks of theVerdigris River.2 Buck was in the cabwith their mutual owner ... They [were]less than half a mile from Frieda's pasturewhen they encountered a police barricadeand Deputy Lee Coltharp ...

"... Although he had been allowedthrough some six hours earlier when hehad picked Frieda up, this time thedefendant was ordered to turn aroundand go back. He protested that doing SO

would mean eight or ten miles of drivingto reach the nearby pasture ..., got out,and signaled to Frieda. Obediently,Frieda jumped out of the truck. BeforeColtharp could react, defendant mountedand rode off into the night, ... throughthe restricted area, to the pasture. ThereFrieda made her last leap of the night,over the fence and into the familiar safetyof her home grounds.

"Defendant returned ... afoot, againthrough the restricted area, to his truckand the waiting Buck. Also waiting wasDeputy Coltharp, citation in hand."3Because a statute defines "traffic" toinclude pedestrians and "riddenanimals," the court affirmed theconviction.

From Bob Jesberg of Little Rock, thisexchange in a domestic dispute (onepartner was alleged to have used a knifeon the other):

Q. Prior to the incident in questions,were you and the defendant livingtogether as husband and wife?

A. Two or three night a week we was.From William J. Wynne of El Dorado,

this from an auto accident case:

A. [The only other accident I've beeninvolved in] was when l was drivingdown this logging road in a pickup truckand ran into a hog.

Q. Was anyone hurt?A. Only the hog.Q. Was he hurt bad?A. He must have been, because he

died.And Kay McClanahan, of the

Administrative Office of the Courts,submits some pro se grievances receivedby the Committee on ProfessionalConduct on pre-printed forms (we'll callthese pleadings for the record):

Q. What did you hire the attorney todo for you?

A. Slip and fall out of state.4

Q. What was the fee arrangement?A. I would pay for coping and filling

fees and if settlement was reached shewould get 30% of medical charges?

And these excerpts from statements of"the circumstances involved":

"The worst part about the whole thingis that now my reputation has beenexpunged."

"1 believe she has broken thestandards of conduct for an attorney; andthe Mordate rule also."

"Also is there any way for me to bereimbuse for the money which I havesent?"6

© 1993 by Victor A. Fleming1. 5 Kan. App. 170, 613 P.2d 398 (1980).2. 0 testimony was cited fOf" this

conclusion about Frieda's state of mind.3. 5 Kan. App. at 171.4. Must have been a Texarkana lawyer.5. I wonder if the First Lady's proposed

healthcare reform will address roping fees?6. Score at the end of round 5: Testimony

12; pleadings 12; opinions 4. Come on, youopinion readers out there, let's close this gap!

ARKANSAS BARASSOCIATIONSUSTAINING MEMBERS

The support ofthe Sustaining Members ofthe Association contributed this year to the production ofThe Consumer Law Handbook which will be distributed to the pubic free ofcharge. They are also

sponsoring the appeara"ce ofMorris Dees at the 1993 AnnualMeeting.

PHILIP S. ANDERSONLllTLEROCK

R. KEITH ARMANHOTSPRIN S

ANTHONY BARTELSJONESBORO

PAUL B. BENHAM, IIILfITLEROCK

TED BOSWELLBRYANT

WILLIAM H. BOWELfITLEROCK

WM. CLAY BRAZILCONWAY

EDWARDW.BROCKMAN, JR.PINEBLUFF

RICHARD K. BURKEPRESCOTI, AZ

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GEORGE B. COLLI SCHICAGO,IL

CARL K. CREEKMOREVANBUREN

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The narrative produced both guiltyand not guilty verdicts, but the verdictswere not randomly distributed acrossrespondents. When the respondents werestructured by a particular combination ofgender, newspaper preference, and casefamiliarity, there was a distinct andsignificant trend toward not guilty.Because of the probabilistic associationsbetween verdict, case familiarity, gender,and newspaper preference, Perroni andco-counsel Bill Wilson were advised toselect jurors using these criteria.

Justice Purtle was acquitted and histwo co-defendants were convicted. Thecontribution of jury selection to theacquittal is undetermined but our strongimpression was that it was extremelyhelpful.3 We regarded the technique sopromising that we decided to explore itspossibilities in subsequent cases.

One of the earliest post-Purtle casesinvolved a defendant who was chargedwith 21 counts of mail and wire fraud inhis capacity as an account executive for alocal securities firm. Again, a written trialnarrative was prepared along with a jurorquestionnaire and a response sheet thatprovided for verdict and estimates ofcritical evidence. Our expectation was thatmost "jurors" would find the defendantguilty but our hope was that we couldidentify some criteria that would help injury selection. We were surprised by thelarge number of not guilty verdicts.Analysis of pre- and post-verdictdeliberations and interviews with therespondents revealed that the criticalvariable revolved around financial gain orloss. "Jurors" who acquittedacknowledged the defendanYs actions butinferred no intent to defraud becausemost transactions involved a financialgain.

Based on these results, a new trialnarrative was developed whichemphasized defense arguments that the"defrauded" company actually mademoney from the defendant's actions andthat the defendant's intent was to makemoney for both himse1f and his company not to defraud anyone. One half of thenew narratives included one form ofjudicial instructions regarding intent andthe other half included a different set ofinstructions. A significant increase in notguilty verdicts was associated with thenew defense argument, and the increasewas augmented with Form A of thejudicial instructions. Overall, oursimulation jurors found the defendant notguilty on the 18 counts involving financialgain, and guilty on the three countsinvolving financial loss. These results


suggested a definite trial strategy where,essentially, the "defrauded" company wasput on trial and the defendant wasportrayed as striving for legitimatefinancial success. The pre-trial simulationalso revealed that respondents familiarwith the term "bond-daddy" consistentlyvoted for a guilty verdict.

During voir dire, three members of thepanel acknowledged familiarity with theterm bond-daddy, and peremptorychallenges were exercised against thesethree. In a mini-validation of thesimulation, one of those strucksubsequently responded to the narrativeand found the defendant guilty. At trial,the preferred instruction regarding intentwas adopted by the court and the actualtrial outcome corresponded exactly to thesimulation results: ot Guilty on 18counts; guilty on three counts. One of theprimary lessons learned was that oursimulation tool, primarily designed as anempirical guide to jury selection, couldalso be used to experimentally determinethe relative effectiveness of alternate trialstrategies.

The use of experimental variations ofthe trial narrative was also highlighted inthe trial of a doctor charged with illegallydispensing prescriptions for controlleddrugs. In particular, his authorizing DEACertificate of Registration had beenrevoked as the result of a prior felonyconviction and he had dispensedprescriptions using another physiciansOEA registration number.

The Grand jury indictment of thedoctor was based not only on informationconcerning the current case but alsoincluded details of the prior conviction.One experimental question was whetherinformation concerning the priorconviction should be suppressed in limine.A related question was whether thatinformation was central to the indictment.The questions were addressed bypreparing two versions of the trialnarrative. The narratives were identicalexcept for the addition of five sentences toForm B of the narrative. Both narrativesreferenced the prior conviction in theprosecution's opening statement andagain in the doctor's cross examination.The additional five sentences were addedto cross examination and elaborated onthe circumstances of the prior conviction.

The results were striking andstatistically significant.' Only 25 percentof the "jurors" who responded to form Afound the doctor guilty while theconviction rate rose to 66% for jurorsprovided with details of the priorconviction. These results were notrequired to support the suppression

request, which was granted. but theywere presented to the judge in support ofa motion that the case be dismissed on thebasis of an unconstitutional indictment.The argument was that by introducingirrelevant and inflammatory informationbefore the grand jury, the indictmentbecame the product of passion andprejudice and therefore tantamount togrand jury abuse. From the bench, thejudge spent about two hours consideringthe motion and his verbalizationssuggested that he was clearlysympathetic. In the end, however, hedecided to send the case to the jury whoacquitted the doctor. Post-trial interviewswith selected jurors confirmed that theeVidentiary issues apparent from thesimulation were the salient issues in theactual trial.

During the savings and loan trial ofHoward Weichern, the initial pretrialsimulation suggested that a convictionwas likely on one or both of two criminalcounts and also revealed useful defenseinformation for trial purposes. It did not,however, yield any clear criteria for juryselection although an earlier venue surveyestablished that familiarity with the casewas associated with pretrial estimates ofguilt. 5 The absence of a clear strategy forjury selection prompted us to experimentwith an interesting supplement to thesimulation approach.

In 1987 the American Law Instituteand the American Bar Associationpublished Walter Abbotrs Analytic JurorRater, which uses national survey data tomake a quantitative estimate of thelikelihood that four types of values arerepresented by jurors in various statuscategories (e.g., gender, age, occupation).The virtue of the Analytic Juror Rater(AjR) is that potential jurors can beprofiled, or probabilistically associated,with the four types of values using thelimited data available from the offidallistof petit jurors provided by the court (e.g.,gender, age, occupation, marital status).The primary problems with the techniqueare that (1) no validation data has beenreported SO there is no confidence that thevalues are actually related to verdicts, and(2) it isn't always clear for a particularcase which value, or combination ofvalues, should be profiled.

We circumvented the problems by,first, revising our juror questionnaire toinclude two questions related to each ofthe four AjR values. This enabled uS toevaluate each respondent relative to eachscale. Secondly, the pre-trial narrative andrevised questionnaire were administeredto a new sample in the week prior to trialand individual verdicts were correlated

with scores on each of the four scales.Scores on the economic scale predictedverdicts. This result was unknown toPerroni and his paralegal, Sherry Joyce, asthey independently identified ten jurorsfrom the official petit juror list likeiy to bechallenged based on network information.We profiled the entire panel of 88 petitjurors on all scales and nine of the tenjurors nominated for peremptorychallenge were profiled at the bottom ofthe economic scale. The convergence ofsimulation and network results gave usconfidence to use the economic scale as aguide to jury selection in the Weicherncase.

Profile scales are constructed such thatthe most favorable juror can receive ascore of 100 while the most dangerousjuror can receive a score of O. Thedistribution of profile scores across theWeichern panel was skewed in thedangerous direction with an average scoreof 43. Fifteen potential jurors scoredbelow 30 while only four scored above 70.The problem of finding an impartial jury,much less a favorable jury, wascompounded by the pu blicitysurrounding the triaL Familiarity with thecase was common and several members ofthe panel were dismissed for cause on thebasis of preformed opinions. Fortunately,all panelists excused for cause scoredbelow 39 on our profiler. Two additionallow scoring panelists were excused forcause based on their response to a voirdire question taken from the economicscale. With the exception of onedangerous juror recommended forinclusion by Mr. Weichern, peremptorystrikes were used to eliminate theremaining jurors identified as mostdangerous to the defense. The peremptorystrikes by the prosecution eliminated ourtwo most favored jurors with the resultthat the profile composition of the finaljury was compressed into the low midrange of scores.

After the case went to the jury,deliberations proceeded for three dayswhen the jury reported they weredeadlocked on the two counts. Thequestion became whether or not toadminister the "dynamite" instruction. Byall appearances, the trial had gone welland Mr. Weichern supported theinstruction, which the court administered.The jury subsequently rendered a verdictof guilty on one count and not guilty onthe other (with the dangerous butincluded juror a champion of guilt). Theretrospective lesson may be that the"dynamite" instruction will induce a lessthan-favorable jury to compromise onverdicts involving multiple counts.

While a complete Weichem acquittalwas not achieved, use of the AJRappeared so promising that questionsrelating to AIR values are now routinelyincluded in all of our simulationquestionnaires. If any value, orcombination of values, reliably predictsverdict, then that value is used to profilethe actual jury panel. Having a structuredrating of the potential jurors at voir direprovides an efficient mechanism tomanage the limited and sometimesconfusing moments when actualselections are made. One simply exercisesperemptory strikes against those jurors atthe bottom of the list who survive voirdire challenges for cause. We shouldemphasize that the profile does notguarantee that a particular juror reflects aparticular value. It simply specifies theempirical probability that the value isrepresented by the juror. If otherempirical information contradicts theprofile, we don't hesitate to modify therating. For example, one bankruptcyfraud case involved a defendant who hadbeen involved in an extramarital affair.The affair was not legally germane to thecase but the simulation results revealedthat it effectively increased the probabilityof a conviction. Relative tolerance forsexual promiscuity is reflected in thecosmopolitan lifestyle scale and this scalewas used in combination with one otherscale to profile the jurors. One particularjuror seemed to be ideal from a defensestandpoint as he scored some 15 pointsabove the second highest juror rated.When called, our "ideal" juror announcedthat he was actually a Pentecostalpreacher and believed that extramaritalaffairs were second only to overeating onhis scale of sinful activity! We moved. himfrom the top to the bottom of the scale.

Another extra-evidentiary issue in thesame bankruptcy fraud case revolvedaround the fact that the defendant was anattorney. When the "jurors" involved inthe simulation had this information theyvoted to convict while acquittal was thenorm when the information aboutprofession was withheld. It was not a caseof equating lawyers with criminality but amatter where the jurors assumed that aperson trained as a lawyer would haveknown the ramifications of certain actionsrelating to the fraud charges. These resultscontributed to the decision to keep thedefendant off the stand. As aconsequence, the professional backgroundof the defendant never emerged at trialand the defendant was acquitted.

While all of the preceding cases havebeen criminal cases, the simulation can beequally effective for civil cases. In fact, the

simulation provides an excellent tool togenerate estimates both of liability andprobable damage awards. For example,one recent case involved a plaintiff whohad broken his back following a faU froma truck and was left impotent andincontinent. He brought civil actionagainst the company where the truck wasbeing loaded when the accident occurred.Based upon the depositions in the case, atrial narrative was developed andadministered to 47 jury-eligible subjects inthe trial jurisdiction. Only four of thesubjects individually failed to find thecompany liable prior to deliberation andall post-deliberation verdicts supportedcompany liability. Prior to trial, attorneysfor the defendant offered a financialsettlement. Our question was whether toaccept the settlement offer. The simulationresults included categorical amounts ofdamage awards from each juror. Thesedata and the techniques of statisticalinference were used to determine thelower and upper limits that would beawarded by 95% (and by 99%) ofrandomly selected juries from the trialjurisdiction. The results suggested that theoffer was significantly less (by a factor of3.5) than a randomly selected jury wouldaward - and less by a factor of about fivethan a jury selected on the basis of thehigh-award juror characteristics identified.by the simulation results. Eventually, asettlement was reached that wasconsistent with the simulation awards.

Despite the advantages conferred bythe simulations, there are cases where pretrial information seems to be not quiteenough. We recently perfonned the usualpre-trial activities in a case that involved. adefendant charged with the illegalpackaging and selling of misbrandedpenicillin to poultry producers. Our"jurors" identified several trial issues thatrequired resolution if a successful defensewere to be achieved. Most of these wereaddressed prior to trial but one stickyissue revolved around the defendant'srole or responsibility in the storage ofillegal penicillin in a rented miniwarehouse. There were reasonableexplanations but there was no pre-trialresolution of the lines of argument towhich the jury might be most receptive.An additional problem was a weakassociation between juror characteristicsand verdicts.

In this case we supplemented our pretrial information with informa tionsupplied by surrogate or "shadow" jurors.On the week-end prior to trial, threepeople from a group of 10 interviewedwere selected from the community wherethe case was being tried and hined to sit in

the spectators' seats during the actualtrial, listen to the attorney's argumentsand hear the real witnesses testify. Eachtime the proceedings in court were heldoutside the real jury's presence, our ju.ryleft the courtroom. Ln short, they were a"shadow" of the real jury. They were paida daily fee but were not informed whichparty had engaged them. Each day afterthe trial adjourned, the shadow jurorswere taken to a conlerence area wherethey were individually engaged in adiscussion of the case. They alsocompleted a questionnaire that providedfor a multidimensional evaluation of eachattorney and witness, estimates of thestrength of the respective cases, questionsand points of confusion, and ratings oftheir current bias toward conviction oracquittal. Each evening, we reviewed howwitnesses and evidence were beingevaluated by the shadow jury and theyeffectively became on-the-spot, laypersonadvisors for the defense.

Very early in the trial we determinedthat the shadow jury liked the defendant,thought the prosecution case was weak,and wanted some reason to justifyacquittal. Both prosecution and defensehad rested by 11 a.m. on a Thursday, andthe judge recessed until 2 p.m. at whichtime closing argumenls would be heard.During the three-hour break the shadowjury assembled in the conference area andwere instructed to deliberate. In thecourse of deliberations, the major obstacleto acquittal revolved around a defenseexplanation of the defendant's role withthe rented mini-warehouse. The shadowsdiscussed three possible explanations andconcluded that one explanation inparticular would warrant acquittal. They"chose" the preferred explanation andvoted for acquittal. By 1:30 Perroni wasaware of the shadow deJiberations andincorporated the preferred explanation ofthe mini-warehouse into his finalargument. The defendant was acquitted.

The results derived from the pretrialnarratives, the juror profiles, and theshadow juries all involve simulationelements that help define the favorableodds for selecting a particular ju.ror, oradopting a particular case theory orargument. Just as successful baseballmanagers and gamblers play the oddswhenever they can, empirical trialapproaches provide attomeys with simila ropportunities to play the odds relative tocritical trial decisions. These decisions areoften based on the attorney's intuition anda knowledge of the odds can result in animprovement over intuition.

How expensive is the improvement ofintuition? Historically, sophisticated prt:-


trial research has been extremelyexpensive, easily reaching $30-50,000 withsix figure costs not unusual.6 The expensehas effectively limited these resources tolarge corporations and wealthy clientsand potentially offer an advantage tothose with the financial ability to employsuch resources. We think thal theapproach we've outlined here can levelthat playing field as it (1) produces resultsthat are equal or superior to alternativeapproaches, and (2) is a resource wellwithin the means of most clients.

First, consider the effectiveness of juryselection. In the 1971 conspiracy trial ofthe Harrisburg-Seven7, a team of soci<llscientists developed "scientific" orsystematic jury selection which has nowbeen used in a number of highlypublicized trials that ended withacquittals or favorable awards. 8 Thetechnique usually involves an extensivesurvey of the population in the trialcommunity to determine attitudes aboutthe case and the development ofdemographic profiles of statisticallyprobable "good" and "bad" jurors basedon these attitudes. Indirect information isgathered about prospective jurors prior totrial through information networks and,at voir dire, potential jurors areindividually rated using one or morescales. Attorneys in these cases, alongwith the mass media, have frequentlyattributed favorable trial outcomes to thejury selection technique. 9 However, thereare reasons to be skeptical about theimpressive success rates reported in thesecases. The success may have had nothingto do with selection: most of the trials hadpolitical overtones, involving difftculHoprove conspiracy charges, and ofteninvolved cases where the opposition'sevidence appeared weak. Further,attomeys with the drive and resources toengage social scientists have probablyprepared exceptionally well on all aspectsof the trial anyway, and it may beexceptional case preparation, not the juryselection, that accounted for the trialoutcomes. Finally, a good lawyer workingalone, using good judgment andtraditional skills, probably can eliminatesome biased jurors. The control conditionfor measuring the effectiveness of anyselection procedure is to compare theverdicts of jurors selected and challengedby the lawyers' usual procedure againstthe verdicts of jurors sel~cLed by thealternative procedure. This comparisoncould determine if the alternativetechnique made a difference. In fact, therelevant comparison has not beenreported, and the validity of jury selectionprocedures is difficult to assess.

Some of these factors are potentialcompeting explanations for our own

positive results with the simulation-basedselection procedure. For example, some ofour cases have involved conspiracycharges and we can't reliably separate thesimulation results from general casepreparation. Moreover, we have neverassessed the difference between attorneyselection and selection by simulation.1O So,estimates of validity for either systematicselection or selection-by-simulation aredifficult at best. However, there is a subtlebut profound difference in the product ofthe two approaches which relates tovalidity.

The product of systematic selection is aprobable association betweendemographics and certain attitudes. Anyassociation with verdict is only presumed.The chain of reasoning is as follows:demographics are correlated withattitudes; attitudes presumably predictverdicts; therefore demographicspresumably predict verdicts. In contrast,our approach empirically establishesdemographic+verdict (and attitudeverdict) relationships for the simulationand then presumes the relationships willalso characterize the actual trial.

The predictive association betweenidentifiable juror characteristics andsJ11lUlation verdicts is one validityindicator favoring our approach. Thereare also several lines of real-trial eviden~

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that constitute validation-type material:jurors removed for cause have been thosejurors identified as dangerous by thesimulation results; one juror identified asdangerous but not removed really wasdangerous; jurors struck because theywere identified as dangerous respondedto the simulation as predicted; post-trialinterviews with jurors support the pretrial ratings. These encouraging signs arenot sufficient to establish validity but theydo inspire a certain confidence in theapproach.

Further, unlike systematic selection,the simulation approach has greaterpotential for the the development of trialstrategies. The general informationproduced by the simulation includes thepoints where a typical juror makes a trialdecision, changes his or her mind, whatinformation or witnesses prompted thechange, and the basis for both pre- andpost-deliberation opinions. Frequently,these initial results have suggested focusareas or issues that would not have beenapparent without the simulation, or issuesto avoid (eg., our attorney defendant).The initial baseline results can then beused to test the impact of differentpresentations (e.g., opening statement orclosing argument; order of introd ueing

witnesses) or pieces of evidence.Simulation studies are common in

psycholegal research and a considerableamount of controversy concerns thefidelity of the simulation. A commonpresumption is that the value of asimulation is directly related to thecongruence between simulationconditions and a jury trial. Thus the mostvaluable research setting is the trial itseU,followed, in order of preference, by a livemock trial, a trial videotape, an audiotape,and then a written transcript. Thispresumption can be challenged.

The first consideration in selecting anappropriate simulation medium concernsthe research question that is being asked.In our case, it is the applied question ofwhether our simulation can model thebehavior of jurors in the actual trial. Thereare also practical considerations such aswhether a given medium can be utilizedwith the available resources of time andmoney. In general, as the fidelity of thesimulation increases, so does the cost intime and money. This does not mean thatthe fidelity of the simulation is maximizedaccording to the client's ability to pay. Infact, our experience suggests that the leastexpensive model- a narrative- has severaladvantages over the seemingly less

artificial models. Consider the clistinctionbetween "structural" and "functional"verisimilitude." Structural verisimilitudeis concerned with questions such as: Howrealistic are the setting and circumstanceswherein participants are asked to behaveas jurors? How similar are the researchparticipants to real jurors? Functionalverisimilitude, on the other hand, isconcerned with the extent to which themodel mimics the behavior of actualjuries behaving under conditions ofsimilar input

While functional verisimilitude is ourclear objective, a preference for maximumfidelity only follows if structuralverisimilitude is a necessary prerequisitefor achieving functional verisimilitude.We think not. However, we do maximizefidelity along some dimensions of the realtrial. For example, we use jury-eligiblesubjects representative of the actual jurypool and provide case-specific, legallyrelevant, sequential information (openingstatements through judicial instructions)to obtain post-deliberation verdicts. Acourtroom setting mayor may not beused and mayor may not generate theawe and solemnity that most jurors arebelieved to feel in an actual trial. Thenarrative does not portray linguistic cues

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to videotaped samples of major trialplayers (e.g., attorney, plaintiff and/ordefendant) even in cases where visualelements are not expected to affect thetrial outcome. Again, the primaryconsideration is to represent the case insuch a way that the simulatlon results willgeneralize to the actual trial.

ow consider costs. As indicatedearlier, systematic selection can beexpensive and its primary yield is aprobabilistic association betweendemographics and attitude. In contrast,our clients' expense for a probabilisticassociation between demographics andAJR attitudes approximates $600,depending on the number of attitudesscaled and the size of the petit jury list. Incases where the attorney knows whichattitudes and values to use for juryselection, $600 can be a manageableexpense to estimate the demographicassociations with those attitudes.

If additional simulation-derivedinformation is sought, the expense ofpreparing and conducting a simulationwithin Arkansas will typically range from$3,000-5,000, depending on thecomplexity and location of the simulation,the medium utilized, and the number ofrespondents.12 In this context, complexityrefers to the number of trial elements to be

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impact of the trial delay on the jury'sdecision. Our curiosity about the decisionwas resolved through post-trialinterviews with the jurors which revealedthat they collectively believed the hospitalto be liable and six attributed liability toindividual doctors. Despite theirindividual attributions of negligence, theyfeared that the attorneys and the youngman's family, not the young man himself,would receive all the damages. It was thisconcern that led them to decide againstthe plaintiff.

This deliberative outcome mayor maynot have been anticipated if the narrativewould have addressed the distribution ofdamages across potential recipients.Whether the question would have arisenwith a simulation that included visualfidelity is simply unknown. The lesson,however, was twofold: 0) A narrative,civil-case simulation should includeinterview questions designed to revealsensitivity to potential award recipi.entsand (2) a visual simulation should be usedif there is reason to believe visualinformation may affect the trial outcome.Perhaps the best course is to administer anarrative simulation to a large sample andthen, based on the results, conduct a moreextensive videotaped simulation. It mayat least be prudent to determine reactions

(e.g., pitch and intonation) or nonverbalcues (e.g., appearance, demeanor, andfacial expression) and the extent to whichthe trial outcome is determined by suchcues limits the extent to which the resultsof a narrative simulation will generalize tothe actual trial. One way to representthese cues is to enhance the fidelity of theSimulation, perhaps by a mock trial orthrough a videotape. The unrecognizedrisk is that any surrogate actors mayintroduce their own unique linguistic andnonverbal cues that actually reduce thevalue of the simulation. In this case theuse of a written trial narrative mayprovide greater functional resemblance tocritical trial features than either a live orvideotaped bial. Because of this risk, andsince most authorities agree that the largemajority of trial outcomes are determinedby the case evidence, our bias is that thebest medium for isolating the caseevidence is often provided by thenarrative.

This rationale guided our earlypreference for the narrative simulation,and the preference has been reinforced byour actual experience. There has been onemajor exception. The exception was ourfirst collaborative civil case and involveda young man who broke his neck in aswimming accident.

During his subsequent hospital stay, adislodged endotrachael tube resulted in alife-threatening emergency followed bycardiac arrest and brain damage duringreintubation. The young man's finalcondition was that of a ventilatordependent quadriplegic. The narrativesimu lotion results strongly suggested thatjurors would determine the hospital to benegligent, with some distribution ofliability across two specific doctors. Theassociated simulation awards weresubstantial. Even though the trialpresentation was less than perfect (e.g.,one expert read a critical x-ray upsidedown), the primary trial evidence seemedto correspond to the simulation evidence(except for a real-trial delay of one weekbetween the presentation of plaintiff anddefense cases). After extensivedeliberation, the Pulaski County trial. Thejury determined there was no liability forany of the defendants.

The immediate aftershock of the jurydecision was to question whether civilcases could be adequately simulated innarrative form. This seemed unlikelysince, relative to a criminal trial, theavailability of pre-trial depositionsincreases the amount of case-specificinformation that can be portrayed.Another question revolved around the

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evaluated, the amount of evidence, andthe extent to which the researcher assiststhe attorney in assembling theinformation <e.g., opening statements,anticipated witness testimony). The costdifference between narrative and audiosimulations is negligible, and even theproduction costs associated with a videopresentation are nominal. If surrogatejurors are sought to monitor the actualtrial proceedings, the typical fee inArkansas ranges from $50-7S/day so thetolal cost of a shadow jury depends on thenumber of surrogates and the length ofthe triaI.13 This discussion suggests thatsome improvement in intuition can beobtained at relatively low expense.

In fact, the expense can be furtherreduced since much of what has beenreported here can be executed by theresourceful attorney. For example, aparalegal can be trained 10 profile the jurypanel according to the Analytic JurorRater. A determination of the trialrelevant scale can be derived from AJRguidelines, or as a resull of administeringthe attorney's own mini-simulation to arepresentative sample of jury-eligiblesubjects. Practical descriptions forpreparing both live and videotapedsimulations are available.14 In some cases,pre-trial research of the sort we'vedescribed may not even be necessary. Forexample, in cases where the evidence isexceptionally strong either way, theparticulars of the case will probablyoutweigh the composition of the jury andperhaps any insights derived from thesimulation. One key to the financialmanagement of pre-trial research is todetermine your trial needs andcircumstances and then tailor the researchto meet those requirements, doingwhatever can be done to limit potentialweaknesses.

Given the range of objectives andresources of trial attorneys, a paper moonstrategy may be optimal.

Robert M. Berry, Ph.D., is a psychologist whoowns and operates RMB Associates, AppliedTrial Services, specializing in PreTrialTesting/Simulation, Jllry Selection, FeedbackJurors and AUJIlrd Fore=ting. He freqllentlyworks with Samuel A. Perroni, a notedcriminal trilll lawyer with Perron; & Looneyin Little Rock.

Endnotes1. The advantages are both practical and

methodological. The practical advantages areassociated with available resources andresearch costs in securing subjects, stimulusmaterials, facilities, etc. Methodological

advantages include the ability to obtainmultiple replications and to effect precision andcontrol over critical evidentiary variables.

2. Although the case was to be tried inPerry County, we used Pulaski Countyrespondents for the actual test as we weresensitive to potential case contamination hadwe tested in Perry County. Because thepopulation characteristics of the two countieswere distinctly different, the risk was thatresults from a Pulaski County sample mightnot represent the results that would haveoccurred with a Perry County sample. Tominimize this risk, the Pulaski County samplewas selected on the basis of demographic andeconomic characteristics that were similar tothe Perry County population.

3. The primary evidence in aU three caseswas highly siotilar, but it was not identical.Further, there were different juries in differentlocations, at different times, with differentdefense attorneys. There is slmply no means tomeasure the effectiveness of the simulation.4. The difference was attributable to theadditional five sentences and not due tochance.

5. Fifty percent of the respondents whowere aware that indictments had been issued inthe case made pretrial estimates that Mr.Weichem was guilty. Only five percent of thosewho were not aware that indictments had beenissued made pretrial estimates of guilt.Indictment awareness thus became a relevantvoir dire question.

6. McConahay, Mullin, and Frederick. TheUses of Social Scie"ce ifl Trials willi Political andRacial OvertOfles: The Trial of Joan Litt/e. 41, Lawand CONTEMPORARY PROBLEMS, 205-2Q9,1977.

7. United States v. Ahmad (Cr. No. 14950,Middle District of Pennsylvania, HarrisburgDivision).

8. Schulman, j., Shaver., P., Colman.R.,Emriclc,B., and Christie, R. 0973, May). R«ipefor a Jury. Psychology TodDy, pp. 37-44, 77, 7984.

9. For example, Litigation Sciencesadvertises a 95% success rate in cases wheretheir advice and recommendations have beenemployed; The New York Times reported thatjoan Uttle's defense lawyer boasted that he had"bought" her acquittal with a large defensefund which supported a team of jury selectionexperts (October 20, 1975); Bermant and

HMT1089 Ind. Pk. Rd.

Heber Springs, AR

Shepard reported that defense lawyers and anadvisor to the prosecutor credited the acquittalsin a highly publicized Texas murder trial tojury selection techniques rather than the trialevidence.

10. We are attempting such an assessmentin a forthcoming case slmulation.

11. Bermant, McGuire, McKinJey, and Salo.The logic of simulation in jury research.CRIMI AL JUSTICE AND BEHAVIOR.1974, 1,224-233.

12.ln most states, the mlnimum expense fora simulation is $10,OCX), with typical expenses inthe $15-30,000 range.

13. In large cities, surrogate jurors aretypically paid $100/day.

14. For a live presentation, see: Mulroy, T.R.Jllry Simillatiorr: A practical arrd it/expensive way togd at/ "edge" at trial. THE JURY 1984:TECH IQUES FOR THE TRIAL LAWYER(1984) For a videotaped presentation, see:Kassin, S.M. Mock jury trials. Trial DiplomacyJournal, (1984), 7, 26-30. An extensivediscussion of the various uses of simulations isfound in Abbol, W. SURROGATE JURIES,AU-ABA,I990.

ATTORNEYCOLLECTIONA Progressive autofinance company isseeking Attorney(s) withexperience in collectionand bankruptcy law tohandle its case load on aretainer basis inARKANSAS, Please sendresume to Gel. P, O. Box225A, Royal Oak, MI48068,

5011362-0421FAX 501/362-0174

By Gerald Coleman, PresidentAVLE Board of DirectorsWest Memphis, Arkansas

The "vision thing" that is all the rage today is exactlywhat the founders of Arkansas Volunteer Lawyers forthe Elderly (AVLE) had plenty of in 1983. Then, as now,AVLE is a uniting of the private bar and legal services topromote fairness and integrity in our state's legal system.The foresight, planning and hard work of the playersfrom the Arkansas Bar Association, the legal servicescommunity and the aging services network has preparedus to beller meet the legal needs of the most rapidlygrowing segment of our population, our elders, into oursecond decade of service.

Part of the impetus for forming AVLE was the crisis in

the deHvery of legal aid to the poor that began withbudget cuts to the Legal Services programs in the early80s. The private bar, through the American BarAssociation, the state bar associations Hke the ArkansasBar Association, and the county bar associations acrossthis nation began to work with legal services to preventthe dissolution of federally funded civil legal services tothe poor, and to expand the service deHvery through probono efforts. AVLE is a product of that initial coalitionbuilding. In 1991, Arkansas was ranked eighth in thenation in the percentage of pro bono attorneysparticipating in organized pro bono programs. That isstrong evidence that the majority of Arkansas lawyersbeHeve in equal access to the judicial system and beHevethat cause is well-served through organized pro bonoprograms.

Today, the AVLE panel consists of 600 volunteers who

agree to represent economically needy olderArkansans. A typical client has a legal problem notunlike those the attorneys routinely handle in theirprivate practice. The panel attorneys practice in 67counties outside of central Arkansas so that manyof the pro bono lawyers are solo practitioners, or insmall to medium-sized firms. These attorneysdispel any myth that only big firms can do pro bonobecause solo practitioners and small firms lackessential resources. Some of the most consistentlyloyal volunteers are from solo practices in ruralcommunities having only two or three practicingattorneys. AVLE lawyers readily recognize theirprofessional responsibility to preserve humandignity tl\fough the promotion of justice.

A VLE is a non-profit corporation jointlysponsored by the Arkansas Bar Association fiveArkansas Legal Services Programs; one Texas LegalServices Program (serving four southwest Arkansasborder counties) and the Arkansas Department ofHuman Services, Division of Aging and AdultServices. AVLE is governed by a fourteen-personBoard: six members of the Arkansas BarAssociation, one person appointed by each of thesix Legal Services programs, a person appointed bythe Division of Aging and Adult Services, and apotentially eligible client.

AVLE is administered by a full-time staff locatedin the Legal Services of Arkansas office in LittleRock, only a quick walk from the Arkansas BarCenter. Each year over 550 cases are completed byAVLE lawyers. Funding of the program is providedby the Legal Services programs and the Division ofAging and Adult Services; in addition, the ArkansasTOLTA Foundation and the Arkansas BarFoundation have been significant financialcontributors over the past several years.

AVLE clients are referred by the Legal Servicesprograms and the area agencies on agingtltroughout our 67 county service area. The countyprograms and agencies interview the clients andrefer the cases to the AVLE Director, Lisa DeLoacl1e.The AVLE staff makes the referral to the privateattorney and notifies the client so s/he can call foran appointment. The attorney works with the clientuntil the case is closed. The AVLE staff is availableto assist the attorney should a problem arise, andthe staff pursues updates on case progress.

AVLE attorneys are invited to attend at least twoCLE programs annually. These are sponsored bythe Arkansas Legal Services Support Center. Inaddition, the AVLE program has co-sponsored CLEprograms with national support centers in law andaging to provide training on nursing home law, agediscrimination, advance directives, and health law.Some of the organizations that have visitedArkansas to conduct these trainings are the

AVLE Board Members1983-1993

reasons that I would encourage every lawyer toparticipate in some sort of pro bono program, notonly because we should do it in recognition of theprivilege of practicing law, not only because it ismandated by Christian beliefs, not only because it issatisfying work, but because it is the right thing todo for human beings in need.

Robert Depper, Jr., El Dorado

Jerry lroinBlaine JacksonDavid Manley

Martlra Miller HarrimanLouis Nisenbaum

Val PriceRick RamseyCindy Seivers

Plril SmitlrQneen Ester Smitlr

Rick Spencerannan Stein

Jean StewartMona Teagne

Teresa WinelandGayle Zimmerman

As attorneys, it is ollr dllty to ensure that noperson goes without legal representation. Someattorneys provide pro bono defense in criminalcases. Others represent indigent clients on appeal. Iprovide pro bono service through the ArkansasVolunteer Lawyers for the Elderly and have foundthat experience to be richly rewarding. Clients sentto me through AVLE are always appreciative andcooperative. They have contacted A VLE withquestions they could not answer or problems theycould not solve. AVLE has answered their plea forlegal assistance and prOVided for them the legalservices they could not otherwise afford. In returnfor this free legal representation, they are willing towork with the attorney and provide whateverassistance is necessary to complete the case. Whenthe client's problem is solved, 1, as would anyattorney, feel gratified by helping someone whocould not help himself. The AVLE staff supports thevolunteer attorney in all matters, and paperwork iskept to a minimum. The staff is quick to advise ofcompliments given by the client and to express theirthanks for the public service provided by theattorney. Pro bono representation of the elderly isan essential public service and one which rewardsthe volunteer attorney.

Lucinda McDaniel, Jonesboro

Max BowieWayne BoyceJean Tllmer CarterBen ColeJerry ColemanJamie CoxJames CrollclrBob DepperJayme DissleyEd DomanJanet DyerAnn FIIllertonPanl Fnrrl.Margaret GilbertDavid HarpP. K. Holmes

Amidst the press of court dates, dates fordepositions deadlines for appellate briefs and justthe general pressures that are part and parcel of thedaily practice of law, [ have discovered an oasis.The oasis is one that allows me as a lawyer to focusand accomplish that which was the original premisefor my becoming a lawyer. The oasis is one that notonly allows me to meet my professional obligationsbut also allows me to do that which is required ofme as a Christian in trying to help those who haveneed of my talents. That oasis is the ArkansasVolunteer Lawyers for the Elderly. In being amember of this pro bono panel over the past 10years, [ have had the privilege of working withpeople who have intense need to receive some sortof relief through the judicial process. The clientswith whom I have worked have in every case beenvery grateful for the services that I have performed.The clients with whom I have worked have in everycase been most cooperative in helping me preparetheir case and in working through their legalproblems. In many instances, had it not been for theservices that I rendered through the AVLE programand had other AVLE lawyers not rendered theirservices, a segment of our society would have gonewithout a judicial remedy and, therefore, would nothave received full benefit of membership in oursociety. Not only would such be a waste but itwould be unjust to tell the indigent elderly whohave contributed greatly to our society in the formof their knowledge and experience that they cannotreceive legal representation merely because theylack adequate financial resources.

In short, as a member of the Arkansas VolunteerLawyers for the Elderly panel, I find that [ am ableto return something to my community for theprivilege of practicing law. I find that I am able tohelp satisfy my obligations as a Christian to servethe needs of those less fortunate than I, and I findthat in dealing with the clients, the experience hasbeen most satisfying and rewarding. It is for these

From Board Members:

American Bar Association/ Commission on LegalProblems of the Elderly; the National SeniorCitizens Law Center, and the AARP/Legal Counselfor the Elderly.

The founders of the Arkansas Volunteer Lawyersfor the Elderly had the foresight to recognize thatequal access to justice was at risk in America for allpeople but especially for the population that wasgraying in greater numbers than ever before. Thefounders realized that after all the sacrifices andcontributions of older Americans in behalf of futuregenerations, the greatest injustice of all would be toturn them away in their time of need.

AVLE - LEND A HAND!!

Signature Date _

To help older Arkansans with their legal problems, fill out form, detach and mail/a:A VLE, 615 W. MarlcJulm, Suite 200, LillIe Rock, AR 722iJL

*

How Much Time Does h Take?AVLE volunteers are asked to accept no

more than three cases a year, always with yourprior approval.

Volunteer attorneys are not responslblefor the payment of costs. If the client Is unableto pay the court costs, the AVLE staff wUlprovide Information and forms for filing courtactions "in forma pauperis".

In addttlon, free malpractice InsuranceIs provided on ali AVLE program cases.

*

Please join us In helping the poore1deriy delend their legal rights. Just a fewhours of your time each year wUI help thempreserve their digntty.

*

How Will Volunteering Beneth You?* Volunteers attend free or at a reduced

rate MCLE training sessionsVolunteers receive a Poverty LawPractice Manual, plus all updates.Volunteers may decline federalappointments.Volunteers have access to nationalsupport centers.

How Do You Volunteer?Fill out the form below and drop In the

mall, or call the AVlE staff at 1-800-950-5817,ext. 100.

How Does The Program Work?All AVLE clients are first screened by

etther a legal services program or anarea agency on aging to determine theire1lglblltty for assistance.

Once ellglblltty has been determined,the intake program sends the client Informationto the AVLE staff for referral to a privateattorney in the client's county of residence orcounty where the legal matter exists. Both theclient and the volunteer attorney receive writtenconfirmation of the referral. The volunteerattorney also receives open and closed casereports In order to keep the AVLE staff apprisedof case progress. The AVLE staff will monttoreach case until closure by requesting caseupdates.

What 18 AVLE?AVLE Is a Joint effort of the Arkansas

Bar Association, Arkansas legal servicesprograms and the state office on aging toprovide free legal assistance In civD matters topoor elderiy Arkansans. Private attorneysprovide pro bono legal services through AVLEIn 67 Arkansas counties.

AVLE receives funding from the legalservices programs In this 67 county service areaand from the Arkansas Department of HumanServices, Division of Aging and Adult Services.In addition, the IOlTA Foundation has been asubstantial contributor to the AVLE program.

Since tts Inception In 1983, AVLE hasdefended the rights of thousands of poor elderlyArkansans through the unselfish efforts of ttsvolunteer attorneys.

Name .,--,--,-- _Street Address _Mailing Address _City -:-:- State __ Zip _=-_ County _Firm Name Phone _

I hereby join AVLE by agreeing to represent up to three low-income elderly Arkansanseach year free of charge.

Frat.k C. Elcat.

Frank C. Elcan ll, 41, of Harrisondied in December, 1992. He was anattorney with the law firm of Elcanand Sprott, the U. S. District CourtMagistrate and President of theArkansas Bar Foundation.

Elcan was active in area civicwork serving as President of theHarrison Chamber of Commerce andFounding Pre ident of the HarrisonChamber Foundation. [n 1992, theChamber of Commerce named Elcanits "Outstanding Individual" for hiscommunity services.

He was on the Board of Directorsof the Boone County United Way,North Arkansas Community CollegeFoundation and the HarrisonCouncil for International Visitors.

In 1987, he received the statewideaward for Exceptional Accomplishment from the Arkansas CommunityDevelopment Program.

Elcan served as President of theBoone County Bar Association in1983, Chair of the Arkansas BarAssociation Young Lawyers' Sectionand was a member of the House ofDelegates. He was a 1983 and 1990recipient of the Golden GavelAward.

Arkansas Bar AssociationPresident john P. Gill said "Thelawyers of Arkansas have lost one of

IN MEMORIAM

ARKANSAS BAR

FOUNDATION

PRESIDENT

FRANK C. ELCAN II

the giants in their profession withthe death of Frank Elcan. He was alawyer's lawyer who dedicated hisenergies to the improvement of thelegal profession and the full, fair andcomplete representation of hisclients. Our true loss is that he willnot be at our side as a role modeland we shall miss him. I sat besidehis bedside many times during hislong struggle for life and he alwaystalked about his family, hiscommunity and the law. We are allblessed with the memories of a greatman who in his short life achievedthe pinnacle of his profession."

Elcan was a member of the FirstUnited Methodist Church ofHarrison, where he served as a layleader, Chairman of Finance l

President of the Methodist Men, andChair of the church's expensivecapital improvement program.

Survivors include his wife, Angie;a son, Clint; a daughter, Ellen; hisparents; a brother and a sister.

A Memorial Trust has beenestablished to provide for theeducation of the Elcan children.Checks should be made payable to:Frank C. Elcan Memorial Trust, andsent to: Security Bank, AttentionKathy Jefferson, P. O. Box 1078,Harrison, Arkansas 72601.

DON WAYNE BASSETI

Don Wayne Bassett, 42 of Little Rockdied in March. He was an attorney withthe Bassett Law Firm. Survivors are hiswife, Rebecca Bassett; a son, BrandonCory Bassett; two daughters, Amy DeniseBassett and Stacy Marie Bassett; hisparents; three brothers and a sister.

JUDGE JAMES FERDINAND

DAUGHERTYRetired Judge James Ferdinand

Daugherty of Augusta died in December,1992. He served as a municipal judge for23 years. He was a retired LieutenantColonel from the Air Force and amember of the Methodist Church inAugusta.

Survivors include his wife, EugeniaDaugherty; two sons, James F. Daughertyand William S. Daugherty; a daughter,Eugenia D. Harrell and tengrandchildren.

OMAR FAIRLEY GREENEOmar Fairley Greene, 65, of Little

Rock died in October, 1992. He servedas Chief Bill Clerk in the House ofRepresentatives in Washington, D.C.Greene was also an aide to the lateSenator John L. McClellan.

Survivors include his wife, JaneGreene; a son, Gmar F. Greene ll; threedaughters, Elizabeth Jane Greene Byrd,Joan Leigh Greene, and Jennifer JonGreene; two brothers; a sister and fourgrandchildren.

TOM FOREST LOVETITom Forest Lovett, 49, of Little Rock

died in MaTch. Lovett was the Presidentof the Lovett Law Firm and a member ofthe Arkansas Bar Association. TheAssociation of Trial Lawyers of America,the Arkansas Defense Counsel, theDefense Research Institute and theLawyer-Pilot's Association. He waslisted in the Martindale-Hubbell BarRegister of Preeminent Lawyers.

Survivors include his wife, JaneLovett; two sons, Torn Forest Lovett, Jr.,and Jonathan Collier Lovett; and a sister.

Memorials may be made to the BoyScouts of America.

WRIGHT, LINDSEY &JENNINGS

We are pleased to announce thefollowing have been named as partners

NATE COULTERCommercial Litigation

BEVERLY BASSETISCHAFFER

Securities, CorporateFayetteville Office

JUDY SIMMONS HENRYBankruptcy/Commercial

Litigation

KIMBERLY WOODTUCKER

Bankruptcy/Agriculture

And we welcome the following new associates

J. MARK DAVISUtility/Commercial Litigation

STUART JACKSON FRED M. PERKI S III

2200 WORTHEN BANK BUILDINGUTILE ROCK, ARKANSAS 72201-3699

(501) 371-0808FAX: (501) 376-9442

100 WEST CENTER STREET, SUITE 200FAYETIEVILLE, ARKA SAS 72701

(501) 575-0808FAX: (501) 575-0999

WRIGHT, LINDSEY & JENNINGSATTORNEYS AT LAW YOUNG LAWYERS' SECTION COLUMN

Edward L. Wright(1903-1977)

Robert S. Lindsey(1913-1991 )

Ronald A. MayIsaac A. Scott, Jr.James M. Moody

John G. LileGordon S. Rather, Jr.

Terry L. MathewsDavid M. Powell

Roger A. GlasgowC. Douglas Buford, Jr.

Patrick J. GossAlston jennings, Jr.

john R. TisdaleKathlyn Graves

M. Samuel Jones IIIjohn William Spivey III

Lee J. MuldrowWendell L. GriffenN. M. Norton, Jr.

Edgar J. TylerCharles C. Price

Charles T. ColemanJames j. Glover

Edwin L. Lowther, Jr.Beverly Bassett SchafferCharles L. Schlumberger

Sammye L. TaylorWalter E. May

Anna Hirai GibsonGregory T. JonesH. Keith Morrison

Thomas C. CourtwayBettina E. BrownsteinWalter McSpadden

Roger D. RoweNancy Bellhouse May

ate CoulterJohn D. Davis

Judy Simmons HenryKimberly Wood Tucker

Mark L. PryorRay F. Cox, Jr.

Harry S. Hurst, Jr.Troy A. Price

Patricia Sievers Lewallenjames M. Moody, Jr.

Kathryn A. PryorJ. Mark Davis

Tammera Rankin HarrelsonKevin W. Kennedy

Karen j. GarnettM. Todd Wood

R. Gregory AdinFred M. Perkins III

William Stuart Jackson

Alston JenningsGeorge E. Lusk, Jr.

Of Counsel

Equity: dealing fairly andequally with all concerned; freedomfrom bias or favoritism

I have recently been accused ofseeing equity issues in black andwhite. To that charge, I willinglyplead guilty. Equity is not ethics.Lawyer ethics sometimes fall in grayareas: Are these funds properlyplaced in a trust account? Do I havea conflict of interest? Can [ sue aformer client?

Unlike "ethics" which maypresent situations where apractitioner is unsure of the correctcourse, questions of fairness,impartiality, and equality are clear.There is a right and wrong in issuesof equity. Equity is not gray.

The Arkansas Bar Association isactively promoting the teaching ofethics to lawyers. Two proposalsha ve been adopted by theAssociation aimed at insuring thatArkansas attorneys practiceethically. One resolution proposesto require the teaching of ethics incontinuing legal education courses.The second resolution proposes torequire testing of ethics on the barexamination.

While we may study the ModelRules of Professional Conduct, thescope of the rules themselvesadmittedly, "do not, however,exhaust the moral and ethicalconsiderations that should inform a

Equity notjust EthicsBy Lucinda McDaniel

lawyer, for no worthwhile humanactivity can be completely definedby legal rules." Model Rules ofProfessional Conduct, Scope, (983).

The challenge to instructors willbe not only to teach the ethical rulesbut to instill in attorneys anemotional commitment to fairness.Ethics is not enough. The goal mustbe equity. Etltical behavior witltinthe bounds of the Model Rules ofProfessional Conduct does notequate with equity. One can beunfair and yet not violate the ModelRules.

In a society where attorneys areheld in low esteem by the public,our profession must go beyondethical rules to embrace theprinciples of equity. Just how doesone insure that he or she willpractice equitable law? Difficultquestion. We can theorize thatanything equitable under the lawmust be ethical, but conversely, noteverything ethical is equitable. Usethis test: Ask yourself '15 it fair?" Ifyou hesitate in your answer, it isprobably not equitable.

I accept any criticism fordemanding what is right and fairand just. Attorneys should do noless. We must see equity issues inblack and white. There must be aright and wrong. We must hold fastto our principles and demand notonly ethics but equity.

UNIVERSITY OFARKANSAS ATLITTLE ROCK

SCHOOL OF LAW

ALTHEIMER LECTURE: The springBen J. Altheimer Lecture was presentedon Tuesday, March 30, 1993, by ProfessorOkianer Christian Dark of WilliamsSchool of Law at the University ofRichmond. Professor Dark is a leadingWomanist Theorist and teaches is theareas of antitrust, torts, and white collarcrime. The lecture was presented in theHerschel H. Friday Courtroom in the LawSchool.

STUDENT ACTIVITIES: The LawSchool's move to the MacArthur ParkBuilding has dramatically increased theinstitution's involvement in theneighboring community. Forty-five lawstudents have established the LawStudents for Literacy Program andregularly visit the Rockefeller School,which is immediately across Interstate 30from the Law School. Law students areworking one-an-one with Rockefellerstudents, helping them with reading andcomprehension skills. Other students areworking with Pulaski County's Habitatfor Humanity and are rehabilitating ahouse on 40th and Ludwig in Little Rock.The students are devoting their Saturdaysto assisting community membersrehabilitate and build homes for lowincome persons. Still other students withaccounting backgrounds have establisheda volunteer taxpayer assistance program,in cooperation with the Internal RevenueService. The students assist lower incomepersons in preparing their income taxesand then electronically file the returnswith the IRS. The students are operatingout of the Law School's Clinic suite andwill provide assistance every Saturdayafternoon until April 15th.

The Black Law Student Associationsponsored a program honoring theBirthday of Dr. Martin Luther King onJanuary 15. Newly elected Circuit JudgeMarion Humphrey was the keynote Ispeaker. Dean Eisenberg also spoke. BLSAwas active during Black History Month


and sponsored a trivia contest as well asspeeches by Attorney Wendell Griffenand Judge Joyce Williams Warren. DeanEisenberg and Professor Frances FenderRosenzweig attended the memorialservice for justice Thurgood Marshallsponsored by the NAACP and the HaroldFlowers Law Society at Central HighSchool, on the Sunday following JusticeMarshall's death.

PEOPLE'S LAW SCHOOL. The LawSchool, in cooperation with the PulaskiCounty Bar Association and theDepartment of Life Long Education atUALR, is sponsoring a nine session"People's Law School" to be held everyother Thursday through mid-June. Theprogram, directed to the general public,will address such topics as family law,bankruptcy, consumer law, small claimsand traffic courts, and elder law. Thefaculty includes attorneys, judges, LawSchool faculty, and social serviceprofessionals. More than 350 persons haveregistered for the program.

MI ORITY RECRUITMENT ANDRETE TIO : At the beginning of theacademic year the School of Law had 51minority students, 34 of whom areAfrican American. This represents by farthe largest number of minority students inthe School's history. Dean Eisenberg andthe H.arold W. Flow~rs Law Society haveestablished a minority advisorycommittee to address such issues asminority recruitment and retention;academic support; and financial aid. TheStudent Bar Association has alsoestablished a special committee to assurethat the concerns of all minority groupsand women are addressed at the LawSchool. Women have constituted themajority of the entering classes in both1991 and 1992.

FACULTY OTES: ProfessorLawrence Averill in October presentedcontinuing legal education programs onliving wills and durable powers ofattorney at the quarterly attorneyluncheon sponsored by the Mcilroy Bankand Trust in Fayetteville and at themonthly Pulaski County Bar AssociationCLE program...Coleen M. Barger,formerly with the Mitchell Firm in LittleRock, has joined the Law School's legal

writing faculty. Ms. Barger presented aProgram on "Planning Opportunities withLiving Trusts" as part of the ArkansasContinuing Legal Education program. Shehas been asked to present the programagain as part of the June "Best of CLE"program. She also provided training forthe Arkansas Legal Services SupportCenter on "Estate Planning for PoorPeople." ... Professor Paula Casey hasreturned to the Law School aher servingtwo years as Legislative Counsel toSenator Dale Bumpers. Professor Caseyteaches in the trial advocacy and clinicalareas.... Associate Dean john DiPippapresented a program on "T-R-O-U-B-L-Eand Your Client's Money: Stay Out ofBoth" as part of the Bar Association'sMid-Wulter CLE program. He also spokeon Legal Ethics as part of UALR'smultidisciplinary faculty group.... DeanHoward Eisenberg has been elected tomembership in the American Academy ofAppellate Lawyers, the first Arkansasattorney so honored. Dean Eisenbergpresented a program on FinancialExploitation of Older People at the JointConference on Law and Aging inWashington in October. He will present atprogram on Ethical lssues in theRepresentation of Older People as part ofthe Bar Association's "Best of CLE"program in june.... Professor LynnFoster's article on /IAccess to AcademicLaw Library Services: A Survey" has beenpublished in volume 84 of the Law LibraryJOllrnal. The faculty has nominatedProfessor Foster for the West PublishingCompany Academic Law LibrarianAward ... Professor Dent Gitchell hasreturned from off campus dutyassignment. Professor Gitchell spent twomonths in London observing Englishtrials for his upcoming book on trialpractice.... Professor Kenneth Gould hasreturned to UALR after spending the fallsemester visiting at Wake ForestUniversity. Professor AndrewMcClurg's article on liThe Rhetoric ofCun Control" appeared in Volume 42 ofthe American University LawReview.... Professor Arthur Murpheyattended a meeting of the United StatesMexico Law Institute in Santa Fe, NewMexico on "The Problems and Prospectsof the North American Free TradeAgreement." ... Professor Philip OUver has

been elected President of the FederalistSociety of Arkansas, Lawyers' Division.Professor Oliver participated in a panelsponsored by the Federalist Society andthe Phi Delta Phi legal fraternity on thelegalization of drugs....Ms. Ranko Oliverhas been elected to participate in theFamily Leadership Project sponsored bythe Arkansas Governor's DevelopmentalDisabilities Planning Council. She alsoserves as project director for a program todevelop a Disability Law course and CLEprogram, both of which will be presentedthis summer. The project is funded by thePlanning Council. ...Professor FrancesRosenzweig will have her article onsecurities law published in Poland laterthis year. She attended a Februaryconference on Privatization in EasternEurope at the Parker School of Foreignand Comparative Law at ColumbiaUniversity in New York. ProfessorRosenzweig hopes to spend the spring,1994 semester teaching inPoland ....Professor J. Thomas Sullivanhas had two articles published recently.One, "Teaching Appellate Advocacy in anAppellate Clinical Law Program" appearsin the Seto" Hall Law Review, while hisarticle"An Overview of the Law of jurySelection for Arkansas Criminal Triallawyers" appears in volume 15 of theUALR Law Review. Professor Sullivanpresented a program for federalmagistrate judges at the August EighthCircuit Conference in Minneapolis. Hepresented a similar program in Septemberas part of the Bar Association's CLEprogram....Professor Robert R. Wright IIIhas been nominated to be Secretary of theGeneral Practice Section of the AmericanBar Association. Professor Wright is amember of the Section's council as well asserving as Chairman of the Section'sAdvocacy Committee. He serves as chairof the Arkansas Bar Association's GeneralPractice Committee. Professor Wright hasagreed to write a history of the ArkansasBench and Bar.

SCULPTURE DEDICATED: InJanuary the final completion of the newLaw School was marked by the dedicationof the major sculpture in front of thebuilding. The sculpture, which looks likea large green "W" held up by granitepillars, is the work of well known Chicagosculptor Barry Tinsley. The work, entitled

LAW SCHOOL NEWS

"Res Imobiles" includes the two roughgranite pillars intended to symbolize lawstudents being honed into lawyers. Thegranite was selected because it matchesthe type of granite in the Old FederalBuilding, the former home of the LawSchool. The large bronze "W" actuallyreflects the design of the art deco archesover the front and rear doors of the LawSchool building, originally constructed inthe early 1930's.

UNIVERSITY OFARKANSAS ATFAYETIEVILLE

SCHOOL OF LAW

This fall, Professor Jan Levine and thestaff of the Legal Research and WritingProgram invited alumni to return to theSchool of Law and judge the class of 1994deliver oral arguments for the AppellateAdvocacy course. Over fifty alumniparticipated in the fall program, and by allaccounts the experiment was successful.Approximately seventy alumni volunteershave been scheduled to come back to theSchool of Law this spring and will judgemembers of the class of 1995 in thedelivery of their oral arguments, whichwill be based on briefs prepared for thenew Legal Research and Writing IT course.

This fall, the faculty approvedProfessor Levine's request to modify thecourses in the LR&W Program. The firstyear students will receive a five-credithours on instruction in two courses thatintegrate analysis, traditional hard-copyresearch, drafting of objective memorandaand persuasive briefs, and appellate oraladvocacy. In their second year of school,the students will take a two-credit-hourcourse addressing advanced legal writingand research techniques, also in anintegrated format. The advanced coursewill deal with letter writing, statutoryhistory and interpretation, regulatorydrafting, advanced computer-assistedlegal research, and other similartechniques.

Professor Levine is also the facultyadvisor to a new student organization, theArkansas Coalition for Public lnterestLaw. The students hope to develop

various projects in areas such asenvironmental law and child protectiveservices.

Professor John Watkins is a visitingprofessor at the UALR School of Law forSpring 1993 and his article, "SummaryJudgement Practice in Arkansas" waspublished in Vol. 15, #1 of the UALR LawJounral.

Professor john Steinkamp presented"The Generation-Skipping Transfer Tax"at the recent Arvest Trust Company'squarterly Estate Planning CLE.

Professor Robert Laurence taught atwo-week course in Business Law andCommunications last faIl at the Collegefor Foreign Trade in Budapest, Hungaryand will return for another two-weeksession this spring. As a spin-off to thisteaching experience, Professor Laurenceand Katalin Kollath, a member of theEnglish Department at the college, arewriting a book, Commercial Law and theLanguage of Commerce, simultaneously.

Former Dean Jake Looney andProfessor Paul Schwartz both spoke atthe Conference on the Force of Law,I' Association Juristia and the City ofNantes, at Nantes, France in November of1992.

Professor Schwartz delivered a paper,Paradigms of Privacy and Data ProtectionLaw, at the Annual Meeting of theAmerican Association of Law Professors,Panel on Defamation and Privacy, injanuary 1993. Professor Schwartz has hadpublished Data Processing andGovernment Administration: The Failureof the American Legal Response to theComputer, 4J Hastings Law journal 1321(1992).

Former Dean jake Looney has been aspeaker on Agricultural Law issues to theArkansas Bankers Association, the PorkProducers Conference in orth Carolina,in Zaragoza, Spain and Costa Rica. He hasalso published "The Changing Focus ofGovernment Reguwtion of Agriculture in theUnited States, H 44 Mercer Law Review 1(1993).

Dean Leonard P. Strickman made apresentation on 'The Ethics of Deaning "at the American Bar Association NewDean's Workshop held in Boston inFebruary of 1993.

LAW OFFICE TECHNOLOGY REVIEW

United States Code on CD-ROMBy Barry O. Bayer & Benjamin H. Cohen

One of the first rules we established inwriting these columns is to not discuss orrecommend a product which has not beenreleased to the general public. Weviolated that rule last summer when werecommended, sight unseen, that ourreaders sent $30 to the Superintendent ofDocuments for the United States Code onCD-ROM, scheduled out in September.

The days of 1992 dwindled down to aprecious none. Only the new year finallybrought us a CD-ROM entitled "UnitedStates Code, containing the General andPermanent Laws of the United States, inforce on January 2, 1991." We found lotsof room for improvement, but with a $30price tag, the disc is a steal.The Database

The CD-ROM, according to thedocumentation, includes the full text ofaU 50 titles of the United States Code as ofJanuary 2, 1991, as divided into 57,169documents. This sounds rather old, butapparently is as fresh as the current printversion, which includes 28 volumes andsupplements that cost some $1200.lnstaUationIDocumentation

The USC disc includes WindowsPersonal Librarian, Version 1.71 datedFebruary, 1991, (WPL) and I-Searchsoftware for non-Windows MS-DOSusers. The two programs are notidentical, but have simiJar features anduse the same database. We instructed theautomatic installation program to installboth programs on our hard disk. Asecond option was to install two and ahalf megabytes of "performance files" onthe hard disk. Installing the files madesearches with both programs work faster.

The disc comes with a five inch square19 page manual and an on-line WPLmanual searchable by either WPL or 1Search. The GPO provides telephonesupport weekdays, 8:00 a.m. to 4:00 p.m.The support person we spoke with washelpful, although many of the questions


we had were more properly directed tothe search software publisher (PersonalLibrary Software, Inc.) or the databaseprovider (Office of the Law RevisionCounsel).Two Ways to Search

In a slandard Boolean search, we selectconcepts represented by one or moresynonyms and instruct the software tofind documents in which each conceptwas represented by at least one synonym.(More realistically, we often began withonly one word representing each conceptand had to broaden the search withadditional synonyms until we found thedocument we needed.) We then browsedthrough the hit list from beginning to end,noting the cases or statues that we reallyneeded.

Although the WPL and I-Searchsoftware each handle straight Booleansearches using the familiar A 0, OR,NOT and Win operators, both programsboast more sophisticated features:

• Relevancy Ranking takes all of the"hits," fulfilling the literal terms of thesearch request, and ranks them (accordingto rules not well explained in the manual)with documents best fitting the request atthe head of the list.

• Automatic "Stemming" finds theroot of each word in the search requestand expands the search request to includeeach word in the database that has thatroot. ("Stemming" is similar to, but morecomprehensive than, the familiar searchtechnique of truncating a search term andending it with a wild card character.>

• "Expand" examines a search termand displays other words whichfrequently appear in the database in thesame parts of the same documents as thesearch term.

A WPL or I-Search user wouldreasonably connect each conceptrepresented the search phrase with theOR connector, "stem" each word of the

search phrase to catch all plurals,singulars, compounds and other wordsthat share a common root, and expandkey parts of the search phrase to includecontextually related words. Havingcollected the hundreds or thousands ofdocuments satisfying the broad,enhanced search request, the user theninstructs the software to rank each "hit"according to relevancy and can browsethrough citations or text of the rankeddocuments, secure in the knowledge thatthe documents most closely matching thesearch request would be at the top of thelist.

With Boolean searching, we try tonarrow the hit list by careful use of ANDsand NOTs; with the WPL/I-Searchmodel, we broaden the search as much asreasonable and let the software separatewheat from chaff using RelevancyRanking.The Search Software

The I-Search software requires aminimal PC system with MS-DOS 2.0 orhigher and 640 kilobytes of memory. Theprogram does not support a Mouse, butdoes use the pull down menus andincludes a useful description of the USCdatabase. A convenient "form search"mode requires that the user to "fiU in theblanks" to search for a code section,citation to public law, statute at large ordate of enactment.

The WPL software requires acomputer running M.icrosoft Windows 3.0or later; we recommend a minimum of a386 based computer with four megabytesof memory, a substantial hard disk andcolor monitor. WPL does not have thedatabase description, context-sensitivehelp or explicit form search modeavailable in I-Search.

WPL features five icon buttons whichcontrol whether windows showing thesearch request, citation list, relevancy barchart, extended word list and current

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listings in tables and the statute section;• Let the user save a custom default;• Remove unsupported WPL or 1

Search features from pulldown menus;• Let the WPL user turn off Auto

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The USC on CD-ROM is a stepforward for computer assisted legalresearch. Particularly at $30, the discshould find a place in every law office inthe country.Summary

The Government Printing Office's firsttry at the United States Code on CD-ROMis slow, the software needs improvements, and the implementation needswork. Still, at $30, the publicationpresents exceptionally good value. Buy it!Details

U. S. Code on CD-ROM, as of January2, 1991. Requires CD-ROM player withMicrosoft extensions. I-Search softwarerequires IBM PC or compatible with 640kilobytes of memory, MS-DOS 2.0 orhigher; Windows Personal Librarysoftware requires computer runningMicrosoft Windows 3.0 or higher. Price:$30.00, standalone. Additional license feerequired for network use. Superintendentof Documents, P. O. Box 371954,Pittsburgh, PA 15250-7954. Phone: (202)783-3238. FAX: (202) 512-2250.

document are displayed. We liked the barchart (not available in I-Search) showingthe relative relevancy of the first 50documents on the hit list.

The program designers shouldconsider the addition of a host of othericon buttons to perform such burdens aseasing navigation through the hit list anddatabase. The WPL user must either usepulldown menus or go to the keyboardand press + and - keys to move the next orprior document in the hit list; even worse,CtI+ and 01- are needed to move to thenext or prior document in the database.We don't favor two hand commands in anon-Windows environment; withWindows, particularly, a Mouse clickshould be sufficient. A Ctrl-R, required toaccess a particular document on the hitlist, requires only one hand, but should bereplaced with an icon button nonetheless.

Both versions let us print lists ordocument to disk or the printer. TheWindows software let us copy all or partof a document (but not the hit list) to theWindows clip board and paste it directlyinto our word processor.

Finally, the search software is, by PCstandards, quite slow. A typical searchwith the Windows product - four searchterms ORred with automatic stemmingand relevancy ranking selected - oftentook two minutes or more on our 33megahertz 386 based PC clone. The MSDOS based I-Search software wasnoticeably faster, but still not fast. Neitherprogram has a way of stopping a search inprogress; occasionally we just rebooted(Cll-All-Del) rather than suffer through aninterminable search.Recommended Setup

The manual discusses a number ofsample searches, but it took us quite awhile before we became corniortable withthe product. We found best results settingthe default search connector to OR andselecting Relative Ranking (SETS on theOption pulldown menu in WPL, orDefaults under the Option pulldown in 1Search), and setting Autostemming to Offin I-Search. (WPL won't let you turn offAutostemming; we had to put aquotations mark at the end of each searchword we didn't want Autostemmed.) Asneither program let us save these defaults,we had to reset them each time we bootedthe program.Wish List

The Office of the Law RevisionCounsel invites comments andsuggestions for the January, 1992 editionscheduled for Spring 1993 publication.We hope that lots of lawyers buy thecurrent disc and offer their owncomments. Here are a few of ours:

• Include a general Table of Contents;• Add hyperlinks, at least between

EFFECTIVE VIDEO PRESENTATIONS AT TRIAL:PUT ON AGOOD SHOW, BUT CUT TO THE CHASE

By STEVEN W. QUATTLEBAUM

The equipment used, the environmentin which the tape is made (which includesbackground, lighting, acoustics andexternal interference), the position inwhich the subject is placed and themovement of the camera are only a few ofthe variety of aspects which affect theoverall quality of the production. It isequally important to keep in mind theattention span of our audience and thepoints of persuasion to be elicited by thevideotape. Thus, successful videopresentations result from thoroughpreparation, consideration of visual andauditory enhancement techniques and awell-planned, succinct program.

Electronic smoke and mirrors will nothide the truth or change the facts of anycase, and there is no substitute forthorough preparation, but anunderstanding of the many facets of aquality video production can be useful inpresenting evidence in its most persuasivemanner.ENHANCI G THE OUALITY OFYOUR PRODUCTION EQUIPMENT

The subject of available and state of theart video equipment could be the centralfocus for an entire book. However, thesesections provide basic infonnation aboutcameras, monitors, microphones andlighting, which should be understoodbefore beginning the taping session.Cameras

Video cameras acceptable for use invideo depositions or other presentationsshould be equipped with certainfunctions. First, they should have a digitaltime/date function which is continuouslyvisible on the tape. This allows for ease ofindexing and ensures continuity of thetape. Second, the camera should have

away is an effective method of breakingmonotony. Telephoto capability is alsonecessary for legibly filming documents'or graphic exhibits. Third, the camerashould be equipped with externalmicrophones. Fourth, the camera should .~

be solidly mounted on a sturdy base or ~;.•tripod. These are the components ,necessary for a quality film. ~~

Also worthy of note is the use of ~multiple cameras to accommodate split ~~ .frame or window shots. This feature is t~~especially useful when the witness is ~:lexamining documents or objects. The .."documents or objects can be shown by :~.....~-;;split screen or on an inner window on the . ~replay. Dual cameras are also useful in .~~

depicting dialogue by showing the ,.,:r:~examiner in the window. ot only does )::~'+':

this enhance the professional quality of "~'-~~~'v~the production, but it breaks the ~~

monotony of the "talking head" ..c~....~syndrome. After all. maintaining the ...attention of the jurors is a paramountconcern, and varying the visual imageserves to diminish the boredom factor. ':-;--

One circumstance in which dual .,. ~ .,,[.cameras have proved extremely useful is ~~ .".in filming a doctor describing .... Air'~

observations and impressions from an x- ? .~ray film. The split screen or window· -s...accommodates viewing of both the doctorand the x-ray film. The technique makesthe doctor's testimony easier tounderstand. This technique could beapplied with equal force to the:lrexamination of documents by witnesses ~~.with other areas of expertise. 'J~J..

One should also be cognizant of the '.angle of the camera. Low to high shots •~::.produce larger than life images. High to ~ ~", •low shots produce smaller than life . "'-fl .

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