Justice Must Satisfy the Appearance of Justice

80 Pages·2013·6.71 MB·English

January 2013 | Volume 74, Number 1
POINT:
Justice Must Satisfy the
Appearance of Justice—
A 10-year Review of the Alabama Supreme Court’s
Treatment of Jury Verdicts in the Plaintiffs’ Favor
Page 18
COUNTERPOINT:
Limitations on Measuring
Appellate Justice with
Statistics and Inference
Page 28
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January 2013 | Vol. 74, No. 1
18 48
FEATURES
12 Note from the Editor
We Are Listening!
By Gregory H. Hawley
18 POINT:
Justice Must Satisfy the Appearance of Justice—
A 10-year Review of the Alabama Supreme Court’s
Treatment of Jury Verdicts in the Plaintiffs’ Favor
By Rhonda P. Chambers
28 COUNTERPOINT:
Limitations on Measuring Appellate Justice with
Statistics and Inference
By Marc James Ayers
33 ASB Fall 2012 Admittees
44 Alabama’s Version of Daubert—
A Legislative History
By the Honorable Ben H. Brooks, III and K. Megan Brooks
48 Exploring Wantonness
By William E. Shreve, Jr.
ON THE COVER
56 BOOK REVIEW:
The Heflin-Torbert Judicial Building in
Quest for Justice: Defending the Damned
Montgomery at dusk
By Richard S. Jaffe
–Photo by Robert Fouts, Fouts Commercial Photography,
Montgomery, www.photofouts.com Reviewed by William N. Clark
www.alabar.org | THE ALABAMA LAWYER 5
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GRAPHIC DESIGN PRINTING
6 JANUARY 2013 | www.alabar.org
CONTRI BUTO RS
Marc James Ayersis a partner with Bradley Arant Boult
Cummings LLP’s appellate litigation group in Birmingham. He
served as chair of the Appellate Practice Section of the
Alabama State Bar from 2008-2010. Ayers previously served as
clerk (1998-99) and staff attorney (2001-04) for Alabama
Supreme Court Associate Justice J. Gorman Houston, Jr. He is
a member of the Appellate Committee of the Editorial Board of
The Alabama Lawyer.
8 The Honorable Ben H. Brooks, IIIserved as state senator from
south Mobile County from 2006 through December 2012 and as
co-chair of the state Senate Judiciary Committee. He was the
lead sponsor of SB187 which passed as Act No. 2011-629. In
November 2012, Brooks was elected to be a Mobile County
COLUMNS
Circuit Judge and was sworn into office in January 2013. He is a
1983 graduate of the University of Alabama School of Law.
8 President’s Page
Wimps Need Not Apply
10 Executive Director’s
K. Megan Brooksis an attorney in the Mobile office of Hand
Report Arendall. She is a 2010 graduate, summa cum laude, of the
Chief Justice Charles Malone: University of Alabama School of Law where she served as a
Steward of Alabama’s Court System notes editor on the Alabama Law Review, and was inducted
into the Order of the Coif.
14 Important Notices
Client Security Fund Annual
Assessment
Rhonda P. Chambersis associated with Taylor & Taylor in
Notice of Election and Electronic Birmingham. She is a graduate of Judson College and
Balloting Cumberland School of Law. For more than 20 years, her prac-
tice has focused exclusively on appellate matters. Chambers has
Public Notice for Appointment of
authored or co-authored several articles on appellate law topics
New Magistrate Judge
and has been a frequent lecturer on appellate matters. She has
Alabama Lawyers’ Hall of Fame been the chair of the Standing Committee on the Alabama
Rules of Appellate Procedure for more than 10 years.
58 Memorials
60 The App ellate Corner
66 Disciplinary Notices
William N. “Bill” Clark is a partner with Redden, Mills &
Clark LLP in Birmingham. He is past president of both the
70 Opinions of the Alabama State Bar and the Birmingham Bar Association, and
is also a fellow in the American College of Trial Lawyers.
General Counsel
Imputed Disqualification of Law
Firms When Non-Lawyer
Employees Change Firms
William E. Shreve, Jr.is counsel with Phelps Dunbar LLP in
Mobile. He graduated from Davidson College and the University
74 About Members, of Alabama School of Law. He is a member of the Appellate
Practice and Insurance Coverage committees of the ABA’s
Among Firms
Litigation Section, the ABA’s Council of Appellate Lawyers, the
Amicus Curiae Committee of the Alabama Defense Lawyers
76 Legislative Wrap-Up
Association, the Appellate Practice Section of the Alabama State
Institute’s Core Mission Remains Bar, and the Mobile Bar Association’s Appellate Practice Committee.
The Same
www.alabar.org | THE ALABAMA LAWYER 7
PRESIDENT’S PAGE
Phillip W. McCallum
[email protected]
Wimps Need Not Apply
Back in my wrestling days, my favorite facing us as opportunities, and appear
t-shirt was one that read “Wimps Need to be as content and successful as ever.
Not Apply.” It had a picture of the These folks relish their work and seem
famous “Nike” swoosh overlaid on a pair to really understand their roles personal-
of wrestling shoes. Even now, 30 years ly and professionally.
later, it is still a cherished possession in In preparing for my role as president
our house and it gives me a chuckle to this year, I was excited about all the fab-
watch my kids wrangle over who gets to ulous things I would accomplish for the
wear it. I know it’s not the tattered shirt legal community. The more that I
that is meaningful, but what the shirt thought and planned, however, the
represents. While wrestling may have more overwhelmed I became with the
seemed difficult many years ago, in hind- task at hand. My excitement and enthu-
sight, it pales in comparison to many of siasm started giving way to stress and
the challenges we face individually and anxiety. Feeling a little wimpy, I turned to
collectively in the legal profession. John my good friend Tony McLain, state bar
Wayne once said, “Courage is being general counsel, for advice. “P-Mac,”
scared to death but saddling up anyway.” Tony said, “don’t get bogged down with
Perhaps today, more so than ever, our coming up with too many projects to
profession has been put to the test. save the world. Enjoy the ride because
Many younger lawyers are confronted your year as bar president will define
with a difficult job market, while also bur- you–you will not define your presidency.”
dened with hefty student loans. Tony understood, especially during
Established lawyers are seeing increased these times, that the best laid plans are
competition at times when many of their often disrupted by those unforeseen
clients are struggling and have become issues that inevitably arise and demand
more demanding than ever. And, the responsible leadership. We definitely
Alabama court system has faced a have been very fortunate in our profes-
severe funding crisis that threatens the sion to have had the right people “sad-
ability of many lawyers to earn a living. dling up” in these difficult times and
Yet, a great number of my friends in here are just a few examples of such
our profession have seen the challenges leaders and their leadership moments.
8 JANUARY 2013 | www.alabar.org
Alyce Spruell, during her presidency, was freedom.” He did more than talk. He declined state-paid
confronted with the devastating tornados that security and transportation, choosing instead to drive him-
struck Alabama on April 27, 2011. Her self in his own car. He demanded transparency in court
response was remarkable, if not heroic. Alyce budgeting so lawmakers could understand what the state
led efforts to activate and engage our state’s was funding or, perhaps more accurately, what it was not
Volunteer Lawyers programs to spring into funding. The chief justice used skillful diplomacy at a time
action quickly and efficiently to provide legal when many were advocating litigation to obtain necessary
Spruell
help to those in need. Under her leadership, funding. Chief Justice Malone is a humble giant who “saddled
thousands of Alabamians received assistance at the time up” during Alabama’s time of need.
they needed it the most. No one ever promised us that the practice of law or lead-
Her post-presidency leadership efforts have been equally ership would be easy. In the words of my favorite old t-shirt,
extraordinary and incredibly selfless. Rather than returning to wimps need not apply. But, these are paths we have chosen
her thriving law practice, Alyce chose to continue to assist the to take so let’s make the most out of our opportunities. See
legal profession by serving as Chief Justice Malone’s legal you on the wrestling mat called “life!” | AL
advisor and, thereafter, as director of the Administrative
Office of Courts. Alyce strongly believes that access to our Endnote
court system should be open to all on a fair and equitable 1. Please take a moment to read the “Executive Director’s Report”
basis, and has “saddled up” to accomplish this. in this issue for a full account of Chief Justice Malone’s efforts on
behalf of the court system.
Jim Prattwas faced with a funding crisis
during his presidency. Last spring, we all
watched as financial disaster threatened to
SHH… BEST-KEPT SECRET IN THE BAR
jeopardize the operations of Alabama’s state
Lawyer Referral Service
court system. If not for Jim’s excellent leader-
ship skills and the relationships he had devel- I think one of the most underutilized resources in our state bar is the
oped for the bar over the past few years in the Lawyer Referral Service, and I chose to highlight this significant program
Pratt
legislature, courthouses could have been because it is a wonderful resource for lawyers at a very good price.
Last year, the Alabama State Bar Lawyer
closed, jury trials could have been delayed or curtailed and we
Referral Service received over 9,000 calls request-
could have lost more than 40 percent of the court’s administra-
ing referrals to attorneys. All callers are first
tive staff. In fact, Jim’s tireless efforts to mediate virtually every screened by the LRS staff before a referral is made
recent tough issue before the legislature have been so well to an attorney; in other words, they actually speak
received and appreciated that both the senate and the house to someone in person. John Dunn, who has 10
years of telephone customer assistance and was
of representatives passed resolutions commending him for
recently hired to handle the lawyer referral line for
“exemplary professional achievement and dedicated public serv-
Dunn the Alabama State Bar, is quite vigilant in spend-
ice.” In fact, there are many in the statehouse who endearingly
ing time with the caller and has told me, “I’m just
and teasingly refer to Jim as the 36thState Senator. not going to waste an attorney’s time.”
The cost to join the Lawyer Referral Service is $100 per year. Members
Chief Justice Charles “Chuck” Malone’s can select the types of cases they will handle and can limit or increase geo-
graphic areas they will practice. The Lawyer Referral Service advertises in
tenure may have been short, but his efforts
the Yellow Pages in almost every county in Alabama, as well as online, to
were extraordinary.1 After being called upon
reach higher-end potential clients who are seeking lawyers online. They
to leave the bench as a circuit judge in also provide bookmarks with the LRS phone number and purpose to all pub-
Tuscaloosa County to serve as Governor lic libraries in the state, as well as brochures explaining the service to each
Bentley’s Chief of Staff, Judge Malone was circuit clerk who requests them.
Once you join the program, you will receive your referrals via e-mail
appointed in 2011 to serve the remainder of
Malone (unless you choose otherwise) within minutes of the potential client calling
Chief Justice Sue Bell Cobb’s term. He will-
the Lawyer Referral Service, or within one business day if sent by U.S. Mail.
ingly did so with full knowledge that he would be inheriting a
I am a member of the Lawyer Referral Service and intend to be indefi-
financially-strapped court system that was being confronted nitely. As Laura Calloway, director of the program, states, “The Lawyer
with further severe funding cuts. Chief Justice Malone coura- Referral Service is the most cost-effective, not to mention the most hassle-
geously fought to obtain funding for the third branch of our free, client development effort any lawyer can undertake.” | AL
government, adopting the mantra “no courts, no justice, no
www.alabar.org | THE ALABAMA LAWYER 9
EXECUTIVE DIRECTOR’S REPORT
Keith B. Norman
[email protected]
Before a recent Bar Commissioners’ meeting, Chief Justice Charles Malone (second from left) visited with
Commissioner Ashley Swink, President Phillip McCallum and Commissioner Sam Irby.
Chief Justice Charles Malone:
Steward of Alabama’s Court System
As the Alabama Supreme Court’s 31st Extensive experience
chief justice, Charles “Chuck” Malone’s
Governor Bentley could not have cho-
abbreviated term was not the shortest
sen anyone better equipped to step in
on record,1but for the brief time he
as the head of the judicial system to
served, it may have been the most criti-
deal with this funding crisis following
cal for the courts. What he did was
Chief Justice Sue Bell Cobb’s resigna-
help preserve the judicial system by con-
tion. Not only did Chuck have 20 years
vincing the legislature to raise filing fees
of experience in private practice, but
to supplement the court system’s rav-
that experience was overlaid with 10
aged budget. The fact that he was able
years on the bench as a circuit judge
to orchestrate this feat was nothing
for Tuscaloosa County, many of those
short of remarkable. Without his leader-
as presiding judge. In addition, he
ship encouraging all the judicial system’s
served as an adjunct law professor at
stakeholders to join together during last
the University of Alabama School of
year’s legislative session to support a
Law, taught in the university’s School of
fee increase, another round of planned
Commerce and Business and spent
cuts to the judicial system’s 2013 budg-
eight years as a law enforcement acad-
et would have forced layoffs of more
emy instructor. As the consummate
than 500 court personnel which would
public servant, Chuck answered the
have crippled our state courts. Courts
call in January 2011 from his friend,
across the state would have had to
Robert Bentley, to leave his circuit
severely curtail operations, including
judgeship and become the governor’s
indefinitely delaying processing cases
chief of staff. With his many years of
and holding trials.2
private practice, service as a circuit
10 JANUARY 2013 | www.alabar.org