Hanging of Stan Whiting s Bill of Rights

Transcription

1 S E P T E M B E R /OC T O B E R I S S U E N O Hanging of Stan Whiting s Bill of Rights Tripp County Courthouse 200 East Third Street, 3rd Floor Winner, South Dakota Friday October 11, :30 p.m. Central See page 13 for details! Inside this issue. AAJ Paralegal of the Year Dennyce Korb see page 8 Reflections of MLK & Voting Rights History page 9 Law School Times see page 11 Coffee with Judge Percy page 14 Is Facebook Your Friend? - see page 19 and much, much more..

2 September/October 2013 P R E S I D E NT S MESSAGE. B Y S T E P H A N I E E. P O C H O P Page 2 Officers President: Stephanie E. Pochop President-Elect: G. Verne Goodsell Secretary-Treasurer: Steven C. Beardsley Board of Governors Timothy Rensch, AAJ Delegate Richard D. Casey, AAJ Delegate Clint Sargent, AAJ Governor Terrence R. Quinn, AAJ Governor Aaron D. Eiesland Casey W. Fideler Alecia E. Fuller Raleigh E. Hansman Margo Tschetter Julius Ryan Kolbeck Brad J. Lee Melissa B. Nicholson Kasey L. Olivier Robbie J. Rohl McLean Thompson Kerver T.J. Von Wald Past Presidents Immediate Past President Steven S. Siegel William J. Holland - Stan Siegel Joseph M. Butler - John H. Zimmer Carleton R. Hoy - Horace R. Jackson William F. Day Jr. - Vincent J. Protsch Gale E. Fisher - A. William Spiry Franklin J. Wallahan - Gerald L. Reade Rick Johnson - David V. Vrooman Terence R. Quinn - Thomas R. Pardy Charles M. Thompson - David R. Gienapp Gary E. Davis - Gregory A. Eiesland James S. Nelson - Robert J. Burns Brent A. Wilbur - Steven M. Johnson Glen H. Johnson - William J. Srstka Jr. Gary D. Jensen - John P. Blackburn Michael W. Day - Michael J. Schaffer Bruce M. Ford - Nancy J. Turbak Berry Scott Heidepriem Michael D. Stevens Robert L. Morris II - Richard D. Casey Jon Sogn Mark V. Meierhenry Brad Schreiber Jeff A. Larson Mark Connot Tina M. Hogue James Roby - Wally Eklund Michael F. Marlow - Clint Sargent Michael A. Wilson Roger A. Tellinghuisen Association Office 104 W Spring Creek Dr PO Box 1154 Pierre, SD Each year when we send in our SDTLA dues as current members, we all re-commit to the SDTLA mission of working to preserve the jury trial system in South Dakota. For that reason, I must extend a special thank you to the following SDTLA members who have helped grow our membership by sponsoring law student memberships at the USD School of Law: Tara Adamski Stephanie Amiotte John Blackburn Mary Burd Aaron Eiesland Greg Eiesland Alecia Fuller Peter Horner George Johnson Ryan Kolbeck Mike Marlow Mark Meierhenry Melissa Nicholson Jane Pfeifle Robbie Rohl Rep. Mike Stevens Sid Strange Marya Tellinghuisen McLean Thompson Kerver Hon. Kathleen Trandahl Hon. Jeff Viken Linda Lea Viken and Me (Stephanie E. Pochop) As a result of these members generosity, we have 66 brand new SDTLA members. It is particularly heartening to see that so many different types of members took the time to reach out to law students with the welcoming message that we should strive to share with all our members: You belong. While encouraging student membership is critical to the future of the SDTLA, providing our current lawyer and judicial members with value for their memberships is equally important to today s SDTLA. We are doing fine in terms of maintaining our regular membership, but the value of membership can not be entirely measured in terms of how many people pay their dues. The SDTLA Board wants to serve our members all of them with substantive educational and professional opportunities that advance the goals of our organization. I was thinking about this because SDTLA just finished our annual Fall Seminar in Deadwood, gratis Terry Quinn s ability to suss out interesting presenters and Sara Hartford s ability to organize it so that we re all together in a great setting. As is our tradition, a pleasing variety of practice interests were represented in the crowd. As is our tradition, our presenters offered practical, practice-improving advice; this seminar s speakers left us with some interesting ideas about presenting medical evidence during discovery, mediation and trial. And as is our tradition, there was what can Continued on page 6 The Barrister is published electronically six times a year by the South Dakota Trial Lawyers Association as a service to its membership and as part of its continuing commitment to educate and promote professionalism among trial attorneys. Submissions are welcome. Interested authors should contact Sara Hartford, Executive Director at the above address. Articles are accepted from contributors who share the goals of the South Dakota Trial Lawyers. All submissions must be signed by the author. The Barrister is not responsible for cite-checking or reference checking materials cited in submissions. The author must verify that any sources included, relied upon or quoted in the submission have been properly credited and cited; the author must obtain all necessary permissions for publication of copyright protected materials. The Executive Director and Editor have the right to edit all submissions or refuse to publish articles that are not in keeping with the goals of the organization. Subscriptions of $25 are included in the Association s annual membership dues. Non-members subscription rate is $50 per year. Statements and opinions in the Barrister editorials and articles are not necessarily those of SDTLA. Publication of advertising does not imply endorsement of products or services or statements made about them. Advertising copy is subject to approval by SDTLA. Copy deadlines are February 1, April 1, June 1, August 1 October 1 and December 1. Call for advertising rates.

3 September/October 2013 Page 3 Scott A. Abdallah Michael C. Abourezk Charles Abourezk Grant G. Alvine Stephanie R. Amiotte Kenneth E. Barker Steven C. Beardsley John P. Blackburn Michael D. Bornitz John William Burke Michael J. Butler Renee H. Christensen J. Michael Dady Patrick K. Duffy Gregory A. Eiesland Aaron Eiesland Dennis W. Finch Jay R. Gellhaus G. Verne Goodsell Scott N. Heidepriem Scott G. Hoy John R. Hughes Gary D. Jensen Steven M. Johnson SUSTAINING MEMBERS George Johnson David J. King Jeff A. Larson James D. Leach Michael F. Marlow Lee C. 'Kit' McCahren Mark V. Meierhenry N. Dean Nasser James S. Nelson Stephanie E. Pochop Terence R. Quinn Timothy J. Rensch James C. Roby Michael K. Sabers Clint Sargent Steve S. Siegel Michael J. Simpson Michael D. Stevens Michael W. Strain Roger A. Tellinghuisen Thomas P. Tonner Nancy J. Turbak Berry TJ Von Wald Thomas K. Wilka Michael A. Wilson Sustaining members pay $700 in dues each year, which entitles them to attend the Association s annual fall seminar, the annual meeting and luncheon and a plaque denoting their sustaining membership status. Our gratitude goes to these members so that the association can continue to sustain funding for an on-going defense of the civil justice system! SDTLPAC is the political action committee of the SD Trial Lawyers Association. Organized in 1987, SDTLPAC contributes to any candidate for a state office who will support fair and equitable legislation to protect the rights of South Dakotans through the preservation of our justice system. WE THANK THESE CONTRIBUTORS FOR THEIR SUPPORT! $1,800 ANNUAL Michael F. Marlow Lee C. Kit McCahren Stephanie E. Pochop $1,200 ANNUAL Kenneth E. Barker John P. Blackburn Aaron D. Eiesland Gregory A. Eiesland Scott N. Heidepriem Clint Sargent Michael D. Stevens Roger A. Tellinghuisen $1000 ANNUAL Scott Hoy $900 ANNUAL Gary D. Jensen Nancy Turbak Berry $720 ANNUAL Michael A. Wilson $600 ANNUAL Terry L. Hofer Margo T. Julius Mark V. Meierhenry James C. Roby Michael J. Schaffer Whiting Hagg & Hagg $500 ANNUAL John W. Burke Courtney R. Clayborne Terry Pechota $480 ANNUAL Jon C. Sogn $300 ANNUAL Charles Abourezk Steven C. Beardsley G. Verne Goodsell Wm. Jason Groves Paul H. Linde Thomas Tobin $240 ANNUAL Richard D. Casey $200 ANNUAL Stephanie Amiotte $180 ANNUAL Brad J. Lee $150 ANNUAL Jeremiah Jay Davis $120 ANNUAL Kenneth D. Bertsch Daniel F. Duffy Richard A. Engels Dennis W. Finch Robert B. Frieberg Alecia E. Fuller George E. Grassby Ryan Kolbeck Michael Paulson Catherine V. Piersol Haven L. Stuck T. J. Von Wald LIFETIME ACHIEVEMENT AWARD Carleton Tex Hoy John F. Hagemann Robert C. Ulrich Fred J. Nichol Award for Outstanding Jurist Hon. Ernest W. Hertz 2000 Hon. Andrew W. Bogue Hon. John B. Jones 2002 Hon. George W. Wuest Hon. Marshall P. Young 2004 Hon. Robert A. Amundson 2005 Hon. Lawrence L. Piersol 2006 Hon. Richard W. Sabers 2007 Hon. Judith K. Meierhenry Hon. Tim D. Tucker 2009 Hon. David R. Gienapp Hon. Jack Von Wald 2011 Hon. John Bastain Hon. David Gilbertson TRIAL LAWYER OF THE YEAR AWARDS Terry Quinn Greg Eiesland Steve Johnson Glen Johnson Bob Burns Gary Jensen Joe Butler Mark Meierhenry Jeff Larson Nancy Turbak David Gienapp Rick Johnson Jim McMahon Mike Schaffer John Blackburn William F. Day, Jr Michael Abourezk Michael W. Strain Patrick Duffy Thomas G. Fritz Michael J. Butler Wally Eklund James D. Leach N. Dean Nasser, Jr Stanley Whiting Charles M. Thompson

4 September/October 2013 Page 4 TOAST OF TRIAL LAWYERS June 2006 Nancy Turbak T.F. Martin Travis Jones Michael Stevens June 2007 Roger Tellinghuisen Mike Butler Eric Schulte June 2008 Sid Strange Jerry Reade Jim Leach June 2009 Mike Abourezk Alecia Garcia Scott Heidepriem Shiloh MacNally Doug Cummings June 2010 Michael DeMersseman Hon. John Schlimgen Joni Cutler Margo Julius Scott Abdallah June 2011 Susan Sabers TJ Von Wald John Murphy Steve Siegel June 2012 John Blackburn Linda Lea Viken Hon. Mark Smith Ronald Parsons June 2013 Rep. Michael Stevens Hon. John Hinrichs Hon. Michelle Percy Clint Sargent McLean Thompson Kerver Eric C. Schulte Tim Rensch Stephanie Pochop Richard Casey Ryan Kolbeck EDITOR s Notes & Comments Marya V. Tellinghuisen I attended the recent board meeting and CLE in Deadwood. The CLE was very interesting and no matter your field of interest, there was something you could take from the CLE to use in your practice. At the board meeting, Terry Quinn announced that he was resigning from our CLE committee. Terry has done an outstanding job over the years of getting national speakers to come to South Dakota to share their knowledge with us. I completely understand Terry s desire to step down, but we all owe him our appreciation as there are not many lawyers who have the connections and persuasive skills to get these speakers here. We had a short discussion on future CLE formats. Several ideas were thrown out. Clint Sargent suggested having our members each do a 10 minute session about any topic of interest. This is similar to the Early Bird CLE the State Bar does during the Bar Convention each year. Most of us struggle to sit in a 3 hour seminar so perhaps a different format would appeal to people. Stephanie has urged you to give thought to how our organization can serve you better. This is an area that really deserves consideration. Please let someone from the board know your thoughts. After the board meeting, the CLE began. While I was sitting there, I was still thinking about the format of the CLEs. I Googled something and a link to the Invisible Gorilla came up. This is a book written by Christopher Chabris and Daniel Simon. They have a website with a video which is kind of a fun experriment. Go to to watch the video. The authors wrote this book about how we think we see ourselves and the world as they really are, but we're actually missing a whole lot. It made me wonder if this book would be helpful in trying cases. Jurors think a whole lot differently than we do. This phenomenon is called inattentional blindness. What do they think and see when a case is presented to them? One review stated: Should be required reading by every judge and jury member in our criminal justice system, along with every battlefield commander, corporate CEO, member of Congress, and, well, you and me... because the mental illusions so wonderfully explicated in this book can fool every one of us. Michael Shermer, Publisher of Skeptic magazine, monthly columnist for Scientific American, and the author of Why People Believe Weird Things In this issue of the Barrister, we have a delightful interview of Judge Michelle Percy submitted by Robbie Rohl. We also have a thought provoking article from Eric Schulte about the anniversary of Martin Luther King s I have a Dream speech and the Voting Rights Act. Finally, Margo Julius presented a session last May at the Trial Lawyer s seminar regarding Facebook and what you need to know to best represent your clients. Margo kindly submitted her outline to us for publication. If you want to know why the gorilla is atop my article, you have to go to the gorilla website mentioned earlier. Or maybe you didn t notice. Just checking.

5 September/October 2013 Page 5 October 11 October 15 November 14 December 19 January 14 March 14 January TBA February TBA April 17 May 8-9 SDTLA CALENDAR OF EVENTS 2013 Stan Whiting Bill of Rights Hanging Party, Winner, 4:30 pm CT Meeting with Chief Justice and Board meeting, 11 am CT Board conference call, 4 pm CT Board Conference call, 4 pm CT 2014 South Dakota Legislative Session Board Conference call for legislative issues, 4 pm CT Board Meeting for legislative purposes Board Conference call, 4 pm CT Spring Seminar & Board Meeting, Holiday Inn City Centre,

6 September/October 2013 Page 6 Trophies, Trinkets and Toasts By Ret. SD Supreme Court Justice Judith Meierhenry What to do with a lifetime of mementos, certificates and plaques? Although they sketch our lives and arouse personal memories, they beg to be organized or discarded, knowing they are all dumpster bound on the estate sale. Ok! Ok! This one goes, these stay. Some only kept as reminders in case my memory dims. Others I keep because of the honor they represent. I hold these precious few close. One of my most treasured sits proudly on my credenza. It is Lady Justice holding the scales of justice standing atop a base that proclaims The Fred Nichol Award for Outstanding Jurist. I treasure it because it symbolizes a profession I love, but also speaks personally of how proud I am to have been recognized by those who I hold in highest esteem trial lawyers. Each year, the luncheon awards never fail to tug tears from the most stoic of us. I think partly because the room is filled with dedicated people who work hard to be good at what they do. And, the awards renew our faith that it is all worth it. For that glorious moment, what we love about the profession eclipses a client s harsh words, a lost-case disappointment, any self-doubt or worries. The awards elevate the significance of our daily toils --often grueling, sometimes menial, but always important. What I have come to believe is that sincere awards of recognition are important. Not just for the recipient but for all of us. The awards inspire us to see the good in ourselves and each other. It can t get much better than that. Hear, hear Trial Lawyers! Continued from page 2 only be classified as a lively social event following the CLE. The feedback we received confirmed that the seminar was both an educationally and professionally valuable to the lawyers and paraprofessionals who attended. While we did draw a very nice crowd, it was hard not to think about who was not there. Running through my own list of the cool people that we missed at this event made me think that we do need to take a look at our SDTLA traditions to see if they still fit us. Trust me: I can pull out 15 exhibits from my closet that will establish beyond a reasonable doubt that even a beautiful and well-designed fit can go out of style. Since I had this thought even though I m the person using stationery from 1963 who has 15 un-wearable looks hanging in her closet, I had to imagine that other members who are less steeped in SDTLA tradition might think the same thing: Do we need to replace, upgrade or tailor our membership services to maintain an engaged membership? Consider the following changes that impacted our members within the last ten years: By design, the SDTLA membership is more diverse than ever. Technological advances have caused a major shift in what constitutes effective communication. Alternative dispute resolution techniques have become so much more accessible and effective that it is hard for newer lawyers to develop a litigation practice via jury work. The important work of the Bar s Lawyers Assistance committee reminds us that we need to redesign our social events to offer better networking opportunities to our members. Increasing numbers of lawyers achieve work/life balance by limiting their organizational membership obligations. Fewer lawyers are willing to run for the legislature. Judges increasingly have to deal with the threat of politicized judicial elections. Effective legislative efforts require more time, more money and increasingly complex strategizing. In light of this arguably technologically distanced environment, we can t expect our members and the people that we want to join to take our word for it that our favorite SDTLA traditions still work. To (lamely) paraphrase: if the tradition don t fit, we must change it. The SDTLA Board exists to make SDTLA so useful, comfortable and inviting that you ll gladly pay your dues -- and sponsor a student membership -- so that you won t miss out on our next event. Here is where you can help us again: if you have not attended an SDTLA event in the past twelve months, we want to know what we can do to get you back. Feel free to contact me by with your ideas. Your input will be presented to the Board for consideration.

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8 September/October 2013 KORB AWARDED AAJ PARALEGAL OF THE YEAR Page 8 Dennyce (Denny) Korb was awarded the 2013 American Association for Justice and Advocate Capital Paralegal of The Year Award at the AAJ Annual Convention in San Francisco. Her journey to this award began as a young court reporter in Minneapolis. Denny and her husband, Carroll, moved to Rapid City in 1979 when her husband Carroll followed a business opportunity in the lumber industry. Denny intended to be a court reporter in Rapid City. Because she didn t know the local legal community she decided to apply for a legal secretary position with Lynn, Jackson, Shultz & Lebrun and become familiar with the community. She was interviewed by a then young Greg Eiesland. In the interview she had laryngitis and could barely whisper. She got the job and has been speaking out and advocating ever since. Along the way Denny began taking on more of the work paralegals do in law firms. In 1989 she sat for the 2- day exam given by the National Association of Legal Assistant and became a certified paralegal. Denny became active in ATLA and has gone to most of the annual and winter meetings for over 25 years. Over the course of years she has been active in a number of litigation groups, including products liability, trucking litigation group, medical malpractice group, and personal injury litigation group. But, over the last almost eight years, she has been most active in the nursing home litigation group. The attorneys nationwide who practice in the area of nursing home abuse and neglect know the name Denny Korb. She frequently posts information from all over the country and has become somewhat of a clearing house for up-to-date information and rulings in nursing home cases around the country. Denny also follows the legislative struggles in protecting elderly citizens and is an outspoken critic of the arbitration process which does not serve the elderly and hides the abuse from the public. Her outside interests includes travel (Machu Picchu and the Galapagos Islands this fall), acting in local theater, singing as a soloist and in groups, and as a long suffering Minnesota Twins and Vikings fan. Denny has been active in the South Dakota Trial Lawyers since the 1980s. She is an unapologetic plaintiff s advocate and a great ambassador for the legal profession.

9 September/October 2013 Page 9 REFLECTIONS ON THE ANNIVERSARY OF DR. MARTIN LUTHER KING S I HAVE A DREAM SPEECH AND SHELBY COUNTY, ALABAMA v. HOLDER. By Eric C. Schulte This past summer marked two milestones in our nation s long struggle to guaranty civil rights for all of our citizens. First, our country celebrated the 50 th anniversary of Dr. Martin Luther King s historic and inspirational I Have a Dream speech. Second, on June 25, 2013, the United States Supreme Court struck down a key provision of the landmark Voting Rights Act of 1965 in Shelby County, Alabama v. Holder, 133 S.Ct (2013). In a 5-4 ruling, the Court held in Shelby that Section 4 of the Voting Rights Act was unconstitutional, thus giving States a nearly unfettered ability to enact new voting restrictions without federal oversight. Dr. King s speech and the Supreme Court s decision in Shelby County warrant reflection not only for trial lawyers but every American citizen. On August, 28, 1963, in the shadow of the Lincoln Memorial, Dr. King addressed thousands of people, including religious leaders, labor leaders, and people of every race and social standing. In his speech, Dr. King said the time had come to make real the promises of democracy. With passion and conviction, Dr. King told the crowd and the nation of his dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character. His words moved the nation then, and still resonate with us today. If you have not seen Dr. King s speech, or if you have not seen it for a while, it is easily available on YouTube. It lasts only 17 minutes, and I highly recommend everyone take the time to watch it. Dr. King s speech and other historical events formed the impetus for the passage of the Voting Rights Act of For a little perspective on why the Voting Rights Act was necessary, consider that in 1896 there were 130,334 African Americans registered to vote in Louisiana. In 1904, there were 1,342. In the 1904 presidential election, black voter turnout in Virginia and South Carolina was zero. At every turn, African Americans were denied the basic opportunity to vote. Several states openly violated the Fifteenth Amendment s strict prohibition against voter discrimination based upon race or color. This blatant discrimination persisted for decades and was put on display for the nation during the infamous Bloody Sunday on March 7, On this date, television cameras captured 600 peaceful marchers being attacked by law enforcement officers while marching from Selma, Alabama, to Montgomery, Alabama. Based in large part on the horrific violence occurring in Alabama, President Lyndon Johnson became convinced the country needed voting rights legislation. In his typically abrasive style, President Johnson reportedly told his Attorney General that I want you to write me the goddamnest toughest voting rights act that you can devise. The result was the landmark 1965 Voting Rights Act. What makes the Voting Rights Act extraordinary and powerful is Section 4 of the Act. Section 4 provides a coverage formula, defining covered jurisdictions as States or political subdivisions that maintained tests or devices as prerequisites to voting, and had low voter registration or turnout in the 1960s and early 1970s. In those jurisdictions, which were southern states, Section 5 of the Act provided that no change in voting procedures could take effect until approved by federal authorities in Washington. This practice was known as preclearance. There is no question that the practice of preclearance significantly diminished overt voter discrimination in covered jurisdictions. Continued on page 10

10 September/October 2013 Page 10 Continued from page 9 The coverage formula and preclearance requirement were reauthorized by Congress several times. In 2006, the Act was reauthorized by Congress for an additional 25 years. Notably, the reauthorization was passed after an extensive investigation by Congress on voter discrimination and by overwhelming majorities in the Senate and the House. The Senate voted to reauthorize the Act 98-0, while the House voted to reauthorize the Act by a vote of 390 yeas and 33 nays. South Dakota s congressional delegation unanimously voted for the Act s reauthorization. President Bush signed the reauthorization into law on July 27, 2006, stating that the Act s reauthorization was an example of our continued commitment to a united America where every person is value and treated with respect. Against this backdrop the Supreme Court addressed the case of Shelby. In Shelby, Shelby County, Alabama, filed a declaratory judgment action against the United States, arguing that the preclearance requirement in Section 4 of the Act was an unconstitutional intrusion into the State of Alabama s sovereignty. Writing for the majority, Chief Justice Roberts acknowledged that the Voting Rights Act was strong medicine needed to address an insidious and pervasive evil which had been perpetrated in certain parts of our country through unremitting and ingenious defiance of the Constitution. Shelby, 133 S.Ct. at 2618 (quoting South Carolina v. Katzenbach, 383, U.S. 301, 309, S.Ct. 803 (1966)). Justice Roberts also acknowledged that voting discrimination still exists; no one doubts that. Id. Nonetheless, the Court held that the preclearance formula was too dated, and because Congress had not used another formula in 2006 the Court was left with no choice but to declare 4(b) unconstitutional. Id. at In a scathing dissent, read orally from the bench, Justice Ginsburg remarked that [i]n the Court s view, the very success of 5 of the Voting Rights Act demands its dormancy. Shelby, 133 S.Ct. at 2632 (Ginsburg, J., dissenting). Justice Ginsburg also outlined various second generation barriers to voting equality, including the redrawing of legislative districts to segregate races for the purposes of voting, and Congress finding that voting discrimination still exists to this day. Id. at In Justice Ginsburg s view, the determination of the body empowered to enforce the Civil War Amendments by appropriate legislation merits this Court s utmost respect. In my judgment, the Court errs egregiously by overriding Congress decision. Id. at This short article is not meant to be a detailed critique of the rationale behind the Court s ruling in Shelby. Such a critique is for another time and place and can be written by others with more knowledge of voting rights law than me. It is sufficient to say that I respectfully but strongly disagree with the majority s ruling. I think the majority s ruling strikes right at the heart of the equality Dr. King spoke about so passionately 50 years ago. My only purpose in writing this article is to encourage everyone to reflect on the message Dr. King sent to the nation in his speech 50 years ago. It is every citizen s obligation to seek equality for every other citizen. In my view, however, trial lawyers play a unique and critical role in fighting for the equality Dr. King spoke about so eloquently 50 years ago. Most trial lawyers fight for this equality in various ways. In my view, the best way for trial lawyers to fulfill Dr. King s legacy is by taking on an occasional pro bono case where you know you are never going to get paid a dime. I am encouraged by the fact that many South Dakota trial lawyers annually fulfill their pro bono obligation as required by the Rules of Professional Conduct. As Dr. King said, the arc of the moral universe is long, but it bends towards justice. It is the obligation of trial lawyers to fight for the justice and equality Dr. King spoke of every day.

11 September/October 2013 Page 11 Law School Times By Kelsea K. Sutton (605) SDTLA Law Student Liaison The Fall Semester is an exciting time of year at the Law School. As veterans, the third year students gear up in anticipation for their final year, second year students reunite as old friends after a summer of internships, and first year students appear as fresh faces eager to join the ranks of those who pursue a career in justice. Student organizations like the Native American Law Student Association, R.D. Hurd, and the Domestic Violence Legal Program are busy hosting meetings to better train legal advocates. The Student Bar Association successfully hosted its first annual Student Involvement Fair to showcase all of the law school student organizations. The Fair was followed by USD Law s Second Annual Social Justice Week. The sociallyjustice-minded organizations hosted this event in order to promote membership and their various platforms, which to some degree are the same: all people deserve equal economic, political, and social rights. The Social Justice Week events were fun, informative, and inspiring. The South Dakota Law Review is just beginning the editing process for Volume 59. The Board recently selected three student articles for publication and is excited for the way the first issue is shaping up. Every year, the Law Review trains new students in serious legal research and writing skills that will be essential to their careers. As a testament to the important skills gained from the Law Review, the Board honors a successful Law Review alumnus each fall at their Wine Review Banquet. This year, the Board will honor Chief Justice Gilbertson at their event in Sioux Falls in October. The Moot Court Board has many competitions scheduled for the fall including the Burton D. Wechsler First Amendment Competition, the International Competition in Information Technology and Privacy Law, and the National Entertainment Law Competition. The USD Law Moot Court has a lot of talent on their team, and they will certainly find success this fall in their preparation for and competition in appellate advocacy, a process that includes both brief writing and oral arguments. The Alternative Dispute Resolution Board has announced that they will send five teams to various contests this fall. Their competitions include the Entertainment Law Negotiation Competition, the ABA Regional Negotiation Competition, and the ABA Regional Arbitration Competition. As the South Dakota Trial Lawyers are well aware, alternative dispute resolution is becoming an increasing reality in litigation and is thus an important skill for students and practitioners alike to hone. Finally, the USD School of Law Trial Teams will travel to San Francisco in October for the ABA s National Employment Discrimination Mock Trial Competition. They will also travel to Buffalo, New York, in November for the Tenth Annual Buffalo-Niagara Mock Trial Competition. The Buffalo-Niagara Competition is an invitation only national tournament featuring thirty-six of America s top trial advocacy programs. Representing the USD School of Law in Buffalo-Niagara will be Zach Flood, Shane Andrews, Christen Leedom, and Emily Swanson. Representing USD in San Francisco will be David Sahli, Beau Barrett, Molly McKenzie, and Swapna Kilani. If you have any questions about law school events, or would like help contacting your new student mentee, feel free to call or me anytime. SDTLA HAS SOCIAL MEDIA!!!! The South Dakota Trial Lawyers Association is pleased to announce that it has recently re-launched its official Facebook page in an effort to connect and unite more attorneys and legal support staff throughout South Dakota. Currently, the SDTLA page features videos of SDTLA s 50 Year Anniversary Party held at Grand Falls Casino this past May and a tribute video to all of the great SDTLA members, past and present. Videos, pictures, and information about upcoming SDTLA events will be posted soon. Members are also invited to post questions, comments, articles, etc. on SDTLA s Facebook wall. Not yet a SDTLA Facebook page member? Become one today by typing South Dakota Trial Lawyers Association SDTLA into your Facebook search function and click JOIN!

12 September/October 2013 Page 12 SOUTH DAKOTA TRIAL LAWYERS ASSOCIATION Board of Governors Meeting Minutes August 15, 2013 Vermillion Holiday Inn Express In attendance: Stephanie Pochop, Steve Siegel, Alecia Fuller, Ryan Kolbeck, Casey Fideler, Raleigh Hansman, Kasey Olivier and Sara Hartford. Attending by telephone: Steve Beardsley and Brad Lee. A quorum was not present. Amy Bartling, George Johnson and Law Student Liaison Kelsea Sutton were in attendance also. President Pochop asked for discussion on topics to address with the Chief Justice for our annual visit to be scheduled in the near future. Topics could include: the drug court implementation; the rural practice update; uniform scheduling procedures; FAQ online for procedural issues by judge or circuit; proposed electronic filing issues; Supreme Court encouraged legislation; and mandatory CLE or ethics certification. This list will be finalized at the September 19 th board meeting. The process to set a date for the Chief Justice meeting is underway. Dean Thomas Geu joined the meeting. There was lengthy discussion regarding SDTLA s role at the law school. Fuller reported SDTLA s event A Welcome to the Courtroom and the Beginning of Your Career as a Trial Advocate is being held immediately following the meeting at the Law School with a social at Carey s to follow. Olivier and Hansman reported the new Social Media committee has put together a FACEBOOK page for SDTLA to attract more members and provide another form of networking among our members. The next Board meeting is Thursday, September 19, 2013 at 11:00 am MOUNTATIN at the Lodge at Deadwood. Lunch will be served before the seminar begins at 1 pm. Meeting adjourned. Board of Governors Meeting Minutes September 19, 2013 Lodge at Deadwood In attendance: Stephanie Pochop, Verne Goodsell, Steve Siegel, Clint Sargent, Terry Quinn, Tim Rensch, Dick Casey, Aaron Eiesland, Margo Julius, McLean Thompson Kerver, Ryan Kolbeck, Brad Lee, Melissa Nicholson, Robbie Rohl, Casey Fideler, Raleigh Hansman, Kasey Olivier and Sara Hartford. Also in attendance Barrister Editor Marya Tellinghuisen and Lobbyist Roger Tellinghuisen. A quorum was present. President Pochop asked for approval of the July 18 and August 15 minutes. Quinn made a motion to approve as presented, Kolbeck seconded. Motion unanimously carried. Lee gave the treasurer s report for Secretary Treasurer Beardsley. Account balances are $21,654 in Operations, $64,232 in Savings and $5,106 in the Reserve Fund. Two CDs were purchased for $10,000 each, one a six month, one a 12 month. The PAC account has a balance of $26,118. Pochop asked for discussion on topics to address with the Chief Justice for our annual visit scheduled for Tuesday October 15 th in Pierre. A list of topics includes: the drug court implementation and the DUI courts; the rural practice update; FAQ online for procedural issues by judge or circuit; pro bono work and pro se litigants. Under new business, Lee asked for discussion on health care providers and ambulance services refusing to bill health insurance or Medicaid when the patient s injuries were caused by another and there may be liability insurance. The health providers and ambulance services are then requesting 100% of the billed charges from the patient/victim without willing to reduce the amount for reimbursement. There was discussion and a working group was appointed to research the issues and report back for the October 15 th meeting. Volunteers are Lee, Tellinghuisen, Julius and John Hughes. There was discussion regarding the format for the spring seminar scheduled for May 8-9 in Sioux Falls and next year s fall seminar. The CLE committee of Kolbeck, Sargent, Von Wald, Goodsell, Nicholson, MTellinghuisen, Pochop and Thompson Kerver will meet briefly after the October 15 th meeting in Pierre. There was also discussion regarding a legislative review committee. Volunteers are Siegel, Kolbeck, RTellinghuisen, and Goodsell. The next Board meeting is Thursday, November 14, 2013 at 4:00 pm Central/3 pm MOUNTATIN by conference call. Meeting adjourned.

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14 September/October 2013 Page 14 Coffee with Judge Michelle Percy By Robbie Rohl I recently had the opportunity to travel to Deadwood and take in the Fourth Circuit, Lawrence County Courthouse scene. In addition to catching up with old friends at the Courthouse (I used to be the clerk there), I was tasked to interview the always friendly and wise Judge Michelle Percy. Judge Percy is currently the acting Magistrate Judge for the Fourth Judicial Circuit (Butte, Corson, Dewey, Harding, Lawrence, Meade, Perkins and Ziebach counties). In addition to effectively handling her judicial duties, Judge Percy is a full-time mother, integral part of the Northern Hills Drug Court Program, and active member of the Lead-Deadwood community. At the 2013 Bar Convention, Judge Percy received the SDTLA s Toast of the Trial Lawyer. As the questioner, I chose to fashion the interview with an advice-seeking focus for us less seasoned practitioners. To a large degree, the interview was self-serving because I got to ask questions that helped me, but hopefully you all will take something beneficial from it as well. I can assure all readers that the answers are excellent; however, to the extent you think the questions could have been better well, that blame is appropriately directed towards the voters that voted me on the SDTLA Board of Governors. Over coffee at the Deadwood Pumphouse, I asked Judge Percy the following: Me: What do you now know, that you wish you would ve better understood as a young lawyer? Judge Percy: I wish I would ve better understood the fact that, at least in private practice, the law is a business. Looking back, I was somewhat naive in that I would engage in tons of reading, writing and research and often times lose track of that underlying fact. Also, I don t mean that in a way where I m implying it s all about money. Often times, it s not. In order to best help clients, the business needs to be fully selfsustaining. When entering into private practice out of law school, I didn t realize all of the things that are not taught in school (i.e. collecting, billing, incorporating, tax issues and etc.). Me: Looking back to your young lawyer days, not that you aren t still young Judge Percy, what types of things were most positive or influential in your practice? Judge Percy: MENTORSHIP. I was incredibly lucky to get into a small firm with great attorneys. I was fortunate in that I was given the opportunity to have a relationship with each attorney in the office. Each relationship was different in that each attorney had great advice, guidance and suggestions which benefited my practice, my career and my understanding of the law. Also, my practice was diverse. I was not molded into simply one or two specialty areas of the law. This is something I really enjoy about being a Judge as well. Me: If I told you to develop a list of advice for young attorneys, what types of things would be on it? Judge Percy: Well, this is a non-exhaustive list, but some of the things are as follows: develop a balance between work and personal life, I struggled with this remember, the law is a jealous mistress, keep that in mind have friends and family to always stay grounded and remember where you re from develop relationships with other attorneys don t be afraid to ask questions or to look dumb call the clerks, they are the best resource ever; I always used to call Alice Bruce and comb through similar types of files to learn from it s good to try and do things on your own, but be humble and ask when you are at a stand-still ask staff members, i.e. secretaries and paralegals for help, when I was in private practice there was a paralegal with 30 years of experience, what a great resource she was have a great relationship with all the staff Continued on page 15

15 September/October 2013 Page 15 Continued from page 14 Me: From your experience on the bench, is there any advice you have regarding young attorneys advocacy? Judge Percy: Sometime it seems like young lawyers, I was guilty of this as well, take things too personally. Intense advocacy is very important, but it should always be accompanied with the utmost professionalism. At all times, treat everyone with respect while advocating. The public recognizes and notes how attorneys treat each other and the Court. They also note how attorneys dress in Court as well. If attorneys are not professional to one another and/or the Court, in both demeanor and dress, why would the public be respectful? Always stand when addressing the Court, unless told not to. Professionalism often goes hand-in-hand with mentorship. It s not clearly defined or understood by reading text books in law school, but it is learned from the relationships young attorneys have with seasoned practitioners. Professional relationships with other attorneys are important to a successful practice. Remember that when advocating and be professional. Me: Is there any other advice you can think of that younger attorneys need to be aware of? Judge Percy: Never talk bad about other lawyers and judges. We have an incredibly small bar here in South Dakota, this is a great thing and a tremendous advantage. As a member of the South Dakota Bar every attorney seems to be separated by, at most, one degree of separation. What I mean by this is that after spending some time in the practice, you will be able to contact any attorney in the state simply through your own network. If you are not acquainted with an attorney you need to speak or make contact with, after some time you will know an attorney that knows the individual you wish to get into contact with. This is a tremendous advantage, but you limit or take that away by speaking negatively about other attorneys. Additionally, it is just simply disrespectful. Me: What are some of the attributes or underlying principles you try and bring to the bench? Judge Percy: Respect. I want to make people comfortable to say whatever it is they wish to say. Justice seems more likely if people feel comfortable to share all of the information with me. I try to accomplish this by making my courtroom somewhat hospitable. Every judge is different, just like attorneys. You need to be yourself. In Court, I try to be myself. I justify my nicer courtroom demeanor because that is how I am and I think it works for me. I hope that my courtroom demeanor and approach to the bench makes the judicial process somewhat invisible. I don t want people to walk away blaming the Court, I want them to blame themselves. Clearly this is not always realistic, but I still try and achieve that goal. If I can make the judicial process invisible, consequences and culpability are more visible on the appropriate party. I think this method also fits better with my personality. This works for me and is consistent with who I am. Me: What is the definition of successful attorney? Judge Percy: A successful attorney is an individual that practices the type of law they want to practice and is respected by their peers. There is a wrong perception by the public that a successful attorney is one that makes lots of money. Being an attorney is the hardest job ever. Dealing with clients, endless hours and the job follows you home. Also, nothing is more irritating than hearing individuals devaluing an attorney s services. A successful attorney is an individual practicing the type of law they want to practice because it s interesting to them, they like doing it and naturally a great advocate will follow. When I was a lawyer, I was not in a position to recognize this. As a Judge, I feel I now am in a position to answer this question. Me: What is the definition of successful judge, aside from Judge Michelle Percy? Judge Percy: You re too funny, Robbie. A successful judge is someone that is respected by other judges and also the bar. I think it is an individual that is true to himself. This is an individual remains consistent with his/her upbringing and remembering where one came from. At any moment, but for the grace of God, the job and life I love could end. I always take that into consideration. Also, and I digress, since becoming a Judge, attorneys think my corny jokes are way funnier than anyone ever used to. At the conclusion of the interview, I promptly informed Judge Percy that none of her jokes are corny. If anyone ever has the opportunity to introduce themselves to Judge Percy, I highly recommend doing so. Thanks for your time Judge Percy and thanks for laughing at my corny jokes.

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17 September/October 2013 Page 17 South Dakota Trial Lawyers Association Notice of MEMBERSHIP DUES DUE July 1, 2013 CATEGORIES Check one: Legal Support Staff. $50.00/ year Law Student... $10.00/ year 0-2 years in Practice $70.00/year 3-5 years in Practice....$100.00/year Public atty employed over 2 years* $100.00/year Over 5 years in Practice $350.00/year Sustaining membership ** $700.00/year Subscribing membership ***..$125.00/year Please print or type Name Address Mailing address CITY State ZIP Telephone Cell number County Date Admitted to Bar Return to with appropriate dues: SDTLA PO Box 1154 Pierre, SD * All public attorney members must be employed on a full-time basis by the Federal, State, county or municipal government or legal aid association. ** Any sustaining member must be engaged in the practice of law for more than five years and be a member in good standing of the Association for five years. Attendance at the Association s annual fall seminar is free for sustaining members. *** Anyone may apply for a subscribing membership in the Association, i.e. associations, institutions of higher learning, research companies, etc. Subscribing members shall receive all Association membership benefits, but are not entitled to vote.

18 September/October 2013 Page 18 NEW LAWYER REFERRAL LIST The South Dakota Trial Lawyers Association has compiled a list of aspiring young trial lawyers who are interested in accepting civil case referrals. The list is not for pro bono referrals, but rather cases that another attorney is not interested in handling due to his or her caseload, area of interest, or the client s ability to pay. The purpose of creating this list is to allow young lawyers to gain experience handling civil cases on their own, while at the same time matching a worthy client with a willing lawyer. The goal is to give the lawyer the opportunity to independently plan case strategy, pursue a discovery plan and try a jury trial. By agreeing to be on the list, the attorneys have not automatically agreed to accept a case. They have the independence to accept or decline any case referred to them. Any lawyer in practice less than five years interested in accepting referrals is encouraged to contact the SDTLA office to join this list. First Circuit Kraig L. Kronaizl Blackburn & Stevens 100 West 4th Street, Yankton, SD Family Law, General Civil Litigation, Some Criminal Defense Katie Johnson PO Box 136 Beresford, SD Family Law, Criminal Defense, Bankruptcy Second Circuit Cesar Juarez Siegel, Barnett & Schutz PO Box 1286, Sioux Falls, SD Family Law, Criminal Defense & General Civil Litigation Meghann Joyce Boyce Greenfield etal PO Box 5015, Sioux Falls, SD Family law, Civil Litigation and Insurance Litigation James Nasser Nasser Law Office 204 S Main, Sioux Falls, SD General civil litigation Laura Brahms Kading Kunstle & Goodhope 7400 S Bitterroot Pl #100 Sioux Falls, SD Family Law, Criminal Defense, Worker s Comp, General Civil Litigation Katie Johnson PO Box 136 Beresford, SD Family Law, Criminal Defense, Bankruptcy Third Circuit Seamus W. Culhane Turbak Law Office th St NE, Watertown, SD Long Term Care, Homeowner s, Worker s Compensation and other Non-ERISA Insurance Denials Casey W. Fideler th St NE, Watertown, SD Personal Injury, Wrongful Death, & Tax Implications of Settlements & Judgments WELCOME NEW SDTLA MEMBERS! Jennifer Ferris graduated from USD School of Law with honors in May After graduation, Jennifer spent a year clerking for the judges in the Third Judicial Circuit. In August of 2011, Jennifer joined the firm of Lynn, Jackson, Shultz & Lebrun, P.C. in its Sioux Falls office. Since joining the firm, Jennifer has focused her practice on insurance defense litigation including, liability and worker s compensation. Nicole Martin is a paralegal at the Abourezk Law Firm in Rapid City. She earned her A.A.S. from Western Dakota Tech in paralegal/legal assistant studies in 2008 and she is an active member of the Black Hills Legal Professionals Association and NALS. In 2013 she was awarded the Black Hills Legal Professional of The Year. She fosters rescue animals for the Oglala Pet Project and hikes in her free time with her three dogs.

19 September/October 2013 Page 19 CYBER-SLEUTHING SOCIAL NETWORK SITES: IS FACEBOOK YOUR FRIEND? By: Margo Tschetter Julius, Julius & Simpson, L.L.P INTRODUCTION: Do you talk to your clients about their online activities? Do they reveal a lot about themselves online? Do they tweet about their every move and upload personal photos and posts of their activities on the Facebook page? Do they boast about car racing? Running marathons? Or even taking family vacations? If you answered yes to any of the above, then like it or not, you need to know about social networking sites. Social network sites such as Facebook have become extremely broad and useful and voluntary form of surveillance for insurance investigators and claims adjusters. Websites like Facebook, Myspace, Linkedin and YouTube are all becoming increasingly popular not only with the nearly 50% of all adult Americans who have a social networking profile (with Facebook and Myspace being the most popular sites) 1 but also with law enforcement, debt collectors, lawyers and insurance fraud and claims investigators. I. FACEBOOK BACKGROUND AND BASICS: Facebook was founded in February of 2004 and its mission statement is To give people the power to share and make the world more open and connected. Millions of people use Facebook every day to keep up with friends, upload an unlimited number of photos, share links and videos and learn more about the people they meet. As of February of 2012, Facebook had more than 845,000,000 active users. A: Registration and Profile Users must register before using this site after which they may create a personal profile, add other users as friends and exchange messages including automatic notifications when they update their profile. Facebook users can create profiles with photos, lists of personal interest, contact information and other personal information. They can also communicate with friends and others through private or public messages and a chat feature. Facebook enables users to choose their own privacy settings and choose who can see specific parts of their profile. However, Facebook requires that a user s name and profile picture is to be accessible by everyone. Users can somewhat control who sees other information they have shared as well as who can find them in searches on the internet through their privacy settings. B: Applications Facebook has a number of features in which users can interact. Users may join common interest users groups or categorize their friends to lists such as people from work, people from college, close friends, etc. C: Sharing, Liking and Tagging Facebook users can also like other pages, including businesses, common interests or causes. The tagging option also allows not only the user but also friends to add user s names to photos, events and posts. The user (and his friends) can also share their photos, links, and posts to other people s walls and pages. The share and connect principle utilized by Facebook provides and accumulates a wealth of information for investigation in worker s compensation claims, and other litigation. Continued on page 20

20 September/October 2013 Page 20 Continued from page 19 D. No Expectation of Privacy When Facebook users consent to contribute their social and personal data to the electronic storage system maintained by Facebook, they freely consent to provide the data. In Facebook s own definition as a social utility that helps people communicate more effectively with their friends, families and co-workers, then becomes a social networking device that provides radically transparent cyberspace experience where nothing is confidential. II. WHOSE CREEPING WHO? A. Employers and Law Enforcement Employers and law enforcement have been searching Facebook and other social network sites for years in connection with their hiring practices and criminal investigation. B. Debt Collectors Debt collectors have been scouring Facebook for years looking for information to allow them to find debtors and catch up with their exact whereabouts. Facebook and different applications such as Four Square (which is an app that many social network users use to literally tell people where they are at any given moment) allow debt collectors to simply get online and if the debtors privacy settings are not stringent, collectors can tell exactly where the debtors are located and use this information to collect a debt. Facebook is also a haven with information as to where the debtors work, who they hang out with, who their friends are, etc. C. Jury Consultants and Lawyers Jury consultants regularly creep a potential juror s page to find out not only his activities, but importantly his likes, political affiliation, religious affiliation and any strong feelings he has on certain issues. D. Insurance Investigations Insurance claim and fraud investigators have jumped on the bandwagon. Why? Under the definition of the user agreement for Facebook and several court decisions, there is no real expectation of privacy information shared on Facebook, despite a person s privacy settings. Therefore, the Facebook Wall is an open book! III. ETHICAL CONSIDERATIONS IN CYBER SLEUTHING Some attorneys have argued that investigators scouring social networking sites in search for reasons not to hire someone, or evidence of insurance fraud, is an invasion of privacy. But the insurance companies and their attorneys argue that the internet searches for public social networking profiles are similar to informal video surveillance investigations of property casualty claimants that are common in the industry. Is it unethical for a defense attorney or an agent of the attorney such as an insurance company representative or investigator, to access a Claimant s information and photographs that are stored on a site that isn t protected with privacy settings? Professor Gregory Duhl from the William Mitchell College of Law and Attorney Jacqueline Millner encourage investigators who are trying to prevent insurance fraud to routinely look at Claimant s profiles on sites such as Facebook, Linkedin or Myspace. See Social Networking and Worker s Compensation Law at The Crossroads Vol. 31 Pace Law Review Issue 1 (2011). Duhl and Millner do not believe it is unethical to creep these pages, as searching for public information on a social networking site is no different than video surveillance in Continued on page 21