1 N O V E M B E R /DE C E M B E R I S S U E N O Happy Holidays! Inside this issue. 19 Ways to Make the Court Reporter Happy page 8 SDTLA is Catching Fire! - see page 9 From Public Sector to Private Practice page 10 Law School Times and much, much more.. December 19 Jan 14 March 14 SDTLA CALENDAR OF EVENTS 2013 Board Conference call, 4 pm CT 2014 South Dakota Legislative Session January TBA February TBA April 17 May 8-9 June 18 June 19 July 17 August 14 September 25 September 26 Board Conference call for legislative issues, 4 pm CT Board Meeting for legislative purposes Board Conference call, 4 pm CT Spring Seminar & Board Meeting, Grand Falls Resort, Larchwood, IA Board Meeting at Bar Convention, Sioux Falls, 11 am Annual Meeting and Elections, Sheraton Sioux Falls Board Conference call, 11 am CT Board meeting, 11 am Holiday Inn Express, Vermillion Mock Trial 1pm, USD Law School Courtroom Board meeting, Lodge of Deadwood Fall Seminar & Banquet, Lodge of Deadwood Fall seminar, 9 noon, Lodge of Deadwood
2 November/December 2013 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 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 Here is some SDTLA news to celebrate: so far this year, the SDTLA has the gift of 23 new (first time) members. I could put a big check mark by my increase membership goal. But as much as I am one for lolling about upon the laurels of a goal met, I recognize that it isn t really enough to add a few more esteemed names to the venerable SDTLA membership roll, and call it a good year and pass the gavel on to our next SDTLA president. Subsection A of 1 of the RESTATEMENT OF POCHOP S SDTLA GOALS (2013) should state that I hope for our organization to recruit 23 active SDTLA members this term. This clarification is meant to make more than just a slight difference. And in that respect, I still need your help. Page 2 What is required to be active enough to meet the RESTATED goal? Let us consider the text. Section 1A: Active SDTLA Membership One who intentionally participates in any SDTLA activity during the 2013 term is subject to be called an active member so long as the member s activity furthers the mission of the SDTLA organization. In determining whether a member is active, the following factors are to be considered: (a) the member s payment of the member s annual dues; (b) the member s payment of another member s annual dues; (c) the member s attendance at one or more SDTLA CLE programs during the membership year; (d) the member s attendance at the SDTLA annual meeting; (e) the member s attendance at the SDTLA annual mixer; (f) the member s publicly expressed interest in running for a position on the SDTLA Board of Governors; (g) the member s voluntary service on an SDTLA committee or work group; (h) the member s community-level efforts to educate the public about the importance of the jury system in South Dakota; (i) the member s involvement in SDTLA legislative lobbying efforts; and/or (j) the member s involvement with other SDTLA members to further the goals of civility, mentorship and professionalism among trial lawyers. Comments: SDTLA activity may take many and varied forms. Private and personal efforts at member mentorship and civility are as important as public and legislative efforts to improve and protect the jury system. In all instances the quality of the time taken toward the advancement of the SDTLA mission is appreciated and valued. The form of active SDTLA membership is not dependent upon the number of jury trials the member has tried or the number of years that a member has paid SDTLA dues. It consists of the quality and determination of the Continued on page 15 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 November/December 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 November/December 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 And the Grinch, with his Grinch-feet ice cold in the snow, stood puzzling and puzzling, how could it be so? It came without ribbons. It came without tags. It came without packages, boxes or bags. And he puzzled and puzzled 'till his puzzler was sore. Then the Grinch thought of something he hadn't before. What if Christmas, he thought, doesn't come from a store. What if Christmas, perhaps, means a little bit more. - Dr. Seuss, How the Grinch Stole Christmas The holidays are upon us once again. I can t say that I ve ever been much of a Grinch at Christmas time; however, I have known some Grinch-like characters in my lifetime (I may even be related to a trial lawyer who was a bit of a Grinch). Maybe we should learn something from the Grinch s revelation--christmas doesn t come from a store. I remember one Christmas vividly. I was a freshman at USD. My brother, Tom, was a year older and also in college. My sister was a second year nursing student and my oldest brother was in his last year of law school. My sister s fiancée had graduated from college and was living in his first apartment. Needless to say, none of us or my parents had a lot of money for Christmas gifts that year. I can clearly remember the gifts we gave that year I bought my brother-in-law a pizza cutter and my brother bought him a pizza pan. My brother-in-law bought me some punk rock group lapel pins (really it was a phase) that cost about $1 a piece. My brothers, Tom and Bob, had a long running joke about President Grover Cleveland. Tom checked out a book about Grover Cleveland from the public library and wrapped it up for Bob. Bob photocopied a picture of Grover Cleveland and wrapped that up for Tom. These gifts were inexpensive and silly but remembering it now still makes me smile. I am sure my parents bought us gifts too, but I honestly only remember the funny ones and how much laughter we all shared that night opening our gifts. I encourage you to find that little bit more this Christmas. Maybe it means sponsoring a needy family or serving a meal at the mission. Be grateful for what you have. Be kind to others. Forgive someone. Those are gifts that last a lifetime and are worth remembering. In this issue, we have an article submitted by Tim Rensch regarding how to make your court reporter happy. Tim submitted this article after he and other local attorneys spoke at a conference of UJS court reporters. Also in this issue is an article by Robbie Rohl who recently left his job at Dakota Plains to start private practice at DeMerrseman Jensen Tellinghuisen & Huffman. Marya Vrooman Tellinghuisen Editor
5 November/December 2013 Page 5 OF NOTE TO THE MEMBERSHIP: The SDTLA has received permission from USD Law Professor Patrick Garry to share an article authored by Jaclyn Aberson, Patrick Garry, Candice Spurlin, and John Garry. The article is entitled: THE USE AND SUCCESS OF SUMMARY JUDGMENT MOTIONS: A CASE STUDY OF SUMMARY JUDGMENT MOTION PRACTICE IN MINNEHAHA COUNTY The article was published in the Liberty University Law Review. If you follow the link below, you can download it. A description of the study is excerpted here: This study was conducted by the Hagemann Center for Legal and Public Policy Research from 2009 to 2012, and it sought to identify any trends regarding summary judgment motion practice in Minnehaha County, South Dakota. Data was collected and reviewed for 2001, 2002, and 2003 on all motions for summary judgment or partial summary judgment filed in Minnehaha County circuit court. The link is found at: Thank you Stephanie Pochop for getting permission to share this interesting article. MVT Law School Times By Kelsea K. Sutton (605) SDTLA Law Student Liaison Dear Law Student: Are you interested in Public Interest work? Then you should be interested in Trial Advocacy, too. Did you come to law school with a desire to represent people and communities who receive a disproportionate amount of legal services? Do you have a passion for justice and fairness for all socioeconomic groups? Your passion is often referred to as Public Interest law. Public interest has been defined as anything affecting the well-being, the rights, health, or finances of the public at large, most commonly advocating for those living in poverty or marginalized populations. It ranges from non-profit environmental litigation, to work in government administrative agencies, to representing indigent clients in the criminal justice system. Regardless of how you pursue public interest work, or whether it will be your full-time job or just part-time pro bono work, dedication and certain skills are necessary to get the best outcomes for your clients. A thorough understanding of the court system, corporations, and government agencies, is the best tool you have in pursuing your public interest goals. As a law student, in addition to gleaning and understanding of these processes, gaining practical experience is also invaluable. The Innocence Project, the Volunteer Income Tax Assistance program, and the Native American Law Student Association s annual Wills and Estate Planning support for tribal communities are all great ways to gain experience at USD Law. You might also find courses like Administrative Law, International Human Rights, Indian Law, Employment Law, and Sexuality, Reproduction, and the Law helpful in your training as a public interest legal advocate. Sound and creative trial advocacy skills are also essential to a successful public interest practice. It is almost certain that you will face courtroom situations as a public interest lawyer, and very often public interest organizations do not have the time or resources to train new attorneys to their full potential. Taking Professor Horton s Trial Techniques course is the best way to start honing your courtroom skills now. In his course, you will learn how to conduct voir dire, opening and closing statements, and direct and cross-examinations. Of course, one of the best ways to start working on your public interest career is to join the South Dakota Trial Lawyer s Association. These attorneys are ready and willing to help you in any of your advocacy endeavors. A student membership is only $10, and it gives you access to some of the brightest legal advocates in the state as well as continuing education seminars. Let the Trial Lawyers help you so you can start helping underserved people and organizations.
6 November/December 2013 Page 6 SOUTH DAKOTA TRIAL LAWYERS ASSOCIATION Board of Governors Meeting Minutes October 15, 2013 RedRossa, Pierre In attendance: Stephanie Pochop, Verne Goodsell, Clint Sargent, McLean Thompson Kerver, Melissa Nicholson, Raleigh Hansman, Kasey Olivier and Sara Hartford. A quorum was not present. Chief Justice Gilbertson joined the board members for their annual visit. Topics discussed but not limited to were: an update on the criminal justice initiative, the drug courts, the DUI courts, a rural practice update, electronic filings status, FAQ online for procedural issues by judge or circuit; pro bono work and pro se litigants. The next Board meeting is Thursday, November 14, 2013 at 4:00 pm Central/3 pm MOUNTAIN by conference call. Dialing instructions will be sent with the agenda. Meeting adjourned. SOUTH DAKOTA TRIAL LAWYERS ASSOCIATION Board of Governors Conference Call Minutes November 14, 2013 On the call: Stephanie Pochop, Steve Beardsley, Clint Sargent, Tim Rensch, Aaron Eiesland, TJ Von Wald, McLean Thompson Kerver, Alecia Fuller, Ryan Kolbeck, Brad Lee, Melissa Nicholson, Robbie Rohl and Sara Hartford. Law Student Liaison Kelsea Sutton was also on the call. A quorum was present. President Pochop asked for approval of the September 19 minutes. Rohl made a motion to approve as presented, Rensch seconded. Motion unanimously carried. Beardsley gave the treasurer s report. Account balances are $13,190 in Operations, $64,243 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 $28,574. Hartford answered questions regarding the current actuals vs. the budget. She indicated that we need to continue to grow the membership because of the natural attrition of loss of retiring members. Under old business, Lee reported on the 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 be willing to reduce the amount for reimbursement. He will continue to research the issue and will let the board know when there is anything to discuss. The CLE committee reported the Spring seminar 2014 is being planned for May 8-9, 2014 at the Grand Falls Resort in Larchwood, IA just outside of Sioux Falls. They are using the newer format of starting at 1pm on Thursday May 8 with several trial technique topics, a reception and dinner that evening and continuing on Friday morning May 9 with a panel of Circuit Court Judges and concluding with the Hon. Mark Bennett, US District Court Judge, Northern Division of Iowa by noon. Under new business, Beardsley described a client s peril of being fired by his employer for displaying PTSD on the job after experiencing emotional distress during the course of his employment and the employer not extending his workers compensation coverage for his care and what appears to be a void in the state s worker compensation laws. There was discussion. Beardsley will contact Julius and Tellinghuisen on the matter and report back on the December call. Board meeting is Thursday, December 19, 2013 at 4:00 pm Central/3 pm MOUNTATIN by conference call. Dialing instructions will be sent with the agenda. Meeting adjourned.
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8 November/December 2013 Page 8 NINETEEN WAYS TO MAKE THE COURT REPORTER HAPPY By Timothy J. Rensch I have spent many years trying cases in front of juries and have always appreciated the job the court reporter does in transcribing everything said in the courtroom verbatim. I count among my dearest friends in the law, court reporters who are in the middle of the biggest, and sometimes smallest, cases I have tried in the trenches where the rubber meets the road in the justice system. They are the friendly faces closest to the pulse of the jury and the facts and emotions of the courtroom. When I received a request from the 2013 Court Reporters Conference to participate in a panel discussion with Mike Sabers, Terry Quinn, and Alecia Fuller. The conference requested that we talk to the court reporters in attendance about what we like and what we could teach them. I thought to myself, What could I possibly teach the court reporters other than to say Thank you? Think of what they put up with--fast talking lawyers, people talking over one another, marking exhibits, keeping track of things, and generally being the Sargent at Arms of the courtroom. Little did I know that when I went into this panel discussion, I would be the one who learned so much from the court reporters--things that really surprised me and are easy things for lawyers to do which make the record cleaner, more accurate, and preserve all for justice and review. In addition, these things make the job of the court reporter so much easier and less frustrating. The panel discussion was lively with Quinn, Sabers, and Fuller sharing humorous tidbits of their experience. Thereafter, the court reporters flooded us with observations, stories, outright requests, and passionate perorations about the importance, power, and responsibility of their honorable profession. What follows are notes of what they had to say. 1. Like the Boy Scout motto, Be Prepared, court reporters appreciate it very much when a lawyer is prepared and has thought out what he/she has to say, as the record is much easier to keep. Speak in organized sentences with logical points so the record is full of coherent punctuation rather than incoherent dashes. Shooting from the hip in a stream-ofconsciousness diatribe is difficult to transcribe. 2. Talk in terms of dollars and cents when talking about sums of money as just using straight numbers does not portray clearly what is said. For example say two thousand fourteen dollars and twenty-five cents instead of two one four twenty five. 3. When using numbers to describe other things keep the number with the unit it describes, as otherwise the record is unclear, i.e., twenty five hundred bushels or sixty-eight percent or thirty-one two-by-fours, etc. 4. Never block the court reporter from the witness or have the back of the witness to the court reporter as it makes it much harder for them to hear what the witness is saying. Did you know that court reporters, in recording the syllabic content of what is said often read lips in conjunction with what is said in order to provide an accurate record? (This one of the many reasons why a live court reporter is so much better than a digital recording). They like to see the witness s mouth when recording his testimony. So when you have a witness leave the witness stand to demonstrate make sure you remember to direct the witness to a spot where not only the jury has a good view but the court reporter also has a good view. 5. When the court reporter is coughing or sneezing it is important that you stop and let her recover so the record is being kept. All court reporters have had the experience of having the lawyers and the witness continue even though the reporter is physically unable to hear. The same is true when a court reporter is marking exhibits on the record. She cannot very well record what is being said if her hands are busy with exhibit stickers. 6. Do not position projectors or machines with loud functions or fans between the court reporter and the witness as it makes it twice as hard to accurately hear. 7. Do not block the court reporter from the witness by standing in between. 8. If there are voluminous exhibits, get them to the court reporter in advance. They are much easier to mark. Continued on page 16
9 November/December 2013 Page 9 SDTLA is CATCHING FIRE!! 2013 Spring Seminar May 8-9, 2014 Grand Falls Resort, Larchwood, IA Thursday, May 8, :30 p.m. Registration and coffee. Tentative Agenda 1:00 p.m. SDTLA President s Welcome Stephanie Pochop, Gregory 1:05 p.m. Deposition Basics by one of our own! 2:00 p.m. BREAK 2:15 p.m. Discovery with Electronic Technology Colleen Zea and Dan Meinke, Computer Forensic Solutions, Sioux Falls 3:15 p.m. BREAK 3:30 p.m. Hot Topics for Family Law. the Emerging Issues Civility and Professionalism Family Law and how it differs from other Civil and Criminal Law Cohabitation Agreements, Same Sex Marriage and more Linda Lea Viken, Rapid City 4:30 p.m. Adjourn 5:15 p.m. Past President s Networking Reception (included in tuition) Special Presentation to Judge Hinrichs 6:00 p.m. Banquet Dinner followed by SDTLA Roasting of Bob Morris Contact Sara if you want to be a roaster! Friday, May 9, :00 a.m. A South Dakota Drug Court Panel of Circuit Court Judges & a Graduate 10:00 a.m. Break 10:30 a.m. The Eight Traits of Great Trial Lawyers Hon. Mark Bennett, US District Court Judge, Northern District of Iowa Noon Adjourn REGISTRATION FEES: (All registrations include the banquet dinner & roast) $ Sustaining members and members over 3 years in practice $ members less than 3 years in practice $ non-members less than 3 years in practice $ non-members over 3 years in practice $50.00 Legal Support Staff $ Legal Support Staff non-member Complimentary USD Law School Students and Judges * $50.00 Spouses/Guest Dinner only* *must pre-register ACCOMODATIONS: Rooms can be reserved by calling the Grand Falls Resort at and ask for reservations in the SD Trial Lawyer Association block. The SDTLA rate is $99.95/night plus tax. Please photocopy and use a separate registration form for each registrant. Return this form and the appropriate fees to: SDTLA Office PO Box 1154 Pierre, SD If you have questions, call (605) Name Address City State Zip Telephone
10 November/December 2013 Page 10 From Public Sector to Private Practice A Personal Account of an Individual Makin the Switch Truth be told, I thought it wise in this particular piece to place my name at the end. Hopefully the author s name alone will not dissuade you from carrying on. To the extent it does, I definitely do not blame you. By popular demand (and by popular demand I mean maybe one or two people), I have been requested to write in this issue about my transition from Dakota Plains Legal Services to private practice. To all of you seasoned vets out there, I apologize if this subject matter is far removed. At the very least, maybe you could consider some of my personal insights similar to those of a newly hired attorney at your firm or business. First of all, it s not accurate for me to even refer to my transition in the past tense. I am hardly three weeks into private practice at a firm consisting of six partners, one associate attorney (me), seven paralegals and one bookkeeper. The experience I brought with me was a clerkship and criminal defense work. I think the following topics address some of the major areas of concern any individual transitioning into private practice will have: 1. Clients. Let s face it, without them there is no private practice and without them, there is no us. As an employee of Dakota Plains, the Court appointed me to cases that the Public Defender s office had conflicts with. Clearly, for attorneys practicing in the Public Sector, getting clients is not an issue (in reality and in most situations, there are probably too many clients one of many reasons I have so much respect for Public Sector Attorneys). An immediate concern of mine, in transitioning to the private sector, was how to get clients. I think that this answer is likely different and dependent on a new attorney s situation, but I can at least provide a personal account of a few steps I ve taken in an attempt to get clients. In both Federal and State Court, the need arises to appoint private counsel to defend indigent individuals facing criminal charges. One of the first steps I took when entering private practice, was ensuring that I was on the court appointed counsel list in both Federal and State Courts. I wrote letters to all of the judges in the surrounding circuits requesting consideration for appointments if and when the need arises. Another step I have and still am taking is getting involved in the community. This can be a very wide spectrum of things. For me, it has included getting involved with a young professionals group and seeking out a board to serve on. Attorney community service, of any kind, is appreciated and expected by members of the community and the SD Bar. In a lot of respects, lawyers are capable of providing services and answers, as a result of our law training, which make our community service that much more beneficial. Aside from the chiefly important altruistic benefits, community service also provides a great opportunity to reach out to members of the community and meet many individuals involved in various facets of your local community. Lastly, continue to reach out to other attorneys in your community. If there is an attorney that practices the type of law, or caters to the type of client you aspire to cater to, reach out to that attorney. In my young career, I have not once reached out to an attorney and not received a timely and informative response. Being a member of the SD Bar is great, utilize the network. I think another good source of future clients is the attorney referral network. 2. Time. Another concern of mine, when making the transition from Public to Private, was the billable hour. Everyone has heard the horror stories of big city, big firm associates constantly sweating the need to hit their baseline billable hour requirement (that of which requires 7 days a week in the office). Being an attorney is a hard job which requires commitment. Expect to work weekends. Hell, if it was easy, everyone would do it, says my dad. If for no other reason, expect to work hard for the simple understanding that it takes a lot of work to even grasp what is going on with a particular file. At the interview stage, I think an important issue to address with a prospective employer is the billable hour. Ask these questions: Is there a minimum requirement? Will I be expected to obtain my own source(s) of billable hours? Will I be provided with enough work? These are a few relevant questions. I think in any situation, it is reasonable to expect that you will work hard in any firm. Without billing enough time, the law firm ceases to exist because bills do not get paid. As an employee of a private firm, your salary is obviously overhead that the firm must pay. Be mindful of the fact that a firm is a business, in order for the expense of your salary to be justified, you need to provide the firm with the benefit of billable hours and/or new clients in most, if not all, situations. That being said, all partners (managing included) at one point in their careers were associates. No different than any young attorney, they too were in a situation where they would sneak into the coffee room or cautiously approach the bathroom, attempting to avoid partner detection, constantly embracing the fear of being accused as lazy or not hard Continued on page 17
11 November/December 2013 Page 11 The HANGING of the STAN WHITING BILL of RIGHTS By Dan Bechtold Editor, The Winner Advocate Stanley E. Whiting of Winner was a dedicated, hard working lawyer who was committed to the protection of the client s rights. Whiting died on January 30th and on Friday, October 11 th lawyers, family and friends gathered in the Tripp County courtroom for a hanging of a copy of the Bill of Rights. It is truly my privilege to be here today as we hang a copy of the Bill of Rights in the Tripp County Courthouse in honor of my friend Stan Whiting, said Stephanie Pochop, Gregory, president of the South Dakota Trial Lawyers Association. Whiting practiced in many courtrooms around the state including in federal court and tribal courts. It is fitting that this tribute to his efforts as a lawyer be hung here in the courthouse where he spent most of his career, said the Gregory attorney. The South Dakota Trial Lawyers is a group of more the 500 South Dakota lawyers who work to preserve the jury system, to promote justice in South Dakota and to mentor new lawyers to be ethical, hardworking and committed to the protection of their client s rights. Pochop said Stan was one of the most dedicated members of the state trial lawyers association. He received the highest honor when he was named a year ago as the South Dakota Trial Lawyer of the Year. This award is granted to a lawyer who is recognized by other trial lawyers for excellence in service to his clients in a way that inspires other lawyers to service. Pochop said Stan was not selected for the award for one thing but for the hundreds of things he did for his clients year after year as a criminal defense lawyer. When Whiting received the award he was humbled and said he didn t think anyone noticed. We did notice and we have also keenly felt Stan s absence in the past year, said Pochop. Stan was a warrior. I say that literally. He served and fought for our country in the Vietnam war and was one o the most decorated Marine pilots in the country. She said Stan practiced law like a Marine. Stan was relentless in his protection of his client s constitutional rights which is why the Bill of Rights is so appropriate as a memorial to his legal service, said Pochop. I am not sure how many people know that Stan was a legend as one of the most accomplished, dedicated criminal defense lawyers in the state of South Dakota. He was the epitome of what a trial lawyer should be, said Pochop. She said the dedication of the Bill of Rights is not something the SDTLA does for every member. This is a special honor for Stan. The Bill of Rights is the first ten amendments to the U.S. Constitution. I am very glad this Bill of Rights is hung here so that the jurors the lawyers, their clients and the people in the audience will be able to see it in every court proceeding that takes place in this courtroom, Pochop said. Attending the ceremony were Stan s wife, Alyson and his son, Quentin. Thank you Alyson and Quentin for sharing him with us. We do miss him, said Pochop. SDTLA HAS SOCIAL MEDIA!!!! The South Dakota Trial Lawyers Association is pleased to announce that it has re-launched its official Facebook page in an effort to connect and unite more attorneys and legal support staff throughout South Dakota. Videos, pictures, and information about upcoming SDTLA events will be posted regularly. 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!
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13 November/December 2013 Page 13 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.
14 November/December 2013 Page 14 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! Debra Voigt currently of Burd and Voigt Law Office, graduated 1995 from USD Law School, clerked for Judges in old 4th Circuit, worked at the Minnehaha County Public Defender's Office, Galland Legal Clinic, and Piersol & Voigt Law Firm. She does all types of Family Law and most criminal cases and has jury trial and numerous court trial experience. She attended the 2013 Trial Academy because she wanted to and strongly recommends all trial members attend no matter how long you have been out and she has yet to be objected on for a leading question since the academy! Dean Faust graduated from USD School of Law in 1997 then clerked for the Judges in the Sixth Judicial Circuit. Dean currently practices personal injury law at the Moore-Faust Law Group in Rapid City. Eric Preheim began working at Fuller & Williamson in the beginning of He is using his courtroom experience to assist the firm with its litigation practice. Kirk Albertson joined the Office of the Lawrence County Public Defenders in August Kirk graduated from the University of Iowa College of Law in 2005 and served in the U.S. Air Force from 2006 to 2013, specializing in military justice. He was most recently assigned to McChord Field, Washington, as a Senior Trial Counsel, Special Victim's Unit, specializing in the prosecution of sexual assault.
15 November/December 2013 Page 15 Continued from page 2 member to raise the professional standard for achieving justice within the jury rules and bounds of the jury system in South Dakota. For SDTLA members who lack the resource of unencumbered time, the easiest method for an existing SDTLA member to amp up the member s SDTLA involvement is to become a sustaining member. Anyone who has been a member of the SDTLA for five years or more can become a sustaining member by committing to a $ annual membership. The status of sustaining membership entitles the member to rest easy about making a big difference with dues and shall entitle the member to a free Fall seminar. So how do you fit into the definition of active SDTLA membership? I ask because taking the time to mix, share ideas and even war stories with other trial lawyers and judges who are keen to make the jury system better for the clients, the jurors and the public in general immediately makes a positive difference for everyone involved. Your attendance and input into SDTLA events gives us all an extra chance to learn something that can help the legal profession grow and serve its highest purpose. The SDTLA continues to attract new members because our active members create an atmosphere of interest in mentorship opportunities, in examples of civility, in how to training and in the newest innovations in persuasive trial style. Every trial lawyer, no matter how seasoned or green, can improve his or her spirits and law practice with an injection of active SDTLA participation at least once a season. Try it out: put the dates of May 8-9, 2014 on your calendar and Sara today to sign up to attend the SDTLA Catching Fire Spring Seminar. In the meantime, here are five RESTATEMENT-approved examples of easy, enjoyable ways to be an active SDTLA member without unduly compromising your obligations to your family, your clients or your co-workers: a SDTLA law student mentee with a word of encouragement as finals approach. Don t know one? We can fix that: call or the SDTLA at and we can give you a list of our student members. Check out the SDTLA Facebook page to see if there is information that you can use or add to help another SDTLA member be more active. Say yes to a social hour for SDTLA members once a month in your community. The Second Circuit SDTLA social hour is coming soon. Couldn t every circuit use an old style, after five SDTLA mixer every now and then? Start your campaign to be one of the SDTLA Governors today with an to your friends that states: I want to run for the SDTLA Board of Governors next June because. Take a quiet moment to be proud of what you do as a trial lawyer or trial judge. As professionals who strive to see justice fulfilled, our words make a difference in clients lives, in new lawyers aspirations to do the right thing, at the highest levels of government, in the most tony corporate board rooms and at the most basic grass roots levels in our own home towns. On behalf of the SDTLA, I thank you for everything that you ve done to be an active SDTLA member so far this year. I hope that you ll try to add in one or two factors of SDTLA activity from my RESTATEMENT before the year is over. Happy holidays and happy practice! NOTE TO YOUR ACCOUNTANT: The NON-Deductible percentage Of your paid dues for the FY 12/ %
16 November/December 2013 Page 16 Continued from page 8 9. Many court reporters would like to be ed a copy of the suppression motion or the summary judgment motion (or whatever motion) in advance of the hearing so they can review the terms and familiarize themselves with unique words in advance, as well as the citations. This was surprising to me as I have never considered such a thing. But the reporters explained how lawyers live with a case for so long that many complicated terms and words become second nature and tread so trippingly off of the tongue that they are hard to transcribe. The same is true for case names, witness names, citations, and legal concepts. If a court reporter knows this in advance a unique dictionary can be set up in the machine wherein the terms are preprogrammed and they can be more quickly transcribed so the flow and conduct of the proceeding is not interrupted. In busy jurisdictions, I would suggest calling the court reporter in advance to see if this is something she would like. 10. If there are specialized, technical, or unique terms in a case, the lawyer should provide a list of the special words which are going to be used throughout the case. Court reporters will familiarize themselves with the terms so they can properly record the syllables. They can also preprogram these terms into the machine so they can be more easily transcribed. 11. A witness list is nice. 12. An exhibit list is nice. 13. Exhibit books in advance are nice if there are many exhibits. 14. When a court reporter asks you to slow down, do it. Too many times, myself included, the lawyer just dives right back in at the same pace, if not on the very next question, then two or three questions later prompting the need for another interruption. 15. Slow down when reading something, and if there is a long quote you want to use, consider giving it to the reporter in written form either through the brief or as a separate sheet. We all read things faster than the speed we ordinarily speak. 16. Speak up. Many courtrooms swallow up your voice. If you are going to speak quietly for dramatic effect be close to the court reporter when you do it so she can hear you and does not have to interrupt, which can have the effect of lessening the impact of the very point you wish to emphasize. 17. If there are microphones sit in front of one so your voice can be picked up. 18. When a reporter calls you after the fact for a clarification, a spelling, a cite, or anything, return the call immediately so she can finalize the correct record. It takes time out of very busy day for her to make the call in the first place and she should be commended for wanting to get it right. 19. And finally remember court reporters do not interpret what is said, they just record it. Be clear in your speech and your words so there is no ambiguity about what is asked and what is answered. While a court reporter may feel she knows what you or a witness means, she can only put down what is said. These are but a few of the things they had to say. We should all try to make their job easier as they certainly make our job easier. We are lucky to have court reporters. In this day and age of electronic preservation of evidence in grand juries and magistrate court, we should be thankful we have the human touch in this state as preserved by the professional court reporter. They can hear better and preserve more than an electronic system as they are there and combine ears, eyes, and experience to put down what is said with a proper certification rather than a secondhand, after-the-fact rendition on paper of a recording listened to and transcribed by one not present. My thanks go out to all of the court reporters and their sincere desire to preserve what is said in the majestic chambers where the most important issues of the lives of the litigants are honorably heard, weighed, and decided. The passion and seriousness with which they take their job is evident by the care and concern they bring to the formal and important cause of courtroom justice.
17 November/December 2013 Page 17 Continued from page 10 working. I am obviously kidding and taking that example to the extreme, but the point I am trying to make is that attorneys are generally reasonably educated people. My assumption is that in 99.99% of circumstances relating to young lawyers practicing in South Dakota, if an individual works hard it will be recognized and accepted as sufficient by any firm. 3. Miscellaneous. A few other concerns, are some other issues which have the potential to develop. First, if you are moving from one office to another or from one sector to another (public to private, or vice versa), do so in an incredibly professional manner. If at all possible, try to give your employer more than two weeks notice. Have an honest sit down in which you explain the reason(s) for departure and maintaining a thankful tone for the opportunity to serve as an employee of employer. I can honestly say I loved working at Dakota Plains, and specifically working for Paul Brankin. He was a tremendous boss and remains a good friend. Ideally, no bridges or relationships will be burned as a result. Private practice is a business; any successful business operates with efficiency. Use your professional judgment to determine when and where you can maximize efficiency. Lastly, zealously advocate for clients, win or lose that should be enough for positive commentary about your representation from their perspective. For the few of you that read to this point, thanks and have a great day! Robert J. Rohl DeMersseman Jensen Tellinghuisen & Huffman, LLP 516 5th Street, PO Box 1820 Rapid City, SD (fax)
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