YLS Young Lawyers Section
In Brief A Periodic Newsletter of the Young Lawyers Section of the Arkansas Bar Association
In this issue
FROM THE EDITOR 2 BROOKE MOORE
Vol. 17 #4
ARKANSAS TRAVELER 15 CARL F. “TREY” COOPER MARY G. COOPER
YLS NEWS 3 WHAT JUDGES WANT 6 AN INTERVIEW WITH JUDGE MARY SPENCER MCGOWAN MEGAN E. WOOSTER
TASTY TIPS 16 RASHAUNA NORMENT YLS REPORT 17 CLIFF MCKINNEY
HOT TOPICS 9 INTELLECTUAL PROPERTY: JOEL B. CARTER REAL ESTATE: CLIFF MCKINNEY FLYING SOLO 11 AUBREY L. BARR TECH TIPS 13 EXPORTING TEXT MESSAGES FROM MOBILE PHONES KEITH PIKE PRO BONO 14 STEFAN MCBRIDE
If you have information on YLS Members who deserve a “Hats Off” or would like to submit ideas for articles, please contact the editor of In Brief, Brooke Moore at k.brooke.moore@gmail.com
YLS
FROM THE EDITOR
Young Lawyers Section
I hope everyone enjoyed our fall 2013 issue and that your 2014 is off to a great start! We have several talented returning and new YLS attorneys contributing to this winter 2014 issue as well. I would like to thank all of the editors and contributors for their hard work. I also want to welcome Arkansas Traveler Review husband and wife duo, Trey and Mary Cooper, to the editorial team! John Pesek will also be joining us as Hot Topics Editor. Here’s what you have to look forward to in this issue… What Judges Want Editor Megan Wooster’s interview with Judge Mary Spencer McGowan provides some great insight into courtroom dos and don’ts for young attorneys. Aubrey Barr continues our Flying Solo series with practical tips for survival in solo practice. Cliff McKinney and Joel Carter continue to lend BROOKE MOORE their expertise and analysis of pertinent case law. Keith Pike EDITOR-IN-CHIEF introduces a savvy way to deal with text message discovery requests in this issue’s Tech Tips article. Stefan McBride advocates and cites resources for providing pro bono services. Rashauna Norment gets your mouth watering with her Sweet Baby! Back Chicken recipe and Trey and Mary Cooper will take you off of the beaten path for some delicious back road BBQ. In Brief is always eager to involve more young lawyers. Currently, we have a need for contributors to our Case Law Updates section. It is our goal to have YLS contributors from each bar section to contribute one brief update for each quarterly publication addressing new case law pertinent to their respective sections. Also, our spring 2014 issue will focus on What Judges Want and will contain a compilation of old and new interviews with judges. If you are interested in assisting with that please contact Megan at megan@mwlawpllc.com. Additionally, the YLS Communications Committee is working on a public video series that will consist of short informational videos to educate and assist the public with various legal issues. I encourage everyone to consider getting involved with this newsletter and get plugged into YLS! If you are interested in writing for In Brief, participating in the public video series or have any ideas, email me at k.brooke.moore@gmail.com. Also, don’t forget to get your big news into me for inclusion in our spring issue!
IN BRIEF EDITORS
ALEXANDER BIGGER TECH TIPS EDITOR
TREY COOPER ARKANSAS TRAVELER REVIEW EDITOR
MARY COOPER ARKANSAS TRAVELER REVIEW EDITOR
In Brief EDITORIAL Editor-In-Chief BROOKE MOORE Assistant Editor RASHAUNA NORMENT Tech Tips Editor ALEXANDER BIGGER What Judges Want Editor MEGAN WOOSTER Tasty Tips Editor RASHAUNA NORMENT Hot Topics Editor JOHN PESEK Arkansas Traveler Review Editor TREY AND MARY COOPER Graphic Design & Layout ANNA HUBBARD
YLS EXECUTIVE COUNCIL Chair: J. CLIFF MCKINNEY II Chair-Elect: JESSICA S. YARBROUGH Secretary/Treasurer: GRANT M. COX Immediate Past Chair: VICKI S. VASSER District A Rep.: MATTHEW L. FRYAR District A Rep.: RYAN BLAKE PETTIGREW District A Rep.: WILLIAM M. PRETTYMAN III District B Rep.: CORY D. CHILDS District B Rep.: GREGORY J. NORTHERN District B Rep.: STEPHANIE A. LINAM District C Rep.: CHASE A. CARMICHAEL District C Rep.: LESLIE J. LIGON District C Rep.: RYAN M. WILSON At Large Rep.: AMBER DAVIS TANNER At Large Rep.: BROOKE MOORE U of A School of Law Rep.: CHRIS E. BROWN UALR School of Law Rep.: DOMINQUE KING YLS In Brief is published online quartlery by the Arkansas Bar Association.
RASHAUNA NORMENT ASSISTANT EDITOR & TASTY TIPS EDITOR 2 YLS In brief www.arkbar.com
MEGAN WOOSTER WHAT JUDGES WANT EDITOR
YLS NEWS
YOUR NAME IN THE NEWS NOW IS THE TIME TO GET IN NOMINATIONS FOR YLS POSITIONS. 5 open seats: one seat from each of the 3 districts; secretary/treasurer; & chair elect EXECUTIVE COUNCIL We have three open spots for the Executive Council that will be open for the 2014-205 Bar Year. Nominations are now open for a spot in each of the three districts: •
• •
District A comprises the Counties of Baxter, Benton, Boone, Carroll, Conway, Crawford, Franklin, Fulton, Izard, Johnson, Logan, Madison, Marion, Newton, Perry, Polk, Pope, Scott, Searcy, Sebastian, Stone, Washington, Yell. District B is Pulaksi County, and District C are the counties of Arkansas, Ashley, Bradley, Calhoun, Chicot, Clark, Clay, Cleburne, Cleveland, Columbia, Craighead, Crittenden, Cross, Dallas, Desha, Drew, Faulkner, Garland, Grant, Greene, Hempstead, Hot Spring, Howard, Independence, Jackson, Jefferson, Lafayette, Lawrence, Lee, Lincoln, Little River, Lonoke, Miller, Mississippi, Monroe, Montgomery, Nevada, Ouachita, Phillips, Pike, Poinsett, Prairie, Randolph, Saline, Sevier, Sharp, St. Francis, Union, Van Buren, White, Woodruff.
The term is a three-year term. Candidates for district representative may be nominated by any Section member, including himself or herself, who resides in the State Bar District of the representative position to be elected. Nominations for district representative shall be delivered in writing to the Arkansas Bar Center, to the attention of the Associate Director of the Arkansas Bar Association, no later than April 1st. Nominations may be delivered by: (1) personal delivery; (2) electronic mail; (3) facsimile; or (4) mail. Any nomination mailed to the Arkansas Bar Center shall be considered timely so long as it is post-marked by or before APRIL 1. CLICK HERE FOR THE FORM. The election of the district representatives will be by a majority of votes cast by members present at the annual meeting who reside within the district of the representative position being elected.
HATS OFF Matthew L. Fryar of Springdale was recently made partner at Cypert, Crouch, Clark & Harwell, PLLC. Mark Lewis, Tory Lewis and big brother Levi welcomed a second son, John Isaac Lewis, on November 19, 2013. Vince Morris was recently honored with speaking to a national audience at the Texas Supreme Court about Arkansas Legal Services . Vince and his wife also welcomed their third son, Elijah Dylan Morris. Link to Press Release: http://www.arlegalservices.org/node/1211 Effective January 1, Stuart Hindmarsh was voted a Partner at Kutak Rock LLP. Stuart is based in the Fayetteville office and his practice focuses on real estate, banking, and general corporate and commercial law. Chase Mangiapane and Amanda Land were married on January 31, 2014. Chase is a solo practitioner and Amanda is an attorney with Cox, Sterling and McClure. Jay Neal and Christa Neal welcomed a daughter, Georgia Faye Neal, on November 25, 2013. Victoria Leigh of Leigh Law LLC and her husband Joey Moore welcomed a daughter, Lilli Leigh-Moore, on January 20, 2014. Jennifer Wells and Kevin Wells welcomed a son, Henry John Wells, on February 12, 2014. Brooke Moore recently joined Palco, Inc. in Maumelle as Director of Policy and Outreach. SECRETARY/TREASURER Any Section member may nominate a candidate for Chair-Elect or Secretary-Treasurer including himself or herself. Nominations for Secretary-Treasurer may be delivered by: (1) personal delivery; (2) email to pprater@arkbar. com; (3) facsimile; or (4) mail. Any nomination mailed to the Arkansas Bar Center shall be considered timely so long as it is postmarked (or electronically date stamped) by or before March 31. The Secretary-Treasurer (or two separate positions if designated by the Executive Council) shall be elected by a majority of the votes cast by Section members at the annual meeting of the Section. Voting shall be by written ballot. The term is a one year term. CHAIR-ELECT Each year the nominations for Chair Elect rotate among the districts. This year, the nominee must come from DISTRICT A. Furthermore, nominations for Chair-Elect shall be made by petition signed by at least 25
Section members. To be eligible for nomination for Chair-Elect, a Section member must have served as chair of a Section committee or on the Executive Council. Candidates for chair-elect may be nominated by any Section member, including himself or herself, who resides in the State Bar District of the representative position to be elected. Nominations shall be delivered in writing to the Arkansas Bar Center, to the attention of the Associate Director of the Arkansas Bar Association, no later than March 31. Nominations may be delivered by: (1) personal delivery; (2) electronic mail; (3) facsimile; or (4) mail. Any nomination mailed to the Arkansas Bar Center shall be considered timely so long as it is post-marked (or electronically date stamped) by or before March 31. CLICK HERE FOR THE FORM. The Chair-Elect shall be elected by a majority of the votes cast by Section members through a ballot distributed to the membership of the Section in the same manner used by the Arkansas Bar Association for the election of Delegates. 3
YLS NEWS JOIN THE DECISION MAKERS! You can make a difference. The Arkansas Bar Association is now accepting nominations for positions on the Board of Governors and House of Delegates. Submit your Nominating Petition Today! Filing Deadline is March 31, 2014
Click here for House of Delegates Nominating Petition Click here for Board of Governors Nominating Petition
Board of Governors
House of Delegates
District County(ies) 1 Governor to be elected 3-BG Arkansas, Ashley, Chicot, Cleveland, Crittenden, Cross, Desha, Lee, Lincoln, Monroe, Phillips, Poinsett, Prairie, St. Francis, Union 5-BG Dallas, Garland, Grant, Hot Spring, Saline 6-BG Benton 7-BG Washington 15-BG Pulaski 16-BG Pulaski
District County(ies) No. of Delegates to be elected
All are Three-Year Terms Qualifications for Board of Governors The attorney must reside in the geographical area for the Governor’s position and must have served one year in the House of Delegates or must have been an Association member for seven years by the time of joining the Board of Governors in June. Election Process for Governors and Delegates For both governors & delegates, a nomination petition, signed by three current members of the Association who reside in the geographical area of election, must be filed with the Secretary at the Arkansas Bar Association, 2224 Cottondale Lane, Little Rock, AR 72202, no later than March 31, 2014.
A-1 Benton 1 Delegates A-2 Washington 4 Delegates A-3 Crawford, Franklin, 2 Delegates Johnson, Sebastian A-4 Conway, Logan, Perry, Polk, 1 Delegate Scott, Yell A-5 Boone, Carroll, Madison, Newton 1 Delegate B Pulaski 10 Delegates C-3 Craighead 1 Delegate C-5 Cleburne, Crittenden, Cross, 1 Delegate St. Francis, White, Woodruff C-7 Lonoke, Monroe, Prairie 1 Delegate C-8 Arkansas, Grant, Jefferson, Lincoln, 1 Delegate Phillips, Lee C-9 Ashley, Bradley, Calhoun, Chicot, 1 Delegate Cleveland, Columbia, Dallas, Desha, Drew, Ouachita, Union C-11 Clark, Hempstead, Howard, Lafayette, Little River, Montgomery, Nevada, Pike, Sevier 1 Delegate C-12 Garland 1 Delegate C-13 Hot Spring, Saline 1 Delegate All are Three-Year Terms Qualifications for House of Delegates The attorney must be an Association member residing within the Delegate District as defined by Article XVI Section 2 of the Association’s Constitution.
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WHAT JUDGES WANT
What Judges Want An Interview with Judge Mary Spencer McGowan By Megan E. Wooster
JUDGE MARY SPENCER MCGOWAN Circuit Judge Mary Spencer McGowan currently presides as the Sixth Judicial Circuit Judge, Ninth Division, in Little Rock, Arkansas. She is a Shawnee, Oklahoma, native who has resided in Arkansas for the majority of her life. Judge McGowan received her B.A. from the University of Texas. Thereafter, she worked for the Congressional Research Service in Washington, D.C. Although she contemplated attending law school at Georgetown University, Judge McGowan ultimately decided to return to the South, where she attended law school at the University of Arkansas School of Law in Fayetteville, Arkansas. After graduating from law school, Judge McGowan accepted a federal clerkship position for a U.S. District Judge, which sparked her interest in the judicial system. Judge McGowan’s strong interest in politics and desire to serve her community influenced her decision to run for judicial office. After a successful judicial campaign, Judge McGowan was elected to the bench in 1990. ARE THERE FREQUENT MISTAKES THAT YOU OBSERVE YOUNG ATTORNEYS MAKING IN YOUR COURTROOM? WHY DO YOU BELIEVE YOUNG ATTORNEYS ARE MAKING THESE MISTAKES? Theory of the Case: Young attorneys are not spending enough time developing the theory of their case. In other words, young attor-
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neys are not developing the story that they are trying to convey. Young attorneys should not come to court and expect to only elicit testimony from witnesses. Young attorneys need to spend adequate time considering their client’s goals and developing a plan to achieve those goals. Young attorneys need to feel comfortable explaining to their clients that, “you are not going to get everything you want,” if that is the likely outcome. Young attorneys need to remember that they are counselors at law; communicating potential outcomes to clients is part of the counseling aspect of being an attorney. I feel that the counseling aspect of being an attorney is often overlooked. Similarly, I feel that law schools do not spend adequate time training law students how to counsel their future clients. Art of Persuasion: I also believe that young attorneys are not actively crafting the art of persuasion. Young attorneys can be effective and persuasive without being overly aggressive or disrespectful. I have observed young attorneys being disrespectful and aggressive with witnesses, opposing counsel, and the court. I feel that the skill of persuasion is not being taught in law schools. I believe that young attorneys’ lack of skill and knowledge combined with the pressures they are under can result in aggressive behavior. This combination of factors ultimately makes the young attorney less effective in the courtroom. Objections: Young attorneys are often unable to state a basis for their objections. It is common for a young attorney to say, “objection,” but then when I asked the basis for the objection, the young attorney is unable to provide a basis. The “relevancy” objection is the objection that young attorneys most frequently state when they are uncertain of the grounds for the objection. There must be proper grounds for an objection to be made. I have rulebooks available in my courtroom for reference. As a young attorney, it is better to be prepared for trial. If you need to bring a
rulebook or checklist with you so that you can remember the available objections, do it. Also, it is important to remember to stand up when you are making an objection. Young attorneys often fail to stand up when they address the court. When addressing the court, it is proper to stand up to show respect for the court and so that the judge can clearly hear your voice. Seasoned trial lawyers are able to effectively use objections to interrupt the flow of damaging witness testimony or to distract the jury; however, to use this trial tactic, you need to have years of experience and be certain that you know exactly how to effectively state the applicable objection. OFTEN, YOUNG ATTORNEYS STRUGGLE WITH MAINTAINING A PROFESSIONAL AND PERSONAL LIFE BALANCE. DO YOU HAVE ANY ADVICE FOR YOUNG ATTORNEYS WHO ARE STRUGGLING WITH THIS ISSUE? It is important to know your priorities. My priorities are my faith, family, and occupation. You have to be able to leave your work at work. It has always amazed me how attorneys are able to work directly with their spouse in the same law office. DO YOU HAVE ANY ADVICE FOR YOUNG ATTORNEYS WHO HAVE CASES WITH PRO SE LITIGANTS? My advice is for young attorneys to set a hearing in these types of cases. It is difficult to negotiate with pro se litigants because they are not familiar with the legal process. Let the court handle the pro se litigants. That being said, I would say that the hardest part of being a trial judge is dealing with pro se litigants because they do not understand that we cannot assist them. I usually advise all pro se litigations to retain an attorney; however, the majority of pro se litigants cannot afford an attorney.
HOW WOULD YOU ADVISE A YOUNG ATTORNEY TO DEAL WITH A DIFFICULT, OR NONRESPONSIVE, OPPOSING COUNSEL? I would advise the young attorney to first attempt to address the issue with the opposing counsel. Usually, a telephone is an easy way to resolve any potential misunderstandings. At the beginning of a case, attorneys who have never worked together before should pick up the telephone and call one another to reduce the unknown and to be more personable with one another. A telephone call can help make the working relationship more personal and reduce future conflict. If opposing counsel is being completely nonresponsive, I would suggest contacting the court to schedule a conference call with opposing counsel. Typically, attorneys respond to contact from the court. HOW HAS THE LEGAL PROFESSION, BASED ON YOUR VIEW, CHANGED OR EVOLVED SINCE YOU BEGAN PRACTICING LAW, IN TERMS OF THE STYLE OR MANNER IN WHICH ATTORNEYS INTERACT WITH ONE ANOTHER? I believe that interaction between attorneys has changed significantly since I entered the legal field. I think that the change has resulted, in part, from the proliferation of lawyers. When I was a young attorney clerking for a federal judge, I knew every attorney in Little Rock, Arkansas. At that time, practicing attorneys were familiar with one another. Not only did you know the attorney personally, but also you knew the attorney’s areas of expertise. In other words, you knew that you would likely be working with an attorney again in the future. In the “old days” it was common for attorneys to be fast friends or to grab a drink together after a trial. It is crucial that attorneys
do not take their cases personally. An attorney should advocate for his or her client to the best of his or her ability, but, at the end of the day, regardless of the case outcome, an attorney should be able to shake hands with opposing counsel. DO YOU BELIEVE THAT THE ADVANCEMENTS IN TECHNOLOGY HAVE AFFECTED HOW ATTORNEYS INTERACT WITH ONE ANOTHER? Yes, definitely. With instantaneous communication, such as email and text messaging, attorneys can easily make the mistake of communicating a reactive, negative sentiment without analyzing the consequences of the correspondence. Before technological advancements, attorneys would have been forced to write a letter, possibly an aggressive reactive letter, to opposing counsel to address an issue. The act of writing a letter allowed the attorney time to reconsider whether it was appropriate to send the letter. Today, with emailing and text messaging, you cannot recall the message after you select “send.” The message cannot be retrieved, and the damage is done. It is extremely important for attorneys to spend adequate time thinking about the message they intend to communicate, instead of reacting too hastily. HOW HAS YOUR CASELOAD CHANGED SINCE YOU INITIALLY TOOK THE BENCH? I have a varied docket. When I initially took the bench, I was a Circuit Chancery Judge. In 1996, I took on the task of developing the drug court in Pulaski County, Arkansas. This program has been very successful in reducing the recidivism rate of drug offenders. Also, I preside over a Veterans Treatment Court which is
RESOURCES WEEKLY CASE SUMMARIES ArkBar provides weekly case summaries of significant Arkansas Supreme Court and Court of Appeals each Tuesday in the ebulletin. Case summary mini reviews are availalbe on Twitter (@ArkBar) #arcaseslawupdates.
Sign up in ACE to receive mini-case summaries in your email for same-week updates on decisions. Join the ArkBar Case Summary community to receive email digests including mini-case summaries of the weekly case summaries prepared by Robert S. Tschiemer.
8th CIRCUIT CASE LAW UPDATES RSS FEED Available at your member portal on www.arkbar.com
ARKBAR LAW PRACTICE MANAGEMENT WEBSITE ace.arkbar.com/pages/ LawPracticeManagement.aspx Members-only website that provides a variety of services to help you start and manage your law office.
ARKANSAS JUDICIARY WEBSITE MEGAN E. WOOSTER is the owner of a domestic relations firm in downtown Little Rock, Arkansas. She can be reached at megan@mwlawpllc.com”
https://courts.arkansas.gov Your source for oral argument videos, docket search, proposed rule changes, opinions and disciplinary decisions, and online services.
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a Drug Court for Veterans. Currently, I hear all types of cases: criminal, civil, domestic relations, and probate cases. I also hear the same types of cases in Perry County, Arkansas. I enjoy the variety of cases. I also like it when attorneys are good trial lawyers; it keeps my job interesting. I love the stories and the drama.
DO YOU BELIEVE THAT IT IS APPROPRIATE FOR A YOUNG ATTORNEY TO ASK QUESTIONS ABOUT JUDGES ON EMAIL DISTRIBUTION LISTS OR INTERNET PUBLIC FORUM? It depends. Asking a general question, such as, “Does Judge McGowan typically receive testimony from children?” is appropriate. I do not think it is appropriate to ask questions or make comments that pertain to the behavior of a specific judge. I think that the best advice is to err on the side of caution because you do not know how your comment or question will be perceived or used in the future. Ask yourself, if you would feel comfortable contacting the judge’s law clerk and asking the question. If the answer is “yes,” then your question is probably an appropriate question. For the purposes of sharing information, I believe distribution lists and Internet public forums can be helpful for young attorneys. WOULD YOU MIND IF YOUNG ATTORNEYS OBSERVED COURT IN YOUR COURTROOM? DO YOU BELIEVE COURTROOM OBSERVATION
IS BENEFICIAL FOR YOUNG ATTORNEYS?
to observe hearings. The knowledge gained from courtroom observation is priceless.
I would encourage young lawyers to contact courts and request whether they can observe trial. Young attorneys should call the court to express their interest to observe. The court can inform the young attorney of the upcoming hearings and confirm whether the hearing may be observed. It is best to call the day before a scheduled bench or jury trial to confirm that the hearing will be held. Observation is a great tool for young attorneys. Observation allows young attorneys to learn different lawyering styles, how different courts internally operate, and how the jury or judge reacts to specific arguments, communication styles, and trial tactics. It is important to remember that not all courts operate identically. Today, the state of the legal economy has an impact on the observation opportunities that are available to law students, and to young associates, working for law firms. To explain, in the past, it was common for multiple attorneys to attend a trial. There may have been a first chair, second chair, and third chair attorney on any given case. I believe that billing pressures, the state of the economy, and a proliferation of lawyers play a role in limiting the observation opportunities available. Today, law firms cannot afford to have multiple attorneys or law clerks attend hearings for solely observation purposes. Law students should take advantage of their clerkships by requesting to observe trials without compensation. Young attorneys should reach out to courts to request
DO YOU HAVE ANY FINAL WORDS OF WISDOM THAT YOU WOULD LIKE TO SHARE WITH YOUNG ATTORNEYS?
“
The Arkansas Bar Association has equipped me with the tools to really grow my practice and enhance my involvement in the legal community. The wide variety of available continuing education programs helps me to stay on top of legal trends, while the networking events offer tremendous opportunities to meet great people who share a passion for the law and justice. I am honored to be a member of Leadership Academy class of 2014 and look forward to continuing my commitment to advance the legal profession in Arkansas.” —Misty Wilson Borkowski Cross, Gunter, Witherspoon & Galchus, P.C.
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Be patient. Experience will enhance your legal abilities. Try to learn the rules of evidence and civil procedure forwards and backwards because the rules provide a complete foundation of the skills necessary to practice law. Young attorneys need to spend time thinking about how to apply the applicable rules and case law to their everyday law practice. I would suggest that young attorneys attend useful continuing legal education courses (“CLEs”). I believe that the most useful CLEs are those that address topics, such as discovery issues, practice skills, and civil procedure. Also, it is important to remember that it is far more difficult to earn a living in the legal field today than it has ever been in the past. Young attorneys cannot graduate from law school and expect to only work an eight-hour workday. It takes time and dedication to develop legal skills and become acclimated to the practice of law. Television shows create a misconception about the legal profession and the time commitment required to be a successful attorney. Law schools and active bar members need to develop programs to educate future lawyers so that they have realistic expectations. That said, the practice of law is an honorable profession and one that will reward those who have chosen to pursue it. ■
HOT TOPICS
HOT TOPICS Intellectual Property and Real Estate Law INTELLECTUAL PROPERTY LAW UPDATE
REAL ESTATE LAW UPDATE
BRIEF SUMMARY OF THE INNOVATION ACT By Joel B. Carter On December 5, 2013, the U.S. House of Representatives passed the Innovation Act (the “Act”) with large majorities of both parties voting in favor. The Act, if enacted as passed, would implement several significant changes affecting patent litigation with the goal of curtailing frivolous lawsuits by patent trolls. Patent litigators should be familiar with the following proposed changes: •
•
•
•
In contrast to current law which requires “exceptional circumstances” before legal fees may be awarded, the Act requires fee shifting unless the losing party can show that its position was “reasonably justified in law and fact.” The Act would limit discovery to only those matters related to claim construction until after the court issues its claim construction rulings, thereby reducing a plaintiff ’s leverage over a defendant to extract an early settlement because the defendant will not be required to participate in early discovery. The Act would require a district court to stay patent lawsuits pending against alleged end-user infringers if such endusers agree to be bound by the results of the infringement claims against the manufacturers of the item or items serving as the source of the alleged infringement. Finally, the Act would drastically heighten pleading standards in patent infringement suits, requiring specific allegations of infringement rather than the vague claims that can currently be pled when bringing suit.
By Cliff McKinney
plain how a particular product embodies each element of the claim. Additionally, infringement complaint pleadings would be required to disclose a description of the plaintiff ’s principal place of business and a description of the plaintiff ’s rights to assert each claim of each patent. These enhanced pleading requirements would require plaintiffs to do their homework before bringing infringement claims and would prevent them from hiding behind shell entities to bring patent infringement suits, a common practice of patent trolls. The Act would almost certainly have a chilling effect on potential patent infringement plaintiffs, including patent trolls. Having swiftly moved through the House, the fate of the bill now rests with the Senate.
A recent real estate case that should be noted is the decision in Longing Family Revocable Trust v. Snowden, 2013 Ark. App. 81. The facts in the case were somewhat convoluted but the essence was that a seller conveyed title without reservation of mineral rights or a mineral rights exception to the warranties of title. This means that the seller was deemed to have conveyed title to the minerals to the buyer. As in many situations, the facts seem to indicate that the parties did not contemplate mineral rights as part of the transaction. The question then became what the intent of the parties was. The court ultimately found there was a mutual mistake and the minerals did not convey with the property. This decision should be concerning to real estate practitioners because it removes certainty from the interpretation of a deed by a title examiner. A title examiner is not in the position to know what the intent of the parties was and must rely on the face of the deed in rendering an opinion. By permitting reversals of conveyances in this situation, title examiners have less certainty when determining ownership.
The heightened pleading standards would require a plaintiff to identify each asserted patent claim, and for each such claim, ex-
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FLYING SOLO
SOLO SHARKS SECOND ARTICLE IN NEW FLYING SOLO SERIES BY AUBREY L. BARR
I STARTED MY OWN PRACTICE STRAIGHT OUT OF LAW SCHOOL, AND LET ME TELL YOU… IT’S TERRIFYING. I am by no means an expert on the law or even on solo practice, but I am a few years smarter than when I opened my practice. Here are a few tips I’ve learned in my wise, old age. #1: Start organized and stay organized. Tasks that require time on the front end will save you headaches on the back end. Find a billing system you like and actually learn it. Figure out how you prefer your files organized and organize as you go—don’t wait until two weeks before trial to wade through letters and pleadings to find documents you need. Take care of each item of mail as you open it. Calendar every deadline or date, no matter how big or small. Create these small habits in your daily routine when you first start out so that when your practice gets busier, you’ve got some stability. #2: Get out of your comfort zone. Join the local bar association and get involved in their activities. Go out with some attorneys for lunch after court, or happy hour. Run for the House of Delegates or apply for a committee appointment. Most importantly, introduce yourself. Many solo practitioners travel to smaller counties, and that provides a great opportunity to get to know judges and attorneys from outside your local bar. If I am appearing before a judge for the first time, I always attempt to find them in chambers before court. I have never met a judge who didn’t have time for a few rounds of “do you know Joe Moneybags? I went to law school with him!” It was awkward the first few times I forced myself back there, but as a judge told me during my first year of practice, judges put their pants on one leg at a time like everybody else.
#3: Don’t be afraid to ask. Questions on drafting a pleading? Draft it and then ask a local attorney to review it. Worried about how a judge runs her courtroom or docket? Call the trial court assistant. Trying to get your client the best plea on his criminal charge? Keep trying different approaches with the prosecutor until you find what works. He may like to see your client make an effort with counseling, or have a soft spot for defendants trying to keep their job. You never know what you can achieve by matching your own effort with some friendly expertise. More importantly, you’ll never know what you can achieve for your client unless you ask for what you want. #4: Communicate with your clients. Return your phone calls, people! After my first year of law school, I shadowed two attorneys in my hometown. We spent that day in three different courts, met at least four judges, and watched a federal jury trial. But the one thing about that day that stuck with me is that both of them made a point to go back to the office and return their phone calls before heading home for the night. Returning a phone call from someone who just lost their job, had their children taken by DHS, or simply didn’t know how to handle their landlord may not make you an immediate fee or secure you a new client, but it
will help solidify your reputation with that person. #5: Turn it off. I know it’s hard, but you have to do it or you will burn out. Technology today ensures that we are available 24 hours a day, 7 days a week if we want to be, and trust me, our clients want us to be. Find a hobby that helps you decompress. For me, it’s cooking and Crossfit. For you, it might be reading or playing basketball with your kids. But whatever it is, make time for it. This doesn’t mean you can’t answer emails after dinner or work on Saturday morning—it just means you need to find the right balance. If you want to do well for your clients, you need to be healthy and well-rested. And I won’t get into the rising numbers of suicide in the legal profession as long as you promise to put down your phone and engage in your own life. BONUS: Find someone you can trust to ask stupid questions. And then return the favor and answer the stupid questions of those greener than you. I was blessed with three attorneys in my office who have answered everything from “where do you find a deed?” to “what does interpleader really mean?” I am beyond grateful to them for not allowing me to commit malpractice and for the success of my small practice. The world needs more attorneys like the three of them. ■
AUBREY L. BARR, is a solo practitioner in Fort Smith and part-time public defender for the 15th judicial district. She is a member of the Arkansas Bar Association House of Delegates and serves as the secretary-treasurer of the Sebastian County Bar Association. She obtained her Bachelors of Business Administration from Belmont University in 2007 and graduated law school in 2010 from UALR Bowen School of Law. She has a general practice primarily consisting of family law, criminal defense, estate planning, personal injury and civil work. She is engaged to be married October 2014 and has one sweet dog, Maggie.
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The Arkansas Bar Association Annual Meeting returns to Hot Springs, June 11-14, 2014. This is the largest legal event of the year! Over four days, attorneys will come together for continuing legal education, receptions, award ceremonies, and entertainment. From traditional social events to cutting edge CLE, the ArkBar Annual Meeting is the place to be in June.
YLS ANNUAL MEETING FRIDAY, JUNE 13 AT 10:00 AM 12
YLS In brief
www.arkbar.com
TECH TIP
EXPORTING TEXT MESSAGES FROM MOBILE PHONES BY KEITH PIKE
If you deal with discovery in your practice, then you probably know that text messages are frequently requested during litigation. The popularity and ease of “texting” has ensured that our clients are likely often sending short discoverable pieces of information to third parties. Like most people, you probably dread receiving a discovery request for text messages. You have probably found that it is a huge hassle to take screenshots of individual messages and try to piece together the conversation in a coherent way. In the past, your client may have had to spend hours sending you numerous emails with pictures of their texts attached so that they could comply with discovery. It would then be your job to piece those pictures together to make sure the whole conversation was produced without missing messages. This process is time consuming for everyone involved—at the very least that would include you, your client, and opposing counsel. Luckily, there is an easier way. While there’s no super-easy way to get your text history off your phone, there are some programs available that make the process less timeconsuming. In a profession where the billable hour is king and time equals money, anyone in the legal profession should appreciate an easier process. The things you need include the phone the messages are on, a computer, and a message export program. You can easily find these
KEITH PIKE is an associate at the Wagoner Law Firm in Little Rock. He completed his undergraduate work in computers at the University of Central Arkansas. Keith subsequently received a MBA from UCA and a JD from the UALR Bowen School of Law. Keith is a member of the American Bar Association, the Arkansas Bar Association, and the Arkansas Trial Lawyers Association. He is licensed to practice law in Washington, D.C., Arkansas state and federal courts, and the Eighth Circuit. In addition to being licensed to practice law, Keith has been programming computers for almost 20 years, making him one of the most tech-savvy attorneys in Arkansas. Keith is also a Certified Mediator and Real Estate Broker. Keith currently serves on the Board of Directors of the Hot Springs Documentary Film Institute. He and his wife, Bethany, who is also an attorney, live in Little Rock with their daughter.
programs using your favorite search engine. I like to use Google, but you can use Yahoo or Bing as well. Go to your preferred search engine and search for “export text messages.” There will be a variety of good programs that pop up in the search results. You will find that some programs work with multiple phone platforms, while other are made specifically for iOS, Android, or Windows. Once downloaded to your computer, these programs have the ability to extract text messages and display or print them in an easyto-read format similar to how they look on the phone’s screen. Note that this usually cannot be accomplished directly from the phone. Typically, the process works by requiring you to backup your phone to your computer. The export program will then take the backup file and parse out the text message data and compile it in a viewable format that can be printed, saved, or emailed. Although it sounds complicated, most programs come with detailed instructions that make the process quick, easy, and painless. Give it a try on your own phone so that you will be familiar with the process when you need to do it for a client.
PUBLISH YOUR BLOG IN ACE Do you currently have a blog or want to start one? You can repost or start a post on the ArkBar Community Exchange (ACE). Blog posts made on ACE can be viewed by all members of the association, and your added content would be extremely valuable to our members. Follow these steps to post: • Login at www.arkbar.com using your Supreme Court ID and password • Click the “Go to Your Member Community” • From the ACE site, use the dropdown menu on the blue navigation bar and select Blogs > Create New Blog • Title your blog, and copy/paste text from your original post into the content box • Before publishing your blog, Select “Authenticated” under “Who can read your blog entry?” • Click Publish
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PRO BONO
PRO BONO BY STEFAN MCBRIDE
Being a young lawyer is particularly difficult because everything is unfamiliar. You can’t rely on your intuition or experience, so each new question is a new research project— and a potential nervous breakdown. Even the seemingly mundane tasks can be roadblocks that have to carefully considered and reconsidered—and re-reconsidered. These challenges are most difficult for the young lawyer who has chosen not to join an established firm, whether that be a true solo practice or a venture with other new lawyers. (I say “chosen” because it is a volitional act and not an act of surrender.) Without the guidance of a seasoned attorney, a young lawyer can quickly find that he or she is up a creek. So what can be done? Is the new lawyer destined for inclusion in the closing section of the The Arkansas Lawyer? Certainly not— there are numerous resources for the new lawyer, one of which is this very publication. But I’d like to point out one of the more nonobvious options: signing up for a pro bono case with an Arkansas legal aid organization. This article isn’t about public service or ethical obligations, although those are important. Instead, I’m going to isolate three ways that pro bono service can offer a new lawyer
tangible, practical benefits to his or her law practice. 1. The Arkansas Pro Bono Portal. This is the most obvious resource, and one with which you’re probably familiar. Every lawyer that signs up with one of the Arkansas legal aid organizations is granted access to this online database, which includes hundreds of forms, manuals, fact sheets and even automated document assembly (you put in the data and a documents are generated). Westlaw it ain’t, but if you’ve read this far I doubt you have access to Westlaw, anyway. The pro bono portal is truly a boon to the new lawyer starting a practice. 2. Legal Aid Attorneys. The two Arkansas legal aid organizations maintain staff attorneys throughout the state, and they are available to help you with any questions you might have about your pro bono case. For instance, I recently called a legal aid attorney in an area of Arkansas in which I do not regularly practice. I had a question about a particular judge. Not only was the legal aid attorney able to give me very specific (potentially dispositive, actually) information on the judge, he walked me through my case from start to finish. This obviously helps me with my pro bono client, but that information will also be invaluable for future cases that are similar. Legal aid at-
STEFAN MCBRIDE is a family lawyer with Wilson & Haubert, PLLC, in North Little Rock. He first saw the need for pro bono work during a semester with the Arkansas Access to Justice Commission under the winsome leadership of Amy Johnson and Vince Morris. You can read his semi-weekly blog posts on semi-interesting topics at WHLawOffices.com.
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YLS In brief
www.arkbar.com
torneys try a lot of cases; it is unlikely that you will have a set of facts that they haven’t seen. Their firsthand knowledge is worth far more than anything you can read. 3. Pro Bono Clients. I practice in the area of family law, which means that my clients are normally in very difficult stages of life. They are stressed, and they often take that stress out on me. My first inclination was to think that a pro bono client would be worse; after all, you can’t really appreciate a service that you’re not paying for. I thought that pro bono clients would be more demanding because they’re not being billed and therefore don’t have any incentive to leave me alone. I was sorely mistaken. Each of my experiences with pro bono clients has been rewarding and—more to the point for this article— tangibly encouraging. They are incredibly thankful for your help, even when you make a mistake. Nothing can cut through a dreary day and enliven your spirit like an appreciative client. And that’s not just an emotional benefit; we are more productive and more efficient lawyers when we’re satisfied in our job. A pro bono client’s gratitude for your help can easily translate into more work and better work for your paying clients. For more information about these opportunities, go to www.arlegalservices.org/probono.
ARKANSAS TRAVELER
THE BEST BBQ YOU’VE PROBABLY NEVER TRIED BY CARL F. “TREY” COOPER, III AND MARY G. COOPER
Anyone who has driven the stretch of I-40 between Little Rock and Memphis, knows that to describe the drive as unpleasant is an understatement. If you are unlucky enough to make the drive when bright orange barrels lead vehicles through seemingly never ending construction, you know how downright unbearable the two and a half hour drive can be. Which is why, on a very dreary cold day in December, Mary and I decided to forgo the construction and traffic on I-40 in exchange for a more leisurely drive to Tunica, Mississippi, via US-70 to Hwy. 49 through Helena. Once on US-70 traveling east, I remembered that a friend recently raved about a local joint located on US-70 in DeValls Bluff, Arkansas—Craig’s BBQ. We are always up for BBQ, so we decided to stop for lunch and give Craig’s a try. Craig’s is not, by any stretch of the imagination, upscale, fancy, or chic. Established in 1947, Craig’s BBQ is what you would call a dive—the good kind, that is. We pulled up at the dawn of the lunching hour (11:00 a.m.) to a tantalizing aroma billowing out of an adjacent smoke-house—the telltale sign of nearby barbecue. Inside, we first noticed the dining area of Craig’s is shockingly small with the dining area completely walled off from the kitchen except for a glass window which offers patrons a glimpse of the no-frills barbecue magic going on behind scenes. Of the handful of tables, only two or three were available. We sat at one of the few empty tables and began to peruse the menu hanging on the back wall. The lunch options were simple and included only classic barbecue staples: sliced pork, beef brisket, chicken, ribs, burgers, and polish sausage. Side options include beans, chips, and slaw. Mild, medium, or hot BBQ sauce can be purchased by bottle, gallon, or case. For groups, the pork and beef can be ordered by the pound. Mary ordered beef brisket on a plate and I ordered the sliced pork sandwich. We both
CRAIG’S BBQ, DEVALLS BLUFF opted for the hot BBQ sauce. Our food arrived a few minutes later steaming hot. As a disclaimer, Mary and I are not amateurs when it comes to spicy food; we love it. With that being said, be prepared for a decent, but not overwhelming, amount of heat if you opt for the hot BBQ sauce. My sandwich came wrapped in wax paper with bag of potato chips. The hamburger bun was layered with juicy tender sliced pork. There was not what I would describe as a heaping amount of pork on the sandwich but it was a sufficient portion for lunch. The sauce was a red-orange color, thin in consistency, and perfectly complemented the pork’s smoky flavor. Mary’s beef brisket came exactly as described—thinly sliced (also a somewhat light portion) on a Styrofoam plate and drenched in the wonderfully tangy spicy sauce (Mary opted for no sides). The beef was tender and easily eaten with the plastic fork provided. We both agreed that the BBQ at Craig’s was some of the best we have tried and that the somewhat light portions were only a reflection of the extremely reasonable prices. We each had Dr. Pepper (Craig’s is a “Pepsi” establishment) and the check for both of us was well-under $20. We happened to be visiting during duck hunting season (Mary noted that the mallard wall paneling was in a class of décor of its own), and we enjoyed listening as hunters told stories of that morning’s hunt. We
noticed a significant number of patrons were only stopping in to pick up to go orders, which makes sense considering the size of the place. In all, Craig’s was delicious. We have decided to kiss the construction and traffic on I-40 goodbye forever, and plan on making Craig’s BBQ a regular stop along the relaxing detour through east Arkansas.
CARL F. “TREY” COOPER, III, is an associate at Dover Dixon Horne PLLC, in Little Rock, with a practice focused on general and commercial litigation. MARY G. COOPER is an associate at Cross, Gunter, Witherspoon, & Galchus, P.C. in Little Rock and practices labor and employment law and T. COOPER civil and business litigation. Mary and Trey have practiced law since 2007 and have been married since 2010. They have one son, Cross. M. COOPER 15
TASTY TIPS SWEET BABY! BAKED CHICKEN PREP TIME: 10 minutes COOK TIME: 45 min – 1 hour INGREDIENTS 1 to 2 pound of chicken wings ½ cup honey ¼ cup teriyaki sauce 1 tablespoon olive oil 1 tablespoon ketchup ¼ garlic powder or ½ clove of minced garlic Dash of salt and pepper
TASTY TIPS EDITOR RASHAUNA NORMENT is a patent attorney with Norment Law Firm.
NORMENT
If you have a recipe to share, please contact Rashauna@NormentLawFirm. com or 501-319-7875.
DIRECTIONS • Pre-heat oven to 375ºF. • Wash chicken wings, then cut into flat and drummette pieces (if desired). Remove wing tips. Place chicken into a 9x13 baking dish. • Stir together honey, teriyaki sauce, oil, ketchup, garlic, salt, and pepper into a medium bowl until mixed. • Pour sauce mixture over chicken in the baking dish, coating each piece thoroughly. • Cover dish and bake for 20 minutes. After the first 20 minutes, spoon some of the sauce in the baking dish over the chicken, again coating each piece thoroughly. Continue baking uncovered for 30-40 more minutes, or until chicken reaches desired tenderness and the sauce mixture has caramelized. This caramelized, Sweet Baby! baked chicken dish can be served with rice, pasta, or potatoes, and with steamed vegetables. Finger-licking good!
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YLS In brief
www.arkbar.com
Young Lawyers Section Report
The Young Lawyers Section is continuing this year's theme of fulfilling the ideal that those who have been given much have an obligation to do more and give more in return. Many have stepped up to volunteer their time and talent to help their fellow Arkansans. However, more help is needed. According to the 2010 Census, 550,000 Arkansans—19% of the state's population— meet the threshold to receive legal aid. Each year, Arkansas's legal aid programs receive approximately 30,000 calls for help. The Arkansas Access to Justice Commission, Legal Aid of Arkansas and the Center for Arkansas Legal Services do amazing work to meet these needs. Unfortunately, though, half of all qualified families are turned away due to lack of resources. In addition to the individuals seeking legal aid, according to the National Center for Charitable Statistics, there are approximately 3,000 active charitable nonprofits in Arkansas. Many of these nonprofits do not have the resources to pay for legal support. Furthermore, there are many other unmet needs in Arkansas such as resources to assist disaster victims and legislation to help better protect vulnerable populations such as children and young adults. The Young Lawyers Section is working on numerous projects to meet these needs and encourage volunteerism through the Arkansas Bar Association and Arkansas's legal aid programs. As Chair of the Young Lawyers Section, I am taking this opportunity to challenge every member of the Arkansas Bar Association to find a way to volunteer and give back. Of course, the Young Lawyers Section would love to have your help with one of our numerous projects (regardless of your age), but, if you cannot do that, then please
find some other way to get involved and help those in need, such as volunteering to assist one of the legal aid programs. Opportunities for service through the Young Lawyers Section include: 1. Assisting the Disaster Relief Committee to help with a handbook being developed to provide answers to lawyers assisting disaster victims. 2. Volunteering to help with estate planning through the new Build A Will program. The Build A Will program is a partnership with Habitat for Humanity of Pulaski County, Arkansas Access to Justice and the Center for Arkansas Legal Services to provide estate planning services to the people that Habitat for Humanity serves. 3. Helping to update one of the Young Lawyers Section's handbooks, such as 18 and Life to Go, which is a legal reference manual for young adults. 4. Contributing to the efforts of the Citizenship Education Committee, which is developing possible legislation to improve the lives and legal protections of young adults. 5. Participating in one of the Young Lawyers Section’s pro bono outreach programs. Several events are currently being planned, with a focus on the Wills For Heroes program for emergency responders. This is just a partial list of the programs the Young Lawyers Section has available. There are also other opportunities for involvement, including: 1. Assisting the Minority Outreach Committee in its initiative to encourage people of diverse backgrounds to enter, and excel in, the legal profession.
by J. Cliff McKinney
2. Providing articles for the Young Lawyers Section award-winning newsletter, InBrief. There is a particular need for volunteers to help write articles for a new segment called "Hot Topics." Hot Topics is a collection of articles from practitioners in many legal
We have been given much and must give back much in return.
fields aimed at keeping readers informed about the latest developments in the law. 3. Participating in one of the social events. The Young Lawyers Section hosts several social events every year. Make a point to attend at least one event to learn more about ways to get involved. 4. Helping with the mentoring videos series. The Young Lawyers Section is developing a series of videos aimed at giving pointers to young lawyers. This is an especially good opportunity for the not-so-young lawyers to get involved and help. Every attorney has a responsibility to do something to give back to society. We have been given much and must give back much in return. We all have a responsibility to give part of our time and talent to help others. The Young Lawyers Section is one of the best ways to find a way to give back and help others. Please find a way to join with us and help make a difference through the Young Lawyers Section. ■
Originally published in the Winter 2014 issue of The Arkansas Lawyer magazine. 17