President’s Message b y J o n a t h a n H a f e n

The ZealousAdvocate

Litigation Section Membership:Investing in Your Future

Reporting on a survey he conducted, Dr.Arthur C. Brooks found that membersof professional associations generallymake more money (as much as 52%more on average) and are happier withtheir careers than those who do not joinsuch associations.1 At just under 2,000

members, the Utah State Bar’s Litigation Section is one ofUtah’s largest professional associations. While member-ship in the Utah State Bar is mandatory, joining theLitigation Section is voluntary. We are very glad you havechosen to be part of our organization.

Dr. Brooks also found that professionals look for the fol-lowing from their association membership: “career net-works and advantages, ideas and education, portable fringebenefits, community, and opportunities to serve.” Webelieve we have done well in all of those areas. However,to become a better association for you, we are implement-ing a number of new programs for Section members thisyear and expanding successful existing programs. Ourgoal is simple—we want you to consider your annualSection dues one of the best investments you make.

The newsletter you are reading right now is the first edi-tion of “The Zealous Advocate,” a new publication wehope will meaningfully enhance your practice with “ideasand education” and “career advantages.” The ZealousAdvocate will come out quarterly. As you can see, it con-tains “Opinion Watch,” which summarizes key recent rul-ings in Utah. Simply reviewing this part of the Newsletter

will keep you up to date on where the law is headed inUtah. We will also provide judicial profiles, which willcontain background information on Judges as well as prac-tice pointers. In this edition, the Newsletter profiles JudgeHansen. Over time, we will build a library of these judi-cial profiles, which will be available on our website. Alongwith our Section’s Bench Books, which you can access atlitigation.utahbar.org/benchbooks.html, these judicial pro-files will give our Section Members the inside track onhow to best represent clients before our Judges. We willalso present practitioner profiles, through which you willget to know some of our Section members and hopefullypick up some ideas from their practices that will help youin yours. We also intend to use our newsletter to betterpromote our upcoming events, so that you will be able totake advantage of the high quality programs your Sectionprovides throughout the year.

Worthwhile and interesting CLE programs have long beena strength of the Litigation Section and are part of the“ideas and education” Dr. Brooks references. Our CLEevents also present fantastic networking opportunities.

Our Section presents the “Litigation Track” at our threemajor Bar conventions—Mid-year, the Annual Meeting,and Fall Forum. Hundreds of our Section members alsoattend our highly successful series of quarterly CLE lunch-eons, which include an hour of high quality CLE, ofteninvolving Judges, and a free lunch. Because lunches arenot always the best time for CLE for all of our members,we tried an experiment this summer with a “Rise andShine” CLE, where we served breakfast along with a pres-entation on “5 Top Tips from 5 Top Practitioners.” Basedon attendance and feedback, we now will put on those

4th Quarter 2011

1

A Newsletter of the Litigation Section of the Utah State Bar

ByJonathanHafen

Rise and Shine CLEs once a quarter, with the next onecoming soon.

We have other great CLE programs on the horizon. OnDecember 12, we will host a quarterly luncheon oatnoon at the Bar Offices on “A judicial Perspective on theProportionality Requirement of Rule 26.” Panelistsinclude Judge Derek Pullan of the Fourth District, JudgeDeno Himonas of the Third District, and Judge DavidConnors of the Second District. In April 2012, we willput on a full day Trial Skills Academy, where Utah Judgesand leading practitioners will provide training on allaspects of trial. This presentation is intended to be valu-able for both the brand new and the experienced litiga-tor. On May 3-5, 2012, our Section is co-sponsoringwith the Federal Bar Association theannual Southern Utah Federal LawSymposium. This year’s keynote speakerwill be General William Suter, Clerk ofthe United States Supreme Court. I haveheard him speak in the past. He is veryentertaining and very informative.Following his keynote speech, we willhave a U.S. Supreme Court swearing inceremony, which is something you willnot want to miss.

We will also continue our popular “Golfand CLE” series, with events throughoutthe State—Cache County, Utah County,and Washington County, and plan to addan event in Salt Lake County. In prioryears we occasionally have had an eveningreception where Section members meet and mingle withThird District Judges. In 2012, we will repeat that eventin the Third District and add receptions in both theSecond and Fourth Districts. Watch for more informa-tion on these opportunities.

Far more than simply an opportunity to pick up someCLE credits, all of these events are intended to provideyou with opportunities to connect with fellow Sectionmembers and with our Judiciary. We have a wonderfulsense of community among the litigators and Judges inUtah. It is a great place to practice law—a large enoughmarket that we have a wide variety of cases, but smallenough that you get to know those litigators who prac-tice in your areas (of the law and of the State). As we

continue to build that sense of community as the num-ber of Utah lawyers inevitably grows, we hope to main-tain a sense of pride in how we practice law here. Thisincludes excellence in preparation, professionalism, andpresentation.

I welcome any ideas you may have on how to improveour Section or any feedback on our programming andthis newsletter. If you are looking for service opportuni-ties, we offer those as well. Feel free to email me atjhafen@parrbrown.com.

We hope that as a result of your participation in ourassociation, you make more money and you enjoy yourpractice more than you would without us. That certainlywould be an investment well made.

1Arthur C. Brooks, Ph.D., “Engaging the NextGeneration of Association Members,” TheMaxwell School of Citizenship and PublicAffairs, Syracuse University.

Jonathan Hafen is an attorney at the firm ofParr Brown Gee and Loveless.

2

(continued)

“Our goal is simple—wewant you to

consider yourannual Sectiondues one of the

best investmentsyou make.”

President’s Message

Judge Royal I. Hansen, PublicServant

It is obvious Judge Royal Hansen,Presiding Judge of the Third DistrictCourt, thrives on public service.Serving others is a hallmark of his pri-vate and public legal career and life.

The Road to the Bench

Judge Hansen graduated from East High School in SaltLake City, where he excelled in whatever sport was inseason, including football, basketball and track. Heearned his B.A. and J.D. degrees from the University ofUtah, completing his law degree in 1975. After lawschool, he clerked for Judge Frank Q. Nebeker, a Utahnative, on the District of Columbia Courtof Appeals.

Judge Hansen joined the Salt Lake firm ofMoyle & Draper in 1976, where he spentthe next 27 years. His practice there wasmostly civil litigation, including insurancedefense, products liability, and plaintiff ’spersonal injury. One of his most memo-rable cases came early in his career as oneof several lawyers who represented thefamilies of 91 miners who tragicallyburned or suffocated in the Sunshine silvermine fire near Kellogg, Idaho, in 1972.Judge Hansen’s genuine compassion forthe families he served in that case is stillevident today.

Governor Michael Leavitt appointed Judge Hansen tothe bench in 2003. He began as a the lone judge in theSandy department of the Third District Court, moved toWest Jordan when the new courthouse opened there, andlanded in the Salt Lake City department in 2009. Hebecame the Presiding Judge of all Third District Courtoperations in 2011. Most, but not all, of his judicialexperience has been with criminal cases.

Protégé and Mentor

Judge Hansen is quick to acknowledge many of the men-tors who have shaped his career and life. He is particu-larly fond of Brent Wilcox, who took Judge Hansenunder his wing when he joined Moyle & Draper. In themine accident case, Judge Hansen found he was oftenoutnumbered in depositions and at hearings, sometimesbeing the lone plaintiffs’ attorney amidst a dozen defenseand Justice Department attorneys. Brent taught JudgeHansen that hard work, diligence, and careful attentionto detail are great equalizers in the law. Brent also taughtby example how to treat opposing counsel well, especiallyin rigorous adversarial situations. Judge Hansen tooknote that Brent’s professionalism and respect for otherswas usually met with professionalism and respect in

return.

Mentoring has always been an importantpart of Judge Hansen’s legal service, evenfrom the bench. As Presiding Judge, hehas assumed an important role in newjudge training and mentoring, a job hetakes very seriously. He notes the retire-ment in 2011 of four seasoned judges withover 70 collective years of judicial experi-ence. His commitment to mentoringyounger judges will serve all of us well.

Judge Hansen calls on all senior lawyers toact as mentors. “The new lawyer profile,”he says, “is a lawyer with a laptop atStarbucks.” For the good of these lawyers

and for the profession, Judge Hansen bluntly states,“Senior lawyers have the responsibility to mentor.”

Judicial and Legal Philosophy

“Most people who appear in court will only be thereonce in their entire life, and their experience in court issomething they will remember and talk about for the restof their lives.” Judge Hansen therefore believes it isimperative for a judge to be an excellent listener, to treatall parties in civil and criminal cases with complete digni-ty and respect, and to make sure every person is afforded

3

Judge Royal I. HansenJudicial Profile

ByKeith Call

Judge Royal Hansen

a genuine “day in court.” He reminds us of theobvious—that it is critical for a judge to “do justice, fol-low the law, and work hard to figure out what the lawis.”

He is also quick to point out that betterlawyers make him a better judge. Themost effective lawyers he has seen workwith character and candor. When JudgeHansen took Justice Ronald Nehring’sseat on the bench, Justice Nehring toldJudge Hansen, in essence, “Your reputa-tion as an attorney is your most impor-tant asset.” Judge Hansen elaborates,“Every time you appear in court or filepleadings, you are either adding to or sub-tracting from that reputation. Your repu-tation is more important than writingskills, oral skills, negotiation abilities,rainmaking, or any other skill.” Headmires the lawyer who is candid aboutweaknesses in facts or law.

Commitment to the Public

Judge Hansen advises all lawyers, especially younglawyers, to be engaged in public service. Some of hismost rewarding memories of private practice arose fromoccasional phone calls from Federal Court Judgesappointing him to serve as counsel on post-convictionproceedings and from other pro bono opportunities.

These opportunities allowed him to know first-hand thatthe legal “profession” is about more than just money.“Lawyers have unique skills, and therefore a unique abili-ty to impact the community. No lawyer should abdicate

to others his responsibility to give service.”There are many ways to get involvedthrough pro bono service, Bar commit-tees, neighborhood and school associa-tions, boards, political office, and so forth.

Some of Judge Hansen’s most cherishedpersonal relationships have come throughsuch service. He has served on more Barcommittees than you would want to readabout in this article! He is the foundingjudge of the South Valley Felony DrugCourt, an experience that gave him newperspectives on life and people. And heclearly views his current judicial positionas far more than just a job. For him, it is away to contribute to the community, stateand nation, and to do his part to make

the world a better place.

Keith Call is an attorney at the firm of Snow, Christensen &Martineau.

4

(continued)

“Judge Hansenadvises alllawyers,

especially younglawyers, to be

engaged in public service.”

Judicial Profile

5

The Utah Supreme Court has approveda number of substantial amendments tothe Utah Rules of Civil Procedure.These amendments are effective forcases filed on or after November 1,2011. Joe Stultz, a member of theLitigation Section ExecutiveCommittee, sat down with JamesBlanch, who served on the Supreme

Court Advisory Committee on the Utah Rules of CivilProcedure while the new rules were being considered andpassed, to get his thoughts on the amendments. Jameshas practiced law for 18 years in the litigation depart-ment of Parsons Behle & Latimer and has served on theadvisory committee for 9 years. A useful link to thematerials explaining the new rules canbe found here.

Q: What was the main impetusbehind the 2011 amendments to theUtah Rules of Civil Procedure?

A: About two years ago, one of thejudges on the Supreme Court AdvisoryCommittee on the Utah Rules of CivilProcedure (a committee composed oflawyers, judges, and court administra-tive personnel), observed that there weremany small cases where the costs of liti-gation often made it economicallyunfeasible to bring a case and that dis-covery was a primary driver for theexcessive costs. The problem was that the amount ofmoney it takes to bring a case to trial essentially preclud-ed a lot of people with legitimate disputes from havingaccess to the judicial system. The Committee’s sense wasthat the Utah State Legislature was also concerned aboutthese access-to-justice issues and that it was wise to lookat potentially making changes to the Utah Rules of CivilProcedure to ensure that people with small dollar valuecases can bring those cases to trial without having thecosts of seeking justice overwhelm the value of the matterin controversy.

Q: Can you give me a hypothetical example of thecases you are talking about?

A: I think that a lot of people who have practiced in liti-gation for a long time have had multiple experiences

where you have a client that comes to your office and hasa legitimate dispute. It might be a dispute over a realestate commission or a small contract of about $35,000to $40,000. You look at the case and you tell the clientshe has a good claim and that she would probably prevailat trial, but that it would cost $50,000 or $60,000 ormore to get justice, largely because of the costs of discov-ery. The hope of the Committee is that the new ruleswill allow the person with the $35,000 claim to get jus-tice in the court system without the litigation processcosting more than the potential recovery.

Q: What do you think is the single biggest amendmentthat will reduce the costs of litigating the $35,000claim?

A: I think that the change to Rule 26 of theUtah Rules of Civil Procedure that establish-es three tiers for standard discovery based onthe amount of damages in controversy willhave the biggest impact. Someone whopleads damages of $50,000 or less, or even$50,000 to $300,000, will trigger significantlimitations to discovery under the standarddiscovery provisions, including the amountof time permitted for discovery. Even claimsin excess of $300,000 will involve presump-tive limitations on the time and amount ofdiscovery relative to what is available now.

Q: Are there any other states using thissort of a system?

A: There have been different states that have experi-mented with concepts similar to some of the changes ouramendments incorporate. There have been states thathave tried to have dual-track systems on a pilot basis thatwere voluntary, and the experience of some of the statesthat went down that road was that people would opt outof the program and they never really got a good sense ofwhether or not the ideas they had incorporated wouldwork. No state thus far has taken the comprehensiveapproach to address these access-to-justice problems thatUtah has. Frankly, although the principle of proportion-ality as a limitation on discovery is not new, the overallapproach in the 2011 amendments is new; we’re on thecutting edge. If it works as the Committee hopes, Ianticipate it will be a blueprint that other states will fol-low in the future.

Interview with James Blanch

ByJoseph M. Stultz

Amendments to the Utah Rules of Civil Procedure

James Blanch

6

Q: How will the amendments change the way that youapproach cases?

A: I think that a lot of the work in cases will now befront-loaded on both the plaintiff and defense side. It isgoing to be necessary to go out and gather as muchinformation as you reasonably can at the outset of a case,such as figuring out who your witnesses are going to be,interviewing them to find out what their testimony isgoing to be, and determining what documents are goingto be relevant. Concerning the documents, it is incum-bent under the new rules to assemble your relevant docu-ments at the outset and get copies ready to furnish to theother side. I think for a plaintiff it will be advisable toget all of that information together before you even fileyour complaint, so that you’re not caughtunable to comply with your disclosureobligation a few weeks later. For defen-dants, when they get a complaint theywill need to jump on their investigationright away. It will be more than merelyan investigation that is sufficient to allowyou to put an answer together. It will bethe same kind of investigation I justdescribed with respect to a plaintiff whereyou pull together information about wit-nesses and the expected testimony, docu-ments, and trial exhibits and really assem-ble your case as much as possible upfront. So there will be some early costsassociated with preparing a case that pre-viously would have been pushed later intothe discovery processes, but the hope isthat, now that we have very limited standard discovery,the parties will have exchanged the bulk of the informa-tion that they’ll be using at trial in the automatic disclo-sure process. Then discovery will be available to fill inthe gaps, and perhaps uncover relevant information theother side might have. Starting cases will involve a big-ger effort on the front end than it did before.

Q: What do you think are the biggest potential trapsfor the unwary?

A: There are many deadlines that kick in automaticallyunder the new rules. The new rules no longer providefor Rule 26(f ) discovery and scheduling conferences.Instead there are built-in deadlines that trigger automati-

cally that attorneys will need to understand and follow.One example is that the parties will need to identify theirexperts with respect to issues on which they bear the bur-den of proof, and provide a fair amount of informationabout those experts and their opinions, within seven daysafter the close of standard discovery. After this initialexpert identification is made, the other side has sevendays to elect either a deposition or an expert report, butnot both. If no election is made, both the depositionand report are forfeited. So parties will want to take careto elect a deposition or report within that seven-day win-dow. Another potential trap for the unwary is that therules provide that parties can either stipulate or move foradditional, what is called extraordinary, discovery inexcess of the standard discovery, but that the stipulation

or motion must be between the time theparties have completed standard discoveryand the expiration of the time period forstandard discovery. So there is this littlewindow of time within which peopleshould make those stipulations or motionsfor extraordinary discovery.

Q: What is your favorite thing aboutthe new rules?

A: My favorite thing about the new rulesis the idea of a first tier case, a case that’s$50,000 or less, that requires some discov-ery, but is not worth the kind of discoverywarranted for a bigger case. I like the ideaof being able to file a $25,000 to $45,000claim for a client and have confidence thatif I approach the case in an intelligent way

and I pull the information together up front, there isgoing to be limited discovery and there will be a trialquickly. The parties may not know everything there is toknow about the case, but that is okay, because it is a caseinvolving less than $50,000, and they will know morethan they would know in a small claims court wherethere is no discovery. The criminal law system functionswithout allowing the parties exhaustive pretrial discovery,and there is no reason the civil system can’t do so as well,particularly in smaller cases. I think the idea of allowingparties to receive justice in an effective, economically effi-cient way, even when their claims are modest, is the mostexciting thing about the new rules.

(continued)Amendments to the Utah Rules of Civil Procedure

“Starting caseswill involve a

bigger effort onthe front endthan it did

before.”

7

Q: What do you see as the biggest challenges for Judgeswith the new Rules?

A: I think that there will be some motion practice, atleast at first, where the judges and the lawyers will needto understand what the meaning of this new term “pro-portionality” is. I think it is reasonable to anticipate thatjudges will see a flurry of motions after these new rulestake effect where people have exhausted standard discov-ery, wish to pursue additional, or extraordinary discovery,and have to demonstrate that the additional discoverythey are seeking is proportional. The rules themselvesand the accompanying advisory committee notes providesignificant detail about what proportionality means, butthe judges will need to speak to this new proportionalityprinciple, and I suspect that this may be achallenge for the bench as well as forlawyers.

Q: Do you see the courts also movingtowards streamlining motion practiceon discovery disputes?

A: I have heard that some of the judgesare considering developing procedures tostreamline consideration of discovery dis-putes. This will be important consideringthat the time frames built into the rulesfor standard discovery are relatively short,and the rules provide that discoverymotions do not toll these deadlines.Other judges I have appeared before inother jurisdictions have developed proce-dures where a party with a discovery dis-pute can submit a short letter to the court describing thedispute, and the other party will submit a short respon-sive letter. The judge will then get the parties on thephone and resolve it quickly. I understand that some ofthe judges in Utah are thinking about a similar approachto help resolve these discovery disputes quickly, and Ithink some new procedures like this could be useful inspeeding along the resolution of discovery disputes so theparties can meet the deadlines under the new rules.

Q: What should attorneys be telling their regularclients about the new rules?

A: I think attorneys who do work for clients where theyfile similar types of claims routinely, such as attorneyswho represent banks, perhaps, should give their clients a

lesson about what these new rules are going to require upfront. For example, there will be more work required ofa standard foreclosure action or collection action thanwas required in the past. I also think lawyers should lettheir clients know that they should bring to the lawyers’attention smaller claims that they may have ignored inthe past because of the high cost of litigation. Again,under the new rules, it will be more economical to bringa $35,000-$40,000 case, and it might make more senseto bring it to court now rather than letting it go.

Q: Is there anything else that you would like to addabout the new rules?

A: Well, I hope lawyers and judges approach these newrules with a sense of optimism and not fear. I think that

there is a tremendous upside if the Ruleswork the way that they are intended. Ithink there is always fear when somethingnew happens, that people worry it willmake their lives difficult or that things arenot going to work well. But there is greatpotential for these rules to accomplish alot of good. The advisory committee isalways open to new ideas expressed byjudges and lawyers and others concerningways to improve the rules, so if there aresome unintended consequences as a resultof these amendments that we can fixthrough subsequent amendments, theadvisory committee is very interested inhearing about that. Through that processI think that there is a tremendous poten-tial for Utah to be on the cutting edge of

ensuring access to justice for people from one end of thelitigation spectrum to the other.

Joseph Stultz is an attorney at the firm of Parsons Behle &Latimer.

“I hope lawyersand judges

approach thesenew rules with

a sense of optimism and

not fear.”

(continued)Amendments to the Utah Rules of Civil Procedure

8

As a service to ourmembers, theLitigation Sectionhas recentlyformed OpinionWatch to flagrecent opinions ofthe Utah SupremeCourt and Court

of Appeals that will likely be of interest to litigators, andsummarize their key points soon after they are issued.

Of particular note, the Utah appellate courts have recent-ly handed down decisions concerning plain error onappeal, condemnation proceedings and Utah Code Ann.§ 78B-6-501, guarantees, claim preclusion, judgmentliens held by lawyers, intervention and standing to join,Rules 54(b) and 60(b), the securitization of mortgagesand Utah Code Ann. § 57-1-35, the finality of minuteentries for purposes of appeal, the expansion of Rule15(b) beyond its explicit reference to issues actually tried,and the interpretation of the Utah Procurement Code.We invite you to visit Opinion Watch on the LitigationSection website here to review and take advantage ofthese summaries.

By way of example, Opinion Watch highlights two of theUtah Supreme Court’s recent opinions, which are sum-marized below (and also available on the LitigationSection website):

Pyper v. Bond, 2011 UT 45, July 29, 2011

Pyper involved a law firm that filed a lien on its formerclient’s house after the client failed to pay his bill in theamount of $10,577 and the firm secured a money judg-ment. At the time the lien was filed the house had anestimated value of about $125,000. The lender fore-closed and the only bidder at auction was the client’s for-mer attorney, who bought the house for $329. The for-mer client petitioned to set aside the sheriff ’s sale on thegrounds that the price was inadequate and that he hadbeen treated unfairly because he had attempted duringthe redemption period to pay the overdue bill and theattorney had failed to respond to numerous phone callsand messages. The district court made findings that theclient had in fact made multiple calls; that he told an

employee of the firm that he wanted to redeem his prop-erty; that he asked for a judgment lien payoff amount;that he had been told an attorney would return his call;and that no one ever did.

All five Justices agreed on the controlling standard ofproof—when, as here, the price is grossly inadequate, thesale may be set aside on a showing of “slight circum-stances of unfairness.” Three justices held that that stan-dard, which reflects application of a “sliding scale” to thepertinent factors, was met on this record. They foundthat the former client “may have reasonably believed thathe could resolve the dispute with the law firm and reac-quire his property through negotiation, and that it wastherefore unnecessary for him to utilize the redemptionprocess.” Id. ¶ 26. Two justices dissented from that por-tion of the majority’s opinion on the grounds that whenthe lawyer failed to respond, the former client shouldhave realized it was essential for him to participate in theredemption process himself.

One aspect of the majority’s analysis bears special men-tion for litigators and for all lawyers with judgment liens,because it addresses what appears to be a fundamental,underlying concern. The Court pointed out that even“slight circumstances of unfairness in the conduct of theparty benefited by the sale [may suffice] to raise the pre-sumption of fraud.” Id. ¶ 20 (emphasis in original). Andthe Court instructed that “unless the presumption isrebutted, a court may justifiably find [on facts such asthese] a compelling circumstance that justifies settingaside a sheriff ’s sale.” Id.

Full opinion available at:

http://www.utcourts.gov/opinions/supopin/Pyper5072911.pdf

http://scholar.google.com/scholar_case?q=pyper+bond&hl=en&as_sdt=4,45&as_ylo=2011&as_yhi=2011&case=15229837351191944648&scilh=0

Utah Dep’t of Transp. v. Admiral Beverage Corp.,2011 UT 62, October 18, 2011

In Admiral Beverage, the Utah Supreme Court overruleda prior decision concerning the admissibility of fair mar-ket value evidence in takings cases, and held that Admiral

Opinion Watch

ByHeather Sneddon

ByRick Kaplan

9

had the right to recover from UDOT the decrease in thefair market value of its remaining property (i.e., severancedamages) resulting from the state’s condemnation.

UDOT condemned real property owned by Admiral aspart of the reconstruction of I-15. Because it was enti-tled to compensation from the state for the taking of itsproperty, Admiral sought to introduce evidence in thedistrict court of all factors affecting the market value ofits remaining property. UDOT sought to exclude all evi-dence of severance damages caused by the loss of visibili-ty from the freeway into the non-condemned portion ofAdmiral’s property. Id. ¶ 6. Siding with UDOT, the dis-trict court excluded all evidence of severance damagesbased upon the loss of view from Admiral’s remainingproperty. Id. The Court of Appeals affirmed on inter-locutory appeal, holding that because Admiral’s propertydid not directly abut I-15, but instead abutted 500 West,the abutment rule limited Admiral’s compensable right ofview to 500 West. The appellate court specifically notedthat the Supreme Court’s decision in Ivers v. UtahDepartment of Transportation, 2007 UT 19, 154 P.3d802, had not eliminated the abutment rule. Id. ¶ 7.Admiral petitioned for a writ of certiorari, which theSupreme Court granted. Id. ¶ 8.

Revisiting its decision in Ivers, the Court explained thatthe plaintiff in that case sought severance damages result-ing from the loss of visibility of its restaurant from thehighway and the loss of view from the property when aportion of it was condemned as part of UDOT’s widen-ing and elevation of U.S. Highway 89. The trial courtprecluded the plaintiff from presenting evidence of dam-ages resulting from the loss of visibility and view, and theCourt of Appeals affirmed. On certiorari review, theSupreme Court affirmed, holding that the plaintiff “wasnot entitled to damages for loss of visibility because‘landowners do not have a protected interest in the visi-bility of their property.’” Id. ¶ 11.

In this case, Admiral urged the Supreme Court to over-rule the foregoing part of Ivers that prevents a landownerfrom recovering damages for loss of visibility. Id. ¶ 13.Upon reviewing Ivers, the Court concluded that therequirements for overturning Ivers on that ground were

satisfied. Analyzing the Utah Constitution, applicablestatutes and Utah’s eminent domain case law, the Courtheld that Ivers was wrongly decided: “Indeed, until Ivers,we had never held that a landowner who has had a por-tion of his property physically taken may recover sever-ance compensation only for damages to ‘recognized prop-erty rights.’ To the contrary, our measure of severancedamages has always been the diminution in market valueof the remainder property. See infra ¶ 30 n.4. And inassessing fair market value in the context of severancedamages we have always allowed evidence of all factorsthat affect market value. See id. Against this long line ofprecedent, Ivers is revealed for what it is—an aberrationthat was wrongly decided.” Id. ¶ 17. The Court furtherconcluded that more good than harm would result fromoverruling Ivers. Id. ¶ 18.

Accordingly, the Supreme Court in Admiral Beverage heldthat when a landowner suffers the physical taking of aportion of his land, “he is entitled to severance damagesamounting to the full loss of market value in his remain-ing property caused by the taking.” Id. ¶ 19. When thelandowner suffers damages not connected to a physicaltaking, however, the Court affirmed its prior rule that thelandowner may recover only for “damage to protectableproperty rights.” Id.

For the Court’s analysis of the Utah Constitution,statutes and relevant case law, please see the full opinionby clicking below.

Full opinion available at:

http://www.utcourts.gov/opinions/supopin/AdmiralBev101811.pdf

http://scholar.google.com/scholar_case?q=%22admiral+beverage%22&hl=en&as_sdt=2,45&as_ylo=2011&case=14497098915797197484&scilh=0

Contributing to Opinion Watch are Richard Kaplan andHeather Sneddon, as well as other lawyers at Anderson &Karrenberg.

(continued)Opinion Watch

10

The College of Law continues to growas it welcomed the new 1L class as well

as many transfer students. The new 2014 class consists of114 students and with the transfer students brings thetotal enrollment of the law school to 398 students.

The Student Litigation Society, a student organization,was founded this year. The purpose of the Society is toorganize, network, and educate students interested in liti-gation. The Society will help students connect to helpfulresources and practicing litigation attorneys through theUtah State Bar Litigation Section. However, the mainpurpose of the society is to organize and operate anannual trial advocacy competition at the College of Lawthat will provide students an opportunity to practicetheir skills and get feedback from practic-ing attorneys and judges.

Professor Michael Teter joined the facultyas an associate professor of law. Prior tojoining, he was a visiting professor of pol-itics at Pomona College and a teachingfellow in the Federal Legislation &Administrative Clinic at GeorgetownLaw. Professor Teter received his B.A. inPolitics from Pomona College and hisJ.D. from Yale Law School. After lawschool, Professor Teter worked as a union-side labor lawyer in Los Angeles beforejoining the presidential campaign of JohnKerry in 2003. He worked in Iowa,Washington State, and California, beforeserving as the Kerry-Edwards WisconsinState Field Director. He also directed there-election campaign of Senator Herb Kohl before goingto work as a litigation associate at Perkins Coie in Seattle,Washington.

On October 2, 2011, our own Dean Hiram Chodoshreceived the 2011 Gandhi Peace Award, which is givenannually by the Gandhi Alliance for Peace. GandhiAlliance board member Allan Smart praised DeanChodosh for his long-standing commitment and serviceto the cause of world peace, especially in his leadership of

the College of Law’s two-year efforts providing legal assis-tance to the government of Iraq in 2008 to 2010, for hisrole in helping to create and promote court-annexedmediation in India beginning in 1995 and continuing asa Senior Fulbright Fellow in India in 2003, plus theongoing collaboration of the College of Law with Indianlaw schools and Indian lawyer-mediators in New Delhi,Ahmedabad, Chennai and elsewhere in that country. Healso recognized Dean Chodosh as one of America’s lead-ing legal scholars. Dean Chodosh developed a compara-tive approach to the study of the rule of law, conflict res-olution, and international human rights.

The College of Law hosted the Autism Law Summit OnOctober 20-21. One hundred participants from 31 dif-

ferent states gathered at the College ofLaw for the 6th Annual Autism LawSummit. Sponsored by Autism Speaks,the nation’s largest autism science andadvocacy organization, this year’s summitwas co-sponsored by the Utah AutismCoalition and the University of Utah S.J.Quinney College of Law.

For more information and news about theCollege of Law please visit:http://today.law.utah.edu

Nicholas Caine is the University of Utahstudent representative on the LitigationSection Executive Committee.

What's New at the S.J. Quinney College of Law?Campus Notes

“The StudentLitigationSociety, a student

organization,was founded

this year.”

ByNicholas Caine

11

When the Class of 2014 entered the J.Reuben Clark Law Building on BYUCampus for the first time in mid-August, few of them understood thatthey were part of the changing face ofBYU LAW. They couldn’t know thatclassroom debates were being increas-ingly informed by internationallyrenowned scholars and leaders. At first

glance, the only things they would notice were thesounds of construction and the smell of fresh paint.Likely, most of these only knew that BYU is a top-tierlaw school offered in a faith-centered environment. Still,BYU LAW refuses to sit back and rest on its internationalreputation. Instead, it continues to raise the bar for legaltraining, producing better and bettergraduates, a list of graduates that willinclude the Class of 2014 in three shortyears.

BYU continues to draw an internationalaudience of scholars and leaders to informits students, most recently in conjunctionwith the 18th Annual International Lawand Religion Symposium that took placeover several days in early October.Seventy delegates from 37 countriesattended a packed conference focusing on“Religious Freedom in Pluralistic Age:Trends, Challenges and Practices.”Translation of these proceedings wasoffered in 10 languages. Among thenotable speakers was Justice ZakeriaMohammed Yacoob of South Africa’s ConstitutionalCourt, who gave a keynote address.

Students have responded to BYU’s emphasis on interna-tional and scholarly thinking in kind. In the last year, 52students from the law school went abroad to participatein externships, while more than 200 participated inexternships across the country. While these numbers areamong the best in the nation, BYU also contributes tothe legal field in other ways. Professor Tom Lee, nowJustice Lee, was recently appointed to the Utah State

Supreme Court. And while BYU professors regularlypublish articles in legal journals and attend events all overthe world, they are joined in that prestige by the stu-dents. One BYU student even published a paper he co-authored in the Harvard Latino Law Review dealing withthe equal access to the courts for linguistic minorities.With these experiences, BYU continues to produce stu-dents that are uniquely prepared for the changing legalclimate and capable of dealing with unique and challeng-ing legal concepts.

Beyond the theoretical, students at BYU continue to par-ticipate in competitions to gain practical experience inlegal concepts. The Rex E. Lee Moot Court Competitionis perhaps the most well-known of the law school’s on-

campus competitions and regularly pits 40to 50 of the most talented advocates theschool has to offer against each other. Thefinal round took place on October 28,2011, with participants continuing on tothe National Moot Court Competition in2012. A second competition focusing onnegotiation also took place on campus,providing students with experience in yetanother facet of what a lawyer canencounter in practice. The law school’strial advocacy competition also took placeduring the first part of November.

Not all of the improvements at BYU havebeen intellectual in nature, though. Overthe past year, the law school has beenimproving its facilities in order to providestudents with a better learning environ-

ment. These physical improvements include a new TrialCourt Room, completed just before the school yearbegan. The room provides both cutting-edge technologyand physical amenities that can be found in courtroomsthroughout the country. Now, students can learn thetheory of the law and practice their trial court skills in apractical and realistic setting better than ever before.

While so much is changing as part of BYU’s push to pro-vide the best possible education to its students, perhaps

Rise Up: BYU LAW

“Over the pastyear, the law

school has beenimproving its facil-

ities in order toprovide

students with abetter learningenvironment.”

BySeth Oxborrow

Campus Notes

the most important part of BYU’s improvement isdemonstrated by the incoming class itself. The studentscome from a variety of backgrounds, religions, and fieldsof study. Some of them hail from Sweden, Brazil,Ukraine, China, and Jordan,as well as Arizona State, BoiseState, Cal State, William andMary, Florida InternationalUniversity, LongwoodUniversity, Southern VirginiaUniversity, and a number ofUniversities of California.Significantly, of the class of150, more than 100 speak aforeign language and forty per-cent are women.

All of these efforts are part ofthe J. Reuben Clark LawSchool’s effort to provide valu-able and cutting-edge educa-

tion to tomorrow’s lawyers. These efforts have increasedBYU’s presence and acclaim on a national and an inter-national stage. Students are leaving BYU LAW well-pre-pared for legal practice, many with experiences only

dreamed of at other lawschools. Obviously, the lawschool has asked both stu-dents and faculty to rise up;something that those involvedare doing and doing well.

Seth Oxborrow is the BrighamYoung University student repre-sentative on the LitigationSection Executive Committee.

(continued)Campus Notes

Mohammed Yacoob

Utah State Bar Litigation Section : A Judicial Perspective on ProportionalDiscovery Under the New Rule 26Presenters: Hon. Derek P. Pullan, Fourth District Court

Hon. Deno Himonas, Third District CourtHon. David M. Connors, Second District Court

Date: December 12, 2011

Time: 12:00-1:00 p.m.

Location: Utah State Bar – 645 South 200 East

Notes: Cost is free for Litigation section members and $20 for all others. Lunch will be provided. 1 Hour CLE.

To Register: Kindly e-mail RSVP to sections@utahbar.org or Fax (801) 531-0660 by December 9, 2011. Please include your name and bar numbers on all RSVP’s.

12

13

Peggy Hunt still remembers her firstday of clerking for Judge Clark at theUnited States Bankruptcy Court forthe District of Utah. An office clerkwheeled a cart into her office stackedwith volumes and volumes of files.She wondered if those were the filesfor entire month. Then, to heramazement and horror, she learned

that they were the files for just the next day’s proceed-ings. Not knowing even basic concepts of bankruptcy,she recalls staying up until four in the morning tryingto figure out basic bankruptcy concepts such asrequesting relief from the automatic stay.

She has come a long way since that day. Now, morethan twenty years later, she is a partnerat Dorsey and Whitney LLP, where herpractice focuses primarily on bankruptcylaw and litigation. Peggy representsdebtors, Chapter 11 trustees, creditors,and equity holders in complex bankrupt-cy cases. She also has significant experi-ence representing trustees and receiversappointed in and creditors of Ponzischemes. Peggy also was recently wasappointed to serve on the Panel ofChapter 7 Trustees for the District ofUtah and in that role serves as a trusteeand counsel in both large and smallChapter 7 cases.

Prior to practicing at Dorsey, Peggy prac-ticed at the law firms of Ray Quinney & Nebeker andLeBouef Lamb Greene and MacRae. She has alsoserved as a judicial law clerk, not only for Judge Clark,but also for Justice Robert J. Callahan of theConnecticut Supreme Court and for judges appointedto Bankruptcy Appellate Panel of the Tenth Circuit.

Peggy grew up in Connecticut. Her father died in acar accident when she was 8 years old, so her motherraised her and her brother and sister as a single parent.

Peggy says that when she now looks back on thoseyears—especially since becoming a mom herself—shemarvels at all that her mom accomplished on her ownwith sole responsibility for three young kids. Peggyrecalls her mom telling her that in the ‘70s, she wentto the bank and tried to get a credit card but was toldthat she was not eligible for one because she didn’t havea husband. Peggy’s mom went back to school whenPeggy and her siblings were still young, earning anMBA and then working as a manager for XeroxCorporation in New York City. Peggy says her momhas always been her example, hero, and first mentor.

Peggy graduated from the University of PittsburghSchool of Law in 1988 after receiving her bachelor’sdegree in economics and political science from

Washington and Jefferson College. Shemade her way to Utah from Connecticutbecause she loved to ski and thoughtUtah would be a great place to ski (anddo a little clerking) for a year. She hasn’tlived anywhere else but Utah since herdecision to clerk for Judge Clark.

Peggy has consistently been listed in theBest Lawyers of America and named toUtah’s Legal Elite in Utah BusinessMagazine. In addition, Peggy believes inpublic service and has been involved inmany community activities over theyears. She was named Pro BonoAttorney of the Year by the Utah StateBar in 1996. And although her commu-

nity and civic activities are too numerous to mention,the highlights include being a co-founder of the recent-ly created Women’s Giving Circle for the CommunityFoundation of Utah, which raises funds for Utah non-profits whose missions are the advancement of womenand girls in our community. She also serves on theAssociates Board for the Utah Museum of NaturalHistory and has served on the board and as a past pres-ident of The Sharing Place, Inc., a small non-profit

Peggy HuntPractitioner Profile

Peggy Hunt

ByNicole Farell

that provides grieving assistance for children who havelost a parent, caretaker, or loved one.

In her spare time, Peggy enjoys spending time with herhusband and two daughters, Leigh, 17, and Libby, 12.Every weekday afternoon, except for days she is incourt, Peggy can be found on the phone with her twodaughters getting the lowdown on what happened dur-ing their day at school, while the topics are still freshon their minds. She enjoys cycling and still loves toski.

After more than 20 years of practicing law, Peggy saysthe best advice she could give younger lawyers is to not

take yourself too seriously, be able to admit when youdon’t know something, and also to learn to live withthe fact that in this profession, you’ll never be able toachieve complete perfection. She says: “Now that I’mmore experienced, I know that it’s not going to be theend of the world if I don’t win every case. It helps torecognize that you can just go in there and do the bestyou can.”

Nicole Farrell is an attorney at the firm of Parsons Behle &Latimer.

14

(continued)Practitioner Profile

Date: Tuesday, December 22, 2011

Time: 7:30 a.m. - 9:00 a.m

Speaker: Colin P. King, Dewsnup King &OlsenEdward B. Havas, Dewsnup King & OlsenBrian S. King, Attorney at Law

Location: Utah State Bar, 645 South 200East

Cost: Cost is $25 for Litigation sectionmembers and $35 for all others.

CLE Credit: 1 CLE Hour Ethics

RSVP: TO REGISTER: Register ONLINE oremail RSVP to sections@utahbar.org. Youcan also register by faxing 801-531-0660by Dec 19th. Please include your nameand bar number on all registrations.

Utah State Bar - Litigation SectionZealous Advocacy vs. Margin:

Managing a Contingency Fee Case

15

October’s quarterly luncheon CLEfocused on best and worst discoverypractices. The panel, which consistedof Third District Judge ToddShaughnessy, and Erik Christiansenand Katherine Venti, shareholders atParsons Behle & Latimer, put on aninsightful CLE outlining some recentchanges in law on discovery, as well as

upcoming changes contemplated by the proposedamendments to the Utah Rules of Civil Procedure. Thelitigation section is appreciative of the panel’s thoughtfuland educational presentation.

The panel discussed a number of important changes inthe law regarding termination sanctionsin response to discovery abuses. In par-ticular, the panel discussed the recent caseMarkyl Lee v. Max International, LLC,638 F.3d 1318 (10th Cir. 2011), decidedin May of this year. Markyl refines thestandard in Ehrenhaus v. Reynolds, 965F.2d 916 (10th Cir. 1992), that governswhen termination can be imposed as adiscovery sanction. Under Ehrenhaus, adistrict court was required to examine andapply five factors before imposing termi-nation as a discovery sanction: “(1) thedegree of actual prejudice to the defen-dant; (2) the amount of interference withthe judicial process; (3) the culpability ofthe litigant; (4) whether the court warnedthe party in advance that dismissal of theaction would be a likely sanction for non-compliance;and (5) the efficacy of lesser sanctions.”

In Markyl, the Tenth Circuit clarified how the Ehrenhausfactors are applied. The Court noted that “[t]heEhrenhaus factors are simply a non-exclusive list of some-times helpful ‘criteria’ or guide posts the district courtmay wish to ‘consider’ in the exercise of what mustalways remain a discretionary function.” The Court alsoobserved that “[t]he dispositive question on appeal thusisn’t whether the district court’s order could or did touchevery Ehrenhaus base. Instead, it is and always remainswhether we can independently discern an abuse of discre-tion in the district court’s sanctions order based on therecord before us. The Ehrenhaus factors may sometimes

help illuminate that question, just as they sometimes mayassist a district court in exercising its discretion. But adistrict court’s failure to mention or afford them extend-ed discussion does not guarantee an automatic reversal.”

The panel also discussed the importance of effective liti-gation hold letters, and ensuring that clients are preserv-ing relevant documents. Simply passing along requestsfor production to the client and asking for responsivedocuments is not a best discovery practice. Lawyersshould be actively involved in identifying relevant people,documents, computers, and databases that may containresponsive documents, and ensuring that this informa-tion is retained. The panel referenced Philips ElectronicsNorth America Corp. v. BC Technical, 773 F. Supp. 2d

1149 (D. Utah 2010) as a cautionary caseon the dangers of failure to control thediscovery process with clients, spoliation,and the severity of spoliation sanctions.In Philips , after a series of discoverymotions and an order from the Courtdirecting that counsel draft and distributea preservation of evidence letter to hisown clients, it was discovered that elec-tronic data on five laptop computers wasdeleted in violation of court orders. Theanswer and counterclaims were stricken,default was entered, and the matter wasreferred to the U.S. Attorney’s Office. Amalpractice suit by the sanctioned partyagainst its attorneys then followed. Thepanel further advised that, in acting aslocal counsel, attorneys should still be

involved in the process of ensuring that discovery obliga-tions, including preservation of evidence, are being met.

The panel also discussed recent Utah law set forth inDaynight, LLC v. Mobilight, Inc., 2011 UT App 28 (UtahCt. App. 2011). In Daynight, the Utah Court of Appealsaffirmed entry of default judgment for spoliation of evi-dence. Of particular note, the Utah Court of Appealsoutlined a broad view of a district court’s power to enterdefault judgment, observing that trial courts have broaddiscretion in selecting and imposing sanctions for discov-ery violations. The Court also observed that Utah Ruleof Civil Procedure 37(g) does not require a finding ofwillfulness, bad faith, fault or persistent dilatory tactics,or violation of court orders before a court may sanction a

“Simply passingalong requests forproduction to theclient and asking

for responsivedocuments is nota best discovery

practice.”

ByAlec McGinn

Q-Lunch Recap: Best and Worst Discovery practices

16

party.

Finally, the panel discussed the proposed amendments tothe Utah Rules of Civil Procedure and the concept ofproportionality. Under the new rules, proportionalitywill become the controlling factor for all discovery.Proportionality will take into account whether the pro-posed discovery is likely to lead to discovery of admissibleevidence, and whether it is proportional to the amount atissue. The panel also noted the importance of early dis-closure under the new rules. A plaintiff must disclose alldocuments, and a witness list with a summary of testi-mony, within 14 days after service of the first answer.The defendant must make a similar disclosure within 28days after the plaintiff ’s first disclosure or after the defen-dant’s appearance, whichever is later. If a party fails to

identify a witness or document, the party risks havingthat witness or document excluded. As a result, early andproactive identification of documents and potential wit-nesses may become increasingly important under the newrules.

The October 7th Litigation Section luncheon materials“Best and Worst Discovery Practices” can be found intheir entirety here: litigation.utahbar.org/cle-archives.html.

Alec McGinn is an attorney at the firm of KunzlerNeedham Massey & Thorpe.

Q-Lunch Recap: Best and Worst Discovery practices

Erik Christiansen, Katherine Venti, and Judge Todd Shaughnessy

Litigation Section’s quarterly luncheon CLE

The next quarterly luncheon will be on December 12, 2011 at noon. It willbe held at the Bar offices. As always lunch will be provided with the CLE.

The CLE is going to be called “A Judicial Perspective on the NewProportionality Requirement of Rule 26.”

The presenters will be a panel of 3 judges: Judge Derek P. Pullan (4thDistrict), Judge Deno Himonas (3rd District), and Judge David M. Connors(2nd District)

Do you have ideas, questions orcomments about this newsletter? We want to hearfrom you, our members. Pleasesend your questions or com-ments to editor Nicole Farrellat nfarrell@parsonsbehle.com.

17

Message from the Editor

OfficersChair - Jon HafenChair-Elect - Ryan FrazierTreasurer - George BurbidgeSecretary - David Castleberry

MembersRyan HarrisSammi Anderson Alec McGinnElaina MaragakisPatrick BurtKeith A. Call Bryan PattisonIssac D. PaxmanHon. Stephen RothHon. Denise P. LindbergNicole Farrell

Randall Jeffs Emily SmithDan SteelePatrick TannerKent HolmbergHeather ThuetHeather SneddonRichard KaplanJoe StultzJenifer TomchakSeth Oxborrow, ex officio member (BYU)Nicholas Caine, ex officio member (U of U)

Executive Committee Members

EditorNicole Farell

18

Upcoming Events

Litigation Section Calendar of Events

December 12, 2011 Noon Quarterly Luncheon: “A Judicial Perspective on the NewProportionality Requirement of Rule 26.” Panelists includeJudge Derek Pullan (Fourth District), Judge Deno Himonas(Third District), and Judge David Connors (Second District).

December 22, 2011 Rise and Shine Breakfast: “Managing Contingent Fee Cases”7:30 am - 9:00 am

March 8, 2012 First Annual “Evening with the Fourth District”

March 16-17, 2012 Spring Convention

May 3-5, 2012 Southern Utah Federal Law Symposium in St. George, Utah

July 18-21, 2012 Annual Convention in Sun Valley