January/February 2016 ISSUE 284 2016 SDTLA Annual Seminar & SDTLPAC Golf Tournament May 12-13, 2016 Lodge at Deadwood Deadwood, SD Come for a round of Spring golf in the beautiful Black Hills and stay for gaming and to enhance your legal ‘skills’ at our CLE with John Romano as our premiere speaker! Your golf game may be sub-par, but the CLE is bound to be a hole-in-one! SEE REGISTRATION Pages 13-15 Inside this issue…… An Interview with Judge Mandel — see page 6 Expedited Civil Actions Rule Update— page 8 Annual Seminar—page 13 Legislative Update— page 16 and so much more…..
Transcript
J a n u a r y / F e b r u a r y 2 0 1 6 I S S U E 2 8 4
Come for a round of Spring golf in the beautiful Black Hills and stay for gaming and to enhance your legal ‘skills’ at our CLE with John Romano as our premiere speaker! Your golf game may be sub-par, but the CLE is bound to be a hole-in-one!
SEE REGISTRATION Pages 13-15
Inside this issue…… An Interview with Judge Mandel — see page 6 Expedited Civil Actions Rule Update— page 8 Annual Seminar—page 13 Legislative Update— page 16 and so much more…..
January/February 2016
President’s Message…. B y S t e v e n C . B e a r d s l e y
Officers President: Steven C. Beardsley President-Elect: Margo T. Julius
Secretary-Treasurer: Ryan Kolbeck
Board of Governors Timothy Rensch, AAJ Delegate
Aaron D. Eiesland, AAJ Delegate Clint Sargent, AAJ Governor
Terrence R. Quinn, AAJ Governor Nathan R. Oviatt, AAJ Young Governor
Stanton A. Anker Amy R. Bartling
Michael S. Beardsley Casey W. Fideler Alecia E. Fuller
Raleigh E. Hansman Jason KW Krause
Melissa B. Nicholson Breit Kasey L. Olivier Robbie J. Rohl
McLean Thompson Kerver T.J. Von Wald
Joshua G. Wurgler
Past Presidents Immediate Past President
G. Verne Goodsell
William J. Holland - Stan Siegel Joseph M. Butler - John H. Zimmer
Carleton R. Hoy - Horace R. Jackson William F. Day Jr. - Vincent J. Protsch
Gale E. Fisher - A. William Spiry Franklin J. Wallahan - Gerald L. Reade
Rick Johnson - David V. Vrooman Terence R. Quinn - Thomas R. Pardy
Charles M. Thompson - David R. Gienapp Gary E. Davis - Gregory A. Eiesland James S. Nelson - Robert J. Burns
Brent A. Wilbur - Steven M. Johnson Glen H. Johnson - William J. Srstka Jr.
Gary D. Jensen - John P. Blackburn Michael W. Day - Michael J. Schaffer
Bruce M. Ford - Nancy J. Turbak Berry Scott Heidepriem – Michael D. Stevens Robert L. Morris II - Richard D. Casey
Jon Sogn – Mark V. Meierhenry Brad Schreiber – Jeff A. Larson Mark Connot – Tina M. Hogue
James Roby - Wally Eklund Michael F. Marlow - Clint Sargent
Michael A. Wilson Roger A. Tellinghuisen—Steven S. Siegel
Stephanie E. Pochop
Association Office 104 W Spring Creek Dr — PO Box 1154
Most defense counsel and some judges want to limit experts to doctors and maybe counselors when it comes to testimony regarding “pain.” The real experts are the people who have gone through it themselves. Everyone recognizes that pain thresholds are dif-ferent for each person. But, defense attorneys can’t wait to use “pain scales” to prove this person isn’t really hurt from their trauma. They ask ques-tions like, “Didn’t you state to a doctor that your pain was at a level of ‘5,’ ten years before this colli-sion.” Counsel is insinuating that the plaintiff is lying or really, that the pain experienced now is not a big deal. I know many of you are not going to believe this, but I am old and have lived. My five knee operations probably mean that if I am in a motor vehicle collision and hurt my knee, that I will not receive any compensation, no matter how severe the injury. It doesn’t matter that I hunt, fish, play golf, weight train, and box. My prior injuries would kill any claim regarding the knee. The worst pain I have ever felt was back pain. It was unrelenting and debilitating. I couldn’t sleep. When I did fall asleep, the idea of just moving at all was unnerving. I tried physical therapy, exercise, and injections. Injections provided relief – for a few weeks – then the growing, unrelenting, extreme pain returned. I was lucky that the back surgery on my synovial cyst pushing on a nerve was successful. My pain gave me a window into the pain experienced by my clients who have spinal pain that is completely debilitating. Recently, a friend of mine called me about the back injury he suffered. He was in agony. His herniated disc was impacting a nerve in his low back, at L3-4. He is a local businessman who was always skeptical regarding personal injury claims and back injuries. Now, he is a believer – he has no lawsuit and no claim of one. He hurt himself. He became a believer when his pain was so severe that this 60 year old man traveled to the Emergency Room on a Sunday night to get some pain relief or injection because the pain was so agonizing. Who is the real expert regarding pain? A doctor? A physical therapist? A chiro-practor? Family members? All of whom have not experienced the pain your client goes through on a daily basis. How about a person who has lived with chronic, un-relenting, and severe pain? How about a person who has experienced a similar her-niated disc and had to deal with agonizing pain; a stranger who has been through it and can explain what it is like? A stranger has no interest in the outcome and can simply explain the pain. Often times when a person loses a leg, they experience phantom pains. The pain is real, but the leg isn’t there. Who should testify – a doctor who has studied it or per-haps others who have experienced phantom pains themselves? Many jurors hesitate to award any money for pain and suffering. My conservative friend would have fallen into that group - not now. But, doesn’t he have insight into the pain and suffering of a person with a spinal injury? Can’t he assist a jury to un-derstand the debilitating effects of severe, chronic pain? Isn’t he the “real” expert?
January/February 2016 Page 3
Editing The Barrister has brought a new perspective and re-spect for those who have walked this path before me. Encour-aging members to submit articles has been challenging. Attor-neys, and trial attorneys in particular, live under the gun of competing deadlines. There never seems to be enough time for our cases and our lives, much less time to write an article. My solution? Add a little human interest and interview some outstanding members of the bench and bar. My first victim, I mean subject, was both cautious and gracious about being the test subject. In this issue you will get to know the Honorable Robert Mandel of the Seventh Judicial Circuit, learn what drew him to the legal profession, and what he considers to be some of the most important tips for being an effective trial lawyer. You may also pick up a few tips that work not only in his courtroom, but those of other judges as well. I started with Judge Mandell because I had the great privilege of working with him in the United States Attorney’s Office before he was appointed to the bench. I thank him for reading my initial email, being brave enough to reply to it, and being kind enough to spend 30 minutes of his day with me. Thanks, Bob. Those of you who know me or who have worked with me may be tempted to ignore my emails or screen my calls for fear of being the next feature in The Barrister. Don’t worry. I may randomly select someone I don’t know for the next interview. If you get my call/email, rest easy. I come prepared with questions and conversation starters. And, you can always call Judge Mandel for reassurance that the process was not painful. And, I dare say it, was fun for him to reminisce.
EDITOR’s Notes & Comments Marie H. Ruettgers
NOTE TO YOUR ACCOUNTANT:
The NON-Deductible percentage
Of your paid dues for the FY 14/15
36%
January/February 2016 Page 4
TOAST OF TRIAL LAWYERS June 2006
Nancy Turbak T.F. Martin
Travis Jones Michael Stevens
June 2007
Roger Tellinghuisen Mike Butler Eric Schulte
June 2008 Sid Strange Jerry Reade Jim Leach
June 2009
Mike Abourezk Alicia Garcia
Scott Heidepriem Shiloh MacNally Doug Cummings
June 2010
Michael DeMersseman Hon. John Schlimgen
Joni Cutler Margo Julius
Scott Abdallah
June 2011 Susan Sabers TJ Von Wald John Murphy Steve Siegel
June 2012
John Blackburn Linda Lea Viken Hon. Mark Smith Ronald Parsons
June 2013
Rep. Michael Stevens Hon. John Hinrichs Hon. Michelle Percy
Clint Sargent McLean Thompson Kerver
Eric C. Schulte Tim Rensch
Stephanie Pochop Richard Casey Ryan Kolbeck
June 2014
Clint Sargent Raleigh Hansman Ronald Parsons
Joseph Kosel
The Barrister is published electronically six times a year by the South Dakota Trial Lawyers Association as a service to its membership and as part of its continuing commitment to educate and promote professionalism among trial attorneys. Submissions are welcome. Interested authors should contact Sara Hartford, Executive Director at the above address. Articles are accepted from contributors who share the goals of the South Dakota Trial Lawyers. All submissions must be signed by the author. The Barrister is not responsible for cite-checking or reference checking materials cited in submissions. The author must verify that any sources included, relied upon or quoted in the submission have been properly credited and cited; the author must obtain all necessary permissions for publication of copyright protected materials. The Executive Director and Editor have the right to edit all submissions or refuse to publish articles that are not in keeping with the goals of the organization. Subscriptions of $25 are included in the Association’s annual membership dues. Non-members subscription rate is $50 per year. Statements and opinions in the Barrister editorials and articles are not necessarily those of SDTLA. Publication of advertising does not imply endorsement of products or services or statements made about them. Advertising copy is subject to approval by SDTLA. Copy deadlines are February 1, April 1, June 1, August 1 October 1 and Decem-ber 1. Call for advertising rates.
SDTLA Calendar of Events
2016 January 12 – March 11 South Dakota Legislative Session February TBA Board Conference call for legislative purposes April 14 Board Conference Call May 12 Board Meeting, 8 am MT, Lodge at Deadwood May 12—13 SDTLA Annual Seminar & PAC Golf Tourney Lodge at Deadwood June 22 Board Meeting at Bar Convention Sioux Falls, 11 am June 23 Annual Meeting and Elections Ramkota Sioux Falls July TBA Board conference call August TBA Board meeting, 11 am, Vermillion 1Ls Event 1pm, USD Law School Courtroom September TBA Board conference call or meeting October TBA Meeting with the Chief Justice November TBA Board Conference call December TBA Board Conference call
January/February 2016 Page 5
Scott A. Abdallah Michael C. Abourezk Grant G. Alvine Kenneth E. Barker Steven C. Beardsley John P. Blackburn John William Burke Michael J. Butler Renee H. Christensen J. Michael Dady Gregory A. Eiesland Aaron Eiesland
$1,800 ANNUAL Michael F. Marlow
Stephanie E. Pochop
$1,200 ANNUAL Kenneth E. Barker John P. Blackburn Aaron D. Eiesland
Gregory A. Eiesland Scott N. Heidepriem
Clint Sargent Michael D. Stevens
Roger A. Tellinghuisen
$1000 ANNUAL Beardsley Jensen & Von Wald
Dorothy & Krause Goodsell Quinn
Heidepriem Purtell & Siegel Johnson Abdallah Janklow Johnson Pochop & Bartling
Meierhenry Sargent Robins Kaplan
Scott Hoy Turbak Law Office
$900 ANNUAL Gary D. Jensen
Nancy Turbak Berry
$600 ANNUAL Terry L. Hofer
Margo T. Julius Mark V. Meierhenry
James C. Roby Michael J. Schaffer
Whiting Hagg & Hagg Michael A. Wilson
SDTLPAC is the political action committee of the SD Trial Lawyers As-sociation. Organized in 1987, SDTLPAC contributes to any candidate for a state office who will support fair and equitable legislation to protect the rights of South Dakotans through the preservation of our justice sys-tem. WE THANK THESE CONTRIBUTORS FOR THEIR SUPPORT!
$500 ANNUAL DeMersseman Jensen Tellinghuisen
& Huffman Nicholson Tschetter Adams & Nicholson
Plastic Surgery Associates Steven S. Siegel
$300 ANNUAL G. Verne Goodsell Wm. Jason Groves
$250 ANNUAL Hoy Trial Lawyers
Johnson Eiesland Law Office Lynn Jackson Shultz & Lebrun
Waltner Kolbeck Law Firm
$180 ANNUAL Alecia E. Fuller
Brad J. Lee
$120 ANNUAL Richard A. Engels Robert B. Frieberg George E. Grassby
Ryan Kolbeck Michael Paulson
Catherine V. Piersol Haven L. Stuck T. J. Von Wald
SUSTAINING MEMBERS
Sustaining members pay $700 in dues each year, which entitles them to a discounted attendance at the Association’s annual seminar, the annual meeting and luncheon and a plaque denoting their sustaining membership status. Our gratitude goes to these members so that the association can continue to sustain funding for an on-going defense of the civil justice system!
Fred J. Nichol Award for Outstanding Jurist
Hon. Ernest W. Hertz – 2000 Hon. Andrew W. Bogue - 2001
Hon. John B. Jones – 2002 Hon. George W. Wuest - 2003 Hon. Marshall P. Young – 2004
Hon. Robert A. Amundson – 2005 Hon. Lawrence L. Piersol – 2006 Hon. Richard W. Sabers – 2007 Hon. Judith K. Meierhenry - 2008
Hon. Tim D. Tucker – 2009 Hon. David R. Gienapp - 2010 Hon. Jack Von Wald – 2011 Hon. John W. Bastian - 2012 Hon. David Gilbertson -2013
Hon. John K. Konenkamp—2014 Hon. Janine Kern—2015
TRIAL LAWYERS OF THE YEAR 87-88 Terry Quinn 88-89 Greg Eiesland 89-90 Steve Johnson 90-91 Glen Johnson 91-92 Bob Burns 92-93 Gary Jensen 93-94 Joe Butler 94-95 Mark Meierhenry 95-96 Jeff Larson 96-97 Nancy Turbak 97-98 David Gienapp 98-99 Rick Johnson 99-00 Jim McMahon 00-01 Mike Schaffer 01-02 John Blackburn 02-03 William F. Day, Jr. 03-04 Michael Abourezk 04-05 Michael W. Strain 05-06 Patrick Duffy 06-07 Thomas G. Fritz 07-08 Michael J. Butler 08-09 Wally Eklund 09-10 James D. Leach 10-11 N. Dean Nasser, Jr. 11-12 Stanley Whiting 12-13 Charles M. Thompson 13-14 Linda Lea Viken 14-15 Clint Sargent
LIFETIME ACHIEVEMENT AWARD Carleton “Tex” Hoy John F. Hagemann Robert C. Ulrich
Terry Quinn
Jay R. Gellhaus G. Verne Goodsell Scott N. Heidepriem Scott G. Hoy John R. Hughes Gary D. Jensen Brendan V. Johnson Steven M. Johnson George Johnson Margo T. Julius David J. King Ryan Kolbeck Jeff A. Larson
James D. Leach Brad J. Lee Michael F. Marlow Lee C. 'Kit' McCahren Mark V. Meierhenry Bret C. Merkle N. Dean Nasser James S. Nelson Melissa B. Nicholson Stephanie E. Pochop Terence R. Quinn Timothy J. Rensch James C. Roby
Michael K. Sabers Clint Sargent Steve S. Siegel Michael J. Simpson Michael D. Stevens Michael W. Strain Roger A. Tellinghuisen Thomas P. Tonner Nancy J. Turbak Berry Thomas J. Von Wald Thomas K. Wilka Michael A. Wilson
January/February 2016 Page 6
Continued on page 12
Judge Mandel obtained his undergraduate degree at Shimer College in Mount Carroll, Illinois, where he majored in Natural Science, biolo-gy and physics. While his father was a lawyer, young Bob never gave much thought to attending law school until he started looking for a job in his area of study. Judge Mandel’s chemistry professor shared that he had applied for about 200 teaching positions before landing the position at Shimer College. Judge Mandel soon realized that without a PhD, a job in the sciences was not within his reach. So he did the next best thing, he enrolled at Antioch School of Law in Washington, D.C., and obtained a Juris Doctor. Upon graduating, Judge Mandel’s first job was as a Legal Services attorney on the Fort Berthold Indian Reservation in North Dakota. He soon became a county judge for Mercer County, North Dakota. Next, Judge Mandel was hired by the United States Attorney’s Office
(USAO) for the District of South Dakota where he served almost 30 years. During his early years with USAO, Judge Mandel tried both civil and criminal cases, as well as bankruptcy cases. This was before divisions existed and Assistant United States’ Attorneys did a little bit of everything. He eventually went on to serve as a Supervisor, Criminal Division Chief, and First Assistant US Attorney at various points during his time with the USAO. In his last position with the USAO, Judge Mandel served as the Supervisor for the Rapid City Office. In January 2012, Governor Dennis Daugaard appointed Judge Mandel to the Seventh Circuit where he currently serves the people of South Dakota. In his early days as a trial attorney, Judge Mandel found inspiration and direction from watching oth-er trial attorneys, especially Ella VanBerkom, a female trial attorney in North Dakota who practiced at a time when there were only two female trial attorneys in the state. “What impressed me the most about her, is that she knew every fact in her case inside and out.” That, according to Judge Mandel, “gave her an incredible ability to cross examine witnesses and argue.” He added “it also gave her real credibility with the jury.” In contrast, Judge Mandel noted “no one impressed upon me in law school the importance of knowing the facts that well.” He adds, “When doing trial work, one of the most important things is to have a plan of action for what you have to prove, and what facts you’re going to use to do it.” In addition, Judge Mandel cautions trial attorneys to be conscious of the record that they are mak-ing. As a judge, “I often see attorneys asking for rulings that would create reversible error.” He cau-tions that those with a short field of vision who do not think of the ultimate consequences of a specif-ic ruling create a great risk for themselves and their clients. “Create a record with which you can maintain the trial results on appeal.” Judge Mandel encourages trial attorneys to connect with juries by talking to them, and not at them. “Juries do a remarkably good job and don’t deserve to be spoken down to by attorneys.” He also notes that it is critical to maintain your integrity with the jury. “Your job as a trial attorney is not to im-press them with how smart you are, it’s to convince them to decide in your client’s favor.” There have been times when Judge Mandel has heard jurors describing a lawyer as “exceptionally enter-taining,” but have not returned a verdict in that attorney’s favor. “Sometimes jurors cannot describe
The Honorable Robert Mandel Interview by Marie Ruettgers
January/February 2016 Page 7
January/February 2016 Page 8
Expedited Civil Actions Rule Update By Marie Ruettgers
The right to a jury trial is fundamental to our justice system, one guaranteed by the 8
th Amendment to United States Con-
stitution and in the South Dakota Bill of Rights Article VI, Section 6 of our state constitution. The cost of a jury trial has, at times and for some, made the right to a jury trial unattainable. As Chief Justice David Gilbertson stated in his 2016 State of the Judiciary message, South Dakota has enacted a new Expedited Civil Actions Rule with the goal of providing a “less expensive and more prompt way to resolve civil disputes over damages.” The new rule, which took effect on January 1, 2016, allows for disputes under $75,000 to be tried on an expedited basis, with limited discovery using depositions and interrogatories. And, each side is allowed two days for trial. Codified at S.D.C.L. §§ 15-6-72 through 15-6-76.1, the process maintains the right to a jury trial and for appeal to the South Dakota Supreme Court. The Expedited Civil Actions Rule was modeled after the process the state of Iowa began using in January 2015. John Goerdt, the Deputy State Court Administrator for the Iowa court system, kindly shared the year-end statistics for Iowa’s first year utilizing the rule. Of the 380 cases filed under the new rule in the 2015, 42% had been disposed by the end of the calendar year. The chart below tells the story of the types of cases in Iowa in which the new expedited process was utilized, and the percentage of cases that were disposed of within the same year.
P.I. = Personal injury; NOPI = No personal injury The Barrister will be checking in with the Unified Judicial System during the next 12 months to provide updates on South Dakota’s first year utilizing the expedited process, and again after the end of 2016. While the South Dakota statistics may not be tabulated in a same manner, given the goals of greater access and prompt resolution we expect to see simi-lar outcomes for our South Dakota experience. Stay tuned throughout the year for additional information and updates.
CASE SUB TP DESCRIPTION # Disposed Total Cases
Filed Disposed (%)
CONTRACT - DEBT COLLECTION 33 70 47%
CONTRACT-FRAUD MISREPRESENTATION 1 5 20%
CONTRACT/COMMERCIAL - OTHER 21 41 51%
EMPLOYMENT CLAIM 1 7 14%
Other 5 6 83%
OTHER ACTIONS 7 16 44%
PI - MOTOR VEHICLE 67 162 41%
PI - OTHER NEGLIGENCE/INTENT 3 11 27%
PI - PREMISES LIABILITY 12 32 38%
PI-MEDICAL/DENTAL MALPRACTICE 2 2 100%
PROFESSIONAL MALPRACTICE(NOPI) 1 1 100%
PROPERTY/FINANCE DAMAGE (NOPI) 6 27 22%
Total 159 380 42%
January/February 2016 Page 9
South Dakota Trial Lawyers Association
Notice of 2015-2016
MEMBERSHIP DUES
DUE July 1, 2015
CATEGORIES
Check one:
_______ Legal Support Staff …………………. $50.00/ year
________ Law Student…………...………………$10.00/ year
________ 0-2 years in Practice…………………$70.00/year
________ 3-5 years in Practice……..………..$100.00/year
_____ Public atty employed over 2 years*……$100.00/year
______ Over 5 years in Practice …………… $350.00/year
CITY _____________________________________ State__________________________ ZIP _______________
Telephone _________________________________ Cell number ____________________________________
County _____________________________________ Date Admitted to Bar __________________________
Return to with appropriate dues:
SDTLA
PO Box 1154
Pierre, SD 57501-1154
* All public attorney members must be employed on a full-time basis by the Federal, State, county or municipal government or legal aid association. ** Any sustaining member must be engaged in the practice of law for more than five years and be a member in good standing of the Association for five years. Attendance at the Association’s annual seminar has a discounted fee for sustaining members. *** Anyone may apply for a subscribing membership in the Association, i.e. associations, institutions of higher learning, research companies, etc. Subscribing members shall receive all Association membership benefits, but are not entitled to vote.
January/February 2016 Page 10
NEW LAWYER REFERRAL LIST The South Dakota Trial Lawyers Association has compiled a list of aspiring young trial lawyers who are interested in accepting civil case referrals. The list is not for pro bono referrals, but rather cases that another attorney is not interested in handling due to his or her caseload, area of interest, or the client’s ability to pay. The purpose of creating this list is to allow young lawyers to gain experience handling civil cases on their own, while at the same time matching a worthy client with a willing lawyer. The goal is to give the lawyer the opportunity to independently plan case strategy, pursue a discovery plan and try a jury trial. By agreeing to be on the list, the attorneys have not automatically agreed to accept a case. They have the independence to accept or decline any case referred to them. Any lawyer in practice less than five years interested in accepting referrals is encouraged to contact the SDTLA office to join this list.
Second Circuit Melissa Fiksdal Jeff Larson Law 400 N Main Ave #207, Sioux Falls SD 57104 275-4529 Family Law, Criminal Defense Cesar Juarez Goosmann Law Firm 5010 S Minnesota, Sioux Falls 371-2000 Family Law & General Civil Litigation Meghann Joyce Boyce Law Firm PO Box 5015, Sioux Falls, SD 57117 336-2424 Family law, Civil Litigation and Insurance Litigation
Fourth Crcuit Brian Baczwaski Baczwaski Law Office PO Box 454, Deadwood, SD 57732 717-0078 General Civil Litigation, Real Property, Business Law/Formation, Estate Planning Sixth Circuit Amanda Work Swier Law Firm 142 E 3rd St, Winner, SD 57580 842-3373
Criminal defense, family law, civil litigation, real property, and estate planning
SOUTH DAKOTA TRIAL LAWYERS ASSOCIATION Board of Governors
Conference Call Minutes December 17, 2015
On the call: Steve Beardsley, Margo Julius, Ryan Kolbeck, Nate Oviatt, Clint Sargent, Terry Quinn, Alecia Fuller, Melis-sa Nicholson Breit, Casey Fideler, Raleigh Hansman, Mike Beardsley, Josh Wurgler, Stanton Anker and Sara Hartford. A quorum was on the call. President Beardsley called the meeting to order and asked for approval of the October 23 minutes. Quinn made a mo-tion to approve as presented, Oviatt seconded. Motion unanimously carried. Kolbeck gave the treasurer’s report. Account balances are $11,911 in Operations, $65,031 in Savings, $5,110 in the Reserve Fund and two CDs for $10,000 each. The PAC account has a balance of $32,228. The mid-year budget report was discussed. A list of unpaid dues was discussed. Quinn made a motion to approve the treasurer’s report, Nicholson seconded. Motion unanimously carried. Under old business, Quinn and Mike Beardsley gave a brief report on the planning of the Annual seminar to be held May 12-13, 2016 in Deadwood. Beardsley gave a report on the contributory negligence legislation. Tellinghuisen will be on the next call for direction from the board. Julius reported that Jolene and Dean Nasser and the SDTLA Committee are working on recommendations to our board and lobbyist re: the proposed legislative bills in response to the Wheeler case (aggregation of wages in WC) Rep. An-derson drafted a proposed bill that retroactively abrogates Wheeler, but it gives us aggregation going forward. She will circulate more information for the board to consider on the next call. Next Board meeting is by conference call on Thursday, January 7 at Noon Central/11 am MT. Dialing instruc-tions will be sent with the agenda. Meeting adjourned.
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the prevailing attorney, but they believed the attorney and that was the difference.” Judge Mandel sees the jury process as highly unpredictable. “The jury process is a human reaction, and I’ve never felt that questioning jurors after a trial was helpful for me.” He adds that sometimes the jurors themselves do not really know why they returned the verdict they did. Other tips from Judge Mandel’s perspective:
* Practice good case evaluation. Remember, you will have to deal with the good and the bad
parts of your case during the trial, so pick carefully and wisely. * Maintain your integrity with the client. Be honest about the case. Remember that the facts
are what they are, and you have to be realistic with your client about those facts and how they affect the outcome of the case.
Maintain your integrity with the Court. If you try to bamboozle the Court and are always
stretching the point and not being realistic, the Court develops an attitude about everything you say. And, it’s a small state. You will be in front of the same judges over and over again.
Maintain your integrity with other lawyers. It’s a small state and you will see the same attor-
neys over and over again.
* Come to the trial prepared. Everyone, including the jury can tell when an attorney is not pre-pared.
Continued from page 6
SOUTH DAKOTA TRIAL LAWYERS ASSOCIATION Board of Governors
Conference Call Minutes January 7, 2016
On the call: Steve Beardsley, Margo Julius, Ryan Kolbeck, Terry Quinn, Clint Sargent, Aaron Eiesland, Alecia Fuller, TJ Von Wald, Melissa Nicholson Breit, Casey Fideler, Raleigh Hansman, Mike Beardsley, Josh Wurgler, and Sara Hart-ford. A quorum was on the call. Lobbyist Tellinghuisen was also on the call. President Beardsley called the meeting to order and asked for approval of the December 17 minutes. Quinn made a motion to approve as presented, Fideler seconded. Motion unanimously carried. Under old business, President Beardsley gave an update on the Meade County Magistrate issue. Judge Day has been appointed by Justice Gilbertson to look into the situation. Judge Day has scheduled a meeting with Beardsley, Beards-ley, Kolbeck and Rensch on February 5
th. He will report back to the board on the outcome of the meeting.
Under new business, Julius reported the Worker Comp committee is recommending to the board for Tellinghuisen to monitor Rep. Anderson’s proposed legislation regarding retroactive abrogation of wages in Wheeler and report any amendments to the bill to her for further direction. The board reached consensus on this recommendation. Tellinghuisen reported to the board on SDTLA’s contributory negligence more than slight legislative strategy for this ses-sion. There was consensus to allow Tellinghuisen to use his discretion on how we move forward with our efforts. Tel-linghuisen will report back to the board on this matter. Fideler asked the status of the medical records copying bill (HB 1067 last session). Eiesland will inquire with the State Bar and report back on whether they are introducing again this session. Quinn gave a brief report on the planning of the Annual seminar to be held May 12-13, 2016 in Deadwood. Watch for more details in the Barrister and by email. Next Board meeting is TBA as needed during the legislative session. Meeting adjourned.
You do not want to miss the fun and networking during the SDTLA Annual Seminar…. This seminar is designed for all ages and practice areas! The Education committee has invited nationally recognized speakers to educate and revitalize your practice. John Ramono will make the old and the new trends come alive in trial. John is an internationally recognized trial lawyer and speaker. He represents his clients with vigor, dignity and professionalism. Practicing his pro-fession in the courtroom is truly an art which has transgressed to his trial lawyer sons and the rest of the mem-bers of the Romano firm. The Hon. Jeffrey Viken will take you on his professional journey from private practice to his appointment and service as a Federal District Judge to becoming the Chief Judge of the District of South Dakota and what he has observed in those years and what he sees on the horizon.
You also do not want to miss the Second Annual SDTLPAC Golf Tourney at the beautiful Spearfish Canyon Country Club. Springtime in the Black Hills, what could be better than that to recharge your batteries? From novice (Steve Beardsley) to pro (Clint Sargent), there is a golf cart waiting for you!
Rooms can be reserved by calling the Lodge at Deadwood at 877-393-5634 and ask for reservations in the SD Trial Lawyer Association block. The block will be released APRIL11. The SDTLA rate is $99/night plus tax. Please photocopy and use a separate registration form for each registrant. Return this form and the appropriate fees to:
SDTLA Office PO Box 1154
Pierre, SD 57501-1154 If you have questions, call (605) 224-9292.
Name___________________________________ Address_______________________________ City_____________________State_______Zip_______ Telephone____________________________________ REGISTER ON-LINE by sending an email message with the above information to [email protected]. Please send your registration fee by mail to SDTLA, PO Box 1154, Pierre, SD 57501-1154.
SEMINAR REGISTRATION FEES: (All registrations include the banquet dinner & roast) ____ $100.00 Sustaining members ____ $175.00 members over 3 years in practice ____ $150.00 members less than 3 years in practice ____ $100.00 public attorneys ____ $175.00 Minnesota, Iowa, Nebraska & North Dakota TLA members ____ $ 50.00 Judges, Legal Support staff & USD Law School Students ____ $ 50.00 Spouses/Guest - Banquet only*
*must pre-register ADDITIONAL FEEs for Golf: (must pre-register) _____$100.00/per person…this registration includes the golf course lunch, green fees, cart AND a contribution to the SDTL Political Ac-tion Committee which makes contributions to any candidate for a state office who will support fair and equitable legislation to protect the rights of South Dakotans through the preservation of our justice system.
ACCOMODATIONS:
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SDTLA Legislative Tracking List As of January 29, 2016
revise certain mandatory reporting requirements for elder and disabled adult abuse and neglect. SB 54 adopt the Elder Abuse Task Force's statutory recommendations in order to protect South Dakota seniors and adults with disabilities from abuse, neglect, and exploitation. CRIMINAL LAW__________________________________________________________________ SB 25 revise certain provisions concerning forfeiture of property interests of persons convicted of certain crimes. SB 26 revise certain provisions concerning sex offender registration and to require an offender to notify of intended foreign travel. SB 31 revise certain provisions regarding the sentencing and supervision of prison inmates and parolees with sus-pended sentences. SB 33 revise certain provisions regarding chemical testing and revocations of driver licenses for persons under the age of twenty-one. Text Versions
SB 44 classify vehicular homicide as a crime of violence. SB 79 expand the list of professionals authorized to perform certain examinations required for a plea of guilty but mentally ill. SB 94 repeal the death penalty. SB 97 provide for the automatic removal of all Class 2 misdemeanor convictions from background check records af-ter ten years under certain conditions. HB 1025 place certain substances on the controlled substances schedule and to declare an emergency. HB 1054 authorize the production and sale of industrial hemp. HB 1077 grant limited immunity from arrest and prosecution for certain related offenses to persons who assist certain persons in need of emergency assistance or who are themselves in need of emergency assistance. Bill Text Versions
HB 1078 grant limited immunity from arrest and prosecution for certain alcohol related offenses to persons who assist a person in need of emergency assistance or who are themselves in need of emergency assistance. Bill Text Versions
HB 1079 permit the prescription and possession of an opioid antagonist in certain instances. Bill Text Versions
HB 1085 provide for the forfeiture of any vehicle used by a person convicted of a third offense for driving under the in-fluence. HTML Version PDF Version
HB 1093 revise certain provisions that prohibit a defendant from contacting a victim before a court appearance. HB 1166 revise certain provisions regarding the penalty for identity theft while using an unauthorized credit card. HB 1167 revise certain provisions regarding the use of a suspended imposition of sentence for a misdemeanor and a felony. HB 1171 permit the court additional time to determine whether a petition for a domestic protection order may be heard as though the petition was for a stalking protection order. Miscellaneous________________________________________________ HB 1059 revise provisions related to the garnishment of debts and property. HB 1088 revise and consolidate certain civil forfeiture provisions. HB 1076 provide for drug testing for certain assistance applicants. HB 1106 exempt certain trees from requirements related to the removal of vegetation and debris from township road rights-of-way and to extend general immunity from certain civil liability for trees located in the township road right-of-way. HB 1107 ensure government nondiscrimination in matters of religious beliefs and moral convictions. HB 1109 exempt from liability persons who voluntarily maintain certain no maintenance roads. HB 1135 establish venue for certain actions arising out of real property lease agreements. HB 1153 reform eminent domain by consensus. SB 57 redefine the term, written agreement, relating to contracts between a debtor and creditor. SB 62 require manufacturers of farm machinery and equipment to replace the machinery or equipment or to refund its purchase price if it fails to conform to the manufacturer's warranty, to specify the manufacturer's obligations to remedy any nonconforming conditions, and to provide cause of action against the manufacturer for failure to comply. SB 80 limit certain liability for hosts of fishing tournaments. FAMILY LAW HB 1063 revise provisions regarding required notice of relocation of a minor child when a protection order is in place. HB 1105 give the court discretion to grant a continuance of a protection order in certain situations. HB 1128 require the court to consider the preference of certain children when awarding child custody in divorce actions.
January/February 2016 Page 17
HB 1133 require that a risk assessment is completed and reviewed before the release of a person charged with certain domestic crimes. WORKERS COMP___________________________________________________________________ HB 1084 define when concurrent employment may be used to calculate earnings in workers' compensation cases.
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