M a r c h / A p r i l 2 0 2 0 I s s u e N u m b e r 3 0 9
Inside this issue… Protecting Plaintiffs Post-Settlement with a Trust—page 6 Mediation: To Do or Not To Do —page 7 Legislative Wrap Up — see page 8 Call for Board of Governor Nominations — see page 19 Law School Times — see pages 10-11 and so much more…..
P r e s i d e n t ’ s M e s s a g e … . B y A l e c i a F u l l e r
Officers President: Alecia E. Fuller
President-Elect: Kasey L. Olivier Secretary-Treasurer: Timothy J. Rensch
Board of Governors
Timothy Rensch, AAJ Delegate Aaron D. Eiesland, AAJ Delegate
Brad Lee, AAJ Governor Stephanie E. Pochop, AAJ Governor
Terrence R. Quinn, AAJ Governor Emeritus
Nathan R. Oviatt, AAJ Young Governor Beau Barrett
Michael S. Beardsley Joseph B. Erickson
Koln B. Fink Nicole J. Griese
Raleigh E. Hansman George F. Johnson Ashley Miles Holtz Melissa E. Neville
Melissa B. Nicholson Breit Robert J. Rohl
Brad A. Schreiber
Past Presidents Immediate Past President
T.J. Von Wald
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—G. Verne Goodsell
Steven C. Beardsley-Margo T. Julius Ryan Kolbeck
Association Office
104 W Spring Creek Dr — PO Box 1154 Pierre, SD 57501-1154
605-224-9292 [email protected] (email)
Sara Hartford—Executive Director
Page 2
I don’t have a clue where to start. My world has changed. I suspect everyone’s world has at least a little bit. It seems quite surreal. At any given mo-ment in time I don’t know if I am underreacting or overreacting. Thankfully when I go to the store, the fresh fruit and veggies are plentiful. However, the yogurt, cheese, frozen vegetables, eggs, and milk are hard to find. Don’t worry, I have toilet paper! One of my daughters has been desperate to spend time with her friends. Unsure of the right decision, I discussed it with her friend’s mother. The decision: they spent exactly one hour on Saturday drawing with chalk and, as my daughter said, she had to stay “in my own separate quadrant.” The trips, af-terschool activities, sleepovers and fun plans are no more. Cherry Street Players, Soccer, Girls on the Run, downhill skiing, swimming, and spring break are all put on an indefinite hold. These disappoint-ments are hard on kids. The school shared a link to a Parent Resource guide to assist with helping children process the changes. (https://www.nasponline.org/resources-and-publications/resources-and-podcasts/school-climate-safety-and-crisis/health-crisis-resources/talking-to-children-about-covid-19-(coronavirus)-a-parent-resource) Suddenly, my husband and I are teaching from home. The new buzz word is “remote learning.” We are trying to get the school work completed and still find the time to get some exercise, create art, play music, complete chores, get down time, and have some fun! There is also the added complication of discussing the changes in the world with two children aged 8 and 10. Finding the consistency and the “new normal” is a struggle when there is much misinformation, moving targets, and unknowns. As of now, my children don’t have school for this week. No one has made a decision for the following weeks. This uncertainty impacts our family’s ability to plan and sched-ule. In order to find our joy and normalcy, my family went hiking in the hills on Sunday. It was as if we had the hills to ourselves. We also, like many of our neighbors, walked our dog and did yard work. The forced “Staycation” is likely to result in many beautiful yards this summer. The criminal defense world is changing daily… sometimes hourly. The first changes to the Court system impacted civil hearings protecting litigants, counsel, and court personnel, but left criminal defense attorneys to continue to practice as is. Thankfully, there has been some education and great efforts by presiding judges in various cir-cuits to protect everyone. Those of us that practice criminal defense can’t honor the recommended 6 feet social distancing during a hearing. We sit right next to our client, we might share a pen, we pass paper, and we need to be available to lean in to dis-cuss matters with our client. To keep the recommended 6 feet would allow anyone to hear confidential discussions. Criminal defense attorneys need to go to the jail to see clients. While the correctional officers and staff are amazing at keeping inmates safe and secure, they also aren’t afforded the luxury of honoring the social distancing. As the jail population is continuing to decline due to active efforts of many stakeholders, it will help create the needed space to stop the spread if an inmate or staff is infected. Thankfully, no one is suffering from COVID-19 in the jail right now. However, it isn’t realistic to think the jail is immune. So this morning I received confirmation of changes on Case Processing in the 7
th Cir-
cuit and I would imagine similar changes in the other circuits. Is this the new normal? Will the changes being made survive the pandemic and change the way we practice? If anyone knows, will they please tell me?
January/February 2020
March/Apri l 2020 Page 3
EDITOR’s Notes & Comments Timothy W. Billion
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 attor-neys. 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 submis-sions 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 protect-ed 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 ad-vertising does not imply endorsement of products or services or statements made about them. Advertising copy is subject to approval by SDTLA. Copy deadlines are February 1, April 1, June 1, August 1 October 1 and December 1. Call for advertising rates.
Greetings everyone! Life has changed dramatically across our state in the last few weeks. It goes without saying that we hope everyone reading this is healthy and doing well under trying circumstances. However you are reading this—in the office, working from home, or, like me, in very small segments while trying to supervise the children that suddenly populate your house constantly—we have a great issue for you. Professor Tom Simmons from USD’s Law School has written an article on the possibility of using a domestic asset protection trust to help clients manage the finan-cial issues that comes with winning a large judgment (a problem we would all like to have). Not only does this article lay out the advantages of an asset protection trust, it reminds us that our duty as a zealous advocate does not stop at the courthouse. Lawyers often are in a unique position to provide helpful—and sometimes desperately needed—assistance to steer clients in the right direction. Jami Bishop and Russ Janklow have written an article about mediation. Most lawyers are familiar with mediation as an alternative dispute mechanism, but it can be tricky to make a judgment call on whether mediation is appropriate in a given case, and if so, when to schedule it and what to do to prepare the case for a successful resolution. I hope this article can be food for thought for those con-sidering mediation in the future (although in the short term, appropriate social distancing may force delays in mediation along with many other aspects of civil litigation). We hope you enjoy this issue of the Barrister and that, wherever you are and however this pandemic affects you, you stay healthy, productive, and happy. Tim
March/Apri l 2020 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
June 2017 Matthew Kinney
June 2018
James Leach
June 2019 Eric Schulte Paul Linde
SDTLA Calendar of Events
2020 May 14 Board conference call, 11 am June 17 Board Meeting at Bar Convention, Pierre June 18 Annual Meeting and Elections, Pierre July 16 Board conference call, 11 am August TBA Board meeting, Law School Board Room, Vermillion 1Ls Event 1pm, USD Law School Courtroom
September 16 Board meeting Deadwood Mountain Grand, 4 pm MT September 17-18 Jammin for Justice SDTLA Annual Seminar & PAC Poker Run
Deadwood Mountain Grand October TBA Board meeting with Chief Justice November 12 Board conference call, 11 am December 10 Board conference call, 11 am
NOTE TO YOUR ACCOUNTANT:
NON-DEDUCTIBLE PERCENTAGE Of Your DUES
July 1, 2017– June 30, 2018 38.2%
March/Apri l 2020 Page 5
Scott A. Abdallah Michael C. Abourezk Grant G. Alvine Amy Bartling Jacobsen Kenneth E. Barker Steven C. Beardsley Michael S. Beardsley Jeffrey R. Beck John P. Blackburn Daniel Brendtro John William Burke Michael J. Butler Renee H. Christensen Liam M. Culhane
$1,800 ANNUAL Michael F. Marlow
Stephanie E. Pochop
$1,200 ANNUAL John P. Blackburn Aaron D. Eiesland
Gregory A. Eiesland Clint Sargent
Michael D. Stevens
$900 ANNUAL John W. Burke
$600 ANNUAL Margo T. Julius
Mark V. Meierhenry James C. Roby
Michael J. Schaffer Whiting Hagg & Hagg
$500 ANNUAL
Brad J. Lee Steven S. Siegel
$300 ANNUAL G. Verne Goodsell
$240 ANNUAL Ryan Kolbeck
$180 ANNUAL Alecia E. Fuller
$120 ANNUAL
Richard A. Engels Robert B. Frieberg George E. Grassby
Michael Paulson Catherine V. Piersol
Haven L. Stuck T. J. Von Wald
SDTLPAC is the political action committee of the SD Trial Lawyers Association. Organized in 1987, SDTLPAC contrib-utes to any candidate for a state office who will support fair and equitable legislation to protect the rights of South Dako-tans through the preservation of our justice system. WE THANK THESE CONTRIBUTORS FOR THEIR SUPPORT!
SUSTAINING MEMBERS
Sustaining members pay $700 in dues each year, which entitles them to discounted attendance at the Association’s annual seminar, the annual meet-ing and luncheon and a plaque denoting their sustaining membership status. Our gratitude goes to these members so that the Association can contin-ue 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
Hon. Karen Schreier-2016 Hon. Thomas Trimble-2017 Hon. Roger Wollman-2018
Hon. Bradley Zell-2019
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 15-16 Richard Casey 16-17 Tim Rensch 17-18 G. Verne Goodsell 18-19 Margo T. Julius
LIFETIME ACHIEVEMENT AWARD
Carleton “Tex” Hoy
John F. Hagemann
Robert C. Ulrich
Terry Quinn
John P. Blackburn
Mark V. Meierhenry
Seamus W. Culhane J. Michael Dady Gregory A. Eiesland Aaron D. Eiesland Jay R. Gellhaus G. Verne Goodsell Raleigh E. Hansman Scott N. Heidepriem John R. Hinrichs Scott G. Hoy John R. Hughes George F. Johnson Steven M. Johnson Margo T. Julius
David J. King Ryan Kolbeck Jason KW Krause James D. Leach Brad J. Lee Michael F. Marlow Lee C. 'Kit' McCahren Mark V. Meierhenry N. Dean Nasser James S. Nelson Melissa E. Neville Melissa B. Nicholson Breit Kasey L. Olivier Stephanie E. Pochop
Vincent A. Purtell 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 Thomas J. Von Wald Kyle L. Wiese Dylan Wilde Thomas K. Wilka
March/Apri l 2020 Page 6
Protecting Plaintiffs Post-Settlement with a Trust By Thomas E. Simmons (Professor, USD Law School)
I don’t have any empirical data to back this up, but I’m going to assert that the majority of personal injury plaintiffs come from the lower layers of our socio-economic strata. They tend to be relatively unsophisticated – especially with regards to wealth manage-ment. Not all, but many. Indeed, it’s probably fair to say that the majority of the population has little experience with wealth management—and by “wealth” I mean more than a single paycheck’s worth of liquidity. I’m painting with a very wide brush here, but a lot of people basically live paycheck to paycheck. Most of them live with autonomy, dignity, and integrity. But often, peoples’ money-management skills are limited to making one paycheck last until the next one arrives. Then, all at once, due to the sharp wit and polished skills of their lawyer, they receive a settlement or judgment several orders larger than a paycheck. Typically, it’s a lump sum payment and we give them only one opportunity to manage their award. If they err in some way, the money’s gone. This can be particularly damaging if the money is intended to compensate for lost earning capacity, because then that next paycheck is not coming. One strike and they’re out. Many personal injury lawyers will consider recommending an annuity or structured settlement in certain circumstances. Plaintiff counsel are also attuned to the possibility of a supplemental needs trust when their client qualifies for means-tested benefits. Yet these seem to be the only two recurring instances in which any protective measures for the plain-tiff’s award are considered. I’d like to propose a third: an Asset Protection Trust, or APT. South Dakota was one of the first states to authorize what is sometimes referred to as an “Alaska Trust” (since these trusts were first authorized in Alaska in 1997). Some offshore jurisdictions had created a statutory framework even earli-er (e.g., the Cook Islands in 1989). South Dakota authorized APTs in 2005. See SDCL ch. 55-16. You’ll also hear these kinds of trusts referred to as “Domestic Asset Protection Trusts” (or DAPTs) to contrast them with the offshore type, or the most verbose of these labels: “Self-Settled Discretionary Spendthrift Trusts” (SSDS Trusts). Today, another fifteen states have joined in and legislatively approved APTs. The basic idea of APT legislation is to re-verse a key component of the Statue of Henry VII (1487) (buttressed by the Statue of 13 Elizabeth (1571)) which voided any creditor avoidance associated with transfers to a trust for one’s own benefit. English law insisted that “spendthrift protections” in a trust created for oneself were ineffective. In other words, a person could not protect assets from her own creditors by transferring wealth to a trust that could distribute to her. The legislation in the seventeen APT states reversed that rule. If one follows the precise formulas required by statute and does not commit fraud against any existing creditors, a person can transfer wealth to an irrevocable trust for oneself and achieve creditor protections. APTs are typically the bane of plaintiffs’ lawyers. To the extent that a millionaire doctor has made herself judgment-proof from malpractice claims, it’s easy to see why. But an APT can also benefit a plaintiff if it is designed appropriately. An APT can be drafted so that it’s neutral from the perspective of both income taxes and transfer taxes. The person cre-ating and funding the trust (the “settlor” – or “transferor” under the language of the South Dakota statues) can be the sole beneficiary of an APT. Typically, the trust will mandate the distribution of all income and make distributions of princi-pal discretionary. The settlor’s Last Will and Testament can control who receives any remaining trust assets at the set-tlor’s death. The settlor cannot be the trustee, but she can retain the power to remove and replace the trustee. The trust must be irrevocable. All transfers to the trust are also irrevocable. The trust instrument must expressly incorpo-rate the laws of the State of South Dakota. It must contain an effective spendthrift clause. An APT is not effective to pre-serve assets from division in a divorce or child support claims unless a particular form of notice is provided to the spouse. See S.D.C.L. § 55-16-15. And there is a special ten year “look back” applicable under the Bankruptcy Code. See 11 U.S.C. § 548(e)(1). But the aim with an APT for a portion of a plaintiff’s net award is not primarily to immunize the plaintiff from future law-suits. Rather, it can protect the plaintiff from herself, particularly where she has little financial education or experience, has personal issues (like a gambling addiction) that cause wasteful spending decisions, or even where she simply has shown poor financial judgment in the past. It can also help the plaintiff from being a little too generous with friends and family who only need a “little loan” to get back on their feet.
Continued on page 15
March/Apri l 2020 Page 7
MEDIATION: TO DO OR NOT TO DO By Russ Janklow and Jami Bishop
Mediation is a dispute resolution method that has been gaining popularity over the years. Determining if and when to mediate a personal injury case depends on many different factors. Some of those factors include liability concerns, medical causation issues, a client’s pre-existing medical condition and a client’s expecta-tions. Before agreeing to a mediation, it is imperative to discuss the advantages and disadvantages with your client so that your client can make an informed decision. The success of a mediation is almost always based on a client’s accurate understanding of the purpose of the process as well as the pros and cons of a mediation. A client should be advised that some of the advantages of a mediation include:
1. Less Risk: A successful mediation removes the risk of a defense verdict and the plaintiff recovering $0;
2. Time: Mediations are usually scheduled within a couple of weeks to months instead of waiting a longer period of
time for a trial date and potential appeal; 3. Control: The client has more control over the outcome of the case instead of leaving it in the hands of twelve
strangers (the jury) or the Court; 4. Education: The mediation process can be helpful to learn more about the other party’s position and legal argu-
ments that are likely going to be made in a motion for summary judgment or at the trial; 5. Expense: A mediation, especially an early mediation, may reduce the cost of litigation including less expenses
for discovery, depositions and expert costs, and, if successful, will completely avoid costs associated with trial; and
6. Negotiation Power: At a mediation, the health insurance and outstanding medical bills are more likely to negoti-
ate the amounts owed because they also have the inherent risk of getting zero recovery if there is a defense verdict at a trial.
The primary disadvantage of a mediation is that the client may agree to less money than what a jury or judge would have awarded. Each case is unique and requires a thorough discussion with the client to ascertain if mediation is suita-ble for that specific case. One key issue that can determine the success of a mediation is determining when to mediate a case. For some cases, it can be difficult to determine when the best time to mediate would be. Early mediations may be appropriate if the is-sues are narrow or there are not a lot of facts in dispute. A potential danger with an early mediation is that the case has not been developed sufficiently so the mediation becomes a fight about what each side will prove or disprove. Each side may posture its case with facts that would not be supported in the record if the parties had conducted formal discovery or taken depositions. If a mediation is suggested pre-litigation, a plaintiff’s lawyer can consider offering defense counsel or an insurance adjuster the opportunity to meet with the client and ask questions about the case – either informally with-out a court reporter or formally like a deposition. For early mediations, this can be an effective way to narrow the disput-ed facts and allow counsel to better ascertain who the plaintiff is without the necessity for formal litigation. For clients with limited financial means, early mediations may not make the most sense because clients may be more willing to ac-cept less money than their case is worth because they may face significant financial pressure to resolve the case as quickly as possible regardless of the value of their case. Continued on page 19
March/Apri l 2020 Page 8
Legislative Wrap-Up 2020 By Steven S. Siegel
SDTLA Lobbyist
HB 1014: Place certain substances on the controlled substances schedule and to declare an emergency. Passed by both houses and signed by the governor.
HB 1068: Out-of-state convictions included for the basis of an enhanced penalty for the crime of stalking. Passed both houses with one only one “no” vote and is awaiting the governor’s signature or veto.
HB 1074: Revise certain provisions regarding the required time that sexual assault kits be preserved. Passed both houses with no red votes and has been signed by the governor.
HB 1089: Provide for the discharge of certain persons who received a suspended imposition of sentence. Passed both houses with no dissenting votes and has been delivered to the governor for her signature or a veto.
HB 1101: Provide for the reinstatement of a driver’s license under certain conditions.
Tabled (“died”) 8-0 in House Judiciary.
HB 1119: Include certain offenses committed in another state for purposes of an enhanced penalty. Passed both houses with one “no” vote and has been delivered to the governor’s desk.
HB 1206: Revise certain provisions regarding the commitment of a delinquent child to the Department of Corrections. Passed both houses with two “no” votes and has been delivered to the governor’s desk. SB 6: Revise certain conditions under which presumptive probation may be applied. This was the AG’s bill and gener-ated a lot of support and a lot of opposition. Said that a sentencing court could consider the Defendant’s failure to co-operate with law enforcement as an aggravating circumstance to support a departure from presumptive probation in all drug cases in South Dakota. The bill was amended on the Senate side and passed on the floor of the Senate 19-16. We were then able to get it killed in House Judiciary by an 8-5 vote. Sent to the 41
st Day to die.
SB 7: Revise the eligibility for presumptive probation. Tabled 5-0 by Senate Judiciary. The AG agreed to pull this bill after SB 6 passed on the Senate Floor. I do not think the AG thought SB 6 would die on the House side.
SB 47: Change certain provisions regarding sex offender registration statutes. Passed both houses and has been de-livered to the governor’s desk for her signature or veto.
SB 51: Authorize the possession of a concealed pistol by employees in county courthouses. Tabled by Senate Judi-ciary 7-0.
SB 64: Prohibit capital punishment for any person suffering from a “severe mental illness.” Sent to the 41st Day
(killed) by Senate Judiciary 4-3. SB 71: Revise the offenses for which an order for an interception of communications may be granted. Passed both houses with only two “no” votes and has been delivered to the governor for action. SB 89: Revise provisions regarding victim’s rights. Placed on Consent Calendar and passed both houses with no red votes. It has been delivered to the governor for her signature or veto. SB 95: Modify certain provisions regarding the repayment of restitution. Passed out of Senate Judiciary and then died on the floor of the Senate by a vote of 24-11. SB 96: Prohibit the denial of benefits based solely on a controlled substance felony. Passed both houses and has been delivered to the governor for her signature or veto.
SB 100: Regulate certain portable recording systems worn by law enforcement officers. Died in Senate State Affairs on a 7-2 vote.
Continued on page 16
March/Apri l 2020 Page 9
March/Apri l 2020 Page 10
Law School Times By Kylie Beck, Aidan Goetzinger, Mae Meierhenry & Thad Titze, SDTLA Law Student Liaisons
In the wake of the COVID-19 Pandemic, USD extended spring break one week and will resume classes remotely for at least two weeks, if not the rest of the semester. All USD hosted events are canceled through April 30
th. All out of state travel is also canceled, af-
fecting our competition teams including Moot Court, ADR, and Trial Team. The Law School and wider University communities are working together to provide online resources and instruction, as well as maintain some sense of community through this time. The fol-lowing are updates from several organizations. Student Bar Association: This semester the SBA was able to start a conversation about civility within the legal pro-fession by having ABOTA present “Civility Matters.” We continued that conversation by having a presentation on communication and professionalism with Clint Sargent, Alison Ramsdell, and Connie Larson. These panel presentations created an opportunity to facili-
tate important discussions about future practice for the students at USD Law and we are incredibly excited to have had the opportunity to host these presentations. A highlight for the SBA this semester was hosting an awards ceremony to present faculty awards for the 2019 Adjunct Professor of the Year (Alex Hagen) and the John Wesley Jackson Outstand-ing Professor of the Year (Tom Simmons). In addition to those two awards, the SBA created the “Student Bar Associa-tion Alumni Service Award” to recognize alumni who contribute to the law school in meaningful ways. We have a strong group of alumni who come back, regularly, to give their time to students, and as a board we decided it was time to give them recognition. The award will not be an annual award, but instead given out when the SBA recognizes the important and consistent dedication from alumni who give back to the students of USD Law. It was a highlight for us to be able to create the award and present it to Raleigh Hansman and Jason KW Krause, as they both exemplify what the award stands for. South Dakota Law Review: The board of editors of the South Dakota Law Review is proud to announce that four student authors will be published in Issues II and III of Volume 65: Issue II: Samuel Briese, staff writer, The United States Supreme Court Making Unnecessary Changes in Franchise Tax Board of California v. Hyatt Ashley Flood, staff writer, Detaining Mentally Ill Persons in Jail: An Analysis of South Dakota’s Statu-
tory Provisions Authorizing Involuntary Mental Illness Holds Issue III: Stephen Gemar, associate editor, A Crucial Aspect of National Security in Need of Reform: Section 702 of the FISA Amendments Act Mike Mabee, staff writer, Healthcare Data Breaches in South Dakota: Post-Breach Legislation is Not Enough Additionally, Kelcy Schaunaman, notes and comments editor, will publish her article, A Review of the Agricultural Land Assessment Saga and the Need for More Guidance, in Volume 25 Is-sue II of the Drake Journal of Agricultural Law. In response to COVID-19, the annual Law Review Banquet has been postponed to a date yet to be determined in the fall of 2020. To subscribe to the South Dakota Law Review, email [email protected]. The Moot Court Board has spent the spring fighting on every front. Two teams competed at the Mitchell Hamline Civil Rights Tournament in February. Both Teams advanced to the quar-terfinals round after a perfect 3-0 preliminary round showing. In March, the board sent one team to the University of West Virginia National Energy and Sustainability Tournament and one team to the UNLV Gaming Law Tournament. Lighting proved to strike twice as Morgan Erickson won “Best Oralist” at the UNLV tournament. The Board is extremely proud of Morgan and how she continues to raise the bar in oral advocacy.
Unfortunately, the ongoing health crisis scuttled our final team. The Board was set to cap its season with its final team traveling to Brooklyn for the Brooklyn Law Evidence Tournament. We know that Mae Meierhenry, Tierney Scoblic, and Tom Schartz would have excelled in New York.
Continued on next page
Kylie Beck
Aidan Goetzinger
March/Apri l 2020 Page 11
Additionally, the annual Sam Masten Tournament has also been affected. The Board, how-ever, will do everything possible can ensure that one of law school’s best traditions carries on. The Board will implement a digital courtroom system and keep the spirit of oral advoca-cy alive. We want to say thank you to the entire South Dakota legal community for its years of support. Sam Masten will call for you again, next year! Alternate Dispute Resolution Board: The Alternative Dispute Resolution (ADR) Board at USD School of Law is wrapping up an-other successful year. In February, Natalie Gronlund (2L), Erica Reber (2L), John Nelson (2L), Bryton Syverson (2L), Shanya Burt (2L), and Andy Grocott (2L) competed at the ABA Regional Client Counseling Competition. John Nelson, Bryton Syverson, Andy Grocott, and Shanya Burt advanced to semi-finals. John Nelson and Bryton Syverson advanced to finals and received second overall. Additionally, Joseph Mattson (3L) and Cody Miller (3L) compet-ed in the ABA Regional Mediation competition, winning their first round. Thank you to all of our judges who helped with our intrascholastic client competition this February. The winners of this year’s competition were Matt Gaul and Hannah Honrath. Alyssa Stevens and Erik Wehlander received second place. Aaron Schwam and Justin Pe-
tereit received third place. Most improved award went to John Noyes, and best advocate award went to Alyssa Stevens. The ADR Board wishes a farewell to our graduating board members Cody Miller, Joseph Mattson, Garrett Keegan, Aus-tin Schaefer, Alex Braun, and Lori Rensink. Cody Miller has accepted an associate attorney position at Lammers Klei-backer, LLP in Mitchell. Garrett Keegan will be clerking in First Judicial Circuit in Mitchell. Austin Schaefer will be clerk-ing in Third Judicial Circuit in Brookings. Lori Rensink has accepted an associate attorney position at Davenport, Ev-ans, Hurwitz, & Smith, LLP in Sioux Falls. Next fall, the ADR Board will be hosting the interscholastic ABA Regional Arbitration Competition. If you are interested being a judge for any of the upcoming competitions, or assisting the ADR Board in any other fashion, please reach out
to Lori Rensink, ADR Board President, at [email protected] or Natalie Gron-lund, ADR Board President-Elect at [email protected]. Public Interest Network: In compliance with University guidelines and most importantly, to keep our community safe, the PIN Auction, scheduled for the evening of March 26, has been cancelled. We know that many students will be volunteering their time working public interest internships this summer, and the need for PIN Fellowships remains. At this time, Public Interest Net-work is researching online resources and other methods to help raise money for student fellowships. Please stay tuned for additional information about opportunities to support PIN! We hope you are all well, and though the joy of the PIN Auction will be missed, we are looking forward to continuing our commitment to public interest in new and exciting ways. Family Law Child Advocacy: FLCA has recently gathered and delivered pajamas for local children in long term hospital
care. We’ve also completed various fundraising activities that now allow us to travel to the Woodbury County Juvenile Detention Center and meet with an Associate Judge to discuss child advocacy in March. Further, President Elizabeth Stanley is currently working with Professor Kelly Collinsworth, Lecturer for Experiential Learning, to create a family law forms clinic at USD Law. Currently, 6 FLCA members have joined WORKS Forms Clinic Attorney, Marilyn Trefz, and provided pro bono services to prose participants in Minnehaha and Lincoln counties. This clinic will allow future family law advocates hands-on experience by working with prose participants. Delta Theta Phi: The Delta Theta Phi law fraternity held new member initiation on February 28, 2020. We are pleased to announce that 27 new members have been initiated and are now members of Delta Theta Phi, Harlan-McKusick Senate. Looking for-ward, we are hopeful that we will be able to host our annual golf tournament fundraiser held in the Fall. Delta Theta Phi Mission Statement: To foster lifelong friendships and professional affiliations through legal education, international net-working, and mutual respect.
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Thad Titze
Mae Meierhenry
March/Apri l 2020 Page 12
South Dakota Trial Lawyers Association
Notice of 2019-2020
MEMBERSHIP DUES DUE July 1, 2019
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 Attorney employed over 2 years*……$100.00/year
______ Over 5 years in Practice …………… $350.00/year
______ Sustaining Membership ** …………$700.00/year
______ Subscribing Membership *** ……..$125.00/year
Please print or type
Name _________________________________________________ Email Address_______________________
Mailing address______________________________________________________________________________
City _____________________________________ State__________________________ ZIP _______________
Telephone _________________________________ Cell number ____________________________________
County _____________________________________ Date Admitted to Bar __________________________
Return to with appropriate dues:
SDTLA
PO Box 1154 Pierre, SD 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.
Thank You for Paying
Your Dues! Your Membership Counts!
March/Apri l 2020 Page 13
NEW LAWYER REFERRAL LIST
The South Dakota Trial Lawyers Association has compiled a list of aspiring young trial lawyers who are interested in ac-cepting 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 inde-pendently 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. Emily Maurice Goosmann Law Firm 2101 W. 69th St., Suite 200 Sioux Falls, SD 57108 605-371-2000 [email protected] Practice Areas: Family Law, Civil Litigation Circuits: First, Second, and Third Erin Willadsen Meierhenry Sargent LLP 315 S. Phillips Avenue Sioux Falls, SD 57104 605.336.3075 Practice Areas: Criminal Defense, Personal Injury, Eminent Domain, and any other small matter that a new attorney could handle on their own (ex: easy divorce case)
Promoting Justice in South Dakota
SDTLA Goals:
Preserve the jury system. Promote justice and efficiency in all matters pertaining to the trial of civil and criminal cases. Establish a high standard of ethics among trial lawyers. Clarify and simplify trial procedures. Promote a program of continuing education in trial practice. Encourage and assist younger members of the Bar to become trial lawyers. Create good fellowship and friendship among members, and a sense of pride in the Association and its purpose. Promote laws, rules and regulations to accomplish the above purposes and to promote the public good.
March/Apri l 2020 Page 14
The most important provision in any trust instrument – as I repeatedly emphasize to my Trusts & Wills students at the law school each fall – is the section that appoints the trustee. A trustworthy and skilled trustee can administer a very poorly drafted instrument effectively. But even the world’s best-drafted trust implodes when a foolhardy trustee takes the helm. To make sure that a South Dakota law choice-of-law is recognized, the trustee must be physically located in the state. No out-of-state trustees need apply. Indeed, it would be my recommendation that no individual trustees need apply, either. The trustee should be a corporate fiduciary such as a bank with offices in South Dakota staffed with trust officers who administer the trust in South Dakota. I’d also recommend limiting the ability of the settlor so that she can only replace the trustee with another South Dakota-based corporate fiduciary. You’ll have a reputable trusts lawyer do the drafting as well, of course, and you’ll insist that the trustee be a bank with trust powers. (A private trust company authorized by the South Dakota Division of Banking would also be acceptable.) So what’s this going to cost the client who wants an APT? There are two sets of costs to consider: the attorney fees for setting up the trust and the trustee fees for administering it. (If the trustee outsources tax preparation costs then there’s also going to be a modest accountant fee for filing the trust’s tax return every year.) I checked around a little and conducted an informal survey. I asked an assortment of reputable trust and estate lawyers in South Dakota what their fees would be to draft a straightforward APT. Most quoted a typical fee between $5,000 and $10,000 assuming no “bells and whistles” and absent any complex trust funding mechanisms (which wouldn’t be present when the trust is simply funded with an initial res of cash). Some were higher. Perhaps if you develop a relationship with a trusts and estates lawyers you could negotiate a volume discount. These trusts need not be terribly complex. But they can be rather dangerous creations in unknowing or careless hands.
1
By the way, here’s a rubric to help you determine the mettle of a trust lawyer drafting an APT: Ask about their typical approaches to (i) a suitability analysis for the client’s use of an APT; and (ii) their due diligence/solvency analysis of the client. A trust lawyer worth her salt does not simply deliver a form for the client to sign. I also asked a number of bank trust officers within the state about their trustee fees and also about the minimum size for a trust like this that they might be comfortable with.
2 Here are the results of that survey: $400,000 - $500,000 are typi-
cally the minimum trust funding amounts that would justify the fees.3 And the annual trustee fees hover around 1-2% of
the assets under management – comparable to what the client might pay for a discretionary investment account without the additional benefits of trustee oversight.
4
The corporate trustees who handle these types of trusts will understand that they tend to be rather more labor intensive than other trusts in their portfolio. The beneficiaries are often not content to simply rely on a regular income stream or a predetermined periodic distribution of principal. They often have a tough time understanding what it means to be a trust beneficiary, repeatedly querying, “But isn’t it my money?” (The answer is a befuddling, “Yes and No.”) An APT is not the answer for every client. But it is a powerful tool available in South Dakota that lawyers advising plain-tiffs coming into a judgment should consider. And perhaps a few of your clients could benefit from a helping hand in managing their lawsuit recovery proceeds and making them last.
1 See Disciplinary Action Against Sheehan, 866 N.W.2d 929 (Minn. 2015) (attorney discipline for assisting with fraudulent transfers); S.D.C.L. § 55-16-9 to 13 (fraudulent transfers to APTs).
2 This survey of drafting and administration costs is in no way intended to create any sort of price-fixing en-
vironment. And none of the attorneys or trust officers I surveyed would condone that, anyway. But con-sumers—and the attorneys advising them—do deserve to have a sense of the going price of things.
3 Trustees have the authority to terminate a trust valued at under $150,000. S.D.C.L. § 55-3-27. 4 For settlements or recoveries of lesser amounts – or when less remains after the client has paid down their
consumer and/or mortgage debt – consider purchasing the client a complimentary enrollment in some con-sumer credit counseling classes.
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March/Apri l 2020 Page 15
SB 114: Require an incentive program to provide diversion opportunities for certain substance abuse offenses. Died in Senate Judiciary on a 4-3 vote.
SB 115: Revise the penalty for the ingestion of certain controlled substances. This was an attempt to revise the crime of ingestion. It would have made the first two ingestion offenses misdemeanors rather than felony charges. This bill had some bi-partisan support, but unfortunately it died 4-3 in Senate Judiciary.
SB 138: Amend parole provisions regarding life sentences. This bill died 5-2 in Senate Judiciary. There was a lot of push-back from the families of victims, the Department of Corrections, law enforcement, and the state’s attorneys. There was a lot of opposition to this bill. SB 164: Revise the penalties and provisions regarding approaching stopped vehicles. Passed both houses by a wide margin and has been delivered to the governor. SB 176: Provide for the seizure and holding of real property as evidence. This was Senator Kolbeck’s bill and its gene-sis was the 2016 killing of a woman by her boyfriend at Lake Madison in 2016. In that case, the basement of the house where the killing took place was not released to the owner/landlord for almost three years. This law will prevent that from happening in the future. It was placed on the Consent Calendar in both houses and passed both houses with only one red vote. It has been delivered to the governor for her signature or veto.
HB 1067: Modify certain provisions regarding notice, service, and execution of judgments in forcible entry and detainer actions. This bill had a lot of support. Sheriff Departments around the state pushed for a change in the law because of the amount of time deputies were spending on service of process issues. The bill passed both houses easily and has been sent to the governor for action. HB 1086: Repeal certain fees charged by a clerk of courts. This was the Chief Justice’s bill and was placed on the Consent Calendar in both houses. It passed both houses without one “no” vote and has been signed by the governor. HB 1087: Authorize a clerk of courts to provide certain notices by electronic mail. This bill was tabled by House Judici-ary in an 11-0 vote. HB 1077: Establish certain requirements regarding funeral processions. This bill was placed on the Consent Calendar in both houses and did not receive one red vote. It has been delivered to Governor Noem for her signature or veto.
HB 1121: Establish immunity from liability for the inherent risks of camping. This was another one of Representative Goodwin’s bills seeking a carve-out. This time for owners of campgrounds in South Dakota. I was the only person who testified in opposition of the bill. Thankfully, it was killed 10-1 in House Judiciary and sent to the 41
st Day.
HB 1168: Revise certain landlord and tenant rights. I had some concerns with this bill and the rights of tenants if it were to become law. I talked with the prime sponsor about it. She ultimately decided to table the bill, and the Motion to Table HB 1168 passed 13-0 in House Judiciary. HB 1169: Prohibit the use of certain electronic devices while driving. This is the “texting and driving” bill. It passed both houses fairly convincingly and has been delivered to the governor for her signature or veto. HB 1171: Require commercial pesticide applicators to maintain proof of financial responsibility. Killed 7-5 in House Agriculture and Natural Resources.
HB 1196: Authorize the revival of certain civil claims in childhood sexual abuse cases. Killed in House Judiciary on an 8-4 vote. HB 1211: Change the payment process for forensic medical examinations. Tabled (“died”) by House Health and Hu-man Services. HB 1215: Prohibit the state from endorsing or enforcing certain policies regarding domestic relations. This was one of the bills sponsored by Representative Randolph. This bill was withdrawn by Randolph.
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March/Apri l 2020 Page 16
HB 1216: Revise certain provisions regarding sexual harassment. This bill included “intern” in the list of definitions in SDCL § 20-13-1. It was placed on the Consent Calendar in both houses and passed with only one dissenting vote. It has been signed by the governor. HB 1275: Revise provisions regarding a judgment not collected from an underinsured motorist. This was Representa-tive Ring’s UIM bill which would have allowed an injured party to add the total amount of his UIM benefits to the amount of the tortfeasor’s liability limits. Currently, the UIM carrier gets a credit in the amount of the tortfeasor’s liability limits. There was a lot of opposition to this bill from both Blue and White Badges. We were able to get some representatives turned around, and the first vote in House Judiciary on Representative Pischke’s Do Pass Motion was 6-6. Unfortu-nately, the bill was ultimately killed in the same committee on a 10-3 vote. SB 18: Revise certain provisions regarding professional counselors. This bill passed both houses easily and has been delivered to the governor’s desk. SB 65: Revise certain provisions pertaining to trusts. This bill passed both houses with little opposition and has been signed by the governor. This was an extensive bill and a lot of time was spent on drafting. It cleans up and clarifies vari-ous trust provisions in our state. SB 73: Exempt certain persons from the requirement to publish name changes. This bill was Hoghoused in Senate Judiciary and ended up passing both houses easily. It has been sent to the governor for her signature or veto. SB 108: Revise the time period allowable for certain covenants not to compete. This bill would have revised the statu-tory time period for covenants not to compete. It would have shortened the period from two years to one year. The bill was tabled by Senate Commerce and Energy in a 5-1 vote. SB 109: Provide protections for health care decisions governed by conscience. This bill was tabled by Senate Health and Human Services on a 5-0 vote. SB 129: Prohibit the cancellation or nonrenewal of a health insurance policy for a preexisting condition. Senate Commerce and Energy tabled the bill 4-3. The committee noted that this practice is already prohibited by law in South Dako-ta. SB 140: Provides for the resolution of alleged certain disability violations. The proponents of this bill have been working on it for a couple of years. It was drafted to address a problem around the country of a cottage industry that has popped up in which lawyers and their clients (most of whom do not have a disability) canvas a city and then sue a number of business owners for alleged ADA violations. The vast majority of those claims are then settled by the busi-ness owners with “cost of defense” settlements. I tried to convince Senator Novstrup to amend the bill to remove the attorney fee section (20-15-6), but he refused. This bill had a lot of bipartisan support and passed both houses with no red votes. It has been delivered to the governor for her signature or a veto. SB 148: Adopt the Uniform Power of Attorney Act. This bill was placed on the Consent Calendar in both houses and passed with one vote in opposition. It has been delivered to the governor. SB 172: Revise provisions regarding civil forfeiture. This was Senator Rusch’s bill and had quite a bit of support. It did pass out of Senate Judiciary, but unfortunately, it was killed on the floor of the Senate in a 20-15 vote. HB 1097: Modify requirements for a marriage license. This bill was placed on the Consent Calendar in both houses and passed both houses unanimously. It has been signed by the governor.
HB 1122: Require child abuse or neglect investigations upon the filing of truancy complaints. This bill had a lot of op-position and was killed in House Judiciary by an 11-1 vote. Would have really bogged down DSS and forced the state to spend a lot of money according to the opponents. HB 1123: Provide for the termination of a lease by a victim of alleged domestic abuse. This bill had a lot of support from the outset and passed both houses without one red vote. It has been delivered to the governor. HB 1133: Provide a rebuttable presumption in favor of joint physical custody of a minor child. This was another huge battle this year and saw a lot of testimony from both proponents and opponents. The bill passed on the House floor, but died 5-2 in Senate Judiciary.
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March/Apri l 2020 Page 17
HB 1137: Require the provision of medical billing information and a settlement offer for unpaid medical bills. This bill was killed quickly by Sanford and Avera and died 11-0 in House Health and Human Services. HB 1139: Require the payment of attorney's fees in cases addressing noncompliance with visitation orders. This bill died in House Judiciary by a 9-3 vote. HB 1140: Provide for a regular review of parenting guidelines. This bill was placed on the Consent Calendar in both houses and passed with no red votes. It has been delivered to the governor.
HB 1146: Exclude second job income from child support obligations. Fortunately, this bill died a quick death in House
Judiciary on 11-1 vote.
HB 1147: Recalculate abatement of the basic child support obligation. This bill died in House Judiciary on an 8-5 vote. HB 1148: Provide for protection orders. Bill was withdrawn by the prime sponsor (Representative Pischke) before the committee hearing.
HB 1149: Establish qualifications for child custody evaluators. This was another of Representative Pischke’s bills and died in House Judiciary on a 10-2 vote.
HB 1155: Exempt certain retirement funds from division of property in a divorce. Killed in House Judiciary by a 10-3 vote. HB 1158: Remove irreconcilable differences as a cause for divorce. This bill had a lot of bipartisan opposition from the outset. It appeared to be Dead on Arrival and died in House Judiciary on a 10-3 vote. This was another one of Repre-sentative Randolph’s bills. HB 1195: Provide for the dismissal of charges against pregnant women for certain controlled substance offenses. This bill had a lot of support and passed both houses with ease. It has been sent to the governor for her signature or veto. HB 1205: Revise provisions regarding a custodial parent relocating a minor child. Passed both houses with only one “no” vote and has been delivered to the governor’s desk. SB 19: Revise certain provisions regarding marriage and family therapists. Passed both houses easily and has been delivered to the governor. SB 121: Revise parenting guidelines and repeal Supreme Court authority to promulgate guidelines. This was a bill championed by Senator Russell and Representative Pischke. It had a lot of opposition early, and was tabled (it died) by Senate Judiciary in a 6-0 vote.
SB 145: Recalculate abatement of the basic child support obligation. Died in Senate Health and Human Services on a 5-2 vote. HB 1092: Establish immunity from liability for injuries to or the death of a person engaged in off-road vehicle activity under certain circumstances. Representative Goodwin and I had a good battle on this bill. There were a number of people that drove to Pierre from around the state to testify in favor of it. Ultimately, it was amended considera-bly on the Senate side and was modeled after the Snowmobile Code by the amendments. The amendments took a lot of the teeth out of the bill. Judge Rusch and Lee Schoenbeck were a lot of help to me on this bill as I was the only person who testified against it. HB 1108: Adopt the Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act. This bill was on the Consent Calendar in both houses and passed without one “no” vote. It has been delivered to the governor for her to sign or veto. HB 1109: Revise the Uniform Limited Liability Company Act. This bill was championed by Judge Johns and passed both houses with only one dissenting vote. It has been signed by the governor.
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March/Apri l 2020 Page 18
SB 137: Revise provisions for repair, replacement, and construction of sidewalks within a municipality. This bill was in the hopper last year but was eventually pulled by the prime sponsor. This year, it passed in the Senate 32-0, passed easily in the House, and has been delivered to the governor’s desk for her signature or veto. It clarifies the procedure in place for the repair, replacement, and construction of sidewalks within a municipality. HB 1142: Include post-traumatic stress disorder as a compensable injury for purposes of workers' compensation. This was Representative Czwach’s bill and I asked him if I could help him with it when it dropped. He said he sensed it was Dead on Arrival and it was. It was killed in House Commerce and Energy by a 9-3 vote. Closing Remarks: It was a busy session for SDTLA as there were a number of family law bills in the hopper this year. Judge Johns, Judge Rusch, Lee Schoenbeck, Ryan Cwach, Jon Hansen, Linda Duba, Jamie Smith, Jeff Partridge, Erin Healy, Paul Miskimins, Kelly Sullivan and other legislators were a lot of help to me and our causes during the 2020 leg-islative session. Thank you to various members of our organization who called and e-mailed me and testified in committee hearings. Your support and insight were very much appreciated. A special thank you to some of our family law lawyers for providing me with talking points and examples I could use. Finally, thank you to Sara Hartford for all of her support and valuable assistance during the session. I would be unable to do my job in Pierre without all of Sara’s help and encouragement. We are lucky to have her on our team! Thank you for your encouragement and support. Your kind words and assistance during the 2020 session meant a lot to me. Respectfully submitted, Steve Siegel SDTLA Lobbyist [email protected] 605-679-4470 (work) 605-376-9586 (cell)
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In addition to participating in mediations, Russ regularly serves as a mediator. Some tips for increasing the chances of a successful mediation include:
1. Make sure to have some idea of what your client’s expectations are before the mediation. Have a frank discussion with your client before the mediation outlining the strengths and weaknesses of the case.
2. Have a frank discussion with your client before the mediation outlining the strengths and weaknesses of the of the case. This allows your client to be prepared to address any of the weaknesses of their case and have a more accurate understanding of the value of the case.
3. For personal injury and worker’s compensation claims, it is beneficial to discuss subrogation and outstanding
medical bills before the mediation. Contact the health insurance or medical payment carriers and either reach an agreement with them ahead of time or have the contact information to the claims representative assigned to the file with you at the mediation so you can contact them if necessary. If you will need a substantial discount,
tell them that before the mediation and outline the good and bad facts of the file so they are educated about the claim and the need for a substantial discount. This is especially true with ERISA plans that likely do not reduce for attorney’s fees and pro rata expenses without written consent.
Mediation can be an effective tool to efficiently resolve litigation or at least narrow disputes and bring the parties closer together. But a mediation done without sufficient information, or without a thoughtfully-developed strategy, can waste time and resources. Although every case and every client is different, we hope these principles can assist lawyers in determining whether, and when, mediation is right for them. Russ Janklow specializes in personal injury and civil litigation, wherein he has tried over 100 jury trials in South Dakota over the past thirty years. Since 2007, Russ has successfully acted as a private mediator in over 250 mediation and arbitration cases. Russ is a partner at Johnson, Janklow, Abdallah & Reiter, LLP. Jami Bishop graduated from the University of South Dakota School of Law in 2010 and is a partner at Johnson, Janklow, Abdallah & Reiter, LLP. Since joining the firm, Jami has tried jury trials, participated in mediations, and argued before the South Dakota Supreme Court.
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March/Apri l 2020 Page 19
NOTICE OF NOMINATIONS
The Elections Committee of the South Dakota Trial Lawyers Association is
seeking nominations for the following offices:
President-Elect
Secretary-Treasurer AAJ Delegate 2020-22
four (4) At Large Members of the Board of Governors for the 2020-22 term one (1) At Large Member of Board of Governors in practice
not more than three years/2020-21 term
NOTE: This notice is in lieu of the call for nominations from the floor during the 2020 SDTLA Annual Meeting, June 18, 2020.
If you wish to nominate someone for one of the above offices, fill out the nomination form below and return it to the SDTLA office. All nominations must be received by May 1, 2020.
All nominees will be notified of their nomination by mail.
A sample ballot will be published in the May/June issue of the BARRISTER.
* * * * * * * * * *
SDTLA NOMINATION FORM
I, ______________________________________, of _________________________, nominate
_________________________________________________ for the office of
______________________________________________________________________
He/She is a member of the __________________________________________ firm
and his/her address and email address is ___________________________________.
RETURN TO by May 1, 2020: Elections Committee
South Dakota Trial Lawyers Association PO Box 1154
Pierre, SD 57501-1154
