The "Great"

Legal Profession

Of Pine Bluff

November 1971

~ PURELY SELFISH REASONS

( If No Other)

IF YOU ARE A MEMBER

YOU SHOULD BELONG TO THE ARKANSAS BAR ASSOCIA TlON

You Are eligible for partIcIpa­tion in the Assoc iation ­Endorsed Group Disability Plan. Over $400,000 in disability pay­ments have been paid to mem­bers of the association since the plan was started in 1946. The rates are approx imately half what you would be required to pay for an individual policy. Other plans available include Ma­jor Medical, Life, Accident, Pro­fessional Liability & Catastro­phic.

And Don't Forget

the good fellowship and

You Wi I serve your profession by supporting the Association's continuing efforts to improve standards of legal education, of judicial administration and of admissions to the bar. You help protect the lawyer's professional status by opposing unauthorized practice, and through an ex­panded program of public' service activities.

the deve lopment o f close friendships with you r brother ;-~~----':==---------------, lawyers at Associat ion activi t ies.

You Will receive subscriptions to both the Arkansas Law Re­view and The Arkansas Lawyer. These journals wi ll bring you informative articles about the Law, lawyers and their activities. Your membership includes both subscriptions.

This is an opportun ity to serve yoursel f and the pub lic as well .

ARKANSAS BAR ASSOCIATION

408 Donaghey BUilding little Rock , Arkansas

NOVEMBER 1971 VOL. 5 NO. 6

THE OFFICIAL PUBLICATION OF THE

ARKANSAS BAR ASSOCIATION

OFF ICERS

Paul B. Young, President Henry Woods, Vice·President Robert D. Ross, Secretary·Treasurer

EXECUTIVE DIRECTOR

C. E. Ransick

EXECUTIVE COMMITTEE

James West, Chairman Phillip Carroll James B. Sharp Lynn Wade Dale Price John Mann

Ex·Officio

Paul B. Young Henry Woods Robert D. Ross John Lile J. C. Deacon James B. Blair Stephen Matthews Lou is L. Ramsay, Jr.

EDITORIAL COMMITTEE

Robert D. Ross Philip E. Dixon C. E. Ransick

We

Arkansas Lawyer SPECIAL FEATURES

Documentation of Settlements . . . .... Robert S. Undsey 230 On Legal Writing . ... .. . . . Professor Albert P. Blaustein 214 The Challenge of Reform In Administration

Of Criminal Justice . . .... . Senator John L. McClellan 228 Report of Maritine Law Committee .. . . .... .. . ....... .. . 242 Admiralty Jurisdiction in Oklahoma

(and Arkansas) .. .... .. .. .... ........... . L. J. Roach 218 19th Mid-Year Meeting Program ... ....... ...... . .... ... 222 Standards Workshops II and III ..... .. ... .... ....... ... 236

REGULAR FEATURES About The Cover .... . ..... ...... ........... . .... .. .... 212 President's Report . . .. . . . .............. . Paul B. Young 211 Juris Dictum ..........•.•. •. . .. . . . . ...... .. C. R. Huie 224 Law School News ...... . •.• . • ...... Robert Brockmann 238 Oyez-Oyez ........ . ....... ..... •.... . ..... B. Ghormley 210 In Memoriam .. .. ........ . ....... .. ......... .. .. .... ... 241 Executive Committee Notes ... ..... ... . Robert D. Ross 243

209

Published bi-monthly by the A rkansas Ba r Association, 408 Donaghey Bldg. , Little Rock, Arkansas 72201. Second c lass pas-. tage pai d at Little Rock, Arkansas. S ub­scription price to non-members of t he Arkan sas Bar Association $6.00 per yea r an d to members $2.00 per year included In annua l d ues. Any opinion expressed herein Is that of the author, and not necessarily that of the A r ka nsas Bar Association , The Arkansas Lawyer, or the Editorial Committee. Contrib utions to the Arkansas Lawyer are welcome and should be sent in two copies to t he Arkansas Bar Center , 408 Donaghey Bldg., LltUe Rock, Arkansas 72201.

Al l inquiries rega rding advert ising should be sent to Advertising Depar tment, Ark· ansas Lawyer, Post Office Box 4117, North Little Rock, Arkansas 721 16 .

By B. Ghormley

J. C. D eacon, lanesboro, has been elected to a two-year term on the Counci l of th e ABA General Practice ection . H . William All en, Little Rock, has been appOinted 10 an AHA Commitlee whic h wi ll supervise a nalio nal survey o f the public 's use o f legal se rvices. Dale Price, liltl e Rock, has been elected to se rve a seco nd term a a member o f the Board of Governors of t he American Trial lawyers Association . Richard Griffin, Crossett , being elected sta te co mmill eeman , will represen t Arkan sas on the na tional co mmill ee of the American Trial lawyers Association . Ed ­win Alderson, Jr., EI D orado, has been named Chairman of Ihe Menia l Heallh Commillee of Ihe slale Heall h Planning Council. Larry Graddy, Conway, a recent graduate , ha been appointed as an assistant to City Attorney Robert W. H enry. Judge J. G . Ragsdale, EI Dorado, allended a Iwo·week session of fh e American Acad emy of JudiCIa l Education in Alabama 10 provide practical informatio n for judges and co urts of limit ed and specia l jurisdiction . Deput y prosecuting altorney of EI Dorado , Alberl H anna, attended th e first Nationa l Co llege of Advocacy at the Ha stings Co llege of Law in Calif. Two more judges have been in at ­tendance al sessions of the National College o f Stat e Trial ludges : Joe Villines, Harri so n, and William Enfield, Benton -

210

ville . Mitchell D. Moore, Osceo la, ha s been nam ed by Associatio n President Pa ul B. Young, as the new chairman of the Economics of law Praclice Committee. Chancellor Terry She ll , Jonesbo ro, ha s been e levated to preside nt o f the Arkansas Judicial Council with Circuit Co urt ludge Harold Simpson, Pocaho ntas, as vice-pre ideo !. The Council 's Exec utive Committee members are : Cha nce llors James Chesnutl , H Oi Springs and Al ex Sa nd e rfo rd , Texa rkana; Ju stice Frank Holt, lilli e Rock; and Circ ui l (ourl Judges Ch a rles Light , Paragould and William Enfield, Be nt o nville . ludge lawre nce Daw son, Pin e BluH, has wrillen a proposed bill tha i would provide for election of judges on a no npar­tisan basis . Eugene Mazza nti, lillie Rock, was a fear ured speaker at a meeting of th e lanesboro Optimi st Club. Art Givens, litlle Rock, was a speaker at a noon meeting of rhe North lillie Rock Serloma Club. The 14th Chancery District Bar Association and the Frank li n Co un ty Bar Assoc iation held their annual meeti ng together in September with Paul B. Young, Association President , as the evening speaker. Governor Dale Bumpers wa s in attendance. Joseph N. Peacock, M cCrory, ha s opened law o ffi ces at ·11 9 E. Second St . William C. Brazil, Conway, ha s moved his law office to 1008 Fron t SI. Tom Tatum, Russellville, has opened his law office al Sixlh & Main . New officers of the Craighead County Bar are: Marvin Kieffer, President ; David Laser, Vice­President ; and Frank Lady, Secret ary-Treasurer. Leroy Froman is the new Pres ident of the While Co unty Bar Association . The spri ng and summer 1971 issues of the Arkansa s Law Review are being dedicated to Dr. Robert A. Lellar. The iss ues coi ncide with the 251 h anniversa ry o f the law Review . Robert Sa rver, little Rock, is now leaching a co urse " Problems in Co rrec ti on" al the Slate Grad uate School of Social Wo rk . Rogers Municipal Co urt ludge Davis Duly submill ed h is resignation to be effecti ve December 31 , 1971.

PBESIBIIT~S IEPOIT By Paul B. Young

During the last few years there has developed a close relationship between the Arkan sas Bar Associa­tion and the organized bar o rganizations in o ur neigh­boring states. One evidence of thi s is the number of visiting Bar Presidents at o ur an nual meetings and, of co urse, the Arkansas President is invited to attend their conventio ns. I have already attended the meet­ing o f the M iss issipp i Bar at Bilox i and the Missouri Bar Convention at Kansas City. Incidentally, Congressman Wi lbur Mills was the featured speaker at the Missouri Bar and Governor Dale Bumpers wi ll fill that posi tion at the Oklahoma Bar meeting in December.

O f course, the social aspects of this interchange are very pleasan t but more important there are rea l bene­fits to the programs of the different bar associations who parti cipate. As your President visits the other bar meetings, he is able to learn about what is being discussed by lawyers in ot her states, to observe their programs and to compare and exchange ideas.

O ne of the most valuable meetings for this purpose is the annual Regional Conference of Bar Presidents which was recently attended by Jack Deacon, Henry Woods and myse lf at the Lake o f Ozarks in Missouri. The conferen ce included the presiden ts, president s elect and past presidents of the state bars of Alabama, Arkansas, Florida, Georgia, Kansas, Kentucky, Loui­siana, Miss iss ippi , Oklahoma, Tennessee, Texas and Virginia . The conference is small enough in numbers so that it lends itself to an informal discussion type format which makes it possible for the bar officers to trade ideas and experiences in an extremely useful way. The topics discussed incl uded interrelations of bar presidents and staff, invo lving the pub lic in co urt modernization and reform, public relations and tech­niques, the bar and the legislature and automobile reparat ions legislat ion .

I was quite proud of the fact that on the basis of the discuss ion the Arkansas Bar is up with and, indeed in many cases, ahead of other bars on our programs but

211

at the same time we picked up several good ideas as we li stened to the experiences of other states.

O ne of the interesting discussions on a relatively new fie ld of bar activity was led by William McCalpin of St. Louis who is chairman of a special American Bar Association Committee o n Prepaid Legal Services. This Committee has the assignment of recommending whether the ABA shou ld assume permanent respon ­sibi lit ies in this field. It has been assisting in the super­vision of pilot projects at Sh reveport and Los Angeles to determine whether a practica l plan in the interest of the public and the profession can be developed. Mr. McCalpi n pointed out that many people believe there is a definite need for legal services in the middle income group of o ur popu lation which is not being met. Surveys have indicated that this group which makes up 70 per cent of the population have many problems requiring legal help but that they employ lawyers very rarely. Several trade organizations have expressed an interest in obtaining legal se rvices as a group benefit. As I understand one of the main pur­poses of Mr. McCalpi n's committee is to try to be sure that i f plans of thi s type develop that there be made availab le one which preserves our trad itional concept of free choice of a lawyer.

Another subject discussed at the Conference of Bar Presidents was that ou r continui ng lega l education . On this particular field of bar activity, I am convinced that the Arkansas Bar Association ranks very high and judging from the number of persons who registered and attended and the comments that I have heard, I believe that the Fall Lega l Institute and the Conference of Legal Secretaries were two of the finest programs that we have had presented in a long time. Attend­ance at the lega l secretaries program exceeded our highest expectation and I am sure that it will become an annual event by popular demand. The Arkansas Bar Association is grateful and indebted 00 the persons who did the planning and made the arrangements for these two fine events.

THE COVER STORY. .-

The "Great" Legal Profession of Pine Bluff "Every calling is great, when greatly pursued. "

Oliver Wendell Holmes, The Law

The Odds Are 880,000 to 1!! Mathematically il is impossible! There are so me 50 Pin e

Bluff allorneys who are members of th e 1500-member Arkan­sas Bar Assoc iation - ju st 1130 in strength . Yel , in the current Bar year 1971-72, th e four main elective offices in the Association and Arkansas Bar Foundation are all held b y Pin e Bluff lawyers. f o rgetting thai the o dds are improbable - who are these membe rs and what offices d o they ho ld .

(1) Paul B. Young - President , Arkansas Bar Association (2) Louis l. Ram say, Jr. - Association Delegate 10 the

American Bar Association (3) John G. Ule III - Chairman , Association's Young lawye rs

Section (4) Stephen A. Matthews - Chairman , Arkan sas Bar Foun ­

dation Mr. Young was nominat ed and elected from th e Southern

Dist r ict for th e Association 's Vice-Presidency in 1970 and automatically succeeded to the position of President o n July 1,1971 . The election procedures are se t fo rth in Artic le V o f th e Assoc iation 's Co nst itution .

Mr. Ramsay was nominat ed al the Association's 72nd An ­nual Meeting in 1970 and unanim o usly elected 10 succeed

'ay W. Dickey. ,r, Chairman

Law Day Committee

Martin G. Gilbert Chairman

Pre-Law Advisors Committee

him self as the Arkan sas Bar Associa t ion 's Del egate to the America n Bar Associatio n fo r a two -year term , ending at the adjournment of the 1972 ABA An nual M eet ing. Arti c le VIII o f the Associalion's Constitution covers thi s office and elec tion t herelo .

Mr. lile was elected Vice-Chairman o f Ihe Assoc iation 's Young lawyers Secl ion al its annual meeting in June 1970, and automaticall y becam e Chairman at the close of il s annual meeting in June 1971 . Article IV of the By- laws of the Young lawyers Sec/ion is controlli ng. The Young lawyers Section in­cludes all Association members, 35 years o ld and yo unger, and is by far the larges t group in th e Association .

Mr. Mallhews was elected Vice-Chairman of the Fo un ­dation at its annual meeti ng in lune 1970, and then elec ted Chai rman at ii S annual meeting in January 1971, in accor­dance with Article VI of the Fo undation 's By-laws.

Thu s the four were elected according to three different se ts of govern ing rules. II is no t o ur r>urpose here to prese nt biographical sketches of these prominent Bar members . The Pine Bluff Bar has still more to offer - and th e odd s increase.

Chairmen o f four important Commillees are al so from Pin e Bluff'

William R. Holland E. Harley Cox Chairman Chairman

Award o f Merit Commi ttee Annual Meeting Committee

We wo uld add that an ot her group of 16 Pine Bluff lawyers, no t included in th e above, also serve o n various Association Committees . Th ey are: Judge lawrence Dawso n , M . J. Probst , Edward I. S'a'en. Bar' Mull;s , ludge Charles Go ldberger, Ed Owen , Ted Drake, F. Daniel Harrelso n, Joh n A. Davis , III , William C. Bridgforth , Kenneth Bairn , Eugene S. Harris, John l. Ru h , Robert Ho lmes, R. A. Ei lboll , Don H. Sm ith . This mean s Ihal 24 Pin e Bluff members are direc tl y involved in State Bar work - nearly 50 per cent partic ipation .

BUI we cannot SlOp here -

212

Chief Justice Carleton Harris of the Arkansas Supreme Cour t .

Mr. Joe Ho lm e5

We must again recognize that the fo remost Arkan sas allor · ney is from Pin e Bluff · Chief Ju stice Carleton Harri s.

We must go o n · the Presi dent o f the Arkansas Prosec uting Attorneys Association is Joe Holmes o f Pine Bluff, of course. Mr. Holmes is th e Prosec uting Attorney for the 11th Judicial Circuit.

Mr. N . , . Gantl, Jr. is th e oldest Pa st President o f th e Arkan ­sas Bar Association, both from the poin t o f se rvice and years young. Mr . Gantt is 92 years o ld and was President of the Association in 1940· 41 . Mr. Gantt served as Presiden t of the Council of Pa st President s - and has not missed an Associat ion Annual M eeting o r Past Presidents ' Breakfa st within memory. Pine Bluff is deservedly proud of thi s senio r attorney.

We also w ish to ackn ow ledge th e Pin e Bluff Contingent in the Jeffe rso n Cou nt y Bar Association - Donald H. Smith , Ed­ward M . Owens, Sr., and John Ru sh .

Pine Bluff is rightfully proud of i ts legal corps. The odds are that no ot her cily in the United St at es has a more dedica ted and involved group of lawyers. They have, as stat ed by Oliver Wendell Ho lmes, made the profess io n of law - G REAT - in Pine Bluff. We are pleased to present thi s sal ute to them and to Pine Bluff, th eir c it y.

Mr. N. J. Gantt, Jr.

President • Donald H. Sm ith Vice-Pres ident . Edward M. Owens Secretary-Trea surer . fohn Ru,h

213

On legal Writing .'

I

EDITO R'S COMMENT -Th is is the th ird in a ser ies o f ar ­

ticles on legal wr it ing. The first , "General Considerations in Legal Drafting," was by Pro fesso r of law Reed D ickerson of Ind iana Univer­si ty and w as publ ished in June 1970 iss ue of Th e A rkan sas Lawyer . Th e second, "Appellate Brief Writi ng," by Pro fesso r H. C. Co uch o f the Tulan e U niversit y School of Law appeared in th e September 1970 issue o f The Arkan sas l awyer. We are indebt ed 10 th e Cleveland-Mar­shall Law Rev iew and to Pro fesso r Blau stein fo r permi ss ion to reprint thi s article.

Virtuall y all l eg al w rit i ng is atroc ious!' This is true about (a) sta tut es and admin ist ra tive regula­tio ns; 2 (b) j udic ial o pin ion s) and agency rulings; (c ) trial papers and ap­pellate br iefs;4 (d) o ffice memo randa and opinion lell ers; (e) annolalio ns and d igest paragraph s; and (f) law trea li ses and legal arti cles. 5 II is even

AlbeIt P. BltIustein !rue (espec ially Hu e?) abo ut articles on lega l w ri t ing.&

Thi s is a se rio us mailer . For the ram ificat ions o f bad legal w r it ing are very COSily - in l ime, in money and , indeed , in th e ve ry quali ty o f li feJ Working to improve legal writ ing is no frivo lous exercise.

l egal w riting is importan t BECAUSE A) l egal writing is esse ntially w ha t

t he lawyer does;8 B) l egal wri t ing is the primary

vehicle used by lawyers to info rm and guide decision-makers and Ihose w ho see k legal adv ice;9

C) The co nsequences o f legal writing are so impo rlant ; IO

D) Good legal writing is essenlial 10 c lear legal thinki ng. II

Daniel Webster taughl fha t " the power o f c lear statement is the greal power o f the bar. "'2 Yel all are agreed that l oday's legal w riti ng product fall s fa r sho rl o f "clear stal ement" ll and fa r short o f what is expected of members o f th e bar.14

Th e law sc hools have lo ng been aw are o f thi s defic iency. ' 5 Q uit e r ightl y, they have put the majo r blame

" Recently two legal scho lars, Professor Albert Blaustein o f Rutgers and Ro y Mersky o f th e Universit y o f Texas, set o ut to grade all th e JuSl ices (U .S. Supreme Court) and the qualit y o f their ind ividual contribut ions" - Th e Twelve Great Justices o f All Tim e, Life, Ocrober 15, 1971 . Perh aps, we best accept Life's descriptiDn of Pro fessor Blaustein as " legal scho lar," since it wo uld take a boo k to reco unt th e bases th erefo r. He is author and co ­autho r o f numerous lega l books and articles. He has been Law Librarian at Rutgers and is a w orld -wide consul ­tant on law libraries and law schools. Usted in Who 's Wh o in America .

on the fai lure of high schoo l and col­lege Engli sh co mposit ion teac hers to send a bell er trai ned w r iter o n to the graduat e sc hoo lsYt BUI, 10 thei r credi t , the law sc hools do mo re than assign blame. By now , practically every law sc hool has some kind o f legal w riling program designed 10 produce bell er la wye r -wr i te rs. ' 7 Vet no o ne i s sat is fi ed . Now , w here do we go from here?

~~~~~~~~~~

"Give me three good reasons why lawyers like me need Dabbs Sui Ii van,Tru lock: ,

O.K . . . 1. We can handl e all t he detai ls of bl ock t rading, listed , unl is ted , or " letter" stock .

2. We've had more experience in raisi ng new ca pital for A rkansas f irms than any o ther investment banker based in A rkansas.

3. Our communications network keeps you - and your clients - in touch wi th the f inancia l world . We're the on ly A rkansas-based member of the New York Stock Exchange, Inc. Ca ll or visit today. We' ll give you more good reasons why you should keep in touch w ith us. ICR1

WE KEEP YOU IN TOUCH ~

DABBS SULLIVAN, T1WLOCK & COMPANY, INC. 41 2 lOUI".n. lillie Roc k. Arbns.as 72201 ~I rR 6 3381 III f, ll" A~enUfl P,ne Blull . A,kans.as 71601 SOl IE 4 29SO

214

, The law School Charge

Here are three rhings which the law schools can (and should) do 10 im ­prove legal writing:

A) Bring legal writing into Ihe under· graduate c la ssroom . Enter into working arrangements with the leachers of English composition 10

have stuuents (al leasl p r e law students) write papers on the law. Cooperate by (onduel ing discussions on legal topics leading to I he prepara­tion of suc h papers . Underlake criti ques , grading, elc. , of these papers . (As a start er, have the co llege student write a " lawyer leller" exp lain­ing a slatulory provision or an adm i­nistrative regulation to a perso n with less Ihan a high sc hoo l education .) In addition to the obvious value of such exercises , a program of this type will make pOl enlial law studenl s more conscious of Ihe imparlance of acquiring writing skills.

B) Make lega l writing an integral part of all contin uing legal educat ion programs. Members of the bar need this type of training too . They must be given an opport unit y to prepare memoranda o f law , opinion lellers, pleadings, trial memoranda, etc. , un ­der the direcl ion o f leachers of legal writing, as well as under sub jeci specialists. And the re is no beller way of learning a course or bei ng tested on proficiency in the subjeci mailer of a course. Sure it takes more time and ef­fori ; bUI it 's worth il.

C} Appoint legal -writing -expert teachers 10 teach lega l wriling courses. This is slaled with due apprecialion o f Ihe advantages of l eaching some legal writing as a part of every law sc hoo l course. (Srudenls in a criminal law co ur e might well be assigned to redraft a homicide sta tute and exp lain why; st udent s in a decedents' est ates course might well be given will draf­ling assignments ; and Ihere is required legal writing in sem inars, etc .) But this type o f legal wriling program cannot overcome the obslacle of so many teacher who do not care about legal wriling.

Legal wriling inslruction cannot be effective unless the teacher and the st udent go over the slUdenl 's work logelher on an individua l basis -pointing up and discussing ways in which each wril ing (and each draft) can be improved . This requ ires a leac her who is int erested in teaching l egal writing and wh o know s something about ir . This is nor a job for third -year students o r graduate fellow Nor is il a task for a junior professor who is required to assume Ihe chore unl i l someo ne even more junior is added to Ihe faculty and he, in lurn , gels sluck with i l.

On the ot her hand , il ca n.be said­and well said - Ihal lega l wriling is too imporlant a mailer 10 be left to legal writing leachers. This i s faculty business of a high order.

Some Lega l Writi ng G uidance Here is Ihe Blau slein decalogue of

legal writing prin ciples, maxims, con ­cepls and ideas - all of whic h are in a co nSlanl Slat e of revis ion :

1. The ABC's of good lega l w riling are nol accuracy, brevity and clarity. Use only Ihat degree o f accuracy, brev il y and clarily which is appro­priale 10 Ihe given sil ualion . 18

2. The ABC's of good legal wril ing are I he applications o f broad princi ­ples of law to concrete si luations. Never ci l e a case or st at e a princip le of law without sell ing for th the ap­plicable faci of Ihat case or the facts behind Ihe principle. And then show the specific application of those facts 10 the facts of the legal problem in­volved in the wriling.

3. Legal wriling is lega l thinking comm unicaled . Legal wriling can be no beller than Ihe Ihoughl s behind il. Lack of c laril y in wriling is usually the direct resull of fuzzy thi nking. The main reaso n why so much legal wriling is bad is because the w rilers do not know what Ihey are writing aboul.

4. Do bell er legal wriling by wriling less . Thi s is more than a reminder to write shorter paragraphs, composed of shorter senlences, fi lled with shorler words. It is a recommendation 10 make more skill ful and imaginative use of hea dings , su bh eadings , pun c · t ual ion , numbers and lellers, diagram s, lables , chart s, var iations in type faces, et c.

5. Sent ences composed of English words should be read , nol t ranslated .

6. In case of doubt as to Ihe relative clarity of a lega l wriling, the reader, not the wril er, must be right. To so me degree, th e writer is always besel by I he foresl -t rees dicho tomy o r " hang· up."

7. Brevity in legal writing is nol delermined by coun ling pages, lines o r words, Brevily is delermined by meas uring time - the time it takes 10

effect communicat ion bel ween the writing and the reader.

8. Innovale. Experimenl. So whal , if all Ihe new ideas don 'l work o ut ! Some will.

In Ihe RUlgers . Cam den lega l writing courses nexl yea r, this leacher is go ing 10 try some experi ment s with di clating equipment . The lawyer· wriler mUSI learn how 10 u se such eq uipmenl for gene ral co rrespon ­dence. How can he use I his mechani -

215

cal aid in o utlining legal writing idea, preparing first drafl s, etc.?

The most familia r legal document 10

both Ihe law st udenl and the legal praclitioner is the judicial opinion . law si udenis spend far more lime reading cases I han any 01 her type of legal writing. Thus Ihey know more about them . Practicing lawyers also know more aboul judicial opin io ns Ihan ab o ul m emora nda , briefs, opinion lell ers, etc. Why nol make beller use of I hi s kn ow ledge?

I have long plann ed to write an ar­liete recommending the inclusion o f a d raft opinion as part of every appellale brief. In Ihe alternative, I have long planned to include a draft opinion in Ihe next amicus brief which I was asked 10 co-a ulhor . Bul somehow the press of immed iate business has delayed that arlicle and somehow there has nol been eno ugh time for out side-I he-class brief writing. So , for the presenl , we will experiment with this idea in Rutgers . Camden legal wril ing co urses.

9. Be prepared 10 brea k every rule about good legal writing where il is appropriate 10 do so . Infinil ives ca n be sp lil 10 achieve emphasis. Brevity should be disrega rded where il makes wri l ing dull . Fo reign word s, long words and words wilh roots in Lal in and Greek may so metimes be used in preference 10 sh o rt Anglo-Saxon words. (There are even sil ual ions where four -letter Anglo -Saxo n words are completely inappropriate.) " It is unjust, si r," Samuel loh nso n said, " 10

censure lawyers fo r multiplying words . it is o f l en necessary fo r them to

~u'II'ipl y words." 19 But be aware of whal yo u are doing and why yo u are doing il.

10. When yo u fini sh a piece of legal wriling, stop. Of co urse Ihere are le~al co ncepts which have not been diS­cussed and of co urse there are cases st ill un resea rch ed . Of co urse yo u ca n always make the product bell er by rewriling il one more t ime. Of co urse there is an " i" left undo lled and a "1"

left uncrossed . But so be il. Th e end .

FOOTNOTES 1 "No soooel dOH ooe conlempt011e Ihe law a"d IlIeulUre

of Ihe I.w 11'1." he plunges heo1d· fir!ol 1010 . YISCOU\ se. of yelb.ge whICh ,Itt but dlown\ hIm " Ch.w, The Tyr.nny of Words (New YOlk, H.rcoulI , BrKe. 19)81 p 122

"The wllllen .nd spoken [nglt\h uwd belole OUI coun 1\

foil below ,he ~UOdolld wh ICh mould be u~ by gl.dUollH of ,n!>llluUon) of hlghel edUC.'lOn In Amellu

(T)he gl.mm."CoIl enOl) .re qune nOllCe.ble The COn!>l fUC11On of wnllmen ~\ 10 h.ye been fOlgollen e nillely ~ Quo,ed In lord.n, The h,s/,", N~ 10# /he Im{>lO~ rr.rn,n8 01 Col~ .nd Unlyerll/Y Gr.du./es (lis Unde'8,.du./el) '" fhe Uie 01 B,Ule fn8',lh IIccur.cy. ~dd'e~~ . AmefiColn A\\" lUI !h t' Ad· voi ncemen, n l Science (Oec 29. 19<;", P )8 "(Tlhe I.ngu.ge 01 \ '.'ute\ \et'm\ '" lU\!,ly [dmuml Bu,ke'\ I.men! th. , l.wvel\ hold ·bt'w.ld+"t·d 'hI" ... ·"'Id

Continued on page 216

Continued f rom page 2 15

• nd Ihem~lvl"i m org.nlllng form~ .nd cefemon_' .nd h.d ' pefplt'kt'd Ihe pl.lnr\! m.ueu wllh mel.phy\Iul I.,gon ' .. Rug"", N('le~ "n Ihe l.ngu .. ge of PllhIICS. M Pol Sci QU~II 481 . SOl (1949)

I l"I'~ nOI be.1 de. d hur..es • /Iud s Thl~ enuml'l.lIon IS fm IIIU~If"IIVt' PUI I)use~ only These

V.flUUS lyPf"i o f leg .. 1 wmmg ., .. mere ek.mple5 The II ... do" nol plt'lend 10 bt> e.h.U5hVt' Iht' .ule nf t'.fp't'SSH) unflH t'!I t'(clusoo .f' erluJ d._ nf)! .pply "Gu In "II Move dlrKlly 10 "II 00 nOl p.s~ 'Go ' On not COUKI '200 "

t And Ihelt' "'t' w m .. ny ollht'm' II 15 nHI ~ulpUs,"g Ih.l !toO m.ny l.wyel5 h.vt' wlluen ."ICit') .boUI 1t'S.1 ""'"llng Allt'l .,III . evt'rybudy likn HI I.lk ~op On Ihe ulhel h.nd (10 Ihe I.w 'hele I) .Iw.y~ 5<11"e "olh('1 h.nd" ), m.ny I.wyers .,t' 1t'luCl .. nl "' wltle .. boul leg.1 willing Ihl5 IS e5pe<"I"Uy true IIf 'e.chel) uf leg. I w""ng, mcludlng Ihe ilUlhm uf Ihl5 .rllcle Hen"s why Alllcit's .. boUI legal Willing shoule/he especlilily well wII"en And who w.nu III Ify til m('('1 Ih.1 ch .. llenge' Iht'lt' comes a 'Imt'. howevel. when Ihe w.chelof leg.l wllhng w.nlS 10 wy something on Iht' sublt'C1 And I' 11 '\ nlll wt'li w"Ut'n. wt'll . 10 hell wllh II

Wh .. 1 IS net>ded In Iht' Ilielillulr 01 Ih .. I .. w I\.n .mclt' on how 10 wlllr illIlCJ.es fin Iq .. 1 wIlling Iht'lt' .. I,e .. dy IS one on hnw 10 wrllt' Ihem fill wit' (I". m"ney) lur publlC..J llOn ott'Ck, Relot'.,ch .nd WII,mg fOi Ihp PIOIt'SSIOn.1 Milrkel Th .. fln .. nc •• 1 A5pt'<15. 19 I leg.l [d J2S (19&7)

, oon'l mmlmlle Ihe conlllbUllon of b.d It'g.I wfiling In Ihe III) 01 SOCiely tl;ad leg .. ' wrumg 1t'~ul '5 m nee<lle5~ ""ga"on . • nd II somellme5 h.ppt>n \ Ih .. , b .. d leg.1 willing I .. sulls In hilvmg Ihe wlong ".lIles IllS(' sume uf Ih .. 1 IlIlg .. lIon 8.Jd leg.1 Willing "Iso otdds '" Iht' sum 10lili o f all8,.villion .. nd bolednm And Iher .. 15 ('nnugh 01 bolh "f Ihese iI"e.dy

• " (M)olol 01 you (I .. wyel~) w.1I ~pend Ihlt't' ·luUllh~ of YUUI Plofe5~lon"l "'e wllh. nulC!brnll .nd. pencil 10 h .. nd Irylng 10 pUi down 10 willing .. lull' til cunduel In bt' lollowed 101 .,I ~lIlCul .. , U!lot' Nil "Ihel plllfe~51un.

unle~~ II bt> Ih.l uf. pwlenlfm.1 WIII('I . devoles • like • mounl of ellon .nd en('(gy I., willing " 8eli>C. Ablilly to

Prul .. u.onili (Iillis ilnd In ,he U~(' uf tht' [ngh\h l .. ngu.gl' , 2J Rucky Me l ReY 4& (1950)

~MN\Uled to lelm~ 01 bulk 01 qu .. nllly. by 1", Ihe l'e'I~ plopoliion 01 Ihl' lilWYi""~ I)IfIoduCI. Ihl' com· mo duy In whICh he d"ill~ . Ihe Ihlog which he ~IIs , II ~ou ple.\e. 15 Ihe Willi en wOld " PickeltOg. 00 le,,'OIng In Wille S~e~.ons fur SlUdy .nd P, .. cllce. 41 A B A ) 1121, 112211955)

.. "rur hllw un • ludge be mSIlUCled. If Ihe. (' be w .. nllng lUCid cxpl .. n.lI"n . SI.lemenl. offel of p'oo l~. delmllum "f Ihc I)OInt 10 q uesllon. d'5I1nCllon. elPO~IIIOn u f Ih(' .,w .. kel '5 nwn Ol)IOIo n, IU51 conclUSion flom .'gumenl s. .nl'Clp .... un of obll'Cllons, comp.lflwn5, t'x.mple5. dlge ... "," .. nd d'~II.bUllOn 01 m. lIel, occnlon.1 m · e"UI)I'Un ul OUI o pponeol. le1oI 'il lol on him wh .. n he

IniellUI)I, nU'\elv~. n!lot'nlOn, IUSllflCilloon. deslluClIve .... ch'" Qumll" .. o. InloiliUle-s of O,.IOfY, Bk. IX. ch II 2 (90 AD)

" UW~II .,e Siudenl5 01 I.ngu. ge by profes~n (T)he I .. nllu"~ Ihey U\oe IS the pflnCl~J meilns by wh IC h Ihey . chreve Ihell succrs~s, They exe,cise Ihei r powt" 10

COUll by milnlpul il lmg Ihe Iho UShn .nd op inions 01 ulhe.,. " Ph.lbllck, l "ngu.gl' .. nd the law (N ew YOlk, M.cmlll.n, 1949) p v

10"1 ilm nut behllhng my own ".d r, o llhe . r. de 01 .n isl · " ""'ge. when I ~.y Ihill Iilwyers ilnd judgrs h.ve . mOIl' Immedl.'e ,I .. k .. Ih.n h.s Ihe plo frssional w riler in ",h .. 1 15 M'I down on p.pel BUI 101 .. II YOUI Willi en Ih(,(IfY. fur y"ul full'S 01 tilw, fOI Ihe plecedrniS you mily m.~e ellht'l belme Ihe Iudge's bench 01 on ",Ihere IS. dllI"C' c hOlul .pphCilllOn Somebody gCH'S 10 1 ... 1, S(lmebildy P"~ • fine. 01 lOllells hiS money. 01 hiS ,epul .. lum Snmebi)dy h.n8\ , Of IS ~ved 110m h.ngmg " 8uwt'n , Ihe l"wyt'l .. nd Ihe Klng's [ngllsh . • dd,f>SS t~'h" I' Ihe 8, .. ndels lilWyt'IS Sucrely. Phll.delph, .. (Nnv 21. 1950) jlllv .. le p"nl . P 7

·· (A)I.Jt,ul 15 P~'1 u'nl "f In'II"Ic-d c.~. cuv .... e<! by the (c"n"nl~1 ~I udy .. nd ,t'.chlng .",)('11.1(' CUUIIS levnlvt>d .blluc p",blt'm\ 01 mieip/et.lllm of I.ngu.gt' A gcmd pol" III Ihp dlfflc ul ly, we concludt'd . w .. ~ u.ct'.bl(' dllt'Clly III mcumplt'le neguU"llun by Iht· p""Ie\ .. nd pum d, .. flsm.nshl l) ellh('( by Ihe " .. ,he, '" Ihell Cllun · 10('1 10 m .. ny III .he use~ Ihe cnull~ bluntly '><lId ~I" sn"llneid. Rev,ew "I s.. ~1C ("nll .. el l .. w by lun l fu ll ... . I I ll'g..Jl Ed lSI. 154 (1943)

" "I\.lodt',n [ngh~h , e-speclilily wllilen Eng,,\n. 1\ full ,,1 b .. d h.bn\ which ~ ".e .. d by Imll,,"un .. nd whteh c .. n be "V",d,·d If line ') wtllmg h, I.ke Ihe n,'Ct'~\.,y Imubll' If !lIlt' 1.("'5 lid ul tht'\€' h .. btl) one un Ihmk mill" cit'.,ly. .. nd 10 Ihmk cleil. ly I ~ .. nt'Ces ..... y III'" ~It' ll Iflw.,d

pollUu1 't'Sent'f"llOn !.O Ihill Ihe fight oI8"ln!ol Iud [ogh~ I ~ nUl fllvolous . If Ihoughl COIiUpU lilngu .. gt>. l"08uol8e un .1!iI' w"up! IhoUShl .. O1well • PohllCs .. nd .he [ng"sh l .. ngu .. ge. Ifo m, Shonung An [Iephilnl (New YOlk. H.rcouli . 8'i1ct' . 1945) pp 77,89

'1 H.lVey, Rem'",Kt'nce~ .nd Anecdoles of O"OIel W('b· SIl'l (80~lOn, l ill ie. 8mwn . 1877) " 1.8

" rhls may be Ihe " n ly Ihmg .boul whlch .n I.wye' s . nd .11 chenlS do . 1I,ee "(T )hroughuuI Ihe long hi~lo'y of Ihe It'gill p'/Jle§~.on Ihe peopl .. have .. Iways cumpl"lned .bclU! the w"y I~wyels Wille Al leasl I un II .. Ct' Ihl~ hISl"'y .. ~ 1 .. , b.Kk "'I CICt'IO, .. lli tlel , l"S.1 \\'llllng In Lilw PI"C"CP. II C.ltl 5 6 I 28, 29 (1956)

,. " 'h('le 15 genet.1 "glt'Pfl14'nl IhrnughoUi Ihe [08li~h -!>-p-e.kmg wmld Ih .. 1 m,,'" young men cllmlng 10 Ihe b", It'Cenlly h.vt' nOI hMl .. dequ .. le sk,n In Will 109 " Abt>I. InllUduitOn III It'Koll Willing. 12 fmnnlO l J 81 (1957)

I~ "Th .. fnS")1I (II Ihe I .. w Khool Slud('n' 1\ subft'Ct If) Ihe con!'!"nl CIIII(lsm "f Ihe I .. w KholJl I.cully. 10 hke man · nel Ihe [ng"~h II I I.w !oChool gl.d u.'es . ~ ~Cl)led by p,.CHClng I .. wyels " Viindelb.II, A Report on Pleleg.1 EdlK .. hon, 2S N V U l Rev 199. 245 (1950)

I. "(T)wenly IIt'I cent (ol . Columbia l ilw School cI.ss su, ­veyed) .dm.lled 10 no college coul§e§ '" [ngli~h com ­poStllfln Any eocou'''K .. meru line mlghl dellve lfUm ,he robust pelct'nl.gt' III Ihu\e whll h.d 'Kelved ".Imng tn w,II,"g IS Ioh.lleled when o nt' ilClu.lIy encounielS In

m .. 5S Ihe WII""O wurk of I.w Sludenl~ Evt'n Ihe mu~ IOle, .. nl III crlliCS Wilt c"ocede ,h., wh .. lever be rhe .. rt~ III whICh Ihe ~udt'nl~ .. ,e b.Kht'lors. Willing I~ nlll IIn(' III ,h .. m " Willlen. RepI'I11 <If Ih .. Deiln III rhe Scho·nl "f l .. w. ("Iumbl. UOIvelslly (lune 10. 1955) (1IIumb •• Untve,sIly BulI(,lln of Inlorm"ll()n. S51h Sell('). Nil 47 (Nrlv· ;U. 1955) P If

17 And Ihey \h"old .. l .... ,nlllg d""lsm.n~hlp '" Ihe !oCholll "I expelwnce eltdu~lvely I) cllslly In chents. II ,'I costly tllihe jlublic, .nd n ,'I clI ... ly III Ihe Iilwyel "IS lik .. I .... , · OInK )ulge,y by exp,,"ence - .1 .~ "oulblt'. bUI " ., wugh nn Ihe p .. llenl ilnd lough I)n .he .eput.Hon "f Ihe sUlgeon" 8e",dsley. 8ew •• t' 11'. Eschew .nd AVllld Pom • 1)lIUS Prn".lIy .. nd P1"lIIudlnou~ [pISlle5'.I&( .. ", S 8 I 65 (1941)

I. " The glliden lult' IS Ih.I,hele .,e ollgllldt'o lult'5 " "0., nlll do unl ll II,ht'IS ilS y"u wo uld Ihe.,. shlluld dn UOlII y"u Ih .. " 1 ..... ('1 mil.,. nf)! be Ihe .... me .. Ik>rn.,d sn.w . M.xlm) lu. Rt'vlltUlln", ... ~

,. SIISWf'Il. LII .. "I 0, lohnsun (1 79 1)

We're in the live stock business. Stephens Incorporated. Little Rock Investment Bankers.

216

Pine Bluff has a lot of good thin~ going for it. NBC's Trust DepartInent is one of them.

The largest trust department in South Arkansas didn't get that way without a little help. And a lot of that help has come from working with attorneys like the men being honored by The Arkansas Lawyer.

We congratulate and thank them and other attorneys who help make our work more professional.

National Bank of Commerce PINE BLUFF. ARKANSAS

Member FDIC

Editor 's Comment: In lin e with Report of the Assoc iation 's new Maritime Law Com ­mittee (published elsewhere in this iss ue), we will carry articles on Ad­miralty particularly o f interest to Arkansas lawyers. Mr. Roach could w ell have added " and In Arkansas" to the title o f his article. Th e article first appeared in Th e Journal of the Ok lahoma Bar Assoc iation . We are in ­debted to Th e Journal and to Mr . Roach for permiss ion to reprin t. He is associated with the law firm of Crowe, Dun levy, Thweatt , Swinford, Johnson & Burdick of Oklahoma City, and is a member of the Committee on Ad­miralty of the Oklah o ma Bar Associa­tion .

Th e purpose o f thi s article is two ­fo ld : (1) to rev iew and di sc uss some ba sic prin ciples o f adm irall y juri sdic ­tio n and th eir rela tion to the new A rkan sas Ri ve r wat e rwa y in Oklahoma, and (2) to determin e the sco pe o f the exclu siveness of ad ­miralt y jurisd iction and so me con­sid erations in choosing a forum , as between admiralt y, the law side of the sam e federal dislrict co urt , and state court , wh en admiralt y juri sdiction is not exclu sive.

As a ba sis for di sc uss io n o f admiralty juri sdic tion and it s rel evan ce to the new Oklah oma wat erway, and as a po int of reference fo r di sc uss ion of ex­clu siveness and c ho ice o f forum in ad ­miralt y matt er s, th e foll o wing hypoth etical will be used : A colli sion invo lving tw o vessels occurs on th e w at erway at a po int just below Tulsa's Pori o f Cat oosa and above w here the Ve rdigri s River enters the main chan ­nel. The co llision is the resull o f negl igent navigat ion by a resi dent of Arkan ... a'i w ho IS t he owner and pilot o f o rl(' o f th e craft. The own er of the ot hl'r c raft invo lved is an O klahoma IJu .. l rl( · .... man wh o 'ieeks comf)ensation tflr datll.l g I· 10 hili vesse l.

r IH' .iI)t)v(· hypot het ical rai 'ie, three

AD M IRALTY JURISTIC TI 0 N

IN OKLAHOMA:

Exclusiveness and Change of Forum

loyal J. Roach

primary iss ues: (1) Is admiralt y juri s­di ct io n in vo lved , i.e. does the co llision co nsti tut e a maritime to rt occ urring upon wat ers w ithin admiralt y juri sdic­l ion ? (2) If admiralt y jurisd ictio n does apply, is i t exclusive o r may so me ol her co urt ent ertain Ihe action ? (3) If there is a choice o f fo rum , what fac­l ors w ill influence the selection :

Es tablishi ng Admiralty Juri sdiction Befo re a litigant is allowed a cho ice

of fo rum , it muSI fir st be establi shed that his case is within th e admiral ty and maritim e juri sdi c ti o n of the Un ited Stal es. Th e hypo thetic al placed th e colli sion o n a portion of the water ­way which wa s alm ost ent irely man ­made by large scale excavat ion and dredging o perat ions.! Is t ha t po rt ion, along w ith th e remainder o f the w ater­wa y, within admiralt y jurisdi ction ?

Th e present sta te o f the law in th is count ry regarding " adm iralt y wat ers" is o ft en st at ed as fo llows: ... the admiralt y juri sdic t ion o f the Uni ted Sl at es extend s 10 all wate rs, sal t o r fresh , w ilh o r wi tho ut t ides, natural o r artific ial, w hi ch are in fac l navigabl e in int erst at e o r foreign wat er co mmerce, wh et her or not the parti cular body o f wa te r is wh o ll y within a stat e, and wh et her or not t he occ urrence or tran sact io n t hat is I he subrect ma t­ter of th e suit is confin ed to one stat e. j

In appl ying the above-s tat ed lest o f navigabilit y in int erst ate o r foreign comm erce, it is c lea r thai the Arkan sas Rive r wat erway sho uld be regarded as a na vigabl e wat er o f th e Unit ed States within admiralt y jurisd iction ," even at point s wh ere il is ent irely man -made.

The basic test fo r ad miralt y jurisdic­lion in to rt is embodied wi thin the wo rd " locality." That is, admiral ty to rt jurisdiclion depend s o n w hether the partic ular tort occurred upo n nav iga ­ble w at ers within the jurisd iction.S Therefo re, th e quest ion o f wh et her th e hypo! hel ical co ll isio n on t he Arkan sas Rive r waterway is a to ri w ithin ad -

218

miralty juri sdic tion mu st al so be an ­sw ered in th e affirmative. II sho uld be emphasized that juri sdiction in tort does no t depend upon damage or in ­ju ry being cau sed by a vessel;& nor is it essential that a to rt be committed aboard a vesse J.7 l ocati on upon navigable wa te rs has been held con ­Sistently, in th e absence of sta tute, to be the so le teSL/:!

Th e apparent ease in applying the localit y test in co llision cases, such as the Oklahoma hypoth etical. leaves an impression that the tes t is both simple and certain . Actuall y, th e localit y tes t ha s led to a number of probl em s. One probl em, which was confront ed in The Admiral Peoples9 and o th er similar cases, is how to determine the act ual location o f the to rt in vo lved . In tha t case a passenger leaVing a vesse l by way of a gangplank ext ending from Ihe ship 10 Ihe d ock tripped , fell from the gangplank upon th e doc k, and was injured . In ho lding the locatio n o f the tort to be aboard the vessel (and , therefo re, upon navigable waters -even though injury occurred on land) th e co urt said : "Th e basic fact in the instan t case is tha t th e gangplank w as a part o f the vesse l .. . whil e the passen ­ge r wa s o n th e gangplank she ha s not left th e vessel. " IU The sam e type of reaso ning ha s bee n used to apply ad ­miralt y juri sdic t ion in oth er cases where the actual location of the tort has been diffi cult to est ablish. II Thi s is co nsistent with the Supreme Court's tradi t ion o f continual expan sion of ad ­miral ty jurisdict ion in the U nit ed Sl ates.u

Anot her problem , which has been so lved by statu te, was the general rule Ihat to rt s cau sed by vessels and res ul ting in damage to land, or an ex­tensio n o f Ihe land (docks, etc.). were not in admiralt y jurisdi ction . ,j Th e probl em was so lved by the Admiralt y Extensio n Ac t which provides: " Th e admiral ty and mari tim e juri sd ic tion o f th e Unit ed Stat es shall extend to and in clude all cases of damage or injury, to per<;o n or prolw rr y, c .1u <;ed by a

vessel on navigable water, notwith­standing that such damage o r in jury be done or consummated on land ."14 Altho ugh the anomaly has bee n removed by stat ute, the problem of fixing the aClUal location of a to ri when applying th e general rule un ­doubtedly will continue to arise.'>

Having once establi shed fhat a par­ticular action is wi thin admiralty juris­dictio n,16 th e next step is to determine whether such juri sdiction is excl usive or whether there wi ll be a cho ice of fo rum s availabl e.' 7

Exclusi veness and the "Saving to Suitors" Clause

The source o f jurisdiclion in ad ­miralty is the Co nsti tu lion of the United States. Article III , § 2, provides: "The judicia l power shall ex tend ... to all cases of admiralt y and maritime jurisdict ion ." 18 In the Jud iciary ACI of 1789 . Congress gran ted exclusive origina l jurisdiction in all civil ca uses of admiralty and maritime jurisdiCt ion to the Unit ed States di strict co urt s. That grant of excl usive power in ­cluded a proviso " saving to suit ors, in all case , th e r igh t of a common law remedy, where the comm on law is compelent 10 give il. "19

The Supreme Court in a ser ies of cases defined the scope of the sav ing cla use as relat ed to the exc lu siveness of admiralty jurisdic tion. The effect of these cases is thi s: the saving to suitors clause gives I he law co url s20 conc ur­ren t jurisdiction with admiralty over actions in personam o r quasi in rem; admiralty has excl usive ju risdiction over proceedings in rem aga in st a vessel and state sta tu tes which create maritime lien s on vessels, or which create other proceedings in slate co urt s providing for enforcemen t in rem aga inst vessels, are invalid .21

Th e leading case interpret ing the saving 10 suilo rs cla use and defining Ihe extenl of exc lu sive jurisdiction in adm iralt y is The Moses Taylo r.22 There the plainliff brought an act ion in rem again st the vessel to foreclose a lien created by stat e stat ut e fo r breach of a cant ract o f passenger carr iage. In denying the co urt s o f California juris­dict ion to foreclose such liens, the Supreme Court said :

The act ion against the steamer by name, authorized by the Statute of California, is a proceeding in the nature and wi th the inciden ts o f a suil in adm iral ty. The distinguishing and charac teristic feature of such suit is thai the vessel or thing proceeded againsl is itself seized and impleaded as the defendant , and is judged and sen tenced accor­dingly. It is this dominion of the suit in admiralty over the vessel o r

thing it sel f which gives to the title, made under its dec rees, va lidit y againsl all Ihe world . By Ihe co m­mon law process, whet her of mesne allachment o r exec ution , property is reached o nly through a perso nal defendant , and then only to the extent o f his ti lle.21

The court also defined Ihe scope o f the saving to suit o rs clause by stat ing that it is no t a remedy in the common law co urt s w hich is saved, but rath er a common law remedy. The co url ex­plained further that since a proceeding in rem is a civil law remedy and was no t afforded by the co mmon law, il does no t co me wi thin the saving clause. The Supreme Court o ft en has reaffirmed it s v iew that in rem proceedings against vessels are exc lu · sively in admiralt y2" jurisdict ion during the years fo llow ing The Moses Taylor.

In Rounds v. Cloverport Foundry &­Machine CO.lS the co urt held that pro ­ceedi ngs agai nst a vesse l owner co upled with ancillary attac hment of hi s vessel to provid e security for th e plaintiff's cla im are within the compe­tency o f the sta le co urt s to entertain . So are si milar actions quasi in rem against a non-resi dent defendant , wh ere alla chmenl o f the vesse l establishes th e jurisdictio n of the co urt as well as furnishes secu rity to the plainliff.26

Upon co mbin ing th e above prin ­cipl es rega rding excl usiveness with the va rio us remedies available 10 the Oklahoma vessel owner in t he h ypot hetical co lli sion case , the fol lowing conc lu sio ns may be drawn: (1) II is a well -sell led principle o f maritime law that a colli sio n involving two vessels o r more on navigable waters gives rise to a maritime lien whic h may be discharged by an aclion in rem aga in st the vessel itself.27 lf thi s remedy is chosen , jurisdiction will be in admiralty exc lu sively. (2) Since the owner of t he Arkansas vesse l acted as her pilo t and is wit hin O klahoma, an action againsT him ma y be initiated in perSUfldrn . If thi s becomes the chosen cou rse of act ion , t he Ok lahoma suitor could seek relief for damages in state co urt. 28 He also co uld proceed in federal dist r ic t cou rt on the law side if the amount of damages sa tisfied juris­dictional requirements si nce the r equisite diversity of cit izenship element is present .29 (3) A third ap­proach would be to bring the action in rem against the vessel and in per­sonam again st the owner in the alternative. If this approach is selec­ted, because of the co unt in rem . juris­diction wou ld be in adm iralt y ex­clusively]. (4) Finally, Ihe suilor mighl bring an act ion in personam against the Arkansas owner and then , through

219

anci ll ary proceedings , atta ch the vessel and hold il 10 sal isfy any judg­ment rendered against the owner in the main action. Here the action could be brought in stat e co urt o r on the law side of the federal distric t co url. 11 II would be impractical to att empl this ancillary procedure in admiralty since the maritime lien created as a result of the co llisio n would permit seiz ure (civil arrest) of the vessel upon filing a libel (co mplaint) containing alterna ­t ive co unt s in rem again st the vessel and in perso nam against the owner.

After co n si d ering the rem edies wh ich may be used and t he fo rums made availabl e in eac h instance, th e following four consideratio ns will be influential in chOOSi ng a forum : (1) Ac­tions in admirally co urt s are tried to a judge witho ut a jury;12 (2) even when jur i dic tion in admiralty is nol ex­clusive, maritime law will be applied regardless of I he forum selecled;" (3) whether the subject mailer of the ac­tion is best sui ted for a jury (e.g., a perso nal injury action may offer beller jury ma terial than a property damage suil);1<4 (4) whether the remedy selec­led ca n sat isfy the amoun t o f the plaintiff's c laim (e.g., suing the vesse l in rem for a $50,000 claim when the vessel is onl y va lued at $20,000, or suing an owner only in perso nam w hen he is practica lly in so lvent) .lS

In the hypothetical co llision case Ihe preferable choice would pro bably be to ask for relie f in admiralt y ex­clusively by bringing the action in rem against t he vessel and in personam against th e owner in the alternative. Since propert y damage is t he basis of the action rather than personal injury, the time sav ing of a summary proceed­ing in admiralty without a jury will probably o utweigh any advan tage a jury trial might o ffer in anot her forum . In fact, the desirability of a particular forum will often dictale the remedy se lected .

Conclusion In review, il should be remembered

that before a choice of fo rum s is avai lable as between admirall y, the law side o f the sa me federal distric t court , and sta te co urt , it must first be establ ished that the case is within the admiralty and maritime jurisdiction o f the United States. All portions of the new Arkansas River wat erway which meet Ihe twin lests o f navigability in int erstat e o r foreign commerce are within adm iralt y jurisd iction. Torts are considered within admiralty jurisdic­tion which are locat ed (occur) upon wat ers within the jurisdi ctio n, as are tor ts cau sed by vesse ls even though

Continued on page 220

ContInued from page 219

they may be co nsummated on land . After jurisdiction in admiralty is established the questions o f exclu­siveness and cho ice of forum arise. Ex­c lusiveness is governed by the "saving to suitors" c lause which allows in per­so nam action s avai lable al commo n law to be tried in anyone of th e three forums available. Act ions in rem must be tr ied excl usively in admira lt y_ Choice of forum wi ll be influenced mainly by the fact that acti ons are tfied in admiralty before a judge w ilh out a jury in a summary proceeding. In addilion, marilime law will be applied regardless of the forum selected where juri sdicl ion in ad ­miral ty is nof excl usive.

FOOTNOTES

I The te rm .. ,~w side," for purposes of this note, me~ns the fedelll district court serving in its regul~r c~p~city ~ s ~ court o f I~w or equity illS o pposed to serving in its speci~lized cillp~city illS ~n ~dmir~lty court.

1 OKLAHOMA PEP, Vol. V, MiII,ch, 1969, ~t 4 (published by the O kbohomill In dustri~1 Develo pment ~nd P~rk Oep~rt·

mentl · J Th is o ften q uo ted PolSs;;Jge, which is supported by the

uses, olppe~rs in G. Gilmore and C BI~ck, The l~w o f Admir~lt y, 29 (1957). The following uses support the Sl oltement : Ell P~rte Boyer, 109 U.S. 632, 4 5. Ct . 434, 27l. Ed. 1057 (18841; The Oillniel 8.11, 77 U. S. 557, 19 l. Ed . 999 (1870); The Hine v. Trevor, 71 U. S. 555, 18l. Ed. 451 (1867); The Prope lle r Genessee Chief v. Filgzhllgh, 5) U. 5. 4)), 13 LEd. 1058 (18511. The Arkilns.s Rive r WolS deemed nilvigillble, .1 le.st in p.n , before pl~ns for the present walerw.y were even conceived. See 8rewer·ElIiot1 Oil & Gn Co. v. U. S., 260 U. S. 77, 4) 5. Ct. 60, 67 l. Ed. 140 (19221 .. nd Gllnd River O~m Authority v. Going, 29 F. Supp. J16 (19)91 where ;t was held and laler confi rmed th~ t the ArkillnsilS River WolS • n~vigable wollerw.y of the Uniled Stolles fro m the con nuence of the Gr.nd River .

S The Admir.1 Peoples, 295 U. S. 649, 5S S. Ct. 885, 79 l. Ed. 16)) (1935); Gr.nt Smith·Po rter Ship Co. v. Rohde, 257 U. S. 469.42 S. Ct . 157, 66 l. Ed. )21 (1922); Atl.ntic TI~nspo rt Co. v . Imbrovek, 2)4 U. S. 52, )4 5. Ct . 7)), 58 l. Ed. 1206 (19141; Ho ugh v. Western Transpon ill lion Co. (hereinolfter referred to n The Plymouth), 70 U. S. 20, 18 l. Ed. 125 (18661; G. Ro binson, Holndbook o f Admirall y tillW. ! 9 · 11 (19)9).

• Allan tic:: Tr.n5pOrt Co. v. lmb.ovclc, 2)4 U. S. 52. 34 5. Ct .

7)), 58 l. Ed. 1206 (1914). 7 Greal Lakes Dredge & Dock Co. v. Kierefewski , 26 1 U. S.

. 79, 43 S. Ct. 418,67 LEd . 756 (192)); Grant Smi th · Porter Ship Co. v . Rohde, 257 U. S. 469, 42 S. Ct . 157, 66 LEd. 121 (1922): Allantic Trill nsport Co. v. Imbrovek, N. 5, supr • .

I for the mOst part, st.t utes have had only a minimoll e f· fect o n the locality teSl . However, sla tutory consuuction hilS colused some ollterill tion by courts in Spe<: iol l u ses. One e .. mple is the lo nes ACI , 46 U.5.CA. 688 (1958), which hn been conSlrued in personil l in jury ol Clion s brought under it by seillmen, to indude torts occurring nhore wil hin ildmirillty jurisdiction when the seilm~n is fo und to h~ve suffered "per~onill injury during the ( OUlse o f h is e mployment." Anothel example is Ihe e f­fecI o f the Admirollty Jurisdic tion Extension Act discussed in n . IJ, infra.

, The Admir~1 Peoples, 295 U. S. 649, 55 5. Ct. 885, 791. Ed . 16)3 (1935).

10 Ibid at 650,55 5. CI. at 886, 79 L- Ed. at 16)4. "Mi nnie v. Port Huron Termin ol l Co., 295 U. S. 647, 55 S.

C1. 884, 79 L. Ed. 16)1 (1935); L'Hote v . Crowell , 54 f .2d 212 (5th G r., 19)1).

11 But see Nacirema Opela, ing Co. v . Johno;on, 396 U. S. 212,90 S. Ct. ) 47, 24 L. Ed. 2d )71 (1969) ~nd Rodrique v. Aetna C~s uillt y and Surety Co., 395 U. S. 352, 89 S. CI. t83S, 2) l. Ed. 2d 360 (1969)where the court may hilve milrked the beginning of the end of such eltp.1nsioo.

. , The Plymouth, n. 4, supril : The use establ ished the ru le by denying ~dmir~1ty jurisd iction to owners of iI whilrf damaged by fire Oligin ill ting fro m a ship.

,. 46 U.S.CA. § 740 (1958). IS See Weinstein v. tilsteln Airlines, Inc., 316 F.2d 758 (Jrd

O r .. 19(3). " If the O klaho mill hypothetical hild involved a contrilct

fOI the urri~ge of goods instead o f a tort (coll ision ). the plinciples involved wo uld be much different. In .d­mirillty jurisdiction problems involving con"ilcts, the key wo.d is not local ity but '"subject milu er" and thl:! courls w ill look to the maritime nil lUre of the contr.ct 'ilt her thiln where it is milde or performed. The test WillS fi lst stil ted in New Englolnd Mutuill Ins. Co. v. Dunhillm, 78 U. S. 1, 20 t. [d. 90 (1870). For a brief ~urvey of con · lfilCt jurisdiction see also: Detroit Trust Co. v . Barium S. S. Co., 293 U. S. 21 , 55 S. Ct. )1 , 79 l. Ed. 176 (1934); New 8edford Dry Dock Co. v. Purdy 258 U. S. 96, 42 S. CI. 243, 66 L [d. 482 (19221: The Frilnds McDonilld, 254 U. S. 242, 4 1 S. CI. 65, 65 l. Ed. 245 (1920): North Pac ific S. S. Co. v. Hilli 8ros. Co., 249 U. S. 119, )9 S. Ct . 221 , 6) t. Ed. 249 ( 191 9); People 's Ferry Co. v. Beers. 6 1 U. S. J9l. IS l. Ed. 961 ( 1857); G. Robinson, Hilndbook o f Ad ­mirilll1y taw i 19 (1939).

.1 It sho uld be noted ilt this poinl thil t even when ad· mirollty jurisdiction is not exclusive and iI choice of forums is olvailable, ~dmi ril lty and maritime law will be ol ppl ied regilrdless of the forum selected. See n. )2, infril .

" U. S. Const . iI" . III . S 2. The Constit ution does nOI iI, ·

tempt to d efi ne Whill is meilnt by the phlase "il il uses of admirillt y il nd milli, ime jurisdic tion;' nOf point 10 a reildy re ference by which the boundilries of ildm il. hy jurisd ict ion can be determined. The co nstruction of th is phrilse hilS been left to the courts,

• , 1 Stat. 76, !i 9 (1789). The uving cloluse provision hillS been urried ovel in to 28 U.5.CA. 0)) (1966).

10 He re the lerm '"Iilw CO Ul ts" re fers 10 both state cour, s

TAX-EXEMPT MUMCIPAL BONDS

and the law side of fede •• 1 district courts . I I But see C. I. Hendry Co. v. Moore, 318 U. S. 244,640.

VI. 499, 87 LEd . 663 (194) ) where stale COUlt WilS allowed to ente nol in iIIn olctio n for forfeiture in rem which w~s lecogn ized trad it ionil ily olt common Iilw . And, it should be not ed ilt th is point tholt some stat e created liens may be enforced in admirillty in rem: Bur­dine v. Willden, 91 f .2d 321 (5th Cif .. 19)7); lewis v. Jones, 27 f2d 72 (4th Cif.. 1928). cen . denied 278 U. S. 634, 49 S. Ct . )2, 7) LEd . 551 (19281.

11 The Moses hylor, 7T U. S. 408, 18 LEd . )97 (1866). 11 I., 71 U. S. olt 430, 18 L Ed. at 401. 10 The Gl ide, 167 U. S. 606, 17 S. Ct . 930. 42 l. Ed. 296

(1897) (furnish ing supplies 10 iI vessel ): The Belfillst, 74 U. S. 624, 19 l. Ed. 266 1869) (breilch of olff.eightment cont lilc ll ; The Hine v . Trevor, 71 U. S. 555, 18 l. Ed. 451 (1867) (collision)

I I Rounds v. Cloverport foundry & Mach ine Co . 237 U. 5 303, 35 S. Ct . 596, 59 L- Ed. 966 (1915).

lto Leon v. G.lcer,1n, 78 U. S. 186. 20 l. Ed. 74 (1871); Tolylo. v . Crryl, 61 U. S. 58l. 15 l. Ed. 1028 (1857).

11 The lohn G. Stevens, 1970 U. S. 114, lB S. Ct . 544, 421. Ed. 969 (1896); The "nilces, 93 f . 240 (4th O r., 18'99).

/I Rounds v. Cloverporl f oundry & Muhine Co., n. 25, supra.

l'! Where jurisdiction in admir.l ty is in pE'rsonam and is nOI e xclusive ~nd the "Silvings 10 suitors" cla use would allow iI proceeding in st ilt e cour t, the ,1c lion may illso be inSlit uted on thl:! law side o f the federal district court. However. in suc h ColseS d iversity of citizenship is req uired, iIS is the requisite jurisdictional amount : Seas Shipping Co. v. Sierilcki, )28 U. S. 84, 66 S. Ct . 872, 90 L. Ed. 1099 (1946); Cil rli sle Pilcking Co. v. Solnd~nger, 259 U. S. 255. 42 5. Ct . 475, b6 l. Ed. 927 (1922); Knapp StOUt & Co. v McC~ffrey, 177 U. S. 638, 205. Ct. 824, 44 l. Ed . 92 1 (1900); l eon v. Gil lceriln, 78 U. S. 185. 20 LEd. 74 (187 1); Philoldelphia & R.R.Co. v . Berg. 274 f . 534 (3d Cir., 1921), cert . denied, 257 U. S. 638, 42 S. Ct. SO, 66 L­Ed. 41 0 (192 1): G. Gilmore olnd C 81~ck. The l aw of Ad· mif~lty, 33 (1957). It ~hould be noted, however, thilt when a personoll injury ilction is brought under the lones Act by a seam~n diversity of dtilen~hip and a set ~moun t ~re not .equired since the ACI provide~ iI

separilte bilsis for eSlolbhshing jurisdiction in the federill court~ . In ~ddition. ilc tions undel the ACI un o nly be brought in per~n~m . See 46 U.S.CA.! 688 (1958).

It) See 28 U.5.C A. A.dmifalty Rules, Rule C ( I) (eff. luly 1, 19661·

II Rounds v. Cloverporl found ry & Millchtne Co., 2)7 U. S. )03, 35 S. Ct . S96. 59 t. Ed. 966 (19 15).

tl The Molrgaret, 22 U. S. 42 1. 6 l. [d. 127 (1824); The Silrilh, 21 U.S. )91, 5 l. Ed. 644 (182)). See G. Gilmo .e and C 8luk, The law o f Admirillty (1957) generilily.

1I Morilgne v. StolteS Milrine lines, ... U. S ... " 90 S. Ct . 26 l. Ed. 2d ))9 (1970); Ke.m~rec v. Compolgnie

Generille Trolns. tlilnt ique, )58 U. S. 625, 79 5. Ct . 40&. ) l. Ed . 2d SSO (1959); Pope & hlbol . lnc. v_ H.wn. 346 U 5. 406, 74 S. Ct. 202. 98 l. [d. 143 (19531; Gilrretf v . Moore·McCormack Co., J 17 U. 5 239,63 S. O . 246, 87 L Ed. 239 (1942).

Jo See J. Cohn, Choice o n f orum on Millfilime Personoll In · jury Torts. 54 III. 8ar J.. 966 (19&6) .

IS See E. P. Deutsch, Development of the Theory of Ad­mir~lty lur isdiction in the United St ales, J5 Tul ilne L Rev. 11 7 (1960) . •

FINANCIAL ADVISORS TO MUNICIPALITIES

Under.,U.,., Oi'I';b~lo .. & ~.I.r. In $"'e & Municipal Bondi 1130 Wo,.""" h"t allUding / lillie Rock. A.bnuol 72201"' 50'·'1&-1225 ........- .....-~ Robertson & CO

5100 Popl" " .,nuI, Suite 1202 1 " , mpllil, T.nn ..... 31137 / 901 .51 ... 61411 1 . . WATS In Arbn ... " 800·412·131' InCorporated

220

iA;ttppy i;n1t~ttY!i !

",~ar B~' qPltr Up!

•

Gather near and Harken all ye Barristers and Men of Lett ers of the Law.

I bear greetings tram these Men o f Goodwi ll.

Let it be known that at this end o f the Year o f Our Lo rd 1971 they bear yo u Hono r and Praise fo r your se rvice to your state and Lane.

Let it further be kn own that w ith the advent 01 the Year of O ur Lord 1972 they do bear a hearty desire for your continued acco mpli shment s, good fort une and happi ness .

To thi s end they pledge their Services and warm friendship.

So Be It.

221

(eND] Citizens NatiolUll Bank

0/ Jacksonville

greeti ngs to the gentlemen of the

Pulaski County Bar Association

P.O. Box 39, Jacksonville , Ark . 72076, (501 ) 982-1551

Gerald Cathy. Ken Jones

STANDARD AB5TRACT & TITLE COMPANY

310 Spring, Little Rack, 372-1857 32nd & W. Pershing, North Little Rack, 758-0337

Star City, Arkansas

NATIONAL ABSTRACT COMPANY

ABST RAC TS _ TITLE INSU R ANCE ESC ROWS

Lois M. Howard, Owner

Greetings to the Gentlemen of the Garland County Bar Association

209 Exchange St ., Hot Springs, Ark . 71901, (501) 623-1671

'i8i~I" "Ot.tW .&.J ... ~'

Winston I. Sloan, Vice President & Trust Officer FAYETTEVILLE, A RKANSAS 72702

I 19TH MID·YEAR MEETING· JANUARY 20·21, 1972

TH E LAWY ER'S BASIC CORPORATE PRACTICE MANUAL

The Manual i s the product of a joint e ndeavo r by the Section o f Corporation, Banking and Business Law of the American Bar Associ ati on and the AL I-ABA Joint Commi ttee on Continuing Legal Education. A Panel on Corpor ate Law Educatio nal Programs of t he Corporat e Laws Committee of the Sectio n handled the project . The Panel, for which Richard E . Deer was Ch i ef Reporter , was comp rised of a grouF of eminently qualified l awyers . They worked on the development of the Manual ove r a period of four years.

The Manua l was s peci f ically prepared as as t ext and a t eaching tool for use in continuing education programs . The text is addressed primarily to the problems o f the small, closely held company incorporated under the Model Business Corporation Act. It is in l oose-leaf format t o permit local supplementation. The authors indicate wha t that supple­mentatio n might consist of . Each chapter is followed by q uesti on s to be answered under the laws of the state in hich the book is used.

The Manua l will be used as a reference too l in the 19th Mid-Year Meeting .

The Manual will have added Arkan sas annotatio n s p r epared under the auspices o f the Mid- Ye ar Meeting Commit t ee .

The Manual h a s a list price o f $30 . 00 , but will be available t o Mid- Year Meet­ing r egistrants at the reduced p r ice of $20.00 , to include local annotations .

Richard A. Williams Chairman, Legal

Education Council

The Arkansas Bar Assoc iation is pleased to anno unce thai the midwinter meeting wil l aga in feature a topnotch program which sho uld be of interest 10 virt ually every lawyer in the slate. The meeting wi ll be held on Jan uary 20 and 21, 1972, al Ihe Ar linglon HOlel in Hoi Springs. Th e program wi ll be based upon Ihe All -ABA publicalion "The Lawyers Basic Corpo ra te Manual" wh ich offers assistance to the experienced corporate practit ioners as well as to the lawyer wi th out mu ch co rporate practice experien ce. The manual wi ll be suppl eme nted by Arkan · sas lawyers on those areas where kn ow ledge of Arkansas law is necessa ry.

O utstanding speakers from all across the co untry, in· cluding so me who were the reporters for the manua l, will speak at the midwinter meet ing. Also, Arkansas lawyers will spea k on the Arkansas aspects of corpo ra te practice. In addition, there will be an out standing soc ial program for lawyers and their wives. There wi ll be two luncheo ns and a recept ion and dinner. At each of these function s, the Bar wi ll be fortunate enough to be ad· dressed by some of the most outstanding men in the lega l professio n.

Every lawyer in the slate should mark his ca lendar now and plan to allend the meet ing.

John Selig, Chairman Mid· Year Meeting

222

I

HOTEL ARLINGTON, HOT SPRINGS, ARK. I BASIC CORPORATE PRACTICE

Thursday. January 20 9 :00 a.m.-5:00 p .m. Reg istration Mezzanine

10 :00 a.m. Committee Meetings NOON- LUNCHEON SESSION . . . . . . . Conference Center

Speaker : Nationally-known personage AFTERNOON SESSION .......... ... ..... Crystal Ballroom

2 :00·3:00

3 :00·3 :15 3 :15-4 :10

6 :00 p .m . 7 :00 p.m.

National Loca l To pic Spea ker Speaker

Is Incorporation Advisable? Planning the Capitalization .. Richard Deer Glenn Jones COFFEE BREAK The Articles of Incorporation The ByLaws ....... . . John T. Anderson John Sel ig RECEPTION .......... . . . ... Conference Center DINNER SESSION ............ Conference Center

Speaker : Nationally-known personage

Friday . Ja nuary 21 8 :00 a.m.-l0:00 a.m . Registra t ion Mezzanine

. . Conference Center Crystal Ball room

7 :30·9:00 a.m. CONTI NENTA L BREAK FAST MORNING SESS ION . ..

I. Reg istration fee wi ll include (1) Thursday Luncheon: (2) Thursday Reception and Dinner: (3) Friday Continental Breakfast ; (4) Friday Luncheon; (5) Coffee Breaks; and (6) the Seminar on Basic Cor­porale Practice. The reg istration fee will be only $35.00.

II . Standards Workshop III for the Arkansas Judges. Prosecuting At-

Every time you have a Federal Law

question, you need V.S.C.A.

that could be every time Federal law today has come to affect litera ll y thousands of everyday s ituations. At firs t gla nce, many may seem to be com­pletely out of federal jurisdiction . . until yo u've checked U.S.C.A. This is precise ly what tho usands of lawyers do . And it 's paid t hem ric h dividends. They keep V.S .C.A. at their fingerlips so they can do a complete job. Find oul how easy and economical U.S.C.A. is to own . Write:

WEST PUBLISHING COMPANY ARCHIE C. McLAREN, JR., 749 W. Snowdt'IJ Circle,

Ml'mphiS, Tenn. 38104, Phone: q()1 / 27b-Q172

223

National l oca l Topic Speaker Speaker

9 :00·10 :00 Accounting and Tax Elections. S. L Greenberg Robert Holmes

10 :Qt)·10 :50 Obta ining Capital .... Julian Meer Will iam Sherman 10:50·11 :05 COFFEE BREAK 11 :05·11 :55 Responsi b ilities and Liabil iti es of

. . lli r.ectors and Officers ... Myrl Scott J im Clark NOON LUNC HEON SESS ION .. . Conference Center

Speaker: Nationa ll y·known personage AFTERNOON SESSION . . . . . . . . . . . . . . . . . .. Crystal Ballroom

2 :00·3:00

3 :00·3 :50

3 :50-4 :10 4: 10·5:00

5:00 p.m .

National Local Topic

Corporate Execut ive Speaker Speaker

Compensation ... Stanley Simon Acquiring or Disposing

of a Business ... N. Jerrold Cohen COFFEE BR EAK Specia l Problems of Closely Held Corporations ... Arnold Fisher ADJOUR NMENT

H. T. Larzelere

W. P. Hamilton

Joh n Johnson

torneys and interested lawyers will run concurrently with the 19th Mid-Year Meeting. The two Seminars will join together for the meal sessions. It is anticipated that some 400 lawyers will be present for these tremendous programs. There wi ll be direct mailouts to the membership with registration forms for your con­venience. MARK YOUR CALENDAR - January 20, 21. 1972.

A TRUST

DEPARTMENT AS LARGE AS

SOUTH ARKANSAS

aD FIRST NATIONAL

O F EL DO R AD O

JURIS DICTUM by C.R. Huie Executive Secretary, Judiciat Department

Judge Davis Dut y, Judge o f th e Mun ic ipal Court at Rogers, Arkansas has experienced substantial success with the utilizatio n o f teenage juries . At o ur reques t Judge D uty prepared th e fo llo wing repo rt o f his ac tivities ;n this mos l important area, and we are happy to ha ve Judge Dul y as our guest writ er fo r this issue o f Th e Arkansas Law yer . His report fo llo ws:

THE TEEN JURY A New Approach to Teenage Crime

By Davis Duty, Municipal Judge, Rogers, Arkansas

Across the nation , teenage crime is on the ri se. Th is increase is d ispropor. lional ely great er than the numerica l growth of th e teenage population . In Rogers, Arkansas. however, th e trend has been reversed with an approxi ­mate 70 per cent dec rease in youthful o ffenses. The reaso n : this small North ­w est Arkan sas c it y (po pulation 11 ,050) has inaugurated a Teen Jury to deal with teenage o ffenders co nvicted by th e local Munici pal Co url.

The causes behind teenage crime are many and complex. They range from the bo redom o f middle- and up­per-class society to the press ures o f o v erp o pulati o n and eco n o m ic deprivat ion, and include such ele­ment s as urban clau slroph obia and drug abuse. Bul , w hat eve r the causes, it is indisputable thaI th e tradit ional puni shment s and deterrent s have become ineffectua l fo r the yo unger generation .

Fo r our purposes here, w e are co n­cerned on ly with those lesser cr imes wh ich are c lassi fi ed as misdemeano rs and o ver which munic ipa l co url S have juri sd iction, and fo r wh ich penalties are reSlriCled to lim ited fine and sho rt term jail sent ences. Aside from the questio n o f w heth er o r no t th ese penalt ies are appropriat e fo r the mosl mi sd emean or s, in ac t ua l prac t ice " Dad " in variably pays the fine, and seldom are teenagers jai led . In addi ­t ion , teenagers are insulat ed again st the stigma o f a crim inal record by stat e la w wh ich prohib its publication of their nam es In conn ect ion w ith their crim es. Thus, as a result o f inappro ­pria te pun ishmen ts and imped iment s to .. ubJec ting them to the consequen ­U ' " o f th eir acts, you thful offenders h·(·1 contempt fo r au th or it y an d little (fl n U 'rn for the la w .

O'H' flf thl' mO'i t promi sing ap-

proaches to this cr itical gap in o ur judicio-legal system is the Teen Jury. These program s funct ion today in many communities throughout th e nat ion, but mostly in large ci t ies. Rogers may well be the fi rst small c it y of it s size to adopt this program ; and it is certainl y the fi rsl commun ity o f an y size in Arkansas to do so .

At its inception in Rogers, it was no t kn own wh ether the Teen Jury wo uld be appropria te o r effective in this comparat ive ly small , middle-c la ss , lightl y indu str ial ized , dry communit y where yo ut hful o ffenses are usually limi ted to traffic vio lat ions. In the metropolitan areas wh ere the sys tem ha s previously been tried . it is o f great est value in dealing wi th ant i­soc ial , ghell o-o rient ed conduct , such as assault s, vandalism , brawling, etc. On the other hand , it w ould see m th at the t ime to strike at o ut law behavior sho uld be befo re it , and the condi ­tions wh ich spawn it , develop, no t af­terward.

Upon taking o ffi ce as MuniCipal Judge in January, 1971, I o ffered the program to the Rogers High Schoo l student s and guided them in o rganiz ­ing th e Jury. The pro jec t was laun ched as a vo lun teer, student-dominat ed program . It is school and parent ap­proved , but no t sc hoo l o r parent spo nso red o r cont ro lled . The Jury meets and funct ions o uts ide o f school hours on th e student s' own time. Two o ther adult s and I serve as a pan el o f adviso rs, from wh ich o ne member at ­tends eac h Jury session , to adv ise but not to d ictat e.

The Jury is o rga nized as fo llows: 1. A Jury pa nel co nsisting o f 15

members serving three-w eek term s staggered so that fi ve new members come on the Jury each wee k and fi ve go off. Jurors are selected by lo t from a

224

poo l made up o f all who volunteer from th e soph omo re, juni o r and senio r cla sses.

2. A bailiff chosen by 101 from a separat e volunteer pool. Th e bailiff presides at Jury sess ions, has custody o f th e offenders, present s the cases, and ma intain s o rder. The term of o f­fice is five w eeks, overlapping one week wi th hi s predecessor from who m he learn s hi s dut ies and one week with his successo r wh om he train s.

3. A c lerk , al so se lec ted by lot from ano th er separate, volunteer pool. The term , too, is fo r five w ee ks, with an overlapp ing w eek at eit her end fo r the purpose o f tra ining. In addition to hanu llng Ih ~ admrnl stratl ve det ails to r the Jury, th e c lerk keeps a docket on each case and advi ses th e court as to it s di sposi tion.

4. Wardens, consisting each w ee k o f the fi ve juro rs whose term s expired the previous week. A warden is assigned by the c lerk to each sub ject who acce pts a Jury penalt y. It is the warden's dut y to supervi se and eval ­uate the subject 's perfo rman ce and 10

report to the Jury whether o r no t it is sati sfacto ry.

The Teen Jury is an extra -judiCial process no t cont emplat ed either by Co nst itution or stat ut e. It depends upo n the vo luntary partic ipation o f a sub st ant ial cross -sec t io n o f h igh sc hool students and the vo luntary submi ss io n to it s juri sd ic tio n by juvenile o ffenders.

The system is simple. The mun ic ipal judge o ffers t he o pt ion o f appearing befo re th e T~en Jury to eve ry high sc hoo l stud ent th ro ugh the age o f 18 who pleads guil t y o r is co nv icted . If th e o ption is accep ted , acceptance o f the plea or r rono uncement of sen ­Ipnce is sl ayed. Th l-' SUbjf 'C t then ar-

pears wilh his pa ren ts before the lury. The Jury meers one evening each

week in the municipal co urtroom. The proceedings are conducted entirely by the sludenl members, wilh Ihe bailiff presiding. Each case is presenled separalely, firsl wilh a reading of ~ sta tement of facls , prepared by the mun icipal judge. Next the subjeci is permilled 10 tell hi s side of the story, nol as a defe nse, si nce th e Jury co n­siders cases o n the basis of a va lid (onvielion , but for the purpose of possibly mi tigat ing the penalty. Pare nts are then offered the opportunit y 10

speak, and Ihe jurors themselves may ask quest ions . Arter each presentation, the lury dev ises a penalt y appropriale to the particular crime. If it is litl ering, the sub ject may be required 10 clean up a mile or two of roadside; if speed ­ing, perhaps to w rit e a theme of one tho usand words on the hazards of driving, includ ing the effeclS on in ­sura nce rates; if running a SlO p sign, perhaps to draw a map of that quadrant of th e citV in which th e in ­fraction occurred , showing all traffic control devices .

Afler the Jury agrees on a penalty, the subject is offered the option o f ac­cepting or rejecting il. If rejected, he is remanded back to the municipal co url for sentencing. If accepted, a warden is appointed to oversee and judge Ihe performan ce of th e penalty. If his report is unfavorable, the sub ject is also remanded back to the courl. If favorable , the courl is so advised and the charges are officially dism issed.

The Rogers experim ent is st ill too new to draw any definite conclu sions, but there are alread y so me indica tions o f it s effective ness .

While, like the rest o f th e nation, th e teenage cr ime rat e has increased in Bent on Count y as a whole, it has decreased in Rogers by approximately 70 per cent since the fir st o f th e year. During the ea rl y weeks in Jaunary, before the Teen lury got under way, there w ere numerous teenagers ap­pearing at each session of the Munici ­pal Courl . Now there are seldom more than one or two teenagers per week before the co urt. In fact , recently the Jury has had to meet on alt ernate weeks because of t he shortage of sub­jects.

Also of interest is the fact that o f the fifty or so student s who have served on the Jury, only tw o have subsequen­tly co mmitt ed offenses leading to their appearance before t he Jury; and of the more than six ty o ffenders w ho have appeared before the lury, onl y twO have repealed . Most revealing was the case of fo ur boys charged and convic­ted togeth er of the same offense. Two of them elected to go before th e Teen

lury and have nol been before the court again . The o th er two refu sed the lury option and bolh have been before Ihe court subsequenlly for new offenses .

When asked whether Ihe Teen lury has affecled Iheir personal thinking, the student s invariably express si ncere trepidat ion at appearing before the lury and affirm that it has made th em ultra-co nsc ious o f the law .

Th e Teen Jury is no t a cure-all for teenage crime. However, it is an effec­tive instrumen t, which is o f particular importance si nce it comes at a t ime when Ifaditional approaches to this problem are failing. But Ihe Teen lury is an instrument with a will of its own. The adult community must be willing to cooperate but not dominate. The teenagers must be inspired to assume the offered rpsponsibility, which in turn must be broad enough and meaningful enough to make it worth their while. Finally, it presupposes a municipal judge who is willing to cooperat e and to devote a con­si derable amount of hi s own tim e.

Benefit s o f the prog ram inure equally to the subjects and to mem­bers of the lury. For the subjeclS the benefits are two-fold : first is the ad­vantage o f keeping one's record clean and of avoiding a fine or jail sentence; second, and of greater imparlance, is

the redirect ing of the subject 's atti ­tudes and behavior into constructing channels. Instead of being subjected to adult crit icism, which he may not res pec t and which he certainly resent s, he is confronted with the cen­sure of his peer group, his fellow st udent s, whose opinions he respects, and whose approbation he needs. He is thus motivated to rethink and reshape his attitudes and responses.

On the other hand, the lury mem­bers benefit through directly taking part in co mmunit y life . Rather than onlookers, they become responsible participants i n government and society. They thus acquire a slake in the " Establishment. " The ob jec tive is to motivat e yo uth to defend and par­ticipate in society rather than attack and rebel against il. That the program is having th e int ended effect is demonstrated by one juror 's com ­ment , when questioned about hi s in ­sistence upon severe penalties, that teenagers, th ei r motives and capac it y, are suspect by adulis, and that if the Teen Jury is to succeed it mu st gain the respec i of the aduli community, and this can only be done by selling it s standard s substantiall y higher than those whi ch the adults set for th em­selves. How bell er co uld we arm o ur yo uth for their journey into the fright ening world of the lale Twentieth Cent ury?

Judge Jerry Shell Elected President State Judicial Council of Arkansas

Chancellor and Probate ludge Terry Shell of lo nesboro was elected president of the State Judic ial Council of Arkan sas al it s annual meeting held recently at the Arlington Hotel in Hot Spr ings, Arkan sas. ludge Shell had previously served as vice-president of the co uncil, which is composed o f all o f the upreme Cou rl , Circuit, and Chancery and Probat e ludges of the

225

Stat e. ludge Shell, a native of Franklin , Arkansas, is married and has two children. He all ended the lonesboro public sc hoo ls and is a graduate of Arkansas Sta te Universi ty o f Jonesboro and the University of Arkansas law Sc hoo l in Fayetteville. He served as Sial e Representative from Craighead Count y in 1951 and as Prosec uring At­torney of the Second Jud icial Circuit for three terms, beginning in 1954 during which time he served a term as president of the Prosecuting Attorneys Assoc iation . He was elected Chancery ludge of the Twelfth Charcery Circuit in 1960 and has served in that capacity si nce that time. He is a member of the First Baptist Church of lonesboro and a mem ber o f many civic organizations.

The ludic ial Counci l elected ludge Harrell Simpson o f Pocahontas as vice-president and Circuil Judge Tom Digby of lillie Rock was appointed treasurer. C. R. Huie, Executive Secretary of the Judicia l Department also serves as secretary of the Stalt! Judicial Council.

Charlie Gordon, Jr. Charles A. West Charles R. Bonner

Howard J. Wiechern

Del l. Brannon H. Kenneth Reed J. Gordon Reese

ffianufactlJ( g CO.

5th & Walnut, P.O Box 7463. Pine Bluff, Ark . 71601 , (501) 534-5710

BRA N D 0.0." r"OO"'NC

J.G. Smith, President

226

"Our Men I~ Pine Bluff" who reflect the Spirit of Leadership. We take sincere pride in their ability and dedication, for we know that true leadership has no price, only dedication and ef­fort.

We who live and work with these "Gentlemen of The Bar" join in the satisfaction of their contributions to a Greater Tomorrow-for a Greater Arkansas.

~~-~~ .G:.fiLrtJt ---UIJ

PINE BLUFF CRATING & PALLET, INC.

Pallets To Your Specifications. Lumber Cut To length

2600 Persimmon St., Pine Bluff. Ark . 71601. (501) 534-2287

~ Central Moloney Inc Colt Industries ~ Transformer Division

Ralph C. Mitchell, Vice President

@!"4:M~&' WELCH MOTOR COMPANY Of Southeast Arkansas Carl Welch, Sr.-Carl Welch, Jr.-John C. Welch

President

2505 Olive St., Pine Bluff, Ark . 71601 (501) 534-1551

227

o GENERAL WATERWORKS CORPORATION

MURRAY W. REICHEN, Manager

P.O. Box 6070 Pine Bluff, Ark. 7160

Ben Pearson

1

Manufacturing Company I c.

President Vice President Sec.-r- reas. G.E. POWELL M.H. BLANKENSHIP E.H. LI DSAY

P.O. Box 6515, Pine Bluff, Ark. 71601, (501) 534.30e::34

PINE BLUFF COMMERCIAL

300 Beech St., P.O. Box 6469. Pine Bluff, Ark. 71601 , (50 1) 534-3400

MEANS & MCLELLAN. INC.

Insuranoe John H. Means-Jim McLellan, Jr.-Warren C. Means

Fifth Avenue Bldg., Pine Bluff, Ark. 71601

The Crime Spira l " M ore v icious than ever" is the title

o f an ed itorial that appea red last week in a Wa shingt o n, D .C. , new spaper. This article no ted that , nati onall y, mur · der was up 10 per cent , fo rcible rape 7 per cent , armed robbery 19 per cent, and aggravat ed assault 1 ° per cent in the fir st six months o f this year, as compared 10 Ihe fi rs l half of 1970.

On th e same day thi s edi torial w as publi sh ed - O Clo ber 3rd - Ihree atrocious murders w ere co mmitt ed in the Wa shington , D.C., area - tw o o f the vic tim s having been raped before Ihey were killed. These brula l facl s tho roughly support the edi to r ial 's con · clusion that " Vio lent crim e is getting worse," and th at " A c itizen is more likely 10 be murdered, raped, robbed or assault ed today than a year ago, o r two years ago, or five years ago."

The harsh impa rl o f Ihese appalling stat istics seems to irrefutabl y co nfirm that our crim inal justice system is to t­tering and failing 10 p rovide the prot ectio n and safet y to o ur c itizens and societ y tha t it was designed to give.

We can no longer remain callo us o r indifferent to this startling realit y. Rem edial action o n all front s to correct existing majo r deficiencies in that system is imperat ive. As dis­tinguished judges, prosecutors, and practicing attorneys, you are fully aware o f thi s and the duties in respect thereto that devo lve upon yo u by rea so n o f the po si tions of hono r and trust which yo u ho ld .

The alternat ives o pen to us are : (1) We can either go forward by updating the law to eliminate those deficiencies and to improve th e admini stratio n of the system so as to meet the exigen ­cies of our age, o r (2) w e can stumble along with outmoded and inadequat e procedures and machinery until th e slowl y grinding wheels o f justi ce reach

"The Challenge of Reform in the Administration of Criminal Justice"

Senator John L. McClellan

(Tex t of his address at the Arkansas Judges ' and Prosecuting Atto rn eys' Workshop II on Standards (or Crimina l Justice on O ctober 8, 1971 . It is most unfo rtunate that the side co mmentaries b y Senator McClellan were no t recorded . Following his challenging sp eech, Senator McClellan received a standing o vatio n .)

such a dec line as to p roduce no just ice at all.

Constructive Effort

This exce ll ent Workshop w hich yo u are co nducting evidences yo ur com ­mitment to pursue the fir st o f th ose alt erna t ives. Yo ur labo rs here are a manife statio n o f positive action, and th ey are ind icati ve of your strong de terminat ion to el im inat e th ose majo r fault s in o ur system which today impede rather tha n further th e cau se o f just ic e. I am proud , indeed, of th e leadership ro le that the Arkan sas Bar is taking in this crucial problem o f judicial refo rm .

Under o ur framework o f govern ­ment , th e primary responsibilit y fo r keeping the peace and protect ing socie ty from criminal assau lts and im· pOSitions, res ts with sta te and local juri sdiction s. The Co nstitution o f the United Stal es recogni zes and the Co ngress in t he exercise o f its legisla­t ive powers ac knowledges that the responsibili ty (o r law enfo rcement is esse ntiall y local - that it is based upon local initiative, generated by local en ergies , and cant ro lled by local o ffi cials. The Congress, in the enact ­ment o f th e O mnibus Crime Contro l and Safe Streets Act o f 1968 reaffirmed its confidence in the wi llingness and in the abili ty of local jurisdictio ns to meet these law enforcement responsi­bilities.

Th us, th e touchstone o f the Federal Government 's new and expanding rol e _ set o ul in the Safe Streets Act o f 1968 - is nol int ended in any way to usurp state pow ers, but ra l her 10 help the severa l st ates and hometown authorities 10 help th emse lves in meeting to day's awesome challenge o f crim e. Thi s ro le, the Federal Govern ­ment can properl y play and , in doing so, provide th e mea sure o f ass istan ce

228

that is urgently needed by st ate an d local authorit ies .

When we co nsider tha t du ring the past decade the an nual c ri me rale in this co untry went up 144 per ce nt and thaI during tha t same period vio lent crim es inc reased 160 pe r cent - 84 cr im es of v io lence are co mmitt ed every ho ur in America, in cluding four rapes and two murders - we can have so me understanding of the SHain and burdens that this rampan t law less­ness places upon sl ate and local governm ents. Th e difficul ties they face in apprehending th e c rimina l, in safe­guarding the innoce nt, and in bea ring the tremendous cost that effecti ve law enfo rce ment imposes are rapi d ly becoming in surmoun ta ble and int o ler­able.

To process more than five mill ion o ffenders, to try mo re than three million criminal cases each year, and 10 main tain thei r penal popula t ion, states and local governm ent s mu st employ mo re than 660,000 persons -eight per cent o f the tota l o f all sta te and local governm en t employees, and th ey mu st spend more than five per cent o f their tol al revenues - some $6.5 bil l io n.

LEAA Th ese h eav y co mmitm ent s o f

mon ey and manpower in th e fight against crime ca nst i t ule a cripp ling drain o n f in anc ial reso urces that o therw ise co uld be used fo r such co n­structi ve program s as ho using, health , edu catio n, and civi c improve ments. To help the stat es carry th is mounting fi scal burden , Co ngress has estab­l ished a program o f assistance. It is, as yo u kn ow , admini stered under the Law Enforcement Ass istan ce Adm inis­tration (lEAA) . During this yea r and the next , mo re than $1 b ill ion 200 mil­lion in federal funds w ill be expended to strengthen the local machinery o f

justice and to improve law enforce­men I in all 51 ales of Ihe nalion.

Much of Ihis money will be used for Ihe developmenl of larger and beller trained local police uni ts, for expan­ded police services, and for Ihe acqui ­silion 0\ improved equipmenl and modern facilities . Another porrion o f LEAA 's budgel will be allocaled 10 Ihe revision of court procedures and the refo rm and modernization o f correc­tional inslit utions .

We are making substan tial progress in srrenghening law enforcement with LEAA assistance, bUI we have yel far 10

go before we reach Ihe full pOlenlial of its benefits and achievements. II will probably be anolher Ihree 10 five years before Ihe full impaci of ils ef­fec t iveness is reached - not unt it then, can we make a comprehensive and accurate assessm ent of ils worth .

While federal funds can be of im­measurable assistance in many areas o f law enforce menl , Ihe LEAA programs are nOI a panacea for all of Ihe ills Ihal besel our syslem of juslice. Man y administ rati ve and legi slative actions are req uired by the stat es and loca l jurisdictions to streamline and modernize the processes of lit igation and adjudication . As ha s been truly said , " lu st ice delayed is justice denied."

The congesled dockel in many juris­diclions Ihroughoul Ihe land loday prevents the " speedy trial " guaranteed 10 Ihe accused by Ihe Consli lulion of Ihe Uniled Siaies . However, under Ihe co ndi tions of law lessness and defiance Ihal prevail in America loday, the inability or fai lure to procure a " speedy tria l" produ ces a greater in ­just ice and injury to soc iety than it does to the acc used . The criminal of­ten seeks postponement and benefits from delay. Whi le out on bai l for a year, two years, o r more awaiting trial, the habitual and hardened criminal usually co ntinues his nefarious activi ­ties wit h profit to himself and furth er damage to society. This condition has war ened considerably in the last few years. State and loca l co urts are not alone in failing 10 meet the " speedy trial " guarantee of the Sixth Amend ­ment of the Constitution - federa l crimina l proceedings are now taking twice as long as they did juS! 10 years ago .

In anot her area, I am incli ned to agree wi th Atto rney General Mitchell who declared in a recent address that " ... th e Hydra of excess procedura ­lisms. archaic fo rma lisms. pretrial malians, post -trial motions. appeals, postponements, con tinuances, (and) collateral attacks,. . can have the ef­feCI of dragging justice 10 death and stealing the very life out o f the law."

He funher sa id Ihalloday "We face ... a si lual ion wh ere Ihe discovery of guill or innocence as a (unction of the courl s is in danger of drowning in a sea of legalisms."

The Challenge We must act to improve the situa­

tion in th e!Je areas before public confi ­dence - which is so basic and so in ­dispensa ble to an o rdered soc iety -erodes to a point beyond repair. We must so mehow overco me the ritual­istic Nemesis which today too often is interfering with and frustrating both the mea ns and the ends of justice. In this , regard, I am co nfident that the American Bar Association sta ndards, which I undersland yo u are sludying at these workshops, will provide some guidance to a so lution of this problem . I am proud to acknow ledge,' however, Ihal due 10 Ihe effo rl s and dedicalion of o ur co urt s and the coopera t ion of th e Arka nsas Bar in pr o m oting speedier justice, thi s problem is not as acc ute here in Arkan sas as il is else­where in the nation .

There is a great need for im prove­ment in our penal institutions. Not on ly are many new and modern struc­tures needed - st ru ct ures that will provide greater security and more humane accommodations for the in­mates - but there is also a need for reforms that will place greater st ress on rehabi lit ation, using more effec· lively Ihe IDols of educalion, psy­ch iatry. and job training. However, we know that th e very best effo rt s 10 rehabilitat e crimin als are not always successful. There are those - 100 many - who have become co nfirmed criminals and mu st be so regarded and treated .

Accordingly, Part E of the Omnibus Crime Cont ro l Act of 1970 authorizes federal assistance to stales to improve priso ns and jails and 10 eSlablish programs o f rehabilitation , probation and parole. I hope Arkansas w ill lake full advantage o f this available assis­tance. Ea rlier this year (lune 24th), w e were able 10 get from LEAA for Arka n­sas more than $1 million 600 thousand for projects that come within this calegory.

Di~ectly relal ed to and associated wit h the problem of rehabil i tation are the suspensions of se ntence, proba­tion and parole. Abuses o f these powers are ent irely too numerous. Greater ca re, ca ution , and regard for the safety of society must be exercised by those who have the authority to gran t such leniencies . There are simply loa many repeaters of serious cri mes roaming our streets - crimina ls who have prev iously been convicted of violent crim es .

229

Thi s condition greatly increases the danger 10 our c it izens; il is a scat hing reproach 10 Ihe qualily and credibilil y of law enforcement in this co untry; and it presents a challenge to our inte­grity and to o ur wi ll to do somet hing aboul il. I believe we wi ll do some­thing about it. I have hope; I am en­co uraged; I do nol despair.

Ac tion Througho ut the nation, compla­

cency is giving way to concern; indif­ference is being replaced with in­volvement ; and inaction is being sup­planted with initiative. This Workshop of yours and others like it, loget her with many ot her activities throughout the country, evidence these changes and signal the co ming o f Significa nt improvement s.

On Ihe federal level, much has been done in the past three or fo ur years year s to co mbat crime and to st rengthen law enforcement in o ur country.

Many good laws have been passed. Amo ng those most prominent, com· prehensive, and effective are: The Omnibus Crime Conlrol and Safe Sireeis ACI of 1968, Ihe Omnibus Crime Conlrol ACI of 1970, and Ihe Organized Crime Conlrol Acl of 1970. These measures provide law enfor­cement agencies with an arsenal of new weapons - weapons that are now being employed mosl produc­tively. The great co ntributions these new laws can make and will make towards the maintenance o f law and order are just beginning. Their use and vigorous applica tion and enforcement will certain ly take a heavy toll among the ranks of professional criminal s and the organized crim e elements who are today preying on the American economy and on the many innocent and helpless victims among o ur people . •

Once a mo ney se ttlem ent agree­menl is reached , Ihe plain l iff and his

al/ o rney (except in D ecem ber) usua ll y want their mo ney as so o n as poss ible and tend to sign anything wh ich ac ­companies the chec k. If i t ' s a prin ted fo rm and has the w o rd "s tandard" an ywh ere o n it , signatures are pract i­call y guaranl eed.

On Ihe olher hand , Ihe defendan l's atto rney is inc l ined to in cl ud e as re leased eve ry possible re levant and irrelevant mail er fro m the beginning o f the w o rld to the date o f exec ut io n, and Ihen add indem nil y and hold harmless proviSio ns wh ich em ulate so m e rail road's sidetrack agreement s.

Representing a pla in tiff, yo u d o no t w ant th e release d oc um en ts to prej udice cla im s o r right s o f yo ur c l ien t o r of any o thers, over and beyo nd w hat is in tended and paid fo r.

Fo r a de fe ndan t, yo u wa nt an assur ­ance o f finalit y w i th respect to the in ­vo lved claims and all perso ns o r in ­terests entitled to assert o r par tic ipate in an y c laim.

Ba sicall y, o f co urse, a release is a co n t rac t and is an act by a perso n giv ing up o r aban do n ing a c laim, demand, righl or debl , as conl ra sled wi th extingu ishment by o pera tio n o f law .

O ur con ce rn will be o n ly w i th Arkan sas l aw an d w it h re leases in w rit ing. W e will , therefo re, ass ume exec u tio n, valuable co nsideration (no t necessar i ly ad equate co nsiderat ion , Hermo n v. Harri so n, 201 Ark. 988, 147 S.W. 2d 739 (1941); HU lcheson v. Fr ilo l ay, Inc. , 3'15 f 2nd 818 (81h Cir. 1963)) and delivery.

To get a final an d co mplete di s­charge o f all cla im s, yo u must fir st know and idenlify the vario us right s o r causes o f act io n w hich exist o r may exist and w ho may be enti tled to assert eac h o ne. Simpl e exam ples are (1) w hen a marr ied perso n rece ives bodi ly in juries, the spo use has hi s o r her o wn cause o f ac t io n; (2) in juries to a mino r give ri se 10 a parent's o wn ca use o f ac t ion in add i t ion to any claim s of the m ino r; and (3) in death cases the in jury and dam age c laim s of the estat e are a separa te and disti nc t cause o f act ion from that fo r the dealh .

Th is morning we w ill l imi t o urselves to fo ur areas: (1 ) jo int to rt feasors; (2) spli t ting a cause o f act io n; (3) m ino r 's c laim s; and (4) d eath cases .

l oi nt Torlfeasors O ne start s w i th th e co mmo n law

rule tha t th e release o f onE' jo in t to rt ­h'.1' ... o r re leases all . The theo ry here is Ih.t t Ilwf(,' i!O !Ouch an essel1lial un i ty o f lilt' I lllm it' ... cl ila thf> fac t th at the in ­Ilii t'd t ... t' lltttl t'a III bUI nne ... ali.;fac t ion

Documentation of

Settlements Robert S. Lindsey

Ed ito r's no te : The Arka nsas Bar Assoc iatio n 's Fall Legal Institut e in lill ie Rock, Sepl ember 17, 18, 1971 w as pro fess i o na ll y and alle n ­dan ce wi se I he m os t su ccess fu l sem inar in recen t yea rs. Dealing wit h " Effec t ive Preparati o n and Settle­m ent Tec h niques i n Perso nal Inj ury Cases," th e prese nta tio ns, espec ially the text here publ ished , co ncerned pract ical, bread -and -b u tter pro blems of the Arkansas prac ti tio ner. As w as sta ted in the program , the speakers stood at the ve ry apex o f the Bar. Of th e ten speakers, o nl y Ro bert S. li nd ­sey w as fro m Arkan sas. He is a part ­ner in the W righ t, Lindsey and Jen ­nings law fi rm and was recipient o f Ihe Out sta nding Lawye r Awa rd o f the Arkan sas Bar Fo un datio n in 1969.

as to make i t impossible fo r th e in ­jured person to se ttl e wi th o ne to rt ­feaso r w i thout d ischarging th e o th ers. Acco rdingly, i f an injured perso n ac ­ce pt ed paymen t i f"! sat isfac i ion fro m o ne w ro ngd oer, he thereby released all o ther wro ngdoers. To get around thi s " surviv ing rel ic o f the Co kian period o f met aph ys ics" (Frida y v. Uniled Stale s, 239 F 2nd 701 , 705 (9 O r. 1957 )), reso rt w as had to cove­nants no t 10 sue. Fo r the se t tlement considera tio n, a c laimant agreed tha t at no tim e o r p lace would he co m ­mence o r prosec u te any ac t io n o r sui t against th e named to rt feaso r. In ad ­d it io n there m ight be rec ital s that the cove n ani not to sue w as no l a relea se; tha t the righ t to proceed against others

230

w as exp ressly reserved ; and for indem ­ni ly and holdi ng harmless.

A covenant not 10 sue a tort feaso r did not operate as a re lease o f at her tO rlfeaso rs fro m l iabi l i ty . Arkansas Power & Ligh t Company v . Liebe. Adm x., 201 Ark. 292 , 144 S.w. 2d 29 (1940) .

Thi rly year s ago, by AC I 315 o f 1941 , Arkan sas adop ted th e Uniform Con ­tribu tio n Amo ng To rt feaso rs Act, Ark. Si al. Ann. Secs. 34-1001-34-1009 (Rep l. 1962), wh ich abandoned Ihe co mmon law rule denying t"' e righ t of co ntribu tio n bet ween tortfeaso rs and prov ided thai an in jured person co uld re lease one jo int to rt feaso r wi tho UI re­leasing ot her torlfeaso rs.

If yo u are a pla inl i ff, perhaps making a par tial set tlement , but In any even t, desiring to ret ain yo ur (ight to proceed agai nst o th ers, you will want to be sure I hat t he re lease language does not disc harge persons beyon d Ihe one making Ihe paymenl , an d Ihal yo ur righls aga in st o thers are st ill il1tacl , ex­cep t tha t there will be a reduc tion of all damages recove rab le to the ext en t o f the released l o r tfeaso r's pro ra ta sh are of the co mmo n l iab il ity.

I usually try to name my tori feaso r, his em ployer, if any, and Ihen add " and an yone in pr iv ity wit h t hem o r eith er o f them." Released are all claim s an d ca uses of act io n arising o u t o f th e acci den t o r occ urrence, " inc lud ing claim s by an y ot her tort feaso r, w arran ­to r o r anyone else lega lly liable or respo nsi b le." Then I spell o u t that thi s is a part ial or pro rata re lease; that the relea so r agrees to a reduct io n o f hi s damages 10 Ihe exten t o f my tort ­feaso r's pro rata share of the comm o n l iabilit y; and finally I make specific reference to Act 315 o f 194·' , as ame n­ded , being the Un i fo rm Contr ibu tion Amo ng Tortfeaso rs Ac t.

If yo u represe n t th e pa rty paying th e mo ney and taking Ihe release and desire to preserve yo ur righl 10 seek co n tr ibu tio n from ot her l ort feaso rs, be sure th at all of the co m mon liabi li ty is d isc harged and that any liabili ty of ot her IOrlfeaso rs is extingu ished by yo ur relea se.

Embarrassing mo ments w i ll come w hen , afl er obt aining a very broad and all in c lusive release and delivering the money, yo u sue ano ther to rt feasor fo r contribut ion and h is defense is that yo u did nOI d ischarge the co mm on liabili ly. Specifi cally, Iha l yo u did nol ex tingui sh hi s liab i li ty . Yo u po in l o u t t hat re leased were " all o t her perso ns, firm s or corpo rat ions whom soever," and that yo ur payment was ac kn ow­ledged 10 be " in full selliement and sati sfacl ion o f an y and all c lai m s grow ­ing OUI of" the partic ula r in jury or death . Yo ur oppo nent then c i tes so me

cases, including at least one from the Arka nsas Supreme Co urt , indicat ing or saying thai if a tori feasor is not specifj· cally named in such a release, he is nOI re leased and Ihe common liabilily has nol been eXlinguished. Smith v.

Tipps Engineering & Supply Company, 231 Ark. 952 , 333 S.w. 2d 483 (1960); Allbrighl Brol hers, Contraclors Y. Hull­Dobbs Company, 209 F 2d 103 (61h Cir. 1953); Paclawski Y. Brislol Labo ra­lories, Inc. (Okla.) 425 P. 2d 452 (1967); Conlra, Morison Y. General MOlars Corporal ion, 428 F 2d 952 (51h Cir. 1970). Cerl. denied, 400 U.S. 904.

II is a hazardous area, proceed w it h caution and knowledge.

Splilling A Cause of Aclion

Generally, damages arising from a single tort-a single wrongful or negli · gent act-must be assessed in one proceeding and cannot be made the subject of separate suits . Th us, if a per· son has a single claim or cause of ac· tion , he is not permilled to spl it up that ca use of action and maintain sue· cessive suit s for different pa rt s.

In Hydrick Y. SI. Loui s, I.M.&S. Ry. Company, 118 Ark . 402 , 177 S.w. 5 (191 5) Ihe plainliff was injured while a passenger on t he defendan t's railroad and sued for hi s injuries and damages. By I he I ime of trial , he had been con­victed of second degree murder and was in th e process of serving an eleven year se ntence. Before submit · l ing his ca use to the jury, the plaintiff dismissed as to loss of time and diminished ea rning capaci ty so that the only elements of damages submit· led relaled 10 pain and sufferi ng, medical attention and disfigurement. Laler, afler he had been pardoned by the governor, the plaintiff brought suit to collect damages for his loss of lim e and diminished earning capaci ty. The plea of res judicata was sustain ed, the Co urt pointing oul that the ca use of action and the damages recovered were an ent irety, that the defendant had been guilt y of but one wrong and co uld be subjected 10 but one action fo r that wrong by the same party.

A common sit uation is where an automobi le owner has both bodily in ­jury and property damage claims and has co llision in surance which pays him for all o r most of his property damage.

In Oza n lumber Co mpan y v. Tid · well , 213 Ark . 751, 212 S.w. 2d 349 (1948) Tidwell col lided wilh Ozan lumber Company's truck, sued Ozan for $25 ,000.00 for his perso na l injuries and obtai ne d a judgm e nt (or $15 ,000.00 whic h the Supreme Co urt reduced 10 $4500.00. Tidwell Ihen sued and obtained a judgment against

Ozan for $750.00 for Ihe damages 10 ilS Iruck. The Supreme Courl said Ihal the fo rmer judgment was co ncl usive and Ihal Ihe plea of res judicala should have been sUSIained.

In MOlars Insurance Corporal ion Y.

Coker, 218 Ark . 653, 238 S.w. 2d 491 (151). Ihe co ll ision carrier paid ilS in ­sured for her damage; Ihe lady filed suit fo r her perso nal injuries; and there was a settlement and dismi ssal wit h prejudice . The co lli sion insurance ca rrier t hen sued t he defendant alleging a payment to its insured ,

subrogation and assignment. The res judicala plea was upheld , I he Courl poinling OUI Ihal Ihere was one lOr! and one ca use of aClion which had been exhaUSIed. See also Washinglon

Fire & Mafine Insurance Company Y. Hammell, 237 Ark . 954, 377 S.w. 2d 811 (1964) .

In man y in stan ces, the intention is that th e sell iement will not include Ihe properly damage claim. Yo u wi ll wanl 10 have that affirmatively noted

Continued o n page 232

Arkansas Eminent Domain Digest 207 Pages

Compiled by the University of Arkansas for the Arkansas State Highway Commiss ion.

$9.50

Arkansas statutes Annotated 22 Volumes with Current Supplement $175.00 in the State of Arkansas.

WORKBOOK FOR ARKANSAS ESTATE PLANNERS

MITCHELL D. MOORE. WI LLIA M H . BOWE N

A Complete Source for Planning Estates in Arkansas Planned exclusively for Arkansas lawyers . it is based on the statutes. cases, regulations, and tax s ituations of the state. T his workbook serves as a gu ide to drafting a simple will , testamentary planning for benefi t of minor or aged , forms of property ownership .. purposes and techniques of making gifts, drafting partnership and business purchase agreements and many other important topics. T he handy loose·leaf format makes this source 8 unique working tool-an invaluable reference for the Arkansas la wyer.

11 Chap ters

REID'S BRANSON INSTRUCTIONS TO JURIES 7 VOLUMES W IT H CU RRENT SUPPLE MENT

$125.00

JONES LEGAL FORMS T HREE VOLUMES • 68 CHAPTERS

$60.00

Contac t Your Bobbs-Merrill Arkansas Re prese ntative, Mr. Joshua E. McHughes

$35.00

1408 Rowman Road Little Rock, Arkansas 72205

The Babbs-Merrill Company, Inc_ 4300 W. 61nd St. / Indianapolis, Indiana ~6168

AnV reseliel lS free 10 charge whatever puce II Wishes lor our bOOks.

231

Continued from page 231

in the release o r have a separate agree­ment 10 thai effect, becau se when the coll ision in surance company collides wilh or is upset by the res judicata roadblock, it will be afler your client for reimbursemenl.

This separate sell iemeni may pro­perl y be made because the rule against splilling a ca use o f action is primarily for the benefit of the defendant and fo unded on a principle that a person o ught no t to be unnecessarily harassed by a multiplicity o f suits and that a " . . defendan t should have to st and but o ne lawsuit growing o ut of

Merchants

-

and Planten

Bank

one lorl when Ihe ca use of aclion is in

one person or Ihose holding Ihrough such a perso n." MOlo rs Insurance Company v. Coker, supra, at p. 656.

A defendant may, therefore, agree to a splilling o f the cause o f action, or by hi' conduct he may be found to have waived his right 10 insist on the rul e. Many times a defendant will be agree­able 10 splilling the single cause of ac· lion . In th e aut o mo bile accident si tuation, a defendant may be wi ll ing to sell Ie the unliqu idated bodily in jury claim and leave open a collis ion insur­ance co mpany's subrogation claim which has a known ceiling and much less sex appeal.

SECOND AT HAZEL NEWPORT, ARKANSAS 72 11 2

523-6301

We Extend Seasons Greetings And Our Best Wishes To The

Legal Profession In Arkansas

VILLAGE MALL FACILITY High way 67N

Newport, Ark ansas

523-6557

Our Trust Department W ill Provide The Te amwork

To Fulfill The Wishe s of you and your clients.

232

II is no longer uncommon for Ihere

10 be a splilling of a single cau se of ac­lion for perso nal injuries where wo rk · men's co mpensatio n is involved. As you know , und er I he Arkansas Statut es, an injured employee enti t led to workmen's compensation benefit s may also pursue a thi rd part y in damages for the injury. In such cases the employer may be enti tled 10 a fir st lien upon two·thirds of th e net pro· ceeds recovered after deducl ion of reaso nable cos t s o f co ll ect io n . Perhaps liabili ty is do ubtful and the in ­ju ries and damages are subslant fa!. The third party is willing to pay something but no t as much as would be in order for th e injuries and damages if the liability were more cerlain . The plain· tiff is concerned about ending up with nothing and is able to reach an agree'· men I on a com prom ise figure. Th e com pensatio n insurance compa ny, however, sees no reaso n to subslan­Hally reduce ils claim ; it has paid oul money which the plaintiff has retained ; and the law clea rl y says that it is ent it led 10 it s money back as lo ng as th e plaintiff gets o ne- third of the nel recovery.

This situation led 10 se ttlement s whereby th e injured person sell/ed with th e third part y under an agree· ment which provided that the co m­pensation insurance company's right s were reserved and that the sett lement wo uld be without prejudice to Ihat com pany. From Ihe standpoint of the third party, this was fine strategy and good business. From the viewpoint of the compan y, which had paid com­pensation, it was immoral and should be illegal.

The problem reached the Supreme Court in 51. Paul Fire & Marine Insur· ance Com pany v. Wood , 242 Ark . 879, 416 S.W. 2d 322 (1 67). A truck driver was horrib ly and terribl y injured when a portion o f hi s tru ck ca me in cont act wit h a h igh voltage line o f First Electric Cooperative Corporation . After filing sui t for 5500,000.00 the plaintiff and the Electric Co-op agreed to sett le for 578,000.00, p rovided the plaintiff wo uld not have 10 give any of the set ­tlement money 10 the compensation insurance company and , provided fur· ther, that hi s right to further work· men 's compensat ion benefits wo uld nol be prejudiced . The compensation insurance com pany anticipated paying Oul approximately $50,000.00 and it and the Co-op co uld not agree on a sell lemen!. The sell lement document wit h respect to th e 578,000.00 pro ­vided that the compensat ion com ­pany's right s would remain unim ­pai red and that the sell/ ement wo uld not prejudice the compensation com·

pany's right to pursue tort claims against th e Electric Co-op.

Th e Supreme Court recognized that there was only one cause o f act ion but said that the parties had spec ifically agreed to a splitting of the cau se of ac­lion.

In most of these si tuations, the in­lenl is thaI the plaintiff will nol have to reimburse the compensation insur­ance com pany for compensation already received and also thai the plaintiff's right to co mpensation in the future will nol be disturbed. For the plaintiff, I suggest that yo u have an af­firmat ive reci tation thaI all rights 10 workmen's co mpe nsalio n benefits are preserved and reserved . Yo u may want to add guaranteed.

Also, be specific about reci ting that any and all right s of the employer and hi s insurance carrier under th e work­men's co mpensat ion law, including the subrogation and lien right s pro­vided in See. 40 (Ark. Stal. Ann . See. 81-13 40 (Rep!. 1960) rem ain unimpaired and not affected by the release and selliement.

Minor's Claims As already noted, the same tortious

act may give ri se to two o r more sepa­rale and d is tinct cau ses o f action, and thai brings us to torts commill ed upon an in fant and a separat e cause of ac· tion in the parent.

The parent 's ca use of action is for medical expen ses and th e va lue o f the minor's services and earnings during minority . AMI 2212. A release is usually sufficient. This parent's c laim ordinaril y adh eres to t he father but circumstances may shift it.

With respect to sell iing the minor's own cla im s, fifteen years ago on a simi lar program, AI Mitchell observed that the sa fe m eth od was to wait until Ihe minor reached hi s or her majorit y and then take a release. Panel on Set· Ilemeni Procedures, 11 Ark. L. Rev. 54 (1956).

If the minor is a male who has reached hi s 18th birthday o r a female w ho has reached her 16th birthday, th e disabilities of minor ity may be removed by th e c ircuit o r chancery co urt in the count y o f th e minor's res idence. Rem oval o f disabilit ies can be 10 transact business in general or for a particular o r speci fi ed purpose such as sell ling his claims, exec ul ing a release, receiving th e proceeds and suc h ot her acts as may be reaso nably necessary o r useful to give full force and effect to the selliement. Ark. Sial. Ann . Sec. 34-2001 (Repl. 1962).

Many payment s are made on th e basis of a parent 's indemn i fying release whic h purports to release and discharge both the r>arents ' c laims and

the minor's personal cla im s. Such a release adequately di sc harges the claims of th e parents but it is probably legally worthless with respect to the claims of th e minor. Th e indemnity and hold harmless provisions could be a deterrent to the subsequent prose­cution of an action asserting the minor's cause of aClion . Th ese releases are usually used where the injury is nOI serious and the to rtfeaso r o r hi s insurance carrier is willing 10 take th.e calc ulated ri sks in exchange fo r exped · iency and economy.

The adoption of the Probat e Code has, to some extent , c urtailed the use of "friendly suit s." After agreement on sett lement is reached , there is filed in c ircui t co urt a complaint in the name of the minor by a next friend and an answer fo r th e to rt feasor defendant. Many lawyers draft the judgment so that it appears to be Ihe culmination of an adve rsary proceeding and a full scale trial. My preference is to affirm· ati ve ly recite that a sell iement is in· volved, that the Court finds that the sell iemeni is in the min or's best in· terests, and thaI it is, therefo re, ap· proved . Following thi s comes the "i t is, therefore, co nsidered , o rdered and adjudged that the plaintiff do have and recover o f and from the defendant. " I always th en reci te sat isfac tio n of record and ext inguishment of judg­ment liens so that th e judgment will not show up in some abst rac t of title 10 haunt the defendant.

Does the circuit co urt have jurisdic· tion? Mr. Adrian Williamson labeled it " inadvertent dictim" (Panel on Set· tlement Proced ures, 11 Ark . l. Rev. (1 956)) but the Arkansas Supreme Court has at least twice said that where a court has juri sdiClio n of the subjeci mail er and the power to ren· der a final judgmen t upon th e merits in a case before it , there is n ecessarily impli ed the power to render judgm ent on a compromi se agreement. M oss v. Moose, 184 Ark. 798, 44 S.W . 2d 825 (1931); Union Central life Insurance Company v. Boggs, 188 Ark . 604, 66 SW. 2d 1077 (1 934) .

Depending upon the ci rcumstan ces and the parlies involved, thi s pro· cedure is limited to relati ve ly no n-s ub­st antial amount s. Th e next (riend of an infant has no authorit y to receive pay­ment of a judgment rendered in fa vor of the infan t. A next friend, even the father, is not authorized to collec t a minor's judgment and a defendant takes a risk w henever he makes pay­ment to the next friend . Wood v. Clai­bo rne, 82 Ark . 514, 102 SW. 219 (1907); Th e Coca-Co ta Bottling Com­pan y v. Davidson , 193 Ark . 825 , I.e. 831 , 102 SW. 2d 833 (19371: Missouri

233

State life Insurance Company v. Holt , 186 Ark. 672, I.e. 682, 55 SW. 2d 788 (1932) . In the first ci ted case, a defen ­dant railway company had paid the amount of a judgment to th e plaintiff's lawyers who , after deducting their fee, paid the balance to the minor's father and next friend . After becoming of age, the plaintiff brought an action against his father to get the mo ney pa id to the fa th er by the law firm and recovered a judgment which was never co llected . Th e plaintiff then sued I he law firm for having wrong­fully paid o ut hi s money and obtained a judgment which was affirmed. But the probabilities of a minor lat er bring­ing an action co nt ending that his parent embezzled o r ot herwi se misap­plied small amounts are pretty remote. Fu rther, the exposure should be lim ited to th e am ount o f th e approved se ttlement and judgment , with credit for any of the proceeds actually used for the minor's benefil.

la st ly , sett leme nt s unde r t h e Probate Code.

By See. 62-2004 of Arkansas Statutes (Supp. 1969), it is provided that the probate co urt shall have jurisdiction over t he perso ns and estates of mino rs. Some lawyers are inclined toward the view that in probate co urt may be the o nly "safe" way to se ttle a mino r's cla im.

tn the Code,. it is spec ifically spelled out that the probate co un, if sa t is fied that it would be for Ihe interest of the ward and his estat e, may make an or· der authorizing the se ttlem ent o f any c laim by the mino r ari si ng oul of to rI. Th is, of co urse, is done by th e guar­dian 's petition for authorization to se t· tie, an o rder authorizing settlement and exec ut ion o f a release, and a release from the guardian . Ark. Stal. Ann . See. 57-638(a) (Supp. 1969). A release by a guardian o f a tori claim wi t ha Ul prior aut ho ri za t io n lac ks va lidit y. Ark. Stat. Ann . Sec. 57-638(c ) (Supp. 1969).

O bjections to this procedure are the bond requirement s, th e necessity for accountings, and o ther fo rmal requi ­sites . A 1967 amendment to the Pro­bat e Code permits dispensing with a bo nd where the ward 's est at e is all in cash and is deposit ed in banks or sav ­ings and loan associat ions whose deposit s are federally insured . The bank o r associat io n accepting the deposit must agree not to permi t wi th· drawals except on a court o rder. Ark. Stat. Ann . Sec. 57-617 (Supp. 1969).

The commi ll ee which drafted the Probale Code recogn ized that a minor mighl be enti tled 10 small amo unt s of money w hich cou ld legitimatPly 1)(> {'x -

Continued on page 23 4

pended for Ihe use and benefil of Ihe minor during a short period of lime. Th us, Sec. 57-620 provides fo r Ihe ap­pointment , with or wi th out nOlice, of a temporary guardian for a per iod nol to exceed 90 days. The appointment may be 10 perform particular acts and the court can specify the reports to be made.

Of perhaps debalable validilY is Ihe use of Sec. 57-646 of Ark . Sial. Ann. providing thai where the who le estate of a minor does not exceed the value of $1 ,000.00, Ihe probale co url may, with or without the appointment of a guardian or 'h e giving of a bond, authorize the payment o r delivery of all or pari of the minor 's estat e to the minor o r to someone else.

The purpose was to save expense in sma ll estates. Within the co ntempla­tion of the statute, is there any estate to payor deliver 10 anyone until an unliquidated claim has been liqui ­dal ed? The Probal e Code prov ides thai th e probat e judge can authorize a guardian to sen Ie o r " liquidale" a minor's to rI claim. Does it say or imply that the Co urt can authorize anyone else to do that ? The practicality and desireability of having such a pro­cedure available are ev ident.

Death Cases In death cases, keep always in mind

the different causes o f action and who may appropriately assert each one.

In any death from injury situatio n, there are two separate cau ses of ac­l ion. Morgan v. Rankin 197 Ark. 119, 122 SW. 2d 555 (1938) . One is Ihe ac­lion fo r the damages which the in -

half your case

is a well-printed

br ief ..

jured person co uld have recovered had he lived and fil ed suil. This is a claim o f the decedent 's estate; it is for the use and benefit of the estale; and il may be asserted, maintained and set­tled on ly by a perso nal represe ntative, either an admini strator o r executor.

Recoverable elemen ts of damages include consc ious pain and suffering before death ; medical expenses; pro­perty damage; funeral ex penses; loss of ea rnings prio r to death ; and any ot hers which the decedent co uld have re­covered bUI for hi s dealh . AMI 2215 (R evised) .

At common law t here wa s no cause o f action for death and any right of ac ­tion for death is a c reature of a statute of Ihe Iype o f Lord Campbel l 's ACI . Th e statut e creat es the ca use of action and del erm ines who may bring it , wh o may benefil and for whal , and whal the statute o f lim itations is.

If there is a perso nal representative, that adm inistrato r or executor is the only o ne who may asse rt o r bring the aClion for dealh (Ark . Sial. Ann. Sec. 27907 (R epl. 1962) altho ugh no pari of the recove ry beco mes an asset of th e decedent 's es tat e or subject 10 hi s debl s. Ark . Sial. Ann . Sec. 27-908 (R epl. 1962). Anyone else joining as a plaintiff is an improper part y, Reed v. Blev in s, 222 Ark. 202 , 258 S.W . 2d 564 (1953 ), cerl. den . 347 U .S. 937 (1954) ; So uthwestern Gas & Electric Company v. Godfrey, 178 Ark. 103, 10 SW . 2d 894 (1 928) .

Th e Arkansas stat ut e provides that if there is no perso nal representative, I he acl ion shall be broughl by I he " heirs al law of the deceased perso n."

STATE AND FEDERAL BRIEFS

Roy Craig, Owner/Manager THE LAWYER'S PRINTER

TREVATHAN PRINTING CO. Newport, Arkansas, 523-3987

234

Ark. Sial. Ann . Sec. 27-907 (Repl. 1962). Under an earlier slalul e il was held that " heirs" in thi s context in ­cluded Ihe widow (51. Louis Iron M ountain & Southern Ry. Co . v. Cor­man , 92 Ark . 102, 122 SW. 116 (1909), and further, that it was necessary that all of Ihe heirs join . Reynolds v. N Ull , 217 Ark. 543, 230 S.W . 2d 949 (1950); Thompson v. South ern Lumber Com ­pany, 113 Ark . 380, 168 SW. 1068 (1917).

In Ihe lighl of Founlain v. Chicago, R.I.&P . Ry. 243 Ark. 947, 422 SW. 2d 878 (1968) , il mighl be hazardous 10

undertake to delineate ju st who would not be considered " heirs" in this en­vi ronment and, therefore, necessary parties. Thi s on ly add s to the hazards inherent in se ttling a dealh action so lely by a release execuled by Ihe heirs at law and this procedure should rarely be used.

No longer is dist ribu tion o f any recovery apportioned in accordance with the law o f descent and distri ­bution. The share o f each beneficiary is fixed by a judge o r, if requesled , by Ihe jury. Ark . Sial. Ann . Sec. 27-909 (Repl. 1962) .

Most se ttlem ent s are concl uded by either a probate co urt o rder o r a cir­cuit cou rt judgment and much of what we sa id wit h respec t to co urt approval of senlement s of min ors ' claim is ap­plicable here.

Sec. 96 o f Ihe Probal e Code as amended in 1951 (Ark. Sial. Ann . Sec. 62-2403 (R epl. 1962)) speci fically pro­vides fo r the probat e co url authorizing or approving a com promi se selliement o f a wrongful deat h action . Arkansas ' Lord Campbell Act also recognizes the jurisdiction of probate co url s to ap ­prove or authorize se ttlem ents of cla ims or ca uses of aClion for wrongful dealh . Ark . Sial. Ann . Sec. 27-910 (Repl. 1962).

Some, excellent lawyers have ling­ering doubts about circuit co url 's ap ­proving seltlemenl s in dealh cases and require probat e co urt authorization . We have already noted thai t he Arkan­sas Supreme Co urt ha s sa id t hat an y court which has juri sdicl ion of the subject matt er and can ent er final judgment o n th e merits ha s the power to render a judgment on a com ­promise agreement. Union Central Life Insurance Co mpany v. Boggs, supra; Moss v. M oose, supra.

A sentence in the Arkansas wrongful death st atut e begins-" The judge of the co urt in wh ich the claim or ca use of action for wrongful death is tried or is submitt ed for approval of a com­promi se settl ement , ." Ark . St at s. Ann . Sec. 27-909 (Repl. 1962).

I hope t hal includes circuit judges. Thai was the in lention . •

Wehave something to tell you.

TITLE INSURANCE BY

Commercia! Standard

JnJurance Compan'l FORT WORTH, TEXAS

General State Agent for Arkansas Beach Abstract & Title Company

Telephone: 376-3301

213 West Second Street Little Rock, Arkansas

Assets Over $23,000,000.00

AGENCIES IN 17 STATES Subject To State Supervision Everywhere.

Member o f American Land Title Assoc iation

235

PRIVATE INVESTIGATION MYERS I ASSOCIATES, INC.

910 Pyramid Life Bldg. Little Rock , Arkansas

Phone 372-1809

Professional Investigation Services­Civil, Criminal, Industrial for the Professions, Business, Industry

and Individuals Licensed by the State I nvestigator licens­

ing Board, Approved by the Arkansas

State Police, References of Prominent Attorneys furnished upon request. Ten

Years Experience.

Fred Myers Ronnie Rand Mel Fry

Complete Trust Services

For Attorneys And Their Clients

7felenn rgjVotiORn/ 302 Cherry fA k

Helena, Arkansas hn 501-338-6451 "If

M ember FDIC Member Federal Reserve S), stem

"Seasons Greetings" J .J . White, Pres . • John M . Move. V. Pres., & Trust Off icer

'" OJ en

1Jfa A.a.alzrtimr 1Ju Arkttu.au.a ARKANSAS WORKSHOP IlION

STANDARDS FOR CRIMINAL JUSTICE RE:

I. Appellate Review of Sentences 2. Providing Defense Services 3. Probation 4. The Prosecution Function and The Defense Function S. Sentencing Alternatives and Procedures 6. Electronic Surveillance 7. The Judge's Role in Dealing With Trial Distruptions

sponsored by

ARKANSAS SUPREME COURT with

ARKANSAS JUDICIAL COUNCIL;

ARKANSAS PROSECUTING

ATTORNEYS' ASSOCIATION;

AMERICAN BAR ASSOCIATION;

ARKANSAS COMMISSION

ON CRIME AND LAW

ENFORCEMENT ;

ARKANSAS BAR ASSOCIATION

January 20,21, 1972

ARLINGTON HOTEL, HOT SPRINGS, ARKANSAS

HEAR YE! HEAR YE!

Most of the new co ncepts em­bodied in th e American Bar Association Standards on Crimina l Justice have been well received in Arkansas.

Some of the product of Workshop I o n Speedy Trials has already been implemented into Arkansas procedure, and the A rkan sas Crimi nal Code Rev isio n Commissio n , at its October 22 m ee ting, te ntative ly approved most of the ABA Standards for the taking of Guilty Pleas. There is op­timism among th ose involved in the revision project that an up­dated, enlighten ed, more respon­sive crimina l process is j ust around th e co rne r for Arkansas, and expe rts and leaders in o ther slates are viewing our progress L.. .. ,;,,;,....;.; with respec t.

In January we will co nclude the basic study of the new Standards at Workshop III. An application for LEA A funds is already in the mill and again we ca n look forward to the great support of the Am erica n Bar Association.

We need a st ro ng " fourth quarter" fro m all prac tition ers, prosecutors and judges who have worked and studied o n this project. Let's finish o ur groundwo rk for reform with a progressive reso lve that will be hea rd across the country.

Edwin R. Bethune, Chairman Standards for Administration

o f Criminal Ju stice Committee

PHOTO Highlights

ARKANSAS STANDARDS

WORKSHOP II "

A RLINGTON HOT EL

HOT SPR INGS, ARK ANSAS

October 7-8 , 1971

by Professor Robert Brockmann

John L. McClellan Senate of Delta Theta Phi Installed

The lohn l. McClellan senale of Della Thera Phi law Fraternity wa in­sta lled in the Arkansas Supreme (o ur! room on March 13, 1971 . The new senate consists o f student s attending the lillie Rock Division of the Univer· sily of Arkansas School of law. The in­sla llatio n cere mony was conducted by frate rn ity Vice-Chance ll o r Earl R. sianley of Washinglon , D.C. Officers of Ro bin so n Senate, the student chap­ler at Fayelleville, perform ed the ini ­tiation of 'he e leven chari er members o f McClellan senale.

In a spec ial ceremo ny which was widely publ ic ized the (ra/ernil y ini-

liared as honorary members Governor Dale Bumpers, Congressman David Pryor, and EI Dorado allorney Jerry Wal kin s, General Coun sel for Murphy Oil Co rpo ral ion.

The even I was attended by quit e a ga lhering of Della Thela Phi 's who came from all pans of fhe siale and th e nation . Among the alum ni present were United Slates Senato r Joh n McCle llan , Supreme Courl lUSlice John Foglem an , Siale Democratic Part y Chairman Joe Purcell , law Sc hoo l Dea n Ralph Barnharl , an d Pufask i Counl y Bar Presidenl William Bowen. In addilion 10 Mr. Stan ley the

TIl! AMAIISAS LAlfnI I sur. U, 19 71

401 DOKAGHIT 8tIlLDflfC , Lr'M'U: m. JlVlASU, AUAHSAS 72201

t OI IOfAGHIY IUILDllfC. LITTU; 100", JlVlASlU AalCANSAS 7 0

AItUM'AI IAI ASIOClA1'IOIl, 401 DOtiAmtn IIUILDIHC LI'M'L& IIOCJI; All. 122ft1

Fral erni l y was represenl ed by nalior al o ffi cers lohn E. Owens o f Chicaoo (MaSier Inspeclor). and I. B. Beaird of Oklahoma Cily (Associale IUSlice) . The five alumni senates in Ihe slate and Robinson Senale were also well repre­se nted.

Fo llowing th e ins/allation cere­monies a banquet was held at Paul 's lamplighter Restaurant in lillie Rock. Well over a hundred people w ere pre­senl to hear Congressman Pryo r inlro ­duce Sena/or McClellan , the featured speaker and th e person in whose honor t he new senate is named. An additional honor was conferred on lohn P. Woods of Fori sm ilh in recognit ion of no less than sixty years of faithful service as a member of Della Thela Phi'

Della Thela Phi has been serving Ihe legal profession for juSi a lillie longer Ihan lohn P. Woods; il was fo unded in 1900. The fral ernil y has over 60,000 members in the United States and Puerlo Rico, and over 150 chaplers.

Arkan sas has been the scene of in­creasing activity for Delta Theta Phi in recent months. Alumni senat es now ex ist in fi ve Arkansas cities: EI Dorado, FOri Smith , lillie Rock, Texarkana, and West Memphis. In addition a new alum ni senale being organized to r Ihe Northwest Arkansas region . The stal e

SPECIALIZING IN ACO'v'IPLETE TURNKEY SERVICE

FOR YOUR OFFICE NEEDS

='::\;::=;.:=:~'."" "':- - -::.=:::::!":.:.:'" - --::..-.::..:-:::=:.:::.-: ::"'--=::..":"-~-:. :-.";"""---- -----"-'''---

lin , ...... · _ .... u ........ cu ........... " Vi • __ , ...... . -.-

uO!

nos

". -.-

1715

G " ' " . _ ... ,., __ ~ ' ____ "A' 1125

",_ .. _­-_01--- ,

1775

-.-un 1517

-.-1775

238

• Furn iture

• Supplies • DeSign

Service

• Accessories • New, Used

and Budget Furniture

E. 3rd & Rock Little Rock

376-2361

received . further recognition at Ihe frat ernity's national co nvention this summer as James E. Baine o f EI Dorado was elecled Marshall.

McClellan Senal e is Ihe firsl chapler of Della Th ela Phi al Ihe Universily o f Arkan sas School of Lawai Lillie Rock , all hough Ihere wa s an Epsilon Chapler at Ihe o ld Arkansas l aw Sc hoo l in lil ­lie Roc k. Th e Epsilon Chapt er wa s chartered in 1909 and w as acl ive prior 10 Ihe eSlabl is jmenl o f Ihe University's law sc hool in Fayell ev ille in th e 1920's. The chapl er at Faye tt ev ille, in ciden ­tall y, wa s also named in honor o f an Arkan sas stat esman wh o gain ed national prominence: United Slat es Sena tor Joe T. Robin son . •

LAW DA Y MAY 1, 1971

If you have any ideas about what our Bar Assoc iation should do across the Slate to co mmemorate law Day, please co ntact our Chair­man, Jay W. Dickey, Jr., P. O. Box 603B, Pine Bluff, Arkansas, or any of the commill ee members in your area .

Robinson Senate Tribune Claude Lynch extends the hand of lellowship to the new initiat es as Congressman David Pryor, State Democratic Party Chairman Joe Purcell, Senato r John L. M c Clellan , Murphy O il General Coun sel Jerry Watkins , Governor Dale Bumpers, and Delta Theta Phi Regional Coo rdina tor J. E. Beaird, Jr. (2nd row L to R) loo k on .

MISSING

AND UNKNOWN HEIRS LOCATED

NO EXPENSE TO THE ESTATE

WORLO-WIDE SERVICE FOR

COURTS - LAWYERS - TRUST OFFICERS ADMINISTRATORS - .EXECUTORS

-.American -.Archive:1 -.A:1:1ociafion INTERNATIONAL PROBATE RESEARCH

449 WASHINGTON BUILDING

WASHINGTON, D. C.

239

Our Trust Officers welcome the opportunity to work with attorneys in the planning and manage­ment of their clients ' estate and invest­ment affairs. Commercial National's efforts are constantly directed toward creative thinking and technical know­how in the rapidly growing trust fi eld. Call Ed G. Lovett, Senior Vice Presi­dent and Trust Officer; Leon Helms, Vice President and Trust Officer; Rich­ard C. Butler, Jr. , Trust Officer, or Kelley D. Johnson, Assistant Trust Officer. They want to serve you.

IINII

Commercial National Bank 200 MAtN STREET . UTILE ROCK, ARKANSAS 72201

We salute the Attorneys of our

Jefferson County Bar Association " I do solumnly swear:

I will support the Constitution of the United States and the Constitution of the State of Arkansas; I will maintain the respect due to Courts of Justice and judicial officers; I will not counselor maintain any suit or proceeding which shall appear to me to be unjust, nor any defense

except such as I believe to be honestly debatable under the law of the land. I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with

truth and honor; and will never seek to mislead the judge or jury by any artifice or false statement of fact or law; I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compen­

sation in connection with his business except from him or with his knowledge and approval ; I wi ll abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a

party or witness, unless required by the justice of the cause with wh ich I am charged ; I will never reject, for any consideration personal to myself, the cause of the defenseless or oppressed, or

delay any man's cause for lucre or malice. So help me God."

PINE BLUFF TIRE & RUBBER CO.

W. H. "Bill" Roberts-Clarence Roberts, Jr.-Gene Roberts

1415 E. 17th. Pine Bluff. Ark . 1501) 534-2911

LESLIE F. R U SSEL L GULF OIL OISTRIBUTOR

P.O. Box 5066, 1802 W. 5th, Pine Bluff, Ark. (501) 534-6621

W. S. FOX & SONS, INC. "' ... ", U ,. ... CTUlllIUlS· WHOLE .... LER a

Y ELLOW P IN E AND HARDWOOD L U M BER

pencer Fox-Bill Fox-John Fox

P.O. Box 7207, Pine Bluff, Ark . 71601, (501 ) 534·2132

240

-

PAPER

Mulberry St., P.O. Box 7245. Pine Bluff , Ark . 71601 (501 , • .",_0 0 ,'01

~!d=-_HWICK, inc. BUI LDERS. DEVELOP ERS

President Clyde H. Smithwick

Secretary-Treasurer PhylUs Smithwick Thomas

1608 Brentwood Dr ., Pine Bluff, Ark ., 535-5650 or 535-5632

PINE BLUFF MOTEL PLANTATION EMBERS RESTAURANT

Diane Leaverton-Jack Leaverton

Hwy . 65 North. 4600 Oollarwav Rd., Pine Bluff, Ark . (50 l) 5344510

l

Our Counsellors Advocates, Friends, Neighbors who constantly serve to the "Letter of the Law" according to their creed and vow

Sllndlrds Workshop III Ian uory 20. 2·1. 1972

Art inglon Holel Hot Springs. Arkan sas

191h MID -YEAR MEETING lanua ry 20. 21, 1972

Arlinglon Holel HOi prings. Arkansas

lllh OIL & GAS INSTITUTE April 13-14. 1972

MajestIC HOlel HOi Springs. Arkansas

741h ANNUAL MEETING May 31. lune 1-3. 1972

Arlinglon HOl el Hot Springs. Arkansas

FALL LEG AL INSTITUTE Se plember 22 -23. 1972

Sheraton M oto r Inn lillIe Rock, Arkansas

• • • •

Weyerhaeuser Company

Dierks Division - Paper Products P. O. Box 7857 Pine Bluff, Arkansas 71601 Ale 501 • 534-3243

In Memoriam Howard H. Abercrombie

Howard H Abercrombie (1922-1971) dIed in Dalla., Texa. on luly 16, 1971, survived by hi. wife, a son (Leroy). and a daughler (Gail). Mr Abercrombie was born in Prairie Grove, Arkansas. He was a veleran of W.W. II . Ailer Ihe war, he rel urned 10 Arkansas and received hiS law degree al the Unlversily of Arkansas. and was a member of Ihe Arkansas Bar AS'OCldlion Mr Abercrombie was active in Ihe Masonic fralernily and Ihe MelhodiSl Church. AI Ihe lime of his dealh , he was em­ployed al Ihe Sun Oil Company.

William J. Clar. Wilham I Clark of Conway died

on SeJllember, 1971, al Ihe age of 79 years. H(* was born in Quit­man, Arkansas. and was a member o f I he farsl gradual ing class of whal is now Slale College of Arkansas at Conway. He was ad­milled 10 the Bar in 1914. and continued In the practice until his dealh; and was a member of the Faulkner County and also the Arkansas Bar Association . Mr. Clark was a marine in World War I. He wa~ an active member of the

241

MasoniC Fralernily and Ihe Melhodisl Church. He is survived by hi. son (W. M. Clark), four bro.hers, Ihree sislers, and (our grandchIldren .

ludll" Iohn L Hugh". ludge lohn L. Hughes of Benlo n

died nn AuguS! 4, 1971, II Ihe age of 78 year'i . He was born In Ben­Ion . and gradualed from Ihe High School Ihere, and Ihen grldualed from what is now Henderson Siale College al Arkad elphia , Arkansas. He received hiS law De­gree from Washington and lee Umverslly In Virginia, and relur ­ned to Arkansas and practiced in Benton at all times thereafter. He served as MuniCipal ludge of Ben­Ion at vanou'i times from 1950 to 1968. Also ludge Hughes was a Past Dist rict Governor of Rotary Inlernallonal , He was a life long member of Ihe MelhodlSl Church . being a grand son of Rev . Horace Jewell , a pioneer Methodist p reacher in Arkansas . ludge Hughes immediate family consists of his daughter. Mrs. Caroline Davenport of Flurida. and his IWO

sislers, Mrs . Mae Hart of BenlOn, and Mrs. lewel Bell of Lill Ie Rock.

mitteeJlote~

FROM: The Maritime law Committee TO: The M embers of the Arkansas Bar:

W ith the developm ent of the Arkan ­sas River, the problem s o f admi ralt y law are now the legal profession in Arkansas.

I t is safe to say that this field of the law is completely new 10 ninety per cent o f th e members of the Bar.

It is sa fe to say tha t future legal problems which involve the law of ad ­miralty wi ll no doubt arise in Arkansas from the opera tion of pleasure boats and fishing boats on the Arkansas River. Th ese boats wi ll be far more num ero u s than the barges and towboats which will constit ut e the great bulk of the com m ercial traffic on th e ri ve r. Howeve r it has been dec ided that a p leas ure boat is withi n the juri sdict ion o f admira l ty , if being operat ed on navigable waters even though the boat is no t engaged in comm erce, and even though the boat runs on ly from sho re 10 shore and operat es entirely within a single state.

In a recent Arkansas law Review ar­ticle entitled Admiralty in the Ozarks, 23 Ark. law Review 96, t he aut hor slates :

" The p resent stat e of admiralty law with regard to the problem of pleasure craft liability for maritime torts on inland waters has result ed in a confu sed and fragm ented body o f decisions."

This is also true of th e gre,,!t body of admiralty law, whose procedures are different , whose practice and plead ­ings va ry substantia ll y from ordinary legal proceed ings in both Federal and Stale Co urlS, and much must be learned by the members of the Arkan­sas Bar before they undertake to han ­d le an admi ralty case.

Do yo u know the answer to the following questions?

(1) Does . admiralty have excl usive, o r co ncurrent jurisdiction with other co urt s concern ing maritime affairs?

(2) Do admi ralty courl s en fo rce commo n law remedies?

(3) Are there any special ru les o f venue in admiralty cases th at differ from those in ord inary cases in f ederal Cour t?

(4l Are admiralt y pleadi ngs the same

as ot her pleadings in federal District Courts?

(5) Are appea l procedures the same?

(6) Can courlS of admiralty grant in­junctions o r can they grant specific performance?

(7) Ca n court s of admira l ty en force contracts?

(8) Are sui ts in contrac t a tort arising out of activities relating to boat docks, boa1 ramps, wharfs or boat landings within the jurisdiction of admiralty?

(9) Can admi ral1 y enforce the provi ­sions of a maritime insu rance con ­tract?

(10) Is there a jury trial in admiralty? Is there such a thing as l imitat ion of liability in admiralt y cases?

(11) Wha' bodies of water in Arkan ­sas have been declared navigable and wi thin the jurisdiclion of admi ra lty?

The above questions on ly represent a few of th e problems which mu st be answered, if you become invo lved in litigallon having to do with maritime activity. The Maritime Commitlee sug­gests that if you wi ll take the time to

resea rch and answer th e above ques­tions. you will be greally surprised al

the result s. Accordingly th e Commitl ee fee ls

thai ils best (unction would be to present to the Arkansas Bar a series of articles over the next year dealing with the partic ular problems of admirally in o rder to acq uaint the members of the Bar with th e pec uliar problems of this practice.

We must issue a word of warning. The Code o f Professional Ethics requi res thai an allorney must nOI ac­cept a case un less he is acquainted with ils lega l implications and failure to do so co uld result in professional liabilit y. Therefore we urge the mem­bers of the Bar [0 fi nd lime 10 acquaint themselves w i th this new, difficult and inleresli ng field of Ihe law.

THE MARITIME lAW COMMITTEE Edward E. Bedwell, Chairman

William A. Schulze Richard Crocket t

Leslie Evitts Kenne th Bairn

Robert Hays William s

Mr. Arkansas A ttorney meet

PDSTAL llfAfmd PRESS~ A Speed & Econo.y Service Qualily Prlnll •• & Dupllcall.,.

Documents, exhibits, evidence, summaries, depositions, photos.

DONE IN MINUTES!

WNk-U-WIlitI Bring or send any item to : 210 Louisiana, Littl e Rock 72201

Mail service anywhere in Arkansas returned the sa me day .

CALL

376-4266 fo r Details & Rates.

242

i

The ExecUlive Commillee mer on Thursday aflernoon, Seplember 16, 197 1, on the eve of the legal In o:;t i l ute in little Rock .

Oo:;car Fendler , who had prev iously been aUlhorized to make applica tion for approve I of a pilo t ludicare tY fw program for Arkano:;a<i and for (unde; 10

support <i uch a rHUlcct , requested Ihal mernbers of Ihe Execullve Co mmltt ep lOin wllh attor ney' from Northweo;,t Arkansao;, In formmg a private non ­profit corporallo n If) be Ihe en tity tf) makp .. uch appl ICation 10 the GEO. II Ie; anllclratt'd that Northwest Arkan "a .. would 1)(' the area m whICh the pilo t program wo uld be In .. ll tuled If the ap­plica tion and fund o:; are aprroved. The artic lr· ... of Incorroralion have been prf 'parr'd and nwmber .. of the Exec u­IIV(' COIl1Il1 IIII-'C' ann lawyer .. of Ilw C,e b.1 "lIan CIJ un ty and vVao:;htngton Co un ty Bar ... a ... kl'd to "'gn a, incor ­poralor" riling flf Ihf' aniclee; 1<; expE-'c -1('(1 m I lw ncar fulure

Bruct:' Bu llion, Chairman of tht· A .. ... fJ( rallon ' 'i A li l o mo bile In, uranc(' CIHnml tl {'(' , rt:'prlrlt:.'d to the Exec ut lv(' Commlt!!·(· "uggt:''ill ng the <ico pe of hlO:; CIJl1l1lll lt l '('" 3ctlvllle<i for the year Til(' (xl'CU I IVl' CO l11mllt ee harged Mr. Bul1tnn\ Cfllllmillee to become infor­nw el 111 all arpa, of liability in<iurancc" and 10 111al-.(· II 'COll1l11pndallon o:; 10 rhf' [ XPC UllV(' Cf)n1mlt lc(' in the fie ld . Thi<i would H1 Cl ud(' all l hf' various form 'l of "'o -col lIl'd IHI -faul l lI1'1 urancp program s and any <l11('rna l ivl' 'I . rhC' Automobile In.., ulclnC(' Cf)mrnitlct' I.., com p ri <ied of M r. l3utllon , lJale Prl ct' , vVilliam A .

EXECUTIVE

COMMITTEE

NOTES by Robert D, Ross, Secrerary- Treasurer

Eldredge, loe Woodward , J. l. Shaver, G. David Walker, and Ed Sial en .

The Arkan'ias Human Reso urces Council, Inc., req ue"led Ih e ExecUlive Commil tee to endorse to i l s local uni t'i the effort'i of Minorily Enler­prl o:;ee; Small Busine'i'i Invee;t men I S Cor­pora l lon and to <io itCII from I hem a COl11ml tnu.'n l for volun l ary legal assis­tancp In p<ilablic;hlng minority enler­rri<ip Once the en terpri se was eSlab­It'ihpd il wo uld o;elect and co mpensale II .. o wn legal co unsel. Th e MESBIC is a program anl11lnlsle red by the Small BU \I IWo;, Adrnlnl<il ra tlon and io; gover­ned t'<i<ienlially by Ihe same rules and regula lion o; . Clalbourne W . Pal ty, Ir. wao; appotnl en by Pre"iden l Pa u l B. Young to Ilwl'o;rrga te rh i<i reque<il and makp r('commen dat io n" . M r. Patly recommended If) I he Exec ul ive Com­mlllp(' tha t it give a favora ble en do r"e­n1(:'n l flf aCl ivilie'i of MESBIC 10 the OH.'I11/)('r .. IlI l1 of Ih(~ Arkan "i a "i Bar A .... oclallon and I hal II 'iponsor a pro­IPCI Ihru the Legal Aid Commitlee 10

COl11lul(' 3 geographical l ist of allOr­ney .. who are willing 10 render free legal "ervice to ME SBI C. Specific r«-"qup .. l" from MESBIC for legal ac;sis ­lano' would then be c hanneled through t lw Lpgal Alrl Committee. The [Xt'CUIIVP COl11mit te(' adopled M r. Pa ll y'.. r('cllmnwnda l ion o; and I he Arkan<ia, Human Re<iource<i Council, Inc. ha .. bl'en <in advi<icd .

11w Committee on refl ue", of lohn li le, Chai rman o f th e Yo ung lawyers Section, authorized Ihat Sectio n III :'P()I' .. fH a <i hnrl <ie minar follow ing th l '

243

Mid -vVi n ter Meeting o f the Assoc ia­tio n in Ho t Springs an d agreed 10

sub'i id ize th e se m inar in an amo unt nol 10 exceed $300.00.

Th e mem bership of the Assoc iat io n as of Seplember I S, 1971, w as repo r­red ao:; 1109 as corn pared 10 '1282 o n se r lember 18, 1970, and 1499 al Ihe end o( '1970-71 Assoc ialio n year.

The Exec u tive Commtltee will meel in HoI Springs on November "11 , 1971, in co njuncl ion wilh the Tax In<il i tute.

BLACK BEAUTY corporate outfit

No. 70 BLACK BEAUTY $23. WITH 50 BUNK SHEETS fOR N INUTES • B'fLAWS NO • • 0 WITH 'RIHTED NINUTES • llYLAWS SUO.50

Outfit. conl. in, 20 CERTIFICATES - I'OCKET SEAL - TRANSFER SHEETS

M INUTE B OOK -M INUTES . 8VLAWS - SLI,.CASE

P"ta • • 1W.llai d it rem ittance i ... nt with ord.r Gin Corp. N .mt, Slt lt, 'inr ollncorp .• No . 01 $h. rts Pir V.lue if . ny •••..•.•• .. .•. C.ph.1 $Io.:k $ ....... _

E XCELSIOR- LEGAL STATIONERV CO. IN C. 62 Whit. Str •• t , N. w York, N. Y. 10013

Service Directory For Sale

Series 1 thru 238 Arkansas Reports

Total Price $325.00 Write or Call

Mr. T.H. Mayer 11225 Gilla Valley Dr., Little Rock. Ark .

225-4846

BROMSTAD ABSTRACTORS And

HEART OF THE OZARKS REALTY COMPANY Col. c. C. King, Owner Mrs. Fonta L. M ackie, Abstrac to r

Issuing Agent for Chicago Title In!>urance Co. ABSTRACTS- REAL ESTATE- INSURANCE Member of American and Arkansas L and Title Asso.

Area Code SOl -Telephone: 253-86 12 26 Spring Stree t, Eureka Springs, Ark . 72632

RELIABLE ABSTRACT & TITLE CO. BEACH ABSTRACT & GUARANTY CO. 117·A Main 534·0521 REPRESENTING :

Pine Bluff Abstracts of Title

Title Insurance By Lawyers Title Insurance Corp.

Over 50 Years of Service

COMMERCIAL STANDARD TITLE INS. CO. ABSTRACTS·ESCROWS·TITLE INSURANCE

213 W. 2nd St .- Little Rock, Ark .- FR 6-3301

FAULKNER COUNTY ABSTRACT COMPANY 226 Sarah McHenry·Elizabeth McHenry

PARAGON Printing & Stationary Co.

has been printing BRIEF S for over 35 years.

Robert M. McHenry· Rosemary McHenry ABSTRACTS- FIRE & CASUALITY INSURANCE

INVESTMENTS May we be o f servi ce to you? 311 East Capito l FR 5·1 281 Bring Your Title Troubles To Us,

1312 Oak St.-FA 9-2631- Conway Little Rock

CRIMINAL

RULES

FOR VALUE AND SERVICE

PATRONIZE THE Classified Ad Rate 20 cents per word each insertton­$3.00 minimum

A 1971 desk ·copy edi.ion of .he Federal Rul es o f C riminal Procedure and the Federal Rules o f Appellat e Procedure has been anno un ced by West Publishing Company. The new soh -cover vo lume co ntain s the comple te te xt o f th e Criminal Rules as amended '0 July 1, 1971, plus .he new Rules fo r Trial o f Minor Of­fe nses befo re U.S. Magi strates. These new rules beco me effec t ive lanuary 27, 1971.

Info rmati ve no tes under th e amended rules ha ve been in ­cl uded to explain Ihe changes. A combin ed l im etable fo r law yers prac ticing under th e Federal Rules o f Criminal Procedure and the Federal Rules o f Appella te Proce­dure has also aga in been in ­cluded.

Also present ed fo r t he con­ve nience o f th e user is a can ­.. ulidat ed index o f t he Criminal Rul e~ . A pp e ll ate Rul es an d Crllllmal Cod e. alo ng wit h the Il il fC idl l o rrn " .

LA WYERS' MART NOTE : This new classified ad service in the Arkansas Lawyer is now available. Ad copy and i nq u i ries regarding advertising should be sent to Advertising Department, Arkansas Lawyer, Post Office Box 4117, North Little Rock, Arkansas 72116.

Ark . D ig (32 VOL) wi .h 1971 Pocket Pari S ' $400.00. . SW Rep (Ark cases ) Vol 1·)00 and SW Rep 2nd (Ark cases) Vol 1-464 w llh adva nce sheel s and Blue & Whi le Book - $600.00.

Ca rl Bon P. O . Box Si loam Ark. leI. 524-6414

Arkan sas Sial u les; 11 3 SW Reports (A rk . Cases); West 's Ark Digest; Shepard 's Ark C it at io ns; ABA Desk Book; AM I; etc. A lso office furn it ure. Delivery by Ian. I , 1972 .

F. B. Nashvil Ark . B45-3131

l aw library or I. S. Tho ma s, d eceased , incl uding: S'vV Rep (Ark Cases ) Vo l ' ·)00: SW Rep 2d (Ark Cases ) Vo l '1·375: Ark ReporlS Vo l '1·46; Ark S.alS Anno (complete ); Plu s ma ny ol her references.

Merced es Thomas, Executrix, 608 E. Main, EI Dorado 845-3131

Services

ATTO RN EYS· LAW STU D EN TS: Legal Typing Se rvice, Ben.on·L.R. area; parttim e yo ur o ffi ce, full tim e m y ho me. Experienced , qualified . 778· 6654, Ben.on.

244

Great partnership: Rodgers & Hammersteln .•• another great partnership: ARKAnSAS BAR ASSOCIATion &

RATHER BEVeR & HARPER Now working together with CNA/i nsurance to provide you with the two most vital forms of fundamental protection for every practicing attorney:

• Professional Liability

• Business Liability Fiduciary coverage Settlement only with consent Legal defense provided

new PROfeSSionAL LlABILlTV PROGRAm $100,000 per claim

Wont more details? Call or write Arkansas Bar Association Administrator Rather, Beyer & Harper Three Hundred Spring Building Little Rock , Arkansas 72201 (501) 372-4117 Secretary- Treasurer . John Ru \h

We at Simmons First express a deep and abiding respect for the law community of Arkansas and especially Jefferson County. Over the years, we have shared a healthy working relationship with hundreds of your members . .. and we are extremely proud to claim one of the state's out· standing lawyers as president of our thriving financial institu· tion. We salute you ... and want you to know that our understanding and appreciation are things that you can depend on. If we can serve you in any way, please give us a call.

SIMMONS FIRST NATIONAL BANK Pine Bluff

MEM8ER FDIC