October 10, 2013 CLE luncheon

The Salt Lake County Bar Association Presents:

A Panel Discussion on Gene Patenting in the Wake of Association for Molecular Pathology v. Myriad

With Professor Amelia Smith Rinehart; Sandra Park, ACLU Staff Attorney; and Kristine Johnson of Parsons Behle & Latimer

Lunch and 1 hour CLE CREDIT (pending)

When:    Thursday, October 10, 2013 at 12:00 p.m.

Where:   Wasatch Retreat and Conference Center located within

The Episcopal Church Center of Utah, 75 South 200 East,

Salt Lake City (free parking in the Diocese Parking Lot)

Cost:     $25 for Salt Lake County Bar Members, and $30 for all others.

Payment to Salt Lake County Bar Association in advance or

at the door.

RSVP:  Please RSVP by e-mail, fax, or telephone by Tuesday,

October 8, 2013, to:

Barbara Noble

(801) 799-5893 (telephone)

(801) 799-5700 (fax)


222 S. Main, Suite 2200

Justice Tongue — April 2013

Dear Justice Tongue:

I am a fledgling “trial lawyer” with only a half dozen jury trials.  I think I’m getting the hang of things, but one aspect of litigation and trial practice is vexing me.  The subject is experts.  In my cases we can rarely afford them and I worry that I’m being out-gunned when the better funded side brings on some high-priced professional.  With my budget I’ve had to always look for the smoking gun, not the hired gun.  Any advice?


H. Smoke

Dear Mr. Smoke:

Did you really refer to the vast and increasing throng of academicians, clinicians, and leading lights we call “experts” as “hired guns”?  Are you implying that they lack independence and compromise their intellectual integrity and honesty in pursuit of the advocacy of their patrons’ claims?  Is it your contention that their testimony is for sale and they understate the principles that, in other cases, they highlight; and highlight principles that in other cases they relegate, all to enhance the trial themes and theories of their handlers?   Are you really suggesting that this vaunted role in the trial process is contaminated with the influence of money and that expert testimony is literally “for sale”?  Well, let me just say I am aghast.  Let me also say that you have a brilliant future in the trial practice because at a tender age, you are very perceptive.

In the ancient days, litigants would bring “compurgators” to the trial process to vouch for them.  It was thought that the party bringing the requisite number of “compurgators” would have the day.  Progress was made when the practice turned to the actual merits of the claim, you know, what actually happened.  The rules were refined and improved such that they generally followed the principles of logic and focused on the reliability of the evidence.  In some instances it was recognized that certain individuals, by dint of experience or academic prowess, could aid the judge and/or jury in understanding things beyond the laymen’s ken.  On came the paid expert.

Once you pay someone, they are not independent.  They are paid.  They may try to look independent, they may try to act independent, they may even try to give away little points here and there to seem independent.  They are not so.  I and my sage colleagues prohibit any reference to these paid witnesses as “independent” for these very reasons.  And the more effective these “hired professionals” are perceived to be as witness/advocates, the more coveted is their performance and the greater the financial tribute they demand.  Greater financial tribute equals less and less independence.  In a sense the use of experts often now devolves into a new kind of “compurgation”, namely that of paid witnesses who, under the guise of presenting “expert” analysis, provide advocacy for their clients.

You are rightly vexed, but all is not lost.  It is true that in certain instances you must retain an expert to meet legal requirements.  For example, in a medical malpractice case you must have an “expert” to establish the standard of care, the breach of standard of care, and causation.  Those instances are relatively rare.  Do not be intimidated by the paid witness.  In my experience, juries understand that they are anything but independent.  To make sure that no one misses the point, spend time both in the deposition and in the trial laying out calmly and systematically, the number of times they have testified for litigants on one side or the other, the amount of money they earn each year being professional witnesses, and the amount they have charged in the instant case to “prepare” their testimony, including the typically enhanced rate for their testimony.

When you cross-examine such professional witnesses, do not play in their ballpark.  There are general principles that they must embrace that will be part of your central liability themes.  Stay with those basic principles and present those aspects of your case through their mouths.  The master trial lawyers appearing in my court have invariably turned the other side’s expert into advocates for critical portions of their case.  When they do so they are careful, they are selective, and they are prepared.  It is not a game for amateurs nor is it something that you can do if you don’t fully understand the subject matter of the expert’s presentation.

Here is another hint.  You may have a talented witness in or affiliated with your client that can be presented as a non-retained expert.  Very often, treating physicians or experienced artisans in small businesses have specialized knowledge that qualifies them as non-retained expert witnesses and even though they may not be polished, the jurors are often very receptive to their common touch.  Yes, I understand they are not independent.  You will be the one to deal with that revelation.

Finally, you should know that some of the most famous, effective advocates err on the side of not hiring paid witnesses after all, many “experts” have to be told what their expertise is, what they know and what they should say.  They typically write like challenged third –graders, very often cannot keep straight which side they’re advocating for, and always contradict themselves in some critical phase.  At such times they present what the learned men and women of the trial bar refer to as “targets of opportunity”.  Be prepared.

Well, my best to you Mr., I’m sorry what was it?  Oh yes, Smoke.

Warm regards,


2013 Spring Dinner & Dance

The Salt Lake County Bar Association

Invites You to Attend

its Annual

Spring Dinner Dance & Election of Officers

May 31, 2013

The Country Club

2400 East Country Club Drive

Salt Lake City, Utah 

RSVP to Ms. Nicalee Nelson at nnelson@vancott.com or (801) 237-0227

$75 per person for SLCBA members and guests/$85 per person for non-SLCBA members and guests

Limited Seating

RSVP required by May 20, 2013 

Cocktails at 6:00 p.m.

Dinner at 7:30 p.m.

Dancing to Follow (Music by The Number Ones)

Cocktail Party Attire 

Silent Auction to Benefit the Salt Lake Area Family Justice Center at the YWCA

April 2013 CLE

The Salt Lake County Bar Association Presents:

Prop. 8, DOMA & the Supreme Court:

Paul C. Burke, William C. Duncan, Professor Clifford J. Rosky, and Professor Lynn D. Wardle

Lunch and 1 hour CLE CREDIT (pending)

 When:  Tuesday, April 30, 2013 at 12:00 p.m.

 Where:  Wasatch Retreat and Conference Center located within

              The Episcopal Church Center of Utah, 75 South 200 East,

              Salt Lake City (free parking in the Diocese Parking Lot)

 Cost:  $25 for Salt Lake County Bar Members, and $30 for all others.

           Payment to Salt Lake County Bar Association in advance or

           At the door.

 RSVP:  Please RSVP by e-mail, fax, or telephone by Thursday,

             April 25, 2013, to:

             Barbara Noble

            (801) 799-5893 (telephone)

            (801) 799-5700 (fax)


            222 S. Main, Suite 2200

Apps for Attorneys


By Lincoln Mead, Utah State Bar IT Director

There are a number of great apps out there that can streamline your practice and help you catch a couple of extra billing hours a week. (If you do not have a tablet and are thinking of taking the plunge consider this: If you can find an extra 15 minutes of billable time a week using a tablet it will pay for itself inside of a year.) The iPad has the most robust selection of legal specific apps but Android is coming on strong and now, with Microsoft entering the market, you will see a number of legal software vendors releasing their apps for that platform as well. Below is a small selection of Apps that I consider essential tools for attorneys.

Integration Apps

What can make a tablet useful is the ability to tie all the data from all your devices together.

DropBox / SpiderOak:  Web based data storage apps have been around for a long while but DropBox set a new standard in ease of use and power. Installing this app on all your phones, PCs, laptops and tablets will not only ensure that you have access to all your synched files but can create a great ‘quickie’ disaster recovery service. Spider Oak touts itself and a completely encrypted version of DropBox for those that want to go the extra mile to lock down data. If you are already using Google another related app to explore would be GDrive.

Evernote: The ultimate ‘capture’ app Evernote allows you to grab content from most applications and off of any device and store it for future recovery from the other devices in your arsenal. The tagging feature not only helps you sort the information but helps the app to highlight other associations inside of your archive. A quickie guide I send to attorneys getting started is located at http://www.attorneyatwork.com/getting-started-with-evernote

The Basics 

Day to day apps for general work.

GoodReader: A file manager that can open a wide variety of file types and has the ability to markup and annotate PDF documents. It can also be plugged into a number of data services such as DropBox , GDrive, and email providing access to all files in your storage system. Currently this app is only available for the iOS devices the developers are considering branching out to the Android and Microsoft world. An Android alternative to consider is ezPDF.

DocumentsToGo: While Microsoft has announced that they will be releasing MS Office apps for both the Android and iOS devices in 2013 DocumentsToGo has been a preferred app for a number of years to access Office documents from mobile devices.

Penultimate: If you are a yellow-pad lawyer looking for an app that comes close to the experience of that venerable tradition consider Penultimate. Currently written for the iOS platform Penultimate was recently acquired by Evernote and an Android product is in the works. If you do not want to wait consider, Quill for Android or Notability for iOS.

AudioNote: A refinement on the traditional note taking app is the ability to record audio as you are writing and have both of them in synch. Written for all platforms, AudioNote allows you to tap on a written note and be taken to the corresponding part of the audio recording. AudioNote is a great tool for client meetings and depositions.


No matter how good the device, there are some niche tools out there to make them better.

Divide: A common question is how to use a personal phone inside of an organization or firm. Divide creates a virtual desktop system that allows an attorney to separate their personal device information from the information services that may be pushed out from the office. An upside to this is that the office environment’ is fully encrypted and does not mingle data or impact the operation of the rest of the device.

Bump: Written for Android, iOS, and PC platforms, Bump allows you to quickly send files between devices just by placing them close together. The PC version also makes it ideal for quickly transferring data from your device to a laptop without hassling with cables. It is also a great tool for sending contacts and your digital business card to others that you meet. 

Legal Specific Apps

TrialPad: The gold standard for trial presentation management with a $90 price tag to prove it TrialPad allows an attorney to quickly call up exhibits and mark them up to help get the point across. There are some presentation alternatives out there that support such as Explain Everything and OneNote that can be used to provide a similar presentation experience.

iJuror: A rapid juror data entry tool for voir dire or trial you can select the juror seat to add juror notes. You can also use the drag & drop interface to manage or dismiss jurors and alternates. The system allows for the management of a jury pool of up to 60 candidates. The developer has just release a web based version called iJurorConnect that provides a free 30 trial to see if this technology is a fit for your practice.


Utah State Bar Modest Means Lawyer Referral Program

By Michelle V. Harvey

The Utah State Bar is launching a new program for those who are unable to afford full price legal services but are also unable to qualify for pro bono services. The Modest Means Lawyer Referral Program will provide members of the public who fall below 300 percent of the poverty line with a referral to an attorney who is willing to provide representation at a reduced rate. The program will benefit both people who need legal representation and attorneys who can use the program to build a client base and expand their practice areas. The courts will also benefit by having fewer pro se litigants.

The Modest Means Program will have three groups of participants: clients, attorneys, and an advisory panel. Each type of participant has a set of rules for participation. This article will describe each of the three groups and what is required from those taking part in the program.


Standard attorney fees are beyond the reach of the average family and the Modest Means Program is designed to help those who fall into the gap between being able to afford standard attorney fees and qualifying for pro bono assistance. Clients who take part in the program must be below 300 percent of the poverty line. To some this may seem like a high threshold for receiving reduced cost services however, the numbers demonstrate the need for the program. In 2013, for a single person 300 percent of the poverty line would equate to a gross income of $33,510 a year, for a family of five it would be $69,150. Those who fall below this level of yearly income usually appear before the courts pro se because they cannot afford an attorney for legal matters but do not qualify for pro bono legal assistance, which requires a client to be below 125 percent of the poverty line. The Modest Means Program will make it possible for those who fall below this line to have legal representation.

The potential client must fill out a Modest Means Referral Request in order to receive a referral for an attorney. The request form asks general questions to determine if the client falls below 300 percent of the poverty line. These questions include household size, sources of income, and assets, as well as questions regarding exempt money that may be used to pay child support or spousal maintenance. The potential client is also asked about the opposing party and their counsel to prevent conflicts in the referral. The potential client must submit the request along with the $25 referral fee to the Utah State Bar Modest Means Program. Once the request has been received and approved, the Bar will contact the potential client with a referral. It is then the client’s responsibility to contact the attorney to whom they were referred.


In today’s legal market attorneys are finding it harder and harder to find work. The Modest Means Program will help attorneys who are willing to take a reduced fee find clients and broaden their client base. In order for an attorney to be a participant in the program, he or she must be in good standing with the Bar, maintain professional liability insurance, and adhere to the Modest Means Program fee structure.

The Modest Means Program’s fee structure is based on the annual income of those receiving the referrals. If the prospective client has an annual income that falls below 200 percent of the poverty line the attorney agrees to charge up to $50.00 an hour or 35 percent of their normal flat fee for a particular service. If the prospective client is below 300 percent but above 200 percent of the poverty line the attorney agrees to charge up to $75.00 an hour or 50 percent of their normal flat fee. This scale has been developed so that the attorney can determine what they believe the client can afford on an individual basis and charge accordingly.

The attorney must also fill out a registration form in order to participate in the program. The registration form asks for attorney’s contact information, bar number, malpractice insurance carrier and employer. The form also asks the attorney to state which areas of the law and areas of the state in which they are willing to take referrals. The form is turned into the Utah State Bar Modest Means Program. After the Bar staff confirms that the attorney is in good standing, their information is put into a system used to provide referrals.


The Advisory Panel is a group of attorneys who are willing to help answer questions for those attorneys taking cases through the Modest Means Program. The attorneys on this panel must have at least seven years experience in the area of the law in which they are agreeing to give advice. Attorneys who have taken cases may contact the Modest Means Program stating that they have a question in a certain area of the law. Bar staff will then give them the contact information of one of the Advisory Panel members. The members of this panel should expect to field questions of varying magnitude and should know that it is on average a small time commitment, usually only involving a short phone call.

The members of the Advisory Panel will also have to register to be part of the Modest Means Program. Advisory attorneys must be in good standing with the Bar and must have practiced a minimum of seven years of practice in the area of the law in which they will give advice. The attorney will have to submit a registration form listing which areas of the law in which they are qualified to give advice. The registration form must be submitted to the Utah State Bar Modest Means Program and then the attorney will be put on the list of those attorneys who are willing to be contacted by attorneys taking modest means cases.

The Modest Means Program is currently looking to recruit attorneys looking to broaden their client base or those looking to mentor newer attorneys. If you would like to begin receiving referrals through the program please go to http://www.utahbar.org/modestmeans/modestmeansregistration.html and fill out the registration form. If you would like to be a member of the Advisory Panel, contact Michelle V. Harvey the Access to Justice Coordinator at the Utah State Bar by email at michelle.harvey@utahbar.org or by phone at 801.297.7049.

2012 Holiday Party

The Salt Lake County Bar Association’s annual holiday gala at the Salt Lake Country Club is a fantastic party, plain and simple.  The event’s popularity has soared in recent years, selling out almost as soon as the invitations are delivered.  This year, SLCBA hosted more than 200 guests, including many judges from both the Federal and State benches.  The signature cocktails and beautiful setting create a wonderful opportunity to share the holiday spirit with seldom seen colleagues before dinner, and the seated dinner provides everyone with a chance for more intimate conversation.  After dinner, the atmosphere heats up as nearly everyone flocks to the packed dance floor, where even the most buttoned-up amongst us cannot resist the sounds of The Metro Music Club featuring the amazing vocals of Joslyn.  In a season full of holiday parties and other social obligations, this one has become one of the finest highlights of the season.

Photos from this event are posted to our Facebook page here.

2012 New Lawyers Reception

The Salt Lake County Bar Association hosted its annual New Lawyers and Judges Reception on October 25, 2012 at the Alta Club in downtown Salt Lake. The event has become one of SLCBA’s most popular events, and with good reason, as there is not a better opportunity all year to get to know one another outside of the confines of law firms and courtrooms. This year, more than 200 new lawyers, experienced lawyers, and judges gathered to eat, drink, and socialize in one of the legal world’s few informal and relaxed settings. Chief Justice Durrant took the opportunity this year to remind the new lawyers of the valuable asset they possessed in their blank slate reputation, and of the need to protect that value from the discoloration that all too often results from the rough business of law. It would be hard to find a more valuable way for any attorney, new or experienced, to spend a few hours on a Wednesday evening.

Photos from this event are posted to our Facebook page here.

2012 Holiday Party

The Salt Lake County Bar Association

Cordially Invites You to Attend

Its Annual 

Holiday Dinner Dance

Friday, December 7, 2012

The Country Club

2400 East Country Club Drive, Salt Lake City 

RSVP to Ms. Nicalee Nelson at nnelson@vancott.com or (801) 237-0227

$75 per person for SLCBA members and guests/$85 per person for non-SLCBA members and guests

Limited Seating

RSVP required by November 26, 2012

Cocktails at 6:30 PM

Dinner at 7:30 PM

Dancing to Follow (Music by The Metro Music Club featuring Joslyn)

Black Tie Invited

Fall 2012 President’s Message – Hon. Robert J. Shelby

“This isn’t good or bad.  It’s just the way of things.  Nothing stays the same.”

-Author Unknown

2012-2013 SLCBA President – Hon. Robert J. Shelby

Service organizations that fail periodically to re-evaluate the services they provide risk becoming irrelevant or obsolete.  Professional bar associations are no exception.  Under the extraordinary leadership of last year’s President, Laura Scott, the officers of your Salt Lake County Bar Association carefully examined virtually every aspect of our operations.  The results of the Utah State Bar 2011 Survey of Members included some surprising information about the current demographics of our Bar, and informed many changes to several of our longstanding programs.

This fully electronic version of our Bar & Bench newsletter provides one example of the changes adopted.  Many of you have been members of the Salt Lake County Bar Association long enough to remember the light blue card stock newsletters that used to arrive with your mail.  In recent years we gradually phased out print copies, and moved to electronic newsletters.  The formatting and functionality of this newsletter reflects further transition to a format we hope you will find more approachable, and easier to navigate.

Given the tremendous popularity of our judicial profiles, the Bar & Bench subcommittee assembled this first of its kind “judges only” version of our newsletter.  Save for this message and some calendar notes of our upcoming events, this entire newsletter is devoted to judges.  Our very own Justice Tongue offers below more wildly popular judicial wisdom, and we offer profiles of 5 (relatively) new judges.  Our members often comment that these profiles are interesting and informative, and we hope you enjoy this compilation.  Like our recent electronic newsletters, it will be available on our website for future reference.

Under the leadership of Judge Julie Lund, our Bar & Bench subcommittee is working on some new content ideas for our upcoming winter and spring newsletters.  Joining Judge Lund on our Bar & Bench committee this year are Trystan Smith, Chandler Thompson, Billie Siddoway and Tomu Johnson.

Continuing Legal Education is another area in which we made some substantial changes, beginning with a summer series of free CLE’s on practical topics many young lawyers confront, particularly when friends and relatives call seeking advice.  Hosted by the S.J. Quinney College of Law at the University of Utah, programs on family law and criminal law quickly filled to capacity.  Look for two more free basic skills level CLE’s next summer.  In addition, we will continue this year our popular lunch programs with judges on the Third District Court and our State appellate courts.  We’ll also continue to host CLE lunches on relevant, interesting and topical issues, like our most recent CLE on troubling trends in voter rights.  Chris Hogle chairs our CLE subcommittee, with excellent assistance from Judge Michele Christiansen, Mark Kitrell, Rita Cornish and Clem Landau.

One area where our committee made virtually no changes is our social programming.  I am convinced that no bar-related organization hosts better social functions than our own Salt Lake County Bar Association Socials subcommittee.  Our events have been at full capacity for many years.  While tremendously enjoyable, our events serve an important function – they provide perfect occasions for members of our local bar and bench to gather and connect in ways that advance the collegiality and professionalism for which our bar is known.  Our annual Alta Club reception for new lawyers was a huge success, and our upcoming holiday party at the Country Club will sell out again.  Be sure to circle December 7 for that event.  Jonathan Pappasideris continues his outstanding multi-year tenure as chair of our Socials subcommittee, ably supported by Bart Johnsen and Sam Meziani.

Look for information after the first of the year concerning our annual Art and the Law project, led by Jennifer Mastrorocco and Kristine Larsen.  Participation among local schools remains near an all-time high, and our Third District Court judges always demonstrate great enthusiasm for judging the entries (many of which are on display in the Matheson Courthouse).

Our Membership, Public Relations and Social Media Committee is assembling a Survey Monkey questionnaire designed to help us better understand whether there exists among our membership unmet needs or interests for which new membership benefits would be useful.  The Committee is also ensuring that our operations remain transparent.  A calendar of our events, publications like this Bar & Bench Newsletter, and other materials are posted on our website at www.slcba.net.  Lauren Shurman, Aida Neimarlija, and Laura Scott are constantly working on ways to improve our value proposition for members.

Finally, I wish to express my appreciation to our officers.  Anneliese Booher is serving as our Vice President, Amy Sorenson is our Secretary, and Shane Hillman is our Treasurer.  Laura Scott remains on the committee as our Past-President.  These officers and all the members of our Executive Committee provide countless hours of service every year.  Our Salt Lake County Bar is fortunate to have such talented and dedicated lawyers working on our behalf.