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

President’s Message — Fall 2012

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

-Author Unknown

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.

Voting Rights CLE

The Salt Lake County Bar Association Presents:

VOTING RIGHTS ISSUES IN THIS ELECTION CYCLE

Panelists: Attorney J. Michael Bailey, Prof. Thad Hall, Attorney Marina Lowe, and Prof. Michael Teter

Lunch and 1hour CLE CREDIT (pending)

When:         Monday, October 29, 2012, at noon

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 Wednesday, October 24, 2012, to:              Barbara Noble

                  (801) 799-5893 (telephone)

                  (801) 799-5700 (fax)

                  bknoble@hollandhart.com

                  222 S. Main, Suite 2200

2012 New Lawyers & Judges Reception

The SLCBA Cordially Invites You to Its

NEW LAWYERS & JUDGES RECEPTION

to Welcome New Admittees to the Bar!

Thursday, October 25, 2012 from 5:30 p.m. to 8:00 p.m. at the Alta Club

100 East South Temple (Parking available northeast of the Alta Club)

No Cost to Attend

Drinks and Hors d’oeuvres Will Be Served

RSVP to nnelson@vancott.com

 

Justice Tongue

Dear Justice Tongue:

I was brought up short the other day when opposing counsel objected to all of my discovery because I had not first served initial disclosures. They also objected because my standard set of rogs and requests supposedly exceeded some new artificially low limit under the “new rules”.  “What new rules ?” I asked aloud, at which time I was informed by the receptionist that the discovery rules had been turned on their head.   I immediately suspected a meddlesome committee of “liberal elites” bent on having the government interfere with the courts.  Why can’t they leave us alone to duke it out as we always have?  Why fix something that isn’t broken?  What is the great Justice Tongue’s take on these new and unimproved pesky products of committee chaos? 

                                                                        Yours Truly,

                                                                                  DOZ

Dear DOZ:

            Oh my!  How exactly are you employing the term “new?”  Or let me be more pointed in my examination.  What percentage of your billable hours are logged during waking hours?  You say your receptionist brought you up to speed.   I suspect the janitor could have done so as well.

            Oh, what a burden has been placed upon you as a member of the bar to actually have to read and implement something new with the hope and ambition of expediting the judicial resolution of disputes.  Oh sure, you and your kindred have been endowed a legal monopoly in the right to represent the interest of others in court and the power to exact ever-escalating fees in endless senseless battles over information that rational minds would freely exchange.   What an intrusion on your solitude just because clients are completely dependent on your efforts (or lack thereof) to represent and efficiently promote their interests.

             Hmm, I just wonder if in your apparently few sentient moments you could grasp the larger concept that the practice of law is not just about you.   There is that pesky problem of the clients’ best interest and the fact that you may be doing as much harm to them as the corporate malefactors that drove them into your grasp in the first place.  Ask your receptionist if he or she could afford to protect his or her rights in a system that spends most of its time and energy dancing around the universe of possibilities, all the while emptying the client’s pockets long before the few and the well healed can taste the sweet relief of some measure of resolution.   With increasing impatience I watch unprepared and distracted “advocates” going through the motions (pun intended) with little evidence that they have any intent or ability to bring matters to trial.  It is as if they exist in an insular reality in which the process is the product, and the overweening reality is their status in the law firm’s hourly billing marathon.  

            Do not get me wrong, the revisions to the discovery rules are far from perfect.   But you need to hear the wake up call.  If the hallowed system of distributive justice is not serving the interests of real people with real problems (you know the people that vote), they won’t value it.   This just in:   people will not protect that which they do not  value.  In other words, they will allow your precious franchise to go bye-bye and the monied malefactors will have their way with this branch of government as well.

            I am guessing that by now you are completely lost.   Okay.   Take this meager offering to your receptionist (or janitor) and let them continue to “bring you up to speed”.           

                                                                         Fondly, Tongue

Judicial Profile — Justice Thomas R. Lee

The newest member of the Utah Supreme Court—Justice Thomas R. Lee—has been very active during the nearly two years since he was appointed by Gov. Gary Herbert.  He has been an active questioner during oral arguments, has authored twenty-nine opinions (according to Westlaw), has continued to teach at Brigham Young University’s law school, and still manages to find time to coach in his sons’ basketball leagues.  This high level of activity, however, has not transformed Justice Lee into a judicial activist.  To the contrary, he remains committed to his longstanding belief that the “role of the judge is to say what the law is and not what it should be.”

Justice Lee arrived at the Supreme Court with a wealth of appellate experience.  After graduating with high honors from the University of Chicago Law School in 1991, he clerked for Judge J. Harvie Wilkinson, III, of the United States Court of Appeals for the Fourth Circuit, as well as for Justice Clarence Thomas of the United States Supreme Court.  During the course of a career split between private practice and Brigham Young University, Justice Lee argued cases before numerous Federal Courts of Appeals and the United States Supreme Court. 

Although much of his private practice and teaching centered on intellectual property, the case Justice Lee argued before the United States Supreme Court, Utah v. Evans, 536 U.S. 452 (2002), involved a constitutional challenge—based on the rarely litigated Census Clause—to the methodology used by the Census Bureau in conducting the 2000 Census (which, as you may recall, resulted in Utah’s loss of one congressional Representative to North Carolina). Justice Lee described his oral argument before the Supreme Court as both the most thrilling and the most intimidating experience of his professional career.  During argument, all of the Justices—with the exception of his former boss Justice Thomas—peppered Justice Lee with questions about the statistical methods used by the Census Bureau, and under what circumstances those methods of data extrapolation were permissible.  One line of questioning even revolved around what the Census Bureau could properly infer when pizza delivered to a particular house subsequently disappeared.        

Reviewing the Evans argument online highlighted two things for me about Justice Lee.  See Evans Oral Argument Transcript, available at http://www.oyez.org/cases/2000-2009/2001/2001_01_714. First, regardless of the area of law at issue, it is critical to appreciate the starting point of a particular right (for instance, whether it derives from the Census Clause, a statutory enactment, or the common law).  Second, active oral arguments—even those involving unanticipated hypotheticals about pizza delivery—are ultimately much more helpful to the judges (and invigorating to the advocates) than those limited to a bland regurgitation of the briefing.   

As to his experience on the Utah Supreme Court, Justice Lee praised the fabulous work environment and credited the other Justices for helping him acclimatize to the view from behind the bench.  He described the current court as a group who take their jobs seriously, but thankfully themselves “not so much.”  The resulting camaraderie has made it possible for the Justices to engage in meaningful debate about matters of great importance to Utah and to respond to the competing interpretations of the law presented in every case with agility.  In a nutshell, it is this “give and take” with both the other Justices and the attorneys appearing before the court (as well as the high level of activity that necessarily results from taking this approach) that Justice Lee has come to enjoy so much over the past few years since his appointment.

Judicial Profile — Judge Todd M. Shaughnessy

To newly appointed Third Judicial District Court Judge Todd M. Shaughnessy, the breadth of the legal profession is both its greatest reward and possibly, its saving grace.  Judge Shaughnessy has always aspired to the true generalist in his own career, embracing the full scope of intellectual challenges that the profession offers.  Now, as a trial court judge, Shaughnessy has the opportunity to fulfill those personal aspirations while simultaneously contributing to the enhancement of the legal profession’s general ability to meet those diverse societal needs.

During his seventeen years of private practice, at both Van Cott, Bagley, Cornwall & McCarthy and Snell & Wilmer, Shaughnessy made every effort to build as broad a practice as civil litigation could offer, immersing himself in the details of any business, industry, or individual that would hire him, even at the cost of billable hours.  It wasn’t until he began his judicial career, in July 2011, however, that Judge Shaughnessy learned just how diverse the practice of law really was.  The panoply of challenges he faced, from criminal to domestic to probate to civil, were as rewarding as they were foreign and difficult.  Judge Shaughnessy has addressed his inexperience in those areas by leaning heavily on his colleagues on the bench, crediting his achievements thus far to their unlimited patience and willingness to help.

Judge Shaughnessy’s private career and early experiences as a judge have made him quite aware of the limitations of litigation and the obstacles that have prevented the legal profession from reaching the full scope of society’s needs for dispute resolution.  He is hopeful that the new “proportional discovery rules” will open the doors of the judiciary to a wider variety of trials, litigants, and jurors, by reducing the cost barriers to litigation and by protecting attorneys who try cases upon limited and imperfect information.  The increased level of participation, he believes, will vest a larger segment of society in the success of the system, and thereby elevate the profession, while creating new opportunities for lawyers willing to take cases to trial within the confines of the new discovery limitations, more like the trial attorneys of yesterday.

Judge Shaughnessy is similarly a man of many passions in his personal life, and he believes that the diverse personal interests of Utah attorneys play an important role in maintaining the close-knit, cordial bar that we are so lucky to have in Utah.  He advises his colleagues in the bar to cultivate those interests, enjoy their short time with their children, and experience the world class landscape in which we live, as he does on his frequent motorcycle trips around Utah and weekends at his family cabin in Torrey.  If the daily pressures of law practice start to take their toll, Judge Shaughnessy would advise the civil litigant to check their perspective at the criminal law and motion calendar, where lives are permanently changed on a daily basis.  It is those proceedings, and the decisions they require, that now keep the veteran civil litigator, and aspiring generalist, awake at night.

Judicial Profile — Judge Charlene Barlow

Judge Charlene Barlow was appointed in October 2010 by Governor Gary Herbert.  Her 30 plus years as a prosecutor prepared her well for the challenges of her West Jordan caseload.  Judge Barlow prosecuted for Orem City, Provo City and Utah County before joining the Utah Attorney Generals’ office in 1988.  While at the AG’s office she worked in Criminal Appeals,  prosecuted  Financial Crimes and was the Division Chief of the Consumer Enforcement Unit.

Judge Barlow grew up on a farm in Idaho with two siblings.  She attended Ricks College and Brigham Young University where she graduated with a degree in English. She taught school for five years before returning to school to pursue her law degree at the J. Reuben Clark Law School.

She was always drawn to criminal law and has worked in that area of law for most of her career.

Her attraction to a career in the judiciary arose from a belief that her litigation and life experiences would allow her to assist people with their problems.  Consequently, her greatest satisfaction with this job has been the ability to help the parties who appear before her to resolve their legal matters or at least engage in a fair process.  The most challenging part of the job has been making decisions in homicide cases, where the stakes are so high, and dealing with the emotions in her domestic relations calendar.

Tips for the practitioners who appear before her: She appreciates attorneys who are well-prepared, have narrowed the issues and have resolved those that can be resolved, prior to the court hearing.  Her biggest pet peeve is lawyers who continue to talk well after they have made their point.  Judge Barlow values efficiency in her court room, as a result she dislikes anything that wastes the valuable time of those appearing before her. She recognizes the importance of the transition to e-filing and has become comfortable with viewing court documents on the computer on her bench.

Away from the courthouse, she enjoys reading and watching her grand-nephews play sports.  Judge Barlow is an avid fan of the BYU Cougars and has a reputation as a fabulous baker, often sharing her baked goods with court employees.

Judicial Profile — Judge Katherine Bernards-Goodman

Judge Katherine Bernards-Goodman, who spent her childhood in Southern California, moved to Orem as a teenager.  It was a bit of a culture shock.  She attended BYU and received an associate degree in childhood education.  She quickly realized, however, that teaching was not her calling.  She returned to school, this time at the University of Utah, and obtained a degree in psychology.  She then attended law school at the S.J. Quinney College of Law.

After graduating, she briefly worked at Christensen & Jensen and then joined the Salt Lake County District Attorney’s Office.  After experiencing first hand her intelligence, easy manner and great sense of humor, I was not surprised to learn that Judge Robert K. Hilder, with whom she worked at C&J, was a friend, mentor, and later, judicial role model.  

During her 21 years as a prosecutor, she prosecuted child abuse and neglect cases in the juvenile court system and child sex abuse cases and major offender cases in the adult court system.  She prosecuted several high profile cases, including the Cathy Cobb “cold” case and the Brook Shumway case, which involved a 15-year old boy who stabbed his friend 38 times during a sleep-over. She helped the first drug courts in Utah continue and grow, which support evidence based practices in recovery, personal accountability, alternatives to incarceration, and public safety.  She spent seven years working with the State Drug Court Working Group.

In June 2010, Governor Herbert appointed her to the Third Judicial District Court.  While she has been presiding over a criminal calendar, she recently assumed Judge Faust’s calendar, which is comprised of approximately 20% civil cases. 

Judge Bernards-Goodman was one of the first judges assigned to handle cases in the new Early Case Resolution Program, which identifies cases that can be easily resolved such as property, drug and public nuisance cases. She is confident that the Program will save scarce judicial resources for cases involving more serious crimes.

While she clearly loves being a judge, there are certain things she misses about being a prosecutor.  What does she miss the most?  Believe it or not, the phone calls in the middle of the night summoning her to a crime scene to work with police officers.  She also misses controlling the case, including the presentation of the evidence.   

Having recently made the transition from prosecutor to judge, I asked her what advice she had for lawyers, especially new lawyers?  Be prepared and be civil.  She will not hesitate to take a lawyer aside if he/she is being uncivil or using inappropriate language in briefs or at oral argument.   In the courtroom, she tries to emulate Judge Atherton and Judge Trease. For civil matters and because pleadings are filed electronically, she appreciates courtesy copies with determinative cases attached. 

She has three children:  two sons and one daughter.  In her very limited free time, she enjoys working out, shopping, and spending time with her 5-year old granddaughter.

Judicial Profile — Judge Andrew Stone

Judge Andrew Stone was born in Pennsylvania, lived in California, and then moved to Utah when he was a teenager.  He graduated from the University of Utah with a degree in biology.  Having no interest in medicine and not wanting to leave Utah to pursue an academic career, he decided to take a year off and then go to law school.  He loved it and knew almost immediately that he wanted to be a trial lawyer. 

After graduation, he clerked for the Honorable Bruce S. Jenkins and then moved to Washington D.C. to join the prestigious Department of Justice Attorney General’s Honors Program, where he gained invaluable experience litigating cases involving important public policy issues or large amounts of money.  The topics ranged from rural electrification cooperatives to wheat storage to body bags.  He relished the opportunity of delving deeply into the cases and issues without the extraordinary caseload of an Assistant U.S. Attorney. 

After fulfilling his two-year commitment to the Honors Program, he accepted an offer from Jones Waldo and returned to Salt Lake City, where his practice focused on antitrust and business litigation for over 20 years.  He was repeatedly recognized for his expertise and advocacy skills, being named to Best Lawyers of America.  He also served on the firm’s board of directors and executive committee. 

With the encouragement of Judge Deno Himonas and others, he decided to apply for a judgeship.  Having recently gone through the judicial nomination process, I asked Judge Stone what advice he would give lawyers who are considering applying?  He emphasized that you need to be patient and recognize that you will receive little feedback during the process; that the process may be very disruptive to your practice; and that it will take a lot of time.  Is it worth it?  Absolutely Judge Stone says.

Indeed, although Judge Stone sometimes misses the social aspect of private practice and being the designated hitter instead of the umpire, he has found the work of a trial judge incredibly rewarding.  He is surprised by how much of his job involves pro se litigants and parties from all walks of life, most of whom who are interacting with the judicial system for the very first time.  Unrepresented parties are often intimidated, and Judge Stone believes it is very important to make them feel like they are getting a fair shake. 

What makes his job as a trial judge easier?  Lawyers who are well prepared. Lawyers who approach oral argument as an opportunity to have a dialogue with the court about the problematic issues in the case.  Lawyers who understand relevance and the importance of focusing on their most persuasive arguments.  Also, although it should go without saying, Judge Stone says to be prepared and be civil.  During oral argument, Judge Stone likes to ask questions.  If he feels one party has a strong position, he may start out by asking the other party why he shouldn’t rule against it.  He keeps an open mind and says that his initial leaning on an issue is often changed by oral argument.

Some practical advice?  He reminds lawyers that the Third District Court has gone electronic and that he reads the pleadings on his iPad.  Consequently, there is no need to provide him with courtesy copies prior to a hearing.  In his “dream” world, lawyers would provide him with a PDF of all briefs on the motion, with a hyperlink to embedded cases. 

The new rules of discovery?  Judge Stone encourages lawyers to become familiar with the Third Judicial District Court rules and suggests that they call his clerk and request a discovery conference if there are issues that arise during the case.  When appropriate, a telephonic conference will allow him to make a tentative ruling on the issue without imposing the burden and expense of motion briefing on the parties.  He believes that other judges may be open to such conferences and lawyers should explore this with their clerks prior to filing a motion.    

His judicial role models?  Judge Jenkins, Judge Iwasaki and Judge Hilder.

Judge Stone is married and has two daughters.  His wife is a human resources consultant and owner of Evolutionary HR.  His oldest daughter is in the IB program at West High School and is an avid climber and telemark skier.  His youngest is at Bryant Middle School and is a tremendous baker.  To keep up with them, he spends his free time cycling and skiing.