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Theme:
Legal Research & Writing
Editor: Erin Means
pg. 383
Departments
324 From the President
343 Editorial Calendar
387 From the Executive Director
389 Law Practice Tips
392 Ethics/Professional Responsibility
393 OBA Board of Governors Actions
397 Oklahoma Bar Foundation News
400 Access to Justice
404 Young Lawyers Division
405 Calendar
406 For Your Information
408 Bench and Bar Briefs
410 In Memoriam
412 What’s Online
416 The Back Page
Features
327 Paragraphs and Indentation:
Formatting for Persuasive Writing
By Collin Walke
333 George Orwell’s Classic Essay on
Writing: ‘The Best Style Handbook’
for Lawyers and Judges
By Douglas E. Abrams
341 From Rough-Hewn to Refined
By Bryan A. Garner
pg. 370 Oklahoma’s Marketa
ble-
Product Royalty Ru
345 Effective Legal Writing: le
One Judge’s Perspective Plus
By Retired Judge Wayne Alley
370 Clarifying Oklahoma’s Marketable-
349 Writing Tips for a New Associate Product Royalty Rule
By Melanie Ruhgani By John Burritt McArthur
353 Legal Research Tips for Practitioners 383 Oklahoma’s Promise: OBA Pilot
By Sabrina A. Davis
Project to Reach Out to Less
359 Appellate Brief Writing: Advantaged Students
What Not to Do By Lori Rasmussen
By Tamala Boyd
385 Legislative Monitoring Committee
365 Better Living With Citations Kicks Off Its Efforts
By Jason McVicker By Duchess Bartmess
As 2015 unfolds in the coming months, we all will be recourse to impartial judgment the
called upon to remember and reflect upon the importance of the barons had no meaningful recourse,
rule of law as we collectively acknowledge three important and they revolted. Our own Supreme
anniversaries. Two of these events are uniquely significant to us Court scandal in 1965 is a stark
as Oklahomans — the Oklahoma City bombing 20 years ago reminder of the dire consequences
and the Supreme Court bribery scandal 50 years ago. The other that can result when this basic con-
is a seminal event in the history of the Western world and a cept is forgotten or ignored.
concept that we hold dear: that no one is above the law. All are Likewise, our concepts of “due
intertwined and of particular significance to us as lawyers. process of law” are directly related
Next month our association will cosponsor to the words “by the
and join with the Oklahoma Secretary of State law of the land” found
and others to bring a Magna Carta exhibit to in Chapter 39 of the
be displayed in the State Capitol building in The administration original Magna Carta.
Oklahoma City as we celebrate its inception of justice by an “No free man shall be
800 years ago. taken or imprisoned,
impartial judiciary or disseised, or out-
While much has been said and written about has been basic to lawed, or exiled, or
Magna Carta — the “Great Charter,” its es- any wise destroyed;
sence was perhaps best captured by Winston our concepts of
nor shall we go upon
Churchill when he described it as the “funda- freedom ever since him nor send upon
mental principle [that] government must Magna Carta. him, but by the lawful
henceforward mean something more than the judgment of his peers
arbitrary rule of any man, and custom and the or by the law of the
law must stand even above the King.” 1
land.” The perpetra-
In the years following its initial presentation in 1215 to Eng- tors of the 1995 Oklahoma City
land’s King John, thrust at him by his barons as a list of bombing were brought to justice
demands, and his reluctant acquiescence to applying the due process require-
its terms under threat of the sword, the ments of our Constitution, the basis
Great Charter went through several itera- of which is found in the Great
tions. But however uncertain its beginnings, Charter. A just result brought about
through time it has been a critical and fun- by the lawful judgment of their
damental influence on the rule of law, first peers.
in England, and from there around the I hope you will join me during
world. The colonists, in our own humble 2015 as we remember and reflect
beginnings, invoked Magna Carta in their upon the origins and importance of
quest to replace the arbitrary government of the rule of law in the life of our state
King George III with self-rule. It was like- and nation. Please begin by joining
wise later the focus of our founding fathers others and take time to visit the
in framing the Constitution, primarily Magna Carta exhibit at the State
reflected in the Bill of Rights. Capitol next month.
President Poarch The administration of justice by an impar-
practices in Norman. tial judiciary has been basic to our concepts 1. 1 Winston S. Churchill, The Birth of Britain
253 (1956).
dpoarch@baileyandporch.com of freedom ever since Magna Carta.2 Without 2. Bridges v. California, 314 U.S. 252, 282 (1941).
405-329-6600
C
ontrary to that pesky little voice in your head at this very
moment, formatting is not a boring topic and is absolutely
critical when writing a legal brief. Aside from the technical
rule requirements for formatting briefs, which will be discussed in
greater detail below, formatting is essential for persuasion. One of
the best legal writers I have ever had the privilege of working with
has a paper weight on his desk that reads: “Good writing is clear
thinking made visible.” Without good formatting, quality content
will be lost in the mire of facts, law and argument.
The point of this article is to outline what to pick and choose which rules are important.
good formatting looks like. First, the brief The court rules for briefs are not uniform, so
must be written in accordance with the for- you need to make sure that whichever court
matting rules of your particular court. A brief you are practicing before, you are complying
for the district court of Oklahoma County will with those rules.
look different than a brief for the Western Dis-
For example, Tulsa County Local District rule
trict of Oklahoma. Second, the format of the
CV 18 requires formatting of briefs to comply
brief must be laid out so that it assists the
with Oklahoma Supreme Court rule 1.11(a). In
reader in understanding your position. Finally,
turn, rule 1.11(a) requires 12-point font. By con-
your format should match the needs of the
trast, LCvR7.1 of the Western District of Okla-
particular brief.
homa requires 13-point font. While an attorney
COURT RULES ON FORMATTING may consider this a trivial detail, judges notice
when attorneys do not comply with court rules.
It honestly astounds me how many attor-
neys do not write briefs that comply with court According to Judge Friot of the Western Dis-
rules. Oklahoma County District Judge Ber- trict of Oklahoma, “Some briefs are hard
nard Jones strikes briefs that do not comply enough to follow in 13-point type, let alone
with court rules. He reasons that “rules are 10- or 11-point. And when I read a brief that
rules,” and as a “steward of the institution of takes liberties with our format requirements
law”1 it is his obligation to apply the rules, not (assuming I have not stricken it), it is only
There is nothing wrong with writing a brief is, what legal theory you are relying upon, and
in this manner. However, when a lawyer writes why you should prevail.
a brief like this, the judge reading the brief
Related to broad formatting issues (e.g., put-
does not actually know what relief is being
ting the propositions up front on the first page
sought or why until he or she reaches step two.
versus waiting until later in the brief), a good
Meaning, the judge does not understand the
legal writer will have an eye toward subhead-
facts or appreciate why you are even writing
ings. Subheadings are helpful because they act
the brief until well into the brief.
as signposts throughout the brief and catch the
The same brief, using a different method, reader’s eye. A lengthy narrative statement
which I call the “up front” method, looks like may be written well, but the important details
the example above. may get lost without subheadings.
This method has the benefit of telling the Another common mistake is not providing
court right away what the purpose of the brief context within the brief itself. This is most com-
monly seen in response briefs. Take the ficti-
5:30 pm - 7:00 pm
of Appeals and trial judge pro tem for the Tohono O’odham Nation.
L
ike other Americans, lawyers and judges most remember Brit-
ish novelist and essayist George Orwell (1903-1950) for his
two signature books, Animal Farm and 1984. Somewhat less
known is his abiding passion about the craft of writing. It was a
lifelong passion,1 fueled (as Christopher Hitchins recently described)
by Orwell’s “near visceral feeling for the English language.”2
Orwell’s most exhaustive commentary about If I were a law partner employing young
writing was his 1946 essay, Politics and the Eng- lawyers or a judge employing law clerks, I
lish Language,3 which minced no words. “[T]he would add Orwell’s essay to a list of reading
English language is in a bad way,”4 he warned. recommended on the way in. If I were a young
“Debased”5 prose was marked by “abuse,”6 lawyer not required to read the essay, I would
“slovenliness,”7 and a “lifeless, imitative style”8 read it anyway. The entire essay is available for
that was nearly devoid of “a fresh, vivid, downloading at http://goo.gl/Oea0wK.
homemade turn of speech.”9 A “tendency . . .
Orwell stressed that he was dissecting, not
away from concreteness”10 had left writing
“the literary use of language, but merely lan-
“dreary,”11 “ugly and inaccurate.”12 “[V]ague-
guage as an instrument for expressing and not
ness and sheer incompetence,” he said, “is the
for concealing or preventing thought.”17 The
most marked characteristic of modern English
narrower scope does not deprive legal writers
prose.”13
because Justice Felix Frankfurter was right that
Orwell’s 12-page essay diagnosed what he “[l]iterature is not the goal of lawyers, though
called the “decay of language,” and it offered they occasionally attain it.”18 Orwell’s essay
six curative rules.14 The diagnosis and rules still approached language as a tool for clear com-
reverberate among professional writers. More munication, an aspiration that defines what
than 65 years later, Judge Richard A. Posner lawyers and judges do throughout their careers.
calls the essay “[t]he best style ‘handbook’” for “The power of clear statement,” said Daniel
legal writers.15 Nobel Prize-winning economist Webster, “is the great power at the bar.”19
Paul Krugman recently went a step further,
As Orwell’s title intimates, the essay includ-
calling the essay a resource that “anyone who
ed criticism of political writing done by gov-
cares at all about either politics or writing
ernment officials and private observers. The
should know by heart.”16
W
hat’s your biggest challenge as a writer? It’s figuring
out, from the mass of things you might possibly men-
tion, precisely what your points are — and then stating
them cogently and with adequate support.
Although this advice might seem obvious, of street improvements from the conclu-
legal writers constantly overlook it. The result sion reached and announced in the former
is a diffuse, aimless style. And even with your opinion, we are pleased to declare that the
point well in mind, if you take too long to get arguments upon rehearing have convinced
there, you might as well have no point at all. us that the decision upon the ultimate
Only the most highly motivated readers will question involved here formerly rendered
work to grasp your meaning. by this court, even if not faulty in its rea-
soning from the premises announced or
That’s where law school comes in. Every law
wholly erroneous in conclusions as to some
student reads plenty of diffuse writing and is
of the questions incidentally arising and
expected to distill the main points from them.
necessarily legitimate subjects of discus-
You’ll read old cases that take forever to make
sion in the decision of the main proposi-
a fairly straightforward point. You’ll read law
tion, is, at any rate, one which may, under
review articles that take 50 pages to say what
the peculiar circumstances of this case, the
might be said more powerfully in three. And as
more justly and at the same time, upon
you read these things, your incentive for glean-
reasons of equal cogency, be superseded by
ing their main points will be high: your future
a conclusion whose effect cannot be to dis-
in law depends on it. In other words, you will
turb the integrity of the long and well-
work as hard as any experienced legal reader
established system for the improvement of
to break through opaque prose. You’ll simply
streets in the incorporated cities and towns
have to.
of California not governed by freeholders’
LAW SCHOOL READING charters.
Take a California judicial opinion issued just What’s the court saying there? In a highly
after the turn of the 20th century, a period still embellished style, it’s simply saying, “We
heavily represented in casebooks. See if you made a mistake last time.” That’s all.
can follow the point:
But if you add sentence after sentence to that
And in the outset we may as well be frank one — filled with syntactic curlicues — you
enough to confess, and, indeed, in view of end up with an impenetrable morass of words.
the seriousness of the consequences which The only readers who will bother to penetrate
upon fuller reflection we find would inevi- it are those who are paid, probably handsome-
tably result to municipalities in the matter ly, to do so.
W
hat does a judge want in writings (motions, briefs,
applications, reports, proposed orders) filed in his or
her cases? There is an easy answer; the judge wants an
easy out. The judge wants a clear, simple, substantiated solution
to the problem at hand — a solution with which he is comfort-
able. To this end, consider the following suggestions.
Tell the judge why. Except for uncontested ensue from the adoption of the opponent’s
applications, such as for extensions of time, position. Some allusion to the downside of the
both sides typically submit persuasive stat- opponent’s position may be helpful, but it
utes, cases and secondary authorities in sup- shouldn’t be dominant in the writing or be
port of their respective positions. Not many patronizing, strained or nit-picky.
positions are “slam dunks.” The judge needs
Be succinct. My office was a paper mill.
to be educated not merely that the respective
Piled up, the writings filed in a typical week
authorities are out there, but why one set of
would reach a height of 18 to 24 inches. After
authorities leads to a better result than the
some bad early experiences, I decided never
other. The judge shouldn’t have to figure it
to be absent for more than a week. Otherwise,
out for him or herself. Included in the concept
the accumulation would have been over-
of a better result are simplicity of future appli-
whelming. If you want the judge to stay with
cation, achievement of economies, conformity
you when he or she reads your work, edit,
with a general principle such as one’s respon-
edit, edit. If the judge wants to read a law
sibility for the consequences of his or her own
review article, the judge will go to the library
conduct; consistency with legislative purpose
and get one. Whatever you say, say it only
(e.g., a judge should not be chintzy in constru-
once. Repetition doesn’t result in a higher
ing and applying a remedial statute); minimal
degree of understanding. Instead, it numbs
disruption of the way things are ordinarily
the mind and glazes the eyes. Ordinarily, the
done; and whatever else the imaginative law-
bulkiest filings are motions for summary
yer/author can come up with.
judgment and responses thereto, because of
The effective presentation of why is positive, attached documents, photographs and depo-
emphasizing the benefits that would flow sition excerpts. The lawyer/author should be
from the adoption of one’s position rather economical with attachments so that the read-
than reciting a parade of horrors that might er, who is the decision-maker, doesn’t drown
Y
ou went to law school because you “like to argue.” You
imagined yourself standing in front of a jury, brilliantly
deconstructing a witness’s story on cross-examination or
delivering a killer closing argument. You took classes in trial
advocacy, you honed your public speaking skills, and you wore
out your DVR watching and re-watching that trial scene from To
Kill a Mockingbird. You purchased a shiny new black “power suit”
to hang in your closet, and you can’t wait to deliver your first
opening statement. You are, in short, a new associate.
For most associates, however, the actual One of the easiest and most effective ways to
practice of law differs dramatically from what improve your own writing is to read that of
we imagined. We spend most of our days in the others. Ask around your firm or workplace,
office, not in court. We talk to our clients and find out which lawyers are considered excel-
opposing counsel most often through email, lent writers, and read their work. Analyze
not in-person meetings. Jury trials are becom- briefs written by prominent appellate advo-
ing fewer and farther between, and appellate cates, such as now-Chief Justice Roberts, who
arguments in this state have nearly vanished. is often mentioned as one of the best legal writ-
We win our big cases on dispositive motions, ers in the country.1 And don’t limit yourself to
not at trial, or we resolve them through settle- legal writing: read the newspaper, read novels,
ment. In today’s world of motions practice and read poetry. Internalize different styles, find
mediation statements, written — not oral — what works, and incorporate that into your
advocacy reigns supreme. own work.
As a senior associate, I am often asked what, Another easy way to improve your writing is
in my view, is the most important skill for a to have — and to use — good writing resourc-
new associate to develop. My answer is always es. Every young lawyer should become inti-
the same. It is not brilliant cross-examination mately familiar with Strunk and White’s The
technique, it is not courtroom presence, and it Elements of Style,2 Bryan Garner’s The Winning
is not soaring legal oratory (although all are Brief,3 Tom Goldstein’s The Lawyer’s Guide to
certainly valuable skills in their own right). Writing Well,4 and The Bluebook.5
The single most important tool for success in
Finally, consider following these 10 legal
today’s legal environment is also one of the
writing tips for young associates:
most basic: legal writing.
1)
Legal writing is just, well, “writing.” Stuffy
How, precisely, does a young associate devel-
Latin phrases, pretentious formulations
op this critical skill?
T
he Oklahoma City University School of Law completed its
move to downtown in January 2015, and we are excited to
be closer to the legal action of the city and about the oppor-
tunities to connect more frequently with the attorneys. For exam-
ple, the reference librarians who teach legal research classes at the
law school plan to offer CLEs on legal research topics once things
settle down from the move.
As we tell our law students, the ability to numbered, legal research is not generally such
conduct legal research is an essential skill for a straightforward practice. Keep in mind that
practicing law; and the better they are at it, the you will likely have to repeat steps multiple
more in-demand they will be. However, the times and not necessarily in the same order.
nature of legal research has changed greatly
Step 1: Plan ahead
over the past 15 years, and it will continue to
do so as we increasingly transition away from • Take notes on your sources as you go.
print and to electronic resources. As law librar- • Pay attention to which search terms and
ians, it is our job to keep up with the trends in strategies are helpful and which are not.
legal research so that we can share that infor-
mation with our students and faculty. And in • Keep track of full citation information.
this article, my goal is to impart some of that Step 2: Analyze the problem
essential knowledge to you. But knowledge
alone is not sufficient for improving legal • Determine the jurisdiction.
research skills; you also have to practice by • Identify the legal issues.
exploring the different research platforms and • Identify any relevant facts.
thinking critically about your search tech-
niques. So, here we go! Step 3: Generate research terms
RESEARCH STRATEGY • Identify keywords to search for based on
your legal issues and facts.
With all of the online and print resources • Think of alternative words and phrases:
available for legal research today, it is impor- synonyms and antonyms; broader and
tant to have a well-thought-out strategy to narrower terms; related concepts.
research effectively and efficiently. Below is a
basic, five-step process for keeping your • Consider different types of terms and con-
research on track. But although the steps are nectors (Boolean) searches.
Is there a case at the center of a contro- If researchers take some time up front to
versy? Look up the case and follow its learn the rules of their most commonly used
history and citing references. search engines, this can save a lot of time and
frustration during the actual research process.
Do you need to locate legislative his- Look for help screens or documents to identify
tory of a statute? See the following the types of searches allowed for a particular
Oklahoma City University law library’s search engine.
research guides: Federal Legislative Histo-
ry1 and Oklahoma Legal Research — Okla- Some of the key differences between data-
homa Constitution, Statutes, & Legislation.2 bases that researchers should be aware of
include: 1) coverage varies by both types of
Are administrative regulations at issue? documents and date ranges; 2) the existence
See the Oklahoma City University law and extent of annotations and other editorial
library’s research guide, Administrative enhancements; 3) the types and number of
Law.3 finding aids available; and 4) types of advanced
Are you looking for current or histori- search options available. Efficient researchers
cal law? Contact a reference librarian if will take time to examine these features to see
you need assistance locating older ver- which database will be most useful for their
sions of statutes, regulations, or historic particular research questions.
case law. (See Section IV below.) General search tips:
• Use your research terms from Step 2 by • Look for popular name tables, indexes,
looking for them in indexes or including search tips, tables of contents and other
them in online searches. finding aids.
Step 5: Analysis of research • Get in the habit of narrowing results by
• Read your research findings. jurisdiction so that you do not waste time
• Evaluate: on inapplicable search results.
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T
he author Isabel Allende said, “Write what should not be
forgotten.” Of course, she was speaking about writing fic-
tion, but the quote also fits perfectly within the realm of
legal writing — especially when you are writing for a court like
New York’s Appellate Division, First Department, quite easily
one of the busiest courts in the country. The First Department
handles approximately 3,000 appeals, 6,000 motions and 1,000
interim applications each year. Unlike many other intermediate
appellate courts, the First Department has broad powers to
review questions of both law and fact, and to make new findings
of fact. With few exceptions, appeals to the Court of Appeals are
by permission only; the First Department, along with the other
three Appellate Departments, is the court of last resort in the
majority of its cases.
Until recently, I was a principal appellate In my time as a principal appellate court
court attorney in the First Department’s Law attorney, I worked on hundreds of appeals,
Department. The Law Department includes read close to a thousand briefs, and pored over
the chief and deputy court attorneys, a group a mind-boggling number of records. Signifi-
of supervisors, attorneys who primarily do cantly, while court attorneys are not the first
motions and applications, and a team of court people to look at your briefs (that would be the
attorneys with varying degrees of experience wonderful people in the clerk’s office), they are
and expertise. Court attorney titles range from the first to truly scrutinize your submissions,
“appellate” at the junior level to “principal,” parse the various sections, and evaluate your
the most senior. While, generally speaking, all arguments. Moreover, as one of the people
court attorneys research and analyze legal charged with producing detailed, often lengthy,
issues and questions for the court and perform reports based upon a review of your materials
other related duties as assigned, such as and the court attorney’s own independent
motions and applications, more senior court legal research, I feel confident in saying that
attorneys tend to work on more complex legal court attorneys probably care the most about
issues with little to no direct supervision. the quality of your work product.
L
itigators are forever trying to show that the law is on their
side. To do this, a litigator must first show what the law is.
A good citation serves both purposes, informing the court
of the pertinent legal standard and persuading the court to rule
in your client’s favor. In contrast, a lousy citation can annoy the
court, arm your opponent and even breach the rules of ethics.
Opinions vary on the “correct” way to cite. Which is “better”? This article does not seek
Just as self-styled grammar police will never to wade into that conflict, which probably can-
agree on the use of commas,1 citation sticklers not be settled by mortal efforts. The precise
have downright emotional opinions about for- mechanics of citation are best addressed by
mat. Courts fan the flames of conflict with dis- reference to Oklahoma Supreme Court rules,3
parate rules and pet peeves of their own. Com- or the famous Bluebook.4 Now in its 19th edi-
pare these citations. tion, the Bluebook is a mainstay of law schools
and court chambers. Published by the Harvard
Douglas v. Cox Ret. Props., Inc., 2013 OK 37,
Law Review Association, it provides numerous
302 P.3d 789.
examples and explanations for format, along
Douglas v. Cox Ret. Props., Inc., 2013 OK 37, with more rules and exceptions than most
¶12, 302 P.3d 789, 794. people ever care to read. Consider this merely
a list of best practices, as gleaned from sticklers
Douglas v. Cox Retirement Properties., Inc., 302 of all stripes.
P.3d 789, 794 (Okla.2013).
BEST PRACTICES
Douglas v. Cox. Ret. Props., Inc., 302 P.3d 789,
793-94 (Okla.2013). When to Cite
These citations have all appeared in the opin- Provide a citation to directly support a prop-
ions of state and federal courts.2 They all cite osition, to identify the source of a quote or to
the same authority for the same proposition. identify an authority discussed in the text.5 Prac-
They all comply with applicable rules. But the titioners may remember the IRAC paradigm
variations are obvious. The first two examples from law school (issue, rule, application and
are from Oklahoma state courts, which mostly conclusion). Your rule should almost certainly
follow the public domain citation format, pur- be supported with a citation. Courts are not
suant to Oklahoma Supreme Court Rule impressed with unsupported assertions of law.6
1.200(f). The second two examples are from Moreover, failing to cite an authority may signal
federal courts. Federal courts generally hew to weakness to your reader, who will surmise that
the Bluebook citation format. no authority supports your argument.
Vol.
368 86 — No. 5 — 2/14/2015 The
The Oklahoma
Oklahoma Bar
Bar Journal
Journal 1
Vol. 86 — No. 5 — 2/14/2015
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Vol. 86 — No. 5 — 2/14/2015 The Oklahoma Bar Journal 369
SCHOLARLY ARTICLE
O
klahoma is a leading oil and gas producing state and has
been for over a century. Not surprisingly, the Oklahoma
Supreme Court is one of the country’s most influential oil-
and-gas courts.1 One area in which it is a leader involves the “mar-
ketable product” or “marketable condition” rule. This rule concerns
whether mineral lessees can deduct from royalty payments a pro-
portionate share of their cost for activities performed after oil and
gas reach the surface. The court has held that unless a lease express-
ly allows specific deductions, the lessee has to put oil and gas into
a marketable condition at its own expense.2 This is part of the
implied “duty to market.” Lessees can deduct costs incurred after
achieving marketability unless the lease says otherwise.
Unfortunately, this standard continues to Oklahoma is a marketable-product state, but
confuse parties and lower courts. some courts have not fully applied its rule that
way. In 2013, for instance, in Chieftain Royalty
COURTS HAVE NOT BEEN APPLYING
OKLAHOMA’S CLEAR STANDARD Co. v. XTO, the 10th Circuit vacated and
CONSISTENTLY remanded a certified Oklahoma gas royalty
class for further consideration of two issues: 1)
Oil and gas states are divided over the mar- whether the leases might contain terms negat-
ketable-product issue. Like Oklahoma, the ing the duty to market that would prevent
other leading marketable-product jurisdictions certifying a common-question class action and
— Colorado, West Virginia and Kansas, as well 2) whether when gas becomes marketable can
as Arkansas, most likely New Mexico, Alaska be decided on a common basis.5 Chieftain joined
(at least for most producing acreage), Virginia, a same-day decision that misapplied Kansas law
and the federal government (the largest owner in Wallace B. Roderick Revocable Living Trust v.
of reserves in the country by far) — follow ver- XTO.6 In June, the Oklahoma Supreme Court
sions of the rule while Nevada, Wyoming and disapproved and removed from publication a
Michigan have marketable-product statutes.3 In state court of appeals decision that reversed cer-
contrast, Texas and Louisiana reject the market- tification of a marketable-product class in Fitzger-
able-product rule and have been joined by, or are ald v. Chesapeake Operating Inc.7 Although the
somewhat likelier to be joined by, the courts of Supreme Court did not explain why it took this
Kentucky, Mississippi, Montana, Pennsylvania, action, it presumably had concerns about the
North Dakota, Utah and California.4 court of appeals’ fidelity to the Oklahoma rule.8
Ethics Highway 1
By Travis Pickens
As Oklahoma lawyers, I of the disciplinary cases are the set of school zones and speed
promise each of you has the result of middle-aged behavior traps. You must trust that the
gift of lawyering. It is too long and thinking after a few hard Office of General Counsel and
and arduous a process to crunching decades in the our Supreme Court are looking
become a lawyer for you not to world, not that of a new law- first to protect the public, not
possess a unique set of skills yer. As time goes on, many of take away your license. You
and intelligence. I have been in us face addictions, anxieties, must choose well your fellow
this job five and a half years disappointments, depressions, travelers, your colleagues and
and spoken to thousands of reversals, indiscretions, frustra- your clients. You must pull
lawyers, and not once have I tions, infuriations and other over at times to savor what you
come away with the sense that traps that are along the danger- are passing through; it is often
the lawyer somehow fooled the ous winding road of a profes- a gorgeous view. And when
law schools’ admissions officers sional life. you arrive at your destination
or our Board of Bar Examiners. many, many miles and cases
Indeed, a lawyer’s life is
hence, you will have been on a
Lawyers don’t go to law often like California’s Highway
journey that very few others
school to become criminals. A 1; there are miles of stunning
are privileged to have. Safe
professional life is a long slog, ocean vistas framed by water-
travels.
and we must perform at a very painted beaches and a lumi-
high level for an extended time, nous sky, but to see it you must Editor’s note: Travis Pickens
typically several decades, often hew to a zig-zagging two-lane resigned as OBA ethics counsel
with some very difficult clients. road with no shoulder along in January and has returned to
Unsurprisingly, I have seen the edges of steep cliffs tower- private practice. The position is
several lawyers lose their way ing above jagged rocks and currently vacant.
and it is often because of this crashing waves hundreds of
that their names end up at the feet below.
About The Author
top of a case before the Oklaho-
The important thing to
ma Supreme Court in a disci-
remember on our shared high- Travis
plinary proceeding. They are of
way of professional life is that Pickens is a
course not bad people; typical-
because of what you have lawyer in pri-
ly, they are exceptionally good
accomplished and who you are vate practice
people. They were excellent
as a person, you deserve to be in Oklahoma
students and were examined as
here. Remember also that the City. He
to character and fitness before
most difficult challenge after served as
they were granted a license.
you are licensed, and it is diffi- OBA ethics
They have the skills to be law-
cult, is to maintain the right counsel from August 2009 – Janu-
yers — even great lawyers —
state of mind over the entirety ary 2015. He has served as co-
but the difficult path of the
of your career. To do that, you chair of the OBA Work/Life Bal-
practice, with seeming perfec-
must be ever vigilant, but you ance Committee and as vice-chair
tion the standard and near-
must relax enough to enjoy the of the Lawyers Helping Lawyers
perfection the best one can
drive. You must see the Rules Assistance Program Committee.
expect, along with other fac-
of Professional Conduct as He is a 1984 graduate of the OU
tors, often pulls them into trou-
rules for success, not a limitless College of Law.
ble over time. Note how most
Meeting Summary
The Oklahoma Bar Association Annual Meeting and prepared REPORT OF THE
Board of Governors met at the an application to the Supreme EXECUTIVE DIRECTOR
Oklahoma Bar Center in Okla- Court regarding the Clients’
homa City on Dec. 12, 2014. Executive Director Williams
Security Fund.
reported he attended Annual
HONORED FOR SERVICE REPORT OF THE Meeting functions, House
VICE PRESIDENT of Delegates, General Assem-
President DeMoss recog-
bly, OBA staff luncheon and
nized guests Stephen Beam Vice President Shields
monthly celebration, meetings
and Melissa DeLacerda for reported she attended the OBA
on judicial and legislative
their six years of service on Annual Meeting, president’s
issues, meetings with Semi-
the Professional Responsibili- breakfast, annual luncheon,
nole and Clinton Public
ty Commission during which OBA House of Delegates,
Schools superintendents
time a new general counsel Oklahoma County Bar Associ-
regarding the Oklahoma’s
was hired and the diversion ation December board meeting
Promise project, staff directors
program was created. Before and OCBA holiday party. She
meeting, Bar Association Tech-
this meeting they attended also finalized materials for the
nology Committee meeting,
their final PRC meeting, at “Planning Ahead Guide” and
phone conference with Diver-
which they received plaques dues statement insert, in addi-
sity Committee leadership,
honoring their service. Presi- tion to working on a bar jour-
Supreme Court conference
dent DeMoss noted they nal article with Ethics Counsel
on the 2015 OBA budget,
served during a tumultuous Travis Pickens on that topic.
Supreme Court technology
time on the commission, and
REPORT OF THE group meeting and Oklahoma
their leadership added stabili- PRESIDENT-ELECT County Bar Association holi-
ty to the PRC. Board members
day party.
clapped and gave them a President-Elect Poarch
standing ovation. reported he attended the OBA BOARD MEMBER REPORTS
REPORT OF THE Annual Meeting, first meeting
Governor Dexter, unable to
PRESIDENT of the new Master Lawyers
attend the meeting, reported
Section, presentation to county
via email she attended the
President DeMoss reported bar presidents and meetings
OBA Annual Meeting, Tulsa
she attended the November on legislative/judicial issues.
County Bar Association re-
board meeting, OBA Annual He also interviewed legislative
ception honoring President
Meeting, Tulsa County Bar consultant candidates and pre-
DeMoss, OU law school lun-
Association reception at which sented the proposed 2015 bud-
cheon, president’s breakfast,
she was honored, president’s get to the Supreme Court for
annual luncheon, OBA House
breakfast, OBA General its approval.
of Delegates and TCBA holi-
Assembly, House of Delegates,
REPORT OF THE day party. Governor Gifford
OBF reception, Annual Meet- PAST PRESIDENT reported he attended the
ing luncheon, first meeting of
November board meeting,
the new Master Lawyers Sec- Past President Stuart report-
OBA Annual Meeting, Section
tion, OBA Law Schools Com- ed he attended the November
Leadership Council meeting,
mittee meeting, meetings on board meeting and Profession-
November Tulsa County Bar
legislative/judicial issues, alism Symposium. He also
Association reception for Pres-
women in law Tulsa gathering worked on arrangements for
ident DeMoss, Oklahoma
and Professionalism Sympo- the board’s has been party.
County Bar Association Christ-
sium. She made a presentation
mas party and Oklahoma
to county bar presidents at the
Legal research is an integral uncovered many good ideas create the important new plan.
part of a lawyer’s daily life, from OBF members on fund- The retreat facilitators will be
used to inform the lawyer on raising, potential barriers to Mr. Dorgan and our new devel-
how to advise clients, negoti- success and generated enthusi- opment director. The plan will
ate with opposing counsel, or asm for the project. The end establish goals and methods to
persuade a judge or jury. The result is a written feasibility achieve them. The OBF is very
importance of legal research report that will summarize the fortunate to have a highly
can often be seen in the many consensus and differences from skilled and dedicated board
comical goofs found in literary these conversations and will and staff to undertake this
masterpieces and Hollywood provide the OBF with guidance ambitious program. The OBF
films, even the beloved Atticus on how to proceed with its grants program works with
Finch could have benefited development program. charitable organizations state-
from a little research in his wide that are involved in pub-
The feasibility study will also
defense of Tom Robinson lic service work. Some of the
assist the OBF with providing
(ahem, a motion for change key recipients from this devel-
objectives and direction for the
of venue). opment plan will be the poor,
new OBF development director.
elderly, abused women and
Legal research is the back- This position has been adver-
children, and school children
bone of all good lawyering and tised and candidates should
in need of assistance.
forms the analytical foundation submit their resumes and sup-
for any case or issue being porting materials to the search The OBF challenges all Okla-
worked on. Given the impor- committee chaired by OBF homa lawyers to do their part
tance of research, the OBF board member and former OBA to assist the OBF in its develop-
started this year with a little President Stephen Beam. Inter- ment efforts. One of the best
researching of its own by con- ested candidates should refer to ways to meet this challenge is
ducting a feasibility study the OBF News Section of the to become an OBF Fellow or
which assessed the potential OBF website (www.okbarfoun- Benefactor Fellow. It’s as easy
for the development and imple- dation.org) for as clicking the OBF website or
mentation of an annual fund- additional information on the by calling OBF at 405-416-7070.
raising program. The goal of position and how to apply. The We look forward to your partic-
the study is to provide a good committee will screen all appli- ipation in the OBF.
foundation upon which the cants, conduct interviews and
OBF can build and develop an make their recommendations to
action plan. the OBF Board of Trustees. About The Author
The study was conducted last Finally, the feasibility study Jack L. Brown
month by OBF consultant, Den- will establish the framework practices in Tulsa
nis Dorgan, who performed a for OBF board members and and serves as OBF
series of interviews with vari- staff to develop a comprehen- president.
ous members of the OBF, OBA sive fundraising plan of action. He can be
and other organizations impact- A board retreat has been sched- reached at jbrown@
ed by OBF grants. Mr. Dorgan, uled for March 26-27 at Postoak jonesgotcher.com.
through these conversations, Lodge, just outside of Tulsa to
OBADelivery
Mailing and Section or Committee Law Firm/Office County Bar Assoc. IOLTA Bank Corporation/Business
address _____________________________________________________________ Other Group
Group
Name:
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Contact:
FELLOW Phone:
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o Attorney o Non-attorney
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OBF
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___ I want toFoundation
be an OBFallowing
Fellow onow rganizations
– Bill mealater
nd
groups
___ to
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unite
enclosed
with
individual
and bill lawyers
annually who
are
OBF
Fellows
to
support
a
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cause:
T
he
promotion
of
justice,
provision
of
___ Total amount enclosed $1,000 ___ New lawyer 1st year, $25 enclosed &
law-related
services,
and
advancement
of
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of
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the
law.
___ New lawyer within 3 years, $50 enclosed
and bill annually as stated ___ I want to be recognized
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O
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Tmy
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OKLAHOMANS
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Leadership level of Benefactor Fellow and (initial pledge shouldIN
be complete)
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abused
annually contrbute at least $300 NEED!
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aENROLLMENT
ctivities
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ONLY
all
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o OBA Section or Committee o Law firm/office o County Bar Association o IOLTA Bank
o Corporation/Business o Other Group
Choose
from
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Choose from three tiers of OBF Community Fellow support to pledge your group’s help:
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Vol.8686——No.
Vol. No.5 5——2/14/2015
2/14/2015 TheOklahoma
The OklahomaBar
BarJournal
Journal 399
399
ACCESS TO JUSTICE
.73
Is there a statute, rule of
mans. Oklahoma ranked 50th for every professional conduct or
in the composite index set 10,000 other guidance document
forth in the 2014 Justice Index people living authorizing the provision of
compiled by National Center in poverty unbundled or limited scope
for Access to Justice (NCAJ).6
35.28
legal services?
The NCAJ 2014 Justice Index
Attorneys
(NCAJ Index) was the subject Does the state provide (or
per 10,000
of a November 2014 story by the courts allocate) funding
people
the Muskogee Phoenix,7 which for court-based programs
made no mention of the OAJC. NATIONAL AVERAGE (self-help centers or other
structures) to assist under-
40.52
The NCAJ is a project of the
Attorneys represented persons?
Cardozo School of Law. The
NCAJ Index is “a snapshot of per 10,000 Is there a statute, rule or
the degree to which certain people other document establishing
selected best practices for the obligation of the court to
ensuring access to the civil States
30+
communicate with people
and criminal justice systems better situated who have little or low litera-
have been adopted across the than Oklahoma. cy in one or more types of
country.”8 It “shows the num- Attorneys for every cases?
ber of these attorneys for 10,000 people
every 10,000 people in poverty living in poverty Additional questions are
in each state” as well as “the included to identify the meth-
number of all attorneys per SEVERAL STATES ods for implementing the poli-
cies identified above.13 Accord-
80%
10,000 people (‘not in pover-
ty’) in each state.”9 Data on the Litigants in ing to the data collected by the
support systems provided to courts appear NCAJ, the efforts of Oklaho-
pro se litigants, persons with pro se ma’s courts are minimal. As
disability and “on the presence a consequence, Oklahomans
in state courts of such key sys- may well find their courts less
tems as reliance on ‘certified’ neys for every 10,000 people than user friendly.
interpreters” and the provision living in poverty.11 EXTRA HURDLES FOR
of court forms translated into PEOPLE WHO SPEAK
languages other than English” The NCAJ reports that more LITTLE ENGLISH
for those people with limited than 80 percent of the litigants
in the courts of the various For those Oklahomans who
English proficiency.10
states appear pro se “in mat- have limited proficiency in
According to the NCAJ ters as important as evictions, English, the problem may well
Index, Oklahoma has 0.73 mortgage foreclosures, child be far worse. The Oklahoma
attorneys for every 10,000 peo- custody and child support Supreme Court is aware of this
ple living in poverty and 35.28 proceedings, and debt collec- issue. In June 2014 the court
attorneys per 10,000 people. tion cases.” Therefore. NCAJ’s issued an order approving
The national average for attor- recommendation that making examinations and interim reci-
neys per 10,000 people was the courts user-friendly is procity and provisional qualifi-
reported as 40.52. As to the imperative is unlikely to meet cations of Oklahoma courtroom
number of attorneys for every with objection.12 Identifying interpreters. In an unpublished
10,000 people living in pover- and implementing the reforms (i.e. subject to revision or with-
ty, more than 30 states are bet- to accomplish this goal are a drawal) order 2014 OK 45, the
ter situated than Oklahoma. more complicated matter. court wrote that it “is commit-
Six states and the District of ted to ensuring equal access
Columbia (a statistical outlier In assessing the efforts by to justice for all individuals
as to attorneys in the popula- the various states to assist liti- regardless of their ability to
tion) have more than 2.0 attor- gants in finding representation communicate in the spoken
FINDING A RECREATIONAL
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properties, hunting lands, lake houses, acreages and vacation homes. RanchandRetreatRealty.com
February
16 OBA Closed – Presidents Day observed 24-27 OBA Bar Examinations; Oklahoma Bar Center,
Oklahoma City; Contact Oklahoma Board of Bar
17 OBA Bench and Bar Committee meeting; 12 p.m.; Examiners 405-416-7075
Oklahoma Bar Center, Oklahoma City; Contact
David Swank 405-325-5254 27 OBA Professional Responsibility Commission
meeting; 9:30 a.m.; Oklahoma Bar Center, Oklahoma
OBA Licensed Legal Intern swearing in; City; Contact Gina Hendryx 405-416-7007
12:45 p.m.; Oklahoma Judicial Center, Oklahoma City;
Contact Debra Jenkins 405-416-7042 27 OBA Environmental Law Section meeting;
11:30 a.m.; Oklahoma Bar Center, Oklahoma City;
18 OBA Law-related Education Close Up; 8:30 a.m.; Contact Betsey Streuli 405-702-7147
Oklahoma Bar Center, Oklahoma City; Contact
Suzanne Heggy 405-556-9612
Board Swearing In
Photo Gallery Now Online
New OBA officers and board
members were sworn into their
positions during a ceremony at the
State Capitol on Jan. 16. A photo
gallery from the ceremony is online
at www.okbar.org/members/
PhotoGallery.
G len L. Dresback
announces the opening of
the Dresback Law Office at
City law firm of
Brown & Gould PLLC. Mr.
Stiner represents plaintiffs
from the University of Okla-
homa College of Law in 2005.
IN MEMORIAM
Five Thoughts
on the Future
Jim Calloway shares five thoughts on the
future for solo and small firm lawyers.
Gear up for
Law Day
It’s not too soon to start planning your
county’s Law Day activities! Here you’ll
find a few project ideas and ways to
promote your events.
http://goo.gl/AAUg3P
http://goo.gl/USrqG2
Boost
Efficiency
Here are 20 office organization hacks that
help you maximize efficiency, using things
you can find around your home or office.
http://goo.gl/mVkwAl
Social Media
for Lawyers
Not familiar with Facebook or Twitter?
Have a LinkedIn account but not sure how
to use it? Check out this practical guide to
social media.
http://goo.gl/qyPqzG
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Arthur D. Linville 405-736-1925
Reform is a frequently used positive for Oklahoma will come The judicial branch was
word. We freely invoke this out of this fight if it continues in designed to be absent of politics
word when it strikes us as expe- 2015. We will all pay the price. as much as possible. We can
dient. But what does “reform” debate all day about the preva-
Think back with me to high
really mean? Is it reorganization? lence or absence of judicial activ-
school civics — a long, long time
Restructuring? Refining? All of ism. However, when you cut
ago for some of us! Our system
the above? None of the above? through the fog, it is imperative
of government relies on checks
“Reform” is a word we should and balances. Operating as that we take every possible step
never use recklessly, because the intended, this allows each of to make certain our judges can
word — in its purest sense — the three co-equal branches to make their decisions based on
means to change something appropriately limit — or “check” the facts, the law — and abso-
because it is corrupt or wrong. — the powers of the other lutely nothing else.
As we head into another legis- branches, thereby ensuring the This year we will apparently
lative session in Oklahoma, we proper “balance” of power once again see proposals that are
will undoubtedly hear about amongst the branches. designed to allow the legislative
various “reforms” that are James Madison taught us (in and executive branches to direct-
claimed to be needed. Yes, there The Federalist No. 51) the “legis- ly impact the judiciary. Ladies
are certainly instances where lative authority necessarily pre- and gentlemen, please let us not
lawmakers must step in to truly dominates” in our system of forget the past. In 1969, Oklaho-
reform areas of our government government. Similarly, in his ma voters approved amend-
that are struggling to carry out Commentaries on American Law, ments to the state constitution to
their duties and meet their mis- James Kent said it this way: take party politics and potential
sion. We saw that happen rela- corruption out of the judicial-
“The power of making laws is selection process following a ter-
tively recently, when the Leg-
the supreme power in a state, ribly embarrassing political
islature played a vital role in
and the department in which it scandal. Oklahoma has come a
improving the operations of the
resides will naturally have such long way. Now is not the time
Department of Human Services,
a preponderance in the political to reverse that progress.
an agency plagued for many
system, and act with such
years with woefully insufficient Oklahomans are best served
mighty force upon the public
funding and staffing to address when the branches of govern-
mind, that the line of separation
the serious issues faced by ment work together to preserve
between that and the other
Oklahoma’s at-risk children. democracy and ensure equal
branches of the government
That effort took cooperation access to a fully funded judicial
ought to be marked very dis-
amongst all three branches of system. My hope for all of us is
tinctly, and with the most careful
our government. that we will see collaboration
precision.”
What we witnessed last year and cooperation between the
Inter-branch governmental branches during the upcoming
was anything but cooperation
disputes absolutely will happen. legislative session.
between two of those branches,
That is inherent in checks and
the Legislature and the judiciary. Mr. Webb serves as Oklahoma
balances. Particularly when it
In fact, we witnessed almost County Bar Association president.
comes to the Legislature and the
open warfare between the two.
judiciary, however, it is vital that This article, published in the Jan-
I am not placing blame. Pre-
restraint be shown in the rela- uary 2015 Briefcase, is reprinted
sumably, there is blame to
tionship between the two with permission from the Oklahoma
spread all around. One thing is
branches. County Bar Association.
clear, though. Absolutely nothing