JUNE 2014
Vol. 46, No. 6
A Publication of the OKLAHOMA COUNTY BAR ASSOCIATION
WWW.OKCBAR.ORG
OCBA Officer & Director Candidates Announced for
2014-2015 Elections
President-Elect Jim Webb, serving as
Chair of this year’s Nominations &
Election Committee, has announced the
slate of candidates approved by the Board
of Directors. Ballots will be mailed the first
week in July and should be returned no
later than July 31, 2014. Election results
will be announced in August and elected
officials will take office September 1,
2014. The candidates and their qualifications are listed below:
OCBA activities include: Work Life
Balance Committee 2003-2010; Bench &
Bar Committee 2009-Present, Chair 2011;
Board of Directors 2010-2014 Lawyers
for Learning; Law Related Education;
OCBA Delegate. OBA activities include:
Professional Responsibility Commission
since 2011; Women in Law since 2007;
Civil Procedure Committee since 2007;
Ethics Commission 1998-2005; Insurance
Section since 1996, Chair 1997.
PRESIDENT-ELECT
VICE PRESIDENT
Angela Ailles Bahm
Ailles and
Associates, Employees
of the Corporate Law
Department of State
Farm Mutual
Automobile Insurance
Company
J.D. – University of
Oklahoma 1986.
The Honorable
Barbara Swinton
District Judge for
the Oklahoma County
District Court
J.D. – University of
Oklahoma 1982-83,
Georgia State
University 1991.
OCBA activities
include: Board of
Angela Ailles Bahm
The Honorable
Barbara Swinton
Directors; Bench & Bar Committee; YLD
Chili Cook-Off Judge; Work Life Balance
Committee; Law Day Committee. OBA
activities include: Bench & Bar
Committee, Chair & Co-Chair;
Professionalism Committee; Family Law
Committee. ABA activities include:
Member.
LAW LIBRARY TRUSTEE
Matt Blue
Coleman Law
Office.
J.D. – Oklahoma
City University 2003.
OCBA activities
include: Young
Lawyers Division
Board, 2010-2013,
Social/Athletic
Matt Blue
Chairman 2011-2013;
Awards Committee 2013-2014.
See CANDIDATES, PAGE 3
Commercial Lawyers
Dinner - CLE
On May 13, 2014, the Oklahoma City
Commercial Attorney’s Association
(OCCAA) hosted its annual Judicial
Appreciation dinner. Judges Don Deason,
Patricia Parrish, Tom Prince, Roger
Stuart and Don Andrews were among
those in attendance. The OCCAA began
in 1994. Its goal is to provide relevant
Continuing Legal Education to attorneys
involved in contract, bankruptcy and collection practices. Speakers present topics
at the meetings on various legal issues.
Subjects have included digital signatures,
creditors’ rights in bankruptcy, social
security claims, and appellate practice.
Speakers have been officials from the
Oklahoma Bar Association, Referees
from the Supreme Court, staff from the
Administrative Office of the Courts,
group members and private attorneys.
Members receive 1 to 1.5 hours of CLE
for attending in addition to a meal and
networking opportunities. Regular meetings occur on the second Tuesday of each
month. Meetings are held January-May
and September-December. More information can be obtained by visiting
www.OCCAA.Teamr.com or emailing
to Richard@WinbladLaw.Com.
President Richard Winblad said, “We
are pleased to provide relevant materials
and opportunities to earn CLE credits.
Presenters earn 6-9 hours of teaching
credits. The $90 annual membership fee
includes meals.”
Time to Get
Ready for the
“Back To
School Bash”
at Family Junction
Believe it or not – August 4 is
the first day of classes for
Oklahoma City Public Schools.
That means it is time for the residents of the Family Junction to get
their backpacks filled and their
back-to-school clothes ready to go.
Family Junction is a 24-hour, 16bed residential facility for 12-17
year olds who need a short-term
home for reasons beyond their
control. Most of these teens come
to the shelter with nothing, including items necessary to allow them
to return to school ready to learn.
The
Community
Service
Committee will begin collecting
school supplies such as #2 pencils,
pens, rulers, markers, highlighters,
paper or spiral notebooks (collegeruled), three-ring binders, combination locks, and backpacks.
Monetary donations will be used
to allow the students to purchase a
new outfit and/or athletic shoes for
school. Donations should be delivered by July 18 to the Oklahoma
County Bar Offices. A “Back To
School Bash” will be held at the
shelter on July 22 and will include
a picnic and probably some basketball time for members of the
committee.
Most of you have had the experience of getting kids ready to
return to school and Family
Junction has 16 such kids who
really need the help from the
OCBA. So, please continue your
generosity this year!
— A Big Thanks from the
Community Service Committee
Inside
A Challenge for
Inns and Others
Workshop: A
Huge Success!
Ruth Bader Ginsburg Inn
Challenges for Music and Art
Family Estate and Financial
Planning in 90 Minutes
Page 7
Page 8
From The President . . . . . . . . . . .2
OCBA Night at the RedHawks . . . .2
And the Court Said . . . . . . . . . . .4
Sign Up for OCBA Committees . . .5
Events and Seminars . . . . . . . . .5
iBar Definitive Playlists . . . . . . . .6
Bar Observer . . . . . . . . . . . . . .11
Old News . . . . . . . . . . . . . . . .11
Stump Roscoe . . . . . . . . . . . . .12
Civility in Briefing. . . . . . . . . . .13
Work Life Balance. . . . . . . . . . .13
Book Notes. . . . . . . . . . . . . . . .15
PRSRT STD
US POSTAGE
PAID
PERMIT# 59
OKLA CITY OK
2 BRIEFCASE • June 2014
BRIEFCASE
June 2014
From the President
Briefcase is a monthly publication of the
Oklahoma County Bar Association
119 North Robinson Ave.
Oklahoma City, OK 73102
(405) 236-8421
What Could I Have Done?
Briefcase Committee
Helping Victims of Domestic Violence
Judge Jim Croy, Jim Drummond, Michael
Duggan, Justin Hiersche, Scott Jones, Matt
Kane, Teresa Rendon, Bill Sullivan, Rex Travis,
Alisa White, Chris Deason, Judge Don Deason
and Judge Allen Welch.
Editor
Judge Geary L. Walke
Contributing Editors Dean Lawrence Hellman
Richard Goralawicz
Bill Gorden
Warren Jones
Oklahoma County Bar Association
OFFICERS:
Judge Patricia Parrish
Jim Webb
Angela Ailles Bahm
John Heatly
Robert D. Nelon
Brandon Long
STAFF:
Executive Director
Debbie Gorden
Legal Placement Director
Pam Bennett
Membership Services
Connie Resar
President
President-Elect
Vice President
Past President
Treasurer
Bar Counsel
Journal Record Publishing Co. Inc.
Publisher
Director of Sales
and Community Relations
Art Director
Creative Services
Advertising Acct Exec
Mary Mélon
By Judge Patricia Parrish
OCBA President
My niece, April, was a victim of
domestic violence. She was murdered by
her husband in 2002. She was 27 years
old.
In 2011, Oklahoma
was ranked third in the
nation for women killed
by men in domestic
abuse situations. The statistics are staggering. We
tend to quickly read them
and then quickly forget
them unless we or someone we love is a part of
the statistic.
Senator
Dianne
Feinstein once said,
“Domestic
violence
causes more pain than
the visible marks of
bruises and scars.” The
emotional scars left by
domestic abuse run deep
for the victims and those
who know and love the
victims. In the majority
• One in four women
of domestic violence
will
experience
incidents, family memdomestic violence in
bers, friends and/or law
Judge Patricia Parrish
their lifetime.
enforcement know of
• An estimated 1.3 million women are ongoing domestic abuse prior to a homivictims of physical assault by an inti- cide occurring. Family members are
mate partner each year.
often plagued by thoughts of what signs
Sunny Cearley
Gary L. Berger
Tiffany English
Velvet Rogers
Sarah Williams
Jessica Misun
For advertising information,
call 278-2820.
Postmaster: Send address changes to OCBA
Briefcase, 119 North Robinson Ave., Oklahoma
City, Oklahoma 73102.
Journal Record Publishing produces the Briefcase
for the Oklahoma County Bar Association, which is
solely responsible for its content.
© 2014 Oklahoma County Bar Association
OKLAHOMA COUNTY
BAR ASSOCIATION
MISSION STATEMENT
Volunteer lawyers and judges dedicated to
serving the judicial system, their profession,
and their community in order to foster the
highest ideals of the legal profession, to better the quality of life in Oklahoma County,
and to promote justice for all.
• Females are historically victimized
by someone they know.
• Most cases of domestic violence are
never reported to the police.
• Almost one-third of all female homicide victims are killed by an intimate
partner.
OCBA
Night at the
RedHawks
Time to play ball! The
OCBA is enjoying a night at
the Chickasaw Bricktown
Ballpark on Friday, July18
at 7 p.m.
The Oklahoma City
RedHawks will play the
Nashville Sounds with fireworks following the game.
What a great summer time
evening and tickets are only
$11 and that includes a
voucher for a limited-edition RedHawks baseball
cap.
For tickets, go to the website at www.okcbar.org or
call the bar office at 2368421. Hope to see you at the
game!
were missed and what could have been
done to prevent the violence.
The OCBA Lawyers Against Domestic
Abuse Committee is committed to educating the public about the signs of
domestic abuse so that lingering thoughts
of “What could I have done?” exist no
more. The Committee is currently working on a brochure entitled A Domestic
Violence Victim’s Guide to Obtain an
Attorney and is planning a CLE seminar
entitled Everything You Didn’t Know
about Domestic Abuse. The next opportunity to learn more about domestic abuse
will be during the Domestic and Sexual
Violence and Stalking Partnership
Conference on September 24-25, 2014, at
the Embassy Suites Hotel and
Conference
Center
in
Norman,
Oklahoma, sponsored by the Oklahoma
Attorney General’s office.
If you are interested in becoming a
member of the OCBA Lawyers Against
Domestic Abuse Committee, please contact the OCBA at 405-236-8421.
www.okcbar.org • June 2014 • BRIEFCASE 3
CANDIDATES from PAGE 1
BOARD OF DIRECTORS
Mariano Acuña
Abel Law Firm.
J.D. – SMU
Dedman School of
Law 2003. Pro Bono
Panel Attorney for
Legal Aid of
Oklahoma representing victims of domestic violence. Board
Mariano Acuña
member of Variety
Care since 2009, President since 2011.
Kenyatta Bethea
Holloway, Bethea
& Osenbaugh
J.D. – University of
Oklahoma 2000.
Board of Trustees,
Church of the
Servant.
Kenyatta Bethea
Robert E. Black
Angela D. Ailles &
Associates
J.D. – Oklahoma
City University 1982.
OCBA activities
include: Alternate
Delegate; Lawyers
for Learning
Committee; Bench &
Robert E. Black
Bar Committee; Ask
A Lawyer Volunteer; CLE Committee.
OBA activities include: Insurance Law
Section; Associate Bar Examiner.
Todd Blasdel
Devon Energy
J.D. – University of
Oklahoma 2002.
OCBA activities
include: Board of
Directors 2008-2011;
Briefcase Contributor
2007-2012;
Community Service
Todd Blasdel
Committee 2011present; Task Force Member, Law School
Relations Committee 2006-2007. OBA
activities include: Delegate & Alternate
Delegate 2007, 2009-2012; Leadership
Academy Graduate 2008-2009; Bar
Journal Article Author 2013.
Dan Couch
Rubenstein & Pitts,
PLLC
J.D. – University of
Oklahoma 2007.
OCBA activities
include: Young
Lawyers Division
2008-present, Chair
2013; Fee Grievance
Dan Couch
& Ethics Committee
2014; Community Service Committee
2014; Day of Service Coordinator 2013.
OBA activities include: Alternate
Delegate 2011-2013; High School Mock
Trial Committee 2009-present.
Billy M. Croll
Hartzog Conger
Cason & Neville
J.D. – University of
Oklahoma 1979.
OCBA, OBA & ABA
activities: “none to
date, but you have to
start somewhere.”
Billy M. Croll
Jeff Curran
GableGotwals
J.D. – University of
Oklahoma 1987.
OCBA activities
include: Member;
CLE Speaker 2012.
OBA activities
include: Insurance
Section, Secretary.
Jeff Curran
ABA activities
include: Tort Trial & Insurance Practice
Section; Automobile Law Committee,
Former Chair, Former Vice Chair &
Newsletter Editor.
Thomas J. Daniel IV
Kirk and Chaney
J.D. – University of
Oklahoma 1986.
OCBA activities
include: Fee
Grievance & Ethics
Committee; Ask A
Lawyer Chair.
Thomas J. Daniel IV
Jodi Warmbrod
Dishman
McAfee & Taft
J.D. – University of
Oklahoma 2005.
OCBA activities
include: Member.
OBA activities
include: Member.
Federal Bar
Association,
Oklahoma City
Chapter.
Jodi Warmbrod
Dishman
Matthew C. Kane
Ryan Whaley
Coldiron & Shandy
PLLC
J.D. – University of
Oklahoma 2002.
OCBA activities
include: Briefcase
Committee 2010present; Bench & Bar
Matthew C. Kane
Committee 20102011; Alternate Delegate 2013-2014.
OBA activities include: Bench & Bar
Committee 2011-present; Rules of
Professional Responsibility Committee
2012-present; Access to Justice
Committee 2011-2012. ABA activities
include: International Criminal Law
Committee, Vice Chair.
Lance E. Leffel
Fellers Snider
Blankenship Bailey &
Tippens
J.D. – University of
Oklahoma 2002.
OCBA activities
include: Law Day
Committee, Chair
2011 & 2012, Ask A
Lance E. Leffel
Lawyer Chair. OBA
activities include: Ask A Lawyer
Coordinator. ABA activities include:
Committee on Trial Evidence, Vice Chair,
Membership & Judicial Liaison
Coordinator.
Tracey D. Martinez
Mullins Martinez,
Sexton & Reaves, PC
J.D. – University of
Oklahoma 2002.
OCBA activities
include: Young
Lawyers Division
Board Member 20052008, Secretary/
Tracey D. Martinez
Treasurer 2006-2007,
Vice Chair 2007-2008; Family Law
Section; Awards Committee; Fee
Grievance & Ethics Committee; Law
Related Education Committee. OBA
activities include: Family Law Section;
Young Lawyers Division Liaison to
Member Services Committee.
Elisabeth E.
Muckala
Hall Estill
Hardwick Gable
Golden & Nelson, PC
J.D. – Oklahoma
City University 2006.
OCBA activities
include: Member
2006-present;
Elisabeth E. Muckala
Attendance at Law
Day functions. OBA activities include:
Labor & Employment Section Member,
CLE Presenter; Member 2006-present.
ABA activities include: Member 20062010.
Tom E. Mullen
Fenton Law Firm
J.D. – University of
Oklahoma 1979.
OCBA activities
include: Fee
Grievance & Ethics
Committee. OBA
activities include:
Member. ABA activities include: Member.
Tom E. Mullen
Richard Parr
Tomerlin High &
High
J.D. – Oklahoma
City University 2007.
OCBA activities
include: Law Related
Education
Committee, Chair;
Probate & Estate
Planning Section.
Richard Parr
Coree Stevenson
Love’s Travel
Stops & Country
Stores, Inc.,
Corporate CounselManager of
Litigation
J.D. – Oklahoma
City University
Coree Stevenson
1999. OCBA activities include: Young
Lawyers Division Board of Directors
1999-2004, Vice Chair 2000-2003; Work
Life Balance Task Force & Committee;
Recipient of OCBA Pro Bono Award
2004. OBA activities include: Member,
1999-present; Work Life Balance
Committee; Ask A Lawyer Volunteer;
Rules of Professional Conduct
Committee; Litigation Section. ABA
activities include: Member 1999-present;
Litigation Section; Environment, Energy
& Resources Section; Intellectual
Property Law Section.
James E. Warner III
Holladay &
Chilton, PLLC
J.D. – University of
Oklahoma 2002.
OBA activities
include: Civil
Procedure
Committee.
James E. Warner III
Ray E. Zschiesche
Phillips Murrah,
PC
J.D. – University of
Oklahoma 1985.
OCBA activities
include: Journal
Record Leadership in
Law Award 2010;
Ray E. Zschiesche
Community Service
Committee, Vice
Chair 2011-2013, Chair 2013-present;
Voices for Children Committee 2011present. OBA activities include:
Litigation Section; Insurance Law
Section. ABA activities include: Member
1985-present.
4 BRIEFCASE • June 2014
And the Court Said
An Olio of Court Thinking
By Jim Croy
June 13, 1914
One Hundred Years Ago
[Silva v State, 1914 OK CR 110, 141 P.
235.]
Plaintiff in error was tried and convicted on an information which charged that
he, Massa Silva, did unlawfully have
possession of one quart of whisky with
the intention of selling the same, and, in
accordance with the verdict of the jury,
he was, on the 14th day of May, 1913,
sentenced to pay a fine of $50 and be
confined in the county jail for a period of
30 days. He appeals from the judgment.
Several assignments of error relate to
rulings of the court in the admission of
evidence, some of which are not destitute
of merit, but the only question which we
think it necessary to consider is the sufficiency of the evidence to sustain the conviction. Our conclusion as to that will
dispose of the appeal.
The testimony on the part of the state
was as follows: Lee Pollock testified that
he was a deputy sheriff, and on January
18, 1913, searched the place in the town
of Krebs where the defendant was working and found five or six other persons
there; that Sheriff Tatum, who was with
him, found somewhere behind the counter a part of a quart of whisky; that the
place was a lunch room, but was known
as a booze joint, and it had changed
hands about twenty times in the last five
years, and was then owned by a man
named Grego, who manufactured
sausage.
Chaney Hayes, the only other witness
for the state, testified that for three or
four years the place had had the reputation of a booze joint.
On behalf of the defense, Barney
Larshona testified that he had lived in
Krebs eight years; that John Grego
owned the lunch stand and sold chili and
things like that, and the boy Massa Silva
clerked for him.
Domeneck Moffa testified that he had
worked in the mines there eleven years,
and that the defendant was employed by
John Grego.
The defendant, as a witness in his own
behalf, testified that John Grego owned
the place; that he had been working for
him two and one-half months; that they
made sausage; that Grego was there that
day, and was a man who drank some; that
he did not know the bottle found by the
sheriff was there, and knew nothing
about it before the sheriff found it; that
he was at a barber shop near there when
the officers raided the place; that he was
eighteen years of age, and had never been
arrested before this charge was made.
We think the evidence is insufficient to
establish the fact of the defendant’s possession. To prove his possession the state
relied upon circumstances that tended to
show possession by the owner of the
place, and it is undisputed that the defendant was only an employee.
When we recall the presumption that
the law always indulges as to the innocence of one accused of crime, and the
necessity of establishing the guilt of the
defendant beyond a reasonable doubt, we
think that, assuming that there were some
circumstances in evidence tending to
show possession by the defendant, it
would be destroying the presumption in
favor of innocence, and permitting the
subversion of the rule requiring the
establishment of guilt beyond a reasonable doubt, to allow this conviction to
stand. The defendant, as a witness, met
the charge with a positive denial and evidence of good character. He is a mere
boy, and we cannot help thinking that a
conviction upon testimony so slight and
insufficient was more the result of prejudice and public sentiment than the dispassionate conclusion of the jury upon
the facts in evidence.
June 24, 1939
Seventy-Five Years Ago
[Excerpted from Wooten v State, 1939
OK CR 69, 92 P.2d 594.]
The plaintiff in error filed his transcript
of the record in this court on June 22,
1939, and filed an application showing
that on April 24, 1939, the plaintiff in
error was tried for the crime of larceny of
livestock in the district court of Bryan
county, Okla., found guilty by a jury, and
his punishment fixed at five years in the
state penitentiary at McAlester; thereafter, and on the 29th day of April, 1939,
the said plaintiff in error was sentenced
by the district judge to serve the said
term of five years in the state penitentiary
at McAlester, and gave notice of his
intention to appeal to the Criminal Court
of Appeals of the state of Oklahoma, and
was granted 60-10-5 days for case-made,
which sixty days expires on the 29th of
June, 1939.
It is further shown that the plaintiff in
error filed a motion for a new trial which
was overruled by the trial court.
The defendant states that he filed his
application, asking the trial judge to
order a case-made at the expense of the
county; and states that he is a poor person
without means to pay for the record; that
he has no funds, and has no friends that
will put up the funds to pay for the said
record; that his application was heard by
the Honorable District Judge of Bryan
county, Okla., on June 17, 1939, and
proof that plaintiff in error was a pauper,
without means for paying for the record,
and had no funds and no friends that
would put up funds for said record; that
after hearing the application of the plaintiff in error and the testimony in support
of the same, the honorable district judge,
who had presided at the trial, denied his
said application and made the following
announcement:
“By the Court: Here is the situation
about it. I would love to make an order
allowing him to appeal at the expense of
the county; but the county is broke and
don’t have any money; and it don't look
like we can get enough to hold court
with. If I made an order in this case, I
would have to make an order to appeal
all of them; and we can’t do it as much as
I would like to do it; therefore, the application will be denied. I feel sorry for Mr.
Wooten and would like to see him appeal
the case; but I can’t see my way clear to
do it.
By Mr. Boner: The defendant excepts
and gives notice of appeal to the
Criminal Court of Appeals.
By the Court: Exception allowed.”
It is further shown that the plaintiff in
error gave notice to the county attorney
that on the 24th day of June, 1939, he
would apply to this court for an order
requiring the court reporter of the district
court of Bryan county, Okla., to furnish
the record at the expense of the county.
No appearance was made by the county attorney, and the case was submitted
upon the application of the plaintiff in
error, the defendant in the lower court,
and his proof in support of the same.
Section 3823, O. S. 1931, 20 Okla. St.
Ann. § 111, in part is as follows:
“Provided, however, that if, before a
transcript of the notes is ordered on
application of the defendant or his attorney, the defendant shall present to the
judge his affidavit that he intends in good
faith to take an appeal in the case and that
such transcript is necessary to enable him
to prosecute the appeal, and that the
defendant has not the means to pay for
the same, the court may, at its discretion,
order the transcript made at the expense
of the county.” . . . .
It is ordered that the official court
reporter of the district court of Bryan
county, Okla., prepare the case-made in
the above numbered and entitled case at
the expense of Bryan County, Okla., and
furnish the same free of charge to Alvin
Wooten, plaintiff in error, herein referred
to.
June 2, 1964
Fifty Years Ago
[Excerpted from Cunningham v. Pratt,
1964 OK 124, 392 P.2d 725.]
Plaintiff's second amended petition
alleges, in so far as pertinent to the issues
herein, that on November 24, 1961, about
6 p.m. plaintiff had driven her car into a
parking lot owned and operated by defendant. After shopping in defendant’s store
which was adjacent to and on the same
premises as the parking lot, plaintiff was
struck and seriously injured by an automobile negligently operated by Sloan as
she was returning to her car; that Sloan
was negligent in that he was violating
city ordinances by driving at a speed of
40 miles per hour and by driving in a
reckless manner; that defendant furnishes
and controls the parking lot for the use of
his customers in connection with the
operation of his grocery store; that plaintiff was an invitee. Plaintiff alleged that
defendant was negligent in the following
particulars: in failing to provide a safe
place for plaintiff to park her car and
shop; in failing to adequately light the
parking area; that parking area was lighted only from the lights within the store
which caused deep shadows intermittently throughout the area; that plaintiff was
concealed by one of these shadows which
caused Sloan to strike plaintiff without
discerning her presence; that defendant
also failed to adequately mark the driveway to the parking area; that Sloan for
this reason when entering the parking
area failed to ascertain the driveway thus
causing Sloan to strike and run over a
six-inch curbing, the result of which was
that Sloan lost control of his vehicle; that
Sloan had driven into defendant’s parking area to avoid hitting another car and
would have been successful had defendant properly marked, painted or designated with signs the safe entrance to the
parking area; that defendant's failure to
furnish a safe parking area for his customers, to adequately light the same, and
to properly mark the safe entrance thereto consisted of negligence on the part of
the defendant which was the proximate
cause of plaintiff's injuries, or contributed thereto, and that Sloan and the
defendant are jointly liable to plaintiff,
and that plaintiff was without fault.
***
Plaintiff reasons that defendant, as the
owner of the parking lot, is required to
warn his customers of hidden dangers on
the premises not known to intelligent
persons, and his failure to do so is negligence which is usually a jury question.
One essential plaintiff overlooks is that
defendant was in no position to have
warned plaintiff of a danger or peril on
his premises. Our present case concerns
the liability of defendant as a result of
active negligence on the part of a third
party injuring plaintiff upon defendant’s
premises.
Plaintiff cites Criterion Theatre Corp.
v. Starns, 194 Okl. 624, 154 P.2d 92,
which held in part that the question of
sufficient lighting and condition of the
steps and carpet in a darkened theatre
were issues for the jury. We fail to find
the similarity in the cited case with the
case now before us. In our present case,
plaintiff was not injured because she
could not see, due to the alleged inadequacy of the lighting or markers. Rather,
plaintiff’s injury was due to an independent act of a third party who drove into the
parking lot at an excessive speed.
Plaintiff urges that defendant, in furnishing a parking lot, should anticipate
and reasonably foresee that some users of
the parking lot would turn into the lot at
fast rates of speed and that at dusk these
users would have difficulty in distinguishing the entrance, due to the inadequacy of the markings, and in seeing
patrons walking about due to inadequate
lighting.
***
¶12 In the case now before us we fail to
see any causal connection between
defendant’s failure to adequately light or
adequately mark the entrance to the parking area and the plaintiff’s injury. The
See OLIO, PAGE 14
www.okcbar.org • June 2014 • BRIEFCASE 5
Get Active in Your OCBA &
Reap the Benefits!
Coming in your mail soon – the first
week in July – will be your opportunity
to elect officers, delegates, renew your
membership and sign-up for committees!
The OCBA has twelve active committees, two sections and an outstanding
YLD Division. To make it easier this year
we’ve added the Committee Preference
to the bottom of the membership renewal
forms. If you are with a firm that is master billed, then you will receive the
Committee Preference Card. Either way,
sign up for one, two or three of the following committees, sections or division:
Awards Committee — This committee is responsible for the OCBA Award
nominations, the OBA Award nominations and the Leadership in Law Awards.
Chair – Judge Patricia Parrish
Law Related Education Committee
—This committee provides support for
the OCBA Law Related Education program. The committee works to update
current materials and generate new ideas
for classroom presentations. Chair –
Richard Parr; Vice Chair – Doneen
Jones
Lawyers Against Domestic Abuse —
This committee works to raise awareness
of domestic abuse. Working with the
YWCA and Attorney General’s Office,
the committee provides training of attorneys & judges in dealing with domestic
abuse situations and providing resources
online and on the 1st floor of the
Oklahoma County Courthouse for victims. They are also working to provide
victim advocates and establish a
Speaker’s Bureau. Chair – Gretchen
Harris; Vice Chair – Joe Balkenbush
ing legal assistance to veterans. This
committee is new and is also trying to
find other ways to assist veterans. Chair
– Daniel Webber; Vice Chair – Robert
Stell
Bankruptcy Section — This section
meets 10 months a year at the U.S.
Bankruptcy Court to discuss current
issues in the bankruptcy area. There is a
membership fee of $120 which provides
for lunch at these meetings. Chair –
Craig Regens
Lawyers for Learning — This committee is involved as mentors/tutors in
the OKC Public School’s Community
Involvement initiative working with
Adams, Lee and Rockwood Elementary
Schools. Chair – Lori Fagan
Family Law Section — This section
works with the judges of the Family Law
Division in providing up-to-date information to those attorneys practicing in
the family law area. Co-Chairs – Judge
Howard Haralson & Sharon Byers
Briefcase Committee — This committee is responsible for the monthly publication Briefcase. They recruit articles,
write articles, edit and proof each month.
Chair & Editor – Judge Geary Walke
Legal Aid Committee — Working
with Legal Aid Services of Oklahoma,
this committee works to improve legal
services to those in need. This committee
also assists in the yearly fund drive for
Legal Aid. Chair – John Miley
Young Lawyers Division — This
hard-working group of young lawyers
takes on many projects each year. Some
of these projects include the Harvest
Food Drive, Striking Out Hunger
Bowling Tournament in the summer and
Chili Cook-off in the winter. The
Community Service Subcommittee plans
3 community service projects each year.
Chair – Justin Meek
Veterans’ Issues Committee — Works
closely with the OBA Oklahoma Lawyers
for America’s Heroes Program in provid-
SEPTEMBER 12, 2014
Annual Dinner & Dance
Skirvin Hotel Grand Ballroom
Back To
School
Bash!
July 22
PERSONAL INJURY
WORKERS’
COMPENSATION
SOCIAL SECURITY
DISABILITY
Community Services Committee —
This committee plans community services projects such as assisting the local
youth shelter. They also coordinate clothing drives every 6 months for the drug
court participants. This committee has
been active in nursing home visits and
getting
readers
for
Rockwood
Elementary School. Chair –Ray
Zschiesche; Vice Chair – Chance
Pearson
JOHNSON & BISCONE
Fee Grievance & Ethics Committee
— Comprised of both lawyer and nonlawyer members, this committee investigates complaints of clients against attorneys who are OCBA members. They are
deputized through the OBA to investigate
and recommend disposition of such
cases. Chair – George Dahnke; Vice
Chair – Kieran Maye
Law Day Committee — This committee is responsible for all Law Day activities which include the Law Day
Luncheon, Ask A Lawyer Program, student mentoring program, civic group
speakers and the Law Library Law Week.
Chair – Curtis Thomas
JULY 22, 2014
Family Junction Back To
School Bash
Voices for Children Committee —
The main project for this committee has
been the Carver-Mark Twain Headstart
Program. This group plans parties, provides books and readers and helps with a
winter clothing drive each year. Chair –
Robert Sheets
Bench & Bar Committee — Working
to improve relations between the bench
and the bar, this committee takes on projects to assist both the bench and bar. In
2014-15, it is time to plan another Bench
& Bar Conference at Quartz Mountain.
Chair – Michael Chitwood
Continuing
Legal
Education
Committee — Responsible for providing
quality CLE programs to OCBA members at discounted prices, this committee
plans sessions each year through the
months of October through February.
Chair – Terrill Monks
&
Events
Seminars
WILL GLADLY REVIEW
YOUR REFERRALS.
OKLAHOMA’S TOP RATED LAWYERS
PERSONAL INJURY
LEXISNEXIS© MARTINDALE HUBBELL©
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1-800-426-4563
405-232-6490
Lawyers in the Classroom Michael O’Neil with his big “thank you” note. Mr. O’Neil is a frequent volunteer
speaker for the OCBA Law-Related Education Program.
105 N HUDSON, SUITE 100
HIGHTOWER BUILDING
OKLAHOMA CITY, OK 73102
6 BRIEFCASE • June 2014
Become a
Paralegal
Enroll in the University of Oklahoma
Legal Assistant Education Program.
Enrollment deadline:
August 18, 2014
• No Prepayment Contracts
• Approved by the American Bar Association
• Saturday Classes
University of Oklahoma Law Center
Department of Legal Assistant Education
300 Timberdell Road, Room 3014, Norman, Oklahoma 73019
For more information:
(405) 325-1726 or lae@hamilton.law.ou.edu
Department of Legal Assistant Education
OU Law Center
iBar Definitive Playlists
By Chris Deason and Judge Don Deason
We tend to like music that is little bit off the beaten path. Though, we are probably not as far “off the
beaten path” as we might think. Here are a couple
of our likes that aren’t too mainstream. First, Mark
Oliver Everett, also known as “E” (not to be confused with the character from Entourage), records
under the name Eels with a constantly changing
group of musicians. He has been making very dark
and personal music since the 1990s, beginning
with his debut album Beautiful Freak. One of our
favorite songs is titled (with our apologies for the
language) It’s a M*****f***r, which explores in
very uncensored terms what it feels like to go on
with day-to-day life after experiencing unimaginAspen 2014 The Deasons
able and heartbreaking loss. On a lighter note, E
participated in a film called Parallel Worlds,
Parallel Lives, about the complicated relationship between E and his physicist father,
Hugh Everett III, who was the originator of the many-worlds interpretation of quantum
theory and of the use of Lagrange multipliers for general engineering optimizations. If
you understand any of that, then you are way ahead of us. The film aired on PBS in 2008.
Another favorite is a fellow from the Tucson, Arizona, named Howe Gelb. One of his
songs, Stranded Pearl, appeared on Don’s playlist a few months ago. Much Like “E,” he
records and performs with various musicians and associations he describes as “seasonal”
under the name Giant Sand. For trivia fans, it is an abbreviation of the giant sandworms
from the Dune series of books. His music incorporates influences that are southwest,
along with influences from country, marimba, and tejano. According to the very opinionated Gelb, “Every time the Republicans have been in office, it seems like the best rock
music gets made. Like, you know, the saddest thing in the world was Kennedy getting
shot. That was the down shot. The upshot was I don’t think we wouldn’t have gotten
Hendrix otherwise.” The most recent version of Giant Sand has Howe working with
musicians from Denmark.
Enjoy the June 2014, playlists submitted by Judge Easter and his daughter, the prosecutor, Merydith Easter.
Honorable Judge Donald Easter: Judge Easter graduated in the
“Top 10” from OCU School of Law. We are proud of him even though only 8 students
graduated that cold December day in 1979. Judge Easter is lucky to have a fantastic family that keeps growing. He listens to music on an iPod while working out and then on XM
while waiting for Merydith. They car pool. We want to know who has control of XM on
the drive to and from the courthouse.
Song Title
Artist
All My Ex’s Live in Texas
A Closer Walk With Thee
Mornin’
Pretty Girls Everywhere
Turn On Your Love Light
White Boy Lost in the Blues
You’re the Reason God Made Oklahoma
Happy (Guilty Pleasure)
George Straight
Pete Fountain
Al Jarreau
Eugene Church
Bobby Bland
Lyle Lovett
David Frizzell & Shelly West
Pharrell Williams
Merydith Easter: Like her dad, Merydith graduated in the month of
December, but she chose to attend OU College of Law. That institution wound her up and
then turned her loose in 2010. She currently works as an Assistant District Attorney in
Oklahoma County. Don Deason has a couple of funny Merydith stories from when she
has appeared on his docket. He will be happy to share them with you if ask. Merydith listens to the music on her iPhone while walking her dog, Rylee.
Song Title
Artist
Hey Baby
A Beautiful Mess
Compass
Love Runs Out
Somewhere Only We Know
She’s So Mean
How Will I Know (Guilty Pleasure)
Mark Wilkinson
Jason Mraz
Lady Antebellum
OneRepublic
Keane
Matchbox Twenty
Whitney Houston
www.okcbar.org • June 2014 • BRIEFCASE 7
The Challenge:
Ruth Bader Ginsburg Inn Challenges
Other Inns and Organizations
Lawyers are social creatures, usually
belonging to multiple organizations. They
connect through professional organizations, of which there are many, as well as
churches, scouts, politics, book clubs, and
also civic groups of all shapes, sizes and
descriptions.
The American Inns of Court has established several Inns in the OKC metro. This
is the story of two outreach programs of the
Ruth Bader Ginsburg American Inn of
Court: how they came to be, and the results.
The ideas came to Chris Batson Deason,
and she focused her energy and efforts, and
Don Deason’s energy and efforts, into the
projects until they bore fruit. It may be
years before there will be an eventual harvest from the students themselves, but the
seed is planted and the garden is being
tended by dedicated public school teachers.
Your Inn is challenged to report your
choice outreach program.
The Musical Idea
The idea for the 2012-2013 Community
Service Project for the Inn was sparked by
See CHALLENGE, PAGE 10
8 BRIEFCASE • June 2014
2014 Family Estate and Financial
Planning Workshop: Huge Success!
By Stan Evans
This past April, 62 families in Northeast
Oklahoma City walked out of a workshop
with written wills during the 5th Annual
MAKE-A-WILL and Family Financial
Planning Workshop. Fifty clients also had
Advance Directives and 22 availed themselves to financial management and debt
counseling.
More than 400 families have participated
over the past five years. Volunteer attorney
Ken Maillard was pleased with the
increased number of clients who participated this year. Family planning and debt
management were added three years ago
because it was determined that making
wills was not enough. According to
Maillard, we should not only help with
wealth preservation from generation to
generation but also should help families to
deal with financial problems of the present.
Reverend Lee Cooper of Prospect
Baptist Church expressed appreciation for
the outstanding job done by the volunteer
attorneys and law students. Rev. Cooper is
the inspirational leader of the project.
Assistant Dean Stanley Evans of OU
College of Law is the administrative and
legal leader. There is a two-week preparation in community churches done by pastors, volunteer attorneys and church coordinators. Everything culminates on a
Saturday, with families in and out with
printed legal wills within 90 minutes.
The preparatory work starts with a sermon by the church pastor relating to preservation of the family and what it takes to
build wealth. Each church is supported by a
volunteer church coordinator and a volunteer attorney to work with individual members on preparing themselves and gathering
information. The volunteer attorney also
talks to the congregation about the importance of protecting family assets from gen-
eration to generation and confidentiality
concerns of the process. This year 26
churches were involved in Oklahoma City.
Once the screening is done, the family is
directed to the MAKE-A-WILL Workshop.
Upon arrival at the Saturday Workshop
each client is assigned to a volunteer attorney and a law school intern. This year, 39
Oklahoma County Bar attorneys participated. The bulk of the volunteer attorneys
come from the Oklahoma Association of
Black Lawyers, who have taken this on as
a major community service project.
At the workshop, the client is interviewed, and the information is used to
build a will which will support this client’s
needs. Once the client’s desires are put on
paper, the will is quickly produced. After a
client counseling session is completed by
the attorney, the will is witnessed and notarized.
The client is then given an opportunity to
do an Advance Directive, determining who
has responsibility in case the family member is medically incapacitated. Finally, the
financial management volunteers meet
with the client to assist in debt management
and financial counseling. This year, the
entire process took less than 90 minutes;
thanks in large part to the administrative
support of Legal Aid Services of
Oklahoma,
Southwestern
Urban
Foundation, and the planning and flow
management of Assistant Dean Evans and
Legal Aid Services of Oklahoma associates
Sharon Ammon and Rick Goralewicz.
According to Evans, this is a total collaborative effort of many groups. “Of course
the volunteer attorneys and interns from
both OU College of Law and OCU School
of Law were essential. Thirty-two law students participated this year. The coordinators and volunteer attorneys in the 26 different churches played a huge role in mak-
Assistant Dean Evans giving starting instructions to lawyers and law students at the beginning of the day.
ing sure that the clients were prepared
when they arrived at the workshop.”
“All groups and individuals share a common goal: To assist families in our community become stronger in preparing for their
future generations and to insure that accumulated wealth was not lost at the passing
or loss of a family member. Wealth generation starts with having a way to preserve
things of value within the family.”
Church Coordinator Leader Espanola Bowen being congratulated by Assistant Dean Evans for her volunteer leadership.
Completing the process! Client Signing will.
www.okcbar.org • June 2014 • BRIEFCASE 9
Attorney Debra Cruickshank collecting info from client as OU Law Students observe.
OCU Students being supervised by Attorney Tiece Dempsey as they prepare the will.
OCU Law Student advising client on details of her will.
Attorney Charles Henry and Law Student meeting with client and collecting details.
Client being advised by Attorney Milissa Tipton Dunkins and law student – foreground. Other attorneys on stations with clients in the background at the Metro Tech location.
Attorney Don Smitherman and OU Law Student helps client review final will.
Attorney Rita Douglas Talley preparing will paperwork as client and student observes.
10 BRIEFCASE • June 2014
CHALLENGE from PAGE 7
a request from a fifteen year old for a
pricey trumpet. He marched in the band at
a well-funded high school where having
such an instrument would not be unusual.
While searching online, Chris and Don
Deason came across a trumpet like the one
Don used for marching band in 1964. There
were several postings on eBay for similar
instruments and they were surprised to
learn the trumpet was worth between $750
and $2,000 depending upon the condition.
Still in the original case, his trumpet had
been stored for decades in various closets,
attics, and garages. He did not participate in
band after junior high school, but had carried it with him for over forty years for sentimental reasons. The first such sentimental
reason was the sacrifice made by his parents so they could afford a fine instrument.
The Musical Challenge
The fifteen year old told Chris and Don
of students at his school who rented instruments because their parents were unable to
make such a purchase. They wondered how
in the world students at underfunded
schools obtained instruments. It only took a
couple of telephone calls to get in touch
with the band instructor at Northwest
Classen High School, Reuben Green, who
spreads himself around three different
Oklahoma City schools. While Northwest
Classen has a marching band, many stu-
dents are unable to rent their desired instrument much less purchase one. The only
option is to share instruments maintained
by the school. Many of the “loaners” cannot be taken home so students are denied
the opportunity to practice.
The band instructor explained that most
instruments, no matter how old, can be
restored for minimal cost in comparison to
purchasing one new. Most only need a
good polishing and to have the rubber or
felt parts replaced. Refurbishing a used
instrument is feasible for the cash strapped.
The trumpet in the dusty box setting on a
shelf next to garden tools was becoming
more and more valuable. They figured
other members of the Inn had clarinets or
trombones tucked away in dark corners for
the same sentimental reasons. Turns out
they were right. It was the same story. The
instruments were still around because of
sentimental reasons and because of cost.
Either a parent had purchased it for them or
they had purchased it for their own child.
The idea of students actually using these
treasures led to a flood of generosity and by
December 2012, Inn members had donated
seventeen instruments to Northwest
Classen High School along with a $1,000
gift certificate to Larsen Music to cover any
necessary repairs. The band instructor said
the gift certificate alone was more than his
annual budget.
The Art Idea
The 2013-2014 Community Service
Project for the Inn sprouted from the previous year’s investigation into band instruments and the Oklahoma City Public
School District when Chris came across a
childhood friend who had been donating art
supplies to a school located near his office.
He had done so for a number of years after
visiting an art class at Emerson Alternative
High School. He had watched the students
working on a project only to realize they
were drawing on pieces of copy paper with
pencils. No. 2 pencils. Not colored pencils.
In response to questions about the project, the teacher told him they simply had no
art supplies. When told of the Inn’s interest
in donating supplies, Chris’ friend warned
that the students may not respond in a positive manner because the Emerson students
tend to have more pressing matters on their
minds than making art. Still, he delivers
what he can out of a belief that those students deserve to spend an hour or so each
week thinking creatively even if it’s only a
temporary distraction from their worries.
With those encouraging words, we set in
motion the art supply drive that initially
resulted in the donation of over $900 in
actual supplies and $1,566 in cash donations for a Hobby Lobby gift certificate.
Not having much information from the
school other than a list of requested items,
we thought it was a meaningful donation.
That was until the supplies were delivered.
There had been no direct communication
with the art teacher who was suspicious of
the donation. A few students were asked to
assist with carrying supplies up the three
flights of stairs to her room. Those who
saw into the trunk of Chris’ car chanted,
“We have paint! We have paint!” Others
repeatedly asked if they were going to have
paint. Clearly, they previously had no paint.
To put it in perspective, the school campus
is in serious disrepair and has the atmosphere of a detention center. There is an
onsite daycare for students with small children of these students.
The Art Challenge
The teacher said some students attend
school just to have a meal, some students
disappear into the foster care system without warning, and some work more than one
job to support families. She went on to say
there were so many stories she was unable
to tell because doing so would make her
cry. My friend had been wrong. The
Emerson art students were ecstatic to
receive our donations. The teacher, Barbara
Thomas, and a couple of students were
invited to the Inn’s closing banquet in
April. They listened to us describe what
had been accomplished and how much
money was raised for the class. When
Barbara Thomas was handed the microphone to say a few words of thanks she
described the school and its situation as
one, if not the, least funded schools in the
district. She said the school (not just the art
class) was out of paper by March. Her
annual budget is $300. Anything else came
out of her pocket. That’s when we realized
what the Inn had done for the Emerson art
program. About that time, an Inn member
emptied the dinner rolls out of the basket
on their table and began passing it around.
Another $1,100 was collected. The following week an Inn member quietly delivered
boxes of paper to Emerson Alternative
High School.
Do It and Write About It
Please take time to have someone in your
organization write about your outreach or
community programs. Send your story to
the Briefcase. Lawyers are out in the community and making a difference. Write
about it!
Store Hours Mon.-Fri. 9:00 to 6:00 • Sat. 10:00 to 1:00
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210 Park Avenue, Suite 220, Oklahoma City, OK 73102
Call (405) 235-4800 for reserved parking at East City Center Garage.
Enter at the corner of Park and Harvey to use our reserved parking.
We are always open at www.teenahickscompany.com
www.okcbar.org • June 2014 • BRIEFCASE 11
Bar Observer
Crowe & Dunlevy to Serve as
Anchor Tenant in SandRidge
Energy’s Braniff Building
The historic downtown Oklahoma City
building is now fully leased. SandRidge
Energy, Inc. and Crowe & Dunlevy
announced they have entered into a lease
agreement, and the Oklahoma-based law
firm will serve as the anchor tenant of the
newly renovated, historic Braniff
Building, 324 N. Robinson Ave., in downtown Oklahoma City.
Crowe & Dunlevy attorneys and legal
staff will occupy approximately 70,000
square feet across nine floors, which
equates to 90 percent of the building’s
Class A office space. The firm will also
sub-lease approximately 5,000 square feet
from SandRidge in City Place for additional support staff.
SandRidge Energy completed renovations to the Braniff Building in 2013 as
part of the development of the SandRidge
Commons.
The 10-story Braniff Building was
designed by architect Andrew Solomon
Layton and built in 1923. The building is
currently listed on the National Register
of Historic Places.
Crowe & Dunlevy Attorney
Elected Attorney General,
Law Firm Named General
Counsel of the Seminole
Nation of Oklahoma
The Seminole Nation of Oklahoma
recently elected Crowe & Dunlevy director D. Michael McBride III attorney general and named Crowe & Dunlevy as the
tribe’s general counsel. McBride and the
firm will serve for a one year term which
may be extended for an additional two
years.
The Seminole Nation of Oklahoma is a
federally recognized tribal nation located
in south-central Oklahoma in Seminole
County. Of 18,800 enrolled tribal citizens,
13,533 live within the state of Oklahoma.
The Seminole General Council, chaired
by the principal chief and assistant chief,
serve as the elected governing body.
McBride chairs Crowe & Dunlevy’s
Indian Law & Gaming practice group and
is an experienced trial, appellate and business lawyer with two decades of experience. He has represented more than 20
Indian tribal governments or their entities
and numerous corporations and individuals that conduct business with tribes.
McBride specializes in gaming regulatory
matters, “bet the tribe” litigation, tribal
government matters, economic development and regulatory matters.
He formerly served as attorney general
to the Seminole Nation and the Sac and
Fox Nation. He is currently a director of
the Tulsa Indian Club, Inc., a trustee for
the Pawnee Nation College and served for
nearly a decade as a Justice for the
Pawnee Nation. McBride has been listed
in Chambers USA and was named a 2013
“Star Individual,” the highest individual
ranking awarded by Chambers. He has
also been recognized as an Oklahoma
Super Lawyer for Indian law, gaming,
political law and business litigation, and
by Best Lawyers in America for Native
American and gaming law.
He received his Juris Doctor with honors from the University of Oklahoma and
his Bachelor of Arts degree in political
science from Trinity University in San
Antonio, Texas.
Boaz & Associates, PC
Relocates
Stephen Boaz announces the relocation
of the offices of Boaz & Associates, PC,
to 2516 NW Expressway, Oklahoma City,
OK 73112, effective June 1, 2014. The
firm can be reached at 405.946.3232 or at
ssboaz@sbcglobal.net.
Certified Paralegal Keeli
Gardner Joins McAfee & Taft
McAfee & Taft has announced the addition of Keeli Gardner as a certified paralegal. As a member of the firm’s
Litigation Group, she provides comprehensive support to trial lawyers engaged
in a broad range of business-related litigation at the state, federal and appellate levels, as well as in commercial arbitration.
Gardner earned a bachelor’s degree in
political science from the University of
Central Oklahoma and later went on to
pursue paralegal studies at Rose State
University. She earned her certified paralegal designation from the National
Association of Legal Assistants and continues to be an active member of the
organization.
Woods serves as a director in the firm’s
Tulsa office. He is a member of the
Banking & Financial Institutions and
Energy & Natural Resources practice
groups, covering a broad range of business litigation matters with an emphasis
on litigation involving energy companies,
financial institutions and insurance companies. He also has experience in banking,
commercial transactions and electronic
commerce. During his career, he has represented leading corporations in a variety
of industries in both state and federal
courts. He has been listed in The Best
Lawyers in America and Oklahoma Super
Lawyers.
Continuing as committee members are
attorneys John M. Thompson and Timila
S. Rother. Gordon also serves on the
committee as president of the firm.
Crowe & Dunlevy Names
New Executive Committee
Members
Formation of Mattingly &
Roselius, PLLC Announced
Crowe & Dunlevy has named attorneys
John J. Griffin, Jr. and Christopher B.
Woods to the 2014 Executive Committee.
The five-member committee is responsible for overseeing the firm’s activities and
conducting long-range planning to meet
the needs of the firm, among other responsibilities.
Griffin is chair of the firm’s Energy &
Natural Resources practice group and has
practiced in the areas of energy and natural resources litigation for more than 30
years. He has extensive experience representing major oil companies and independent oil and gas producers in multistate class action litigation, complex commercial litigation and environmental litigation. He has been selected for inclusion
in The Best Lawyers in America in the
field of Natural Resources Law, Oil and
Gas Law and Water Law and has been listed since 2006 in the Oklahoma Super
Lawyers magazine.
Attorneys Jack Mattingly Sr., Jack
Mattingly Jr., Jason Roselius, Brian
Cramer & Tanner Hicks are pleased to
announce the formation of MATTINGLY
& ROSELIUS, PLLC.
The concentration of the Firm will be in
Class & Mass Actions, Oil & Gas
Litigation, General Civil Litigation,
Wrongful Death, Antitrust, Securities,
Corporate Litigation, Trucking Accidents,
Insurance Bad Faith, Oilfield Injury.
Office locations are as follows:
• 210 N. Oklahoma, Guthrie, OK 73044
– Ph. (405) 603-2222 – Fax (405) 6032250
• 13182 N. MacArthur Blvd., Oklahoma
City, OK 73142 – Ph. (405) 603-2222 –
Fax (405) 603-2250
• 215 E. Oak Avenue, Seminole, OK
74868 – Ph. (405) 382-3333 – Fax (405)
382-6303
Old News
Excerpts from OCBA News:
April, 1973, Part 1
Law Day Plans Set
By C. Stephens
HELP YOUR COURTS – ASSURE JUSTICE has been set as the theme for the
annual Oklahoma County Bar Association –
Oklahoma City University Law Day
Banquet scheduled for Tuesday, May 1. The
major speaker for the event will be former
Associate Justice of the Supreme Court of
the United States, Tom C. Clark. Clark was
born in Dallas, Texas, on September 23,
1899. He attended public schools there and
later received his AB Degree in 1921 and
his LLB in 1922 at the University of Texas.
He has received Honorary Degrees from 26
universities throughout the country.
After admission to the Texas Bar in 1922,
Clark served the law profession in a wide
variety of positions, from being Civil
District Attorney for Dallas County in 1933
to Coordinator of Alien Enemy Patrol of the
Western Defense Command and Chief of
the Civilian Staff for Japanese War
Relocation. He was named Attorney
General by President Truman in 1945.
As Attorney General, he created a committee on juvenile delinquency that sponsored the Freedom Train, which carried the
original documents for exhibition across the
country and was a co-sponsor of the program, “I Speak For Democracy,” in the
nation’s high schools.
Clark was nominated as Associate Justice
by President Truman on August 2, 1945,
and took office as successor to Mr. Justice
Murphy on October 3, 1949. He retired on
June 12, 1967.
Clark has received numerous awards,
including the American Bar Association
Gold Medal Award in 1962.
The evening event will begin with a 6:30
cocktail hour in the Silver Palm Room at
Val Gene’s in Penn Square and will be followed by the banquet at 7:30. Plans have
been made for a dance following the banquet.
Tickets for the event will be available
through Bob Gilliland, the OCBA office, or
the Oklahoma City University Law School.
Tickets will be $6.75 each which will cover
cost of dinner and set-ups.
Quotes of the
MONTH
“My wife had a better
lawyer.”
~ Unknown panhandler holding
a sign at an interstate exit
Discussion about Briefcase articles, and Rex Travis was asked if
another OCBA member had passed away so he could write an
obituary, he replied:
“I’m waiting, I’m waiting!”
12 BRIEFCASE • June 2014
Stump Roscoe
By Roscoe X. Pound
Dear Roscoe: Last month you spoke
about a statute putting “the kibosh” on a
common law concept. What exactly is
“the kibosh?” B.N. Edmond, OK.
Dear B.N.: One of the great mysteries
of the English language. I’ve used the
term for better than forty years now, and
I’m still not sure. It dates back at least to
the 1830s in Jolly Olde England. Where
it came from is anybody’s guess, but I do
have my favorite theories. There’s some
speculation that it might be Yiddish but I
tend to doubt that. England only passed
its Catholic Emancipation laws in 1829.
Similar express laws against antiSemitism were only just wending their
way through Parliament. True, in 1837
Disraeli won a seat in that body, but
Disraeli didn’t mind such impediments as
taking a Christian oath of office that
other Jews found too off-putting. Even
ten years later, Parliament was still passing laws allowing individual nonChristians to take a different oath of
office in the face of vocal urgings of their
constituencies. What I’m saying is: I tend
to doubt a Yiddish word would have
caught on so quickly in the poorer neighborhoods of England given the tenor of
the times.
A more likely candidate is the Irish
phrase caip bhais, a reference to the
black cap that a judge would put on prior
to pronouncing a death sentence. Given
the phrase appears to have been used in
Ergo
Irish theatre and pubs, this theory holds
some water. It also comports with the
usage of the term which indicates that
which ends something once and for all.
Another theory holds that it came from
a Turkish or Arabic word kerbash or qerbash, a type of whip. While this whip
would have been known to someone traveling abroad either for civilian or military purposes, it is doubtful that the term
would have trickled down to the poorer
working class types, from whom the earliest usages seem to hale.
My own personal favorite theory is that
it is an onamatopoeiac word made up of
the word “bash” couples with the prefix
“ker” or “ka” as in “ka-pow” or “kerplunk”. This feeds my mind’s eye an
image kind of like “Whack-A-Mole”
where the mole decisively stays down. In
like manner, I also prefer the word “render” rather than “extradite” because it
inspires a scene where the miscreant is
turned over piece by piece. This usually
elicits a suggestion that I seek counseling.
Perhaps one day some linguistic sleuth
will discover something which puts the
kibosh on all this speculation. Until then,
your guess is as good as mine.
Dear Roscoe: My clients and I sat
down together after trial and identified
32 errors committed by the court.
My partner says it would be crazy to
assert them all. I think I’d be risking a
Bar complaint or malpractice claim if I
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didn’t. What would you do? K.M. OKC
Dear K.M.: Let me first tell you what I
wouldn’t do. A) I would not sit down in
the direct aftermath of a trial (if I’m
reading this correctly) to chart the appellate course. Nerves are too raw; emotions too high; and critical thinking too
likely to be clouded. B) When I did sit
down to diagnose appealability, I would
do it alone (or perhaps with my law partner – sounds like you’ve got a good one).
I certainly would not include my client
because there is both an art and a science to selecting issues for appeal, a skill
set which most laymen, and even many
brilliant trial lawyers, lack.
In the course of my extensive though
autodidactic legal training, when the
issue turns to appellate matters my first
port of call is one of the many excellent
books and articles on appellate advocacy
or legal reasoning by Third Circuit Judge
Ruggero Aldisert. Judge Aldisert
observes that when he reads a brief that
contains ten or twelve propositions of
error, he immediately engages a rebuttable position that none of them have
merit. Even if when that position is overcome, the effectiveness of the advocacy
takes a real blow. SCOTUS agrees.
“Experienced advocates since time
beyond memory have emphasized the
importance of winnowing out weaker
arguments on appeal and focusing on one
central issue, if possible, or at most on a
few key issues.” Jones v. Barnes, 463
P.3d 455, 451-52 (1982).
You do your client a disservice when
you submit “kitchen sink” type issues to
the appellate courts. Actually, you’re not
doing them any service by doing so in the
trial court either. Can discarded weaker
arguments become the basis for complaint by a disgruntled client? Sure. So
can any number of other strategic choices. If you allow those kinds of “tin foil
hat” phobias dog you throughout your
legal career, I wonder how long that
career lasts before the ulcers, insomnia,
high blood pressure, and related maladies bring that career to a halt. Take a
deep breath and go with what you know:
Limit those appellate issues and go with
the strong ones.
I’m going to revisit this issue next
month. Right now I’ve got some other
news to share.
I went to Crenshaw’s. Daddy Mike let
me in. The place looked much better than
last time. Crenshaw, not so much. He
aged appreciably. He sat in an easy chair.
Junior and Sylvia sat on the couch, the
ankles of their inner legs crossing each
other, the way kids think they’ve concealed their PDAs but most adults know
better. Daddy Mike perched on the coffee
table like a curmudgeonly gargoyle.
“I wanted to see you because I want to
call this adventure to a halt.” Crenshaw
said. “People have been bullied, attacked
and now killed. I’ve almost lost Sylvia.
I’ve no right to put anyone at risk for a
movie.”
“Course it was our side that did the
killing,” Daddy Mike offered.
I asked Sylvia: “Do we know anything
more about the ones who attacked you?”
“Detective Seery came by yesterday,”
she said softly, “their prints matched military records for a Thomas Anderson and
an Everett Hoffmann. He showed me pictures. They were the same men. I don’t
know them. Neither did Mr. Crenshaw.”
“And I don’t want to know any more
about them, or about anyone like them,”
Crenshaw said.
“What about Claude Blum. Has he surfaced?”
Crenshaw shook his head. “No. I’ve
got to assume the worst. We just need to
drop all this. I’m calling it off.”
“On the other hand, sir, we don’t work
for you,” Junior said.
“Then I’m asking,” Crenshaw replied,
a quiver in his voice.
I understood Junior. Daddy Mike eliminated his ability to rain hell down on the
guys that molested Sylvia. He wanted his
pound of flesh. He grasped what I believe
everyone else in the room did. Anderson
and Hoffmann worked for someone, and
that someone still ran loose.
“I’m wondering if we’ve already
crossed the line of no return,” I said.
“And what about Blum or whatever he
calls himself. We need to find out what’s
happened to him.”
Crenshaw shook his head. “The police
can look for him. I’ll give them the information I have.”
“Or you could give it to me,” I replied.
“Please Roscoe, please,” he said in a
voice that sounded far off and fatigued.
I no sooner walked into my office than
my cellphone buzzed. Caller ID showed
my wife’s cell, but I heard the panicked
voice of my mom.
“Roscoe, get home quick. You’ll need
your gun.”
One of my people, Jeff, pulled up in
front of the office. “C’mon,” I said. Jeff
did two tours in Nam both as sniper and
counter-sniper. Other than Junior, and
perhaps Daddy Mike, I could think of no
one better to back me up in a hairy situation.
Mom called again. “Roscoe, it’s in the
mailbox. We’re going to Meadowlands.
Bring the carcass.” I heard a staccato of
car horns and the gunning of an engine.
The call ended.
I took in the scene in front of my
house. Mail lay in a windblown pile. The
front door stood open. Jeff jumped the
curb and stopped in the yard. He pulled
his gun. I’d gotten mine out in the car.
We did a quick search of the house.
Clear. The freezer door was open. We
went out front. Neighbors began to gather.
At the mailbox, Jeff stopped and
sniffed. “Smell that?” he asked. I nodded.
A strong, musty odor. “Get behind the
mailbox and open the latch with one of
them magazines,” he said. “Then stand
clear.”
I did as he said, caught a flash of
movement, heard the report of Jeff’s gun.
A copperhead lay crumpled on the
ground.
“Holy Samuel L. Jackson, Batman,” he
said. He shot it again.
I felt sick. My first thought was that it
tied into Crenshaw. My second was that I
need to put the kibosh on these guys personally.
www.okcbar.org • June 2014 • BRIEFCASE 13
Civility in Briefing
By Rex Travis
The 6th Circuit Court of Appeals has
given us all a lesson in the importance of
civility in brief-writing. In Bennett v. State
Farm Mut. Auto. Ins. Co., 731 F3d 584
(2013) Judge Kethledge wrote:
There are good reasons not to call
an opponent’s argument “ridiculous,”
which is what State Farm calls
Barbara Bennett’s principal argument
here. The reasons include civility; the
near-certainty that overstatement will
only push the reader away (especially
when, as here, the hyperbole begins
on page one of the brief); and that,
even where the record supports an
extreme modifier, “the better practice
is usually to lay out the facts and
let the court reach its
own conclu-
sions.”... But here the biggest reason
is more simple: the argument that
State Farm derides as ridiculous is
instead correct. (Citation omitted.)
The facts of the case were that Barbara
Bennett was walking her dog when she
was hit by a Ford Fusion driven by Robert
Pastel and insured by State Farm. The
impact threw her onto the hood of Pastel’s
car from which she was dislodged and
“sustained further injury.” In some imaginative lawyering, her lawyer contended
that her position on the hood of the State
Farm-insured car made her an “occupant”
of the car so that she was entitled the coverage (presumably medical payments and
uninsured/underinsured motorist coverage) of that policy.
The U.S. District Court was
singularly unimpressed with
Ms. Bennett’s lawyer’s
argument and granted
State Farm summary
judgment. So far so good,
for State Farm’s lawyer. He has
his case won. But, as lawyers will
sometimes do, he pressed a little, calling the argument “ridiculous.”
Now the argument seems to be one
which could go either way, although
with probably the preponderance
going with State Farm’s argument that
State Farm obviously did not intend to
insure under its policy people whom its
insured happened to hit and throw up onto
some part of the car.
Indeed, the Circuit Court of Appeals
granted them that: “Here, as a matter of
ordinary English usage, one might be
skeptical that Bennett was an ‘occupant’ of
the Fusion during the time she was on its
hood. Occupants are normally inside vehicles, not on them.”
On the other hand, State Farm’s policy
defined “occupying” as “in, on, entering
into or alighting from.” Under that definition, the Court held that, Ms. Bennett was
clearly an “insured” as an “occupant” of
the vehicle.
Did the Court’s obvious offense at the
intemperate language chosen by State
Farm’s lawyer matter? I suspect we’ll
never know. But wouldn’t it be a good idea
to turn down the rhetoric and exploit the
probable advantage of your position if you
were State Farm’s lawyer. The key might
be to approach the matter from the position
Mark Twain called “The calm confidence
of a Christian with four aces.”
Characterizing your opponent’s position as
“ridiculous” does not help in getting the
Court to rule that way.
Work Life Balance
Are You Adam, or Are You David?
sugars. For purposes of this study, particiBy Warren Jones
Adam (all these names are fictional) is pants in the top 40 percent of healthy eatactive, and he eats healthfully. Bob is ing index scores were categorized as conactive, but does not eat healthfully. Carl is suming a healthy diet. A side note: compared to how most
inactive, but he eats
Americans eat, being in
healthfully.
David is
the top 40 percent is analinactive, and he does not
ogous to being “the skineat healthfully. So what?
niest guy in fat camp.”
The objectives in a
Participants
were
recent study published in
deemed
“active”
if
they
Mayo Clinic Proceedings
met
the
current
physical
were to 1) examine the
activity guidelines. Those,
relationship
between
you recall, necessitate 150
physical activity and
minutes per week of moddietary behavior, and 2) to
erate exercise, or 75 minexamine the potential
utes per week of vigorous.
combined effect of physiRelative to the first
cal activity and dietary
objective
of the study, the
behavior on biological
researchers
found that
markers, e.g., cholesterol,
Warren
Jones
participants
were
32 peramong others, and on
cent
more
likely
to conhealth markers, e.g., waist circumference,
sume
a
healthy
diet
if
they
also
met
physiamong others.
cal
activity
guidelines.
The
researchers
did
The Healthy Eating Index, developed by
not
pin
down
the
reason
for
this
relationthe Department of Agriculture, is an indicator of dietary quality. It consists of these ship. It may be that those who are active
components: total fruit; whole fruit; total want to enhance the benefits of their exervegetable; dark green vegetables, orange cise, and those who eat healthfully want to
vegetables, and legumes; total grain; enhance the benefits of their quality diet.
Relative to the second objective of the
whole-grain; milk; meats and beans; oil;
saturated fats; sodium; and calories from study, the researchers found that approxisolid fats, alcoholic beverages, and added mately 16 percent of the sample were classugars. As you might imagine, a high score sified as consuming a healthy diet AND
for the healthy eating index would necessi- active (I suspect that percentage would
tate low scores (low consumption) for the have been much, much lower if the stansaturated fats, sodium, and calories from dard for healthy eating were higher than
solid fats, alcoholic beverages, and added merely the top 40 percent); 28 percent of
the sample as consuming an unhealthy
diet, but were active; 21 percent as consuming a healthy diet, but were inactive;
and 34 percent as consuming an unhealthy
diet AND were inactive.
As you might expect, those who consumed a healthy diet and were active had
the most favorable levels of biological
markers and health markers compared
with the other three groups.
Compared with those who consumed a
healthy diet and were active (the referent
group) participants who consumed an
unhealthy diet and were inactive were
almost 4 times more likely to be obese,
more than three times more likely to have
a high waist circumference, 62 percent
more likely to be hypertensive, 43 percent
more likely to have an elevated marker of
heart inflammation, 89 percent more likely
to have an elevated homocysteine level
(typically elevated in people who consume
large amounts of animal fats, and low
amounts of fruits and vegetables), and
more than twice as likely to have the metabolic syndrome. You may recall from some
of my earlier articles that one has the
“metabolic syndrome” when one has an
elevated waist circumference (40 inches or
greater for men, and 34.6 inches or larger
for women) and any two of the following
four: elevated triglycerides, elevated blood
pressure, elevated blood sugar, and a
reduced level of HDL cholesterol.
The outcome for the two middle groups,
those who were active but who consumed
poorly, or those who consumed healthfully
but were inactive, were not quite as dreadful as the numbers shown when the best
and the worst groups were compared.
Their numbers, though, were clearly worse
than the best group. Interestingly, between
the two middle groups, those who were
inactive but consumed healthfully produced worse numbers for the biological
markers and the health markers than the
group that didn’t consume quite so healthfully but were nonetheless active. It
appears that physical activity may weigh
more heavily, in a good way, than healthy
eating. Both, obviously, are important.
This study strongly suggests that the
combination of healthy eating habits and
physical activity may result in the best outcome in regard to many parameters associated with coronary artery disease risk.
So, going back to our list of names in the
first paragraph, try to be like Adam or, at
least, Bob. Worst case, be a Carl. By no
means be a David.
Warren E. Jones, JD, HFS, CSCS, CEQ, is
an American College of Sports Medicine
(ACSM) Health Fitness Specialist, a National
Strength and Conditioning Association
Certified Strength and Conditioning Specialist,
and a holder of an ACSM Certificate of
Enhanced Qualification. His clients range from
competitive athletes to the morbidly obese. He
can be reached at wejones65@gmail.com or at
405-812-7612.
14 BRIEFCASE • June 2014
OLIO from PAGE 4
primary negligence, as pleaded by plaintiff, was that of the offending motorist. In
order to attribute the proximate cause to
defendant it should appear from the
pleadings that defendant owed such a
duty to plaintiff that he should have
anticipated or foreseen that the motorist
or someone else would turn suddenly
from the street into defendant’s parking
area to avoid colliding with another car
on the street and thus place his patrons in
peril.
***
The alleged inadequate lighting and
markings can only be determined in legal
effect as a condition and not the cause of
accident. Certainly defendant was not an
insurer even though defendant did owe a
duty to keep the premises in a reasonably
safe condition; nor could the negligence
of the offending motorist be imputed to
defendant.
June 20, 1989
Twenty-Five Years Ago
[Excerpted from State ex rel. Roberts v.
McDonald, 1989 OK CIV APP 35, 787
P.2d 466.]
Appellee brought its action seeking to
enjoin Appellants from the continued
operation of the Calvary Boys Ranch
because of their failure to obtain a license
from the Department of Human Services,
pursuant to 10 O.S. 1981 § 405 (a).
Appellants admitted their operation of
the Calvary Boys Ranch without the
required state license, and further stated
that they refused to obtain the required
license. Appellants allege that the licensing requirement was unconstitutional as
applied to churches, and that the Calvary
Boys Ranch was a part of, and operated
by the Calvary Baptist Church. Appellee
moved for summary judgment based on
Appellant McDonald’s deliberate operation of Calvary Boys Ranch without the
required state license, and that his admission constituted a prima facie violation of
state law, thereby entitling Appellee to
the requested injunctive relief. The trial
court entered its memorandum decision
which made numerous findings of fact
and conclusions of law and found that
there were no material issues of fact
between Appellants and Appellee, and
that Appellee was entitled to judgment as
a matter of law.
Appellants contend the trial court erred
in finding that as a matter of law, the
required state license was not a violation
of the free exercise clause contained in
the First Amendment to the Constitution
of the United States. Appellants allege
that this is a fact question, not suitable
for summary judgment. Title 10 O.S.
1981 § 405 (a) provides in part:
“No child care facility may be
operated or maintained after June 30,
1964, unless licensed by the
Department; ... No new child care
facility may be established without
the prior approval of the Department
which shall be granted only after the
Department is satisfied that such
facility will meet known needs for
the services proposed to be provided
and that the facility will meet minimum standards for a license to operate.”
Title 10 O.S. 1981 § 404 (a) provides
in part:
“These standards shall include
requirements for a constructive program and services to meet the needs
of each child and family; staff of
good moral character and ability for
child care; adequate and safe housekeeping, sanitation, and equipment;
good health care; full educational
and religious opportunities; good
community relationships; essential
records and administrative methods;
and sufficient funds for sound operation.”
Appellants’ admissions of their failure
to obtain the required license, and of their
intent not to obtain the required license,
are a clear violation of the Oklahoma
Statutes. Therefore, no material issue of
fact exists between the parties as to the
Appellants’ violation of the law. The
question of whether the state statute violates the First Amendment’s free exercise
clause is a question of law properly
decided by summary judgment.
The First Amendment’s free exercise
clause provides that congress shall make
no law “prohibiting the free exercise” of
religion. Appellee contends that licensing
of child care facilities does not violate
Appellants’ right to free exercise of religion. We agree. The free exercise clause
provides an unqualified prohibition
against government interference with
religious beliefs. However, governmental
regulation may lawfully impose an incidental burden on otherwise protected
religious conduct. Appellants contend
their failure to comply with the licensing
requirement is based on their religious
beliefs. A balancing test is employed by
the courts to determine when government
may regulate certain conduct prompted
by religious beliefs or principles.
The trial court found that Appellants’
exercise of their religious beliefs is subject to the state regulation requiring
licensing of the Calvary Boys Ranch. The
court further found that the state had not
only the right but the duty to protect its
minor citizens. Further, that the state
must be particularly concerned with the
welfare of the children in child care facilities where young children are completely controlled by and entirely dependent
upon operators and employees for all of
their needs. We agree with the trial court
that the Appellee does have a compelling
interest in protecting the children in child
care facilities such as Calvary Boys
Ranch. Further, that this compelling
interest outweighs the burden imposed
upon Appellants by the licensing requirements.
The free exercise clause simply cannot
be understood to require the state to conduct its own internal affairs in ways that
comport with the religious beliefs of particular citizens. Appellants are requesting
that the state exempt its licensing
requirements for them, because of their
religious beliefs. The trial court correctly
refused to do so. Licensing and regulation of child care facilities are the least
restrictive of the alternatives that the
state could provide for the protection of
children.
Appellants contend the trial court erred
in finding as a matter of law, that the
licensing requirement did not violate the
establishment clause contained in the
First Amendment to the Constitution of
the United States. Again, Appellants
argue that this question is a fact question,
not suitable for summary judgment. The
First Amendment’s establishment clause
provides that congress shall make no law
“respecting an establishment of religion...”
The United States Supreme Court has
enunciated a three-pronged test to determine whether governmental action violates the establishment clause; (1) the
statute must have a secular legislative
purpose; (2) the state’s principle or primary effect must be one that neither
advances or inhibits religion; and (3) the
statute must not foster excessive governmental entanglement with religion. The
purpose of the establishment clause is to
protect against state sponsorship, financial support, and active involvement in
religious activity. This three-pronged test
has been adopted by our Supreme Court
to determine whether required adherence
to state regulations violates the establishment clause. Under the three part test the
Appellee's licensing requirements must
have reflected a clearly secular purpose;
have had a primary effect that neither
advanced nor inhibited religion; and have
avoided excessive government entanglement with religion. Tulsa Area Hospital
Council, supra.
The application of the three-part test to
Oklahoma’s licensing requirements does
not result in any establishment clause
infringements. The statutes on their face
clearly reflect a secular purpose, to protect minor children in child care institutions and homes, by requiring compliance with minimal standards for licensing. The statute's primary purpose neither
advances nor inhibits religion or religious practices. The licensing requirements are regulations of child care institutions for the State of Oklahoma, with
the primary effect of establishing uniform minimum child care standards. The
statutes have avoided excessive government entanglement with religion. We
agree with the trial court's finding that
simply requiring a license to operate a
child care facility does not constitute
excessive entanglement of the government into the religious practices of the
Appellants. We further agree with the
trial court’s finding that the licensing
requirements are not an unconstitutional
entanglement, but the mere performance
of a compelling state duty in protecting
its minor citizens, who are in a particularly vulnerable situation without the protection of a parent.
Appellants contend the trial court erred
in determining as a matter of law, that the
requirement of licensure does not violate
other fundamental rights of Appellants.
Appellants argue that the question of violation of their freedom of speech,
parental rights, freedom of association,
and equal protection, are all questions of
fact which cannot be determined by summary judgment. This is basically the
same argument as presented by
Appellants in their propositions of error
discussed above. The trial court found as
a matter of law that the requirement of
licensure did not violate Appellants’ freedom of association, freedom of speech,
due process, nor equal protection of the
law; nor did it impinge upon Appellants’
fundamental right to raise their children
according to the dictates of their faith.
We agree with the trial court.
Based on the record before it, the trial
court granted summary judgment to
Appellees and enjoined Appellants from
operation of the Calvary Boys Ranch
without a state license. The trial court
found there were no material issues of
fact between the parties, and that as a
matter of law, the licensing requirements
did not violate First Amendment
Constitutional rights of Appellants.
Summary judgment was formulated to
allow prompt disposition of cases in
which material facts are not in dispute
and in which a court could decide the
case as a matter of law. (Citations omitted)
www.okcbar.org • June 2014 • BRIEFCASE 15
Book Notes
By Bill Gorden
1913: The Eve of War
Paul Ham, Endeavor Press Ltd., 2013, Kindle, $2.99.
Enjoyment of this work will largely be determined by
the reason you are reading it. The format, length, and
treatment are very good for the reader seeking some
approximation of the run-up to World War One, and how
such a disaster happened. If you wish to imbue your summer reading with some substance, but not be overwhelmed, this may do the trick. If depth is required, the
larger and more meaty works by Barbara Tuchman, The
Proud Tower, and The Guns of August, or
Solzhenitsyn’s August, 1914 might be your
fare. Ham obliquely attacks some conclusions
in Tuchman’s works, though not by name.
Given the depth of Tuchman’s work, this negativity does not measure up. The civilized world
did tumble through mistakes into the chaos of
World War One. Setting the tone of the era is one
thing, searching for causes is another. To get the
basics and find the tone of that lost world, this is
a competent work.
The Pope and Mussolini
David I. Kertzer, Random House, 2014, Hardback,
549 pages, $32.00
Evil in history often makes an introductory appearance
as farce, before donning the cape of anguish as it settles
in to do real harm. The Fascist farce of Mussolini, comic
for a decade, gave way to the tragedy of Nazism and
World War Two and the Holocaust. Mussolini was a trial
run. He looked harmless enough. His more sinister brother-in-arms was neither. Pope Pius XI, a relatively tough
character, played
ball with Mussolini,
but the tables were
not far from even.
Italy only became
a nation shortly
before this period,
and few there
knew
exactly
what to expect.
Mussolini gave
an aura of
respect
and
control,
and
many allowed
him to have
his run, some
expecting it
to be short
and meaningless. Pius
sought to
protect his
Church
rather than stand for various
sets of values, probably thinking the dictator’s run
would be short. He struck a deal with the dictator, a
Concordat, which effectively did shelter most of the
Church as a practical entity. His Secretary of State in that
process was Eugenio Pacelli, who would be Pius XII.
When the deal began to go sour, Pius XI wanted out, but
his health cut short his intentions. Pacelli apparently did
not get the idea that contracting with dictators was dangerous. David Cornwell’s Hitler’s Pope discusses
Pacelli’s Concordat with the German dictator, and the
gruesome events which followed. Despite that work’s
inflammatory title, the difference between these stories is
essentially the difference between farce and tragedy. One
of the basic challenges of evil is that those who have and
use morals find it hard to believe others may act as
wickedly as they do. Not every martinet in a uniform is
laughable.
Raylan: A Novel
Elmore Leonard, William Morrow 2012, Paper,
263 pages, $14.99
Strictly summer reading here. In the tradition of Charles
Willeford, (Miami Blues), and Leonard Mosely, this is
just street tough hard talking Federal Marshall stuff. It is
set in Kentucky, coal mining country, which is not usually a scene of street talking, however. The language is not
as rough as it might be, just around the edges. Sometimes
the dialects interfere with a quick understanding of the
mysteries being investigated, but it is best just to roll with
that. There are actually three stories here, and given that
this has now become a TV series, (Justified), that is
explainable. It does breach some continuity, however. Not
safe for kids, but for accompaniment to the beach, entertaining and no strain on the brain.
16 BRIEFCASE • June 2014