Tort Reform and Jury Instructions Oklahoma Product Liability Law

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Volume 86
u
No. 11
u
April 18, 2 015
ALSO
INSIDE
Tort Reform and Jury Instructions
Oklahoma Product Liability Law
Diversity Awards • JNC Elections
Immigration Attorneys Helping
Employment Lawyers and GCs
since 1996
• Immigration Worksite Enforcement
• Employment Visas
• I-9 and E-Verify Solutions
• Immigrant Investor Solutions
Call us 405.528.2222
www.farzaneh.com
PROGRAM PLANNER/MODERATOR:
S. Rachel Pappy, Tulsa
Get the answers to the questions you get at cocktail
parties! This diverse group of practitioners will gather
from their wealth of experience and practical knowledge
to deliver a compelling and informative seminar.
OKLAHOMA CITY PROGRAM
OKLAHOM
8:30 a.m. Registration and Continental Breakfast
9:00
Rachel Pappy, Law Office of Roderick H
Polston, P.C.
Unique Cases Before the IRS
9:50
Break
10:00
Noel Tucker, The Tucker Law Firm
Hot Topics in Family Law
10:50
Joe Balkenbush, Oklahoma Bar Association
Hot Topics in Ethics
11:40
Networking lunch (included in registration)
12:10 p.m. Christopher Papin, Burnett & Brown, PLLC
Hot Topics in Trusts & Estates
1:00
Elaine Dowling, Dowling Law Office
Hot Topics in Bankruptcy
1:50
Break
2:00
Billy Coyle, Coyle Law Firm Topic
Hot Topics in Criminal Law
2:50
Adjourn
OKC - April 30, 2015
Oklahoma Bar Center, 1901 N. Lincoln Blvd.
TULSA - May 1, 2015
OSU-Tulsa, 700 N. Greenwood Ave., Room 150
TULSA PROGRAM
8:30 a.m. Registration and Continental Breakfast
9:00
Ashlee Crouch & Meilssa Purvis, Law Office of
Roderick H Polston, P.C.
Unique Cases Before the IRS
9:50
Break
10:00
William “Bill” Kellough
Character Evidence: When and How to Use it
10:50
Ashlee Crouch & Meilssa Purvis, Law Office of
Roderick H Polston, P.C.
Defending Your Client Against the IRS
11:40
Networking lunch (included in registration)
12:10 p.m. Carrie Luelling, Law Office of Carrie Luelling
Opening Statements and Impeachment: New
Techniques for Teaching Your Case
1:00
Rod Yancy, RTY Law
Tools You Need to Sharpen Your Estate
Planning Skills
1:50
Break
2:00
Gene Thompson, Denney & Stinnett, PLLC
Bankruptcy: Annual Update of the Annual
Update: What You Need to Know Without
Spending 2 days at the Oklahoma Bar Center
2:50
Adjourn
This course has been approved by the Oklahoma Bar Association
Mandatory Continuing Legal Education Commission for 6 hours of
mandatory CLE credit, including 1 hours of ethics. The webcast
only has been approved for 5 hours of Texas credit including .75
hours of ethics.
$150 for early-bird registrations with payment received at least four
full business days prior to the seminar date; $175 for registrations
with payment received within four full business days of the seminar
date. To receive a $10 live program discount register online at www.okbar.org/members/cle. The OKC program will be webcast, but
no discount is available.
Follow OBA/CLE on Facebook, Twitter or LinkedIn
to stay up-to-date with all the lastest information.
REGISTER ONLINE AT WWW.OKBAR.ORG/MEMBERS/CLE
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
769
pg. 842
Theme:
Law Day
contents
April 18, 2015 • Vol. 86 • No. 11
Bombing
ni
An versary
Departments
772
859
860
861
865
868
871
873
876
879
881
883
884
888
Cover Art: A 3-D rendering of the
Magna Carta Memorial by Austin Buchanan,
3rd grade, Clara Reynolds Elementary, Harrah
Features
775
From the President
From the Executive Director
Editorial Calendar
Law Practice Tips
OBA Board of Governors Actions
Oklahoma Bar Foundation News
Young Lawyers Division
Access to Justice
For Your Information
Bench and Bar Briefs
In Memoriam
In Memoriam: Winfrey Houston
What’s Online
The Back Page
Plus
821 Tort Reform and Jury Instructions
By Charles W. Adams
830
Foundations of the Law:
The Magna Carta and Beyond
An Overview of Oklahoma Product
Liability Law
y Chris Pearson, Thomas G. Wolfe,
B
Lyndon Whitmire and Cody J. Cooper
By Jennifer Prilliman and Richard Vreeland
779
Law Day 2015 Contest Winners
808
County Law Day Chairpersons
810
County Bar Association Activities
816
Chief Justice Issues Law Day Directive
842The Time is 20 Years Past 9:02 a.m.
By Robert Don Gifford
844
Mock Trial Program Concludes
Another Successful Year
By Daniel Couch
848 New OBA Master Lawyers Section:
BAM! Become a Member – Become a
Master
817 Oklahoma’s State Law Day
Proclamation
By Ron Main
pg. 844
Mock Trial
850
Diversity Awards: Committee
Encourages Nominations
852Judicial Nominating Commission
Elections
855 Legislative Report
By Duchess Bartmess
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
771
FROM THE PRESIDENT
‘Do Better’
Work Remains to Embrace Law Day Principles
By David Poarch
In 1958
President Dwight D. Eisenhower proclaimed
the first day of May as Law Day, U.S.A. Three years later,
May 1 was designated Law Day, U.S.A. with the enactment of
36 U.S.C. §113, declaring it “a special day of celebration by the
people of the United States in appreciation of their liberties and
the reaffirmation of their loyalty to the United States and of
their rededication to the ideals of equality and justice under law
in their relations with each other and with other countries; and
for the cultivation of the respect for law that is so vital to the
democratic way of life.”
fact we profess to “hold these truths
to be self-evident, that all men are
created equal, that they are endowed by their Creator with certain unalienable Rights, that among
these are Life, Liberty and the pursuit of Happiness,” we are yet unable to actually live that expression
of our common ethos first pronounced on July 4, 1776.
We have celebrated Law Day all across
our nation for more than 55 years, and we
do so again this year in conjunction with
our celebration of the 800th anniversary of
the Magna Carta, the foundational document from which our democratic form of
government emerged in this country,
nurtured by our common reverence and
respect for equality, justice and the rule
of law — the universal underpinning of
our legal system. It is the imperative that
neither the ruled nor the ruler is above
the law.
Difficult circumstances,
like these recent events,
pose difficult questions
and present difficult issues
deserving our singular
quiet contemplation, as
well as insightful debate in
the public square. Seemingly, there are few if any
answers that do not begin
with the necessary personal resolve in each of us to
“do better.” As lawyers, we
do better by actually being better
and modeling that behavior. As
lawyers, we are leading others
whether we want to or not.
As lawyers,
we are leading
others whether
we want to
or not.
With such dignified principles at the core
of our “nation of laws, and not of men,”
why have we not come further along in our
relations with one another? Why do we still
struggle to first find value in our fellow citizens — before we find fault? And why do
we behave as if the company we keep possesses some superior right or entitlement to
equality, justice and liberty — more than
exists in our neighbors, particularly those
we don’t know?
President Poarch
practices in Norman.
[email protected]
405-329-6600
772
Recent racially charged events on the
campus of the University of Oklahoma bring
these questions into sharp focus; a sad reminder that although much has changed,
much has not over the millennia. With this,
and similar recent events across the nation,
we are again reminded that in spite of the
The Oklahoma Bar Journal
So, as we join others to celebrate
Law Day in appreciation of our liberties, again rededicating ourselves
to the ideals of equality and justice
under the law, I am reminded of
Justice Steven Taylor’s oft-repeated
observation that since the founding
of this country, when good things
happened, when the rights and liberties of its citizens were protected,
lawyers were there. With that in
mind, as we again celebrate Law
Day, I encourage each of you to be
there, leading the way in your
community.
Vol. 86 — No. 11 — 4/18/2015
THE OKLAHOMA BAR JOURNAL is a
publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2015
Oklahoma Bar Association. Statements or
opinions expressed herein are those of the
authors and do not necessarily reflect those
of the Oklahoma Bar Association, its officers,
Board of Governors, Board of Editors or
staff. Although advertising copy is reviewed,
no endorsement of any product or service
offered by any advertisement is intended or
implied by publication. Advertisers are solely
responsible for the content of their ads, and
the OBA reserves the right to edit or reject
any advertising copy for any reason.
Legal articles carried in THE OKLAHOMA
BAR JOURNAL are selected by the Board of
Editors. Information about submissions can
be found at www.okbar.org.
BAR Center Staff
John Morris Williams, Executive Director;
Gina L. Hendryx, General Counsel; Joe
Balkenbush, Ethics Counsel; Jim Calloway,
Director of Management Assistance Program;
Craig D. Combs, Director of Administration;
Susan Damron Krug, Director of Educational
Programs; Beverly Petry Lewis, Administrator
MCLE Commission; Carol A. Manning, Director
of Communications; Robbin Watson, Director
of Information Technology; Jane McConnell,
Coordinator Law-related Education; Loraine
Dillinder Farabow, Tommy Humphries,
Debbie Maddox, Katherine Ogden,
Steve Sullins, Assistant General Counsels
Manni Arzola, Gary Berger, Debbie Brink,
Laura Brown, Emily Buchanan, Tanner
Condley, Nickie Day, Ben Douglas, Dieadra
Florence, Johnny Marie Floyd, Matt Gayle,
Marley Harris, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra Jenkins,
Durrel Lattimore, Mackenzie McDaniel,
Renee Montgomery, Sharon Orth, Lori
Rasmussen, Wanda F. Reece, Tracy
Sanders, Mark Schneidewent, William
Thames, Jan Thompson, Krystal Willis
& Roberta Yarbrough
Oklahoma Bar Association 405-416-7000
Toll Free 800-522-8065
FAX 405-416-7001
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OBJ & Communications 405-416-7004
Board of Bar Examiners 405-416-7075
Oklahoma Bar Foundation 405-416-7070
www.okbar.org
Vol. 86 — No. 11 — 4/18/2015
Volume 86 u No. 11 u April 18, 2015
JOURNAL STAFF
BOARD OF EDITORS
JOHN MORRIS WILLIAMS,
Editor-in-Chief
[email protected]
MELISSA DELACERDA,
Stillwater, Chair
CAROL A. MANNING, Editor
[email protected]
RENÉE DEMOSS, Tulsa
LORI RASMUSSEN,
Assistant Editor
[email protected]
ERIN MEANS, Moore
EMILY BUCHANAN,
Advertising Manager
[email protected]
MARK RAMSEY, Claremore
MACKENZIE MCDANIEL,
Communications Specialist
[email protected]
LESLIE TAYLOR, Ada
DIETMAR K. CAUDLE, Lawton
AMANDA GRANT, Spiro
SHANNON L. PRESCOTT,
Okmulgee
MEGAN L. SIMPSON,
Buffalo
JUDGE ALLEN J. WELCH,
Oklahoma City
OFFICERS &
BOARD OF GOVERNORS
DAVID A. POARCH JR., President, Norman;
GLENN A. DEVOLL, Vice President, Oklahoma City; GARVIN ISAACS JR., President-Elect, Oklahoma City;
RENÉE DEMOSS, Immediate Past President, Tulsa; DEIRDRE
O’NEIL DEXTER, Sand Springs; JAMES R. GOTWALS, Tulsa;
ROBERT D. GIFFORD II, Oklahoma City; DOUGLAS L. JACKSON,
Enid; JOHN W. KINSLOW, Lawton; RICKEY J. KNIGHTON II,
Norman; JAMES R. MARSHALL, Shawnee; SONJA R. PORTER,
Oklahoma City; KEVIN T. SAIN, Idabel; RICHARD D. STEVENS,
Norman; ROY D. TUCKER, Muskogee; JOHN M. WEEDN,
Miami; LEANNE MCGILL, Edmond, Chairperson, OBA
Young Lawyers Division
The Oklahoma Bar Journal (ISSN 0030-1655) is published three
times a month in January, February, March, April, May, August,
September, October November and December and bimonthly in
June and July by the Oklahoma Bar Association, 1901 N. Lincoln
Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage
paid at Oklahoma City, Okla.
Subscriptions $60 per year except for law students registered with
the OBA and senior members who may subscribe for $25; all active
members included in dues. Single copies: $3
Postmaster Send address changes to the Oklahoma Bar Association,
P.O. Box 53036, Oklahoma City, OK 73152-3036.
The Oklahoma Bar Journal
773
774
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
2015
Foundations of the Law: The
Magna Carta and Beyond
By Jennifer Prilliman and Richard Vreeland
T
here is not a more apt theme for Law Day than this year’s,
“Foundations of the Law: The Magna Carta and Beyond.”
Eight hundred years ago, the signing of the Magna Carta
laid the foundation for the rule of law in England and later the
United States and United Kingdom. Law Day, at its core, is a
reminder and a celebration of the role the rule of law plays in our
country. The checks and balances among the branches found in
our Constitution are a direct extension of Magna Carta’s core
tenet that leaders (lawmakers and enforcers) are subject to the
same laws and consequences as the public. Law Day should also
make us pause and reflect on the progress still to be made towards
true equality for all under the law.
The national observance of Law Day began
in Oklahoma. Wewoka attorney and past OBA
President Hicks Epton developed the idea for
Law Day in the late 1950s, and it has evolved
Oklahoma County Bar Association volunteer
lawyers staff the free legal advice hotline at the
OETA studio during the 2014 Ask A Lawyer event.
Vol. 86 — No. 11 — 4/18/2015
into a national celebration. This year Oklahomans will observe Law Day on April 30 with
activities throughout the state. Oklahoma’s
Law Day theme coincides with the American
Bar Association’s commemoration of the 800th
anniversary of the signing of the Magna
Carta. Many activities will highlight the history of Magna Carta.
Law Day provides lawyers an opportunity to
reach out to the public and shape a positive
view of lawyers and the legal system. Be sure
to call your county bar leaders to learn more
about the events in your county; a summary of
planned activities begins on page 810. If an
event is not planned in your county — there is
still time! Contact the OBA Law Day committee for ideas and assistance putting together a
Law Day event.
The Oklahoma Bar Journal
775
Lawyer
Ask A
H
Thursday, April 30
7-8 p.m.
OETA stations
Featuring
Segments on:
I Immigration
I Wind Energy
I Bullying in Schools
Hosted and
Moderated by
Dick Pryor
Special Guests:
Oklahoma Supreme Court
Chief Justice John Reif
Immigration lawyer Paola Bennett discusses
the legal status of one of her young clients
during taping of the Ask A Lawyer TV show.
The Law Day annual art and writing contests
for students in kindergarten through 12th
grade was a success with more than 1,200
entries. On March 31, contest winners from
all over Oklahoma gathered in the Supreme
Court’s ceremonial chambers at the State
Capitol. Students met Chief Justice John Reif,
received their awards and toured the Capitol.
A traveling exhibit about the history of the
Magna Carta and a public discussion of the
Magna Carta in the House chambers took place
on the same day. It was a great opportunity for
students and their families!
ASK A LAWYER TV SHOW
The Ask A Lawyer show is in the final stages
of production at the time of this writing. Every
year the show highlights important legal topics
and the impact lawyers make on the lives of
individuals. With the help of all our attorney
volunteers, we will continue to offer 12 hours
of nonstop free legal advice.
The Ask A Lawyer television show is set to
air Thursday, April 30, at 7 p.m. on OETA
stations across the state. This year’s show
covers a wide range of topics of interest to
Oklahomans.
OBA President
David Poarch
Law Professor Chris Tytanic is interviewed
about wind energy during the Ask A Lawyer
TV show.
776
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
The show will examine
ted hundreds of essays demonstrating an excellent grasp
civil rights law and its interof the subject matter. The
section with schools. We will
high quality work made
hear from two young men
judging the contest a difficult
who successfully pursued a
task for Law Day Committee
civil rights discrimination
members! The winners have
suit against their high
been announced, and the
school. We will also hear
winning entries can be
from lawyers representing
viewed at www.okbar.org
schools, the state and indiViewers of the Ask A Lawyer TV show
and on page 779 of this issue.
viduals. They will share
will hear OBA President David Poarch diswhat parents, teachers and
FREE LEGAL ADVICE
schools need to be aware of cuss lawyer provided community service.
We are well underway in
and learn how to prevent
preparing
for the statewide
civil rights violations.
Ask A Lawyer call-in event, to be held on
Many Oklahomans are directly impacted or
Thursday, April 30, when the public can call in
have a friend or loved one directly impacted
for free legal advice for 12 nonstop hours. The
by the Deferred Action for Childhood Arrivals
Ask A Lawyer call-in event is a great way for
(DACA) program. In this segment you will
all Oklahoma lawyers to participate in the celehear from two young women who have benebration of Law Day. This annual event gives us
fited from this program and attorneys reprea unique opportunity to provide a valuable
senting immigration clients
community service while proand the United States.
moting a positive public image
of attorneys and the OBA.
Wind energy is a growing
industry in Oklahoma. The
Callers statewide will be able
show speaks to landowners
to reach an attorney throughand attorneys about their
out the day on April 30. The
experiences with the industry
OBA and the committee work
and what you need to know
with each county’s Law Day
about wind energy leases
chairperson in setting up a netand production
work of local phone numbers
during the broadcast. Volunteer
Chief Justice John Reif and
attorneys in each participating
OBA President David Poarch
county staff the phones and
join in the celebration of Law
answer questions for a predeDay. Justice Reif shares his
termined time period. Oklahothoughts on the Magna Carta
Wind energy is a growing indus- ma and Tulsa County attorneys
and recognizes the student con- try in Oklahoma, and many of our
work together to staff the
test winners and their winning state’s property owners have questoll-free, statewide telephone
artwork. President Poarch
tions about this developing area of
number from 9 a.m. – 9 p.m.
shares with the viewers
law. The OBA Law Day Committee
information about the good
Your help is needed to make
worked with energy law experts to
work lawyers are doing
this
community service project
produce a segment on this topic for
across the state.
a
success.
It takes a total of 30
the Ask a Lawyer TV show.
attorneys
for
each two-hour
CONTESTS AND
shift to fully staff the statewide
ACTIVITIES
number. That effort, combined with the local
This year more than 1,200 students from
county bars, creates a huge need for attorneys
across the state submitted entries centered on
to step forward. To volunteer, contact your
this year’s theme, “Foundations of the Law:
local county Law Day chairperson and the
The Magna Carta and Beyond.” This year, the
activities planned for each county are listed
focus continued on writing as we asked firstin a related story in this issue.
12th grades to focus on different aspects of the
The Law Day Committee has again commitLaw Day theme through grade appropriate
ted
to branch out to the Latino community by
writing prompts. Oklahoma’s students submitVol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
777
offering free legal
advice in Spanish.
Each shift in Tulsa
and Oklahoma City
will need Spanishspeaking volunteers. If you speak
Spanish or know
non-attorneys who
would volunteer to
translate, we need
your help!
or Jennifer Prilliman, 405-208-5174,
[email protected]
DIRECTIVE AND
OBA President-Elect
PROCLAMATION Garvin Isaacs appears in
the Ask A Lawyer TV show
Continuing an
OBA Law Day tra- to share the story of two
dition, Chief Justice young clients whose civil
John Reif signed the rights were violated during
Law Day Directive, a school bullying incident.
encouraging courts
to host Law Day events. Gov. Mary Fallin has
again this year signed a proclamation designating May 1, 2015, as Law Day in Oklahoma.
We hope that you will participate in Law
Day, whether it is volunteering to provide free
legal advice in your county or making a presentation to a local school group or organization. With the commitment of the Law Day
Committee, county Law Day chairpersons and
the help of each and every one of you, this
year’s Law Day will be a great celebration
highlighting the many roles OBA members
are involved in our communities.
About The AuthorS
GET INVOLVED
As we get ready to celebrate Law Day, the
OBA Law Day Committee is already preparing
for next year’s Law Day activities. If you
have ideas for next year’s Law Day or just
want to be involved then join us on this fun,
yet hardworking committee. If you would
like to join you can contact Richard Vreeland,
405-360-6631, [email protected];
Jennifer Prilliman is the associate director and law library professor for the Oklahoma City
University School of Law Library.
She serves as co-chair of the
OBA Law Day Committee. She
is a 2005 graduate of the OU
College of Law.
Richard Vreeland is the managing attorney for the Norman
and Shawnee offices of Legal Aid
Services of Oklahoma. He serves
as co-chair of the OBA Law Day
Committee. He is a 2006 graduate of the OU College of Law.
Oklahoma Supreme Court Chief Justice John Reif welcomes Law Day contest first place winners
to a recognition ceremony at the State Capitol. Also attending were OBA President David Poarch
along with Law Day Committee Co-Chairs Richard Vreeland and Jennifer Prilliman.
778
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
LAW DAY
2015
CONTEST WINNERS
The OBA Law Day Committee would like to thank Oklahoma educators, students and their
families for participating in the 2015 Law Day Contests. More than 1,200 entries were
received from Oklahoma students across the state.
This year’s theme, “Foundations of the Law: The Magna Carta and Beyond.” recognizes
the 800th anniversary of a milestone in legal history, the sealing of the Magna Carta at
Runnymede, England, in 1215. It encourages Oklahoma students to remember the important
role the Magna Carta plays in our civic education, the roots of our freedom, and to continue
fighting to advance human rights.
Writing prompts were created for students first through 12th grade. Each prompt was
tailored to align with the Oklahoma State Department of Education social studies standards
and with the 2015 Law Day theme.
We also continued our art contest with a coloring contest for pre-kindergarteners
and kindergarteners and a free-form art contest for first through 12th grade. In the freeform category, students were allowed to enter video productions, mixed media artwork,
original music, creative writing, poetry, photography, collage or anything else that relates to
the contest theme.
One student was designated the “grand prize winner” for having submitted the best overall
entry from all grades. County bar associations will officially present the contest winners in
their county with plaques and prize money later this school year.
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
779
Grand Prize Contest Winner
Karina Feng
Creating the United States: The Foundation,
Formation and Transformation of the
American Nation
Whittier Middle School, Norman
Teacher: Cindy Castell
“Honest conviction is my courage; the Constitution is my guide.”
These words by Andrew Johnson illustrate the role the United States
Constitution plays in our lives. However, many of the principles expressed in
the Constitution were drawn from another document that was created nearly
six centuries before. The Magna Carta was written by barons of England in
1215 to lower King John’s power and protect the well being of the people.
Many of the most important principles expressed in the Magna Carta made
its way into the US Constitution when the Founding Fathers wrote it. Without
the Magna Carta, the US Constitution wouldn’t be as effective as it is today.
The most important principles were the concepts of consent of the governed,
higher law, due process, and the separation of the Church from the government for all citizens.
First, the Magna Carta and the US Constitution both incorporate the concept of consent of the governed. In the Magna Carta, “no ‘scutage’ [tax] or ‘aid’ may be levied in our
kingdom without its general consent.” One of the Grievances Against the King is “For imposing taxes on
us without our consent.” The Declaration of Independence listed the grievances against the King which
the Constitution protected the people against. Both of these sections from the two texts takes away the
power of the government to tax the people without their consent. Without this law, the government
would become oppressive and the democracy would fail. Another example of “consent of the governed”
is “For a trivial offense, a free man shall be fined only in proportion to the degree of his offense, and for
a serious one correspondingly, but not so heavily as to deprive him of his livelihood” and “Excessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The
punishment fits the crime so that the government can do its job of protecting the people but the law
also protects the citizens from unnecessary torture from the government. The Magna Carta protected
the Barons from the King’s cruel leadership and set an example for the United States Government.
Next, the Magna Carta also has the principles of due process and a fair trial by jury which influenced
the Founding Fathers when they wrote the Constitution. According to the Magna Carta “No free man
shall be seized or imprisoned…except by the lawful judgement of his equals or by the law of the land.”
The Constitution states “the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State.” Both texts give the people the right to be judged by a jury of their peers. This is also
an example of due process. Due process is the most influential part of the Constitution. The Magna
Carta also says “In future nothing shall be paid or accepted for the issue of a writ of inquisition of life or
limbs. It shall be given gratis, and not refused” which provided the background for the Founding Fathers
to place in the Constitution “nor be deprived of life, liberty, or property without due process of law.” The
concept of due process in the government ensures that each person is treated equally and fairly. Without due process, the country would be in chaos and the value of the courts would go down. Imagine
what the US would be like if the Magna Carta had not had due
process; complete mayhem.
Read the rest of Karina’s story at www.okbar.org.
780
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Coloring Contest Winners
Pre-Kindergarten
1st Place
Wyatt Everts
Olive Elementary, Drumright
Teacher: Terisa Clark
2nd Place
Madison Pugh
Temple Elementary, Temple
Teacher: Terri Hooper
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
781
Coloring Contest Winners
Kindergarten
1st Place
Cali Thomason
Graham-Dustin Elementary, Dustin
Teacher: Barbara Neal
2nd Place
Logan Richards
Seiling Elementary School,
Seiling
Teacher: Vanessa Unwin
782
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Coloring Contest Winners
First Grade
1st Place
Camden Villagrana
Horace Mann Elementary, Duncan
Teacher: Kendra Dorrough
2nd Place
Audrey Trahan
Frontier Elementary School,
Edmond
Teacher: Melissa Estes
Vol. 86 — No. 11 — 4/18/2015
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783
Writing Contest Winners
First Grade
My Favorite Heroine
My favorite heroine is Betsy Ross. I like
Betsy Ross because she made the first
United States flag. I also like George
Washington because he was the first president, but I chose Betsy Ross. There were
not a lot of girls in early history. That’s
why she is important to me. I think the
flag is important because it has states on
it. The stars are the states. Making the flag
was an important job.
1st Place
Audrey Trahan
Frontier Elementary School,
Edmond
Teacher: Melissa Estes
2nd Place
Cheyenne Vining
Hope Christian Academy, Skiatook
Teacher: Pam Robinson
To read Cheyenne’s story,
go to www.okbar.org.
784
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Coloring Contest Winners
Second Grade
1st place
Hannah Snyder
Frontier Elementary School,
Edmond
Teacher: Melissa Estes
2nd Place
Reese
Hollingsworth
Frontier Elementary School,
Edmond
Teacher: Melissa Estes
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
785
Writing Contest Winners
Second Grade
Understanding History
is Important
It is important to understand the history of the
United States so you can learn from people’s
mistakes that they made. We can learn about
what other people did, and we can tell others
about history. When we know history, we can
pass on information to those that come after us.
We need to know how we became the
United States, how our laws are made, and
learn about presidents. We need to learn about
people who invented things so we can become
smarter. Learning history is about wars and
government, and how the government became
the government.
1st place
Olivia Snyder
Frontier Elementary School,
Edmond
We need to learn about the Bill of Rights, so
soldiers can’t just come and tell you they are
going to sleep in your house and you might
have to get out.
Teacher: Melissa Estes
2nd Place
Sydney
Dunkleberger
Frontier Elementary School,
Edmond
Teacher: Melissa Estes
To read Sydney’s story, go to
www.okbar.org.
786
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Art Contest Winners • Third Grade
1st Place
Austin Buchanan
Clara Reynolds Elementary, Harrah
Teacher: Susan Underwood
2nd Place
Alice Hsu
Frontier Elementary School,
Edmond
Teacher: Melissa Estes
2nd Place
Rachel Fils-Aime
Frontier Elementary School,
Edmond
Teacher: Melissa Estes
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
787
Writing Contest Winners
Third Grade
Why I Think the Constitution
is Important
I think the Constitution is important
because it gives us our rights. It gives us our freedom
and it protects us. We would be a horrible country without it. Who would want to live here if this was a horrible
country? But
some people do live in horrible countries where they don’t
have rights and freedom like we do. That’s why I’m glad to
have the Constitution!
The Constitution gives us freedom. If I didn’t have any
freedom I would not live a good life. The Founding Fathers
of our country thought we should have freedoms. Like freedom of speech, which means that I can say that I agree or
disagree about anything. We also have the freedom of press,
which means I can write anything I want or feel in a magazine, book, newspaper or the internet. We also have the
freedom of religion, which means I can worship any God I
want and no one can tell me not to.
1st Place
Callen Villagrana
Horace Mann Elementary,
Duncan
Teacher: Kim Wilcox
I think that the Constitution is also important because it
protects us. A long time ago there were slaves here and
they couldn’t do anything about it. All they did was work. They had to be slaves because
they didn’t have rights. They were treated like animals. Then people decided to do something about it and they protested. Then they gave African Americans their rights and they
protected them from harm.
The Constitution also gives us our rights. Some of those rights are being able to have
guns, the right to vote, and the right to assemble. The right to vote is important to me
because we get to choose our president. And in other countries if the president was
mean then they couldn’t do anything about it because they didn’t have the right to vote.
And that is why I think that the Constitution is important. It gives us rights, freedom and
it protects us. Without it this beautiful country would be messed up and a down right horrible place. When people don’t have these rights then people die, people are hurt, or they
are sent to prison for little things that we take for granted. That is why I’m so excited to
have the Constitution!
2nd Place
Connor Watkins
Covenant Community School, Stillwater
Teacher: Tabatha Watkins
To read Connor’s story, go to www.okbar.org.
788
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Art Contest Winners
Fourth Grade
1st Place
Griffin Kidd
Horace Mann Elementary, Duncan
Teacher: Susie Benson
2nd Place
Kady Hansen
Covenant Community School,
Stillwater
Teacher: Tabatha Watkins
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
789
Writing Contest Winners
Fourth Grade
The First Amendment
I believe the first amendment is the most important because it
covers most of the freedoms that make us independent from others
and our country different from other countries.
The first right the amendment covers is the freedom of speech.
This allows you to say your own opinions and beliefs even though it
may be negative to the government or anyone else. Other countries
are against this. If you went to these countries and said something
about their government that they didn’t like, you may face consequences and perhaps be killed.
The second right the first amendment covers is the freedom of
religion. This allows anyone to be the religion that they choose. This
also recognizes that in school or in public no one should be forced
to pray at any time. Cases have been into the Supreme Court
over the matter of children being forced to pray in school. It was
settled that to force a child to pray would be a violation of the
first amendment.
The third right that it covers is the freedom of the press. This
assures that reporters and anyone that writes can share their
opinion in their writing and reporting even though it may be
offensive or hurtful. In other countries, books, movies, and other
published information must be watched or read by the government before it is published or released.
1st Place
Rachel Rayburn
Frontier Elementary School,
Edmond
Teacher: Melissa Estes
The fourth right it covers is the freedom of assembly. This lets anyone assemble or gather a
group of people. Against or with an opinion, government idea or not, and as long as it does
not harm others in any way and it is not a violation of law, you could do it. An example is
when a simple winning of a baseball game was celebrated and it got so out of hand police had
to get involved. This is what you shouldn’t do.
Last but not least, the fifth right the first amendment covers is the freedom of petition. This
allows you to have an opinion and then have people sign a piece of paper stating that they
agree and that they think this matter should be addressed. You are able to have any opinion
you want people to agree with. However, you are not able to force anyone to agree or sign this
paper. This cannot lead to violence and you cannot harm others during this activity.
2nd Place
Kady Hansen
Covenant Community School, Stillwater
Teacher: Tabatha Watkins
To read Kady’s story, go to www.okbar.org.
790
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Art Contest Winners
Fifth Grade
1st Place
Thomas Buchanan
Russell Babb Elementary, Harrah
Teacher: Pam Holland
2nd Place
Zane Gailey
Covenant Community School,
Stillwater
Teacher: Ashlee Mcdaniel
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
791
Writing Contest Winners
Fifth Grade
U.S. Constitution
It is important to know about the U.S. Constitution. The
U.S. Constitution outlines limited government, the three
branches of government, and Separation of government. It
is really important to know those things.
The U.S. Constitution outlines limited government. It’s
important to have limited government because if someone
thinks they are stronger than the other they can do hurtful
things. Also, it’s good to have National and State government share the powers. Another thing is no government has more power than the other. Or it could lead
to bad things. That’s why it is important to know about
limited government.
The U.S. Constitution made the three branches of
government. First of all, there are the Legislative, Executive, and Judicial branch. No one branch can be more
powerful. They also approve the laws to make sure
they are good. So the three branches of government
are vital to the United States.
1st Place
Hannah Hardcastle
Nichols Elementary School, Miami
Teacher: Shanna Sanders
Then there is the Separation of power. It separates
the three branches of government. It also keeps the
three branches from controlling the government. As
you can see the Separation of powers are really
important to the branches of government. Also every
branch has limited power because of the Separation
of Power. It is important to know that the Separation
of Power is the main idea of the three branches of
government.
That’s why limited government, three branches of
government, and Separation of Power are important
to the U.S. Constitution
2nd Place
Lauren Heathcock
Frontier Elementary School, Edmond
Teacher: Melissa Estes
To read Lauren’s story,
go to www.okbar.org.
792
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Art Contest Winners
Sixth Grade
1st Place
Palmer Strubhar
Piedmont Intermediate, Piedmont
To view Palmer’s video,
visit www.okbar.org.
2nd Place
Seneca Smith
Covenant Community School,
Stillwater
Teacher: Kelly Carman
Writing Contest Winners • Sixth Grade
The Magna Carta and the U.S. Constitution
The Magna Carta is an important document written by King
John, Pope Innocent III, and some of the barons that lived in England in 1215. King John actually did not want to make the Magna
Carta because he liked having a lot of power over his people and
taxing the people excessively. The King John was forced by his
people to sign the Magna Carta. This event inspired the story of
Robin Hood. The Magna Carta influenced Human rights, allowed
nobody to be above the law, and Habeas corpus.
The Magna Carta contained the human rights of women that
lived in England. Those rights said that women get more freedom
in their wedding. They were given the choice to marry or not.
Widows were no longer forced to get married and give up
1st Place
their possessions. This was a major step in women’s rights
according to Magna Carta Canada 2015. They were free however many times they wanted. In war, noblewomen were not
allowed to be captured and taken to be a wife. These rights
Hope Christian Academy, Skiatook
are important because they have choices and get to be more
Teacher: Cindy Haley
independent.
Robert Dobbins
Read the rest of Robert’s story at www.okbar.org.
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
793
Art Contest Winners
Seventh Grade
1st Place
Ashley Benjamin
Oklahoma Bible Academy, Enid
Teacher: Charlotte Williams
2nd Place
Hunter Wyatt
Covenant Community School, Stillwater
Teacher: Kelly Carman
794
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Writing Contest Winners
Seventh Grade
Magna Carta and the U.S. Constitution
Both the Magna Carta and the U.S. Constitution are very important
documents in the history of England and America. The Magna Carta
was signed by King John of England in 1215. Under the Magna
Carta, the King was forced to give up specific rights on how the
law worked and that the law applied to the King also. The U.S.
Constitution was created on September 17, 1787 and is the law of
the United States of America. The document replaced the Articles of
Confederation. There are many similarities and differences between
the two documents.
Both documents that were signed were for the protection and
rights of the citizens of each country. The Magna Carta protected
the rights of all free people to be able to own and inherit land
and to not have to have taxes which were unreasonably high.
The Bill of Rights gives protection of the individual liberty and
justice for American people and restricts the powers of the government the document creates. Also, King John in the Magna
Duncan Middle School, Duncan
Carta made a promise to his people that he would not abuse his
power by putting them in jail unless they were convicted by
Teacher: Stacy Smith
other people. The U.S. Constitution has the Sixth Amendment,
which gives all Americans the right to a fair trial by jury. Both
documents give the people the right to Due Process which
means all prosecutions and legal action must be fair and the law against them must be understandable. Finally, both prevent Cruel and Unusual Punishment. Section 20 of the Magna Carta states that
the King could not inflict cruel punishment against citizens. King John agreed that the punishment
should equal the crime. The Eighth Amendment in the U.S. Constitution includes the same law.
1st Place
Jensen Link
There are differences between the Magna Carta and the U.S. Constitution also. First, the Magna
Carta was not meant for ordinary people, the Constitution was. The Magna Carta insured the rights of
the feudal lords and barons against the power of the King. The U.S. Constitution insured the right of
every American citizen and not just the people with a lot of money and gold. Second, the provisions in
the U.S. Constitution are different from the Magna Carta. The Magna Carta does not outline rights or
freedoms for regular citizens, only a few for lower people and the King to live under the law also. The
U.S. Constitution outlines freedoms and guaranteed rights for all citizens including the President and
people in government.
In conclusion, both documents began a shift in creating governments that were less one-sided. The
Magna Carta influenced the development of common law and the Founding Fathers when they were
writing the U.S. Constitution. Both went through many changes over time.
2nd Place
Katie McQuay
Hope Christian Academy, Skiatook • Teacher: Cindy Haley
To read Katie’s story, visit www.okbar.org.
Vol. 86 — No. 11 — 4/18/2015
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795
Art Contest Winners • Eighth Grade
1st Place
Jonathan Tonnell
Classical Conversations
Home School, Enid
Teacher: Brian Tonnell
1st Place
Gabrielle Jungers,
Maliha Maisha,
Mina Ruyle and
Helena Singleton
Carver Middle School, Tulsa
Teacher: Anthony J. Cherry
To view their video,
visit www.okbar.org.
2nd Place
Emily Moore
Oklahoma Bible Academy, Enid
Teacher: Charlotte Williams
796
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Writing Contest Winners • Eighth Grade
How the Constitution Incorporated
the Magna Carta
The Magna Carta, an English charter, inspired sections of
the American constitution. It was written in 1215 and contains statements such as “and the city of London shall have
all it ancient liberties and free customs, as well by land as
by water; furthermore, we decree and grant that all other cities, boroughs, towns, and ports shall have all their liberties
and free customs.” And “To no one will we sell, to no one
will we refuse or delay, right or justice.” The people of England felt that they were being treated unfairly and that the
king was not above the law. They wrote this charter stating
the rights that they believed the people should have and
how things should be run. These characteristics later
influenced the United States constitution and were the
materials used to make the building blocks of America.
The Constitution gets its roots from many successful
governments and can be traced back to the Magna
Marquette Catholic School, Tulsa
Carta. Its best known sections are the preamble and the
Bill of Rights, both of which impacted history greatly.
Teacher: Jamie Stoermer
The rights listed are rights that all citizens were and still
are entitled to. They include freedom of speech, the
statement that certain, if not most, rights cannot be denied, and state that any right not
addressed in the Bill of Rights is left to the state governments. By picking and taking ideas
from different governments, we were able to create a near perfect blend of rights and rules.
The principle that everyone has rights and that they cannot be denied these rights has been
around for centuries. During the time of the publication of the Magna Carta some citizens were
cheated and treated as less than dirt. The writers realized that everyone deserved the same
human rights that others were promised by their country and that some people were denied of
them. As a colony of Britain, America was seen as a source of income and not a community of
actual people. The colonists were treated less than the citizens back home in Britain. They
decided that all people had basic rights to life, liberty, and the pursuit of happiness along with
other freedoms that a person should not be denied of.
The states wanted some space to govern themselves and originally were going to be more
like small countries rather than a whole united nation. The statement that any rights not delegated to the federal government or forbidden to the states were in their control gave them
some of this control that they were set on having. This was a bit like the system of governments in the UK. You would have the one large country and then it would be divided into
smaller lands owned by lords and dukes. They controlled the laws and enforcement of them in
their own lands but also had to follow laws set by the king. This principle has been used from
Greece to Britain and everwhere in between.
Read the rest of Caroline’s story at www.okbar.org.
1st Place
Caroline Godfrey
2nd Place
Josiah Roche
Kiefer High School, Kiefer • Teacher: Lorie Quinelley
To read Josiah’s story, visit www.okbar.org.
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
797
Art Contest Winners
Ninth Grade
1st Place
Katelyn Morton
Sequoyah High School, Tahlequah
Teacher: Tonya Fowler
2nd Place
Jackson Walters
Covenant Community School,
Stillwater
Teacher: Linda Wyatt
and Elizabeth Albright
798
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Writing Contest Winners
Ninth Grade
How the Magna Carta Influenced
the Formation of the
U.S. Constitution
Let us travel back to a time when the latest technology was a
catapult, a bathroom was a hole in the ground, and feudalism
was the common form of government. The year is 1212, and
King John of England has raised taxes on barons. In response to
this, the barons begin to argue with John about his methods of
ruling the country. This goes on until 1215, and eventually the
barons attempt to make King John rule by the old English laws.
Soon after, the barons take up weapons against King John and
capture London. Taken by surprise, King John agrees to
meet them at Runnymede, a meadow alongside the Thames
river. There, the barons present a document to the king, forcing him to approve it with his seal. This was one of the most
influential documents ever to be made, and it is known as
the Magna Carta.
1st Place
Caleb McQuay
Hope Christian Academy, Skiatook
Now, 800 years later, many things have changed. There are
Teacher: Cindy Haley
cars, computers, and free nations, the forefront of which is
the United States of America. The U.S. was founded on many
principles, many of which were influenced by the Magna
Carta. Without the Magna Carta, America would likely be much different today.
America’s founding document, the Constitution, bears many resemblances to the Magna Carta.
Such concepts as due process, traveling freely, and no man being above the law (not even the
king/leader), found their origins in the Magna Carta. Simply said, the Magna Carta laid some
groundwork for the Constitution that was to come.
Due process of law first appeared in the Magna Carta when it stated that “no free man shall be
taken or imprisoned…or in any way destroyed, nor will we go upon him nor send upon him,
except by the lawful judgment of his peers or by the law of the land.” This means that no person
will be thrown in jail or killed without a fair trial. This was taken by the founders of America and
used in the Fifth and Fourteenth Amendments. The Fifth Amendment states that “No person shall
be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury…nor be deprived of life, liberty, or property without
due process of law.” The Fourteenth Amendment says that “No state shall make or enforce any
law which shall abridge the privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty, or property without due process of law.” Essentially, no
one can have property taken, be accused of a terrible crime, or have their rights taken away without due process of law. Sound familiar?
Read the rest of Caleb’s story at www.okbar.org.
2nd Place
Warren Crouch
Hope Christian Academy, Skiatook • Teacher: Cindy Haley
To read Warren’s story, visit www.okbar.org.
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
799
Art Contest Winners
10th Grade
1st Place
Ethan McGill
Barnsdall High School, Barnsdall
Teacher: Wilma Logue
800
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Writing Contest Winners • 10th Grade
Connections Between the Magna Carta
and the U.S. Constitution
Thirteen years ago my father worked as Army litigator, someone who
defends the Army from lawsuits, in his cases he understood and used
court procedures that were given to him from the Constitution of the United States of America. The Constitution provided him rights that allowed
him to make arguments and these rights also help facilitate the court process. But these rights are not only found in the Constitution, they are
found in a document written 800 years ago by Barons from Great Britain
asking their King for very basic rights, this document was called the
Magna Carta. In addition to rules about a fair trial, one can tell that the
Magna Carta greatly influenced the Constitution by the way they connect on issues such as freedom of religion and the way the Magna
Carta lays down the formation for our form government that is very
close to our three branches.
1st Place
Aaron Mendelson
In many of my father’s cases the decision was made via jury, whose
Lawton High School, Lawton
decision was based off of credible witness’s testimonies and evidence
relevant to the cases. Without these very basic rights of law, false
Teacher: Doc Freeman
accusations would run rampant in the courthouse, we wouldn’t know
how to distinguish the credible accusations from the non-credible
ones. In addition to being in the Constitution, these rights were also granted in the Magna Carta. The
Magna Carta initiated the beginning of trial via due process, which eventually evolved into trial via jury.
When our founding fathers wanted to develop a fair justice system, it very obvious that they used ideas
from the Magna Carta to aid in their creation. Without the Magna Carta the way we prosecute criminals
and handle court cases would be very different than the fair and
honest way it is right now.
In addition to creating due process of the law, the Magna Carta also contains the blueprints for our
three wing government. The barons who wrote the Magna Carta were tired of having the king impose
harsh, unfair laws and the fact that no one could stop him from imposing these laws. In order to prevent
this from ever happening the writers of the Magna Carta created an organization of individuals who
approval was needed in order to pass laws. This action prevented the king from creating laws that hurt
the people but benefitted the king. From this group of individuals came the Senate and the House of Representatives, whose approval is needed to pass laws. The group of individuals from the Magna Carta and
the Senate and House of Representatives from the Constitution show a very prevalent link between the
two documents and how the Magna Carta influenced the Constitution.
Read the rest of Aaron’s story at www.okbar.org.
2nd Place
Corey Bell
Lawton High School, Lawton • Teacher: Doc Freeman
To read Corey’s story, visit www.okbar.org.
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
801
Art Contest Winners
11th Grade
1st Place
Kinsey Mitchell
Choctaw High School, Choctaw
2nd Place
Lillian Swingle
Miami High School, Miami
Teacher: Dawn Hill
802
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Writing Contest Winners •11th Grade
How the Magna Carta Influenced the Creation
of the U.S. Constitution
In past few weeks it has been impossible to escape news of
beheadings and other atrocious killings accredited to ISIS in
Syria and Iraq. The targeting of men, women, and children
solely because they do not conform to the “right” religion horrified me. I thought of my own faith, and how conflicted I
would feel if I suddenly wasn’t allowed to go to mass. I took a
moment to appreciate just how substantial the United States
Constitution is in its assurance of religious freedom. Upon further thinking, I wondered how James Madison came to the
idea that religious freedom was so important that it be included
in our Bill of Rights. Then I remembered that the Magna Carta
contained a relatively similar sentiment all the way back in
1215. After continued analysis of both documents it
became clear that religious freedom wasn’t the only thing
Madison used for inspiration when writing the Constitution.
The Magna Carta also influenced the terms of due process,
the basis of limited federal power, and the premise of no
cruel or unusual punishment.
1st Place
Jessica Thompson
Lawton High School
Teacher: Doc Freeman
Due process, or habeas corpus in the United States,
today ensures that no one can be imprisoned without a
trial through the Constitution. The Magna Carta had a similar approach to unlawful imprisonment almost 600 years before the U.S. Constitution was even on the horizon. The Magna Carta
states that “No Freeman shall be taken, imprisoned, disseised, outlawed, banished, or in anyway destroyed…except by the lawful judgment of his peers or by the law of the land.” The
Magna Carta essentially set the precedent for banning unlawful imprisonment that would eventually influence James Madison in his framing of the Bill of Rights.
Another influence can be found in the main reason why the Magna Carta was even thought
of by the barons of Runnymede, England in 1215. The barons wanted to limit the power of
King John while increasing their own personal liberties. The Magna Carta “embodied the general principle that the King accepted limitations on his rule.” The Constitution limits federal
power through checks and balances. Our legislative, executive, and judicial branches of government all keep each other from having too much power over the people, which is exactly
what the barons wanted in limiting the power of King John. Thus, it is reasonable to assume
that the framers of the Constitution took a page out the barons’ book when limiting the power
held by one person.
Read the rest of Jessica’s story at www.okbar.org.
2nd Place
2nd Place
Rosa Belyeu
Ronnie Rhodes
Lawton High School, Lawton
Lawton High School, Lawton
Teacher: Doc Freeman
To read Rosa’s story,
go to www.okbar.org.
Vol. 86 — No. 11 — 4/18/2015
Teacher: Doc Freeman
To read Ronnie’s story,
go to www.okbar.org.
The Oklahoma Bar Journal
803
Art Contest Winners
12th Grade
1st Place
Kirstyn Fitch
Oklahoma Bible Academy, Enid
Teacher: Charlotte Williams
2nd Place
Allexus Childs
Oklahoma Bible Academy, Enid
Teacher: Charlotte Williams
804
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Writing Contest Winners • 12th Grade
The Magna Carta and the Constitution
On June 25, 1225, a group of barons, disenchanted with the unfair
and inconsistent application of English laws, stood in front of King
John and demanded that the monarch recognize and protect the traditional rights of the English people. Although this list of rights, now
known as the Magna Carta, emerged originally to protect only nobility, it eventually shifted to include protection of the rights of lower
social classes as well. Over 500 years later, the Magna Carta’s significance influenced the creation of the American Constitution and the
Bill of Rights. The Magna Carta’s impact is still felt largely in the
American courts and in concepts such as the rule of law and due
process of law.
1st Place
Kayla Utsch
The Magna Carta was held to be the utmost law of the land,
written to establish restrictions on a monarchy for the sake of
Edmond Memorial High School,
protecting the citizens of a country from tyrannical rule. It was
Edmond
the first charter of the western world to also recognize the rights
of those without status, even going as far as to state that the
Teacher: Greg Oppel
barons promised to bestow all the rights and freedom that the
king was to give them. Similarly, the Constitution is held to be
the highest law of the United States. During the American Revolution, the Magna Carta became a symbol of freedom and inspiration for the rebel colonists: since the colonists were under English rule, did
they not deserve the same freedoms and rights that Englishmen enjoyed under the protection of the
Magna Carta? The writers of the Constitution recognized the importance of everyone in a nation being
given individual freedom and rights as well; America had, after all, just recently fought and won a war
so that it could retain many of the freedoms described in the Magna Carta.
The Magna Carta’s influence can be best seen in the United States’ amendments and Bill of Rights,
which the Founding Fathers created to ensure that the Constitution would not overstep its boundaries
and interfere with Americans’ individual rights, many of which are born from the Magna Carta itself.
Portions of the Fifth Amendment and Fourteenth Amendment of the Constitution show the influence
that the Magna Carta had on the Constitution. As the Magna Carta required due process of law and a
trial by jury to protect the accused in the thirteenth-century England, these amendments also describe
these rights in their due process clauses. The Eight Amendment’s ban on disproportionate fines and
bail proceeds from the Magna Carta’s establishment of an injunction on
excessive fines. Traces of the Magna Carta’s influence is also seen in the
Sixth Amendment that allows the right to a speedy trial and the right to
confront witnesses.
Read the rest of Kayla’s story at www.okbar.org.
2nd Place
Chelsea Green
Edmond Memorial High School, Edmond • Teacher: Greg Oppel
To read Chelsea’s story, visit www.okbar.org.
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
805
You’re Invited
Opening Your Law Practice
P resented by the O klahoma B ar A ssociation
M anagement A ssistance P rogram
April 28, 2015
Oklahoma Bar Center, 1901 N. Lincoln Blvd.
Oklahoma City
8:30 am – Registration and Breakfast
9:00 am – Program Begins
Noon – Lunch provided by Oklahoma Attorneys Mutual Insurance Company
4:30 pm – Program Adjourns
Program Agenda includes — Resources for Starting a Law Practice, Building Client Service
& Satisfaction Systems, Client Development & Marketing, Client File Management, Professional Liability Insurance, Professionalism in the Practice of Law, Trust Accounting & Legal
Ethics, Equipping the Law Office and Accounting & Tax for Law Firms.
Program is absolutely free! (No MCLE credit) Pre-registration is required. To register email
Nickie Day at [email protected], 405-416-7050 or register online through MyOkBar.
806
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
807
LAW DAY
2015
County Law Day Chairpersons
Adair Joe Dean Adair 918-696-2172
Beaver
Todd Trippet
580-625-4597
Blaine
Judge Mark Moore
580-623-5025
Bryan
Julie Cuesta-Naifeh
580-924-4032
Choctaw
Julie Flowers
580-326-9655
Cimarron
George H. Leach
580-544-3624
Cleveland
Don G. Pope
405-360-7555
Comanche
Jay C. Meyers
580-355-0341
Craig
Ryan Olsen
918-527-7955
Creek
Gene Thompson
918-227-1177
Custer
Judge Donna Dirickson
580-323-3456
and
Judge Jill Weedon
580-323-3456
Dewey
Judge Rick Bozarth
580-328-5521
Garfield
Ben Bowers
580-574-1218
and
Piper Bowers
785-410-6238
Garvin
Laura Shaeffer
405-238-7368
Grant
Judge Jack
Hammontree
580-395-2258
Greer
Charles Horton
580-782-3348
Jackson
Brent S. Howard
580-318-8829
Johnston
Dustin Rowe
580-371-9561
Kay
Rebecca Hill
580-362-2571
and
Raegen Jowers
580-370-2227
Kingfisher
Jay Mitchel
580-254-2447
Latimer
Chris Henry
918-465-3451
LeFlore
Jolyn Belk
918-647-8681
and
Amanda Grant
918-962-2436
McCurtain
Charlie Wolfe
580-298-2525
Pottawatomie
Brandi Nowakowski
405-275-0700
McIntosh
Brendon Bridges
918-689-2528
Pushmataha
Charlie M. Rowland
580-298-2525
Murray
Becky Johnson
580-622-5666
Seminole
Jack Cadenhead
405-382-6341
and
Judge Tim Olsen
405-257-3386
Muskogee
Chad Locke
918-687-4900
Noble
John Dunivan
405-747-6654
Okfuskee
Don McFarland
918-623-2717
Oklahoma
Curtis Thomas
405-235-9621
Okmulgee
Hilary McKinney
918-758-4384
Ottawa
Matt Whalen
918-540-2199
Payne
Jimmy Oliver
405-624-8383
Pittsburg
Brecken Wagner
918-421-8843
Pontotoc
Jenna Owens
580-559-5603
Sequoyah
Kent Ghahremani
918-775-5900
Stephens
Carl J. Buckholts
580-252-3240
Texas
Catherine Seagraves
580-338-3868
Tulsa
Judge Daman Cantrell
918-596-5390
Wagoner
Richard Loy Gray Jr.
918-485-2889
Washington
Scott Buhlinger
918-336-4132
and
Jim Elias
918-336-4132
Washita
Judge Christopher Kelly
580-832-3226
Woodward
Kate Loughlin
580-256-8616
Is your county missing from this list? Please submit the name of your Law Day chairperson as
soon as possible to OBA Law Day coordinator Lori Rasmussen, 405-416-7017, [email protected]
808
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
THURSDAY, APRIL 30
9 A.M. - 9 P.M.
ASK A LAWYER
FREE LEGAL ADVICE
VOLUNTEER LAWYERS NEEDED
STATEWIDE
HOTLINES
LOCATION:
OETA STUDIOS,
OKC AND TULSA
TULSA SIGNUP
OKC SIGNUP
DAN CRAWFORD
539-664-4289
CONNIE RESAR
405-236-8421
[email protected]
[email protected]
OTHER COUNTIES ARE ALSO GIVING LEGAL ADVICE. CONTACT YOUR LOCAL LAW DAY CHAIRPERSON TO VOLUNTEER.
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
809
LAW DAY
2015
County Bar Association
Activities
H Adair County Bar Association
The Adair County Bar Association will participate in the Ask A Lawyer program in conjunction with the statewide program to
answer questions by phone.
H Beaver County Bar Association
The Beaver County Bar Association will
participate in the Ask A Lawyer program in
conjunction with the statewide program to
answer questions by phone.
H Blaine County Bar Association
Blaine County will celebrate Law Day with
Judge Moore speaking to students at the Canton School about the Magna Carta and its role
in democracy in the United States. Blaine
County attorneys are being encouraged to
reach out to schools and make similar presentations for Law Day. The Blaine County drug
court will also join in celebrating Law Day by
having a poster contest concerning the Magna
Carta.
H Choctaw County Bar Association
The Choctaw County Bar Association will
participate in the Ask A Lawyer program in
conjunction with the statewide program to
answer questions by phone.
H Cleveland County Bar Association
The Law Day theme this year is a celebration of the 800th anniversary of the signing of
the Magna Carta. In keeping with that theme,
OU College of Law Professor Rick Tepker will
make a presentation on “Tracing the Traditions of Due Process” on Tuesday, April 28, at
7 p.m. in Judge Balkman’s courtroom. This
presentation is open to the public.
810
The Cleveland County Bar Association will
also be making presentations regarding topics
related to due process and the Magna Carta at
local schools. The association will be publishing articles related to the Magna Carta and
the history of due process in the Norman Transcript the week of April 27. Per past tradition
the paper will publish one article per day during that week.
The association is selling T-shirts with the
Magna Carta theme as a design and will host
an end-of-Law Week party for the local bar in
appreciation of the volunteers who have
assisted with the various activities.
The association will also participate in the
Ask a Lawyer event in coordination with the
Oklahoma Bar Association. This will be on
April 30 from 7 – 8 p.m.
H Comanche County Bar Association
Comanche County will host its Law Day
luncheon on Thursday, April 30, at 11:30 a.m.
at the Apache Casino and Hotel in Lawton.
OU Professor Rick Tepker is the featured
speaker. CCBA scholarship winners will be
recognized. Tickets for the luncheon are $25.
The annual Law Day golf tournament will
be held May 8 at the Lawton Country Club
at 10 a.m. The association will also participate
in the Ask A Lawyer program in conjunction
with the state wide campaign.
H Creek County Bar Association
The Creek County Bar, as a part of its reinvigoration as a service organization, has
planned multiple events for Law Day 2015.
In an effort to celebrate our legal traditions
and provide community outreach, the committee members planning the event have put
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
together a full slate of events that will span
the entire day.
The morning event will focus on the children of our community. The Creek County bar
has partnered with area schools — more than
250 local children will be guided on tours of
the county courthouse. As a part of the tours,
our local judges will be giving presentations
on our legal system. Additionally, materials
will be provided to the schools for further lessons.
The midday and early afternoon will feature
a cookout on the courthouse lawn. Hamburgers and soft drinks will be available to courthouse patrons and members of the community. Members of the bar association have also
volunteered to be available during this event
to spend time speaking with those
present.
The day’s events will be concluded with a
social hour for members of the bar association
and their spouses. This event will provide recognition to the attorneys in Creek County
who have been in practice more than 30 years,
as well as being a fundraiser for a worthy
local charity.
H Custer County Bar Association
The Custer County Bar Association will
partner with the Washita County Bar Association to participate in the Ask A Lawyer
program in conjunction with the statewide
program to answer questions by phone.
The Custer County Bar Association will host
its annual Law Day banquet on Thursday,
April 23, at 6 p.m. at Lucille’s Road House in
Weatherford. U.S. Magistrate Judge Charles
B. Goodwin will be the featured speaker.
H Garfield County Bar Association
The Garfield County Bar Association has
many activities planned for the 2015 celebration of Law Day and will keep its members
active throughout the day. The day will begin
with Lawyers in the Classroom, where lawyers from the GCBA will speak to middle
school students throughout Garfield County
about various legal topics. The members of
the GCBA will also announce the winners for
the Law Day coloring and art contests on this
day. The coloring and art contests feature
many students throughout Garfield County,
and will be judged by the Garfield County
district judges. The GCBA will also be participating in the Ask a Lawyer program in conVol. 86 — No. 11 — 4/18/2015
junction with the statewide campaign to
answer legal questions by phone.
H Grant County Bar Association
The Grant County Bar Association will
participate in the Ask A Lawyer program in
conjunction with the statewide program to
answer questions by phone.
H Greer County Bar Association
Lawyers in Greer County will be available
on Law Day to assist community members in
completing simple legal documents at no cost.
The service will be available on a walk-in
basis near the courthouse.
H Harmon County Bar Association
The Harmon County Bar Association will
partner with the Jackson County Bar Association to participate in the Ask A Lawyer
program in conjunction with the statewide
program to answer questions by phone. Also
being planned is a trial viewing for area high
school civics classes.
H Jackson County Bar Association
The Jackson County Bar Association will
partner with the Harmon County Bar Association to participate in the Ask A Lawyer
program in conjunction with the statewide
program to answer questions by phone. Also
being planned is a trial viewing for area high
school civics classes.
H Kay County Bar Association
The Kay County Bar Association will participate in the Ask A Lawyer program in
conjunction with the statewide program to
answer questions by phone. In addition,
members of the bar association will give local
students a tour of the historic Kay County
Courthouse, observe proceedings going on
therein, and be available to answer any questions they may have about the law.
H Kingfisher County Bar Association
The Kingfisher County Bar Association will
host its annual Law Day luncheon at noon on
Friday, May 1, at the Kingfisher County
Courthouse. At the luncheon, the association
will present the Liberty Bell Award. The Liberty Bell is presented annually to a local nonlawyer who has contributed to the cause of
justice in Kingfisher County.
H LeFlore County Bar Association
The LeFlore County Bar Association will
participate in the Ask A Lawyer program in
The Oklahoma Bar Journal
811
conjunction with the statewide campaign to
answer legal questions by phone at 7 p.m. on
April 30. The Legal Guides for Young Adults
in Oklahoma will be distributed by members
of the association to high school juniors in
LeFlore County throughout the week to help
them have a better understanding of their
rights after attaining the age of 18.
The next event will occur on May 1 and
will be a courthouse tour for fifth grade students attending schools in LeFlore County. In
conjunction with the courthouse tour, Judge
Sullivan and Judge Fry will preside over mock
trials wherein the students will participate as
jurors and also as the attorneys. Members of
the bar will be witnesses and help the students with their parts in the mock trials. At
the conclusion, bar members will answer
questions about the legal system. Highway
patrol officers and sheriff’s deputies will also
be present to allow the children to look
through their patrol vehicles.
H Lincoln County Bar Association
The Lincoln County Bar Association will
host its annual Law Day picnic on May 1 at
6 p.m. at the Chandler Senior Citizens Center.
H Mayes County Bar Association
The Mayes County Bar Association will
participate in the Ask A Lawyer program in
conjunction with the statewide effort to
answer questions by phone. Also being
planned is a Wills for Heroes program to
assist first responders in completing wills.
H McCurtain County Bar Association
In conjunction with the Tri-County (Choctaw, McCurtain and Pushmataha counties), a
Law Day banquet will be held May 2 at the
Idabel Country Club. Social hour begins at
6 p.m.; 7 p.m. dinner.
H Muskogee County Bar Association
The Muskogee County Bar Association is
sponsoring an art contest for Muskogee seventh and eighth grade students. The theme for
the contests echoes the statewide Law Day
theme, “Foundations of the Law: The Magna
Carta and Beyond.” The association encourages educators, parents and others to have students participate in the contest. The association will hold a banquet the evening of April
30. The association will also participate in the
Ask A Lawyer program in conjunction with
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the statewide effort to answer questions
by phone.
H Noble County Bar Association
The Noble County Bar Association will
award $500 scholarships to a student from
each of the schools located in Noble County.
Announcement of recipients is scheduled for
Law Week. The Liberty Bell awards will be
presented during an upcoming association
meeting.
The association is planning to assist in a
community service project to paint the trash
cans around the courthouse. In cooperation
with Main Street Perry, NCBA is purchasing
the paint for community volunteers who will
do the painting.
A Wills for Heroes project will be held in
conjunction with the local American Legion
Post on April 30 from 10:30 a.m. to 3:30 p.m.
Veterans, law enforcement officers and firefighters will receive help in preparing a
last will and testament or other basic legal
documents.
The association will also participate in the
Ask A Lawyer program in conjunction with
the statewide program to answer questions by
phone from 4 - 8 p.m. on April 30. Community members with questions may also stop by
in person at the office of Bryon Will.
H Okfuskee County Bar Association
The Okfuskee County Bar Association will
participate in the Ask A Lawyer program in
conjunction with the statewide program to
answer questions by phone from 7 – 8 p.m.
on April 30.
H Oklahoma County Bar Association
• Law Day Luncheon – May 1,
Skirvin Hotel Grand Ballroom
The Oklahoma County Bar Association is
sponsoring the luncheon this year featuring
U.S. District Judge Stephen P. Friot who will
be speaking on this year’s Law Day theme of
the celebration of the 800th anniversary of the
signing of the Magna Carta. The Journal Record
will present this year’s Journal Record Award
as well as recognize the “Leadership in Law”
Award recipients. The Liberty Bell Award and
the Howard K. Berry Sr. Award will also be
presented at this year’s Law Day luncheon.
Students from the Douglass High School Moot
Court Team will be guests of the OCBA and
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
will be placed at various tables to interact
with the attorneys and judges at the luncheon.
The centerpiece stuffed animals will be donated to the Oklahoma County Sheriff’s Office.
Tickets are available by calling the OCBA at
405-236-8421.
• Ask A Lawyer Program – April 30 at OETA
Volunteers will be handling phone calls
from 9 a.m. to 9 p.m. Matt Blue will be chairing this subcommittee and volunteers may
sign up by going on the OCBA website at
www.okcbar.org or by calling the bar office at
405-236-8421.
• COALA Student Program
The Central Oklahoma Association of Legal
Assistants (COALA) will be sponsoring high
school students who will tour the Oklahoma
County Courthouse and speak with various
judges in the morning. Students will then
attend the Law Day luncheon.
• Courthouse Staff Lunch
An appreciation lunch will be hosted by the
PCBA on May 1 for the many people who work
in the courthouse. Local attorney James Murray
will prepare a barbeque lunch on the courthouse lawn. This event is open to everyone
who works in the courthouse including judges,
bailiffs, district attorneys, court clerks, sheriff’s
department and all related staff members.
• School Presentations
Local attorneys will speak to high school
seniors about the legal responsibilities of turning 18. Lawyers will pass out the “You’re 18
Now!” booklets prepared by the YLD and
answer questions from the students. These
events will take place not only at Stillwater
High School but also at the other rural county
schools.
• Honor Docket
• Civic Speakers
The OCBA Law Day Committee is providing lists of speakers at various civic clubs and
other venues in Oklahoma County. These
groups have been contacted in an attempt to
provide legal speakers during the Law Day
week.
H Payne County Bar Association
• Courthouse Tours
A class of seventh graders at the Stillwater
Middle School will receive tours of the Payne
County jail and courthouse on May 12. These
tours will include presentations by a judge,
assistant district attorney and the court clerk.
The students will also watch a drug dog demonstration by the Payne County Sheriff.
• Bowling Tournament
PCBA will host a bowling tournament on
April 30 to benefit Legal Aid Services in their
drive to raise funds for an additional staff
attorney for the Stillwater branch.
• Lawyers in the Library
A pro bono legal advice clinic organized by
the PCBA will be held at the Stillwater Public
Library on April 29 from 8 a.m. – 3 p.m. This
clinic will be staffed by members of the PCBA
who will give consultations to community
members on a walk-in basis. Additionally,
PCBA will participate in the Ask A Lawyer
Vol. 86 — No. 11 — 4/18/2015
program in conjunction with the statewide
campaign to answer legal questions by phone.
PCBA will hold an Honor Docket on May 7.
This docket will allow local attorneys to present awards and prizes to the winners of the
youth art and essay contests. The Hert Scholarship will be presented to an outstanding
high school senior to assist with college and
the Liberty Bell Award will be given to a
member of the community for outstanding
civic leadership.
• Art, Essay and YouTube Contests
PCBA is hosting a coloring contest for the
county’s first and second graders, a free form
art contest for the county’s third through fifth
graders and an essay and YouTube video contest for high school students. Winners will
receive cash prizes and be presented their
awards at the Law Day Honor Docket on
May 7.
H Pushmataha County Bar Association
In conjunction with the Tri-County (Choctaw, McCurtain and Pushmataha counties), a
Law Day banquet will be held May 2 at the
Idabel Country Club. Social hour begins at 6
p.m.; 7 p.m. dinner. Pushmataha county lawyers will participate in the Ask A Lawyer
program in conjunction with the statewide
program to answer questions by phone.
The Oklahoma Bar Journal
813
H Seminole County Bar Association
As its birthplace, Law Day has always been
special in Seminole County, and this year will
be no different. To open Law Week celebrations, Seminole County’s young lawyers will
be speaking to county middle school students
about the legal profession. Every junior high
school in the county will host a presentation
by one of our young lawyers. The association
is also conducting two essay contests open
to all county junior high school students and
all county high school seniors who plan on
attending Seminole State College. The association is awarding a $500 scholarship to Seminole State College to the winning senior essay
contestant and a gift certificate to the winning
junior high school essay contestant. Seminole
County will also participate in the Ask A Lawyer program in conjunction with the statewide
campaign to answer legal questions by phone.
The association will hold its annual Law
Day activities on April 29. There will be CLE
beginning at 8:30 a.m. in the Seminole County
Courthouse in Wewoka. At noon,
a Law Day luncheon will be held at the
Rudolph Hargrave Community Center.
Supreme Court justices are expected to attend.
OBA President David Poarch will be the featured speaker.
H Stephens County Bar Association
The Stephens County Bar Association will
host its annual Law Day luncheon on May 1
at noon at the Duncan Golf and Tennis Club.
The guest speaker will be Federal District
Judge Timothy D. DeGiusti. The annual Liberty Bell award will be presented during the
luncheon. Tickets for the luncheon are $20.
The annual James Patterson Memorial Golf
Tournament will be held at the Territory Golf
and Country Club on May 1 at 2 p.m.
H Tulsa County Bar Association
Tulsa County Bar Foundation and the TCBA
will hold its annual Law Day luncheon on
May 1 at the Tulsa Country Club. Judge
Jerome Holmes of the 10th Circuit Court of
Appeals will serve as keynote speaker. Tulsa
World reporter Bill Braun will receive the Liberty Bell award in recognition of his 30 years
of reporting on the courts in Tulsa County. A
naturalization ceremony was held in honor of
Law Day at the federal courthouse. Student
art and writing contests awards will be given
out to students from Pre K – 12th grade on the
814
Law Day theme of “Foundations of the Law:
The Magna Carta and Beyond.” Ask a Lawyer
will return once again at the OETA offices on
April 30 from 9 a.m. to 9 p.m. An immigration
clinic will take place at Catholic Charities on
April 26. Legal civics education programs will
be conducted at East Central High School,
Thoreau Demonstration Academy, Owasso
Eighth Grade Center and various elementary
schools in the county.
H Wagoner County Bar Association
In observance of Law Day, local attorney
Richard Loy Gray Jr. is speaking to Wagoner
senior citizens on various issues of interest.
H Washington County Bar Association
The Washington County Bar Association has
planned a Law Day golf tournament at Hillcrest Country Club in Bartlesville. The WCBA
will also be hosting the OBA Board of Governors for a dinner presentation on current legal
issues and will be participating in the Ask A
Lawyer program in conjunction with the
statewide campaign to answer questions
by phone.
H Washita County Bar Association
The Washita County Bar Association
will partner with the Custer County Bar
Association to participate in the Ask A
Lawyer program in conjunction with the
statewide program to answer questions by
phone. County bar representatives are also
planning visits to local schools to discuss
Law Day with students.
H Woodward County Bar Association
In Woodward County, experienced local
attorneys will be available to answer questions regarding criminal law, divorce law and
other areas on Thursday, April 30, from 6:308 p.m. at 580-254-9181, corresponding with the
OBA’s annual Ask A Lawyer TV show on
OETA. The following day, Friday, May 1, local
attorneys will speak to the students of Woodward High School about the criminal process
and what it means to be charged with a crime,
how to file for divorce, the process of probate
after the death of a loved one, the pros and
cons of filing for bankruptcy and more.
If your county is not listed, there is still time to
post your local Law Day activities on the OBA
website! Contact OBA Law Day coordinator Lori
Rasmussen as soon as possible: 405-416-7017;
[email protected]
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
OBA Family Law Section Presents: The Wing-­Nuts and Screws of Family Law DATES & LOCATIONS: CLE CREDIT: TUITION: PROGRAM: 8:30-­9:00 a.m. 9:00-­9:50 9:55-­10:45 10:50-­11:40 11:40-­1:10 1:10-­2:00 2:05-­2:55 Oklahoma CCity
ity Oklahoma
May 14, 2015 Oklahoma Bar Center 1901 N. Lincoln Blvd Tulsa Tulsa
May 15, 2015 OSU Tulsa 700 N Greenwood, N. Hall, rm 150 5 hours of CLE credit (No ethics credit). $150 if received by May 7, 2015 and $175 from then until commencement of Seminar. Program Planner/Moderator: Luke Barteaux, Fry & Elder Registration (Continental breakfast, snacks and drinks provided) Trial Evidence: Foundations & Objections Co-­‐presenters: M. Shane Henry & Aaron D. Bundy, Fry & Elder Contempt of Court Co-­‐presenters: Rees T. Evans, Law Office of Rees T. Evans & Amy E. Page, DHS Power of Attorney for Care and Custody of Child OKC Presenter: Phillip J. Tucker, Tucker Law Firm Tulsa Presenter: Jon R. Ford, Jon R. Ford Attorney, INC. Lunch (On your own) Indian Child Welfare Act OKC Presenter: Casey Ross-­‐Petherick, Professor, OCU School of Law Tulsa Presenter: Chrissi Ross Nimmo, Assistant AG, Cherokee Nation Odd Implications of Same Sex Marriage Presenter: Keith A. Jones, Keith A. Jones Law Payment Information Please check the box next to the location you will be attending: [] Oklahoma City (May 14, 2015) or [] Tulsa (May 15, 2015) Full Name: Firm: Address: City: Phone: Email: []Yes,
OBA
#_________
[]
No
Are you a Member of the OBA? [] Yes [] No, OBA # For Credit Card (Processed through OBA) [] Visa [] Master Card [] AMEX [] Discover Credit Card#: cvv/cvc# Exp. Date: Authorized Signature: Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
Make Check payable to OBA FLS Send questions, complete registration form, and payment to: Luke Barteaux, Fry & Elder 906 S Cheyenne Ave Tulsa, OK 74119, or fax: 918-­‐512-­‐4461, or [email protected] 815
LAW DAY
2015
Find ideas for courthouse
Law Day Activities at
http://goo.gl/AjLg5l
Oklahoma Supreme Court Chief Justice John Reif
(seated) signs the Law Day Directive before presenting awards to contest winners during the annual
ceremony at the State Capitol. Witnessing were
(from left) OBA Law Day Committee Co-Chair
Richard Vreeland, OBA President David Poarch and
Co-Chair Jennifer Prilliman.
816
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
817
THE OKLAHOMA BAR ASSOCIATION FAMILY LAW SECTION PRESENTS:
THE 2015 OKLAHOMA FAMILY LAW TRIAL ADVOCACY INSTITUTE
The OBA Family Law
Section Presents:
THE OKLAHOMA FAMILY
LAW TRIAL ADVOCACY
INSTITUTE
www.FLSTAI.com
A Dissolution of Marriage
Case Involving Custody
and Asset/Debt Division
A GREAT TRADITION- July 13-18, 2015
The goal of the Institute is to provide
a unique experience for our OBA FLS
members: the opportunity to receive
practical assistance from respected,
experienced family law attorneys,
and to receive direct feedback
from the District Judges.
The attendees will receive realworld advice from their mentors and
the judges as well as assistance with
legal issues.
This is a six-day CLE in which each
participant will prepare for and try a
complicated Dissolution of Marriage
case involving custody of three
minor children,
equitable division
How
to get the
started
of a family business, and both
parties having significant issues.
Each attendee will be assigned to
an experienced family law attorney
to mentor and assist in the
preparation of the case, including
document
preparation
and
strategy.
Attendees will present their case
before actual judges and will
receive feedback from TAI members
and the judges at the conclusion of
the hearings.
members a marvelous opportunity
to work directly with our judiciary
and experienced family law
attorneys in order to improve their
skills as family law litigators. The
Trial Advocacy Institute began with
a vision of our FLS leadership. The
2014 Trial Advocacy Institute was a
huge success with 19 graduate trial
lawyers.
A Special Thanks to
Our Judiciary
Volunteers
This Event Would Not
Be Possible Without
Their Valuable Time
And Assistance.
Jon Ford presented the idea to the
OBA Board of Governors and
requested that the Family Law
Section be allowed to conserve
the monies received from the sale
of our Practice Manual to provide
the seed money for this wonderful
project. The Board approved his
request.
After
meeting
our
financial goal we made the
Institute a reality.
The OBA FLS through the use of the
Practice
Manual
funds
is
underwriting a portion of the
expenses normally borne by
attendees in the other programs.
In addition, the attorneys and
judges who will be participating in
the Institute are donating their time
and services.
The OBA FLS is excited to offer its
818
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Program Itinerary
Oklahoma Bar Center – Monday-Saturday, July 13-18
Monday, July 13th
Introduction to Program
Lectures
• Purpose of Trial/Trial Elements
• Introduction of Exhibits/Impeachment
• What the Judge Wants to Hear
• Developing Your Case/Motion Hearings
Exercises and Demonstrations
• Case Analysis
• Motion Practice
• Closing Arguments
Tuesday, July 14th
Lectures
• Closing Arguments
• Direct Examination / Cross Examination
• Social Media Evidence
Exercises and Demonstrations
• Closing Arguments
• Direct and Cross Examination of the Parties
Wednesday, July 15th
Lectures
• Rules of Evidence
• Psychological Evaluations in Oklahoma
• Deconstructing a Custody Evaluator’s Report
Exercises and Demonstrations
• Evidence: Introduction and Objections
• Direct and Cross Examination of a Mental Health Expert
Thursday, July 16th
Lectures
• Cross Examination of a Mental Health Expert
• Ethics
Exercises and Demonstrations
• Direct and Cross Examination of Mental Health Experts
• Direct and Cross Examination of Parties
• Opening Statements
Friday, July 17th
Lectures
• Business Valuation Basics
• Trial Objections
• Family Law Evidence Problems
Exercises and Demonstrations
• Opening Statements
• Evidence
Witness Preparation
Saturday, July 18th
Trial on the Merits
Feedback Session with Judges and Mentors
Institute Luncheon – Presentation of Certificates & Awards
Note: The above schedule is tentative, and is subject to change.
continued on next page
Oklahoma Family Law Trial Advocacy Institute � 2015
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
819
The OBA Family Law
Section Presents:
THE OKLAHOMA FAMILY
LAW TRIAL ADVOCACY
INSTITUTE
A Divorce Trial using
Expert Custody Evaluators
For more information
Contact
Allison Smith at:
[email protected]
About the OBA FLS Trial Advocacy Institute
During the OBA FLS Trial Advocacy Institute, attendees will develop their skills in
planning and developing a case from intake through trial. By working with an
experienced family law mentor and presenting their case to family law judges,
attendees will gain the experience and training to represent their client more
effectively at trial. Each attendee will prepare for and conduct a pretrial
conference and a trial, including opening statement, direct and cross
examination of witnesses and experts, and closing arguments. Attendees at
this year’s OBA FLS Trial Advocacy Institute will learn how to effectively try a
Dissolution of Marriage case involving custody and debt/asset division,
including direct and cross examination of a mental health care expert witness.
This program is limited to 20 attendees. Thirty-seven hours of CLE credit is
approved by the MCLE department.
Cost: $1,500.00 for OBA FLS members
Tuition includes all of the Institute materials, breakfast, lunches and nonalcoholic beverages during the six program days, with a final luncheon on July
18, 2015. Payment is due by June 1, 2015. A $100.00 fee will be charged for
cancellations made before June 15, 2015. A $500.00 fee will be charged for
cancellations made after June 15, 2015. No refunds or transfers will be
provided if notice is not provided, by e-mail, to [email protected] before 5
o’clock p.m. on July 3, 2015. A limited number of spots are available and a
waiting list will be kept. Transportation and overnight lodging is at the
attendee's own expense, together with any office supplies for their respective
motions and trial exhibits. Discounted hotel rates are available through the
Homewood Inn and Suites in Bricktown. A portion of the TAI costs are
underwritten by OBA FLS Practical Manual funds.
__________________________________________
Name (Please Print or Type)
__________________________________________
Street Address
________________________________________
Telephone
_______________________________________
OBA # (For CLE Credit)
_______________________________________
City, State, Zip
_______________________________________
Email
For ☐ Visa or ☐ MasterCard (Processed through OBA) $_________________ (amount to charge)
Credit Card #______________________________________________
Expiration Date_____________________________________________
Authorized Signature___________________________________________________________________
☐ I am a 2015 OBA FLS Member
☐ I am not an OBA FLS Member, add $25.00 to my charge for 2015 membership (required)
Caption describing picture or graphic.
Return this form and check payable (if not paying by credit card) to OBA Family Law Section to:
Craig Combs, 1901 N. Lincoln Blvd., Oklahoma City, OK 73152 or by fax to (405) 416-7001.
You can also visit our website to register and pay online at www.flstai.com .
Oklahoma Family Law Trial Advocacy Institute � 2015
820
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
SCHOLARLY ARTICLE
Tort Reform and Jury Instructions
By Charles W. Adams
T
his article discusses two recent statutes and the efforts of the
Oklahoma Committee on Uniform Jury Instructions (Civil
OUJI Committee) to recommend uniform jury instructions
based on these statutes to the Oklahoma Supreme Court. The first
statute is Okla. Stat. Title 12, §577.4, which deals with an instruction to juries that awards for damages for personal injuries and
wrongful death that are nontaxable. The second statute is Okla.
Stat. Title 23, §61.2, which imposes a $350,000 cap on noneconomic losses for personal injuries.
The Civil OUJI Committee determined that
both statutes raised possible constitutional
issues, and so, decided to flag these issues in its
recommendations to the Oklahoma Supreme
Court. The committee comments to the proposed jury instruction on nontaxability of damages awards pointed out that there were
instances when damages for personal injury
awards were taxable and that there may be a
constitutional question whether Okla. Stat.
Title 12, §577.4 violated the doctrine of separation of powers. The Civil OUJI Committee presented two alternatives for the proposed jury
instruction on the $350,000 cap on noneconomic losses for personal injuries. The first alternative followed the language of Okla. Stat. Title
23, §61.2 and did not inform the jury of the
$350,000 cap on noneconomic losses, but it
noted a constitutional question in the committee comments to the jury instruction. The second alternative informed the jury of the
$350,000 cap on noneconomic losses, contrary
to a provision in Okla. Stat. Title 23, §61.2, and
it explained the reason for doing so in the committee comments to the jury instruction and
verdict form.
The Oklahoma Supreme Court did not adopt
the proposed jury instruction on nontaxability
Vol. 86 — No. 11 — 4/18/2015
of damages awards or either alternative for the
$350,000 cap on noneconomic losses that the
Civil OUJI Committee had proposed. Without
having the benefit of actual cases before it, the
Supreme Court declined to resolve the possible
constitutional issues raised by the two statutes.
This article provides a brief discussion of the
possible constitutional issues that are raised by
the two statutes, and it includes the text of the
proposed recommendations that the Civil OUJI
Committee presented to the Oklahoma Supreme Court.
NONTAXABILITY OF AWARDS FOR
PERSONAL INJURIES AND
WRONGFUL DEATH
The only case in which the Oklahoma
Supreme Court has addressed the issue of
whether a jury instruction on the taxability of
an award of damages should be given is Missouri-K.T.R.R. v. Miller.1 The case was brought
under the Federal Employers Liability Act
(FELA), and on appeal, the defendant argued
that the trial court erred by admitting evidence
of the plaintiff’s gross income without giving
instructions on the income tax on future earnings. The Oklahoma Supreme Court held that
the income tax consequences of the injury and
the award should not be considered by the
The Oklahoma Bar Journal
821
jury.2 The original edition of the Oklahoma
Uniform Jury Instructions (OUJI) provided at
Instruction No. 4.17, which was titled “Effect of
Income Tax on Award of Damages: ‘No Instruction Should Be Given’.” The comment to Instruction No. 4.17 stated: “In Missouri-K.T.R.R
v. Miller, 486 P.2d 630, 636 (Okla. 1971), the
Oklahoma Supreme Court ruled that the
income tax consequences of injury and award
are not a proper consideration for the jury.”
Instruction No. 4.17 was not changed until
2014.
The Oklahoma Legislature adopted Okla.
Stat. Title 12, §577.4 in 2011. It provides:
The Oklahoma Uniform Jury Instructions
(OUJI) applicable in a civil case shall
include an instruction notifying the jury
that no part of an award for damages for
personal injury or wrongful death is subject to federal or state income tax. Any
amount that the jury determines to be
proper compensation for personal injury or
wrongful death should not be increased or
decreased by any consideration for income
taxes. In order to be admitted at trial, any
exhibit relating to damage awards shall
reflect accurate tax ramifications.
This statute is unusual because it is directed
to the content of the OUJI, rather than the law
that governs in the state courts. In addition, it
involves the effect of federal income tax law,
rather than state law. Although in most cases,
damages for personal injuries are not subject to
federal income tax, there are circumstances
where they may be taxable. For example, if a
taxpayer had deducted medical expenses in a
previous tax year, a recovery for medical
expenses would be taxable.3 In addition, unlike
compensatory damages for personal injuries,
punitive damages are taxable, but the jury
would not be aware of this distinction unless it
was instructed on it. Moreover, the statute
refers only to the taxability of a damages
award to a plaintiff, but it does not address
whether a damages award would be deductible by a defendant. The statute is also problematic, because it directs that juries must be
informed that damages awards for personal
injuries are not taxable, thereby inviting them
to consider income taxes, but then it states that
juries must not increase or decrease their
awards on account of any consideration for
income taxes. Finally, instructing juries on the
applicable law in a case is a judicial function,
rather than a legislative function, and there822
The statute is also
problematic, because it directs that
juries must be informed that
damages awards for personal
injuries are not taxable, thereby
inviting them to consider income
taxes, but then it states that juries
must not increase or decrease
their awards on account of any consideration for income taxes.
fore, section 577.4 may violate the separation of
powers doctrine in the Okla. Const., Art. 4, §1.
The Civil OUJI Committee submitted the following proposed revisions to Instruction 4.174
to the Oklahoma Supreme Court in 2012:
Instruction No. 4.17
Effect Of Income Tax On Award Of Damages
NO INSTRUCTION SHOULD BE GIVEN
[Name of Plaintiff] will not be required
to pay any federal or state income taxes on
any amount that you award for damages
for (personal injury)/(wrongful death).
[This rule does not apply to [the portion of]
the claim of [Name of Plaintiff] for [specify those claims that are subject to federal
or state income taxes]]. You should not
add to or subtract from the amount, if any,
you determine to be proper compensation
for (personal injury)/(wrongful death)
because of income taxes.
Notes on Use
This Instruction should be given only in
cases where the damages sought for personal injury or wrongful death are nontaxable. The second sentence that is shown in
brackets should be given if there are claims
or portions of a claim that are taxable so
that the jury instruction will not be inaccurate or confusing to the jury. The trial
court should decide what damages are or
are not subject to income tax based on the
circumstances of the particular case.
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
Instruction No. 4.17
Comments
This Instruction is included on account of
12 O.S. 2011 §577.4. See also 26 U.S.C.
§104(a)(2) (damages for personal physical
injuries, other than punitive damages, are
not taxable). The exclusion for damages for
personal physical injuries covers not only
medical bills but also amounts awarded for
pain and suffering, loss of enjoyment, and
lost earnings. See C.I.R. v. Schleier, 515 U.S.
323, 329 (1995) (dictum); Martin J. McMahon, Jr. & Lawrence A. Zelenak, Fed. Inc.
Tax’n of Indiv. ¶7.03 (2011) (“When the
exclusion [for damages for personal physical injuries] applies, it covers all elements
of actual damages — nonpecuniary damages (pain and suffering, loss of enjoyment,
and the like, medical expenses, and lost
wages).”). Amounts received for personal
injuries are taxable, however, to the extent
that they are attributable to deductions
allowed for medical and other similar
expenses. See 26 CFR Part 1 §1.104-1 (a). In
addition, damages for emotional distress
are taxable unless the emotional distress is
attributable to a physical injury. Id. §1-104
(c). This brief summary of the federal and
state tax law is not exhaustive.
In Missouri-K.T. R.R. v. Miller, 1971 OK 68,
¶38, 486 P.2d 630, 636 (Okla. 1971), the
Oklahoma Supreme Court ruled that the
income tax consequences of injury and
award are not a proper consideration for
the jury. There may be a question whether
12 O.S. 2011 §577.4 violates the separationof-powers doctrine described in Yocum v.
Greenbriar Nursing Home, 2005 OK 27, ¶13,
130 P.3d 213, 220, as follows:
Legislative power is mainly confined to
making law, while the judiciary is invested primarily with an adjudicative function — the authority to hear and determine forensic disputes. A legislative
removal of the discretionary component
in adjudicative process is a usurpation
of the courts’ freedom that is essential to
the judiciary’s independence from the
other two branches.
Instructing a jury on the applicable law in
a case is a fundamental adjudicative function, rather than a legislative function.
In its order dated March 24, 2014,5 the Oklahoma Supreme Court adopted the following
revision to Instruction No. 4.17:
Vol. 86 — No. 11 — 4/18/2015
Effect Of Income Tax On Award of Damages
NO INSTRUCTION SHOULD BE GIVEN
Comments
Title 12 O.S. 2011 §577.4 (Laws 2011, c. 16,
§1, eff. Nov. 1, 2011), reads as follows:
Tax Consequences of Award for Damages in Personal Injury and Wrongful Death
Actions
The Oklahoma Uniform Jury Instructions
(OUJI) applicable in a civil case shall
include an instruction notifying the jury
that no part of an award for damages for
personal injury or wrongful death is subject to federal or state income tax. Any
amount that the jury determines to be
proper compensation for personal injury or
wrongful death should not be increased or
decreased by any consideration for income
taxes. In order to be admitted at trial, any
exhibit relating to damage awards shall
reflect accurate tax ramifications.
In Missouri-K.T.R.R. v. Miller, 1971 OK 68
¶38, 486 P.2d 630, 636, the Oklahoma
Supreme Court ruled that the income tax
consequences of a personal injury award
are not a proper consideration for the jury.
While the Supreme Court’s order deleted the
capitalized direction that no instruction should
be given, it did not specify how the trial court
should instruct the jury on the effect of income
tax on the award of damages. The order quoted
Okla. Stat. Title 12, §577.4 in the comments,
and it also retained the prior comments, which
cited the Missouri-K.T.R.R. case and stated that
income tax consequences are not a proper subject for the jury. Instead of resolving how trial
courts should instruct juries on the tax consequences of damages awards, the Supreme
Court gave mixed signals. Thus, it appears that
the Oklahoma Supreme Court will require the
issues surrounding the giving of jury instructions on the taxability of damages awards to be
presented in the context of a justiciable controversy,6 instead of in the context of reviewing
proposed revisions to Instruction No. 4.17 from
the Civil OUJI Committee, in order for it to
resolve whether and how juries should be
instructed on the tax consequences of damages
awards. The standard of review on appeal for
jury instructions “is whether the jury was misled to the extent of rendering a different verdict
The Oklahoma Bar Journal
823
than it would have rendered, if the alleged
errors had not occurred.”7 Seeking an extraordinary writ in an original proceeding may be
another means to obtain review by the Oklahoma Supreme Court of jury instructions on
the taxability of damages awards by the Oklahoma Supreme Court.8
THE $350,000 CAP ON DAMAGES FOR
NONECONOMIC LOSS
The original version of Okla. Stat. Title 23,
§61.2 was enacted in 2009 as part of the Comprehensive Lawsuit Reform Act.9 It provided
for a $400,000 cap on damages, but it was conditioned on the establishment of a Health Care
Indemnity Fund, which would be used to pay
damages for noneconomic losses in medical
malpractice cases that exceeded the cap.10 The
Health Care Indemnity Fund was never established, but the requirement for it was removed
when Okla. Stat. Title 12, §61.2 was amended in
2011. In addition, the amount of the cap was
reduced from $400,000 to $350,000.11 The statute
also provides that there is no limit on the amount
of noneconomic damages if the judge and jury
determine by clear and convincing evidence that
the defendant’s actions were in reckless disregard for the rights of others, grossly negligent,
fraudulent or intentional or with malice.12
Jury instructions on how the jury should
allocate damages between economic and noneconomic losses would certainly be needed if
the jury’s award were to include noneconomic
losses in excess of the $350,000 cap. The Civil
OUJI Committee decided that the jury instructions should not have to be given in every case
where a plaintiff sought more than $350,000 for
total compensatory damages, however, because
the plaintiff might not actually recover more
than $350,000. The Civil OUJI Committee concluded that jury instructions on the $350,000
cap should be reserved for a second stage of
the trial that would be held if the jury awarded
more than $350,000 for total compensatory
damages in the first stage. The Committee recognized, though, that whether to have two
stages or a single stage was a matter for the
trial court’s discretion.
The next issue that the Civil OUJI Committee
considered was whether the $350,000 cap
should be applied to the damages that the jury
determined were sustained by the plaintiff, or
to the amount of the award after reduction for
the percentage of the plaintiff’s comparative
fault. The statute did not expressly address this
824
issue, but the Civil OUJI Committee noted that
paragraph B defined the $350,000 cap in terms
of “the amount of compensation which a trier
of fact may award a plaintiff for noneconomic
loss” and paragraph D required the verdict to
specify the “total compensatory damages recoverable by the plaintiff.” The Civil OUJI Committee concluded that this wording favored an
interpretation that the $350,000 cap should be
applied to the net amount after reduction for the
percentage of the plaintiff’s comparative fault,
because that amount was what the trier of fact
would award the plaintiff and what would be
recoverable by the plaintiff.
The Civil OUJI Committee also addressed
the constitutionality of Okla. Stat. Title 23,
§61.2(F) of the statute, which provides:
F. In any civil action arising from claimed
bodily injury which is tried to a jury, the
jury shall not be instructed with respect to
the limit on noneconomic damages set
forth in subsection B of this section, nor
shall counsel for any party, nor any witness
inform the jury or potential jurors of such
limitations.
Paragraph F appears to conflict with Article
7, §15 of the Oklahoma Constitution, which
provides: “In all jury trials the jury shall return
a general verdict, and no law in force, nor any
law hereafter enacted, shall require the court to
direct the jury to make findings of particular
questions of fact, but the court may, in its discretion, direct such special findings.” In Smith
v. Gizzi,13 the Oklahoma Supreme Court analyzed how Article 7, §15 applied to the Oklahoma comparative negligence statute,14 which
provided for a plaintiff’s recovery to be diminished in proportion to a plaintiff’s negligence.
The Oklahoma Supreme Court decided that a
special verdict was characterized by the jury
being limited to making special findings and
not knowing the legal effect of its answers.15
The Supreme Court upheld the trial court’s use
of a verdict that included special findings concerning the percentage of negligence attributable to both the plaintiff and defendant, because
the jury instructions and verdict form informed
the jury of the effect that the special findings
would have on the outcome. The Supreme
Court explained:
The jury not only must know the legal
effect of its findings, but must determine
the ultimate result, limited only by the special findings as to each parties [sic] degree
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
of negligence. Such special findings are
constitutionally and statutorily permitted.
Under a general verdict, a jury must know
the effect of its answers or it is not a general verdict.16
The problem presented by Okla. Stat. Title 23,
§61.2(F) is that it states that the jury must not
be instructed or informed with respect to the
limit on noneconomic damages, and therefore,
it appears to conflict with Okla. Const. Art. 7,
§15, as interpreted by the Oklahoma Supreme
Court in Smith v. Gizzi.
As a result of the apparent conflict between
Okla. Stat. Title 23, §61.2(F) and Okla. Const.
Art. 7, §15, the Civil OUJI Committee submitted to the Oklahoma Supreme Court two alternative versions of proposed jury instructions
and verdict forms concerning the $350,000 cap
on noneconomic loss. The first alternative did
not refer to the $350,000 cap on noneconomic
loss, but the comments to the jury explained
that there was a potential question concerning
the constitutionality of not instructing the jury
with respect to the $350,000 cap on noneconomic loss. The text of the first alternative is set
out below.
Instruction No. 9.52 (First Alternative)
Supplemental Verdict Form
Specifying Economic and Noneconomic
Losses
Directions
Now that you have returned a verdict in
favor of [Plaintiff] in the amount of $
________ for the total compensatory damages for [Plaintiff], you must now make
additional findings on the Supplemental
Verdict Form. [On the Supplemental Verdict Form, you must specify what portion
of the total compensatory damages is for
economic loss for [Plaintiff] and what portion of the total compensatory damages is
for noneconomic loss for [Plaintiff].]
[First, you must decide whether or not
you find by clear and convincing evidence
that the conduct [was/(amounted to)]
[(reckless disregard for the rights of others)/(gross negligence)/fraud/(intentional
or malicious)], and then indicate what you
have decided with a check mark.]
[“Reckless disregard of another’s rights”
means that the defendant was either aware,
or did not care, that there was a substantial
and unnecessary risk that his, her or its
Vol. 86 — No. 11 — 4/18/2015
conduct would cause serious injury to others. In order for the conduct to be in reckless disregard of another’s rights, it must
have been unreasonable under the circumstances and there must have been a high
probability that the conduct would cause
serious harm to another person.]
[“Gross negligence” means the want of
slight care and diligence.]
[“Fraud” consists of the following acts
committed with intent to deceive another
party: (the suggestion, as a fact, of that
which is not true, by one who does not
believe it to be true)/ (the positive assertion in a manner not warranted by the
information of the person making it, of
that which is not true, though he believe
it to be true)/(the suppression of that
which is true, by one having knowledge
or belief of the fact)/(a promise made
without any intention of performing it).]
[“Malice” involves hatred, spite or ill
will, or the doing of a wrongful act intentionally without just cause or excuse.]
[If you find by clear and convincing evidence that the conduct [was/(amounted
to)] [(reckless disregard for the rights of
others)/(gross negligence)/fraud/(intentional or malicious)], you must then specify what portion of the total compensatory
damages is for economic loss for [Plaintiff]
and what portion of the total compensatory damages is for noneconomic loss for
[Plaintiff].]
“Economic loss” means any type of
financial harm, past or future, from a bodily injury including:
1. All wages, salaries or other compensation;
2. All costs for medical care or treatment,
rehabilitation services, or other care, treatment, services, products or accommodations, and
3. Any other costs on account of a bodily
injury.
“Noneconomic loss” means any type of
nonfinancial harm from a bodily injury
including damages for pain and suffering,
loss of society, consortium, companionship, care, assistance, attention, protection,
advice, guidance, counsel, instruction,
The Oklahoma Bar Journal
825
training, education, disfigurement, mental
anguish and any other intangible loss.
Notes on Use
This Instruction and the following Supplemental Verdict Form should be used if
the jury has returned a verdict for personal
injury to a plaintiff of more than $350,000
after reduction for any percentage of comparative negligence. The trial court should
list only the examples of economic and
noneconomic loss and the definitions of
fraud, gross negligence, intent, malice, and
reckless disregard of another’s rights that
are applicable. The trial court should include the paragraph of this instruction
concerning the finding by clear and convincing evidence with respect to the conduct of the defendant only if the applicable
conduct of the defendant has been alleged
and supported by proof at trial.
If there have not been allegations of
fraud, gross negligence, intent, malice, and
reckless disregard of another’s rights, or
they have not been supported by proof at
trial, the trial court should include the sentence of the first paragraph that appears in
brackets, omit the next paragraphs that
appear in brackets, and then give the definitions of economic and noneconomic loss
in the instruction. On the other hand, if
there have been allegations of fraud, gross
negligence, intent, malice, and reckless disregard of another’s rights that have been
supported by proof at trial, the trial court
should omit the sentence of the first paragraph that appears in brackets, and then
give the next paragraphs in brackets that
are applicable along with the definitions of
economic and noneconomic loss in the
instruction.
This instruction and the following Supplemental Verdict Form contemplate a two
stage process in which the jury would first
return a verdict, and then if the verdict for
bodily injury exceeds $350,000 after reduction for any comparative negligence of the
plaintiff, the jury would then allocate the
amount of compensatory damages between
economic and noneconomic losses. If the
verdict was for the defendant or did not
exceed $350,000, it would be unnecessary
for the jury to address the allocation between economic and noneconomic losses,
and therefore, a two stage process would
826
be more efficient than a single stage process. Also, a two stage process could be less
confusing for the jury if the jury was also
determining comparative negligence. A
single stage process might be more efficient
in some cases, however, and then it would
be appropriate for the trial court to exercise
its discretion to consolidate the two stages
into a single stage by combining the substance of this instruction and the Supplemental Form to the appropriate instructions and verdict forms.
Comments
This instruction and the following Supplemental Verdict Form conform to the
requirements of 23 O.S. 2011 §61.2, which
applies to actions filed on or after Nov. 1,
2011. Id. §61.2(I). Section 61.2 requires the
jury to return a general verdict accompanied by interrogatories that specify the
plaintiff’s total compensatory damages,
and the portions of the total compensatory
damages for economic and noneconomic
loss. Id. §61.2(D). In addition, §61.2(E) requires the jury to specify, if alleged, whether the conduct of the defendant was, or
amounted to, reckless disregard for the
rights of others, gross negligence, fraud, or
intentional or malicious conduct. Section
61.2(F) provides that the jury shall not be
instructed with respect to the $350,000 limit on noneconomic loss.
There may be a question concerning the
constitutionality of not instructing the jury
with respect to the limit on noneconomic
damages. The Oklahoma Supreme Court
addressed the application of Okla. Const.
Art., VII, §15 to Oklahoma’s comparative
negligence statutes in Smith v. Gizzi, 1977
OK 91, 564 P.2d 1009. Art. VII, §15 provides: “In all jury trials the jury shall return
a general verdict, and no law in force nor
any law hereafter enacted, shall require the
court to direct the jury to make findings of
particular questions of fact but the court
may, in its discretion, direct such special
findings.” The Supreme Court held that the
comparative negligence statutes did not
violate Art., VII, §15, because they did not
require a special verdict. The Supreme
Court reasoned that under a general verdict, the jury must know the effect of its
answers to special findings, and that if the
jury did not know the effect of its answers,
the verdict would be a special verdict that
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
would violate Okla. Const. Art., VII, §15.
1977 OK 91, ¶11-12, 564 P.2d 1009, 1012-13.
Instruction No. 9.53 (First Alternative)
Supplemental Verdict Form
Specifying Economic and Noneconomic
Losses
IN THE DISTRICT COURT OF ____________
COUNTY,
STATE OF OKLAHOMA
______________ )
Plaintiff,)
vs.
)
______________ )
Defendant,)
CASE NO. ______
SUPPLEMENTAL VERDICT FORM
We, the jury, empaneled and sworn in the
above entitled cause, do, upon our oaths, find
as follows:
1. The amount of total compensatory damages awarded [after reduction for comparative
negligence] to [Plaintiff] is $ ____________ [to
be filled in by the trial court].
The portion of total compensatory damages
for economic loss is $ ____________; and
The portion of total compensatory damages
for noneconomic loss is $ ____________.
The sum of the portions for economic and
noneconomic loss must equal the total compensatory damages set out above.
2. We further find by clear and convincing
evidence that the conduct of [Defendant]
(Check any that are applicable):
____ was in reckless disregard for the rights
of others
____ amounted to gross negligence
____ amounted to fraud
____ was intentional or malicious
____ none of the above
_________________
Foreperson
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
_________________
Vol. 86 — No. 11 — 4/18/2015
_________________
Notes on Use
This Supplemental Verdict Form should
be used if the jury has returned a verdict
for personal injury to a plaintiff of more
than $350,000 after reduction for any percentage of comparative negligence. The
trial court should specify the net award
after reduction for any percentage of comparative negligence in paragraph 1. The
trial court should include paragraph 2 to
the extent that any applicable conduct of
the defendant has been alleged and supported by proof at trial.
The second alternative that the Civil OUJI
Committee submitted to the Oklahoma Supreme Court differed from the first alternative
by including the following language in both
proposed Instruction No. 9.52 and the verdict
form in Instruction 9.53 to inform the jury of
the $350,000 cap on noneconomic loss:
The law provides that the amount of
compensation for noneconomic loss from
all defendants is limited to $350,000, unless
you find by clear and convincing evidence
that their conduct [was/(amounted to)]
[(reckless disregard for the rights of others)/(gross negligence)/fraud/(intentional
or malicious)].
The Oklahoma Supreme Court did not
include any instruction or verdict form concerning the $350,000 cap for noneconomic
losses in its order dated March 24, 2014, which
adopted amendments to the Oklahoma Uniform Jury Instructions — Civil (Second).17 The
Oklahoma Supreme Court eventually will have
to resolve how juries should be instructed in
personal injury cases where the $350,000 cap
applies, but the Supreme Court will require a
justiciable controversy to do so.
CONCLUSION
The statutes dealing with the taxability of
damages for personal injuries and the $350,000
cap on noneconomic losses present challenges
for drafting jury instructions because they may
involve possible constitutional issues. Resolution of these issues will require attorneys to
make appropriate records in the trial courts
and then to raise these issues properly on
appeal.
1. 1971 OK 68, ¶38, 486 P.2d 630, 636.
2. Id. The Oklahoma Supreme Court relied on an annotation at 63
A.L.R.2d 1393, which indicated that the United States Supreme Court
and all but one state supreme court had ruled that income tax considerations should not be considered, because they were too conjectural.
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827
After the Missouri-K.T.R.R. decision, the United States Supreme Court
ruled in Norfolk & W. Ry. v. Liepelt, 444 U.S. 490, 497-98 (1980), that a
brief jury instruction explaining that damages received on account of
personal injuries are not taxable income was required as a matter of
federal law for all FELA cases in order to prevent jurors from mistakenly increasing awards to compensate for the effect of income taxes.
3. See 26 CFR Part 1 §1.104-1 (a). Also, an award of damages for
emotional distress is taxable if it is not attributable to a physical injury.
Id. §1.104-1 (c).
4. The Civil OUJI Committee also submitted a proposed revision to
Instruction No. 5.9, which stated that punitive damages were taxable.
The Notes on Use to the proposed revision said that the instruction on
taxability of punitive damages should be given in the second stage of
the trial, only if the trial court instructed the jury that the plaintiff
would not be required to pay income taxes on an award for damages
for personal injury or wrongful death during the first stage of the trial.
The Oklahoma Supreme Court did not adopt the proposed revision to
Instruction No. 5.9, but it did update several citations in the Notes on
Use to Instruction No. 5.9.
5. In re: Amendments to the Oklahoma Uniform Jury Instructions,
2014 OK 17.
6. See Tulsa Industrial Authority v. City of Tulsa, 2011 OK 57, ¶13, 270
P.3d 113, 120 (“The term ‘justiciable’ refers to a lively case or controversy between antagonistic demands.”).
7. Johnson v. Ford Motor Co., 2002 OK 24 ¶17, 45 P.3d 86, 93.
8. See Okla. Const. Art. 7, §4; Okla. Stat. Title 12, §1451; Okla. Sup.
Ct. R. 1.190-1.191.
9. 2009 Okla. Sess. Laws c. 228, §24. The Comprehensive Lawsuit
Reform Act was declared unconstitutional in Douglas v. Cox Retirement
Props., 2013 OK 37, 302 P.3d 789, because the Oklahoma legislature
passed it through unconstitutional log-rolling in violation of the single
subject rule in Okla. Const. Art. 5,§57. Section 24 was not affected by
Douglas, however, because Okla. Stat. Title 23, §61.2 was amended by
a separate statute before Douglas was decided.
10. Id. at ¶A, J.
11. 2011 Okla. Sess. Laws c. 14, §1.
12. Okla. Stat. Title 23, §61.2(C).
13. 1977 OK 91, 564 P.2d 1009.
14. Okla. Stat. Title 23, §11 (Supp. 1976), repealed, 1979 Okla. Session
Laws c. 38 §14. .
15. Smith, 1977 OK 91, ¶11, 564 P.2d 1009, 1013.
16. d.
17. In re: Amendments to the Oklahoma Uniform Jury Instructions,
2014 OK 17.
About The Author
Charles W. Adams has been a
professor at the TU College of
Law since 1979, where he
teaches civil procedure and evidence. He has been a member of
the OBA Civil Procedure Committee since 1983, serving as
chairman from 1987-1989 and
1994-2001. He co-drafted much of the Oklahoma
Pleading Code and its Commentary and co-authored
Civil Procedure of Vernon’s Oklahoma Forms, the
Oklahoma Discovery Practice Manual, Oklahoma Lien
Laws and Oklahoma Civil Pretrial Procedure.
NOTICE OF HEARING ON THE PETITION FOR REINSTATEMENT
OF LOUIS J. BODNAR, SCBD #6202
TO MEMBERSHIP IN THE OKLAHOMA BAR ASSOCIATION
Notice is hereby given pursuant to Rule 11.3(b), Rules Governing Disciplinary Proceedings, 5 O.S., Ch. 1, App. 1-A, that a hearing will be
held to determine if Louis J. Bodnar should be reinstated to active
membership in the Oklahoma Bar Association.
Any person desiring to be heard in opposition to or in support of the
petition may appear before the Professional Responsibility Tribunal
at the Oklahoma Bar Center at 1901 North Lincoln Boulevard, Oklahoma City, Oklahoma, at 9:30 a.m. on Thursday, May 14, 2015. Any
person wishing to appear should contact Gina Hendryx, General
Counsel, Oklahoma Bar Association, P.O. Box 53036, Oklahoma
City, Oklahoma 73152, telephone (405) 416-7007.
828
PROFESSIONAL RESPONSIBILITY TRIBUNAL
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Vol. 86 — No. 11 — 4/18/2015
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829
SCHOLARLY ARTICLE
An Overview of Oklahoma
Product Liability Law
A
By Chris Pearson, Thomas G. Wolfe, Lyndon Whitmire
and Cody J. Cooper
ny discussion of Oklahoma product liability law must
start where Oklahoma product liability law started, with
the Oklahoma Supreme Court’s 1974 opinion in Kirkland v.
General Motors Corp.1 In Kirkland, the plaintiff was driving her
friend’s new Buick Opel on Interstate 44 in Tulsa County.2 It was
alleged that the driver’s seat back suddenly collapsed, leaving
her unable to control the car. As a result, her vehicle hit the highway median and then struck an oncoming vehicle head-on.3
Approximately one month after the accident, General Motors
(GM) issued a recall letter to all owners of Buick Opels concerning the “seat back adjustment mechanism.”4
The plaintiff’s pleadings alleged that her injuries were proximately caused by a defective seat
and GM’s breach of the implied warranty of fitness.5 During the trial, GM contended that the
seat was not defective and that the accident was
caused by the plaintiff driving while intoxicated
and at excessive speeds, which GM claimed constituted a misuse of the product. Plaintiff appealed
after the jury returned a verdict for GM.6
As Justice Doolin predicted in Kirkland, that
case “set the pattern” in Oklahoma for product
liability litigation. Some 40 years later, most
Oklahoma federal and state court product liability opinions cite Kirkland at least once and it
remains the leading case on various product liability issues. This article (an update on two previous iterations) discusses the developments in
Oklahoma product liability law since the issuance of the Kirkland opinion.
WHO MAY BE A PLAINTIFF?
In Moss v. Polyco Inc.,7 an opinion rendered
on the same day as Kirkland, the court dis-
830
cussed the reach of the product liability cause
of action. In Moss, the plaintiff, a customer in a
restaurant, was injured when a plastic container of drain cleaner fell from a bathroom
shelf, causing the contents to come in contact
with the plaintiff’s body.8 The court noted there
was no adequate rationale or theoretical explanation why nonusers and nonconsumers should
be denied recovery against the manufacturer of
a defective product, and thus expressly included bystanders in the class of potential plaintiffs.9
In so doing, the court agreed that the manufacturer who places into commerce a product
rendered dangerous to life or limb by reason of
some defect is strictly liable in tort to the one
who sustains injury because of the defective
condition.10 More than two decades later, Oklahoma extended the right of recovery to
bystanders who: 1) are directly physically
involved in an incident; 2) are injured from
viewing the injury to another as opposed to
learning of it later; and 3) had a familial relationship to the injured party.11
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Vol. 86 — No. 11 — 4/18/2015
In a product liability cause of action involving
death, the determination as to who may be a
plaintiff is governed by statute.12
A significant restriction on the ability of an
injured party to pursue a product liability cause
of action may arise in “failure to warn” cases.13
The duty to warn extends to an ordinary consumer or user, which has been defined as “one
who would foreseeably be expected to purchase
the product involved.”14 In Rohrbaugh v. OwensCorning Fiberglass Inc.,15 the court found that the
wife of an insulator, whose only exposure to the
asbestos insulation was her exposure to her husband’s clothes, was not a foreseeable purchaser
or user of the product. Thus, the court reasoned,
the manufacturer had no duty to warn the wife
of the danger of exposure to its products.16
WHO MAY BE A DEFENDANT?
Expanding on its use of the term “manufacturers’ product liability,” the Kirkland court included, within the meaning of “manufacturers,” all
“processors, assemblers, and all other persons
who are similarly situated in processing and
distribution.”17 Later opinions have recognized
that product liability causes of action may be
brought against a product retailer18 as well as a
commercial lessor,19 and, in the proper situation,
a product liability action may be available
against the supplier of a component part.20 In
short, Oklahoma courts have recognized that a
product liability cause of action may properly be
stated against those engaged in the business of
buying and selling products who inject a defective product into the stream of commerce,
whether through sale or other means.21 However, all defendants in the chain of distribution are
not automatically liable for a defective product.
Responsibility for the defect must be traced to
the proper defendants.22 Additionally, a bailor
may not be held liable under a product liability
theory where the bailor maintains control of the
product, and thus, does not inject it into the
stream of commerce.23
Notwithstanding the breadth of Kirkland and
its progeny, it is incumbent upon the plaintiff,
even in a strict liability case, to establish a causal
link between the defendant’s acts and/or omissions and the plaintiff’s injuries and damages.
As the Oklahoma Supreme Court noted in Case
v. Fiberboard Corp.,24 the public policy favoring
recovery by an innocent plaintiff does not justify
the abrogation of the defendant’s right to have
“a causative link proven between the defendant’s specific tortious acts and the plaintiff’s
Vol. 86 — No. 11 — 4/18/2015
injuries where there is a lack of circumstances,
which would insure there was a significant
probability that those acts were related to the
injury.”25 In Case, the court refused to apply the
market share liability, alternative liability, concert of action and enterprise liability theories
that allow a plaintiff to circumvent the “significant probability” standard.26
It is clear that a product liability cause of
action may not be brought against an ultimate
consumer of the product in question. In Potter v.
Paccar Co.,27 the court stated that the product
liability theory was not “so expansive that it
permits an injured party to require everyone to
defend his or her relationship to the defective
product.”28 The court thus granted a motion to
dismiss filed by the owner of a battery that
exploded and caused the plaintiff to lose sight in
his right eye. In Allenberg v. Bentley Hedges Travel
Serv. Inc.,29 the court held that product liability
theory does not apply to the commercial seller of
a used product if the alleged defect was not created by the seller, and if the product was sold in
essentially the same condition as when it was
obtained for resale.30 Likewise, a parent company that sold used equipment to a related entity
whose employees were later injured using that
same equipment was not considered a “seller”
for purposes of product liability.31 The court
defined a “commercial seller” as a seller who is
in the business of selling used goods.32
Like courts in numerous other jurisdictions,
the Oklahoma Supreme Court has held that a
successor corporation may be liable on a product
liability theory for injuries caused by the products manufactured or distributed by the acquired
entity. In Pullis v. United States Electrical Tool Co.,33
the court stated that as a general rule, where one
company sells or otherwise transfers all its
assets to another company, the latter is not liable
for the debts and liabilities of the transferor.
However, exceptions to the rule exist where
there is an agreement to assume such debts or
liabilities, where the circumstances surrounding
the transaction warrant a finding that there was
a consolidation or merger of the corporations,
and where the purchasing corporation was a
mere continuation of the selling company.34
Similarly, the Oklahoma Supreme Court has
held that a claimant, injured by a defective product after the dissolution of the manufacturing
corporation, may, under the proper facts, seek
recovery against the former shareholders of the
corporation to the extent of the assets received
by them.35
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WHAT ARE THE BASIC ELEMENTS IN A
PRODUCT LIABILITY ACTION?
In Kirkland, the court noted that the plaintiff
must prove three elements to prevail in a product liability action:
Plaintiff must prove the product was the
cause of the injury; the mere possibility
that it might have caused the injury is not
enough.
Plaintiff must prove that the defect existed in the product, if the action is against
the manufacturer, at the time the product
left the manufacturer’s possession and
control. [Citation omitted.] If the action is
against the retailer or supplier of the article, the plaintiff must prove the article was
defective at the time of sale for public use
or consumption or at the time it left the
retailer’s possession and control.
Plaintiff must prove that the defect made
the article unreasonably dangerous to him
or his property as the term “unreasonably
dangerous is ... defined.”36
Early post Kirkland cases have, in reviewing
the elements that the plaintiff must establish to
prevail in a product liability case, either restated
or rephrased the above quoted passage from the
Kirkland decision.37 However, more recent decisions have essentially added a “fourth element”
requiring the plaintiff to establish personal injury or damage to property other than the allegedly defective product.38
Causation. The causation requirement, the
same requirement that has existed in traditional
negligence actions, has frequently been cited as
a necessary element in the product liability
plaintiff’s case.39 At least one court has refused to
apply the doctrine of res ipsa loquitur in an Oklahoma product liability case, but the plaintiff
need not exclude all other possible conclusions.40
Additionally, at least one court has held that the
“but for” theory of causation is illustrative of
negligent conduct, but is inapplicable in proving
products liability actions.41
The abnormal use or misuse of a product may
serve as a complete defense to the product liability action to the extent that the abnormal use or
misuse defeats the causation requirement.42
Where it is established that a subsequent modification of the product, rather than a manufacturing or design defect in the product, is the
intervening and superseding cause of the injury
(as opposed to the concurrent cause), no cause of
832
action exists against the manufacturer.43 Similarly, the plaintiff’s recovery may be barred by a
finding that the injuries and damages were
caused solely by someone other than the named
defendant.44
Under the current Oklahoma product liability
causation standard, “[a] manufacturer’s products liability plaintiff need not exclude all other
possible conclusions. However, the mere possibility that a defect caused the injury is not sufficient.”45 Additionally, Oklahoma courts have
rejected the theories of “alternative liability,”46
“market share liability”47 and other “nonidentification theories.”48
The causation requirement does, however,
become somewhat distorted in a situation where
a distributor of a defective product is named as
a defendant in a product liability action. In such
a case, as the court noted in Braden v. Hendricks,49
“it is immaterial to the plaintiff’s case that the
defect in the product was not caused by the distributor.”50 As noted previously, the liability of
the manufacturer and distributor is coextensive
even though the distributor was in no way
responsible for the presence of the defect.51
Existence of a Defect. Central to the plaintiff’s
case in a product liability action is proof that a
defect existed in the product either at the time
the product left the manufacturer’s control52
(where the defendant is the manufacturer) or
at the time the product was sold for use to the
general public.53 As the court noted in Mayberry v. Akron Rubber Mach. Co.,54 a product
may be defective because of: 1) manufacturing
defects;55 2) supplier flaws;56 3) design defects;57
or 4) a failure to supply proper warnings to
the product’s dangers.58
It is generally recognized that in most product
liability cases the existence of a defect must be
proved by expert testimony.59 In 2004, the Oklahoma Supreme Court adopted the standards set
forth in Daubert v. Merrell Dow Pharm. Inc.60 and
Kumho Tire Co. v. Carmichael61 for civil cases.62
Hence, when faced with a proffer of expert scientific or engineering testimony, an Oklahoma
trial court, acting as the gatekeeper, will determine at the outset whether the reasoning or
methodology underlying the testimony rests
upon a reliable foundation.63 Moreover, the trial
court must also determine whether an expert’s
testimony is “relevant to the task at hand.” That
is, the testimony must not only be relevant, but
it must “fit” the facts of the case.64 It should be
noted that the 10th Circuit held that a district
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Vol. 86 — No. 11 — 4/18/2015
court may reject as untimely a Daubert motion
raised late in the trial process, stating: “counsel
should not ‘sandbag’ Daubert concerns until the
close of an opponent’s case, thereby placing
opposing counsel and the trial court at a severe
disadvantage.”65 Appellate review of a trial
court’s decision, with respect to the admission of
expert scientific testimony, is made under the
abuse of discretion standard.66
theory into an area occupied by the Uniform
Commercial Code and held that “no action lies
in product liability for injury only to the product
itself resulting in purely economic loss.”73 If,
however, there is personal injury or damage to
other property that resulted from the product
defect, the plaintiff may recover damages for the
personal injury and/or the other property loss,
as well as for the damage to the product.74
Unreasonably Dangerous Defect. The mere
proof of a defect does not, per se, when coupled
with the causation element, establish a product
liability cause of action. Rather, as the court
noted in Kirkland, the defect alleged and proven
must render the product “unreasonably dangerous.” The Kirkland court, adopting the standard
set forth in Section 402A (comment G) of Restatement (Second) of Torts, defined “unreasonably
dangerous” as follows: “the article sold must be
dangerous to an extent beyond that which would
be contemplated by the ordinary
consumer who purchases it, with
the ordinary knowledge common
to the community as to its characteristics.”67 This definition of the
term has been adopted in subsequent decisions.68 The analysis of
whether a product is unreasonably dangerous focuses on the
time of manufacture, not on the
present day standards.69
Limitation on Implied Warranty Claims.
Oklahoma Courts uniformly recognize that Kirkland “renders it unnecessary in a products liability action to consider a recovery based on
implied warranty.”75 After Kirkland, the only possible recovery based upon “implied warranty” is
under a Uniform Commercial Code violation
when the same has been properly pleaded.76
WHAT IS THE APPLICABLE STATUTE
OF LIMITATIONS?
The Kirkland court noted that an
action based on product liability
is an action for injury to personal
property or for injury to the rights
of another, and thus concluded
the two-year statute of limitations
generally applicable in Oklahoma
for tortious conduct would also
apply in product liability cases.77
The plaintiff may “extend” the
limitations period by one year by
filing, then dismissing, the action
without prejudice.78 In Ross v.
Kelsey Hayes Inc.,79 the court held
that this applies so long as the
initial action is filed before the
limitation period expires. The defendant need not be served in
order to activate the one year “extension.”80
The mere proof
of a defect does not,
per se, when coupled
with the causation
element, establish a
product liability
cause of action.
The importance of properly
stating the “unreasonably dangerous” element was emphasized
in Lamke v. Futorian Corp.70 In that
case, the Oklahoma Supreme
Court affirmed the trial court’s
dismissal of the plaintiff’s product liability cause
of action be-cause the plaintiff had not sufficiently alleged that the products involved were
more likely than would be expected by the
ordinary consumer to cause the damages
alleged. The court emphasized that a manufacturer may not be held responsible merely
because its product is not as safe as other similar products. Rather, it must be shown that the
product is less safe than expected by the ordinary consumer.71
Oklahoma courts have applied the discovery
rule in those product liability actions in which
particular hardships, or other circumstances, justify different accrual rules.81 In Daugherty v. Farmers Cooperative Ass’n,82 the Oklahoma Supreme
Court held that acquisition of sufficient information, which if pursued, would lead to the true
condition of things, would start the running of
the statute of limitations.83
Harm to Something Other Than The Product.
In Waggoner v. Town & Country Mobile Homes
Inc.,72 the Oklahoma Supreme Court addressed
the issue of whether a plaintiff can pursue a
product liability cause of action when there is
only economic loss. The court reasoned that
there is no need to extend the product liability
In Huff v. Fiberboard Corp.,84 the 10th Circuit
held that the statute allowing a personal representative two years from the date of the death of
the injured party85 to bring an action does not
serve to extend the time to sue if the deceased,
on the date of his death, had no cause of action
against the manufacturer for the injuries which
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833
caused his death. Thus, where the decedent
knew, or reasonably should have known, more
than two years prior to his death that he had the
condition for which the action is ultimately
brought, and the defendant caused it, the action
is time barred.86
Recognition of the discovery rule in product
liability actions has raised the question of whether Oklahoma’s statute of repose87 applies in
product liability actions. Early indications from
the Oklahoma Supreme Court were that it did
apply to manufacturers.88 In Ball v. Harnischfeger
Corp.,89 the Oklahoma Supreme Court held that
the statute of repose might bar a product liability
claim if the manufacturer was acting as a designer, planner, construction supervisor or observer,
or constructor of an improvement to real property. Similarly, in O’Dell v. Lamb - Grays Harbor
Co.,90 the court held that a product liability claim
involving an allegedly defective conveyor was
barred because the conveyor was an “improvement to real property” and the case was filed
more than ten years after the conveyor was
installed.91
WHAT DEFENSES ARE AVAILABLE?
The Kirkland court noted three defenses available to the product liability defendant: lack of
causation, abnormal use and assumption of
risk.92 Subsequent courts have continually reviewed the availability of these, as well as other
defenses.93
Lack of Causation. If some act of the plaintiff
caused the injury, rather than the product
itself, the plaintiff may not recover. Thus,
abnormal use,94 subsequent modification,95 or
events, acts or omissions over which the
defendant had no control may serve to defeat
the causation requirement.
Abnormal Use or Misuse. The leading case on
the issue of what constitutes an abnormal use or
misuse of a product is Fields v. Volkswagen of
America Inc.96 In Fields, the Oklahoma Supreme
Court significantly restricted the applicability of
the abnormal use defense. The court noted that
the defense of misuse or abnormal use of a product refers to cases where the method of using a
product is not that which the maker intended or
is a use that could not reasonably be anticipated
by a manufacturer. As the court noted, a distinction must be made between use for an abnormal
purpose and use for a proper purpose but in a
careless manner (contributory negligence).97 The
court, however, emphasized the latter element of
foreseeability, stating that “to determine wheth834
er the use of a product is abnormal, we must ask
whether it was reasonably foreseeable by the
manufacturer. A manufacturer is not liable for
injuries resulting from such use if it is not foreseeable.”98 Thus, the Fields court characterized
the plaintiff’s alleged drinking and speeding as
a “use for a proper purpose, but in a careless
manner” and noted that such “contributory negligence” was not a defense unless it caused the
accident.98
Subsequent cases have acknowledged the
existence of the abnormal use or misuse defense
in product liability cases under the proper factual circumstances.100 Oklahoma has expanded
the scope of admissible evidence for product
liability actions concerning motor vehicles and
seat belts by requiring submission of evidence of
the nonuse of a seat belt, unless the individual is
under the age of 16.101
Comparative Negligence or Fault. In Kirkland,
the court held that the Oklahoma comparative
negligence statute102 did not apply in product
liability actions, and therefore, the plaintiff’s
contributory negligence or fault is a defense
only where it reaches the point where it was the
cause of the injury alleged.103 Despite a growing
trend in other jurisdictions, subsequent Oklahoma decisions have consistently held that the
plaintiff’s negligence is not used to reduce the
plaintiff’s recovery in a product liability action.104
Assumption of Risk. Voluntary assumption of
a risk is a complete defense to strict product liability under Oklahoma law.105 But, general knowledge of a risk is insufficient to bar recovery.106
Rather, the defendant must establish a “voluntary assumption of a known risk created by a
defect which existed in a product at the time it
left the manufacturer.”107 In Smith v. FMC Corp.,108
the 10th Circuit stated the parameters of this
defense, finding error in giving an assumption
of risk instruction “in the absence of direct or
credible and sufficient circumstantial evidence
that the [defendant was] aware of the danger
and voluntarily assumed the risk.”109 It is not,
however, necessary that the plaintiff have “specific, technical knowledge of the cause of the
product’s dangerous, defective condition.”110
Rather, the plaintiff’s general knowledge of the
defective condition is sufficient to create a jury
question on assumption of risk.111
Lapse of Time/Extended Use. Although the
existence of a significant lapse of time between
the manufacture of the product and injury is not
a defense that can conclusively refute conten-
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Vol. 86 — No. 11 — 4/18/2015
tions that a product was defective, Oklahoma
courts have found such evidence to be persuasive. In Hawkins v. Larrance Tank Corp.,112 the
court noted that while the existence of a significant lapse of time between the sale of the product and the accident was a “damaging fact —
one which frequently prevents any inference
that the product was defective when sold ... it
does not preclude a finding of defectiveness at
the time of sale.”113 Similarly, the extensive use
of the allegedly defective product between its
manufacture and the date of the injury, though
not an absolute defense, has been held to be
persuasive evidence as to the existence or nonexistence of a defect at the time the product left
the manufacturer’s control.114 Thus, the fact
that an aircraft engine operated satisfactorily
for 538 flying hours after its sale,115 that bolts
were in use three years prior to the date of an
injury,116 or that a vehicle was driven 19,500
miles before an accident,117 has been held
admissible to refute allegations that the product was defective at the time it left the possession and control of the defendant.
causes the plaintiff’s injury, the manufacturer
may be held liable where the subsequent modification was foreseeable.127
State of the Art. “State of the art,” as used in
product liability actions, is construed by Oklahoma courts to mean simply the custom and
practice in an industry. Compliance with such
standards does not constitute an absolute
defense to product liability actions,118 nor does
compliance with a federal safety standard, in
and of itself, establish a product is not defectively designed.118 However, as the court noted
in Bruce v. Martin-Marietta Corp.,120 state of the
art evidence is helpful in determining the
expectation of the ordinary consumer, and thus,
is relevant in determining whether a particular
product is defective.121 Furthermore, state of the
art evidence may be considered relevant to
whether the manufacturer is, or should be,
aware of various dangers associated with the
product.122
Similarly, a drug or medical device manufacturer may, in most cases, warn the physician,
rather than the patient/consumer, of dangers
associated with the product.133 This creates the
ability, in the proper factual scenario, to argue
that the duty to warn is abrogated, or at least
delegated, to the knowledgeable purchaser.134 In
a failure to warn case with a learned intermediary, the plaintiff is entitled to a rebuttable presumption that the learned intermediary will
heed any warnings given.135 However, the assumption is that the intermediary will heed the
warnings, not that the warnings will ultimately
be passed on to the patient. The defendant can
rebut this presumption by “establishing that although the prescribing physician would have
read and heeded the warning . . . this would not
have changed the prescribing physician’s course
of treatment.”136 The learned intermediary standard is a subjective standard that looks at what
that particular physician would determine, not
what an objective physician would determine.137
Substantial Change in the Product.123 Oklahoma cases have adopted the Restatement (Second) of Torts §402A(1)(b), which imposes liability only when the product “is expected to and
does reach the user or consumer without substantial change in the condition in which it is
sold.”124 Most decisions have stated that the
plaintiff must establish a defect existed in the
product at the time it left the control of the
manufacturer.125 In Saupitty v. Yazoo Mfg.,126
however, the court noted that while the general
rule is that a manufacturer is not liable when an
unforeseeable subsequent modification alone
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Learned Intermediary. Oklahoma courts have
recognized that the duty to warn may be abated
or lessened in cases where the user is not an
“ordinary consumer” but is someone who does,
or reasonably should, possess special skills or
knowledge regarding the safe use of the product.128 The Oklahoma Supreme Court held in
Duane v. Oklahoma Gas & Electric Co.,129 where a
product is used in an industrial setting by one
supposedly skilled at his job, a manufacturer has
“no duty to warn of dangers inherent in the task
or which are created by the oversight or negligence of the contractor or fellow employees.”130
In Hutchins v. Silicone Specialties Inc.,131 the court
distinguished between products marketed
toward the ordinary consumer and those distributed to professionals and reasoned that a product that might be unreasonably dangerous in the
hands of a home handyman may not be defective when used at a commercial work site by
professionals.132
Obvious Defect. In the context of a duty to
warn case, whether in negligence or product
liability, the duty to warn exists only when those
to whom the warning is to be communicated can
reasonably be perceived to be ignorant of the
dangers disclosed in a warning. That is, if the
dangers or potential dangers are known, or
should reasonably be known to the user, no duty
to warn exists.138
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835
Unavoidably Unsafe Product.139 In Tansy v.
Dacomed Corp.,140 the court recognized the principles of comment K of the Restatement (Second)
of Torts, Section 402A. Under these principles,
some products that otherwise create a significant
risk, but have great utility, may be deemed
“unavoidably unsafe.” Comment K serves as an
affirmative defense where the product is incapable of being made safe under present technology, but the social need for the product warrants
its production.141 The defense is available only
when the product is properly manufactured and
contains adequate warnings.142 With Oklahoma
Tort Reform discussed below, this defense has
since been codified into Oklahoma law.143
Government Contractor Defense. This defense, originally articulated by the United States
Supreme Court in Boyle v. United Technologies
Corp.,144 provides product manufacturers with
insulation from tort liability under state law for
injuries allegedly caused by equipment manufactured according to specifications dictated by
the military. The elements of the government
contractor defense are as follows: 1) the United
States approved reasonably precise specifications; 2) the equipment conformed to those
specifications; and 3) the supplier warned the
United States about the dangers and the use of
the equipment that were known to the supplier
but not to the United States. In Andrew v. Unisys
Corp.,145 Judge Russell, noting a split of authority
concerning whether the government contractor
defense applied to nonmilitary contracts, found
that a manufacturer of a nonmilitary product is
entitled to assert the government contractor
defense so long as it meets the threshold test
established in Boyle.146
Preemption. Oklahoma product liability
claims against products that are subject to federal regulations may be barred by preemption.
In Riegel v. Medtronic,147 the United States Supreme Court held that “state requirements are
preempted under the MDA only to the extent
that they are ‘different from, or in addition to’
the requirements imposed by federal law.”148
Each product will be subject to a case-by-case
analysis that will consider whether the federal
regulations applicable to the product simply set
a minimum standard or are meant to govern the
field of the product at issue.149 Where federal law
is intended to govern the entire field of the product at issue, the claim will be preempted. However, where the federal statutes and regulations
merely set a minimum standard for products
(such as automobile standards), compliance
836
with those statutes is not an absolute defense to
liability.150 While claims against medical devices
approved under the Medical Devices Act may be
preempted, the Supreme Court has not taken the
same stance for warnings on prescription pill
containers.151 In reviewing the preemption arguments of the parties related to the adequacy of a
warning placed on a pharmaceutical drug, the
Supreme Court opined, “it has remained a central premise of federal drug regulation that the
manufacturer bears responsibility for the content of its label at all times. It is charged both
with crafting an adequate label and with ensuring that its warnings remain adequate as long as
the drug is on the market.”152 The court held,
“[w]e conclude that it is not impossible for
Wyeth to comply with its state and federal law
obligations and that [the] common law claims
do not stand as an obstacle to the accomplishment of Congress’ purposes.”153 Ultimately, as
demonstrated by the cited case law, preemption
will be both on a product-by-product basis as
well as a case-by-case basis.
On May 2, 2014, the Oklahoma Legislature
enacted a law that creates a “rebuttable presumption that [a] product manufacturer or seller
is not liable for any injury to a claimant” caused
by a product that is subject to federal or agency
safety standards or regulations so long as the
product manufacturer can show that it “complied with or exceeded” those standards.154 This
same rebuttable presumption applies where a
manufacturer can show by a preponderance of
the evidence that the product was subject to
“premarket licensing or approval by the federal
government, or an agency of the federal government.”155 The statute explicitly states that the
protection does not extend to manufacturing
defects regardless of compliance with federal
standards or premarket approval.156 This statute
essentially codifies the preemption rulings addressed above.
WHAT DAMAGES ARE RECOVERABLE?
The Kirkland decision was considered by the
court as an appeal from a defendant’s verdict
and it did not address the issue of what damages
are recoverable in a product liability action.
Compensatory Damages. Oklahoma courts
have generally, without discussion, followed the
general tort principle that one injured by the
wrongful act or omission of another is entitled to
fair and just compensation commensurate with
the loss or damage sustained.157 Damages may
be recovered for personal injuries arising out of
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Vol. 86 — No. 11 — 4/18/2015
a product liability action by an adult,158 a minor
child,159 the parent or guardian of a minor child,160
and a spouse of an injured plaintiff.161 Damages
caused by a product failure are also recoverable
in a wrongful death action.162 The proper plaintiffs to a wrongful death action are determined
by Oklahoma wrongful death and probate statutes.163 A survival action may be brought by the
personal representative of the decedent.164
Punitive Damages.165 In Thiry v. Armstrong
World Industries,166 the Oklahoma Supreme Court
held that plaintiffs may allege and prove exemplary or punitive damages as an element of
damage in a product liability action. The court,
reasoning that such awards were authorized by
Oklahoma statute,167 stated that “punitive damages may be assessed against the manufacturer
of a product injuring the plaintiff if the injury is
attributable to conduct that reflects a reckless disregard for the public safety.”168 “Reckless disregard” for public safety is shown
when the evidence indicates: 1)
the defendant was aware of the
defect and the likelihood that the
injury would result from it; 2) the
defendant could either remedy
the defect or prevent the injury
caused by it; and 3) notwithstanding the above, the defendant
deliberately failed to take action
to remedy the defect or prevent
the injury.169 Under the applicable
Oklahoma statute,170 a jury in an
action for the breach of an obligation not arising from contract
may award punitive damages for
the sake of example and by way
of punishing the defendant. Under Oklahoma law, awarding punitive damages is a two-stage
process.171 In order to award punitive damages, the jury must first make a determination that there is clear and convincing evidence that the defendant is guilty of conduct
evincing reckless disregard for the rights of others or the defendant acted intentionally and with
malice.172 In Moore v. Subaru of America,173 the 10th
Circuit held that absent presentation of such
evidence, the court may properly refuse to
instruct on the issue of punitive damages.
TORT REFORM, NEW OKLAHOMA
PRODUCT LIABILITY LAWS AND THE
EFFECT ON PRODUCT LIABILITY
ACTIONS
In 2009, the Oklahoma Legislature passed
“tort reform” legislation by enacting a number
of laws vastly changing the landscape of tort law
in Oklahoma. The original Oklahoma “Tort Reform Act” was passed in 2009, but was subsequently followed by a 2011 statute amending
many parts of the 2009 act. Several of these provisions have a direct impact on Oklahoma product liability actions. These provisions include
capping noneconomic damages in cases of bodily injury to $350,000 (this does not apply to
wrongful death actions or Governmental Tort
Claims and there are other limitations),174 doing
away with joint and several liability,175 no longer
allowing a separate tort action for breaching the
UCC duty of good faith,176 providing immunity
against product liability actions
for manufacturers and distributors for products that are inherently unsafe and known to be
unsafe by an ordinary consumer
(creates an affirmative defense
that must be pled like any other
affirmative defense),177 and requiring plaintiffs claiming physical or
mental injuries to provide the
defendants with releases for medical records, employment records
and scholastic records.178 These
statutes were enforceable law
until the Oklahoma Supreme
Court addressed them in two separate opinions.
…the Oklahoma
Supreme Court held
that plaintiffs may
allege and prove
exemplary or
punitive damages
as an element of
damage in a product
liability action.
Vol. 86 — No. 11 — 4/18/2015
In 2013, the Oklahoma Supreme
Court struck down the 2009 Oklahoma Tort Reform Bill, H.B. 2818,
as being unconstitutional. See generally Douglas v. Cox Retirement Props., 2013 OK
37, 302 P.3d 789 (striking down H.B. 2818 for
violating the “single subject” rule); see also Wall
v. Marouk, 2013 OK 36, ¶27, 302 P.3d 775, 787
(finding that requiring an “affidavit of merit” for
professional negligence cases “creates a monetary barrier to access the court system, and then
applies that barrier only to a specific subclass of
potential tort victims”). In response to Douglas v.
Cox and Wall v. Marouk, the Oklahoma Legislature, through a September 2013 special session,
revived essentially all of the laws struck down
by the Oklahoma Supreme Court, including the
notorious “affidavit of merit” in cases where
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837
“plaintiffs shall be required to present the testimony of an expert witness to establish breach of
the relevant standard of care . . . .”179 The special
session laws, coupled with the Oklahoma
Supreme Court rulings, leave Oklahoma attorneys attempting to look at the tea leaves to
determine the future of Oklahoma tort law.
In addition to Oklahoma’s tort reform statutes,
the Oklahoma Legislature enacted legislation on
May 2, 2014, providing greater protection to
product sellers. The legislation expressly states
that “[n]o product liability action may be asserted against a product seller other than a manufacturer unless . . .” the statute then sets forth six
separate bases upon which a plaintiff can establish to bring a claim against a product seller.180
These include showing that the seller had “substantial control” over the product design, testing
or manufacturing,181 demonstrating that the seller altered or modified the product and that
alteration or modification was a “substantial
factor” in causing harm to the plaintiff,182 bringing a claim against the seller where after a good
faith exercise of due diligence, the plaintiff is
unable to locate the manufacturer,183 asserting a
claim against a seller is limited in its discovery to
information related to these bases,184 and a seller
is only liable to a plaintiff for negligence if the
plaintiff can establish the following: the seller
actually sold the product involved, the seller did
not exercise reasonable care in assembling,
maintaining, inspecting, and passing on the
warnings and instructions, and the seller’s failure to exercise reasonable care was the proximate cause of the plaintiff’s injuries.185 Because
this statute did not become effective until Nov. 1,
2014,186 Oklahoma courts have not yet applied it
to product liability actions. Although this statute
has not yet been applied, it is clear the statute
will have a substantial impact on plaintiffs’
product liability claims against product sellers
by affording sellers stronger defenses against
product liability actions.
241.
1. 1974 OK 52, 521 P.2d 1353.
2. Kirkland, 521 P.2d at 1356.
3. Id.
4. Id.
5. Id. at 1357.
6. Id.
7. 1974 OK 53, 522 P.2d 622.
8. Id. at 624.
9. Id. at 626.
10. Id.
11. Kraszewski v. Baptist Medical Ctr. of Okla. Inc., 1996 OK 141, 916 P.2d
12. See Okla. Stat. Title 12, §§1051-55.
13. See McKee v. Moore, 1982 OK 71, 648 P.2d 21, 23.
14. Woods v. Fruehauf Trailer Corp., 1988 OK 105, 765 P.2d 770, 774.
15. 965 F.2d 844 (10th Cir. 1992), aff’d following remand, 53 F.3d 1181
(10th Cir. 1995).
838
16. Id. at 846.
17. Kirkland, 521 P.2d at 1361. The same test was later restated by the
court in Fields v. Volkswagen of America Inc., 1976 OK 106, 555 P.2d 48, 53.
18. Robinson v. Volkswagen of America Inc., 803 F.2d 572, 574-75 (10th
Cir. 1986); Braden v. Hendricks, 1985 OK 14, 695 P.2d 1343, 1350; Moss v.
Polyco Inc., 1974 OK 53, 522 P.2d 622, 626. The liability of the manufacturer and distributor/retailer is coextensive, even though the latter is not
responsible for the presence of the defect. Braden, 695 P.2d at 1350. Where
the defect is attributable solely to the manufacturing process, the distributor/retailer may seek indemnification from the manufacturer.
Shuman v. Lavern Farmers Cooperative, 1991 OK CIV APP 2, 809 P.2d 76,
77-78; Friend v. Eaton Corp., 1989 OK CIV APP 74, 787 P.2d 474, 476-77;
Braden, 695 P.2d at 1349. Conversely, a verdict for the manufacturer in
such a case absolves the distributor/retailer from liability on a product
liability theory.
19. Dewberry v. La Follette, 1979 OK 113, 598 P.2d 241, 242 (action
available against commercial lessors of a mobile home that supplied
allegedly defective steps); Coleman v. Hertz Corp., 1975 OK CIV APP 5,
534 P.2d 940, 945 (action available against company that leased truck to
plaintiff).
20. This is implicit in the decision of Mayberry v. Akron Rubber Mach.
Corp., 483 F.Supp. 407 (N.D. Okla. 1979); c.f., Scott v. Thunderbird Indus.
Inc., 1982 OK CIV APP 31, 651 P.2d 1346, 1349.
21. Kating v. ONEOK Inc., 1997 OK CIV APP 88, 953 P.2d 66, 68; Dewberry v. La Follette, 1979 OK 113, 598 P.2d 241, 242. A hospital has been
held to be primarily in the business of rendering health care, not selling
implants, and thus was not a member of the manufacturer’s marketing
chain. Van Downum v. Synthes, 908 F. Supp. 2d 1179 (N.D. Okla. 2012). For
additional information, see infra “Tort Reform” discussion in Section 7
and accompanying endnotes.
22. Edwards v. Pepsico Inc., 268 Fed. App’x 756 (10th Cir. 2008) (“There
is no legal support, however, for Mr. Edwards’ attempt to extend this
principle and make all defendants within the chain of distribution automatically liable for a defective product. Rather, responsibility for the
defect must still be traced to the proper defendant. Thus, which defendant is responsible for an alleged defect [is] determined in the trial
court.”) (quotations and citations omitted).
23. Gosner v. Decker, 1991 OK CIV APP 64, 814 P.2d 1056, 1057-58. In
Gosner, the defendant was neither a seller nor lessor, but merely used and
allowed the use of its own equipment in providing a service.
24. 1987 OK 79, 743 P.2d 1062.
25. Case, 1987 OK 79, 743 P.2d at 1067; see also, Blair v. Eagle-Picher
Industries Inc., 962 F2d 1492, 1496 (10th Cir. 1992); Dillon v. Fiberboard
Corp., 919 F.2d 1488, 1491 (10th Cir. 1990).
26. Case, 743 P.2d at 1067. The court’s opinion was in response to
certified questions regarding an “asbestos related injury” case where the
plaintiff is unable to identify specific tortfeasors. Id. A similar conclusion
was reached by the court in Wood v. Eli Lilly & Co., 38 F.3d 510 (10th Cir.
1994), a case involving diethylslilbestrobol (DES). But see infra note 45.
27. 519 F. Supp. 487 (W.D. Okla. 1981).
28. Id. at 488. “The defendant neither manufactured the battery, nor
did it process the battery.... Rather, [the defendant] stands in the shoes of
an ultimate consumer....” Id. at 489.
29. 2001 OK 22, 22 P.3d 223.
30. Id. at 224-25.
31. Spence v. Brown-Minneapolis Tank Co., 2008 OK CIV APP 90, 198
P.3d 395.
32. Allenburg, 22 P.3d at 224.
33. 1977 OK 36, 561 P.2d 68.
34. Id. at 69.
35. Green v. Oilwell, 1989 OK 7, 767 P.2d 1348. This is known as the
“equitable trust fund doctrine.”
36. Kirkland, 521 P.2d at 1363.
37. See e.g., Wheeler v. HO Sports Inc., 232 F.3d 754, 756 (10th Cir. 2000);
Gaines-Tabb v. ICI Explosives, USA Inc., 160 F.3d 613, 624 (10th Cir. 1998);
Holt v. Deere & Co., 24 F.3d 1289, 1292 (10th Cir. 1994); McMurray v. Deere
& Co., 858 F.2d 1436, 1439 (10th Cir. 1988); Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 499 (10th Cir. 1984); Sterner Aero AB v. Page Airmotive Inc., 449 F.2d 709, 713 (10th Cir. 1974); Woulfe v. Eli Lilly & Co., 965
F. Supp. 178, 1482 (E.D. Okla. 1997); Dutsch v. Sea Ray Boats Inc., 1992
OK 155, 845 P.2d 187, 190; Lamke v. Futorian Corp., 1985 OK 47, 709 P.2d
684, 688 (Doolin, J. dissenting); Lee v. Volkswagen of America Inc., 1984
OK 48, 688 P.2d 1283, 1285; Stuckey v. Young Exploration Co., 1978 OK
128, 586 P.2d 726, 730; Bohnstedt v. Robscon Leasing L.L.C., 1999 OK CIV
APP 115, 993 P.2d 135, 136; Attocknie v. Carpenter Mfg., 1995 OK CIV
APP 54, 901 P.2d 221, 227; Tigert v. Admiral Corp., 1979 OK CIV APP 41,
612 P.2d 1381, 1383.
38. Dutsch v. Sea Ray Boats Inc., 1992 OK 155, 845 P.2d 187; Waggoner
v. Town & Country Mobile Homes Inc., 1990 OK 139, 808 P.2d 649.
39. See e.g., Blair v. Eagle-Picher Industries Inc., 962 F.2d 1492, 1495
(10th Cir. 1992), cert denied, 506 U.S. 974, 113 S. Ct. 464 (1992) (“The mere
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Vol. 86 — No. 11 — 4/18/2015
possibility that the product caused the injury is not enough.”); Dillon v.
Fiberboard Corp., 919 F.2d 1488, 1491 (10th Cir. 1990); McMurray v. Deere &
Co., 858 F.2d 1436, 1439 (10th Cir. 1988); Hurd v. American Hoist & Derrick
Co., 734 F.2d 495, 499 (10th Cir. 1984); Cunningham v. Charles Pfizer & Co.,
1974 OK 146, 532 P.2d 1377, 1379; Messler v. Simmons Gun Specialities Inc.,
1984 OK 35, 687 P.2d 121, 125; Kaye v. Ronson Consumer Products Corp.,
1996 OK CIV APP 57, 921 P.2d 1300, 1302.
40. Freeman Family Ranch, Ltd. v. Maupin Truck Sales Inc., 2010 WL
908665 (W.D. Okla. 2010); Dutsch v. Sea Ray Boats Inc., 1992 OK 155, 845
P.2d 187, 191.
41. Minter v. Prime Equip. Co., 356 F. App’x 154, 159-61 (10th Cir. 2009).
42. Kirkland, 521 P.2d at 1367 (plaintiff’s intoxication as misuse if the
intoxication caused the injury); see also Black v. M&W Gear Co., 269 F.3d
1220, 1236 (10th Cir. 2001) (“in a product liability case in which contributory negligence is not a defense and misuse is not an issue, the only relevant causation issue is whether a defect in the defendant’s product was
the cause of the injury.”); Saupitty v. Yazoo Mfg., 726 F.2d 657, 659 (10th
Cir. 1984); Stuckey v. Young Exploration Inc., 1978 OK 128, 586 P.2d 726,
730; Fields v. Volkswagen of America Inc., 1976 OK 106, 555 P.2d 48, 56;
Stewart v. Scott-Kitz Miller Co., 1981 OK CIV APP 3, 626 P.2d 329, 331.
43. Messler v. Simmons Gun Specialties Inc., 1984 OK 35, 687 P.2d 121,
125; Prince v. B. F. Ascher Co., 2004 OK CIV APP 39, 90 P. 3d 1020 (Okla.
Civ. App. 2004).
44. See Hinds v. General Motors Corp., 988 F.2d 1039, 1049 (10th Cir.
1993).
45. Dutsch v. Sea Ray Boats Inc.,1992 OK 155, 845 P.2d 187, 191 (Okla.
1992); see also Abercrombie & Fitch Stores Inc. v. Broan-Nutone LLC, 2012
U.S. Dist. LEXIS 166947, 3-4, 2012 WL 5906552 (W.D. Okla. Nov. 26, 2012).
In asbestos related cases, however, the causation standard is heightened
and Oklahoma courts require “[t]his causative link [] be established
through ‘circumstances which would insure that there was a significant
probability that [the defendant’s] acts were related to the [plaintiff’s]
injury.’” Dillon v. Fibreboard Corp., 919 F.2d 1488, 1491 (10th Cir. 1990)
(quoting Case v. Fibreboard Corp., 1987 OK 79, 743 P.2d 1062, 1067).
46.Wood v. Eli Lilly & Co., 38 F.3d 510, 512-13 (10th Cir. 1994).
47. Id. at 513-14.
48. Id. at 512-13; Case v. Fiberboard Corp., 1987 OK 79, 743 P.2d 1062,
1067.
49. 1985 OK 14, 695 P.2d 1343.
50. Id. at 1350.
51. Id.; see Robinson v. Volkswagen of America Inc., 803 F.2d 572, 574-75
(10th Cir. 1986) (verdict in favor of manufacturer absolves distributor
where alleged defect is attributable solely to manufacturing process). See
supra note 18. For additional information, see infra “Tort Reform” discussion in Section 7 and accompanying endnotes.
52. Holt v. Deere & Co., 24 F.3d 1289, 1292 (10th Cir. 1994); McMurray
v. Deere & Co., 858 F.2d 1436, 1439 (10th Cir. 1988); Lamke v. Futorian Corp.,
1985 OK 47, 709 P.2d 684, 688 (Doolin, J., dissenting); Hurd v. American
Hoist & Derrick Co., 734 F.2d 495, 499 (10th Cir. 1984); Barber v. General
Electric Co., 648 F.2d 1272, 1276 (10th Cir. 1981); Scott v. Thunderbird Indus.,
1982 OK CIV APP 31, 651 P.2d 1346, 1348; Kirkland, 521 P.2d at 1363;
Bohnstedt v. Robsco Leasing, L.L.C., 1999 OK CIV APP 115, 993 P.2d 135.
53. Mayberry v. Akron Rubber Mach. Corp., 483 F. Supp. 407, 412 (N.D.
Okla. 1979); Kirkland, 521 P.2d at 1363; Hawkins v. Larrance Tank Corp., 555
P.2d 91, 94 (Okla. Ct. App. 1976).
54. 483 F. Supp. 407 (N.D. Okla. 1979).
55. Id. at 412; see e.g., Wheeler v. HO Sports Inc., 232 F.3d 754, 757
(10th Cir. 2000); Messler v. Simmons Gun Specialties Inc., 1984 OK 35,
687 P.2d 121.
56. Mayberry v. Akron Rubber Mach. Corp., 483 F. Supp. 407 (N.D. Okla.
1979).
57. Id. at 412. See e.g., Wheeler v. HO Sports Inc., 232 F.3d 754, 757 (10th
Cir. 2000); Rohrbaugh v. Owens-Corning Fiberglass Corp., 965 F.2d 844 (10th
Cir. 1992); McMurray v. Deere & Co., 858 F.2d 1436 (10th Cir. 1988); Saupitty v. Yazoo Mfg., 726 F.2d 657 (10th Cir. 1984); Blood v. R&R Engineering
Inc., 1989 OK 10, 769 P.2d 144; Messler v. Simmons Gun Specialties Inc., 1984
OK 35, 687 P.2d 121. In the automotive context, design defects may be
alleged in the context of crashworthiness. See e.g., Hinds v. General Motors
Corp., 988 F.2d 1039, 1049 (10th Cir. 1993); Lee v. Volkswagen of America Inc.,
1984 OK 48, 688 P.2d 1283.
58. See e.g., McPhail v. Deere & Co., 529 F. 3d 947 (10th Cir. 2008);
Wheeler v. HO Sports Inc., 232 F.3d at 757 (10th Cir. 2000); Daniel v. Ben E.
Keith Co., 97 F.3d 1329, 1332 (10th Cir. 1996); McMurray v. Deere & Co., 858
F.2d 1436 (10th Cir. 1988); Rohrbaugh v. Owens-Corning Fiberglass Corp.,
965 F.2d 844 (10th Cir. 1992); Smith v. FMC Corp., 754 F.2d 873 (10th Cir.
1985); Woulfe v. Eli Lilly & Co., 965 F. Supp. 1478, 1482 (E.D. Okla. 1997);
Mayberry v. Akron Rubber Mach. Corp., 483 F.Supp. 407 (N.D. Okla.
1979); Barber v. General Electric Co., 648 F.2d 1272 (10th Cir. 1981); Smith
v. United States Gypsum Co., 1980 OK 33, 612 P.2d 251; Bohnstedt v. Robscon Leasing, L.L.C., 1999 OK CIV APP 115, 993 P.2d 135; Shuman v.
Vol. 86 — No. 11 — 4/18/2015
Lavern Farmers Cooperative, 1991 OK CIV APP 2, 809 P.2d 76; Spencer v.
Nelson Sales Co. Inc., 1980 OK CIV APP 58, 620 P.2d 477.
The court noted in Smith v. FMC Corp., 754 F.2d 873, 877 (10th Cir.
1985), “a manufacturer has a responsibility to warn of a defective product at any time after it is manufactured and sold if the manufacturer
becomes aware of the defect.” The duty to warn arises only when the
manufacturer “knows or should know that the use of the product is
hazardous ....” Rohrbaugh v. Owens-Corning Fiberglass Corp., 965 F.2d 844,
847 (10th Cir. 1992). However, plaintiff has the burden of proving that the
lack of adequate warnings caused his or her injuries. Black v. M&W Gear
Co., 269 F.3d 1220, 1231 (10th Cir. 23001). A rebuttable presumption exists
that an adequate warning would have been heeded. For a discussion of
the inference and its rebuttal, see Eck v. Parke, Davis & Co., 256 F.3d 1013
(10th Cir. 2001); Daniel v. Ben E. Keith Co., 97 F.3d 1329, 1332-33 (10th Cir.
1996); Woulfe v. Eli Lilly & Co., 965 F. Supp. 1478, 1483-86 (E.D. Okla. 1997).
59. Harrington v. Biomet Inc., 2008 WL 2329132 (W.D. Okla. 2008) (“[T]
he Court will assume that the plaintiff herein can prove the existence of
a defect without identifying what the defect is and exclusively by circumstantial evidence, even though the product - the prosthetic hip - was
not destroyed and/or there are numerous prosthetic hips of the same
type and size available. However, the court observes that there is obvious
tension between the principle that a plaintiff may prove the existence of
a defect, without identifying it, by circumstantial evidence and the principle recognized by the Oklahoma Supreme Court in Kirkland and its
progeny, adhered to by the 10th Circuit, that ‘we do not infer that the
injury is itself proof of the defect, or that proof of injury shifts the burden
to the defendant.’”).
60. 509 U.S. 579 (1993).
61. 526 U.S. 137, 147 (1999).
62. See generally 2003 OK 10, 65 P.3d 591.
63. The following factors are among those to be considered to determine the reliability of scientific or engineering evidence: 1) whether the
expert’s theory or technique has been subject to peer review; 2) whether there is a known or potential rate of error; 3) whether the scientific
methodology has been generally accepted in its field; and 4) whether
it can be tested. Christian, 2003 OK 10, ¶8, 65 P.3d at 597-98; Daubert,
509 U.S. at 592-593; Hollander v. Sandoz Pharm. Corp., 95 F. Supp. 1230,
1234 (W.D. Okla. 2000); see also, Tyler v. Sterling Drug Inc., 19 F.
Supp.1239 (N.D. Okla. 1998).
64. Christian, 2003 OK 10, ¶9, 65 P.3d at 598; Daubert, 509 U.S. at 592593.
65. Alfred v. Caterpillar Inc., 262 F. 3d 1983 (10th Cir. 2001).
66. Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997); Black v. M&W Gear Co.,
269 F.3d 1220, 1227 (10th Cir. 2001).
67. Kirkland, 521 P.2d at 1363.
68. See e.g., Smith v. Cent. Mine Equip. Co., 876 F. Supp. 2d 1261 (W.D.
Okla. 2012); McMurray v. Deere & Co., 858 F.2d 1436, 1439 (10th Cir. 1988);
Brown v. McGraw-Edison Co., 736 F.2d 609, 613 (10th Cir. 1984); Hurd v.
American Hoist & Derrick Co., 734 F.2d 495, 500 (10th Cir. 1984); Bruce v.
Martin-Marietta Corp., 544 F.2d 442, 447 (10th Cir. 1976); Lamke v. Futorian
Corp., 1985 OK 47, 709 P.2d 684, 686; Smith v. United States Gypsum Co.,
1980 OK 33, 612 P.2d 251, 253; Attocknie v. Carpenter Mfg., 1995 OK CIV
APP 54, 901 P.2d 221.
69. Estate of Wicker v. Ford Motor Co., 393 F. Supp. 2d 1229 (W.D. Okla.
2005).
70. 1985 OK 47, 709 P.2d 684.
71. Id. at 686; see also Gaines-Tabb v. ICI Explosives, USA Inc., 160 F.3d
613, 624 (10th Cir. 1998).
72. 1990 OK 139, 808 P.2d 649.
73. Id. at 653; see also Okla. Gas & Electric Co. v. McGraw-Edison Co.,
1992 OK 108, 834 P.2d 980, 982. See also United Golf LLC v. Westlake Chem.
Corp., 05-CV-0495-CVE-PJC, 2006 WL 2807342 (N. D. Okla. August 15,
2006).
74. Waggoner, 1990 OK 139, 808 P.2d at 652; Dutsch v. Sea Ray Boats
Inc., 1992 OK 155, 845 P.2d 187, 193-94. See also Agape Flights Inc. v. Covington Aircraft Engines Inc., No. CIV-09-492-FHS, 2012 WL 2792452 (E.D.
Okla. 2012).
75. O’Neal v. Black & Decker Mgf. Co., 1974 OK 55, 523 P.2d 614, 615;
Mittapalli v. Ford Motor Co., Inc., No. 06-CV-61-GKF-SAJ, 2007 WI.
2292697, at *2 (N.D. Okka, Aug. 7, 2007.
76. Black & Decker Mfg. Co., 1974 OK 55, 523 P.2d at 615.
77. Kirkland, 521 P.2d at 1361; see Okla. Stat. Title 12, §95.
78. Okla. Stat. Title 12, §100.
79. 1991 OK 83, 825 P.2d 1273.
80. Id. at 1276-79.
81. See e.g., Huff v. Fiberboard Corp., 836 F.2d 473 (10th Cir. 1987); Williams v. Borden Inc., 637 F.2d 731 (10th Cir. 1980); Daugherty v. Farmers
Cooperative Ass’n., 1984 OK 72, 689 P.2d 947.
82. 1984 OK 72, 689 P.2d 947.
83. Id. at 951; see also Huff v. Fiberboard Corp., 836 F.2d 473, 479 (10th
Cir. 1987).
The Oklahoma Bar Journal
839
84. 836 F.2d 473 (10th Cir. 1987).
85. Okla. Stat. Title 12, §1053.
86. Huff, 836 F.2d at 475-480.
87. Okla. Stat. Title 12, §109-113.
88. Loyal Order Of Moose, Lodge 1785 v. Cavaness, 1978 OK 70, 563 P.2d
143, 147.
89. 1994 OK 65, 877 P.2d 45, 50.
90. 911 F. Supp. 490 (W.D. Okla. 1995).
91. Id. at 493-94; but see Durham v. Herbert Olbrich GMBH & Co., 404
F.3d 1249 (10th Cir. 2005) (holding manufacturing machinery was not an
“improvement of real property” and therefore the defendant could not
escape a claim for product liability by claiming the action was barred by
Okla. Stat. Title 12, §109).
92. Kirkland, 521 P.2d at 1366.
93. “Defense” here is used in the broad sense of the word, indicating
matters of proof that either serve as affirmative defenses or serve to rebut
the plaintiff’s prima facie case.
94. See supra note 42 (cases cited therein).
95. See supra note 43 (cases cited therein).
96. 1976 OK 106, 555 P.2d 48.
97. Id. at 56.
98. Id. The court, perhaps realizing the inconsistency with Kirkland,
noted that while drunkenness could be misuse of a product, the facts in
the present case did not establish such misuse. See also, Black v. M&W
Gear Co., 269 F.3d 1220, 1235 (10th Cir. 2001) (holding that evidence that
plaintiff’s alcohol consumption might have caused the accident is irrelevant because it did not rebut plaintiff’s evidence that a defective product caused plaintiff’s injuries); Prince v. B.F. Asher Co. Inc., 2004 OK CIV
APP 39, 90 P.3d 1020 (summary judgment for defendant on wrongful
death claim where medical inhaler only became dangerous after extracting and ingesting an ingredient therefrom).
99. Id.; see also, McMurray v. Deere & Co., 858 F.2d 1436 (10th Cir. 1988)
(party injured when bypassing a neutral start switch was carelessly using
product for a proper purpose).
100. See e.g., Farrell v. Klein Tools Inc., 866 F.2d 1294, 1296 (10th Cir.
1989); Stuckey v. Young Exploration Co., 586 P.2d 726, 730 (Okla. 1978);
Stewart v. Scott-Kitz Miller Co., 1981 OK CIV APP 3, 626 P.2d 329; Basford
v. Gray Manufacturing Co., 2000 OK CIV APP 106, 11 P.3d 1281, 1293.
101. Okla. Stat. Title 47, §12-420 (“[T]he use or nonuse of seat belts
shall be submitted into evidence in any civil suit in Oklahoma unless the
plaintiff in such suit is a child under sixteen (16) years of age.”).
102. Okla. Stat. Title 23, §§12, 13, 14. Okla. Stat. Title 23, §11 has since
been repealed and now Okla. Stat. Title 23, §§12, 13, 14 govern contributory negligence and comparative negligence.
103. Kirkland, 521 P.2d at 1367. The court noted that the referenced
statute applies to “negligent actions” and not product liability actions.
104. Black v. M&W Gear Co., 269 F.3d 1220, 1234 (10th Cir. 2001) (“In
Oklahoma, use of a product `for a proper purpose, but in a careless manner’ is merely contributory negligence, which is not a defense to a products liability suit.”); McMurray, 858 F.2d at 1439; Saupitty v. Yazoo Mfg.,
726 F.2d 657, 660 (10th Cir. 1984); Bingham v. Hollingsworth Mfg., 695 F.2d
445, 454 (10th Cir. 1982); Hogue v. A.B. Chance Co., 1979 OK 2, 592 P.2d 973,
975; Fields v. Volkswagen of America Inc., 1976 OK 106, 555 P.2d 48, 55.
105. Holt v. Deere & Co., 24 F.3d 1289, 1295 (10th Cir. 1994).
106. Hogue, 592 P.2d at 975.
107. Smith v. FMC Corp., 754 F.2d 873, 876 (10th Cir. 1985). See also,
Holt v. Deere & Co., 24 F.3d 1289, 1292 (10th Cir. 1994); Bingham v. Hollingsworth Mfg., 695 F.2d 445, 452 (10th Cir. 1972); Barber v. General Electric
Co., 648 F.2d 1272, 1277 (10th Cir. 1981).
108. 754 F.2d 873 (10th Cir. 1985).
109. Id. at 877; McMurray v. Deere & Co., 858 F.2d 1436, 1440 (10th Cir.
1988).
110. Holt, 24 F.3d at 1293.
111. Id.
112. 555 P.2d 91 (Okla. Ct. App. 1976).
113. Id. at 94. In Hawkins, there was a three year lapse from the time
of sale to the date of injury. See also Hurd v. American Hoist & Derrick Co.,
734 F.2d 495 (10th Cir. 1984) (30 year lapse of time does not preclude
finding of defectiveness at time of sale).
114. See e.g., Sterner Aero AB v. Page Airmotive Inc., 449 F.2d 709, 714
(10th Cir. 1974); Hawkins v. Larrance Tank Corp., 555 P.2d 91, 94-95 (Okla.
Ct. App. 1976).
115. Sterner Aero AB v. Page Airmotive Inc., 449 F.2d 709, 714 (10th Cir.
1974).
116. Hawkins, 555 P.2d at 94-95.
117. Braden v. Hendricks, 1985 OK 14, 695 P.2d 1343, 1350.
118. O’Banion v. Owens-Corning Fiberglass Corp., 968 F.2d 1011, 1016
(10th Cir. 1992). See also, Smith v. FMC Corp., 754 F.2d 873, 877 (10th Cir.
1985); Robinson v. Audi NSU Auto Union Aktiengesellschaft, 739 F.2d 1481,
1485 (10th Cir. 1984); Smith v. Minster Mach. Co., 669 F.2d 628, 633 (10th
Cir. 1982).
840
119. Attocknie v. Carpenter Mfg., 1995 OK CIV APP 54, 901 P.2d 221,
228; Edwards v. Basel Pharm., 933 P.2d 298, 301 (Okla. 1997). Issues concerning federal preemption as affecting a state common law product
liability claim are discussed in Johnson v. G.M. Corp., 889 F.Supp. 451
(W.D. Okla. 1995) and Bokis v. American Medical Systems Inc., 875 F.Supp.
748 (W.D. Okla. 1995).
120. 544 F.2d 442 (10th Cir. 1976).
121. Id. at 447.
122. Obanion at 968 F.2d 1011, 1016 (10th Cir. 1992); Smith, 669 F.2d at
634.
123. See infra “Tort Reform” discussion in Section 7 and accompanying endnotes.
124. Saupitty v. Yazoo Mfg., 726 F.2d 657, 659 (10th Cir. 1984).
125. McClaran v. Union Carbide Corp, 26 Fed. App’x 869 (10th Cir.
2002); Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 499 (10th Cir.
1984); Mayberry v. Akron Rubber Mach. Corp., 483 F.Supp. 407, 412 (N.D.
Okla. 1979); Dutsch v. Sea Ray Boats Inc., 1992 OK 155, 845 P.2d 187, 19192; Manora v. Watts Regulator Co., 1989 OK 152, 784 P.2d 1056, 1059;
Messler v. Simmons Gun Specialities Inc., 1984 OK 35, 687 P.2d 121, 125;
Stuckey v. Young Exploration Co., 1978 OK 128, 586 P.2d 726, 730; Cunningham v. Charles Pfizer & Co., 1974 OK 146, 532 P.2d 1377, 1379; Hawkins v.
Larrance Tank Corp., 555 P.2d 91, 94 (Okla. Ct. App. 1976).
126. 726 F.2d 657, 659 (10th Cir. 1984).
127. Id. at 659.
128. Akin v. Ashland Chemical Co., 156 F.3d 1030, 1037 (10th Cir. 1998);
see also Ingram v. Novartis Pharms. Corp., 888 F. Supp. 2d. 1241 (W.D. Okla.
2012).
129. 1992 OK 97, 833 P.2d 284.
130. Id. at 287.
131. 1993 OK 70, 881 P.2d 64, 67.
132. Id.
133. Woulfe v. Eli Lilly Co., 965 F. Supp. 1478, 1482 (E.D. Okla 1997).
Exceptions to the rule are discussed in Edwards v. Basel Pharmaceuticals,
933 P.2d 298, 300-03 (Okla. 1997); Tansy v. Dacomed Corp., 1994 OK 146,
890 P.2d 881, 886.
134. Duane, 1992 OK 97, 833 P.2d at 287.
135. Stafford v. Wyeth, 411 F. Supp. 2d 1318, 1320-21 (W.D. Okla. 2006).
136. Id.
137. Id.
138. Mayberry v. Akron Rubber Machinery Corp., 483 F. Supp. 407,413
(N.D. Okla. 1979); Graves v. Superior Welding Inc., 1995 OK 14, 893 P.2d
500, 503-04; Travelers Indemnity Co. v. Hans Lingl Anlagenbau Und Verfahrenstechnik GMBH & Co. KG, 189 Fed. App’x 782 (10th Cir. 2006).
139. See infra “Tort Reform” discussion in Section 7 and accompanying endnotes.
140. 1994 OK 146, 890 P.2d 881.
141. Id. at 885.
142. Id. at 886; Littlebear v. Advanced Bionics LLC, 896 F. Supp. 2d 1085
(N.D. Okla. 2012); Reed v. Smith & Nephew Inc., 527 F. Supp. 2d 1136 (W.D.
Okla. 2007).
143. Okla. Stat. Title 76, §57.1 (this statute does not provide a defense
for manufacturer’s defect or breach of warranty suits).
144. 487 U.S. 500, 507-508 (1988).
145. 936 F. Supp. 821 (W.D. Okla. 1996).
146. Id. at 830.
147. 552 U.S. 312 (2008).
148. 552 U.S. at 330.
149. Compare Riegel v. Medtronic, 552 U.S. 312 (2008) (preemption of
state common law claims for certain medical devices) with Moody v. Ford
Motor Co., 506 F. Supp. 2d 823, 830-31 (N.D. Okla. 2007) (finding compliance with a governmental standard for the minimum strength of a roof
was insufficient to establish an absolute defense to a claim of products
liability).
150. Moody v. Ford Motor Co., 506 F. Supp. 2d 823, 830-31 (N.D. Okla.
2007) (finding compliance with a governmental standard for the minimum strength of a roof was insufficient to establish an absolute defense
to a claim of products liability).
151. Wyeth v. Levine, 555 U.S. 555, 570-571 (2009).
152. Id. at 570-71.
153. Id. at 581.
154. 2013 OK H.B. 3365(1)(A) and (C).
155. Id.
156. Id. at (1)(D).
157. This principle is codified in Okla. Stat. Title 23, §61.
158. The elements that may be considered by the jury in fixing an
amount to be awarded to an adult for personal injuries are enumerated
in OUJI – Civ. No. 4.1.
159. The elements that may be considered by the jury in fixing an
amount to be awarded to a minor child for personal injuries are the same
as set out in endnote 142 above, except for loss of earnings, which are not
considered. OUJI – Civ. No. 4.2.
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
160. In a derivative action brought by the parent or guardian of a
minor child who has suffered personal injuries, the jury is allowed to
consider the elements set out in OUJI – Civ. 4.3.
161. In order for a plaintiff to recover on a claim of loss of spousal
consortium, the jury must make findings as set out in OUJI – Civ. 4.5. The
measure of damages for loss of spousal consortium is the amount of
money which will reasonably and fairly compensate the plaintiff for the
value of the loss of consortium he or she has sustained, and for the value
of the loss of consortium he or she is reasonably certain to sustain in the
future. Any award to the plaintiff will be reduced by the court in proportion to the percentage of negligence the jury attaches to the injured
spouse. OUJI – Civ. 4.6.
Children may also have a cause of action for loss of parental consortium, which is defined as the love, care, companionship and guidance
given by a parent to a minor child. For a child to recover on a loss of
parental consortium claim, the jury must make findings set out in OUJI
– Civ. No. 4.7. The measure of damages for loss of parental consortium is
based upon the amount of money which will reasonably and fairly compensate the child for the loss of the value of the parental consortium that
he or she has lost, and for the value of the loss of parental consortium he
or she is reasonably certain to sustain until he or she reaches the age of
eighteen. Any award to the child will be reduced by the court in proportion to the percentage of negligence the jury attaches to the injured parent. OUJI – Civ. No. 4.8.
162. An action for wrongful death is derivative, brought in the name
of the decedent. Elements that may be considered by the jury in determining the amount of damages are described in OUJI – Civ. No. 8.1.
Damage items which may be considered as a result of the wrongful death
of a minor child are enumerated in OUJI –Civ. No. 8.2.
163. Okla. Stat. Title 12, §§1053-1055; Okla. Stat. Title 84, §213.
164. The personal representative may recover damages the decedent
might have otherwise sustained had he or she lived. Okla. Stat. Title 12,
§1053(a).
165. See infra “Tort Reform” discussion in Section 7 and accompanying endnotes.
166. 1983 OK 28, 661 P.2d 515.
167. Okla. Stat. Title 23, §9.1.
168. Thiry, 661 P.2d at 518.
169. Id. at 517-18; see also, Johnson v. General Motors Corp., 889 F. Supp.
451, 454 (W.D. Okla. 1995).
170. Okla. Stat. Title 23, §9.1.
171. Okla. Stat. Title 23, §9.1.
172. Id. For an absence of such a finding on the record, the court in
Shuman v. Laverne Farmers Cooperative, 1991 OK CIV APP 2, 809 P.2d 76,
79 reduced the punitive damage award to equal the compensatory damages awarded.
173. 891 F.2d 1445 (10th Cir. 1989). The court rejected the argument
that a defendant’s resistance in producing material in discovery constitutes an implied admission of punitive guilt, and reasoned that such
evidence, if admissible, is relevant to liability, not damages.
174. Okla. Stat. Title 23, §61.2 (there is no limit on economic loss and
the “cap” is lifted if the judge and jury find by clear and convincing
evidence that the defendant’s acts or failures to act were in reckless disregard for the rights of others; grossly negligent; fraudulent; or intentional or with malice).
175. Okla. Stat. Title. 23, §15.
176. Okla. Stat. Title 12A, §1-304.
177. Okla. Stat. Title 76, §57.1 (does not provide a defense for manufacturer’s defect or breach of warranty suits).
178. 2013 OK H.B. 3375. This bill was enacted on April 28, 2014, and
amends Okla. Stat. Title 12, §3226(A)(2)(a) by adding the following language: “Subject to subsection B of this section, in any action in which
physical or mental injury is claimed, the party making the claim shall
provide to the other parties a release or authorization allowing the parties to obtain relevant medical records and bills, and, when relevant, a
release or authorization for employment and scholastic records.”
179. The Legislature revived the “affidavit of merit” requirement that
was struck down in Wall, but provided an exemption for indigent plaintiffs. See Okla. Stat. Title 12, §19.1. The future application of this statute
remains uncertain.
180. Okla. Stat. Title 76, §57.2(E)(1-6).
181. Okla. Stat. Title 76, §57.2(E)(1).
182. Okla. Stat. Title 76, §57.2(E)(2).
183. Okla. Stat. Title 76, §57.2(E)(4).
184. Okla. Stat. Title 76, §57.2(F).
185. Okla. Stat. Title 76, §57.2(G).
186. 2013 OK H.B. 3365(2).
Vol. 86 — No. 11 — 4/18/2015
About The AuthorS
Chris Pearson is a partner at
the Law Firm of Germer, Beaman
& Brown in Austin, Texas. He is
licensed in Oklahoma and Texas
and regularly defends automobile
and heavy truck manufacturers in
product liability litigation.
Tom Wolfe is a trial attorney
whose practice is focused on
complex business cases, including product liability, oil and gas,
mass tort and class action
defense. He served on the board
of directors and as chair of
the Trial Practice Section of the
Oklahoma Association of Defense Counsel. He is Master of the William J. Holloway, Jr. American Inn of Court. He co-authored the
OBJ articles, “Kirkland v. General Motors Co. and
Beyond: An Overview of Twenty Years of Oklahoma
Product Liability Law” and “An Overview of Oklahoma Product Liability Law,” the latter of which won the
Oklahoma Bar Association Golden Quill Award.
Lyndon Whitmire is a trial
attorney and Litigation Practice
Group Leader. He represents clients in a wide range of complex
litigation matters, including
product liability, commercial litigation, class actions, various
UCC and consumer protection
related disputes, first and third
party insurance disputes, general tort and personal
injury claims, intellectual property and appellate advocacy. He co-authored the OBJ article, “An Overview of
Oklahoma Product Liability Law,” which won the
Oklahoma Bar Association Golden Quill Award. Other
distinctions include recipient of the International
Academy of Trial Lawyers Award.
Cody J. Cooper is a litigation
associate at the firm of Phillips
Murrah P.C. He represents clients in a wide range of civil complex litigation matters. His practice concentrates on intellectual
property, product liability and
commercial litigation. He graduated from OU College of Law
with honors. While in law school, he served as the
managing editor of the American Indian Law Review. He
has published articles on both “E-Discovery” and
“Bring Your Own Device Policies” in the workplace.
The Oklahoma Bar Journal
841
OKC BOMBING ANNIVERSARY
The Time is 20 Years Past
9:02 a.m.
By Robert Don Gifford
As the flight attendant finishes the instructions, I adjust
my seatbelt and prepare to
spend my time reading or
maybe napping as I depart
from Boston on my way to
Baltimore to catch the final leg
back home. After an exchange
of pleasantries with a seatmate, we discover we are both
attorneys and discussion
ensues of our respective final
destinations. I have come to
notice a pattern in passing discussions with strangers in the
past two decades; the odds are
that if my fellow passenger
has never been to the Heart-
We Remember
Susan Jane Ferrell
Jules Alfonso Valdez
Michael D. Weaver
Clarence Eugene Wilson Sr.
Oklahoma Bar Association
members who lost their lives
in the Alfred P. Murrah
Federal Building bombing
on April 19, 1995.
842
land, the discussion
leads to what happened one cool,
spring morning at
9:02 a.m. in Oklahoma City.
As the somber
anniversary of April
19, 1995, hits 20
years, one can stand
where the Murrah
Building once existed. Its shadow is still
there for us. It stands
in our memories
between two stoic
walls serving as the
“Gates of Time” with
the times 9:01 and
9:03 inscribed, while
168 empty chairs
glimmer in a reflectPhoto courtesy of Oklahoma City National
ing pool and the
Memorial & Museum
“Survivor Tree”
We search for the truth, we seek justice. The
still stands.
courts require it. The Victims cry for it. And
To write something God demands it!
Team 5, 4-19-95 (Graffiti painted on wall)
on the anniversary
of 9:02 a.m. is a chalmost since 9:02 a.m. on April
lenge. There are a lot of areas
19, 1995?” Clearly, the individto discuss — the realization
uals who were involved in
of home grown terrorism,
committing one of the most
the legal issues over the course
cowardly events in history
of the case that could be reshould be relegated to nothing
hashed in the bar journal, the
more than a footnote of histotrial itself, the intense press
ry. What mattered most was,
coverage it garnered, and the
quite simply, the legacy.
tell-all books published after
the execution. But, I seem to
The legacy of 9:02 a.m. is
keep coming back to the ques- most likely personal to each of
tion of, “what has mattered
us. It spans the chasms of life,
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
justice and survival. Despite
20 years, the bombing still
labels us as Oklahomans and
as Americans. Whether I am in
Boston, Barcelona or Bokchito,
the discussion still turns to
April 19, 1995, when I mention
I hail from Oklahoma. The legacy represents the memories of
168 lives lost, the hundreds
injured, the dust covered
emergency workers, the city of
Oklahoma City, the people of
Oklahoma and the American
system of justice. The legacy of
that spring morning shows
that the ideals, courage and
pride will overcome the evil
of others.
Platitudes aside, the echoes
of 9:02 a.m. remain. The passage of time has not made
mourning any easier for many
victims’ family members. The
legacy is not about trying to
forget, it is remembering the
true legacy and honoring
those who are most important.
When the clock strikes 20
years past 9:02 a.m., what
will be your reflections as
we all stand between 9:01
and 9:03 of history?
About The Author
Robert Don Gifford serves on the
OBA Board of
Governors and is
an Assistant United States Attorney
in Oklahoma City
serving as the
Human Trafficking
Coordinator for the Western District
of Oklahoma.
NOTICE OF JUDICIAL VACANCY
The Judicial Nominating Commission seeks applicants to fill the following judicial
office:
Associate District Judge
Twenty-third Judicial District
Pottawatomie County, Oklahoma
This vacancy is due to the retirement of the Honorable John Gardner on August 1, 2015.
To be appointed an Associate District Judge, an individual must be a registered
voter of the applicable judicial district at the time (s)he takes the oath of office
and assumes the duties of office. Additionally, prior to appointment, the appointee must have had a minimum of two years experience as a licensed practicing
attorney, or as a judge of a court of record, or combination thereof, within the
State of Oklahoma.
Application forms can be obtained on line at www.oscn.net by following the link to
the Oklahoma Judicial Nominating Commission or by contacting Tammy Reaves, Administrative Office of the Courts, 2100 North Lincoln, Suite 3, Oklahoma City, OK 73105,
(405) 556-9300, and should be submitted to the Chairman of the Commission at the same
address no later than 5:00 p.m., Friday, May 1, 2015. If applications are mailed, they must
be postmarked by midnight, May 1, 2015.
Stephen D. Beam, Chairman
Oklahoma Judicial Nominating Commission
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
843
OBF-OBA PROJECT
Mock Trial Program Concludes
Another Successful Year, Sends
State Champ to Nationals
By Daniel Couch
A small town subjected to
an aggravated armed robbery.
Witnesses to the crime bound
and held at gunpoint in a local
holistic food store with a suspicious name, “Herb World.” One
witness with a history of drug
use and hallucinations who
could not positively identify
the perpetrator. Another witness was present the night of
the incident but was never
interviewed by the police. An
employee of a next door business did not report anything
out of the ordinary, but did see
certain people leaving the back
of the building before police
arrived.
So who would dare commit
such an offense? Was it the
manager with a financial
motive who produced an
inconclusive lie detector test?
Was it the employee who was
found following the incident
with a significant amount of
money and electrical tape in his
car? Or was it some random
third-party predator just breezing through town? The only
person who knew for sure was
the unknown perpetrator who
certainly was not admitting to
the crime. The police, whose
work left a little to be desired,
settled their sights on the Herb
World’s employee found with
844
the money and tape following
the incident. It was then up to
the local district attorney to
prove that the accused was
guilty beyond a reasonable
doubt — while the accused’s
lawyers were tasked with keep-
preparing their arguments as
both the prosecution and the
defense. The schools were then
entered into a tournament-style
competition, in which they
could be asked to advocate as
the prosecution or the defense.
Mock Trial Committee members are (front row, from left) Marsha
Rogers, Jennifer Bruner, Coordinator Judy Spencer and Melissa Peros,
(back row) Dan Couch, Todd Murray, Kevin Cunningham, Nathan
Richter and Tai Chan Du.
ing their client out of jail and
ensuring a fair administration
of justice.
This story reads much like
something from the local news,
but it served as the backdrop
for this year’s Oklahoma Bar
Association’s High School
Mock Trial Competition: the
case of State v. Jessie Chandler.
Thirty-seven teams from 32
schools spent several months
The Oklahoma Bar Journal
AND THE TOP TEAMS
ARE…
This year’s finals matched
Moore High School against
Owasso High School Team Darrow. The trial, held on March 3,
2015, in the Bell Courtroom at
the University of Oklahoma,
was presided over by retired
Judge Edward Cunningham.
The distinguished scoring
panel was comprised of retired
Vol. 86 — No. 11 — 4/18/2015
Judge Glenn Adams, retired
Judge Kenneth Dickerson,
Judge Shon Erwin of the U.S.
District Court for the Western
District of Oklahoma, Judge
David Lewis of the Oklahoma
Court of Criminal Appeals and
Judge Mark Osby of the Union
City Municipal Court. After a
zealously advocated trial by
both finalists, Moore High
School prevailed as this year’s
state champion. The rest of the
top eight finishers were Owasso High School Team Williams
in eighth, Broken Arrow High
School in seventh, McAlester
High School in sixth, Ada High
School in fifth, Southmoore
High School in fourth and
Jenks High School in third.
Moore will move on to compete
at the national competition in
May with an entirely new case
that will be released in early
April.
The program is organized
and coordinated by the OBA
High School Mock Trial Committee. It begins by preparing a
case for competition by either
modifying a prior case from
another state’s competition or
creating a new case from
scratch. Once the case materials
are prepared, including witness
statements, affidavits, reports,
photographs and the other
evidence to be used at trial,
the committee releases the case
to the teams to begin their
preparation.
The committee’s focus then
shifts to organizing and coordinating the competition. This
includes working with our local
state and federal courthouses to
secure courtrooms for competition, recruiting volunteer presiding judges and scoring panelists, and bracketing the teams
within the different competition
sites. The committee also
recently added an in-person
workshop open to the schools
Vol. 86 — No. 11 — 4/18/2015
Judging the final championship round were (from left) Retired
Judge Glenn Adams, Retired Judge Kenneth Dickerson, Judge
David Lewis, Judge Shon Erwin, Judge Mark Osby and Retired
Judge Edward Cunningham.
at which the committee presents instruction and tips for
various aspects of trial procedure, evidentiary issues, witness examination and other
presentation issues in order to
help the students better prepare
for the competition. This year’s
workshop was held in Oklahoma City at the Oklahoma Bar
Center and broadcast simultaneously in Tulsa at Jenks High
School. Workshop segment videos are available on the mock
trial program’s website.
•the Oklahoma Bar Foundation for its generous program funding,
•the Oklahoma Bar Association for its support and
encouragement of the
program,
•the state and federal courthouses that provide a
venue for the competition
and give the students
the enhanced experience
of being in an actual
courtroom,
•the numerous volunteers
within our legal community who give us their time
to serve as the judges and
scoring panelists,
•the communities, coaches,
teachers and parents of the
team members who support and encourage their
students and
PROGRAM SUPPORT
The committee receives an
overwhelming amount of support from many persons and
entities, all of which are needed
for a successful competition.
The committee cannot thank
them enough:
The Oklahoma Bar Journal
•the students themselves for
bravely entering into the
unknown world of law,
working tirelessly to study
and learn the case, evidentiary code, rules of competition and presenting a compelling argument in front of
complete strangers with
decades of legal experience.
845
I would also like to personally thank the committee for their
hard work this year: Karolina
Roberts, Nathan Richter, Todd
Murray, Andrea Medley, Nicole
Longwell, Tai Du, Kevin Cunningham, Joe Carson, Christine
Cave, Julie Austin, Jennifer
Bruner, last year’s Chair Melissa Peros and next year’s Chair
Marsha Rogers. Their dedication to the competition was tremendous. And, of course, I
have to thank and recognize the
heart and soul of the program,
Mock Trial Coordinator Judy
Spencer. Although it requires
the effort of many to successfully run this program, without
Judy the program would not be
where it is today. Judy, we truly
cannot thank you enough for
championing this program for
so many years.
GET INVOLVED
Every year I am more
impressed by the enthusiasm
of the students, caliber of the
competition and support of the
schools, teachers, parents and
our legal community. I encourage anyone who is interested to
become involved in this competition in some manner, whether
as a volunteer scoring panelist,
a committee member or even
an attorney coach for one of the
schools. For more information
regarding the OBA’s High
School Mock Trial program,
check out the website at
www.okbar.org/public/
MockTrial and to sign up
as a volunteer, please email
mocktrial@ okbar.org.
About The Author
Mr. Couch practices in Oklahoma
City and serves as
chairperson for
the High School
Mock Trial
Committee.
846
TRIAL SITE
COORDINATORS
Christine Cave
Deresa Clark*
Joe Carson
Dan Couch
Tai Du
Rob Duncan III
Patrick Layden
Andrea Medley*
Regina Meyer
Anne Mize*
Todd A. Murray
Nathan Richter*
Marsha Rogers*
Susie Bolin Summers*
Chris Szlichta
Leah Terrill-Nessmith*
Jessica Ward
John Young
*denotes hosting qualifying and
quarter final rounds
ATTORNEY COACHES
Ranada Adams
Emma Arnett
Clifton Baker
Judge James Bland
Judge Daman Cantrell
Eric Cavett
Michael Clark
Erin Dailey
Angie Dean
Preston Draper
Deidre Dexter
Susan Eades
Eddie Fouracre
Charlie Glidewell
Eric Grantham
Brady Haggard
Clint Hastings
Andrew Hofland
Mike Horn
Michon Hughes
Mark Hunt
E. Jeffrey
Chris Jones
Judge Douglas Kirkley
Colin Manning
Barbara Maschividis
Tom Maxcey
Brian McLaughlin
Judge Tim Mills
Anthony Moore
Heather Gibson Nance
The Oklahoma Bar Journal
Ellen Quinton
Rob Ridenour
Roger Rinehart
Adam Scharn
Judge Matthew Sheets
Desmond Sides
Don L. Smitherman
Julie Strong
Charles Sullivan
Ken Underwood
Judge Jill Weedon
Matt Wheatley
PRESIDING JUDGES AND
SCORING PANELIST
Kim Adams
JosephAllen
WayneBailey
Nikki Baker
SandraBalzer
DianneBarker-Harold
Mindy Beare
Matt Beese
KirstenBernhardt **
Wes Billingsley
Jennifer Bruner
Lance Bryan
Aaron Bundy
GeorgeBurnett
Eric Carpenter
Dietmar Caudle
Wes Cherry
Mark Clark
Steve Coleman
Jim Cosby
Michael Coulson
John Cramer*
Dan Crawford*
David Cummings
Edward Cunningham*****
Kevin Cunningham**
Kara Davis
Renée DeMoss
Deidre Dexter*
Ken Dickerson
CharlesDickson
Jennifer Dickson
Kevin Dodson
Adam Doverspike
Glen Dresback
Josh Edwards
Kyle Endicott
Judge Shon Erwin******
Clayton Eubanks
Mark Fields
Craig Fitzgerald
Vol. 86 — No. 11 — 4/18/2015
Ashley Forrester**
Marna Franklin
Mykel Fry
Jodie Gage
CharlesGass
RobertGetchell
Don Gifford
AmberGodfrey
Rebecca Gore
Eric Grantham
Mark Graziano*
Scott Grier
Lori Guevara**
Deborah Hackler
Matthew Haire
Sarah Hall
Alex Handley***
Erick Harris
GaylonHayes*
Brady Henderson
Chris Henry
Sarah Hill
Clay Hillis
Kurt Hoffman*
Frank Holdsclaw
Paige Hoster
Trevor Hughes
RobertJaques
JoLynnJeter
DebbieJohnson*
Nick Johnson
Ann Keele
Ralph Keen
William Kellough
Thomas Kirby
Leslie Kissinger
Michael Kulling
LaurenLaMontagne
Tyler Larsen
Anne Lawrence**
Jennifer Layton
Paige Lee
Michael Lewis****
Nicole Longwell
Gaylene McCallum
Hillary McKinny*
Jason McVicker
Cherie Meislahn
Heath Meuller
Gary Miller
Jennifer Miller
Anne Mize
DarrellMoore
James Moore*
Vol. 86 — No. 11 — 4/18/2015
Jim Moore
Bryan Morris*
Heath Mueller
Julia Neftzger
Alix Newman
Brenda Nipp
Paul Northcutt
Jimmy Oliver
Ivan Orndorff*
Jessica Ortez
Jenna Owens
Christine Pappas
Kelly Parker*
John Parris
Matt Patterson
Wes Pevsworth
Bryan Plank
Michael Porter
Sonja Porter***
James Pratt*
Shannon Prescott*
Janice Purcell
Scott Ray
Ryan Reaves*
Greg Reilly
Dale Rex
NathanRichter
Robin Rochelle**
MarshaRogers
Phillip Ross
Jake Sandlin
Kathryn Savage
Mark Schwebke*******
Micah Sexton
Ian Shahan
Jeff Shaw
Stephen Shreder
Kevin Simpson
Kim Slinkard*
Kara Smith
Travis Smith
Ed Snow
RobertSpector
Sandy Steffen*
StevenStice
Anne Sublett
Thomas Swafford
Brain Swenson
Leslie Taylor
Scott Thomas
Carolyn Thompson******
Norman Thygesen
Megan Tilly
Michael Trewitt
The Oklahoma Bar Journal
John Turner
Eddie Valdez
Georgenia VanTuyl
JeremyWard
RichardWarzynski***
CharlesWatts
SharonWeaver
Brad Wicker
Rod Wiemer*
Jim Wilcoxen
David Wilkie
Betty Williams
Franklin Willis
AllisonWilson
Michael Wilson
Heather Wright*
Grace Yates
John Young
*served twice
**served three times
***served four times
****served five times
*****served six times
******served seven times
Are you a former
high school
mock trial
team member?
The Mock Trial Committee would like to create a
list of bar members who
took part in Oklahoma’s
program. Please email
[email protected] with
the name of your high
school, how many years
you were on the team
and what year(s) that
took place.
847
BAR NEWS
BAM! Become a Member –
Become a Master
By Ron Main
BAM! We told you it would happen, and it has!
The Master Lawyers Section of the Oklahoma
Bar Association is up and running. We invite you
to join!
Let me first remind you what we are and who
we are. The Master Lawyers Section is a new section open to OBA members who are 60 years or
older, or OBA members who have practiced 30
years or more, for an annual section fee of $20.
The section is designed to develop programs that
will enhance and improve the lives of eligible
lawyers, who fall into three basic categories: 1)
those who are still working, 2) those who are still
working but thinking about cutting back and 3)
those who have already retired from the active
practice of law.
eoconferencing. We decided our first order of
business would be to recruit new members.
There is no shortage of prospects. Believe it or
not, the majority of OBA members are over 50
years of age and 4,533 are 60 or over. In fact, more
than 3,300 OBA members are eligible to join the
Master Lawyers Section, and to date, 149 of that
number have joined.
Contrary to the beliefs of some, this section is
not a group for lawyers who have been “put out
to pasture.” The section’s goal is to offer something for all lawyers who meet the criteria and
want to enhance their lives and careers in new
ways by using their legal skills and knowledge.
The advances in health care over the years
have had the happy consequence of permitting
lawyers to live longer and practice longer. The
practice of law, however, has so greatly changed
that there are many new opportunities that attorneys may not be aware of — as well as challenges. Our section will seek to arm our members
with knowledge of these opportunities and ways
to meet the challenges.
Our first meeting was held Feb. 12 in Oklahoma City at the bar center and in Tulsa at the
University of Tulsa College of Law through vid-
How to Join the Master Lawyers Section
Mail a $20 check (payable to the OBA) for 2015 section dues to the OBA, P.O. Box 53036, Oklahoma City,
OK 73152. Include the section name on the check’s
memo line.
848
We are also initially concentrating on developing the Community Contribution Committee
and the Service to Senior Lawyers Committee.
The Community Contribution Committee will
work on opportunities for members to use their
skills and knowledge through community projects and pro bono work. The service committee is
in charge of developing relevant programs for
our section members, such as CLE, career change
and public service programs.
SECTION BENEFITS
Our next meeting is scheduled for noon Thursday, May 14, 2015, at the TU law school Dean’s
Conference Room and Oklahoma Bar Center
Room 131. At that meeting Management Assistance Program Director Jim Calloway will conduct a one-hour CLE on “Technology Tips” that
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
is free to section members, with the section providing lunch. Send your RSVP (indicate Tulsa or
OKC) to [email protected] by May 11. Or call her
at 405-416-7042; 800-522-8065.
Perhaps I can give some examples of how this
section can help different individuals. I am a
“Category 2” master section member. By that I
mean I have been practicing law for 50 years and
still practice, but my intent was to slow down
gradually until that day I close my office at the
Skelly Drive location in Tulsa, where I have been
for over 20 years. Shortly before our first section
meeting, however, I was notified by my landlord
that the office building is closing, and I have
only one month to clear out and find a new
space. Can you imagine how hard it is to suddenly have to deal with a current caseload, find
new office space and clear out 40 years of practice in one month? I can tell you, it is not easy.
Suddenly, I was forced to consider retirement.
I quickly discovered that although I had the
practice of law to retire “from,” I had not adequately prepared something to retire “to.” I am
already receiving tips from sharing this story at
our first Master Lawyers Section meeting, and I
will be better prepared in the future to help lawyers who deal with similar issues. I still have the
ability to make a difference and contribute. I
believe that the work of the Master Lawyers Section will furnish possible solutions.
3 member. Barbara is retiring from her position
as executive director of the Tulsa Lawyers for
Children organization, but she remains passionate about helping children in need and intends
to continue working as a volunteer lawyer with
this amazing nonprofit group. As a member of
the Master Lawyers Section, she can do that and
easily reach out to other master lawyers who
may also be willing to serve as volunteers.
All kinds of interesting opportunities are
available to skilled and seasoned lawyers, and
this new section will help its members find them
and take advantage of them. Perhaps one of the
best opportunities is the chance to help shape
this new OBA section from the ground floor up
and take it in directions that will benefit not only
section members, but also our entire bar and
those Oklahoma citizens who need the help only
lawyers can give.
So...BAM! Become a member — become a master. We look forward to welcoming you soon!
About The Author
Ron Main practices in Tulsa
and chairs the OBA Master Lawyers Section. He can be reached
at [email protected]
Another example of a Master Lawyers Section
member is Barbara Sears, a soon-to-be Category
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
849
BAR NEWS
Diversity Awards:
Committee Encourages Nominations
Deadline June 8
Dr. Martin Luther King Jr.
once said, “I can never be what
I ought to be until you are what
you ought to be, and you can
never be what you ought to be
until I am what I ought to be.”
The Oklahoma Bar Association’s Diversity Committee will
be honoring those in our profession and community making
tremendous strides toward
ensuring that “We Are What
We Ought to Be.”
The Diversity Committee is
now accepting nominations for
the Ada Lois Sipuel Fisher
850
Diversity Awards to be given
during the Ada Lois Sipuel
Fisher Diversity Awards dinner
on Oct. 15, 2015. The award
categories are: members of the
judiciary, licensed attorneys,
and groups and/or entities that
have championed the cause of
diversity. All nominations must
be received by June 8, 2015.
The OBA Diversity Committee’s awards honor the courage
of Ada Lois Sipuel Fisher, who
was the first African-American
woman to attend an all-white
law school, the OU College of
The Oklahoma Bar Journal
Ada Lois Sipuel Fisher
Photo credit: OU College of Law
Law. The award recognizes her
actions in championing the
causes of diversity.
Vol. 86 — No. 11 — 4/18/2015
Information regarding the
selection criteria and nomination process may also be accessed at www.okbar.org. For
additional information, please
contact OBA Diversity Committee Chair Tiece Dempsey at
405-609-5406.
NOMINATIONS AND
SUBMISSIONS
•Include name, address
and contact number of the
nominee.
•Describe the nominee’s
contributions and accom-
plishments in the area of
diversity.
•Identify the diversity award
category (business/group/
organization, licensed
attorney or judiciary) in
which the nominee is
being nominated.
The submission deadline is
June 8, 2015.
Submissions should not
exceed five pages in length.
Submit nominations to
[email protected]
I can never be
what I ought to be
until you are what
you ought to be, and
you can never be
what you ought to be
until I am what I
ought to be.
Dr. Martin Luther King Jr.
SELECTION CRITERIA AND NOMINATION PROCESS
Three diversity awards will be given to a business, group or organization that has an office in
the state of Oklahoma and has met one or more
of the following criteria:
Two more diversity awards will be given to
licensed attorneys and an additional award will be
given to a member of the Oklahoma judiciary
who has met one or more of the following criteria:
•Developed and implemented an effective equal
opportunity program as demonstrated by the
organization’s commitment to the recruitment,
retention and promotion of individuals of
underrepresented populations regardless of
race, ethnic origin, gender, religion, age, sexual
orientation, disability or any other prohibited
basis of discrimination
•Demonstrated dedication to raising issues of
diversity and protecting civil and human rights
•Promoted diversity initiatives that establish and
foster a more inclusive and equitable work
environment
•Demonstrated continued corporate responsibility by devoting resources for the improvement
of the community at large
•Exhibited insightful leadership to confront and
resolve inequities through strategic decisionmaking, allocation of resources and
establishment of priorities
Vol. 86 — No. 11 — 4/18/2015
•Led the development of innovative or contemporary measures to fight discrimination and
the effects
•Fostered positive communication and actively
promoted inter-group relations among populations of different backgrounds
•Participated in a variety of corporate and community events that promoted mutual respect,
acceptance, cooperation or tolerance and
contributed to diversity awareness in the
community and workplace
•Reached out to a diverse array of attorneys to
understand firsthand the experiences of someone from a different background
The Oklahoma Bar Journal
851
BAR NEWS
Judicial Nominating Commission
Elections: Nomination Period Opens
The selection of qualified
persons for appointment to
the judiciary is of the utmost
importance to the administration of justice in this state.
Since the adoption of Article
7-B to the Oklahoma Constitution in 1967, there has been
significant improvement in
the quality of the appointments to the bench. Originally,
the Judicial Nominating Commission was involved in the
nomination of justices of the
Supreme Court and judges
of the Court of Criminal
Appeals. Since the adoption of
the amendment, the Legislature added the requirement
that vacancies in all judgeships, appellate and trial, be
filled by appointment of the
governor from nominees submitted by the Judicial Nominating Commission.
The commission is composed of 15 members. There
are six non-lawyers appointed
by the governor, six lawyers
elected by members of the bar,
and three at large members,
one selected by the Speaker of
the House of Representatives;
one selected by the President
Pro Tempore of the Senate;
and one selected by not less
than eight members of the
commission. All serve six-year
852
terms, except the members at
large who serve two-year
terms. Members may not
succeed themselves on the
commission.
The lawyers of this state
play a very important role in
the selection of judges since
six of the members of the
commission are lawyers elected by lawyers. The lawyer
members are elected from
each of the six congressional
districts as they existed in
1967. (As you know, the
congressional districts were
redrawn in 2011.) Elections
are held each odd numbered
year for members from two
districts.
2015 ELECTIONS
This year there will be elections for members in Districts
5 and 6. District 5 includes all
of Oklahoma County except
for those portions described
as State Senate District No. 42
and House District No. 96.
District 6 is composed of 23
counties in the northwestern
part of the state. (See the sidebar for the complete list.)
Lawyers desiring to be
candidates for the Judicial
Nominating Commission
positions have until Friday,
May 15, 2015, at 5 p.m. to
The Oklahoma Bar Journal
DISTRICT 5 COUNTIES
• Oklahoma*
DISTRICT 6 COUNTIES
• Alfalfa
• Beaver
• Beckham
• Blaine
• Canadian
• Cimarron
• Custer
• Dewey
• Ellis
• Garfield
• Grant
• Harper
• Kay
• Kingfisher
• Lincoln
• Logan
• Major
• Noble
• Payne
• Roger Mills
• Texas
continued on next page
Vol. 86 — No. 11 — 4/18/2015
• Woods
• Woodward
* District Number 5
shall include all of Oklahoma County except that portion thereof described as
State Senate District No.
42 and that portion of
House District No. 96 not
otherwise included in State
Senate District No. 42, as
now defined and described
in Title 14, Oklahoma Statutes, Section 79 (as they
existed in 1967).
submit their Nominating
Petitions. Nominating petition forms can be found
online at www.okbar.org/
member/JNC/Elections.
Ballots will be mailed on
June 5, 2015, and must be
returned by June 19, 2015,
at 5 p.m.
It is important to the administration of justice that the
OBA members in the Fifth
and Sixth Congressional Districts become informed on the
candidates for the Judicial
Nominating Commission and
cast their vote. The framers of
the constitutional amendment
entrusted to the lawyers the
responsibility of electing qualified people to serve on the
commission. Hopefully, the
lawyers in the Fifth and Sixth
Congressional Districts will
fulfill their responsibility by
voting in the election for
members of the Judicial
Nominating Commission.
OBA PROCEDURES
GOVERNING THE
ELECTION OF LAWYER
MEMBERS TO THE
JUDICIAL NOMINATING
COMMISSION
1. Article 7-B, Section 3, of
the Oklahoma Constitution
requires elections be held in
Vol. 86 — No. 11 — 4/18/2015
each odd numbered year by
active members of the Oklahoma Bar Association to elect
two members of the Judicial
Nominating Commission for
six-year terms from Congressional Districts as such districts existed at the date of
adoption of Article 7-B of
the Oklahoma Constitution
(1967).
2. Ten (10) active members
of the association, within the
Congressional District from
which a member of the commission is to be elected, shall
file with the Executive Director a signed petition (which
may be in parts) nominating a
candidate for the commission;
or, one or more County Bar
Associations within said Congressional District may file
with the Executive Director a
nominating resolution nominating such a candidate for
the commission.
3. Nominating petitions
must be received at the Bar
Center by 5 p.m. on the third
Friday in May.
4. All candidates shall be
advised of their nominations,
and unless they indicate they
do not desire to serve on the
commission, their name shall
be placed on the ballot.
5. If no candidates are nominated for any Congressional
District, the Board of Governors shall select at least two
candidates to stand for election to such office.
6. Under the supervision of
the Executive Director, or his
designee, ballots shall be
mailed to every active member of the association in the
respective Congressional District on the first Friday in
June, and all ballots must
be received at the Bar Center
by 5 p.m. on the third Friday
in June.
The Oklahoma Bar Journal
7. Under the supervision of
the Executive Director, or his
designee, the ballots shall be
opened, tabulated and certified at 9 a.m. on the Monday
following the third Friday
of June.
8. Unless one candidate
receives at least 40 percent of
the votes cast, there shall be a
runoff election between the
two candidates receiving the
highest number of votes.
9. In case a runoff election
is necessary in any Congressional District, runoff ballots
shall be mailed, under the
supervision of the Executive
Director, or his designee, to
every active member of the
association therein on the
fourth Friday in June, and
all runoff ballots must be
received at the Bar Center
by 5 p.m. on the third Friday
in July.
10. Under the supervision of
the Executive Director, or his
designee, the runoff ballots
shall be opened, tabulated
and certified at 9 a.m. on the
Monday following the third
Friday in July.
11. Those elected shall be
immediately notified, and
their function certified to the
Secretary of State by the President of the Oklahoma Bar
Association, attested by the
Executive Director.
12. The Executive Director,
or his designee, shall take
possession of and destroy any
ballots printed and unused.
13. The election procedures,
with the specific dates included, shall be published in the
Oklahoma Bar Journal in the
three issues immediately preceding the date for filing
nominating resolutions.
853
NOTICE
HARPER
WOODS
GRANT
ALFALFA
Nominations for elections as members of
the Judicial Nominating Commission from
Congressional Districts 5 and 6 (as they
existed in 1967) will be accepted by the
Executive Director until 5 p.m. Friday,
May 15, 2015. Ballots will be mailed on
June 5, 2015, and must be returned by
5 p.m. on June 19, 2015.
6
ELLIS
PAYNE
BLAINE
ROGER MILLS
KINGFISHER
CREEK
LOGAN
WASHITA
HARMON
KIOWA
WAGONER
OKFUSKEE
CLEVELAND
GRADY
4
McCLAIN
ADAIR
SEQUOYAH
McINTOSH
HASKELL
HUGHES
PITTSBURG
JACKSON
MURRAY
TILLMAN
COTTON
CHEROKEE
LATIMER
LEFLORE
PONTOTOC
GARVIN
STEPHENS
DELAWARE
MUSKOGEE
OKLAHOMA
5
COMANCHE
Note: The Congressional Districts are those existing
at the date of the adoption of Article 7-B of
the Oklahoma Constitution.
1
OTTAWA
MAYES
OKMULGEE
CADDO
GREER
CRAIG
2
LINCOLN
CUSTER
CANADIAN
BECKHAM
PAWNEE
MAJOR
DEWEY
NOWATA
ROGERS
NOBLE
GARFIELD
WOODWARD
OSAGE
KAY
TULSA
BEAVER
SEIMINOLE
TEXAS
POTTAWATOMIE
CIMARRON
WASHINGTON
JUDICIAL NOMINATING COMMISSION ELECTIONS
CONGRESSIONAL DISTRICTS 5 AND 6
JOHNSTON
CARTER
COAL
3
JEFFERSON
LOVE
MARSHALL
PUSHMATAHA
ATOKA
CHOCTAW
McCURTAIN
BRYAN
THE MUSCOGEE (CREEK) NATION DISTRICT COURT PRESENTS
THE 13TH ANNUAL “DOING BUSINESS IN INDIAN COUNTRY:
Invasion & Resurrection of Native Society from the Tribal Court’s Perspective”
Continuing Legal Education
River Spirit Event Center • April 30 – May 1, 2015
8330 Riverside Pkwy • Tulsa, Oklahoma 74136
Registration Fee (two days): $225 • On Site Registration: $250 • Single Day Rate: $150
This course has been approved by the Oklahoma Bar Association Mandatory Continuing Legal Education Commission
for 12 hours of CLE Credit, including 1 hour of legal ethics credit.
Moderators: Hon. Gregory H. Bigler, BS, JD, LL.M - District Court Judge, Muscogee (Creek) Nation,
Jasen Chadwick, JD – Staff Attorney, Muscogee (Creek) Nation Supreme Court
Presenters: Prof. Robert Williams, Jr., BA, JD, University of Arizona Indigenous Peoples Law and Policy Program • Jack (Boston)
Rowe, former Speaker, Polecat Ceremonial Ground • Hon. Gregory H. Bigler, BS, JD, LLM, District Court Judge, Muscogee
(Creek) Nation • Prof. G. William (Bill) Rice, JD, University of Tulsa College of Law • Prof. Rebecca Tsosie, JD, Sandra Day
O’Connor College of Law (Arizona State) • Jasen Chadwick, JD, Staff Attorney, Muscogee (Creek) Nation Supreme Court • Hon.
Jennifer McBee, JD, Special Judge, Pittsburgh and Le Flore Counties • Donna Beaver, BS, Court Clerk, Muscogee (Creek) Nation
District Court • Charlotte Cartwright, Court Administrator, Sac & Fox Nation Tribal Court • Kevin Dellinger, JD, Assistant
Attorney General, Muscogee (Creek) Nation • Hon. Steve Aycock (Ret.), JD, National Council of Juvenile and Family Court Judges
(NCJFCJ) • Hon. Cheryl Fairbanks, BA, JD, Cuddy & McCarthy, LLP
Download Registration at www.muscogeecreektribalcourt.org
For more information contact the District Court 918.758.1400 or by email, [email protected]
Make your hotel reservations by April 15th for a CLE-discounted rate!
Marriott Tulsa Hotel Southern Hills • 1902 E. 71st Street S. • Tulsa, OK 74136 • 918.493.7000
854
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
LEGISLATIVE NEWS
Watch List Bill Status Report
By Duchess Bartmess
AWAITING ACTION
Members of the Oklahoma Legislature
are working in high gear on the more than 650
measures still considered active. Of the over
2,000 introductions, a large number of 505
introductions designated to be reviewed
and monitored by the Legislative Monitoring Committee during this session
are no longer considered active. Of
course, it should be remembered that
some of them may be able to be
brought up in the 2016 2nd Session
of this 55th Legislature.
Also, as of April 6, the following
measures sent to the governor were
awaiting action:
SB 55 Adds language defining
assault and battery on law officers and provides for entire
section to be cumulative to
other laws.
SB 109 Amends durable power
of attorney provisions regarding accountability; authority of
fiduciary; adds new law regarding revocation.
APPROVED BY THE
GOVERNOR
Enrolled measures, the official
copy prepared by the house
of origin after passage in
both houses in the exact
same language and form,
are forwarded to the governor for action. As of April 6,
the following measures have
been approved by the governor:
SB 215 Adds language regarding requirements for application for a notary commission;
adds new language providing
conditions which authorizes
the Secretary of State to deny,
refuse to renew, or revoke a
notary commission.
HB 1749 Adds new law making it unlawful for
a state agency to make payroll deductions on
behalf of a state employee for membership dues
in any public employee association or organization or professional organization that collectively bargains on behalf of its membership
pursuant to any provision of federal law.
HB 1948 Prohibits director of the State Bureau
of Narcotics and Dangerous Drugs Control to
assess some administrative fines; expands
access to information collected at the central
repository pursuant to the Anti-Drug Diversion
Act.
SB 111 Increases amount of fine to authorize
appeal from final judgment of municipal court
from $200 to $500.
Vol. 86 — No. 11 — 4/18/2015
SB 725 Adds new language regarding limitations limiting the benefitting from victim by
person convicted of murder or manslaughter.
IN VARIOUS STAGES OF PROGRESS
The remaining active bills and joint resolutions still making their way through the process
are in various stages of progress. There are several procedures which provide an opportunity
for the amending house to have another opportunity to review the measure or to have the measure go to a conference committee. The most
commonly used method, which is noted in
many of the measures being reported on here, is
to strike the title or enacting clause or both. This
alters the form and language of the measure,
thereby assuring the amending house another
look before final approval in compliance with
The Oklahoma Bar Journal
855
constitutional requirements. [See Oklahoma
Constitution, Article V, Section 3 and Article V,
Section 57, subjects and titles.]
Those measures on general order are measures that have been reported out of committee
and are eligible to be considered on the floor
subject to debate and amendment. It is also
often referred to as being “on the calendar.”
The following is an update on measures previously reported on which are still considered
active:
HB 1042 Prohibits parents who participate in
shared parenting time from paying increased
child support amount. On general order in
Senate.
HB 1119 Relates to recording and release of
mortgages. On general order in Senate with
stricken title.
HB 1125 Relates to marriage licenses and marriage certificates. Referred to Senate Rules
Committee.
HB 1149 Addresses in terrorem clause prescribing burden of proof in action to contest a will.
Referred to Senate Judiciary Committee.
HB 1457 Relates to child custody procedure
requiring home study and education review.
Referred to Senate Judiciary Committee.
HB 1681 Adds new language to Governmental
Tort Claims Act excluding employee of state or
political subdivision from being named in action
alleging tort liability based on constitutional or
state law provision other than the act. On general order in Senate with title stricken.
HB 1918 Relates to custody of presumed father.
On general order in Senate.
SB 356 Authorizing recovery of reasonable
attorney fees, costs and litigation expenses by
prevailing party in any action subject to the provisions of the Energy Litigation Reform Act.
Referred to House Environmental Law Committee, title stricken.
SB362 Regards recording activity of law enforcement officer and obstructing an officer. On general in House.
SB 765 New law, sets two-year statute of limitation on recovery in an action based on tort, contract or otherwise, for damages for injury or
death against a health care provider for alleged
professional negligence, for the performance of
health care services without consent, or for error
856
or omission in the practice of the health care
provider’s profession. Repeals Section 18 of
Title 76. Referred to House Judiciary & Civil
Procedure Committee, title stricken.
STILL ACTIVE
OBA members should be aware of the following additional active measures regarding the
general practice of law still considered active:
SB 23 Adds institutions within the Oklahoma
State System of Higher Education to agencies
who may keep confidential business plans, feasibility studies, financing proposals, marketing
plans, financial statements or trade secrets submitted by a person or entity seeking economic
advice, business development or customized
training from such departments or school districts. On general order in House.
SB114 Amends voter registration records procedures. On general order in House.
SB126 Allows Department of Health to contract
for private entity to maintain Advanced Directive registry. On general order in the House.
SB 128 Fees for requests for medical records regardless of where the copies or electronic versions of such records are actually produced. On
general order in House.
SB 211 Amends enhanced punishments for second and subsequent offenses. On general order
in House with title stricken.
SB 218 Adds confidentiality provision to complaints regarding protective services for vulnerable adults, allows Oklahoma Health Care
Authority to take over control to provide for
the care of the vulnerable adult. On general
order in House with title stricken.
SB 269 Community intervention centers, transfers of juveniles. On general order in House
with title stricken.
SB 293 Adds new language for providing state
benefits for military personnel. On general order
in the House.
SB 299 Increases penalty for theft of domestic
animal or implement of husbandry and distribution of fines. On general order in House.
SB 372 Modifies motorcycle drivers licenses
requirements. On general order in House with
title stricken.
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
SB 443 New law regarding title insurance authorizing release of mortgage affidavit. On general
order in House.
SB 745 Transfer on death deeds. On general
order in House.
SB774 Modifies power of suspension of absolute power of alienation. On general order in
House.
HB 1079 Allows foster parents to submit report
on placement of children. On general order in
Senate.
HB 1120 Authorizes title insurance company to
bring action on behalf of the mortgagor to
recover the penalty for failure to release mortgage. On general order in House with title
stricken.
HB 1438 Adds continuing education requirements for hospice administrators. On general
order in Senate.
HB 1714 Authorizing revocation of driver
license for being in physical control of a vessel
while under the influence of intoxicating substance. On general order in Senate.
HB 1920 Amends discovery code to require
when answering each interrogatory, the party
shall restate the interrogatory then provide the
answer. Referred to Senate Judiciary Committee.
HB 1965 Prohibits operating motor vehicle on
any street or highway while using a hand-held
electronic communication device to manually
compose, send or read an electronic text message while the motor vehicle is in motion. On
general order in Senate.
HB 2157 Family Support Accountability Act. On
general order in Senate with title stricken.
May is the last month of the legislative session. It will be busy and fast moving. Any OBA
member interested in one or more item of legislation with amendments and votes can check
the current status by going to the Legislative
Services Bureau website at www.oklegislature.
gov/billinfo.aspx. Every member should take
advantage of this opportunity to become aware
of the change in current laws and new laws they
will be dealing with in the future.
About The Author
HB 1772 Right of minor to obtain funds held by
financial institution. On general order in Senate.
HB 1902 Provides for immunity from civil liability for any damage resulting from the forcible
entry of a motor vehicle for the purpose of
removing a child. On general order in Senate.
Ms. Bartmess practices in Oklahoma City and chairs the Legislative Monitoring Committee. She
can be reached at duchessb@
swbell.net.
To get your free listing on
the OBA’s lawyer
listing service!
Just go to www.okbar.org and log into your
myokbar account.
Then click on the
“Find a Lawyer” Link.
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
857
Experienced. Dedicated. Effective.
GableGotwals welcomes Steven J. Adams, John D. Russell, Jay P. Walters,
Casey Cooper, Stacy Brklacich and Ryan A. Pittman to the law firm.
With extensive experience in complex litigation and commercial transactional matters,
GableGotwals’ newest attorneys have courtroom experience in the areas of energy,
class actions, insurance law, antitrust, white collar crime, Indian law, health care, higher
education, environmental law and commercial disputes. Having worked in the private
business sector and for the government, each attorney also brings a unique perspective
to their private law practice.
Solving Problems....Managing Opportunities
TULSA
858
·
OKLAHOMA CITY
·
www.gablelaw.com
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
FROM THE EXECUTIVE DIRECTOR
What Now?
By John Morris Williams
It is not news that there are
many predictions regarding the
changing nature of the practice
of law. Washington state has
blessed the concept of non-lawyers providing legal services.
That has been a headliner in bar
circles for several months. They
are called “limited licensed legal
technicians.” There are requirements of education, training and
testing before being granted a
license. The main reasoning
behind this concept is the unmet
legal needs of people without
means to afford traditional legal
services from a licensed attorney. I suspect, as with all things
that start out “limited,” what
that term includes will grow
over time. One only need look to
the medical profession and the
advent of physician assistants
and nurse practitioners for alternative ways to provide some
services at a lower cost.
This may all seem novel and
far removed. However, a closer
examination of the legal profession reveals a large amount of
legal work being performed by
non-lawyers. Real estate agents,
certified public accountants and
the familiar yard sign advertising “Divorce Services $200” are
all performing services that easily can fall into a general definition of the practice of law. Add
to this the ever growing list of
online legal service providers,
and we have at our very doorstep various alternatives to the
Vol. 86 — No. 11 — 4/18/2015
traditional “real” law office.
Just to be clear, real estate agents
filling out legal documents are
licensed and lawfully operating.
Certified public accountants representing tax clients are licensed
and lawfully operating; paralegals operating independently
and selling unsupervised legal
services are not licensed and
lawfully operating. The OBA
does prosecute the unauthorized
practice of law when a complaint is made. The avenues of
unregulated practice appear to
grow continually.
Now what? That
is the question that
should be on the mind
of every lawyer.
If that is not enough, several
states have come together to
participate in a uniform bar
examination that has the ability
to grant multiple licenses with a
single examination. The long
discussed trend of national
licensure has experienced a
“limited” start. Additionally,
at least one state has amended
the ABA-approved law school
requirement to sit for the bar
examination. Alabama allows
graduates of law schools outside
The Oklahoma Bar Journal
the United States to sit for its bar
examination if certain requirements are met. Other states have
mechanisms to accommodate
foreign lawyers and certain U.S.
treaties speak to legal services as
a component. Thus, multistate
licensure and multinational
practices are very much on
the upswing.
Oklahoma has been rated as
the least among the states in yet
another category. A recent survey has indicated that Oklahoma has the fewest resources
being made available to give
access to justice to low income
individuals. As a result, the
Oklahoma Supreme Court has
created an Access to Justice
Commission that is researching
solutions to meet the unmet
legal needs of thousands of
Oklahomans.
To put the icing on the cake,
this year the trend continues
with law schools having
decreased enrollments, admission criteria in some places
being lessened and the cost
of a law degree well into the
six figures of student debt.
It would be ideal if the new
graduates who are without
clients could be paired up
with clients who cannot afford a lawyer. The problem is
obvious; you cannot support a
six figure student debt and do
legal work for free or at very
reduced rates.
859
There are few simple answers
to the future of the practice of
law and fewer simple answers
in making sure that every Oklahoman has access to justice.
Now what? That is the question that should be on the mind
of every lawyer. Not only about
their individual practice but
about sustaining our justice system in a fashion that allows
everyone access to justice. If
lawyers are not diligent in staying abreast of these issues,
someone else outside of the
profession will chart the course,
and the reparative question may
become “what now?” in
response to federal and international regulation and non-lawyers providing an increasing
amount of legal services.
be chanting a frustrated “what
now?”
To contact Executive Director
Williams, email him at johnw@
okbar.org.
It’s either we answer the question of “what now?” or we will
OKLAHOMA BAR JOURNAL EDITORIAL CALENDAR
2015 Issues
n May
Education Law
Editor: Megan Simpson
[email protected]
Deadline: Jan. 1, 2015
n August
Opening a Law Office
Editor: Dietmar Caudle
[email protected]
Deadline: May 1, 2015
n September
Bar Convention
Editor: Carol Manning
n October
Family Law
Editor: Leslie Taylor
[email protected]
Deadline: May 1, 2015
n November
President’s Topic
Editor: Melissa DeLacerda
[email protected]
Deadline: Aug. 1, 2015
n December
Ethics & Professional
Responsibility
Editor: Shannon L. Prescott
[email protected]
Deadline: Aug. 1, 2015
2016 Issues
n May
Indian Law
Editor: Leslie Taylor
[email protected]
Deadline: Jan. 1, 2016
n August
Bankruptcy
Editor: Amanda Grant
[email protected]
Deadline: May 1, 2016
n January
Meet Your OBA
Editor: Carol Manning
n September
Bar Convention
Editor: Carol Manning
n February
Probate
Editor: Judge Allen Welch
[email protected]
Deadline: Oct. 1, 2015
n October
Real Property
Editor: Shannon Prescott
[email protected]
Deadline: May 1, 2016
n March
Criminal Law
Editor: Melissa DeLacerda
[email protected]
Deadline: Oct. 1, 2015
n April
Law Day
Editor: Carol Manning
n November
President’s Topic
Editor: Melissa DeLacerda
[email protected]
Deadline: Aug. 1, 2016
n December
Ethics & Professional
Responsibility
Editor: Renée DeMoss
[email protected]
Deadline: Aug. 1, 2016
If you would like to write an article on these topics,
contact the editor.
860
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
LAW PRACTICE TIPS
Those Timesheets, Those Hated
Timesheets: Are You Still
Using Them?
By Jim Calloway
A common complaint among
lawyers is the painful necessity
of filling out timesheets so that
the clients can be accurately
billed. On its face, this is a simple exercise that should be a
part of the daily routine and
should be happily done for the
direct rewards it provides. (You
don’t bill, you don’t get paid.)
The reality is that it is sometimes hard to maintain this discipline when a client is holding
on line 1, another is here for
their appointment, and you
have a deadline to file a pleading this afternoon.
Oklahoma City attorney
Mark Robertson and I have
spent time discussing alternatives to completing timesheets.
We co-authored two books on
alternative billing including
Winning Alternatives to the Billable Hour – Strategies That Work,
Third Edition (2008) and in
2014, Mark published Alternative Fees for Business Lawyers and
Their Clients. Sadly, while others disagree, Mark and I believe
alternative fee agreements do
not necessarily do away with
the necessity for recording time
or tasks on a daily basis. Hours
invested by a lawyer working
on a client file may not always
directly correlate with value to
the client, but they do directly
Vol. 86 — No. 11 — 4/18/2015
correlate with cost of production for the law firm. That
makes it hard to know how
well a different fee structure is
working without any accounting for time invested.
But I hope by now most lawyers reading this are not filling
out timesheets by pen and ink
on paper regardless of the fee
structure arrangement that they
may have with clients.
You need to
enter your time
digitally. This
means you.
It is hard to adjust to changes
in technology and standard
business practices. It may be
hard to determine between a
great new idea that deserves
adoption and something that
sounds good but may not work
well in practice.
But there’s one observation
that I can make today with a
great deal of certainty. A lawyer
The Oklahoma Bar Journal
entering their time by using
pen and ink on a paper
timesheet is employing an inefficient practice that should no
longer be used. You need to
enter your time digitally. This
means you.
I am willing to concede that
there are probably hundreds,
maybe even thousands, of
high-powered, high-billing
non-typing lawyers across the
country for whom this does not
hold true. For these lawyers,
the traditional model of quickly
jotting down their time on a
paper timesheet by hand never
to be considered again may
make sense. After all, you don’t
want to keep the attorney general on hold a second longer
than necessary.
But one big difference
between that lawyer and the
other 99 percent of the profession is that lawyer has a support system where it may really
be true that timesheets leave
and never trouble him again.
But for other lawyers, those
timesheet entries do reappear,
sometimes several times. A billing clerk may tentatively tap on
your door asking you to decipher some scribbling that
seems to say you were riding a
horse and want to bill the client
861
for that. But usually they don’t
bother you with such queries.
You will just have a pre-bill or a
draft of a bill delivered to you
for your proofreading pleasure
where some misinterpretations
of your handwriting are now
transcribed and poised to be
sent to the client. Most of these
are not as entertaining as the
idea you might have ridden a
horse for the client’s benefit. So
you make your edits and send
them off. But unless your
edits are very brief, the prebills will return to you for a
final proofreading.
In my view, it is critical to
review the bills before they are
sent to your client. These are an
important client communication that the client will certainly
read. Any billing error, even a
typographical one, may reflect
on the quality of your legal
work, and if the error appears
to reflect an overcharge, this
will likely result in an awkward
conversation with the client.
Making handwritten billing
entries very quickly may seem
more efficient, but not only are
you paying someone to transcribe them, you may end up
losing more of your non-billable time in the proofing and
revision process that you could
possibly have saved by a handwritten entry as opposed to a
digital one.
Lawyers who do not type
well may consider speech recognition tools. But most billing
entries are brief enough that
there is not much difference in
the data entry time for a twofingered typist.
And if you believe for whatever reason that there is absolutely no way you or your firm
can shift away from handwritten timesheets, at least do the
following: 1) take a deep breath
before you write each timesheet
862
entry, 2) print the words carefully rather than using cursive
and 3) when you have completed a timesheet, carefully proof
it (just like you would any
other important document)
before placing it in your
outbox.
WHERE DOES THE
TIME GO?
Where does one make a time
entry, if not on paper?
For the majority of lawyers,
the answer is either directly in
the billing software or in your
practice management software
service. There are also apps that
capture your time entries for
later transfer to your billing
system.
Practice management software (including the cloudbased systems) is the best solution for most lawyers because
you cannot only capture your
time, but you can also record
and access all client information including attorney notes
and documents in the same
place. The ability to organize
and store all of this information, including those “timesheet” entries, has gone from
convenient to critical for
today’s law firm operations.
But in today’s busy environment, it is not enough to be
able to enter your time by keyboard on the office computer.
Today’s lawyers need to be able
to record their time and access
their client data at any time
through their smart phones
and other mobile devices.
Our “Practice Management
Shootout at the OK Bar” at the
2015 OBA Solo & Small Firm
Conference will showcase great
products to fulfill all of these
needs. See the sidebar and conference website at www.okbar.
net/solo2015 for more information. The five practice manageThe Oklahoma Bar Journal
ment packages showcased in
our Shootout are MyCase, Firm
Central from Thomson Reuters,
Clio, RocketMatter and PracticeMaster/TABS3.
All of these products allow
you to directly enter your time
while at your workstation and
hopefully avoid much of the
proofing and reproofing that
often accompanies handwritten
time entries.
REMOTE TIME ENTRY
But what about remote
access? After all, as the marketing material for these types of
products always emphasizes,
just capturing a few time
entries per month that would
have otherwise been lost can
soon add up to enough money
to cover the expense of the
service.
Let’s see how our Shootout
participants handle remote time
entry.
MyCase is a cloud-based
service, and as with all cloudbased services, that means a
lawyer can log in from a home
computer or laptop as easily as
they can log in at the office. My
Case provides free mobile app
options for iOS and Android.
Your clients can also install the
apps at no charge to access
information that you choose
to provide them.
Firm Central from Thomson
Reuters is also a cloud-based
service. As a part of Thomson
Reuters, they tout their service’s ability to integrate with
other products and services
from the company, including
legal research. Their Time and
Billing service is powered by
eBillity and has Outlook integration. It is compatible with
iPhone, Android and BlackBerry smartphones. There is an
additional charge for Time and
Billing.
Vol. 86 — No. 11 — 4/18/2015
Clio is also cloud-based. It
has downloadable iOS and
Android apps for mobile access
so you can enter your time
from a mobile device. All billing functions are included as a
part of the service. It also has
integration with your OBAsupplied Fastcase service. One
can open a new time record
while doing research, selecting
among your clients and matters
from within Fastcase.
RocketMatter is cloud-based.
RocketMatter has both iPhone
and Droid phone mobile editions (aka apps) at no additional charge. They are quite proud
of their recently released iPad
edition, which is specially
designed for the iPad to offer
full access to your data using
the iPad, also at no additional
charge.
PracticeMaster and TABS3
are a pair of traditionally
installed software products
from Software Technology Inc.
and not cloud-based. TABS3
does the time capture and billing functions while PracticeMaster is the practice management piece. Many, but not all,
law firms purchase both.
TABS3 Connect is their mobile
tool, and it works with all
major mobile platforms. You
must have the Platinum version
of the software to use TABS3
Connect, and there is a small
monthly charge if you only use
TABS3 and not PM. (Since it is
installed on your machines, any
remote access service can also
be used.)
Don’t forget that there is
much more that all of these
products do. We are just focusing on time capture and recording for this review.
There are other practice management software and service
vendors. They feature various
methods of capturing time.
Vol. 86 — No. 11 — 4/18/2015
Shoot Out!
Our “Practice Management Shoot Out at the OK Bar” program will
feature five great products for solo and small firm lawyers (and for
larger firms, too). Have you been delaying the purchase of a practice management tool even though you know you need it? Are you
concerned some things don’t seem to work smoothly on the tool
you do use? Are you ready to switch solutions?
You will never have a better chance to
compare shop than at our 2015 OBA
Solo & Small Firm Conference. See the
demonstrations and then visit the vendor’s
booths afterwards with your questions.
The conference is June 18-20, 2015,
at the Hard Rock Casino Resort. See the
conference website at www.okbar.net/
solo2015.
Our Shoot Out participants are:
• MyCase
• Firm Central (Thomson Reuters)
• Clio
• RocketMatter
• PracticeMaster/TABS3
There are also different types
of stand-alone time keeping
and time capture utilities.
THE APP WE REALLY
WANT WOULD JUST FILL
OUT OUR TIMESHEETS
FOR US
Chrometa is one tool that not
only helps you record your
time but helps you out when
you fail to record it. Attorney
Isaac Warren of Choctaw is a
fan.
“Chrometa automatically
tracks your time by logging
the current window you are
using,” Mr. Warren stated in
a post on OBA-NET. “For
instance, if I spend 12 minutes
typing an email memo to my
client and then use Alt+Tab to
switch to a Word document
and spend 35 minutes to finalize an agreement, Chrometa
The Oklahoma Bar Journal
logs the 12 minutes on the
email and tags the entry with
the subject line of the email.
Then it will log the time
revising the agreement by
tagging the file name of the
agreement.”
These “automatic entries”
are then synchronized with
the Chrometa website where
one can log in to clean up or
remove the entries before
exporting them to Clio, Rocket
Matter or Quickbooks. He also
noted that the Android app for
Chrometa will log phone calls,
but the iPhone app does not
and is much more limited. Mr.
Warren uses the Mac version of
the software, but there is a PCbased version as well.
There are many stand-alone
time keeping apps for mobile
devices. North Carolina lawyer
863
Brian Focht recently updated
his blog post “6 Excellent Timekeeping Apps for Lawyers” on
his Cyber Advocate blog. (Note:
With the updates, he now has
more than six apps.) The products he profiled are:
1)iTimeKeep by Bellfield
Systems
2)Time Master + Billing by
On-Core Software
3)Bill4Time by Broadway
Billing Systems
4)Hours Tracker by cribasoft
LLC
5)Timewerks Pro by Sorth
LLC
6)Gleeo Time Tracker by
Gridvision Engineering
GmbH
7)OfficeTime by OfficeTime
Software
8)TimeClock Pro by Spotlight
Six Software
You are directed to his post
to see all of the details on these
apps like features, price and
whether they are for iOS,
Android or both. The post is
online at http://goo.gl/1GfBor.
CONCLUSION
Even though the task sounds
simple on its face, recording
one’s time each day task by
task, six minutes by six minutes, is a tedious task many
lawyers are not fond of doing.
It is a necessity if you are
charging clients an hourly rate.
Certainly an app where you
can quickly enter the time on
your phone when you leave the
courthouse at the end of the
day instead of remembering to
do it the next morning at the
office makes a lot of sense. A
lawyer who spends an hour
talking with a client at home on
the weekend or evening will
benefit, too − either by recording the time spent via the app
or being able to log into their
practice management system
from home.
The lawyer of a few decades
ago would have not understood the concept of entering
the time on a mobile phone,
much less being able to pull up
client documents on the mobile
phone. This is just one of the
many ways the practice of law
(and the world) is being
changed by technological innovations. Spending less time
dealing with the mechanics of
billing is a good thing. So keep
that in mind if your firm needs
to upgrade the way it captures
billable time.
Mr. Calloway is OBA Management Assistance Program director.
Need a quick answer to a tech
problem or help resolving a management dilemma? Contact him at
405-416-7008, 800-522-8065 or
[email protected] It’s a free member
benefit!
www.okbar.org
Your source for OBA news.
At Home
864
At Work
The Oklahoma Bar Journal
And on the Go
Vol. 86 — No. 11 — 4/18/2015
BOARD OF GOVERNORS ACTIONS
Meeting Summary
The Oklahoma Bar Association
Board of Governors met at the
Oklahoma Bar Association on
Feb. 20, 2015.
REPORT OF THE
PRESIDENT
President Poarch reported he
attended the inauguration of
Chief Justice John Reif and
Vice Chief Justice Douglas L.
Combs, OBA Board of Governors swearing-in ceremony,
Legislative Monitoring Committee meeting to review over
2,100 bills introduced in the
Oklahoma Legislature, Oklahoma’s Promise program at
Clinton Middle School, Master
Lawyers Section meeting,
Bench and Bar Committee
meeting, hearing on HB 2214
before the House Rules Committee and Board of Governors
new member orientation and
dinner. He participated in an
interview with the Oklahoma
Bar Foundation consultant
and also attended the ABA
midyear meeting, National
Conference of Bar Presidents
and Southern Conference of
Bar Presidents, all in Houston,
Texas.
REPORT OF THE
VICE PRESIDENT
Vice President Devoll reported he attended the board has
been dinner, inauguration of
Chief Justice Reif and Vice
Chief Justice Combs, Garfield
County Bar Association meeting and Bench and Bar Committee meeting by phone. He
also worked on arrangements
Vol. 86 — No. 11 — 4/18/2015
for the board meeting to be
held in Enid.
REPORT OF THE
PRESIDENT-ELECT
President-Elect Isaacs reported he attended the inauguration of Chief Justice Reif
and Vice Chief Justice Combs,
OBA Board of Governors
swearing-in ceremony, Legislative Reading Day to review
bills introduced in the Oklahoma Legislature, has been
party and new board member
orientation. He also attended
the ABA midyear meeting,
National Conference of Bar
Presidents and Southern Conference of Bar Presidents, all
held in Houston.
REPORT OF THE
PAST PRESIDENT
Past President DeMoss
reported she attended the
swearing-in ceremony for
Board of Governors members,
Master Lawyers Section meeting, meeting with the consultant for the Oklahoma Bar
Foundation and Board of Editors meeting. She reviewed
proposed bills in the Legislature and attended the Southern Conference of Bar Presidents, National Conference of
Bar Presidents and served as a
delegate at the ABA midyear
meeting, all in Houston.
REPORT OF THE
EXECUTIVE DIRECTOR
Executive Director Williams
reported he attended a meeting with technology auditors,
The Oklahoma Bar Journal
meetings on new HVAC systems and potential MCLE
reporting software, YLD board
meeting, Legislative Reading
Day, National Conference of
Bar Executives, National Conference of Bar Presidents, IT
governance meeting, House
judiciary meeting, new board
member orientation and
Diversity Committee meeting.
He participated in ethics
counsel interviews and in
an Oklahoma’s Promise presentation at a Clinton Middle
School student assembly.
BOARD MEMBER REPORTS
Governor Dexter reported
she attended the swearing-in
ceremony for Chief Justice Reif
and Vice Chief Justice Combs,
Board of Governors swearingin ceremony, has been party
and Tulsa County Bar Foundation meeting. She also served
as presiding judge for a round
of the OBA High School Mock
Trial Program competition.
Governor Gotwals reported
he worked on the Tulsa
County Bar Foundation lease/
construction project in which
a contract was signed for construction and a new lease
between the Tulsa County Bar
Association and the foundation. He attended the TCBF
meeting, inauguration of new
Chief Justice Reif and Vice
Chief Justice Combs, OBA
Board of Governors swearing
in, 14th Judicial District judges
and legislators’ reception at
Tulsa University law school,
ABA midyear meeting in
865
Houston, Master Lawyers
Section meeting and board orientation and dinner. Governor
Jackson reported he is working with the Civil Procedure
and Evidence Code Committee that is monitoring legislation pending in the Oklahoma
Legislature, including the discovery master legislation.
Governor Kinslow reported
he worked with county bar
leadership on programs for
2015, including Law Day, contacted House Rules Committee
members regarding HB 2214
and requested help from
Comanche County lawyers.
Governor Knighton, unable to
attend the meeting, reported
via email he attended the February Cleveland County Bar
Association meeting, Lawyers
Helping Lawyers Committee
meeting, Law-related Education Committee meeting, inauguration of new Chief Justice
Reif and Vice Chief Justice
Combs, and the OBA Board of
Governors swearing in. He
also called House Rules Committee members and encouraged them to vote against HB
2214. Governor Marshall
reported he attended the
swearing in of Chief Justice
Reif and Vice Chief Justice
Combs, farewell dinner for
board members leaving office,
Legal Intern Committee meeting by telephone and board
orientation session at the Oklahoma Bar Center. Governor
Porter reported she attended
the retirement party for Oklahoma County ADA Gary Ackley, has been party, board orientation and dinner. She introduced General Counsel Hendryx before her CLE presentation at the Oklahoma County
Bar Center and served as a
scoring panelist for two
rounds of the High School
Mock Trial Program in Canadian County. Governor Sain
866
reported he attended the
McCurtain County Bar Association luncheon and McCurtain
Memorial Hospital Foundation board meeting. He served
as the auctioneer for a Pros for
Africa fundraising event that
raised $150,000 and served as
the auctioneer for a Big Brothers and Sisters event in Oklahoma City that raised $22,000.
Governor Stevens reported he
attended the has been party,
swearing-in ceremony for
Chief Justice Reif and Vice
Chief Justice Combs, swearing-in ceremony for the OBA
Board of Governors, February
Cleveland County Bar Association meeting, OBA Legislative Reading Day and the
county bar’s “Justice is Sweet”
baking competition. Governor
Tucker reported he attended
the board’s has been dinner,
Law Day Committee meeting,
new governor orientation and
YLD roast of Kaleb Hennigh.
YOUNG LAWYERS
DIVISION REPORT
Governor McGill reported
she attended the swearing in
for new board members, orientation for new members of
the YLD board, YLD committee meetings, roast of past
YLD Chair Kaleb Hennigh,
Solo & Small Firm Conference
Planning Committee meeting,
Oklahoma County Bar Association YLD chili cook off,
Legislative Reading Day, ABA
midyear meeting in Houston,
OCBA YLD February board
meeting and Kick it Forward
Kickball Tournament planning
meeting. She announced five
Kick it Forward applications
were approved for members to
receive funds to help pay their
OBA annual dues.
The Oklahoma Bar Journal
BOARD LIAISON REPORTS
Governor Marshall reported
the Legal Intern Committee
met recently for administrative
purposes. Various forms have
been “scrubbed” by the committee at its December meeting. Revised forms include the
removal of the SSAN requirement and modification of form
1 and form 4 from the affidavit
to verification and eliminating
the requirement for notarization. Future meetings will be
held in June, September and
December. Governor Tucker
reported the Law Day Committee has received more than
1,200 contest entries. The committee is looking for lawyers
to interview for the TV show
for a cyberbullying segment
and searching for teen parents
to interview. The committee is
working on expanding ways
people can submit questions
for the Law Day free legal
advice. Executive Director Williams reported the Diversity
Committee is working on its
mission statement and beginning planning for its annual
awards event. They are also
planning social events in conjunction with the Solo & Small
Firm Conference and the OBA
Annual Meeting. Governor
Porter reported the Women in
Law Committee is discussing
kick off ideas for its annual
event. President Poarch reported the Bench and Bar Committee is continuing its work.
REPORT OF THE
GENERAL COUNSEL
General Counsel Hendryx
reported annual reports for the
Professional Responsibility
Commission and Professional
Responsibility Tribunal were
compiled, filed and will be
published in the March 14,
2015, Oklahoma Bar Journal. She
said the patterns in attorney
discipline remain steady.
Vol. 86 — No. 11 — 4/18/2015
GOVERNMENT
RELATIONS
Clay Taylor, OBA legislative
liaison, was introduced. He
briefed the board on basic
legislative facts and reported
the biggest issue facing the
Legislature is the $611 million
budget shortfall. He identified
10 bills to watch. President
Poarch reported Mr. Taylor is
keeping the OBA updated on
fast moving activity at the
Capitol.
PROPOSED RULES OF
PROFESSIONAL CONDUCT
AMENDMENTS
Rules of Professional Conduct Committee Chair Paul
Middleton explained that
when the Rules of Professional
Conduct were drafted in 2008,
people were not using smart
phones. He said the OBA
Rules of Professional Conduct
Committee looked at the ABA
rules that reference technology.
He reviewed the committee’s
suggested changes to:
Rule 1.0 – Terminology
Rule 1.1 – Competence
Minority Report Comment
(6) Rule. 1.1
Rule 1.4 – Communication
Rule 1.6 – Confidentiality of
Information
Rule 3.8 – Special Responsibilities of a Prosecutor –
para. (g) & (h)
Proposed Comments for
Rule 3.8 (g), (h) & (i)
Rule 4.4 – Respect For Rights
Of Third Persons.
Management Assistance Program Director Jim Calloway
shared his comments about
Vol. 86 — No. 11 — 4/18/2015
the impact of technology and
how integral it has become to
the legal profession. The board
voted to table action on the
proposed RPC amendments
until they are published in the
Oklahoma Bar Journal and bar
members are given a 60-day
comment period. It was
decided that comments should
be sent to Executive Director
Williams.
MCLE COMMISSION
REAPPOINTMENT
The board reappointed Mark
Hixson, Yukon, to the Mandatory Continuing Legal Education Commission.
OKLAHOMA’S PROMISE
President Poarch reviewed
the program’s purpose to offer
free college tuition to qualifying students. Executive Director Williams reported that 160
eighth graders attended the
school assembly at Clinton
Middle School. The local
newspaper covered the event
and published a large photo
of the students holding their
backpacks. About 60 parents
showed up for parent-teacher
conferences in the computer
lab where local attorneys
stayed busy helping parents
sign up for the program. He
said the Custer County Bar
Association is thinking about
doing this every year as a Law
Day project. President Poarch,
who participated in the presentation to students, said the
program was well received.
He said testimonials from
teachers about the program
benefits were a real boost to
The Oklahoma Bar Journal
increase student enthusiasm
and motivation.
LEGISLATIVE
READING DAY
President Poarch said the
Legislative Monitoring Committee and other volunteers
met on a Saturday at the bar
center. They reviewed the
more than 2,000 bills and joint
resolutions introduced. Lists of
bills to be watched were created. Executive Director Williams said the watch lists are
available on the OBA website.
OETA FESTIVAL
Communications Director
Manning briefed the board on
the annual community service
project that will take place the
evening of March 11 at OETA,
Oklahoma’s statewide public
television station. OBA volunteers take pledges from
viewers and raise individual
donations to support OETA,
which co-produces the Ask A
Lawyer TV show. Metro-area
board members were asked
to volunteer.
EXECUTIVE SESSION
The board voted to go into
executive session, met in executive session and voted to
come out of executive session.
NEXT MEETING
The Board of Governors
met March 23, 2015. A summary of those actions will be
published after the minutes
are approved. The next
board meeting will be Friday,
April 24, 2015, in Enid.
867
BAR FOUNDATION NEWS
Celebrate Law Day with the OBF
By Jack L. Brown
Law Day, celebrated on May
1, has been defined as: “A
national day set aside to celebrate the rule of law that underscores how the law and the
legal process have contributed
to the freedoms that all Americans share.” For the Oklahoma
Bar Foundation, it is Law Day
every day. The OBF works hard
to provide access to the law
and legal process to thousands
of low-income families and
individuals, who would otherwise go without representation,
in hopes that they too might
find equality and justice under
the law.
To help the OBF grow in its
ability to serve the citizens of
our state, the Board of Trustees
hired experienced consultant,
Dennis Dorgan, to assist in cre-
ating a fundraising
plan of action. Mr.
Dorgan began by conducting a feasibility
study which assessed
the potential for the
development and
implementation of an
annual fundraising
program. Mr. Dorgan’s
feasibility study concluded that a revitalized OBF fundraising
program is sustainable
and very likely to continuously be successful
in the future. He based
his conclusions on, in
part, the previous fundraising success of the
OBF, the strong support from the legal community
and the respect the courts and
organized bar membership
have for the OBF.
Congratulations and thank you
to our newest OBF Fellows:
William Baxter Buxton, Duncan
William C. “Chad” McLain, Tulsa
Megan M. Carothers, Chattanooga
Congratulations and thank you
to our newest Sustaining Fellow:
Doneen Douglas Jones, Oklahoma City
868
The feasibility report
did stress that in order to
have continued success, it
was important to further
educate members of the
legal community about
the OBF and its important
work. The report also
noted that the OBF will
need to work on identifying, recruiting and mentoring new OBF members
and leaders. Other suggestions from the study
include the OBF providing opportunities for net-
The Oklahoma Bar Journal
working with peers, offering
CLE classes and providing
high-profile public recognition
for individuals, firms and corporations supporting the OBF.
FEASIBILITY REPORT
PROVIDES GUIDANCE
The feasibility report provided guidance to the OBF Trustees who attended a retreat
March 26 and 27 at Postoak
Lodge, north of Tulsa. The
Trustees were divided into
working groups to address
many topics that are elements
of the new fundraising plan.
The working groups included
making grantees the center
piece, donor recognition,
increasing the visibility of the
OBF, marketing the OBF, focus
Vol. 86 — No. 11 — 4/18/2015
on young and older lawyers,
corporate counsel strategy and
Cy Pres strategy.
The Trustees discussed each
of these areas in detail and
many excellent ideas evolved
that will be incorporated into
the OBF’s development initiative. The strategies which
evolved from the retreat will be
the centerpiece of the fundraising plan of action currently
being written by consultant
Dennis Dorgan. The OBF
intends to implement the fundraising plan through its new
director of development and
communications as well as the
Development Committee of the
board and all Trustees and Fellows of the Oklahoma Bar
Foundation.
As Law Day is
almost upon us, the
OBF looks forward to a
bright future and
increased fundraising
that will help so
many low-income
Oklahomans gain
access to
representation in
our legal system.
As Law Day is almost upon
us, the OBF looks forward to a
bright future and increased
fundraising that will help so
many low-income Oklahomans
gain access to representation in
our legal system. The OBF will
continue educating the legal
community and others about
the important work the OBF
does and encouraging their
involvement either through
contributions and/or becoming
an OBF Fellow.
About The Author
Jack L. Brown
practices in Tulsa
and serves as OBF
president.
He can be
reached at jbrown@
jonesgotcher.com.
Tributes and Memorials
A simple and meaningful way to honor those who have played an important
role in your life or whose accomplishments you would like to recognize.
The OBF will notify your tribute or memorial recipient that you made a
special remembrance gift in their honor or in memory of a loved one.
Help the OBF meet its ongoing mission - lawyers transforming lives
through the advancement of education, citizenship and justice for all.
Make your tribute or memorial gift today at:
www.okbarfoundation.org/make-a-contribution
Or if you prefer, please make checks payable to:
Oklahoma Bar Foundation P. O. Box 53036 Oklahoma City OK 73152-3036
Email: [email protected] • Phone: 405-416-7070
Vol. 86 — No. 11 — 4/18/2015
The Oklahoma Bar Journal
869
OBF Fellow and Community Fellow Enrollment Form
2013 OBF Community Fellow Enrollment Form Name, U
Group
N I T E Tname,
O P R O Firm
V I D E or
H E other
L P F O Raffiliation
T H O S E I__________________________________________________
N N E E D A S A N OBF C O M M U N I T Y F E L L O W Mailing and
address _____________________________________________________________
OBADelivery
Section or Committee
Law Firm/Office
County Bar Assoc.
IOLTA Bank
Corporation/Business
Other Group
Group Name: City/State/Zip
_________________________________________________________________________
Contact: & Delivery Address: __________________________________________
Phone Mailing ______________________________
Email
City/State/Zip: Phone: FELLOW
ENROLLMENT
ONLY
E-­‐Mail: o Attorney
o Non-attorney
The OBF Community Fellows is a new benevolent program of the Oklahoma Bar rganizations nd groups to $100
unite enclosed
with individual lawyers who ___
and bill
annually
___ I want toFoundation be an OBFallowing Fellow onow
– Bill mealater
are OBF Fellows to support a common cause: T
he promotion of justice, provision of ___ New lawyer 1st year, $25 enclosed &
___ Total amount
enclosed $1,000
law-­related services, and advancement of public awareness and better understanding of bill annually as stated
the law. ___ New lawyer
within 3 years, $50 enclosed
___ I want to be recognized at the higher level of
and bill annually as stated
The OBF Provides Funding For: NEEDS YOUR HELP Tmy
O annual
Sustaining OBF Fellow
and will
continue
___ I want to be recognized
at the highest
gift of $100 SERVE OKLAHOMANS • Free legal assistance for the poor and elderly Leadership level of Benefactor Fellow and
(initial pledge shouldIN be
complete)
for the abused • Safe haven NEED! annually contribute
at
$300
annually
contrbute
at least
least
$300
and legal assistance for children • Protection (initial pledge
should
complete)
to help offset the
___ My charitable contribution
(initial
pledge
shouldbe
be
complete)
Program Crisis
• Public law-­‐related education programs, including programs Grant
GIVE TODAY AT for school children WWW.OKBARFOUNDATION.ORG ctivities that improve the quality of justice for • Other aENROLLMENT
FELLOW
ONLY
all Oklahomans COMMUNITY
o OBA Section or Committee o Law firm/office o County Bar Association o IOLTA Bank
o Corporation/Business o Other Group
Choose from three tiers of OBF Community Fellow support to pledge your group’s help: $ $ $ Patron $2,500 or more per year Partner $1,000 -­‐ $2,499 per year Supporter $250 -­‐ $999 per year Choose from three tiers of OBF Community Fellow support to pledge your group’s help:
$________ Patron
$________ Partner
$________ Supporter
Signature & Date: $2,500 or more per year
$1,000 - $2,499 per year
$250 - $999 per year
OBA Bar# Print Name & Title: OBF Sponsor: Signature and Date ___________________________________________ OBA Bar # _________________
Print Name Please and Title
kindly _____________________________________________________________________
make checks payable to: Oklahoma Bar Foundation •
P O B•ox 53036 Oklahoma City OK 73152-­‐3036 Phone: (405) 416-­‐7070 • E-­‐Mail: [email protected] OBF Sponsor (If applicable) _______________________________________________________________
Kindly make checks payable to: Oklahoma Bar Foundation PO Box 53036 Oklahoma City, OK 73152-3036
405-416-7070 • [email protected] • www.okbarfoundation.org
THANK YOU FOR YOUR GENEROSITY AND SUPPORT!
870
Vol. 86 — No. 5 — 2/14/2015
The
TheOklahoma
OklahomaBar
BarJournal
Journal
Vol. 86 — No. 11 — 4/18/2015
399
YOUNG LAWYERS DIVISION
Planning for Fundraising
Tournament Underway
By LeAnne McGill
Many young lawyers choose
to venture out on their own
and start their own law practice
after passing the bar. This is a
very brave and exciting move,
however, the financial constraints that come with opening
your own practice can be great.
Many solo practitioners (particularly young attorneys) find
themselves struggling to keep
up with all of their expenses,
climbing further into debt
while still trying to provide
legal services to their clients.
Kickball
Tournament Under
Construction
Needed:
Sponsors — law firms,
companies & individuals
Individual players of
all ages
Teams of players
Vol. 86 — No. 11 — 4/18/2015
The Young
Lawyers Division saw a need
for a financial assistance program for
attorneys who are struggling to pay their annual bar
dues. In response to this need,
we started the “Kick It Forward Fund,” which provides
financial assistance to attorneys who cannot afford to pay
their bar dues. Attorneys must
apply to receive this assistance and the OBA reviews
those applications on an
annual basis. The number of
attorneys that receive assistance depends on the funding
available. That is where you
come in!
The Kick It Forward Fund
is very near and dear to the
YLD’s heart, since many of
the attorneys who benefit
from this program are YLD
members. This year, the YLD
is hosting its first Kick It Forward Kickball Tournament,
which will become an annual
event. The tournament will be
held on Saturday, Aug. 29,
The Oklahoma Bar Journal
2015, in Oklahoma City and
will help raise
funds for the Kick It
Forward Fund. The YLD
is currently looking for
sponsors for this tournament.
All funds raised will go
straight to the Kick It Forward
Fund, so ask your law firms,
colleagues and friends if they
would be interested in making
a donation.
We are also looking for people who are interested in playing in the tournament. This
event is open to everyone, lawyers and non-lawyers alike.
Teams must consist of a minimum of eight players and a
maximum of 12. You can also
sign up as an individual, and
we will compile a team out of
those individual players. You
do not have to be an expert
kickball player in order to participate. We are looking for
players who want to have a
good time while supporting a
great cause. Registration forms
will be coming out soon, so
watch the bar journal, E-News
871
and Facebook (www.facebook.
com/obayld) for more information. Entry fee for players will
be $25 per person, and spectators will be $10 per person.
And not that you’d need any
extra incentive to play, but
there will be prizes for the
first-place team.
We anticipate having food
and drink vendors present, so
there will be plenty of activities
for spectators as well. This will
be a great fundraiser for the
Kick It Forward Fund and also
a way to network, socialize and
have a good time with other
lawyers. If you would like
more information regarding the
kickball tournament or the Kick
It Forward Fund, please contact
me. We hope to see you in
August!
About The Author
LeAnne McGill
practices in
Edmond and
serves as the
YLD chairperson.
She may be contacted at leanne@
mcgillrodgers.com.
You Are Not Alone.
Free 24-hour confidential assistance
• depression/anxiety • substance abuse
• stress • relationship challenges
800.364.7886
www.okbar.org/members/
LawyersHelpingLawyers
Counseling and
peer support are
available.
Some services free
as a member benefit.
L AW YERS HELPING L AW YERS
A SSISTANCE PROGR AM
872
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
ACCESS TO JUSTICE
It’s Not an ‘Ozzie and Harriet’
World Any More
By Gary W. Dart
For that matter, it’s not even
a “Brady Bunch” world either.
In 1960, 72 percent of all Americans were married, but by
2010 only 51 percent had tied
the knot. Starting in the 1970s,
more and more marriages
ended in divorce, and now,
only about half of all marriages
survive. In addition to divorce
taking its toll, fewer couples
are choosing to get married at
all. Today, only about 46 percent of all American children
live in what we used to call a
“traditional family” with two
parents who are married to
each other. In 1960, 73 percent
of all kids had this stability to
come home to, while by 1980,
only 61 percent did.
Even back in the darkest
days of the Depression,
American families stuck
together and having children
born to unmarried parents was
virtually unheard of. In 1940,
only 3.8 percent of American
babies were born to unmarried
mothers, and 20 years later, in
1960, it was still only 5.3 percent. Then things began to
change. By 1965 the out-ofwedlock birth rate was 7.7 percent, by 1969 it was 10 percent,
by 1975 it was 14.3 percent and
by 1992 it was 32.6 percent.
Nationally, the unwed birth
rate topped 40 percent in 2011,
and now, in Oklahoma, about
42 percent of all births are to
Vol. 86 — No. 11 — 4/18/2015
unmarried parents. Today, census data shows that 34 percent
of all American children are
growing up in a household
headed by an unmarried parent; only 19 percent of our kids
lived this way in 1980 and just
9 percent did back in 1960.
Our world has changed and
not necessarily for the better.
Researchers mostly agree that
children of unmarried parents
have a tougher time in life —
more poverty, more instability
and more problems in school.
We should be concerned about
their lives, not just because we
care about children, but also
because we care about America
— these kids will very quickly
become tomorrow’s citizens.
These families have lots of
needs and each of us can help
in some way. Most single parent families are low income,
and our attorneys in the 40
The Oklahoma Bar Journal
local offices of the Child Support Services (CSS) division
of the Department of Human
Services are working on their
financial needs. CSS has a caseload of more than 200,000 and
collected approximately $1 million a day for families last year.
Child support represents about
45 percent of the income of low
income families with children
who receive it. Our highest
goal is to get regular support
flowing when we can. We work
hand-in-hand with the private
bar to try to make that a reality
for as many Oklahoma families
as we can.
So what can you do? Studies
have shown that half of all
unmarried couples are no longer together by the time their
child turns five. Parents who
have never been married
do not have divorce decrees
that have settled their affairs,
873
including custody and parenting time arrangements. Here
is where you come in.
One of the complaints we frequently hear is, “Why should I
pay support when I never see
my child?” What that father
may really be saying is that he
feels like all the system wants
is for him to be a cash register
when he wants to be more than
that. Studies have shown that
dads who are involved with
their children are much more
likely to voluntarily pay their
support and be a real part of
their children’s lives. Research
has also shown that kids who
grow up with involvement of
both their parents and in a
household where support is
dependable have higher selfesteem, do better in school,
form healthier relationships
with others, commit fewer
delinquent acts and tend to not
have as many out-of-wedlock
children themselves when they
grow up.
Studies have
shown that half of all
unmarried couples
are no longer together
by the time their child
turns five.
YOU CAN HELP
As attorneys, we hold the
keys to the justice system. If
you can work with a couple on
mediating a parenting plan or
visitation schedule they can
follow, you may be able to
change the life of a child.
Please help. Volunteer for Early
Settlement or Legal Aid Services, or at your local legal clinic,
through your county bar association or with us at CSS. Even
if all you are doing is supplying a couple with a modified
copy of your local court’s
standard visitation schedule,
you may be giving structure
to a broken family that didn’t
have any before. Call us at
918-439-2483 if you need other
ideas on how you can help.
One study has determined
that more than one-third of all
young men and women turning 21 this year grew up without a dad in the home. We may
not be able to change that statistic, but we can change its
impact one family at a time.
About The Author
Gary W.
Dart is the
director of
Child Support
Enforcement
for the state
of Oklahoma.
Save
a
tree.
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874
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
ASK A LAWYER
FREE LEGAL ADVICE
THURSDAY, APRIL 30
9 A.M. - 9 P.M.
SPANISH-SPEAKING
TRANSLATORS AND
VOLUNTEER LAWYERS,
WE NEED YOU!
STATEWIDE HOTLINES
Moyers Martin is proud to announce
that Scott V. Morgan is now a
partner with the firm. Scott is a trial
attorney that focuses his practice
on representing the firm’s oil and
gas clients in civil litigation and
administrative proceedings. In
addition to his oil and gas practice,
Scott also represents corporate and
individual clients in litigation and
business transactions. Scott has conducted both jury and non-jury trials
as a first and second chair attorney.
Scott is a graduate of the University
of Tulsa College of Law where he
received certification in the Resources, Energy, and Environmental
Law program.
LOCATION:
OETA STUDIOS,
OKC AND TULSA
TULSA
SIGNUP
OKC
SIGNUP
DAN CRAWFORD
539-664-4289
CONNIE RESAR
405-236-8421
LAWDAYTULSA@
OKBAR.ORG
Vol. 86 — No. 11 — 4/18/2015
CONNIE@
OKCBAR.ORG
The Oklahoma Bar Journal
875
FOR YOUR INFORMATION
OBA Welcomes New Ethics Counsel
Oklahoma City lawyer Joseph P. Balkenbush Jr. recently joined the
OBA staff as the association’s new ethics counsel, replacing Travis
Pickens, who went into private practice in February. As ethics counsel, Mr. Balkenbush will be responsible for answering ethics questions from OBA members, working with the Legal Ethics Advisory
Panel, monitoring diversion program participants, teaching classes
and writing articles.
Mr. Balkenbush has been in private practice since 2001. From 19962001, he served as a judge of the district court in Oklahoma County
assigned to a domestic docket. Prior to that, he worked as a sole
practitioner, associate attorney and legal intern in various Oklahoma
City law firms. He served in the U.S. Marine Corps from 1976 – 1980,
then earned a B.B.A in accounting from National University in San
Diego before completing his J.D. at OCU School of Law in 1986.
Joe Balkenbush Jr.
He has served the OBA as a volunteer for several committees and as
a member of the Family Law Section. He is also an active member of the Oklahoma County Bar
Association, serving on its board of directors and as co-chair of the Lawyers Against Domestic
Abuse Committee.
He may be reached at 405-416-7055, 800-522-8065, [email protected] All inquiries to the OBA ethics counsel are confidential, and most questions can be answered by telephone. See ethics tips
and opinions online at www.okbar.org/members/ethicscounsel.
Judge Hudson appointed to Court of
Criminal Appeals
Gov. Mary Fallin recently announced the appointment of Judge
Robert Hudson of Guthrie to the Court of Criminal Appeals,
succeeding Judge Charles Johnson. A former longtime prosecutor for Payne and Logan counties, Judge Hudson has served as
a special district judge in Payne and Logan counties since 2012.
In that role, he handles both civil and
criminal litigation.
He previously served as first assistant
Oklahoma attorney general, a role in
which he oversaw approximately 80
lawyers working in the state Attorney
General’s Office.
Judge Robert Hudson
While serving as district attorney, he
helped establish Oklahoma’s first
drug court to provide an alternative
punishment for offenders convicted
of non-violent drug offenses. Prior to
his time as district attorney, he owned
a private law practice in Guthrie.
He served as president of the Oklahoma District Attorneys
Association in 2000 and 2008, served nine years on the Oklahoma State Bureau of Investigation Commission and is a former
president of the Guthrie Rotary Club.
LHL Discussion Group
Hosts Upcoming
Meeting
The Lawyers Helping Lawyers monthly discussion
group will meet May 1
when the topic will be “CoDependency.” Each meeting,
always the first Thursday of
each month, is facilitated by
committee members and a
licensed mental health professional. The group meets
from 6 – 7:30 p.m. at the
office of Tom Cummings,
701 N.W. 13th St. Oklahoma
City. There is no cost to
attend and snacks will be
provided. RSVPs to Kim
Reber; [email protected]
com, are encouraged to
ensure there is food for all.
• Interested in forming a
discussion group in Tulsa?
Contact Hugh Hood:
918-747-4357
He is a graduate of OSU and the OU College of Law.
876
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
OBA Day at the
Capitol a Success
OBA member and State
Rep. Chris Kannady participates in OBA Day at
the Capitol March 24.
Those attending the event
at the bar center heard
from several speakers on a
variety of legislative topics
before meeting with legislators at the Capitol during the afternoon. Speakers were Chief Justice John
Reif, Judge James B. Croy,
Sen. Kay Floyd, Sen.
Clark Jolley, Rep. Randy
Grau, OBA President David Poarch, Legislative Liaison Clay Taylor and OBA Executive Director John
Morris Williams.
Tulsa Attorney Appointed to OBA Board
Tulsa attorney James R. Hicks has been appointed to the Oklahoma Bar
Association Board of Governors, filling the member-at-large seat formerly held by Deirdre O. Dexter, who resigned to accept an administrative law judge position.
As one of three at-large representatives, Mr. Hicks will represent all
Oklahoma counties on the 17-member board. His term begins immediately and will expire Dec. 31, 2016.
Mr. Hicks is of counsel with the Barrow & Grimm law firm in Tulsa. He
concentrates his practice in the areas of civil litigation, family law, probate and estate planning. He recently served as Tulsa County Bar Association president.
James R. Hicks
“Jim Hicks is a welcome addition to our governing board,” said OBA
President David Poarch of Norman. “His distinguished track record of
service to both the county and state bar associations, in addition to many community organizations, makes him a proven leader.”
He currently serves as senior warden at St. John’s Episcopal Church and has served as president of Legal Services of Eastern Oklahoma and the Tulsa Auxiliary of the Gladney Center. He
chaired the OBA Young Lawyers Division and TCBA Young Lawyers Committee. He is the
recipient of the American Bar Association’s First Place Award of Achievement for Service to the
Public.
He is a 1985 graduate of the TU College of Law. He earned his bachelor’s in business administration from OU in 1982.
OBA Member Resignations
The following members have resigned as members of the association and notice is hereby given
of such resignations:
Barry Lockwood
Babcock
OBA No. 395
760 Kent Road
St. Louis, MO 63124
Vol. 86 — No. 11 — 4/18/2015
Hilary Eileen Cohen
OBA No. 22383
568 Rock Road
Glen Rock, NJ 07452
Brian Jeffrey Hansford
OBA No. 31076
4529 Briggs Dr. S.E.,
#302
Olympia, WA 98501
The Oklahoma Bar Journal
George Chester
Jacques
OBA No. 10079
69 S. Big Star Lane
Eagle, ID 83616
877
Bar Supports Public Television
The OBA raised more than $4,200 in private donations as part of its volunteer effort to support
the state’s PBS-TV station during the annual OETA Festival. The donation kept the OBA at one of
the top sponsorship levels that is recognized in the station’s monthly programming guide.
Bar members turned out in force the evening of March 11 taking pledges by phone
during the fundraiser. This year’s volunteers were Melinda Alizadeh-Fard, Reagan Barham, Emily Coughlin, Stephanie
Cox, Jerrod Geiger, Samuel Glover, Allison Hart, Donna Jackson, Mark Koss,
Marty Ludlum, LeAnne McGill, Miles
Mitzner, Aaron Morrison, Ernest Nalagan,
Ed Oliver, David Poarch, Robert Powell,
Faye Rodgers, Charles Rouse, Kim Stevens, Richard Stevens, Peggy Stockwell,
Mary Travis, Chris Tytanic, Todd Waddell
and Timothy Wallace.
Photos from the event are available for
viewing at www.okbar.org/members/
President David Poarch presents a check to on-air personphotogallery.
ality and lawyer Kim Brasher during the OETA Festival
March 11.
Connect With the OBA Through
Social Media
Have you checked out the OBA Facebook page?
It’s a great way to get updates and information
about upcoming events and the Oklahoma legal
community. Like our page at www.facebook.com/
OklahomaBar Association. And be sure to follow
@OklahomaBar on Twitter!
Aspiring Writers Take Note
We want to feature your work on “The Back Page.”
Submit articles related to the practice of law, or send
us something humorous, transforming or intriguing.
Poetry is an option too. Send submissions no more
than two double-spaced pages (or 1 1/4 single-spaced
pages) to OBA Communications Director Carol
Manning, [email protected]
OBA Member Reinstatement
The following OBA member suspended for nonpayment of dues or
noncompliance with the Rules for Mandatory Continuing Legal
Education has complied with the requirements for reinstatement,
and notice is hereby given of such reinstatement:
878
The Oklahoma Bar Journal
Gordon Lee Miller
OBA No. 6204
Allen & Overy LLP
1101 New York Ave., N.W.
Washington, DC 20005
Vol. 86 — No. 11 — 4/18/2015
BENCH & BAR BRIEFS
C
rowe & Dunlevy director
Vicki Behenna was
recently honored at the Oklahoma City Chapter of the
Association for Women in
Communications’ 57th Byliner Awards. The award
recognizes Oklahoma women
who have made a significant
impact or contribution to
their community. She graduated from OCU School of
Law in 1984.
K
en Bellmard of Oklahoma City was inducted
into the Northern Oklahoma
College Distinguished Alumni Hall of Fame. He is a member of the Kaw Nation and
has practiced Native American law since 1990. He graduated from the OU College of
Law in 1989.
U
CO legal counsel Dr.
Elizabeth Kerr has been
named to the 2015-2016
National Behavioral Intervention Team Association board.
The association brings together professionals from multiple
disciplines who are engaged
in the essential function of
behavioral intervention in
schools, on college campuses,
and in corporations and organizations for mutual support
and shared learning. She
graduated from OCU School
of Law in 1986.
R
ichard McKnight of Enid
was honored with the
North Star Award at the
Vol. 86 — No. 11 — 4/18/2015
annual Cimarron Council
Good Scout Luncheon for his
support of scouting as well as
other organizations in Enid
and the surrounding area.
The North Star Award is the
highest award a local Boy
Scout council can bestow on
a non-registered volunteer
for significant contributions
to scouting. He graduated
from the OU College of Law
in 1963.
B
rad West, a partner with
The West Law Firm in
Shawnee, has been named
secretary for the Oklahoma
Chapter of the American
Board of Trial Advocates
(ABOTA) for 2015. ABOTA is
a nationwide invitation-only
advocacy group whose primary goal is to educate the
public about the importance
of the trial by jury system in
America. He graduated from
the OU College of Law in
1989.
S
am P. Daniel of Tulsa
celebrates 50 years with
Doerner, Saunders, Daniel &
Anderson in April. He graduated from the OU College of
Law in 1959.
D
ouglas J. Sorocco, who
was born with spina bifida, was one of 15 minority
rainmakers recently selected
by MCCA (Minority Corporate Counsel Association)
for inclusion in its annual,
nationwide list and featured
in Diversity & The Bar. MCCA
was founded in 1997 to advocate for the expanded hiring,
retention, and promotion of
minority attorneys in corporate law departments and the
The Oklahoma Bar Journal
law firms that serve them. He
graduated from the University of Dayton in 1995.
R
obert Don Gifford was
recently promoted to
colonel in the U.S. Army
Reserves Judge Advocate
General’s Corps, and has
been also selected to be the
commander of the 3rd Legal
Operations Detachment in
Boston, Massachusetts. He
will be responsible for overseeing operations to provide
legal support to deploying
soldiers, their families and
veterans, and he will deploy
judge advocates worldwide
to assist in the development
of the rule of law in foreign
countries. He graduated
from the OU College of Law
in 1996.
T
he Boeing Company promotes Jeb Boatman to site
director and chief counsel for
its Oklahoma City operations.
He will oversee significant
site initiatives, including
external affairs, and will
oversee the legal needs of
Boeing’s worldwide defense
aircraft modernization and
sustainment division. He
graduated from the OU
College Of Law in 2003.
T
imothy L. Rogers has
been elected a preferred
shareholder at Barrow &
879
Grimm P.C. in Tulsa, where
he focuses on business litigation, construction litigation,
employment and surety law.
He graduated in 2008 from
the TU College of Law.
M
cAfee & Taft has named
lawyers Mary Quinn
Cooper and Charles Greenough from its Tulsa office and
Barrett Ellis and Erin Van
Laanen from its Oklahoma
City office to serve as new
practice leaders for the 2015
term. Ms. Cooper was
appointed to co-lead the
firm’s litigation practice
with returning co-leader
Brad Donnell. She serves
as trial counsel for a number
of Fortune 500 corporations
and defends product liability
claims and class actions
across the country. Mr. Ellis
was named leader of the
firm’s Banking and Financial
Institutions Group, advising
corporate and financial institution clients in a wide range
of transactional matters, with
a particular emphasis on
finance transactions and
regulatory compliance. Mr.
Greenough was appointed
leader of the firm’s Business
Restructuring, Workouts and
Bankruptcy Group and has
extensive experience in financial, debtor/creditor, and
bankruptcy matters, representing both lenders and borrowers, as well as serving as a
trustee and as a liquidating
agent in complex bankruptcy
estates. Ms. Van Laanen is the
new leader of the firm’s Aviation Group and her practice is
concentrated in the areas of
aircraft title, registration,
financing and leasing and
related matters concerning
the United States Federal Aviation Act, the FAA Aircraft
Registry in Oklahoma City,
and the Cape Town Convention on International Interests
880
in Mobile Equipment and the
Aircraft Protocol.
C
rowe & Dunlevy recently
named director Alison
M. Howard of Oklahoma
City as chair of the firm’s
Employee Benefits & Employee Retirement Income Security Act (ERISA) practice
group. In this role, Ms.
Howard leads a team of experienced attorneys concentrated in employee benefits
and ERISA litigation. She
graduated from the University of Notre Dame in 2003.
S
tacy M. Brklacich joins
GableGotwals as an of
counsel attorney in the Tulsa
office where she will focus on
health care law. She is a former Tulsa County assistant
district attorney and earned
her J.D. from TU College of
Law in 2008.
C
asey Cooper joins
GableGotwals as a new
shareholder in the Tulsa
office. His primary focus will
be complex litigation, corporate services, environmental
services, oil and gas matters
and the law of higher education. He is a former attorney
in the U.S. Navy’s Judge
Advocate General’s Corps
and received his J.D. from
the TU College of Law.
C
rowe & Dunlevy
announces that Jon
Croasmun has joined the firm
as a director in the Aviation/
Aircraft practice group. Mr.
Croasmun has concentrated
his career in the practice of
commercial and business aviation law. He received his J.D.
from the University of Utah
S.J. Quinney College of Law
in 2003.
D
oerner, Saunders, Daniel
& Anderson announced
that former Judge William C.
Kellough has joined its Tulsa
The Oklahoma Bar Journal
office. Kellough served as a
district judge in Oklahoma’s
14th Judicial District in Tulsa
County for eight years. He
will concentrate on dispute
resolution, litigation and
healthcare. He graduated
from the University of Texas
at Austin in 1975.
K
atherine R. Morelli
of Tulsa has joined the
firm of Rhodes, Hieronymus,
Jones, Tucker and Gable as an
associate attorney. Her areas
of emphasis include civil litigation and appellate practice.
She graduated with honors
from the OU College of Law
in 2010.
J
ames Scears has joined
Baker & McKenzie as an
associate in the firm’s Zurich,
Switzerland, office. His practice focuses on international
taxation, wealth management,
and estate and trust planning.
Prior to joining the firm, Mr.
Scears served as a federal
judicial law clerk for Judge
David L. Russell in the U.S.
District Court for the Western
District of Oklahoma. Mr.
Scears graduated from New
York University School of
Law with an LL.M. in taxation in 2013, and prior to
that, graduated from the OU
College of Law in 2012.
G
uy Thiessen announces
the opening of The GT
Law Firm in Tulsa. Mr. Thiessen was formerly with Carr &
Carr Attorneys as their lead
trial lawyer in the Tulsa
office. He will continue to
handle all types of plaintiff
personal injury cases, with a
special emphasis in the areas
of nursing home/assisted living neglect, trucking cases,
wrongful death and all matters involving catastrophic
injuries. He graduated from
OCU School of Law in 1989.
Vol. 86 — No. 11 — 4/18/2015
issues. Carrie L. Foster of
Norman presented on the
topic “An update: The Oklahoma Financial Privacy Act
— Civil Subpoenas” during
the conference.
T
ulsa lawyer Jeff Curran
spoke April 17 in New
York City at the national HB
Litigation Conference regarding product liability litigation
and expert witnesses.
P
aul R. Foster of Norman
was a featured speaker at
the recent Community Bankers Association of Oklahoma
Winter Leadership Conference held at South Lake
Tahoe, Nevada. He spoke on
the topic of “Your Bank: Buy,
Sell, Recapitalize or Play
Defense?” and also coordinated and moderated the presentation of the federal bank regulatory panel which focused
on recent legal and regulatory
issues throughout the region
and emerging capitalization
E
ric L. Johnson recently
spoke at the National Alliance of Buy Here, Pay Here
Dealers Best Operating and
Compliance Practices Conference in Dallas. He spoke on
the topic of GPS and Payment
Assurance Technology.
M
ark Sanders spoke at
the OBA CLE Revocable
Asset Preservation Trust in
March. His presentation
focused on the U.S. Bankruptcy Court’s role with the trust.
How to place an announcement: The Oklahoma Bar Journal
welcomes short articles or
news items about OBA members and upcoming meetings.
If you are an OBA member and
you’ve moved, become a partner, hired an associate, taken
on a partner, received a promo-
tion or an award, or given a
talk or speech with statewide
or national stature, we’d like
to hear from you. Sections,
committees, and county bar
associations are encouraged
to submit short stories about
upcoming or recent activities.
Honors bestowed by other
publications (e.g., Super Lawyers, Best Lawyers, etc.) will not
be accepted as announcements.
(Oklahoma-based publications
are the exception.) Information
selected for publication is
printed at no cost, subject to
editing, and printed as space
permits.
Submit news items via email to:
Mackenzie McDaniel
Communications Dept.
Oklahoma Bar Association
405-416-7084
[email protected]
Articles for the Aug. 15 issue
must be received by July 13.
IN MEMORIAM
T
homas E. Bennett of Oklahoma City died Feb. 26.
He was born Oct. 10, 1920, in
Durant. He earned a bachelor’s degree in history from
OSU, a J.D. from Harvard
University and did postgraduate studies at Georgetown
University. He was an infantry officer in World War II,
often leading behind-the-line
rescue and recovery teams
through enemy territory,
served at the Pentagon during the Korean Conflict and
the Maritime Administration.
He was an administrative law
judge with the Social Security
Administration. He was an
adjunct professor at the International School of Law in
Washington, D.C. Prior to his
Vol. 86 — No. 11 — 4/18/2015
retirement in 2011, he was
honored for 50 years of federal government service. He
was active in a variety of
community activities including chairing the Oklahoma
County Election Board,
serving as American Legion
post commander and trustee
for Oklahoma Baptist University, 32nd degree Mason and
several Oklahoma political
campaigns.
M
elissa Marie Chase of
New Bern, North Carolina, died Feb. 22. She was born
Nov. 10, 1969. She received a
B.S. in criminal justice from
the University of Central Florida before earning her J.D.
from Regent University in
2000. She practiced in the area
The Oklahoma Bar Journal
of immigration law representing employers, employees,
families and individuals. She
was a frequent speaker and
author on the topic of immigration law. She was a Boy
Scout troop leader and had a
passion for children, education, humanitarian issues and
animal welfare.
Broc Cumbie of ArdJeremy
more died Feb. 28. He was
born on April 17, 1985, and
graduated from Ardmore
Public Schools in 2003. He
graduated from East Central
University with a double
major in criminal justice and
legal studies and received his
J.D. from OCU School of Law
in 2011. Jeremy had a true
love of the law and interned
881
for Judge Walker in Ardmore,
Judge Landrith in Ada, the
Department of Agriculture in
Oklahoma City, and the District Attorney’s Office in Ada.
He was a member of the Carter County Bar Association,
and was on the board of the
Ardmore Children’s Shelter.
Among his survivors is his
brother, OBA member Jon
Gores.
Price Feuquay of
Jeffrey
Nevada, Missouri, died Dec.
29, 2014. He was born July 6,
1949, in Enid. He graduated
from OCU School of Law in
1995. He was a professor at
OSU, worked as an Assistant
Administrator for the State of
Oklahoma Office of Personnel
Management, and served as
an international consultant
representing OSU with the
World Bank and the Ministry
Education in Amman, Jordan.
He practiced law in Perry,
Guthrie and Nevada, Missouri. He demonstrated his
commitment to community
through his services in Rotary
Club, the Children’s Center
and many other organizations
and civic clubs and acted
upon his strong faith in God
by his work with the Nevada
United Methodist Church.
Memorial donations can be
made in his name to the
United Methodist Church.
Fraley of Oklahoma
Jerry
City died Nov. 4, 2014. He
was born on Oct. 9, 1959, and
graduated from Muskogee
High School. He graduated
from the OU College of Law
in 1984 and went on to work
for Bill Cathcart and Micky
Walsh. He was an avid sports
882
fan as well as an Oklahoma
City history enthusiast.
Robert Greenstreet of
John
Tulsa died March 1. He was
born July 1, 1929, in Tulsa and
graduated from Will Rogers
High School in 1947. He
earned his J.D. from Southern
Methodist University in
1961. After his graduation, he
worked for Proctor & Gamble
in Cincinnati, Ohio, for six
years. He then returned to
Tulsa and worked in the First
National Bank Trust Department and later worked for
MAPCO, from which he
retired in 1993. He was a
member of Christ United
Methodist Church and its
Friendship-Wesley Class
and helped to develop the
church’s scholarship program.
S
idney M. Groom Jr. of
Edmond died Feb. 22. He
was born Jan. 27, 1925, in
Oklahoma City and graduated from Bristow High School
in 1942. He attended Oklahoma Military Academy before
beginning his service in the
U.S. Army in 1943. During
World War II, his unit, the
69th Infantry Division, was
committed to the European
Theater in November 1944.
He was awarded the Bronze
Star Medal of Honor for his
service. In 1946, he returned
from Germany and resumed
his education at OU, studying
physics. He graduated from
the OU College of Law in
1951. After completing law
school, he began his career as
a landman for Standard Oil
Company of California in
Ardmore. He later, relocated
to Washington D.C. where
The Oklahoma Bar Journal
he was a lawyer for the U.S.
Department of the Interior
Solicitor’s Office and then to
New Orleans, Louisiana,
where he was the first lawyer
and director of the new
Bureau of Land ManagementOuter Continental Shelf leasing office. Two years later, he
returned to his home state of
Oklahoma to work as a lawyer for Magnolia Petroleum
Company (later Mobil Oil
Corporation). After 17 years,
he left Mobil and opened a
small law office in downtown
Edmond and became an
adjunct professor of business
law at UCO (then Central
State University). He retired
at age 80. He was a longtime
member of the First Christian
Church (Disciples of Christ) of
Edmond and was active in
many benevolent outreach
efforts and civic endeavors his
entire life. Among his survivors is his son, OBA member
Marshall Thad Groom.
P
age Price Morgan of Oklahoma City died Feb. 27.
She was born on May 13,
1953. She graduated from
OSU and received her J.D.
from OCU School of Law in
1980. She was active in many
civic and philanthropic activities and served more than 20
years as an Oklahoma City
municipal judge. She respected and admired her judicial
colleagues and friends and
appreciated everyone who
made the Oklahoma City
Municipal Courts operate
effectively. Memorial donations may be made to the
OSU Foundation Scholarship
Fund or to the Oklahoma City
Animal Shelter.
Vol. 86 — No. 11 — 4/18/2015
IN MEMORIAM
1969 OBA President
Winfrey Houston
1926-2015
W
infrey David Houston of Stillwater died Monday, March 23. He
was born June 1, 1926, in Stillwater. He graduated from Oklahoma A&M with
a degree in history and political science and
received his J.D. from the OU College of Law
in 1950.
When he was a senior in high school, he
volunteered for service in the Army Air
Corps. While completing training in Seattle
as a B-29 flight engineer in May 1945, the
war ended. He shipped out in November
and served in the Allied Occupation of
Germany for 10 months. For many years
he was Stillwater School Board attorney and
Perkins city attorney while maintaining an
active private practice.
He served as president of many legal organizations including the Payne County Bar
Association, Oklahoma Bar Association and
Oklahoma Bar Foundation. He also served as
a member of the House of Delegates of the
American Bar Association.
In 1987, he received the OBA’s Outstanding
Lawyer Award in Practice for More Than 35
Years and in 2003, he was recognized as one
of only a few practicing attorneys who had
Vol. 86 — No. 11 — 4/18/2015
been members
of the Oklahoma Bar for 50
years. In 2007,
the OBA honored him with
the Joe Stamper
Distinguished
Service Award.
He was also
extremely active
in the community, having
served on the Mayor’s Human Relations
Committee, Chamber of Commerce Board of
Directors, Stillwater Medical Center Board,
Public Housing Board, Downtown Neighborhood Planning Team, Community Center
Board, Main Street Board and Main Street’s
Design and Economic Restructuring Committee and as Stillwater’s city commissioner.
Memorial contributions may be made in his
name to First Presbyterian Church, 524 S.
Duncan, Stillwater, OK 74074 or Stillwater
Community Foundation to the Winfrey Houston Memorial Fund, P.O. Box 425, Stillwater,
OK 74076 or www.cfok.org/donate.
The Oklahoma Bar Journal
883
WHAT’S ONLINE
Fighting
ransomware
What can a law firm do to fight
ransomware? Sharon Nelson provides
some answers.
Business
cards
Design and print your own
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these sites. If you aren’t feeling
creative, they have templates
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Zazzle.com/businesscards
Want to find a tutorial on how to make or
do basically anything? Check out this great
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Businesscard.designcrowd.com
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www.instructables.com
884
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
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15th Street garden style executive office suite
*6,000 sq.ft. available, can be divided into smaller
offices *Professional office finishes *Reception area,
conference room, kitchen, manicured grounds,
private garden area and front surface parking
*Administrative services, fax, copier and internet
access *Property is tailored for professional/law
offices *Conveniently located on 15th Street
between Lewis & Utica *Call 918-361-3617.
OFFICE SPACE FOR LEASE IN ESTABLISHED FIRM.
Space located in Boulder Towers at 1437 S. Boulder
Ave, Suite 1080, Tulsa, OK. Space includes two conference rooms, kitchen, reception area, security and free
parking. $1,000 per month. Contact Robert Williams at
918-749-5566 or [email protected]
Office Space - Midtown Law Center
Lease in a restored 1926 building. Rent includes
phone, fax and LD, parking, internet, kitchen
privileges, 2 conf. rooms, receptionist and basement
storage. Seven attorneys with some referrals.
405-229-1476 or 405-204-0404
The Oklahoma Bar Journal
885
OFFICE SPACE
POSITIONS AVAILABLE
MIDTOWN – 13TH & DEWEY. 2 offices (1 executive, 1
mid-size). Parking, new fax/copier, auto voice mail,
wireless internet, library/conference room, reception
area, kitchen. 405-525-0033 or [email protected]
EXPERIENCED LITIGATION ASSOCIATE (2-5 years)
– Downtown Oklahoma City law firm Chubbuck Duncan & Robey seeks litigation associate with experience
in civil litigation to augment its fast-growing trial
practice. Salary commensurate with experience. Send
résumé and salary requirements to Law Office Administrator, 100 N. Broadway Avenue, Ste. 2300, Oklahoma City, OK 73102.
OFFICE SPACE FOR LEASE: Large office space located
at 5929 N. May Ave., Ste. 300, OKC. Internet, wi-fi,
phone, copier, kitchen and conference room included.
$530 per month. To inquire, call Shawn or Kacey
405-463-6800.
OFFICE SPACE FOR RENT: NW Classen, OKC. Telephone, library, waiting area, receptionist, telephone answering service, Desk, Chair, file cabinet, included in
rent one for $290 and $490 per mo. Free parking. No
lease required Gene or Charles 405-525-6671.
POSITIONS AVAILABLE
GROWING EDMOND LAW FIRM seeks entry level
Legal Administrative Assistant. Excellent writing skills,
attention to detail, and organization skills required.
Willingness to learn and eager to excel in the legal field
essential. Paralegal certificate a plus, but not required.
Qualified candidate who shows talent and potential
will have opportunity to advance to a Legal Assistant/
Paralegal position. Please send résumé and writing
sample to “Box E,” Oklahoma Bar Association; PO Box
53036; Oklahoma City, OK 73152.
THE OKLAHOMA BAR ASSOCIATION HEROES program is looking for several volunteer attorneys. The
need for FAMILY LAW ATTORNEYS is critical, but attorneys from all practice areas are needed. All ages, all
counties. Gain invaluable experience, or mentor a
young attorney, while helping someone in need. For
more information or to sign up, contact Gisele Perryman, 405-416-7086 or [email protected]
MID-SIZED EDMOND LAW FIRM seeks civil litigation
associate with minimum of three years of experience.
The successful candidate will have excellent academic
record and writing ability. Excellent compensation package commensurate with experience. Please send résumé and writing sample to “Box J,” Oklahoma Bar Association; PO Box 53036; Oklahoma City, OK 73152.
GROWING BRICKTOWN LAW FIRM seeks motivated
and entrepreneurial-minded attorneys with two or
more years’ experience in the following practice areas:
HR/Employment; healthcare/regulatory; personal injury insurance defense, and/or trucking/transportation
litigation experience. We are looking for resourceful individuals who want to be part of a unique team of lawyers
and work on a wide variety of business consulting matters and litigation. Experienced with a book of business? Young and hungry? We have room for all. Tired
of working long hours for just a salary? Our compensation package allows ultimate flexibility with regard to
income and work load. Want to actually see a reward
for generating business? We have a great origination
policy, too. Send résumé and cover letter/video correspondence clip outlining practice area experience and
why you are ready to work in a different kind of firm,
to [email protected]
886
DEBEE GILCHRIST, AN AV RATED FIRM SEEKS ATTORNEY FOR AVIATION PRACTICE AREA IN
OKLAHOMA CITY. The ideal candidate is a person of
character (organized, determined, humble and loyal)
with 3-5 years of experience in commercial transactions. Background in real estate or oil and gas title work
may be beneficial. Bonus opportunity is available and
salary is commensurate with experience. Applications
will be kept in the strictest confidence. Under cover letter, send résumés to: DeBee Gilchrist Attention: HR 100
North Broadway, Suite 1500, Oklahoma City, OK 73102
or email to [email protected]
NORMAN LAW FIRM IS SEEKING sharp, motivated
attorneys for fast-paced transactional work. Members
of our growing firm enjoy a team atmosphere and an
energetic environment. Attorneys will be part of a creative process in solving tax cases, handle an assigned
caseload, and will be assisted by an experienced support
staff. Our firm offers health insurance benefits, paid vacation, paid personal days, and a 401K matching program. Applicants need to be admitted to practice law in
Oklahoma. No tax experience necessary. Submit cover
letter and résumé to [email protected]
CHRISTENSEN LAW GROUP, an AV rated law firm in
north Oklahoma City, is seeking an attorney to practice
in workers compensation, tort and business litigation.
Applicants to join this growing firm must be of high
character, organized, self-motivated, loyal and enjoy
working in a team atmosphere. Bonus opportunity is
available and salary is commensurate with experience.
Previous workers compensation and/or litigation experience is preferred. Our firm offers full benefits, paid vacation, personal days and a matching 401k. Applications
will be kept in strict confidence. Please send résumé and
cover letter to Christensen Law Group Attention HR,
Parkway Building, 3401 N.W. 63rd Street, Suite 600,
Oklahoma City, OK 73116. No phone calls, please.
MUNICIPAL JUDGE: Salary $92,707. The City of Oklahoma City seeks full-time Municipal Judge. Must be a
resident of Oklahoma City with a minimum of four
years’ experience in Oklahoma as a licensed, practicing
attorney. Additional requirements are listed in the application. Pick up and return application to the Department
of Court Administration, 700 Couch Drive, Oklahoma
City, OK 73102. Direct all inquiries to Court Administrator Stacey Davis at 405-297-2780. Applications with résumés will be accepted until April 23, 2015, at 5pm.
The Oklahoma Bar Journal
Vol. 86 — No. 11 — 4/18/2015
POSITIONS AVAILABLE
POSITIONS AVAILABLE
A/V RATED LAWYER seeks associate to help out with
busy practice. Background in Immigration strongly desired. The area of service would be Mayes/Rogers
County. Salary commensurate with experience. Please
send résumé to “Box P,” Oklahoma Bar Association, PO
Box 53036, Oklahoma City, OK 73152.
LAW FIRM SEEKING EXPERIENCED LEGAL ADMINISTRATOR with no less than 5 years of experience
managing the day-to-day operations of a mid-sized
firm. Job includes reporting to the managing partner,
participating in management meetings. In addition to
general responsibility for financial planning and controls, personnel administration, and systems and physical facilities, the legal administrator identifies and
plans for the changing needs of the organization, shares
responsibility with the appropriate partners for strategic planning, practice management and marketing,
and contributes to cost-effective management throughout the organization. Salary is based on experience.
Send résumé to “Box O,” Oklahoma Bar Association,
PO Box 53036, Oklahoma City, OK 73152.
THE OKLAHOMA TAX COMMISSION, LEGAL DIVISION seeks an attorney for an opening in its OKC office. Applicants must be licensed to practice law in
Oklahoma and have a current OK driver’s license. 0-5
years preferred. Submit cover letter, résumé, and writing sample to [email protected] The OTC is
an equal opportunity employer.
The Oklahoma Corporation Commission has an opening for an Attorney in the Office of General Counsel to
represent the Oil and Gas Conservation Division. Responsibilities include enforcement of Commission
rules and regulations, representing the Division in administrative hearings, advising technical staff and field
inspectors, assisting with rulemakings, and advising
the Division on legal matters under the Commission’s
oil and gas jurisdiction. This is an unclassified position
with a salary of $65,000 annually. Applicants must be admitted to the Oklahoma bar and have 3 years of litigation
experience. Send résumé and writing sample to: Oklahoma Corporation Commission, Human Resources Division, P.O. Box 52000, Oklahoma City, Oklahoma, 731522000. For inquiries, contact Lori Mize at 405-521-3596 or
at [email protected] Deadline: April 25, 2015.
ASSOCIATE POSITION AVAILABLE: 4-6 years of experience; research and writing skills; top 25% graduate;
law review or federal judicial clerk experience desired;
complex litigation experience preferred. Submit résumé to Federman & Sherwood, 10205 N. Pennsylvania
Avenue, OKC 73120, or [email protected]
ESTABLISHED TULSA DEFENSE FIRM, seeking associate in Oklahoma City with 3 to 10 years’ experience in
workers compensation to manage defense cases in
OKC office. Send résumé to Leah Keele at lkeele@
lwsl-law.com.
Vol. 86 — No. 11 — 4/18/2015
CLASSIFIED INFORMATION
REGULAR CLASSIFIED ADS: $1 per word with $35 minimum
per insertion. Additional $15 for blind box. Blind box word
count must include “Box ___,” Oklahoma Bar Association, PO
Box 53036, Oklahoma City, OK 73152.”
DISPLAY CLASSIFIED ADS: Bold headline, centered, border
are $50 per inch of depth.
DEADLINE: See www.okbar.org/members/BarJournal/
advertising.aspx or call 405-416-7018 for deadlines.
SEND AD (email preferred) stating number of times to be
published to:
[email protected], or
Emily Buchanan, Oklahoma Bar Association, PO Box 53036,
Oklahoma City, OK 73152.
Publication and contents of any advertisement are not to be
deemed an endorsement of the views expressed therein, nor
shall the publication of any advertisement be considered an endorsement of the procedure or service involved. All placement
notices must be clearly non-discriminatory.
DO NOT STAPLE BLIND BOX APPLICATIONS.
The Oklahoma Bar Journal
887
THE BACK PAGE
WWJD: What Would Jayne Do?
By Suzanne Snell
I was lying face down in the
black dirt and high grass on
the bank of the Innoko River in
the Innoka National Wildlife
Refuge in Alaska. I did not
know whether to laugh or cry.
The river is glacier-fed, wide,
deep and fast-moving, and the
refuge is one of America’s
most remote landscapes. With
no inhabited human settlements, no roads and a lack of
easy access, human visitors are
few and far between. So how
did I wind up in my
predicament?
The short answer is because
I was on a 16-day moose hunt
with my husband. We were
brought into camp on a float
plane — camping in a big open
tent with complete strangers,
no running water or electricity.
I was not a spectator to the
hunt; I was a participant. To
fully convey the depth of my
immediate dilemma, you must
know I was wearing a first
layer of wool longhandles
underwear (top and bottom).
Next, insulated camo pants
and a long-sleeve shirt.
The final layer, before coat
and gloves, chest waders,
made of a stiff neoprene. The
design is a combination of bib
overalls and footy pajamas.
Chest waders are like seatbelts.
They can be annoying if you
don’t need them but when you
need them you are really, really
thankful you took the time to
put them on. The final accessory is river boots, designed to
keep you upright walking in
the river. That means rough
888
soled and rigid ankles. Walking on dry land in river boots
is like walking with concrete
blocks for shoes. There is no
flex in the ankles.
When nature calls in the
outdoors, there is no indoor
plumbing, and toilet paper can
be a luxury. The only concerns
for privacy are the moose,
eagles, wolves and bears. My
choice of location was on the
side of the steep river bank.
All of the above mentioned
attire was wrapped around my
ankles. The waders were like a
giant rubber band holding my
feet together. When I got ready
to stand up, I realized the full
limitation of the “no flex
ankles” of the river boots. I
could not get my feet under
me. If I leaned back to sit on
my bottom, I envisioned doing
back somersaults into the frigid river. So, there I was facedown in the black dirt with all
my dignity out the window.
What would Jayne do?
Mrs. Jayne Montgomery
Looney was a “heavyweight”
as an Oklahoma lawyer and a
pioneer for all women lawyers.
I had the great fortune of
growing up with Mrs. Montgomery as a mentor, my Girl
Scout leader from grade school
to high school. She taught us
to setup and take down tents,
build fires, craft complete
kitchens and bathrooms with
sticks and twine. We backpacked and canoed for miles.
Mrs. Montgomery taught us
this while she was neatly
dressed in perfectly pressed
The Oklahoma Bar Journal
slacks and blouse, wearing a
thin chiffon headscarf that
coordinated with her outfit.
But on this day, 40 plus years
later, I am the lady that had
a mani-pedi before I left civilization and carried lip gloss
in my pocket during the
hunt, WWJD?
Jayne Montgomery graduated from the University of
Oklahoma College of Law,
where she was a member of
the First Law Review, Kappa
Beta Pi and the Order of the
Coif. She was the first woman
associate professor at the OU
law school, first woman
Supreme Court special justice,
first woman elected OBA
Board of Governors officer
(vice president) and Oklahoma
Women’s Lawyer Association
president.
The list of her accomplishments is endless. She and her
husband, Henry, established
Montgomery & Montgomery
Law Firm in Purcell, where it
existed for more than 50 years.
Jayne, the Girl Scout leader,
taught us to be fair, be prepared, good manners, handwritten thank you cards, don’t
be afraid of the competition
and never give up.
Finally, I felt a big bear
hug. My husband lifted me
up and put me on my feet. I
dusted off my dignity, picked
up my rifle and trudged on
because I knew what Jayne
would do.
Ms. Snell practices in Purcell.
Vol. 86 — No. 11 — 4/18/2015
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