November Briefcase - Oklahoma County Bar Association

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Vol. 46, No. 11
2014 Harvest Food Drive
By Justin D. Meek
You are cordially
invited to the
2014 OCBA
Thursday, Dec. 4
5:00 - 7:00 p.m.
Oklahoma County
Bar Offices
119 North Robinson,
Food Court Basement
Hosted by the Oklahoma
County Bar Association
The OCBA Voices for
Children committee will be collecting stocking caps, mittens
& gloves for the Carver-Mark
Twain Headstart program.
Please be generous!
The YLD performs many community
service activities throughout the year, but the
primary group we benefit financially is the
Regional Food Bank. Due in large part to the
generosity of local attorneys, businesses,
and law firms, the Oklahoma County Bar
Association’s Young Lawyers Division has
been able to make substantial donations to
the Harvest Food Drive for the last 20 years.
The YLD is in the home stretch of the 2014
Harvest Food Drive. By now, you or your
firm have likely been contacted by YLD
board members about tax-deductible donations to the Harvest Food Drive. If you are
able to do so, please give to help the YLD
reach its goal.
Since 1980, the Regional Food Bank has
been providing food and other necessities to
Oklahoma’s hungry. “Hunger is a real problem in our state, and donations to the
Regional Food Bank allow us the unique
opportunity to directly impact the lives of
many,” commented Bob Jackson, YLD’s
Harvest Food Drive Co-Chair. Currently, the
Regional Food Bank provides food for more
than 90,000 Oklahomans every week, onethird of which are children. In Fiscal Year
2013, the Regional Food Bank distributed
47.9 million pounds of food to families, seniors and children struggling with hunger in
our state. Such efforts ease the burden on the
estimated 675,000 Oklahomans that are at
risk of going hungry every day. The
Regional Food Bank makes the most of
every donation by stretching every dollar to
Thanksgiving Reflections
By Joi McClendon
‘Tis the time to reflect on what each of us
is thankful for; a time of Thanksgiving.
There are a multitude of things and people
I am thankful for, not the least of which is
my profession. The practice of law is a wondrous thing: one comes across people from
all walks of life. I have often thought the
drama at the Oklahoma County Courthouse
would make for an intriguing and entertaining reality show (characters are abundant
and I am confident that you are thinking of
one or two such characters right now)! We,
as attorneys, walk these halls daily. If you
are not thinking of the cases set in the morning, you are thinking of cases in the after-
noon, the next day, week, etc. We are
focused, warriors fighting for our clients or
for the State of Oklahoma. But what of these
I have often sat and watched the hustle
and bustle of the courthouse. People pass in
suits and ties, as well as worn-out sneakers
and hole-ridden shirts. For most of us, each
day is yet another day in the rat race.
However, for our clients, it is a significant
day in their life: for one, it means fighting
for custody of his/her child, for another, an
eviction from his/her home, or for another,
going home to his/her family or going to
Profiles in
In-House Counsel
The Honorable Jerry D. Bass
Retires soon after 19 Years
A Pictorial of the Autumn
Social Gathering
Page 8
Page 9
From the President . . . . . . . . . . .2
October Picture Quiz Answers . . .3
Events and Seminars . . . . . . . . .3
And the Court Said . . . . . . . . . . .4
Stump Roscoe . . . . . . . . . . . . . .5
iBar Definitive Playlists . . . . . . . .6
Book Review . . . . . . . . . . . . . . .7
Old News . . . . . . . . . . . . . . . . . .7
Bar Observer . . . . . . . . . . . . . .11
OU College of Law News . . . . . .11
Work Life Balance. . . . . . . . . . .12
Book Notes . . . . . . . . . . . . . . .15
2 BRIEFCASE • November 2014
November 2014
Briefcase is a monthly publication of the
Oklahoma County Bar Association
119 North Robinson Ave.
Oklahoma City, OK 73102
(405) 236-8421
Briefcase Committee
Judge Jim Croy, Chris Deason, Judge Don
Deason, Michael Duggan, Michael Ford, Brian
Hansford, Justin Hiersche, Thomas Ishmael,
Scott Jones, Matt Kane, Katherine Mazaheri, Joi
McClendon, Shanda McKenney, Richard Parr,
Travis Pickens, Austin Reams, Teresa Rendon,
Judge Vicki Robertson, Bill Sullivan, Rex Travis,
Collin Walke, Judge Allen Welch and Alisa
Judge Geary L. Walke
Contributing Editors
Richard Goralewicz
Bill Gorden
Warren Jones
Oklahoma County Bar Association
Vice President
Past President
Bar Counsel
Jim Webb
Angela Ailles Bahm
Judge Barbara Swinton
Judge Patricia Parrish
Robert D. Nelon
Brandon Long
Executive Director
Debbie Gorden
Legal Placement Director
Pam Bennett
Membership Services
Connie Resar
Journal Record Publishing Co. Inc.
Director of Sales
and Community Relations
Art Director
Creative Services
Advertising Acct Exec
Joni Brooks
Sunny Cearley
Gary L. Berger
Tiffany English
Sarah Williams
Jessica Misun
For advertising information,
call 278-2820.
Postmaster: Send address changes to OCBA
Briefcase, 119 North Robinson Ave., Oklahoma
City, Oklahoma 73102.
Journal Record Publishing produces the Briefcase
for the Oklahoma County Bar Association, which is
solely responsible for its content.
Volunteer lawyers and judges dedicated to
serving the judicial system, their profession,
and their community in order to foster the
highest ideals of the legal profession, to better the quality of life in Oklahoma County,
and to promote justice for all.
From the President
The Economics of Justice
friends stop reading, let me assure you this is
not a manifesto on the need for punitive damOCBA President
ages caps or further tort reform. Instead, the
Over the years, various bar associations
authors dive into the problem of inadequate
have wandered into sticky political issues. I
terminated my membership in a national bar funding for our court systems across the counorganization about five years ago over what I try. They cogently argue that insufficient funding of our court system is
saw as misguided efforts to
equally dangerous to inditake on political issues that
viduals, companies, and
had - at best - a tangential
society as a whole, and it is
connection to promoting the
taking a grave economic toll
administration of justice.
on our economy.
So, before I wade into this
What percentage of the
potentially touchy topic for
state budget do
this month’s column, rest
appropriated to
assured I am sensitive to
system? Ten
what issues we should and
should not take on as an
calculaI’m equally committed to
tion. Astounding, isn’t it? It
the OCBA’s mission,
is unacceptable, too. We are
though. Last month we were
on the low end of the specreminded that - among
trum in court funding
other things - the OCBA
Other states’
exists to serve the judicial
system and promote justice for all. We accept
this honorable charge because we are officers
of the court. Fundamentally, though, we do it
So, in Oklahoma we are talking about
for an even greater reason.
$100,000,000 out of an annual
The court system is the anchor of American
of $7,200,000,000. That
democracy. Absent a fair and effective judicicalculates
a penny and a half out
ary, the rights granted to us under our Federal
Let that sink
and State Constitutions are hollow promises.
of govOur courts require adequate funding in order to
ernment constitutionally charged with upholddischarge their constitutionally mandated
ing the rule of law and providing equal and
duties. Herein lies the potential problem. For
timely access to justice for all citizens. A penny
the most part, the courts must rely on their coand a half for the branch of government where
equal branches of government - and particularpeople turn to resolve some of the most pressly the legislature - for the lion’s share of funds
ing, important and challenging issues they will
to support court operations.
face in life. A penny and a half for the branch
We cannot sit idly by and allow funding of of government charged with maintaining the
our courts to be an afterthought, an ideological all-important checks and balances for the execbargaining chip, or merely another line item in utive and legislative branches.
a voluminous budget. Our courts do not proIs a penny and half enough? That’s for you
vide optional programs that can be reduced or to decide. Before you do, ask our judges, who
eliminated. No, our courts are indisputably have overflowing dockets and incredibly lean
essential to us as Oklahomans and Americans, staffs (including no law clerks). Ask our
maintaining our civil society based on justice lawyers, who encounter situations such as no
for all.
court reporters available for routine hearings.
OCBA President-Elect Angela Ailles Bahm Ask our litigants who, in some instances, wait
recently pointed me to a provocative white inordinate amounts of time to literally have
paper entitled The Economics of Justice, which their day in court. (On that note, I recently
was released by DRI – The Voice of the heard of an alleged legislative idea that would
Defense Bar. Before my plaintiff lawyer “fix” this last problem by requiring judges to
By Jim Webb
Judge Lisa Tipping Davis
was one of the recipients of
the 2014 Mona Salyer
Lambird Spotlight Awards
sponsored by the OBA
Women in Law Committee.
issue rulings within a specific number of days.
That’s akin to passing a law requiring me to
dunk a basketball. Believe me — I desperately
want to be able to dunk, but there are limits —
e.g., gravity and extremely limited athletic
ability – that make that pretty unlikely).
The DRI authors posit that even a little additional funding would go a long way and deliver manifold benefits to our economy. They
cite multiple researched reports from other
states that show economic losses in the hundreds of millions of dollars from inadequate
funding of the courts. Delays and other service-related repercussions from the “underfunding crisis” translate to increased litigation costs
for local businesses and lost opportunities for
further economic development, as businesses
quietly turn away from states with underperforming judicial systems.
Some surmise that technological advances
(e.g., electronic filing) can solve the funding
shortage by delivering efficiency gains. That
can help, but it cannot fix the problem. As the
DRI authors aptly note, “at the end of the day,
justice is a human process” —
“Cases need to be decided by judges, and
litigants, whether civil or criminal, deserve
to see justice first-hand. Simply put, our
system of justice and our courts depend on
public trust and confidence to function
effectively, and when justice becomes
remote or unavailable, that trust and confidence suffers greatly.”
The authors are not just negative nellies.
They encourage legislators “to restore funding
to the state justice systems by appropriating
funds at a level that not only allows courts to
meet their constitutional obligations, but also
enables economic growth.”
In my view, the issue of insufficient funding
of our court system in Oklahoma warrants serious consideration. I know this DRI paper made
me think. So, unless you are too busy starting
impeachment proceedings against me, I’d
encourage you to read it and decide for yourself. The paper can be found at
or by doing a web search for “DRI & economics of justice.”
As always, remember I have an open door
policy. I welcome your ideas on how we can
improve the OCBA. Please email me at
[email protected] or call me at 935-9594. I
pray each of you has safe and happy holidays! • November 2014 • BRIEFCASE 3
A Quote for the Day, and an Explanation
By Rex Travis
In 1906, San Francisco was hit by a devastating earthquake and resulting fire which
destroyed much of the city. One notable
exception, however, was a large whiskey
warehouse in the middle of the city which
belonged to the A.P. Hotaling Company, a
large liquor wholesaler.
When then (as often now) people suggested the calamity was punishment for San
Francisco’s many saloons, music halls and
brothels, Charles Kellog Field, a sometime
its limits and creating 5 meals for every dollar donated. “Every contribution to the
Harvest Food Drive is appreciated; even a
modest donation could provide much appreciated meals for those suffering hunger,”
added Beth Price, Harvest food Drive CoChair.
Each year, the YLD has met its goal of
donating at least $20,000 to the Regional
Food Bank to help feed Oklahomans. We
have set the same goal this year.
I certainly understand how often lawyers
and law firms are solicited for donations. As
such, I believe it is important to understand
how your donations are spent. The Regional
Food Bank will use your donations in one or
more of its countless hunger-relief
ÿ The School Pantry Program stocks the
pantry shelves of middle and high schools
newspaper man and author penned a bit of
doggerel: If as they say, God spanked the
town for being over-frisky, why did He
burn the churches down and spare
Hotaling’s whiskey.
Perhaps there is a pretty prosaic explanation for the anomaly. After the earthquake
and while the fire was developing, martial
law was declared. Hotaling, we now know,
made arrangements to have a U.S. Navy
crew run a large fire hose from San
Francisco Bay to the area around the warehouse and spray saltwater on the surround-
ing buildings.
The Army (actually, the California
National Guard) began to dynamite rows of
buildings to stop the fire. With these activities, it appears the fire swept past Hotaling’s
whiskey warehouse. One wonders if
Hotaling didn’t persuade the army that, if the
fire got into all the alcohol, there would be a
fire of biblical proportions, making saving
the warehouse a public safety measure. Or
were the soldiers and sailors simply preserving a resource important to them?
42 schools participating in the program by
allowing chronically hungry kids to take
home shelf-stable food.
ÿ The Food for Kids Backpack Program
serves 477 elementary schools in 53 counties across central and western Oklahoma
and provides chronically hungry children
with backpacks filled with non-perishable
food to eat on weekends and school holidays. In all, this program provides 15,000
backpacks to children each week.
ÿ The Father’s Business food pantry, a
Food Bank partner in Moore is also stocked
with food and other items as needed.
In addition to collecting donations, the
Regional Food Bank also provides several
fulfilling volunteer opportunities to assist
with tasks such as sorting and storing food.
Each year, the Regional Food Bank welcomes more than 44,000 volunteers who
contribute more than 137,000 hours of serv-
ice – saving the Regional Food Bank more
than $2.4 million in labor volunteers. The
YLD has also been a part of these volunteer
The YLD is proud of its efforts benefitting
the Regional Food Bank and believes our
efforts provide a positive reflection on the
Oklahoma County Bar Association as a
whole. We understand our goals are impossible to achieve without your help. If you
would like to donate to the YLD’s Harvest
Food Drive, please contact the Oklahoma
County Bar Association at (405) 236-8421.
The YLD is working hard to receive all
donations in by mid-November, but will
continue to accept donations through
December. To learn more about the
Oklahoma Regional Food Bank and volunteering opportunities, please visit their website at in order
to help.
to Picture Quiz from
October Briefcase issue
NOVEMBER 18, 2014
CLE Breakfast Seminar
“Too Many Mouths to Feed? A
Field Guide To Resolving
Medical Liens & Other
Subrogation Interests”
7:30 a.m., Bar Office
CLE Luncheon Seminar
“Lunch with the Domestic
(Family Law) Judges: What Are
They Really Thinking?”
12 Noon, Bar Office
NOVEMBER 27 & 28
Thanksgiving Holiday
Bar Office Closed
CLE Breakfast Seminar
“Practicing Law in a Civil World”
7:30 a.m., Bar Office
CLE Luncheon Seminar
“Real World Strategies for ACA
12 Noon, Bar Office
CLE Evening Seminar
“Expungements – Sealing the
Past for A Clear Future”
5:30 p.m., Bar Office
OCBA Holiday Reception
Robinson Renaissance Food
Court, 5-7 p.m.
1. Sid Musser
2. Murray Abowitz
CLE Breakfast Seminar
“Top Ten Things You Might Not
Know About Making a Record”
7:30 a.m., Bar Office
CLE Luncheon Seminar
“Courtroom Tactics: Dos &
12 Noon, Bar Office
3. Larry Ottaway
9. John Coyle
4. Larry Spears
10. Jon Hester
5. Judge Steve Friot
6. Judge Fred Doak
11. Joe Crosthwait 12. Joe Biscone
7. Judge Nancy Coats
13. Jim Kirk
8. Brooke Murphy
14. Jerry Durbin
CLE Evening Seminar
“UM Stacking…um…How Does
That Work Again (or Does it)?”
5:30 p.m., Bar Office
Oklahoma County Bar Auxiliary
Home of Leslie Blair, Holiday
Auction; 13213 Cedar Springs
Road, Oklahoma City
CLE Breakfast Seminar
“50 Hot Technology Tips in 50
7:30 a.m., Bar Office
15. Jack Dawson
16. George Corbyn
17. Gary Homsey
18. Gary Bachman
19. Eddie Goldman
20. Charlie Alden
4 BRIEFCASE • November 2014
And the Court Said
An Olio of Court Thinking
By Jim Croy
November 5, 1914
One Hundred Years Ago
[Excerpted from Armstrong v State, 1914
OK CR 138, 143 P. 870.]
This appeal is prosecuted from a judgment and sentence rendered on the 20th day
of November, 1912, in accordance with the
verdict of the jury, finding the defendant,
Grover Armstrong, guilty of manslaughter
in the first degree, and assessing his punishment at imprisonment in the penitentiary for
the term of four years.
Upon the trial it appeared: That the defendant, Grover Armstrong, at the time of the
commission of the homicide, was living at
the home of his brother, Ed Armstrong, in
the south central part of Texas county, about
30 miles from the town of Texhoma, and
about 40 miles from Guymon, the county
seat. The deceased, Elmer Pendergraft,
resided in the same community at a distance
of about one and one-half miles from the
Armstrong home. On the night of November
6, 1911, the defendant shot and killed Elmer
Pendergraft near the home of Ed Armstrong,
who was at that time on a visit with his
father and mother in Logan county. At the
time there were at the home of Ed
Armstrong his wife and their three children,
the eldest being a little girl about nine years
of age, and the defendant. The Armstrong
family lived in what is known as a half
dugout. The front entrance had two doors;
one a trap or drop door that lifted up with a
pulley arrangement, and one at the foot of
the steps that opened into the house proper.
That on Friday, November 3d, the defendant
left home and went to the town of Texhoma,
returning the next day. That upon his arrival
home Mrs. Armstrong told him that Elmer
Pendergraft had been there Friday night and
had raped her, and had threatened to kill the
whole family if she told any one. That Mrs.
Armstrong advised her husband by letter of
the outrage that had been committed on her.
That on the night of November 6th, about 9
o’clock, the deceased came to the
Armstrong home on horseback. When he
reached the dugout he made his presence
known by hallooing, and then opened the
outer door of the dugout. Mrs. Armstrong
recognized his voice, and told him to leave
or go away. The defendant picked up a double barrel shotgun, and, standing in the door
at the foot of the steps, asked the deceased
what he was doing there. The deceased
replied: “What! you here, you God damn
son of bitch, I will fix you.” As he said this
he threw up his arm. The defendant fired a
shot, and, stepping upon the steps, fired the
gun again. Mrs. Armstrong and her three little girls and the defendant climbed out of a
window and went to the home of a neighbor
and reported the shooting. The body of the
deceased was found the next morning near
the dugout. One load of shot had entered the
left breast, except two shot entering the left
forearm. Both wounds ranged upward.
From a careful examination of the record
the conclusion of the court is that the judgment in this case must be reversed. Of the 50
assignments of error we will notice only
those which in the new trial granted will be
liable to arise again. Several assignments of
error refer to the rulings of the trial court in
sustaining the objections to evidence offered
by the defendant. Mrs. Clara Armstrong, as
a witness for the defendant, testified to the
circumstances of the shooting. She was then
asked the following questions:
“I will ask you what, if any, circumstances
between yourself and Mr. Pendergraft happened on the night of November 3, 1911?
(Objection sustained.) Q. Did you see Elmer
Pendergraft on the night of November 3d at
your home? A. Yes, sir. Q. I will ask you if
on the night of November 3, 1911, the
deceased, Mr. Pendergraft, came to your
house, and by force and with a revolver ravished you? (Objection sustained.) Q. Did
you communicate the fact of this ravishment, if there was one, which has been
excluded by the court, to your brother-inlaw, the defendant? (Objection sustained.)
Q. Did you, at any time, tell Grover
Armstrong, in a conversation which you and
he had about the outrage that this deceased
had committed upon you on November 3,
1911? A. Yes, sir.
“Mr. Gleason: Object to the question as
incompetent, irrelevant, and immaterial and
no proper foundation laid, and ask that the
answer be stricken out.
“By the Court: Objection sustained, and
the jury will not regard the answer.”
Thereupon the court directed the jury to
retire, and the following offer of proof was
“Here the defendant offers to prove by the
witness, Mrs. Clara Armstrong, that on the
night of November 3d, previous to the homicide which is alleged in the information in
this case, that the deceased came to the
house of Mrs. Armstrong, who is a sister-inlaw of the defendant, and where the defendant resided, and was the only male person
residing at that place, and that the deceased
entered the house with a revolver while the
defendant was absent; that at the point of a
revolver, and with threats of the life of herself and her family and the life of this defendant should she ever tell it, he forced her to
allow him to have sexual intercourse with
her; that he ravished her, and that upon the
returning home of this defendant this witness, Clara Armstrong, communicated these
threats to this defendant; that the defendant
returned to his home, which was the home of
this witness and that of his brother, Saturday,
November 4th; that immediately upon his
return, which had been the first time she had
seen him since the said ravishment occurred,
she communicated these facts to the defendant in this case; that thereupon the defendant procured a shotgun and loaded it.
“By the Court: The objection to the offer
is sustained.”
The defendant as a witness in his own
behalf testified to the circumstances of the
shooting. The record is then as follows:
“Q. I will ask you to state to the jury what
was the occasion of you having your gun at
that time, and what did you shoot for? (The
state objects.)
“By the Court: You may answer that question, but in answering it you will not repeat
conversations you had with other persons
than the deceased.”
An exception was taken. The court directed the jury to retire, and the following offer
of proof was made:
“The defendant offers to prove that on the
night of the 3d day of November, 1911, that
the deceased came to the house of Ed
Armstrong, and there at that time forcibly
assaulted his wife and forced her, under a
threat with a gun, to have sexual intercourse
with him; that when the defendant came
home on Saturday evening Mrs. Armstrong
cried, and told him of the assault which had
been made upon her, and what she had been
forced to do in order to save the lives of herself and her children. The defendant further
offers to prove that, thinking and believing
that the deceased intended to carry out his
threat, he got a shotgun; that on Monday
night when the deceased did come back he
was warned to leave the premises by the
defendant; that he refused to do so, and
when the doors were opened to the place of
residence, which was a dugout, that the
deceased threatened then and there to fix or
impliedly to kill the whole outfit, as he had
formerly threatened to do to the wife of Ed
Armstrong if she told of his treachery. The
defendant further offers to prove by this witness that on Saturday afternoon, November
4, 1911, Mrs. Ed Armstrong communicated
to this defendant a certain threat made by the
deceased toward this defendant and herself,
in substance as follows: That if she (Mrs.
Armstrong) told of his (Pendergraft’s) having ravished her on the Friday night previous, that he (Pendergraft) would kill the
whole damn outfit. (The state objects.) By
the Court: The objections to the offer are
After cross-examination on redirect
examination, the defendant was asked the
following question:
“Q. You knew he had ravished your sisterin-law at that time, didn’t you? A. Yes, sir.
“By the County Attorney: Objected to as
incompetent, irrelevant, and immaterial, and
we don’t think it is proper to keep asking
these questions.
“By the Court: Objection sustained, and
the jury will not regard the answer, and
counsel will not pursue a course that I have
sustained objections to.”
After the state and the defendant had rested, the court took a recess to prepare the
instructions. Thereafter when court convened the court said:
“Gentlemen, in this case, after considering the matter, I have concluded that I ought
to permit the case to be reopened and the
defense to offer, or to prove, rather, any
threats that were made and communicated to
Mr. Armstrong.”
Thereupon the defendant was recalled as a
witness in his own behalf, and testified that
he left home on Friday about 11 o’clock, and
went to Texhoma, and returned Saturday
evening about 5 o’clock. His further testimony is as follows:
“Q. At that time did your sister-in-law
communicate to you anything that had been
said by the deceased in the way of a threat
against you or her or the family? (Objection
overruled.) A. She said that on the night
before —
“By Mr. Gleason: I think the witness
ought to be cautioned to confine himself to
what was said in the nature of threats.
“By the Court: You can prove any threats
that he made against him.
“By Mr. Wiley: Does the court hold that I
cannot prove any threats against the family,
which was immediately in his custody? We
have an express statute on it.
“By the Court: I know, but you will have
to come within the terms of that statute in
other respects. If you will limit that matter
simply to threats, you can go ahead; you
know what I don’t want to come in.
“A. Well, she said that he was there the
night before and threatened to kill her and
the whole family.
“By Mr. Wiley: If the court please at this
time we would insist on the other matter
which was ruled out, but I understand the
court has not changed his ruling on that matter.
“By the Court: Yes, that is correct; I have
not changed my mind on that.”
Mrs. Clara Armstrong, being recalled, testified as follows:
“Q. I will ask you, when Grover
Armstrong came home on Saturday
evening, whether or not you communicated
to him any threat that had been made by the
deceased? A. Yes, sir; I did. Q. What did you
tell him? A. I told him that he had been there
and ravished me, and threatened me under a
gun that he would take my life and all the
rest of us if I ever told it.
“By Mr. Gleason: I move that the witness’
testimony be stricken out as incompetent,
irrelevant, and immaterial, and hearsay, and
no foundation laid.
“By the Court: I will let the answer remain
in the record the way it is.”
The question is: Was the evidence offered
and excluded by the court competent and
admissible as an element of the defense?
The Attorney General does not defend the
rulings of the court, but contends that, if
there had been any previous errors committed by the trial court in this regard, the same
were cured by the admission of this testimony when the court reopened the case.
We think that the evidence offered was
competent and admissible, and that its
exclusion by the court constituted reversible
error, and we cannot agree with the contention that the error in the exclusion of such
evidence was cured by the testimony admitted after the case had been reopened. The
right of a man to defend his domicile against
every unlawful invasion and to defend himself and those within it against every and all
violence without the necessity of retreat,
even to the extent of taking life, if it be actually or apparently necessary to do so in order
to prevent the commission of a felony thereon or therein, has been clearly defined by the
A man in his own habitation may resist
force with force, and repel the entrance
against his will of one who in a violent manner attempts to enter for the manifest purpose of assaulting or offering violence to
him or to inmates under his protecting care,
even to the extent of taking life, if it be actually or apparently necessary to do so in order
to prevent such unlawful entrance.
The evidence excluded was competent
and admissible for the purpose of showing
that the defendant had reasonable ground of
apprehension of imminent personal injury,
not only to himself, but to those within his
habitation, and evidence that the deceased
See OLIO, PAGE 14 • November 2014 • BRIEFCASE 5
Stump Roscoe
By Roscoe X. Pound
I need to offer a brief apology. Last issue I
mouthed off about a Jersey guy not getting
on the Briefcase’s contributing editors list. It
was pointed out to me that someone Jersey
born and bred was in fact listed. Let me just
say that his status as being “from here” anymore is in question or perhaps even in doubt
given the infrequent nature of his visits. I
mean, it looks like Ebola is gonna put in an
appearance in the Garden State before he
does. And I have it on good authority his own
sister agrees. And while we’re on that subject, would it kill him to wish her a Happy
Birthday somewhere in the vicinity of the
date of her birth? Just saying.
Oh, and by the way, I want to give a shout
out to Hudson County’s own favorite son in
Oklahoma, Eddie Goldman. Congratulations
on that Community Service award. You do
us proud.
Dear Roscoe: An elderly client fell for a
mortgage rescue scam. The bad guys got her
to sign title over, refinanced the property,
leaving her with the new mortgage and no
title. The trial court vacated the deed but the
lender held BFP status and foreclosure proceeded. That issue’s not what I’m writing
about. Another client owns a few houses
around town. I persuaded him to let her rent
one at an affordable rate, subject to approval
for Section 8. I had barely begun that process
when the owner called off the deal. He said
that the HOA bylaws prohibited subsidized
leases. What the hell? C.G., OKC, OK
Dear D.M.: What the hell puts it mildly.
I’d add a “Holy Shelley v. Kraemer,
Batman” too. I’d want to see the actual
bylaws and CC&R’s. I’d be shocked, but not
surprised, to find such overt language. Still,
it’s not unprecedented. Many HOA’s, neighborhoods, and even entire towns have taken
steps to thwart residents from moving up out
of poverty to better neighborhoods. While it’s
not the same in appearance as those voided
in Shelley v. Kraemer, the effect is the same.
With the well of available housing diminishing, struggling families and individuals must
move laterally in the same impoverished
neighborhoods the Section 8 program
intended to help them escape. Since the
Section 8 program depends upon participation by private sector landlords, refusal of
homeowners to participate poses a real
stumbling block. Then I’d check and see if
your homeowner/client has the balls to take
a stand. In many instances, it is not the threat
of overt legal consequences so much as the
threat of social ostracism or petty punitive
action enforcing the HOA’s line.
An example is a federal case, Williams v.
City of Antioch, CA. According to the allegations, neighborhood associations and
realtors convinced the City to discourage
rentals to Section 8 recipients. Once the
households were identified, the police
department would place a door hanger identifying the home. The occupants then found
themselves the subject of en masse surveillance. For example, a neighbor would complain about a noise violation. This prompted
not only a police response, but also code
enforcement, child welfare, and the health
department. The bulk of the victims were single parent, Black and Latino families. The
case settled, but not before a federal judge
found the evidence persuasive and compelling in pre-trial motions.
Federal courts seem to agree that HOA’s
are subject to Fair Housing Act compliance.
Block v. Frischholz, 587 F.3d 771 (7th Cir
2009); Housing Opportunities Project for
Excellence, Inc. v. Key Colony No. 4
Condominium Assoc., 510 F.Supp. 2d 1003.
Most authorities agree this includes dissuading members from committing neighbor-onneighbor harassment based upon protected
class status. Also, out there in The Heartland,
restrictive covenants are not favored.
Jackson v. Williams, 1985 OK 103, 714 P.2d
1017. The bad news, of course is that “poor
old ladies” do not, as a rule, constitute a suspect class. Hopefully there’s some more to
this question that meets the eye. HOA’s can
be a very good thing. At their nadir, however,
they become feudalism by committee.
Dear Roscoe: My firm is considering hiring a retired newspaper reporter to create a
series of blogs regarding our practice areas.
An associate piped up that might be unethical and a robust discussion ensued.
Unfortunately, no consensus. What do you
think? T.H., OKC
Dear E.G.: I think it depends on how it’s
done. For example, will lawyers be the primary authors? If so, and the reporter is just
doing a bit of editorial tweaking, you’re
probably OK, particularly if his/her input is
disclosed. Otherwise, you might have problems. 1) Rule 7.1 prohibits false, deceptive,
or misleading advertisement. The Comments
make clear that the rule applies to all communications. 2) Rule 8.4 also prohibits misrepresentation and attempts to circumvent
the Rules. 3) We have the potential issue of
unauthorized practice of law.
Do ghost-written blogs constitute misrepresentation or deception? The potential is
definitely there. Maybe it suggests a degree
of articulateness or currency on the law than
the nominal attorney author actually possesses. Maybe the research is done without
the standards of care normally ascribed to
lawyers. Maybe a potential client or referral
source will make their selection based upon
this artificial scholarship. No court or bar
association opinions yet, but, in this day and
age it certainly requires some attention and
Oh, and a personal note to Mickey
Homsey: Enjoyed your blog. Why no entries
for 2 years?
Claude Blum continued until almost dawn.
He told of his survival and liberation from
the camp; his effort to build a life and livelihood; and his pursuit of Joseph Stockel and
the purloined films. He It appears that
Stockel fell into the orbit of Drancy commandant Alois Bruner, and managed to stay
under the radar. Like his patron, Stockel
evaded capture despite a number of close
shaves and is now presumed dead. However,
Stockel had a son: Ernst Stockel. Kicked out
of Germany for Neo-Nazi agitation, he
kicked around Europe and South America
for a number of years, managing to earn himself PNG status in almost every country he
touched down in. In the 1960s he turned up
in Idaho and began organizing white
supremacist cells. Ultimately, a federal
grand jury indicted him for conspiracy and of
weapons charges. He fled to South Africa.
Times changed but Stockel didn’t. Stockel
agitated for a post-apartheid “White
Renaissance.” This culminated in a shoot-out
with police and another flight. To this day,
Stockel broadcasts a hate-based series of fulminations from an off-shore station currently
located in the territorial waters of Brunei.
Reputedly, he also owns an island in Croatia
and a haven of last resort in Western Sahara.
This brings us to Martin Stockel. It
remains an open question as to whether he’s
a grandson or, as he claims, a grand-nephew
of Joseph. He’s placed a “Rev.” behind his
name, and bills himself as the “Presbyter
General” of the “Church of St. Michael’s of
the Lily,” the hate factory Chips spoke of
back at the hospital. According to Blum, the
Church maintains a P.O. Box in Idaho, but he
believes Stockel spends most of his time in a
swank office over in The City.
CLE Luncheon Seminar
“Courtroom Etiquette & Decorum
in Oklahoma County – A Judge’s
12 Noon, Bar Office
CLE Evening Seminar
“Practical Tips for Handling
Insurance Bad Faith Cases”
5:30 p.m., Bar Office
DECEMBER 25 & 26
Christmas Holidays
Bar Office Closed
CLE Breakfast Seminar
“The Updated Laws on Same Sex
Marriage; How It Affects
Oklahoma Employer/Employees”
7:30 a.m., Bar Office
CLE Luncheon Seminar
“Provisional Waivers – a Path to
Citizenship for Some undocumented Aliens”
12 Noon, Bar Office
CLE Evening Seminar
“Procrastination – Why You Do It
& What to Do About It”
5:30 p.m., Bar Office
FEBRUARY 7-15, 2015
Aspen Ski Seminar
Aspen, Colorado
MARCH 27-29, 2015
Bench & Bar Conference 2015
Quartz Mountain Resort
JUNE 15, 2015
Annual OCBA Golf Tournament
Gaillardia Golf & Country Club
6 BRIEFCASE • November 2014
iBar Definitive Playlists
By Guest Columnists Adam and Bridget Childers*
The holiday season is upon us. How do we know? Because the first of the Christmas commercials are already trickling onto the airwaves. Yes, the vanguard of commercialism has
arrived and it will only worsen with each passing day.
But, let’s not dwell on the handful of shopping weekends that stand between you and your
gift-giving. Rather, our focus is on Thanksgiving that beckons to us like the fragrance of
hand-carved turkey and delicious pumpkin pie. Specifically, we wish to give thanks to those
artists and songs which have inspired us, sustained us and just made us smile.
Do you need a guitar riff or beat to pump you up to take on the world? We give thanks for
Eye of the Tiger by Survivor. Sure, it’s cheesy, but don’t act like when you are alone in your
car and it comes on you don’t crank it up to 11 and picture yourself giving a knockout blow
to all of your foes.
Are you looking for a song that reminds you that there is still good in the world? We give
thanks for Louis Armstrong’s venerable classic What a Wonderful World which reminds us
at every listen of the beauty of the world around us and the strength of the human spirit.
Are you in need of a smile to crease that mug of yours? We give thanks for You Can Call
Me Al by Paul Simon. No matter how many times we watch the video, when Paul Simon
and Chevy Chase switch roles and croon and cavort to this 1986 hit, our lips begin to twitch
until a full-blown grin erupts.
Those are just a few songs for which we give thanks. Now let’s see what tunes for which
this month’s iBar participants are currently thankful.
Stasha McBride Martin
Stasha McBride Martin practices exclusively in family law and domestic litigation. She
graduated from the University of Oklahoma College of Law in 2003, and entered private
practice in 2007 with her brother, Michael McBride.
Stasha’s musical influences began through her father, Dave, and his love of classic country and gospel music. Her mother, Roxie, instilled a love of musical theatre. During her college years at Oklahoma State University, Stasha grew to love Red Dirt and classic rock.
Stasha and her husband, Jason, live in Choctaw with their children, Caroline and Grayson.
She and her family frequently bond over music, whether dancing in the living room or
singing karaoke at Lake Tenkiller.
Stasha’s Playlist
Become a
Enroll Now for
Spring 2015 Classes!
American Bar Association Approved
Saturday Classes
For more information, contact
[email protected] or (405) 325-1726.
Department of Legal Assistant Education
University of Oklahoma
Law Center
Song Title
Sweet Caroline
Never Been to Spain
Sweet Baby James
Take it Easy
I Believe in Love
Me and Bobby McGee
I Gotta Feeling
Neil Diamond
Three Dog Night
James Taylor
Don Williams
Janis Joplin
Black Eyed Peas (guilty pleasure)
Allen Hutson
Allen Hutson is a 4th year associate at Crowe and Dunlevy and is a member of the firm’s
Labor and Employment section. Allen graduated from OCU’s law school in 2010. Before
that, he attended his beloved Oklahoma State University where he graduated with a degree
in Agribusiness.
Before Allen joined the Orange Power Nation, he grew up in Marlow, Oklahoma.
Growing up on a farm taught Allen the value of hard work and appreciation for the land. It
is also where Allen fell in love with Country and Western music. As Allen puts it, he will put
up with “new stuff,” but it is Country’s original roots which get his foot tapping.
Allen and his wife Tera are the proud parents of son Rann, and a little sister for Rann is
on her way next year. Sporting cowboy boots and an easy smile on his face, Allen has a cowboy spirit that is contagious.
Allen’s Playlist
Song Title
The Blues Man
Seven Spanish Angels
Mama Tried
Amarillo by Morning
Much too Young
No Scrubs
Hank Williams Jr.
Willie Nelson and Ray Charles
Merle Haggard
George Strait
Garth Brooks
TLC (guilty pleasure)
*Chris Deason and Judge Don Deason are busy working full time and campaigning.
Bridget and Adam Childers, and Judge Allen Welch and Cindy Welch will be filling in as
guest columnists. Enjoy! • November 2014 • BRIEFCASE 7
Book Review
By Geary Walke
Oklahoma’s Most
Notorious Cases:
Machine Gun Kelly Kidnapping,
US vs. David Hall, Girl Scout
Murders, Karen Silkwood, Sirloin
Stockade Murders, OKC Bombing
Author: Kent Frates
(The RoadRunner Press, hardcover, First
Edition, 2014) 382 pages, $19.31
An Oklahoma County lawyer, Kent
Frates, has written another book. This
book will be of interest to people everywhere, but especially in Oklahoma. And,
of course, lawyers in Oklahoma will enjoy
the book because of its focus on legally
significant events and court cases.
I’ve lived through all the events except
for the Machine Gun Kelly case. I recall
reading the newspaper accounts of the rest
of these crimes, investigations, prosecutions, trials and all the events surrounding
them. It was obvious at the time that each
case was going to become historic as the
events and news unfolded. However, the
years have not been kind to my memory of
the cases, and reading this well-researched
and well written book brought back the
real details and true significance of each
Years ago I had a conversation with
Old News
Judge Robert Berry when he
was a bankruptcy judge. We
stood outside the very federal courtroom in the old Post
Office building where
Machine Gun Kelly was
tried. Remarkably, the trial
was only about three short
months after the kidnaping
of oil magnate, Charles
Urschel. Judge Berry was
a law student in the fall of
1933 and worked for the
city of Oklahoma City.
Every day during the
trial he would find his
way over to the courtroom and when he
could get into the
courtroom he watched
history unfold.
Frates’ book brings
this piece of history
to life, as well as the
cases and all of the
characters are still full and vibrant
today. I especially noted with interest that
the kidnaping victim was allowed to be
part of the group of law enforcement who
made the arrest.
The rest of the stories of notorious cases
are worth reading and studying by lawyers
and non-lawyers alike. The Sirloin
Stockade killings, the Girl Scout murders,
the Karen Silkwood case, the prosecution
of Governor David Hall and the 1995
Excerpts from OCBA News:
June, 1973, Part 1
Abortion and the Law
Oklahoma City bombing case. Lawyers in
these cases are still around, and still practice, and are well known for their trial
skills. This book provides a great opportunity to see the big picture of each story and
how the stories and the lawyers became a
permanent part of the history of our great
In June, the OCBA will feature a speaker
uniquely qualified to discuss one of the most
dramatic and controversial issues of our time.
Sarah Ragle Weddington is the attorney who
successfully argued against the constitutionality
of the Texas abortion statute before the United
States Supreme Court in the landmark case of
Jane Roe, et al vs. Henry Wade. She will discuss
the legal implications of abortion during the
noon luncheon to be held in the Ballroom of the
Skirvin, on June 28, 1973. Oklahoma attorneys
(including those lawyers who are state legislators) should find this discussion of immediate
value and interest.
Ms. Weddington is a 1967 graduate of the
University of Texas School of Law. She has
served as an assistant City Attorney for the City
of Fort Worth, Texas, an assistant reporter to the
Committee of the American Bar Association
and a partner in the law firm of Weddington &
Weddington in Austin, Texas. Ms. Weddington
is the first woman elected from Travis County to
the Texas House of Representatives. She serves
on the Appropriations, Insurance, and Criminal
Jurisprudence committees of the House. Ms.
Weddington is active in numerous womens’
organization and population control groups. She
serves on the Editorial Advisory Board of the
Family Planning/Population Reporter and is a
member of the Zero Population Growth.
8 BRIEFCASE • November 2014
Profiles in Professionalism
The Honorable Jerry D. Bass
By Shanda McKenney
The venerable jurist, Jerry D. Bass, is retiring at the end of this year following 19 years of
service to the Oklahoma County bench. Well,
“venerable” might be stretching it a bit, but he
has made some notable contributions during
his stay, will be a main character in numerous
war stories for years to come and will be
missed by many. Judge Bass was born in an
undisclosed year in Indiana, but moved to
Midwest City when he was 3 years old and
graduated high school as a Bomber. He managed to cram a four-year Bachelor’s Degree
into a mere five years and graduated from
Oklahoma State University in the mid ‘70s as
an official Political Scientist. Noting that there
were no classified ads seeking the services of
his chosen profession, he opted for the life of a
ski bum and spent the year after college in Vail,
Colorado, where he shared a one-bedroom
apartment with several other under-employed
college graduates.
The life of a ski bum does not pay well and
when his limited budget eventually became
non-existent, he decided to get a real job with
Porsche-Audi, where he worked for the next 9
years, first as a salesman, then as General Sales
Manager. For 9 years he drove new Porsches
and did not pay for a car, gas, insurance or
maintenance. Following this experience, he
landed a job with Prudential-Bache Securities
as an account representative and spent time on
Wall Street, where he was named “Rookie of
the Year” and finished 7th nationally. He also
had the dubious distinction of experiencing
Black Monday unfold, in person, on October
19, 1987.
During his last year of college, Judge Bass
sat for the LSAT twice, never quite confident
enough in his score to actually apply for law
school. After three years in the financial and
securities market, he decided that really was
not his calling in life, so he took the LSAT
again, applied for and was subsequently admitted to OCU law school. During school, Judge
Bass initially interned for Oklahoma County
Public Defender, Robert Ravitz, for free, until a
senior attorney learned he was not getting paid
and suggested to Ravitz that some compensation of the intern might be due. He thereafter
earned the handsome sum of $5.00 per hour (or
possibly less) during the remainder of that
internship. Judge Bass also interned for former
Judge Tom Cornish after he left the Court of
Criminal Appeals and before he was appointed
Judge Jerry Bass was honored with the Ada Lois
Sipuel Fisher Diversity Award as a Member of the
Judiciary at the OBA Diversity Conference on
October 18.
to the U.S. Bankruptcy Court.
Judge Bass began working as a card-carrying, fully licensed attorney in the Oklahoma
County Public Defender’s Office in 1991. He
viewed Judge Virgil “Chuck” Black (ret.) as his
mentor and it was Judge Black who asked him
if he had ever thought about becoming a judge,
“because you would make a good one.” Judge
Bass responded by pointing out to Judge Black
that it was not customary to hire Public
Defenders as judges in Oklahoma County, so
the two of them set out to change that tradition.
After applying to be a Special Judge three separate times, Judge Bass was finally hired for
that position. He and Judge Vicki Robertson
(ret.) were both sworn in on April Fools’ Day
1996, and he was then assigned to the Family
Court docket on the first floor.
Judge Bass enjoyed the Family docket
because he got to learn new law and met a new
group of attorneys he had never worked with
before. Although his experience with stocks
and securities served him well in dividing up
marital assets, he often fretted that the family
law litigants were too short-sighted about how
the divorce process was affecting their children. Judge Black once told him that the difference between family court and criminal court
was that on the first floor you saw good people
at their very worst and on the criminal docket
you saw bad people acting their very best.
Judge Bass believes that still holds true today.
In 1998 he ran for a newly-created at-large
District Judge seat, the one he currently holds,
with his primary opponent being his fellow
special judge, David Harbour. Judge Bass carried 92 percent of the Oklahoma County
precincts and was sworn in as a District Judge
in January, 1999. He has served as a criminal
law judge since that time, with his office and
courtroom directly across the hall from his
Mentor, Judge Black.
Judge Bass and Judge Black were a notorious and nearly inseparable twosome who could
always be counted on for a good laugh or at the
very least, lively conversation. For some time,
even after smoking inside the courthouse was
officially banned, Judges Black and Bass could
still be counted on to have a cloud of smoke
hovering at their end of the 8th floor hallway
and there was never a shortage of the “Old
Guard” criminal defense bar and District
Attorneys congregating in and around their
offices. As a young Public Defender, I took
advantage of these daily gatherings and learned
more about how the criminal law system functioned in the Judges’ chambers than I did in the
As a young Public Defender, I appeared
before Judge Bass numerous times and was
often the subject of his good-natured and wellintentioned hazing, a tradition which he assures
me continues to this day. As a law student
intern, nothing makes your heart beat faster
than being stopped in the hallway by a District
Judge who demands to see your Legal Intern’s
License. If no license can be produced then the
trap is sprung: “How did you get downtown
today?” which is usually answered with “a
car.” “Well, you don’t drive a car without your
driver’s license and you don’t practice law
without your intern’s license,” he says in the
sternest voice he can muster. Then he starts to
grin and the jig is up, but not without causing a
minor heart attack in his unsuspecting victim.
Judge Bass has no immediate plans to “take
it easy” in his retirement. He is discussing the
possibility of teaching an Applied Evidence
class and will teach a course on legal externships at Oklahoma City University School of
Law. He also plans on utilizing a friends’ house
in Cozumel, Mexico as often as possible so he
can exercise his open water SCUBA certification. He has also elected to remain on “active
retired” status with the courts so he can continue to handle the Re-merge docket, which is a
deferred prosecution program designed to
assist female offenders, who are also mothers,
in getting their lives together and getting back
on their feet.
Judge Bass will miss many aspects of his
current job, including the opportunity to teach
young men going through the RID program
about the debt their forefathers paid to provide
them with opportunity in this country. He will
also miss the many other attorneys who have
darkened his door over the years for either serious or light-hearted discussions, the opportunity to mentor young attorneys and perhaps most
of all, his long-suffering Court Reporter, April
During his career as a criminal defense attorney and then District Judge, there are many
cases that stick out in Judge Bass’s mind, most
of which were rape or murder trials. As an
Assistant Public Defender, he recalls one memorable courtroom confrontation with District
Attorney Bob Macy that nearly turned physical
and as a judge, he watched a pro se criminal
defendant — who spent fifteen years on death
row before being freed on DNA evidence —
get himself a “not guilty” verdict in a rape case.
He remembers one defendant who, while sitting on death row, managed to put out a “hit”
on an attorney and surviving victim in a murder
case and another murder defendant who was an
avowed white supremacist but was spared the
death penalty by the only African-American on
his jury.
Judge Bass says the best compliment he ever
received during his time on the bench was also
one of the simplest. The legendary Barry
Albert, well-known for his stern but largerthan-life presence, tried his last murder case in
front of Judge Bass. After his client was convicted and everyone was headed home, Mr.
Albert came back to the Judge’s chambers and
said, “Judge, you gave my client a fair trial.”
The cases Judge Bass has handled are almost
too innumerable to mention and the stories
resulting from those cases are legion. By the
time he ends the current fall trial term, he will
have tried 293 jury trials, 70 of which were
Judge Bass’s last day on the bench will be
December 22, 2014, which is a Revocation
docket. His last “official” day on the job is
December 31, 2014 and he can likely be
tracked down in or near his office for one more
“hard time” before permanently exiting the
building that afternoon.
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210 Park Avenue, Suite 220
Oklahoma City, OK 73102
Call ahead for reserved parking.
We are always open at • November 2014 • BRIEFCASE 9
October 23 In-House Counsel Reception
Brian Matula & Ben Harris
Coree Stevenson & Lindsey Kansby
Sarah Glick & Tsinena Thompson
Todd Blasdel & Jim Webb
Bridget Thedorff & Maggie Robertson
Linda McGuire & Fred Gipson
Will Jordan & Stephen Gary
10 BRIEFCASE • November 2014
Judicial Candidate Forum
Judge Tom Prince
Judge Roger Stuart
Jarrod Stevenson
Judge Don Deason
Judge Don Andrews
Joel Porter
President Jim Webb moderated the forum.
K. Williams
Attorneys Run
for OBA
Mack Martin
Garvin Isaacs • November 2014 • BRIEFCASE 11
Bar Observer
Crowe & Dunlevy Attorney
Crowe & Dunlevy attorney Cori H. Loomis
was recently honored as one of the 2014 “Fifty
Making a Difference” in Oklahoma by The
Journal Record newspaper. The distinction is
presented as part of the newspaper’s Woman of
the Year program, which honors female business and community leaders in the state.
Loomis is a member of the firm’s
Healthcare Transaction & Litigation practice
group. Her primary focus includes representing healthcare providers with transactional,
compliance, reimbursement, legislative and
regulatory compliance issues.
“We’re very proud of Cori and the work she
does to benefit our community,” said Kevin
Gordon, president of Crowe & Dunlevy.
“She’s an active volunteer with several organizations, as well as an outstanding attorney,
and we thank The Journal Record for recognizing her talents.”
Loomis is involved in charitable and civic
activities by serving as a board member of
Community Health Charities and Prevent
Blindness. She also served as a member of the
Church of the Servant Administrative Council
from 2009-2013. She volunteers and participates in activities and fundraisers for Crossings
Christian Schools where her three sons attend
and was appointed to the Crossings Christian
School Parent Teacher Fellowship Board for a
term from September 2011 through August
2012. Additionally, she is a member of the
United Way Women’s Leadership Society.
She is consistently ranked by Best Lawyers
in America and Chambers USA in the field of
healthcare law and received a Leadership in
Law award from The Journal Record in 2010.
She was accepted to the Oklahoma Bar
Association Leadership Academy in 2011 and
was selected by Gov. Mary Fallin to the
Oklahoma Board of Nursing for a term started
in November 2011.
Durbin, Larimore & Bialick
Names Christian as New Partner
Durbin, Larimore & Bialick, P.C., (DLB) is
pleased to announce Jennifer Christian as the
firm’s newest partner. Since beginning her
legal career at DLB in 2007, Christian has concentrated her practice on all aspects of commercial law, assisting clients in a wide range of
transactional matters as well as litigation
involving contractual disputes, insurance coverage and employment-related matters.
She is admitted to practice in all state and
federal courts in Oklahoma and the Tenth
Circuit Court of Appeals. She has been recognized as an Oklahoma Rising Star by Super
Lawyers each year since 2011 for her achievements in the practice of law and is a member of
Leadership Oklahoma City’s LOYAL Class
An Oklahoma native, Christian’s educational background includes a Bachelor of Arts in
Letters from the University of Oklahoma and a
Juris Doctorate summa cum laude from the
Oklahoma City University School of Law.
Newest Court
Will Silvia, Casey Whetten Join
McAfee & Taft
McAfee & Taft, the state’s largest law firm,
has announced the addition of associates
William T. Silvia in its Tulsa office and Casey
M. Whetten in its Oklahoma City office.
Will Silvia is a corporate attorney whose
practice encompasses a broad range of business and commercial matters, including contract negotiations, mergers and acquisitions,
divestitures, securities, corporate financing,
real estate transactions, and energy industry
Silvia graduated with highest honors from
the University of Tulsa College of Law, where
he served as articles research editor of the
Tulsa Law Review, was named to the Order of
the Curule Chair, and served as a law student
ambassador for the university and as a judicial
intern for the Honorable Carlos Chappelle of
the Tulsa County District Court.
Casey Whetten is an intellectual property
lawyer whose practice encompasses working
Carmelita Reeder Shinn was sworn into the
office of United States Court Clerk for the
Western District of Oklahoma on October 29.
with clients to protect and defend their rights to
valuable intellectual property assets, including
patents, trademarks, copyrights, licensing
agreements, and trade secrets. He also counSee BAR OBSERVER, PAGE 13
Oklahoma University College of Law News
Russian Delegation Visits the
University of Oklahoma
College of Law
The University of Oklahoma College of
Law together with Judge Stephen Friot,
United States District Court for the Western
District of Oklahoma, hosted six Russian
lawyers who specialize in criminal law on
Monday as part of the Open World Program.
A diverse group of faculty from the College
of Law and the College of Arts and Sciences
participated in the day long program. This is
an U.S. exchange program designed to
establish professional relationships between
up-and-coming leaders of post-Soviet countries and Americans dedicated to showcasing U.S. values and democratic institutions.
The theme of the program was jury trials.
“OU Law is committed to expanding the
global reach of its education,” said Brian
McCall, Associate Dean for Academic
“By hosting the Russian
Delegation, we were able to bring another
part of the international legal system to our
students, faculty, and the wider university. It
was also an incredible opportunity for us to
present an important aspect of our legal system to Russian legal professionals who are
working to shape the nature of jury trials in
the Russian system.”
The Russian Delegation started their day
with breakfast in the Sneed Lounge followed by a tour of the College of Law. They
participated in a Fireside Chat with Former
Dean Andrew Coats regarding American
Jury Trials. Over lunch, the visiting attorneys gave a presentation on Russian Laws
on Jury Trials to OU Law students and faculty. A variety of other sessions focused on
topics such as jury trial training in American
legal education and the historical development of jury trials in the Western legal tradition.
Two University of Oklahoma
College of Law Professors
Receive Prestigious Award
from the American College of
Employee Benefits Counsel
University of Oklahoma College of Law
professors Jonathan Forman and Donald
Bogan were inducted as Fellows of the
American College of Employee Benefits
Counsel. This prestigious honor recognizes
them for their significant contributions to the
advancement of the employee benefits field.
“As one of the nation’s premier public law
schools, we strive to attract and retain the
nation’s top faculty,” OU Law Dean Joseph
Harroz, Jr. said. “Professor Forman and
Professor Bogans’ years of dedication to the
field of employment benefits law make them
very deserving of this award. We are privileged to have them as part of the OU Law
The Board of Governors of the College
presented this prestigious award at it 2014
Annual Meeting in Washington, D.C. on
Saturday, October 25th.
“Your election to the College reflects a
careful judgment by prominent employee
benefits practitioners that you meet demanding criteria, emphasizing both excellence in
the quality of practice and serious contribu-
tions to the public’s understanding and
appreciation of employee benefits law. Your
record of notable achievement and dedication reflects the type of activities that the
College was created to honor,” said ACEBC
President James R. Raborn.
Professor Forman is the Alfred P. Murrah
Professor of Law at the University of
Oklahoma, where he teaches courses on tax
and pension law. Professor Forman recently
served in Washington, DC, as the Professor
in Residence for the Internal Revenue
Service Office of Chief Counsel for the
2009-2010 academic year, and he was a
member of the Board of Trustees of the
Oklahoma Public Employees Retirement
System (OPERS) from 2003 through 2011.
Professor Forman is also active in the
American Bar Association, the American
College of Tax Counsel, the Association of
American Law Professors, and the National
Academy of Social Insurance. Professor
Forman has lectured around the world, testified before Congress, and served on numerous federal and state advisory committees.
Professor Forman has more than 300 publications including Making America Work
(Urban Institute Press 2006). In addition to
his many scholarly publications, Professor
Forman has published op-eds in Barron’s,
the Los Angeles Times, the Dallas Morning
News, the Cleveland Plain Dealer, the
Washington Times, the Daily Oklahoman,
and numerous other newspapers and magazines. Professor Forman earned his law
degree from the University of Michigan in
1978, and he has Master’s degrees in economics and psychology. Also, prior to enter-
ing academia, it was his privilege to serve in
all three branches of the federal government,
including as Tax Counsel to the late Senator
Daniel Patrick Moynihan (D-NY).
Professor Bogan is the Thomas P. Hester
Presidential Professor at the University of
Oklahoma and Professor of Law. Professor
Bogan joined the faculty at the College of
Law in 2000, following a year as a Visiting
Professor. He was appointed Director of
Clinical Education at OU in 2001 and served
as Clinic Director through 2006. Professor
Bogan teaches Health Law, Alternate
Dispute Resolution, and various practical
skills course. Additionally, Professor Bogan
teaches Law & Medicine at the University
of Oklahoma College of Medicine.
Professor Bogan practiced law in
Greensboro, NC for 15 years, specializing in
consumer litigation, with an emphasis on
health law, ERISA, and insurance law
issues. While in private practice, Bogan participated in the work of the North Carolina
Academy of Trial Lawyers, and he remains
active in various professional organizations.
Professor Bogan has written numerous
articles on various ERISA issues, with particular focus on ERISA’s preemption of state
Additionally, Professor Bogan has contributed to the ABA Section of Labor and
Employment Law ERISA treatise,
Employee Benefits Law (Lewis, Rumeld,
LeBeau, eds., 3d ed. 2009).
Professor Bogan earned his undergraduate
degree from Brown University in 1974 and
his J.D. from the Wake Forest University
School of Law in 1979.
12 BRIEFCASE • November 2014
Work Life Balance
A Test on Which You
Want to Score Zero!
year olds.
By Warren E. Jones
And this: the 75-84 year old with zero
Cardiologists use the level of coronary
had a HIGHER event free survival
artery calcium (CAC) as a tool to assist them
99 percent of them) than the 45-54
in identifying risks for heart attacks. The
group with CAC scores of
higher the level, the greater
greater than 100.
the risks. Generally, but not
While your (and my)
always, levels of CAC
for heart attacks genincrease as we age. For
increases with age,
example, more than eighty
CHD risk
percent of forty five year
old men and women in one
age group attenuates
study had no coronary cal(lessens) significantly for
cium while only approxiall age groups (at zero
mately two percent of men
and women seventy five
Having a CAC score of
and older did.
than 100... in the
The October issue of The
grants to
Mayo Clinic Proceedings
contains a fascinating
study identifying risks of
Warren Jones
heart attacks among men
and women in four different age groups, 45- with a zero CAC. Same, though, for the 75
54, 55-64, 65-74, and 75-84. The 6,000 peo- year group. The 55-64 and the 65-74 have
ple studied were free of heart disease at the “ONLY” a fivefold increase. I’m not saying
beginning of the study. Their level of CAC a five percent higher risk or a fifty percent
was measured at the beginning of the study. greater risk. It’s five times, a 500 percent
greater risk.
They were followed for almost nine years.
So, what do we learn from the study?
As you would probably expect, there was
of age, the absence of CAC
a greater rate of heart attacks (during the
CHD event free survival.
nine year follow up) among the older subAnd:
is a higher risk of CHD
jects vs the younger, and there was a greater
age, this risk is signifrate among those with elevated CAC vs
lessened with
those with none. Much
scores. And:
greater: 1.8 (per 1000
with a
person years) among
have a
those with no CAC vs
21.3 among those with
coronary artery calcium
with no CAC. And: men
greater than 100.
and women 75-84 with
All of the age groups
zero CAC have as good
had SOME elevated
survival odds as those
CAC. Being young was
45-54 who have zero
not protective. The lanCAC.
So, if you’re young
researchers: when the
or even 35-44)
heart attacks were stratand
CAC is greater
ified by CAC group
and especialacross age groups, the
greater than
trend of increasing
CHD (coronary heart
disease) event rate with
increasing CAC group persisted.
The elevated risks were almost identical And those of you who are already 55 or 65
between the young and the old. That is, or 75 with CAC scores above 100, you are,
being youthful (relatively speaking... 45 vs because of your age, especially at risk, so go
75) was of no help in the presence of CAC. see your cardiologist!
Finally, you don’t have a CAC score? A
And how did the old with no CAC fare
score is not, of course, the only cardiagainst the young burdened with the presology
tool, but based on how telling this
ence of CAC? A CAC score of zero in the
I highly recommend that you get
75-84 year old group was associated with a
LOWER incidence of heart attacks than
CAC scores among the 45-54 age group of
1-100 as well as, of course, scores of greater
than 100.
Warren E. Jones, JD, HFS, CSCS, CEQ, is an
What did the CAC scores tell us about American College of Sports Medicine (ACSM)
mortality during the nine year follow up, i.e., Health Fitness Specialist, a National Strength
not just heart attacks, but death as a result? and Conditioning Association Certified Strength
and Conditioning Specialist, and a holder of an
Almost 100 percent of the subjects with zero ACSM Certificate of Enhanced Qualification.
CAC were still alive after the follow up... His clients range from competitive athletes to the
among ALL age groups. That is, almost all morbidly obese. He can be reached at
of the 45 year olds, and almost all of the 75 [email protected] or at 405-812-7612. • November 2014 • BRIEFCASE 13
We have all had trying cases and trying
clients. For each one of us, there is always a
case or two that weighs heavily on the mind
and perhaps even the heart. We are called
counselors for a reason: we practice social
work as much as we practice the law. I have
listened to clients and their families break
down in tears as they describe the situation
that brought them to me. Due to life experiences and education, I am able to sympathize, empathize and strategize. There are
times when it seems overwhelming. How
can I help this person? Fortunately,
Oklahoma County offers a great many
resources: other attorneys with experience.
When I am faced with a tough issue in a
case, I turn to my fellow lawyers, who in
turn, offer their help. I am thankful for such
As I pass through our halls of justice, I
take note. This is my home as an attorney.
This is my family. I love seeing friends in
the elevator, catching up in the courtroom,
sharing a smile in the hallway. I never feel
alone in my pursuit of justice. Each and
every person help the cogs of the courthouse
turn: Cleo never fails to offer a smile and
words of encouragement; the Sherriff’s
deputies are quick to assist and a pleasure to
work with; the staff at the court clerk’s office
are incredibly helpful and always do so with
a smile; Rick, with his crew of trustees,
never fails to say hello and keep our courthouse beautiful; Sheri, who runs the jail elevator, is always cheerful and kind; the
judges’ clerks and bailiffs keep the dockets
running and do so graciously; the court
reporters who have to hear us drone on and
on, are a true pleasure to work
with; the law library staff
who help us in so
many ways and in
such a pleasant
manner; the staff
of the District
Attorney’s Office
and the staff of the
Public Defender’s
Office are incredibly helpful, patient
and lovely. There are
truly so many incredible
people who work at the courthouse that I am thankful for. I am also thankful for the ones who have graced our courtrooms who are no longer with us. Their
memories are ingrained in the space and
their legacies continue to inspire.
They are missed, but
never forgotten.
Take a moment
and reflect; allow
yourself some
time to be
thankful for
what you have
in this profession. Take the
thank the people
who helped you get
where you are today as well
as the ones who continue to help you day in
and day out.
New Associates Join
GableGotwals OKC Office
for the state of Vermont. Upon returning to
Oklahoma in 1981, he joined Watson and
McKenzie, a firm specializing in oil and gas
law with an emphasis on litigation and regulatory compliance. Clients included the nation’s
leading exploration and production companies, in addition to interstate and regional
McKenzie is a member of many professional organizations, including the Oklahoma Bar
Association’s Evidence Code Committee,
Litigation Section and Mineral Law Section.
He frequently lectures on oil and gas matters
before various legal symposiums and state bar
associations. He was also a member and
gubernatorial appointee to the advisory board
of the Economic Development Generating
Excellence Fund. The board was responsible
for investing state funds in innovative
research and technology programs suitable for
commercial application.
Active in the community, McKenzie
devotes his time participating as a volunteer,
officer or director of various church, fraternal
and civic organizations. He mentors at-risk
youth and formerly acted as sponsor and
patron of a local youth in residence at Father
Edward Flanagan’s nonprofit group home,
Boys Town. This spring, he will begin training
to become a surgical usher at the University of
Oklahoma Medical Center Children’s
award on behalf of all of the clients and attorneys I have worked with over the years.”
Echo-Hawk accepted the President’s Award
in San Diego, Calif., at the 64th IAOHRA
conference. The association was founded in
1949 and has provided leadership in the development and enforcement of statutes to safeguard civil and human rights. Membership
consists of 160 human rights agencies in the
United States and Canada, as well as individual practitioners of human and civil rights protection and Americans of goodwill.
sels clients on issues involving software and
computer law, Internet law, and advertising
Whetten graduated cum laude with a bachelor’s degree in mechanical engineering from
Utah State University in 2011 and went on to
graduate with honors from the University of
Oklahoma College of Law in 2014. While in
law school, he served as an articles editor of
the American Indian Law Review, worked as
an intellectual property research assistant for
the College of Law, and served as a legal
intern for the University of Oklahoma’s Office
of Technology Development.
McAfee & Taft is one of the nation’s 250
largest law firms as ranked by the National
Law Journal and serves clients locally, nationally and internationally in the areas of aviation, business law, corporate and securities,
employee benefits, entertainment law, environmental law, healthcare, intellectual property, labor and employment, litigation, oil and
gas, real estate and tax and family wealth. The
firm employs nearly 350 Oklahomans, including 180 attorneys, and has offices in both
Oklahoma City and Tulsa.
The University of Oklahoma
Law Center Opens Enrollment
for Spring Paralegal Program
The University of Oklahoma Department of
Legal Assistant Education is gearing up for its
spring program. The enrollment deadline for
new students is January 12.
The two-year program is designed to prepare students for careers in law firms as well
as private, corporate and government lawrelated businesses. It teaches the skills necessary to perform a variety of law-related tasks,
including legal research and drafting legal
Classes are offered primarily on Saturdays
in order to allow students to continue working
while studying for their certificate which is
approved by the American Bar Association.
If you are interested in finding out more, the
Department of Legal Assistant Education is
hosting a FREE Legal Assistant Seminar
Saturday, January 10 from 9:00 am to 11:30
am. It will be held at The University of
Oklahoma Law Center located at 300
Timberdell Road in Norman.
For more information or an application, call
(405) 325-1726 or visit edu/lae.
Joshua Merrill and Michael Lambert
join GableGotwals as new Associates with
GableGotwals law firm. Merrill’s primary
focus will be on transactional law in the
Tulsa office, while Lambert will focus his
practice on litigation in both state and federal courts in the Oklahoma City Office. A
University of Oklahoma School of Law
graduate, Merrill served as a summer associate at GableGotwals. Lambert, who graduated from the Oklahoma City University
School of Law, worked for the Oklahoma
Supreme Court as a judicial extern and
served as a summer associate at
Crowe & Dunlevy Adds
Crowe & Dunlevy recently announced
Greg McKenzie has joined the firm as of
counsel in the Energy & Natural Resources
and Environmental practice groups in the
firm’s Oklahoma City office. Throughout his
career, McKenzie’s trial activities have been
devoted almost exclusively to complex oil and
gas disputes.
“Greg’s four decades of experience and
expertise in litigation of oil and gas disputes is
well known in the industry, and we are proud
to have him join our growing team of energy
and environmental attorneys,” said John
Griffin, chair of the Energy & Natural
Resources practice group. “This addition continues our tradition of providing outstanding
counsel to our clients in Oklahoma and across
the nation.”
Prior to joining Crowe & Dunlevy,
McKenzie worked at his own firm practicing
oil and gas litigation and arbitration. He often
served as an arbitrator in commercial disputes
on matters involving oil and gas contracts,
refinery and offshore construction, commercial property development, distribution or
franchise agreements, acquisition and divestiture disputes and sundry torts.
An Oklahoma City native, McKenzie graduated from the University of Oklahoma with a
Bachelor of Arts in 1969. He went on to attend
George Washington University, where he
received his Juris Doctor in 1972. McKenzie
gained legal experience working as the deputy
defender general and deputy attorney general
Crowe & Dunlevy Attorney
Receives Award
The International Association of Official
Human Rights Agencies (IAOHRA) recently
presented Crowe & Dunlevy attorney Walter
Echo-Hawk with the President’s Award for
his commitment to human rights.
Echo-Hawk is a member of Crowe &
Dunlevy’s Indian Law & Gaming practice
group, which provides legal representation for
American Indian tribes in Oklahoma. He has
been a human rights attorney since 1973 and
devoted most of his legal career at the Native
American Rights Fund (1973-2009) and at
Crowe & Dunlevy to protecting American
Indians’ human rights, which include rights to
culture, self-determination, religious freedom,
land and natural resources.
“I am honored to receive this recognition,”
Echo-Hawk said. “However, I was only one of
many legal foot-soldiers in the tribal sovereignty movement during the modern era of
federal American Indian law. I accept this
Firm Adds Intellectual Property
Paralegal Elaine Haack
Elaine Haack, a career legal professional
with more than 15 years of experience, has
joined McAfee & Taft as a paralegal for the
firm’s Intellectual Property Group, where her
responsibilities include preparing and filing
U.S. and foreign patent applications, trademark applications, patent and trademark
responses, renewals, and copyright applications; handling maintenance fee payments for
U.S. patents and annuities for foreign patents
and applications; coordinating and preparing
documents for intellectual property litigation
in both federal court and the U.S. Patent and
Trademark Office; and handling research
projects relating to all aspects of intellectual
property law.
Haack holds an associate’s degree in legal
assistant education from Rose State College.
Since 2001, she has served as an adjunct professor for the University of Oklahoma Legal
Assistant Program, where she currently teaches classes on Legal Analysis and Investigation
and Discovery and serves on the Program’s
board of directors. Haack is an active member
of the National Association of Legal
Assistants and Central Oklahoma Association
of Legal Assistants, and has previously served
in a number of leadership positions with
McAfee & Taft is one of the nation’s 250
largest law firms as ranked by the National
Law Journal and serves clients in the areas of
aviation, business law, corporate and securities, employee benefits, entertainment law,
environmental law, healthcare, intellectual
property, labor and employment, litigation, oil
and gas, real estate and tax and family wealth.
The firm employs 350 Oklahomans, including
180 attorneys, and has offices in Oklahoma
City and Tulsa.
14 BRIEFCASE • November 2014
OLIO from PAGE 4
had a few nights before invaded the defendant’s home, armed with a deadly weapon,
and had committed a felonious assault upon
an inmate, would tend to the conclusion that
the defendant, when he fired the fatal shot,
knew, or had reason to believe, that the
killing was necessary, not only to defend
himself against loss of life or great bodily
harm, but also to prevent an unlawful
entrance into his habitation, and thereby
defend those within it against loss of life or
some great personal injury, and for this reason the evidence offered should have been
admitted, and the exclusion of the same
must have necessarily operated to deprive
the defendant of a fair determination regarding his guilt or innocence.
November 21, 1939
Seventy-Five Years Ago
[Excerpted from In re Bledsoe, 1939 OK
506, 97 P.2d 556.]
William Alberty Bledsoe has filed his
application for admission to the bar of this
state. It is his contention that he is entitled to
a license to engage in the practice of law
without the necessity of a written examination to determine his qualifications, which
contention is predicated upon the provisions
of section 4, art. 1, c. 22, Session Laws
1939, which act became effective on July
28, 1939. Section 4 provides as follows.
“Any graduate of any ‘Grade A’ law
school as recognized by the Association of
American Law Schools, Nation Association
of Law Schools, or the American Bar
Association, or by the Supreme Court of the
State of Oklahoma, shall be admitted to the
practice of law in the State of Oklahoma,
without examination upon motion, by the
Supreme Court of the State of Oklahoma,
upon presenting to such court a diploma of
such graduation and evidence of good moral
character; ‘Grade A’ law school as used in
this act shall mean and include any school
which is a member of the Association of
American Law Schools, National
Association of Law Schools, or the
American Bar Association, or by the
Supreme Court of the State of Oklahoma;
any applicant for admission, under the terms
of this section, shall pay the same fee
required of other applicants for admission.”
Under the provisions of said section, the
applicant, a graduate of the Tulsa Law
School, would be entitled to admission to
the bar upon motion without examination.
The question presented here is whether or
not the provisions of said act contravene any
provision of the Constitution.
The argument of the applicant is presented under the following proposition: “The
Constitution of Oklahoma does not deprive
the Legislature of the right to prescribe qualifications for the admission of lawyers to
engage in the practice of law in this state,
and there being no prohibition in the
Constitution, the Legislature has a right to
prescribe the qualifications.”
There is no provision of the Constitution
which specifically fixes the authority for
determining the qualifications for admission
to the bar in either the legislative or the judicial branch of the government. The only
applicable provision of the Constitution is
section 1, art. 4, which is as follows:
“The powers of the government of the
State of Oklahoma shall be divided into
three separate departments: The Legislative,
Executive and Judicial; and except as provided in this Constitution, the Legislative,
Executive and Judicial Departments of government shall be separate and distinct, and
neither shall exercise the powers properly
belonging to either of the others.”
It appears that a constitutional provision
similar to our own relating to the division of
powers is found in the Constitutions of most
of the states, and said provisions have been
before the courts on numerous occasions in
connection with the problem here presented.
The Legislature is not without authority to
prescribe qualifications for admission to the
practice of law. Neither is such authority
without limitation.
An example of a proper exercise of the
legislative power in this regard is the State
Bar Act, chapter 264, Session Laws 1929,
which was a comprehensive act creating a
State Bar and prescribing the duties and
functions thereof. It is noted that the offices
and duties designated by that act were merely to aid the court in the matter of admissions to the bar and in the imposition of disciplinary measures. The act did not purport
to invade the province of the court in exercising the ultimate right to determine the
qualifications of those who should be admitted to the practice of law. The constitutionality of that act was upheld in the case of State
Bar of Oklahoma v. McGee, 148 Okla. 219,
298 P. 580.
In the recent case of In re Integration of
the Oklahoma State Bar (decided October
10, 1939) 185 Okla. 505, 95 P.2d 113, it was
pointed out that the practice of law and the
determination of when the right to practice
has ceased are so intimately connected and
bound up with the exercise of judicial power
in the administration of justice that the right
to define and regulate is inherent to the judicial department and belongs to the Supreme
Court; that the term “inherent power of the
judiciary” means that power which is essential to the existence of the dignity and functions of the judiciary.
In the light of the authorities to which we
have referred, which clearly represent the
overwhelming weight of authority, the
above-quoted legislative act cannot stand.
Insofar as section 4 of the act is concerned,
the same does not purport to set out minimum qualifications, but instead fixes a maximum qualification and removes from the
court the power to determine whether or not
a certain group or class of persons possess
qualifications which entitle them to admission to the bar. The act of the Legislature has
the effect of attempting to qualify certain
persons for admission to the bar, which is in
excess of the legislative power.
October 21, 1964
Fifty Years Ago
[Excerpted from Hargrove v. State, 1964
OK CR 105, 396 P.2d 675.]
This is an attempted appeal by Jackie Ray
Hargrove and the United Benefit Fire
Insurance Company of Omaha, Nebraska, as
plaintiffs in error, from an order of the district court of Stephens County, Oklahoma,
overruling plaintiffs’ motion to set aside
order of said court forfeiting an appearance
bond. The case was filed in this Court on
March 20, 1964, and we have not had the
benefit of briefs.
On October 23, 1962 an information was
filed in the district court of Stephens County,
charging the plaintiff in error Jackie Ray
Hargrove with the crime of burglary in the
second degree. On the same day an appearance bond in the sum of $3000 was executed by the said Jackie Ray Hargrove and the
United Benefit Insurance Company of
Omaha, Nebraska, and the bond was
approved by the court clerk on that date.
The record before us shows that on
February 15, 1963 the case was called for
arraignment, the defendant failed to appear,
and the bond was forfeited. On June 28,
1963, practically four and a half months
later, the defendant appeared with his surety
and filed a motion to set aside the bond forfeiture. The record contains a minute showing that the motion to set aside the bond forfeiture was passed by agreement on July 12,
August 9, and September 16, 1963, and the
motion was denied on September 20, 1963,
after a hearing and testimony heard.
While the Court of Criminal Appeals has
exclusive jurisdiction in all criminal cases
appealed (20 O.S.A. § 40 [20-40]), this case
is not a criminal case. The judgment which
the plaintiffs in error seek to appeal from
was not an adjudication of guilt, but was an
adjudication that the principal had breached
the conditions of his bond, i.e., incurred a
civil liability, and that he and his surety were
liable to the State of Oklahoma in the sum
written in the bond. Judgment in the criminal case had not been entered. The order
appealed from merely fixed a civil liability
against the accused as principal, and his
surety. This appeal is not in any proper sense
a criminal case of which the Court of
Criminal Appeals has jurisdiction, but is a
civil proceeding, properly appealable to the
Supreme Court. Dunn v. State, 65 Okl. 233,
166 P. 193.
The attempted appeal is dismissed.
November 14, 1989
Twenty-Five Years Ago
[Excerpted from Silman v. Whistler, 1989
OK CIV APP 94, 790 P.2d 1125.]
James B. Silman (Appellee) was the personal physician for Nina Naomi Leach,
Deceased, (Naomi) for many years. From
time to time, Naomi sold real estate to
Appellee. As pertinent here, they entered
into a Purchase Agreement (the Agreement)
on April 22, 1983, in which Appellee was
given an option to purchase 90 acres of land
for $4000.00 per acre. After Naomi’s death,
Appellee brought a lawsuit for specific performance of the option provision of the
Appellant cross-petitioned for rescission
and cancellation of the Agreement due to
undue influence; for damages in lieu of
rescission and cancellation; for conversion;
and for economic injury from Appellee’s
wilful violation of the medical standard of
care. Appellant amended the cross-petition
to plead, in the alternative, the negligent violation of the medical standard of care.
The trial court sua sponte entered an order
that Appellant’s claims at the pre-trial proceedings would not support a cause of action
for medical malpractice, but would support a
claim for undue influence. The court struck
the matter from the trial assignment and rendered a judgment for Appellee on the claim
for medical malpractice. Appellant filed a
motion to vacate the judgment, which was
granted. However, in the same order, the
court directed Appellee to file a motion for
summary judgment “without delay”.
Appellee filed a motion for summary judgment, which the court granted in his favor. In
the order, the court found that the evidence
and claims of Appellant would not support a
recovery in an action for malpractice, which
was the only ground for recovery urged.
On appeal, Appellant contends: (1) the
evidence supports his claim that Appellee’s
conduct violated the medical standard of
care; (2) a recovery based on undue influence is not the exclusive remedy where a
physician has exerted undue influence over
his patient and also violated the medical
standard of care; and (3) whether or not
Appellee violated the applicable medical
standard of care should not have been determined by summary judgment.
Appellee contends this action is barred by
the two-year statute of limitations under 76
O.S. 1981 § 18 . However, this issue was not
addressed in the order which is on appeal,
and we will not consider it further.
Appellant contends that Appellee’s medical care of Naomi within the doctor-patient
relationship was intertwined with his
involvement in her financial affairs over
several years. Appellant refers to the deposition of Appellee in which he testified that
approximately $25,000.00 to $30,000.00
worth of house calls were made after the
first purchases of real estate from Naomi.
Appellant also refers to evidence which suggests that Naomi had no resistance to
Appellee when she talked to Appellee and
that she was afraid that Appellee would not
properly treat her if she did not go along
with him.
Appellant’s position is that if there is evidence that Appellee breached his medical
standard of care, he has committed medical
malpractice. Appellant’s expert witnesses
testified that the medical standard of care
was violated in this case because the patient
care was inextricably linked to the patient
dealings and because a patient under these
circumstances would be unable to separate
delivery of medical care from the business
Appellant cites McCarroll v. Reed, 679
P.2d 851 (Okl.App. 1983), for the proposition that a breach of fiduciary duty between
patient and physician can be the basis for a
medical malpractice action and an award of
punitive damages. In McCarroll v. Reed the
Court said: “It is elementary that the elements of this tort include a duty, its breach,
and injury caused by the breach.” In the
above case, a patient became addicted to
drugs sold to him by his physician over an
extended period of time. Thus, there was an
injury which resulted from the medical care
of the patient by the physician. However, in
the instant case, the only injury to Naomi for
which Appellant seeks recovery is the loss
of her assets through business dealings with
Appellee. Although it is claimed that these
business affairs were intertwined with
Appellee’s medical care of Naomi, there
was no allegation or evidence of a medical
injury to her. Appellant has not stated a
claim for medical malpractice. The alleged
breach of Appellee’s medical standard of
care (without a resulting medical injury) is
not enough for recovery under a claim of
medical malpractice.
A physician-patient relationship, out of
which a medical malpractice action could
arise, encompasses the treatment of disease,
injury or deformity through medical treatment, as stated in 59 O.S.Supp. 1987 § 492 .
It does not encompass business transactions
which result in a claim based on undue influence. This Court is advised such a claim
(involving undue influence) was settled by
these parties. We cannot extend the injuries
for which a patient may recover in a medical
malpractice case to include monetary damages resulting from a contractual arrangement. Summary judgment was properly
granted. • November 2014 • BRIEFCASE 15
Book Notes
By Bill Gorden
China’s Second Continent:
How a Million Migrants Are
Building a New Empire in
Howard W. French, Alfred A. Knopf, 2014,
Hardback, 285 pages.
What one thinks about this book and its title
depends on how one views the idea of empire.
The estimated population of Africa today is
1.111 Billion. Consequently, the immigration
into the continent of one thousandth of the
population does not seem to be that big of a
deal. This is especially true given the land
mass of the African continent. However, the
Europeans probably did not even come close
to this percentage, though, and they controlled
the resources and a lot of the culture of Africa
in their Nineteenth and early Twentieth century run. As unsettling as the prospect of China
I suggested we all get some sleep and then
regroup. Blum would remain at Crenshaw’s
for the time being, and I’d send someone
over to relieve him so that Junior could grab
some “z’s” as well. Knowing him, he’d grab
any sack time he could on-site. From what
I’d seen and observed about Sylvia, I couldn’t blame him for wanting to stay close.
Ernie and I left. I could already detect
some lightening to the east. If we timed our
trip back to Secaucus right, we might catch a
acquiring control of Africa may be, we must
see if French can show us that this immigration is as meaningful as that of the West.
The answer in this work seems to indicate
the negative. French starts by talking with and
about Chinese individuals who have migrated
to Africa on their own, with little or no help
from the Chinese government. They left to
better their lives in a harsh environment where
there is not as much competition as there is at
home. They do not receive government help in
this adventure, and though most of the interviewees have risen quickly in their endeavors,
there is little connection with “home”. This
does not bespeak empire. While there are
records of cultural domination of one people
by another in history, say, certainly after the
Vikings, there is scant evidence of this kind of
bloodless conquest.
What, then, of the Chinese government
sponsored projects, from roads to stadiums to
food processing plants? These were profiled in
Charm Offensive, by Joshua Kurlantzick,
reviewed some time ago in these pages. The
book under review here, looked at closely,
actually seems to undercut the idea of the
advancement of Chinese aims by these methods. The Chinese build stadiums and such, but
they use Chinese crews, concrete, and steel.
Time and again in these pages French tells us
that the Africans are held down to the most
menial jobs, because the Chinese look down
on them as being lazy and incompetent, from
the get-go. These are surely echoes of the
European colonization, which in the end was
superficial. The African nations get to keep the
hardware, but the notion of how to run the
water plant returns to China with the engineers
and overseers. There is animosity between the
parties, scarcely buried beneath a make-nice
surface. This does not bespeak empire either.
The book is repetitive till the 7th or 8th
chapter, when the non-individual immigration
begins to be discussed. It is reasonably interesting on a personal basis, but the real story is
unveiled late in the book. There is in fact a lot
to learn here, but it is that one should not lay
awake at night worrying about a Chinese overwhelming of Africa anytime soon.
pretty good glimpse of sunrise over the skyline. I doubt watching dawn come up figured
very highly on Ernie’s to do list just now.
Really wasn’t that prominent on mind as
well. Claude Blum gave us both an earful
and a mindful digest. Ernie stayed silent as
we crossed the Bergen County line back into
Hudson. About them he asked, “Your old
man fight in the war Roscoe?”
“World War II? No. My dad was born in
“Mine fought with the Third Army.
Liberated one or two camps. Was in some
hellacious battles. When he came back, he
had these nightmares. I wasn’t born yet right
after the war, of course, but my mom told me
about them. And once in a while, he’d still
have them when I was growing up. And he
didn’t talk to me about them, but my mom
and my uncles all said the nightmares didn’t
come from the battles, they came from what
he found at the camps.”
I nodded, not knowing what to say.
Ernie continued, “I’m gonna learn these
guys how much of bitch payback really is.”
2012, 2013, 2014
16 BRIEFCASE • November 2014

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