We don’t want to bring up bad memories ofyour civil procedure class in law school, but thismonth we look at two cases on jurisdiction.Both examine how modern developments affectthe courts’ power over things and people.

State v. Western Union Financial ServicesWhile they have jurisdiction over transac-

tions with an Arizona component, Arizonacourts do not have jurisdiction over electronicfunds transfers to Mexico that originate in otherstates. So ruled the Arizona Supreme Court inState v. Western Union Financial Services, No.CV-08-0241-PR (Ariz. May 19, 2009).

Smugglers based in Mexico often bringimmigrants into the US through Arizona. Oncehere, the smugglers often detain the immi-grants, forcing family members, friends, orprospective employers to wire money to Mexico

to obtain their release. Similarly, drugs smug-gled into the country also often come throughArizona, and money transfers are used to wirethe proceeds of the sales.

To combat these crimes, the ArizonaAttorney General’s Office had taken to usingthe forfeiture laws, seizing certain WesternUnion wire transfers sent to or from Arizona.After this operation proved successful, the crim-inals adapted to the situation, resulting in fewerwire transfers from Arizona and an increase inwire transfers from other states to Mexico.

So, the Attorney General’s Office obtained awarrant to capture funds that were wired fromthe other states. It did not identify any specificconnection to any illegal Arizona activity. The

The Maricopa County Bar Foundationlast month handed out just over $60,000–$23,000 more than last year–in grants to 13organizations that provide legal-related assis-tance to the public. The increase in 2009was made possible by a gift from the estateof Alice M. Turner.

Turner died in 2008 at the age of 98. Shewas born in Cairo, N.Y., and was a residentof Phoenix for 60 years. Turner was ateacher in Cairo and had several businessesin Phoenix. The funds granted to MCBFwere restricted to youth and teen servicesand this year’s recipients of those funds aremarked with an asterisk in the list on page 9.

“We are very grateful that the foundationwas remembered by the Turner Estate,” saidFoundation Grants Chair Patricia Nolan. “Itmade it possible for us to fund several addi-tional worthwhile programs this year, andthere are still funds from the estate that wewill be able to award in future years.

“We also really appreciate the many mem-bers of MCBA who give to the Foundation bydonating when they pay their annual associa-

JULY 2009Volume 28, Number 7

Arizona Courts Grapple withNew Age Jurisdictional Questions

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6 See Over $60,000 in Foundation GrantsHelp Local Non-Profits Fill Legal Needs page 9

See Arizona Courts Grapple with New AgeJurisdictional Questions page 14

See Two New Member Benefits Add to Membership Value page 11

Don’t pass up a chance to nominatea deserving attorney or judge for theMaricopa County Hall of Fame. TheHall was started last year with 36 dis-tinguished inductees, but the Hall ofFame Committee is well aware thatmany deserving individuals were notnominated.

The Committee is counting onmembers of the legal community tobring the best and brightest to theirattention. Nominees should have prac-ticed for at least 10 years and madesignificant or unique contributions tothe profession, the law, and/or thecommunity. Find complete details anda nomination form on page 13 in thisissue.

The form may also be downloadedas a pdf at the MCBA website atwww.maricopabar.org, or nominatorsmay use an electronic form. ■

Reminder: Hall ofFame Deadline Coming Up Aug. 7

INSIDE…■ Q&A on New E-mail

Requirements–p. 3

■ A Fond Farewell to ArizonaSupreme Court Chief JusticeRuth V. McGregor–p. 7

■ Nominees Sought for Mesa, VLP Boards–p. 10

Two New MemberBenefits Add toMembership Value

Two new corporate partners have part-nered with MCBA to add even more valueto membership: NxLegal PaymentProcessing and Vision Care Direct.

Since the Arizona Supreme Court adopt-ed amendments to Supreme Court Rules 42and 43, effective in January, attorneys maynow accept credit cards for most transac-tions. (See box on page 11 for details).

NxLegal is the only payment solutiondesigned by lawyers for lawyers. It offerslawyers and law firms the opportunity tomake numerous payment options availableto its clients–credit card processing, elec-tronic check processing, ACH transactions,recurring and installment transactions andmore.

As an MCBA member, you receive free

FoundationGrantsCommittee Chair Pat Nolan presents acheck for$10,000 to BethHaugen of theYMCA for theorganization’sTeen CourtProgram. TheYMCA programwas one ofthree youth andteen servicesprogramsawarded grantsfrom a gift bythe estate ofAlice M. Turner.Another recipi-ent of a grantmade possibleby the Turnerestate wasArizonans forChildren, Inc.;turn to page 8to learn moreabout theorganization.

Over $60,000 in Foundation GrantsHelp Local Non-Profits Fill Legal Needs

Today, most everyone knows someonewho has needed a lawyer’s assistance at sometime, some place. And now, the impacts ofthe current economic crisis, including bank-ruptcy, foreclosure, and other financial hard-ships, are rampant. The people impactedoften have no idea where they can turn forhelp. These people also do not know whothey can put their faith in, or who they canentrust with their problem.

For those that qualify, pro bono represen-tation through the Volunteer LawyersProgram or other low income program is theanswer. But for those who do not qualify forthis assistance, is there another answer?

Fortunately, yes. Many people every dayseek and obtain assistance from the LawyerReferral Service operated by the MaricopaCounty Bar Association.

Most of us are familiar with the tradition-al role that a lawyer referral service plays.Lawyers apply to serve on a panel, assistingpeople with questions regarding one aspectof the law. These panels of lawyers weredeveloped by the Lawyer Referral Service toconsult with people who are able to pay a

modest fee ($35 for a standard consultation,and no fee is charged for personal injury orworkers compensation matters), but do notknow how to find a lawyer, or do not knowwhat services they need.

This relationship also serves as a way forour member attorneys to reach out toprospective clients to offer their services, andthese consultations frequently result in theattorney agreeing to represent the person inthe particular legal matter.

Our panel, which is a part of theAmerican Bar Association’s network of refer-ral organizations, includes hundreds of quali-fied and talented attorneys in good standingwith the State Bar, experienced to handle alltypes of legal matters. Personal injury, bank-ruptcy, construction defect, consumer rights,divorce, estate planning … these are only afew of the areas the Lawyer Referral Servicepanel attorneys are experienced in.

To review a full listing of these practiceareas, log on to www.maricopabar.org andclick on the Lawyer Referral Service link.And chances are that if you do not see thearea of law your referral requires, our talent-ed Lawyer Referral Service staff will be ableto get you connected with the right attorney.

With the current state of the economy,and the collateral damage such an economycan cause to those impacted by it, the pub-lic’s need for skilled lawyers to assist in navi-gating these times is at a critical point. TheMCBA’s members can do several things topromote the Lawyer Referral Service andhelp serve the public.

First, remember that the Lawyer ReferralService is a resource to refer individuals tothat we cannot assist ourselves. Whether youhave a conflict, do not practice in the partic-ular area of law, or otherwise cannot assist anindividual with his or her legal problem,please provide that individual with theLawyer Referral Service contact information.

Second, the Lawyer Referral Servicecontinues to need skilled and talentedlawyers—lawyers like you—to meet theneeds of all the people in our communitywho have legal concerns. If you are notalready a member of the Lawyer ReferralService panel and can join the panel, pleasecontact us and our staff will be glad toassist you in joining. If you practice in anarea that the Lawyer Referral Service doesnot already offer, please let us know that aswell and we will make sure the informationis added to our database.

The Lawyer Referral Service helps every-one involved with the program—a true“win-win” situation. You can help people inour community. You can introduce yourselfto prospective clients. And, the nominal feespayable to Lawyer Referral Service supportthe MCBA, and go toward marketing andpromoting Lawyer Referral Service.

Thank you for your support of theLawyer Referral Service, and your contin-ued support of the MCBA and all of itsprograms. ■

2 • JULY 2009 MARICOPA LAWYER

2001 N. 3rd Street, Suite 204Phoenix, AZ 85004

(602) 257-4200 Fax: (602) 682-8601www.maricopabar.org

E-mail: maricopalawyer@maricopabar.org© 2009 Maricopa County Bar Association

Maricopa Lawyer is published monthly by the MaricopaCounty Bar Association.

Contributions of articles and letters to the editor are encouraged. All materials must be submitted by the firstMonday of the month to be considered for the next issue.

All submissions may be edited for content, length and style.

The MCBA does not necessarily endorse the viewsexpressed by contributors and advertisers.

Editorial BoardChair: Aaron Nashnasha@cosc.maricopa.govMembers: Karen Arra, Cindy Bennett, Brian Cieniawski, JoanDalton, Tamara Herrera, Jack Levine, Daniel P. Schaack, StanWatts and Mark A. Winsor

PublisherAllen W. Kimbrough

Editor-in-ChiefIsolde Davidson

Managing EditorAndrew Masayestewa

Advertising, Editorial Submissions(602) 257-4200 Fax: (602) 682-8601maricopalawyer@maricopabar.org

Finding a Good Lawyer throughthe Lawyer Referral Service

By Jack Levine

The State Bar needs to revisit the issue oflawyer’s advertising for personal injury cases.

Since the inception of large scale personalinjury advertising, jury verdicts in favor ofinjured people have suffered a marked decline.As a result of the combination of lawyer adver-tising and a hugely successful effort by the insur-ance industry and the business community toconvince the public that jury verdicts are out ofcontrol and that personal injury claimants arefaking or exaggerating their claims, there hasbeen a near total collapse of the tort system dueto a poisoning of the jury pool.

As a result, there have not been more than ahandful of successful plaintiff ’s verdicts inMaricopa County courtrooms in more than 15years. The success of this public relations blitzwould not have been possible if lawyer advertis-ing had not already pre-conditioned the publicto distrust lawyers and tort victims.

It is not too late to reverse this distressingtrend. In fact, the experiences of the last 25 yearsof personal injury advertising, with its accompa-nying decline in the public’s respect for lawyers,may have been necessary in order to demon-strate that there are some values that are worthpreserving even at the expense of some infringe-ment to commercial speech. Certainly, publicrespect for the legal profession and preservationof our tort system, which holds individuals andcorporations responsible for their wrongdoing,would be high on this list.

Based on their last expression on this subject,a majority of the justices on the U.S. SupremeCourt at that time (Rehnquist, O’Connor,

Scalia, Thomas, and Breyer), would havebanned personal injury advertising if sufficientevidence were presented demonstrating thatsuch advertising was harmful to the public orwas impairing the public’s confidence in thelegal profession. In Florida Bar v. Went For It,515 U.S. 618 (1995).

Instead of providing information throughmedia advertising for selecting a lawyer, suchinformation can just as readily be made availableon a registry maintained by the State Bar, withthe names of lawyers willing to handle personalinjury cases continually rotated so that everyoneon the registry has an opportunity to be selected.Since it was the State Bar that played such amajor role in initiating the current advertisingnightmare that began with Bates v. State Bar ofArizona, it would be appropriate for it to takethe initiative to end it.

A study should be commissioned, withoutdelay, to determine the extent to which the pub-lic’s attitudes towards tort victims and the legalprofession has been poisoned by personal injurylawyer advertising and the effect that such adver-tising has had on the tort system and the imageof our profession.

It’s time to speak out: The time for action onthe issues of personal injury advertising is longoverdue. Call, e-mail or write to our State Barboard of governors. There are very few issuesthat are more important to our profession andto the public than this one. ■

Jack Levine is a sole practitioner in the areas ofpersonal injury, family law, employment law andcriminal law.

OPINIONPoint: It’s Time to Speak Out

Counterpoint: The Public’sInterest in Lawyer AdvertisingBy Van O’Steen

If you have normal sensibilities, lawyeradvertising is bound to offend you—somemore than others. It is often loud, aggressive,frequently insulting, and sometimes overstatesits value.

As lawyers, we are especially sensitive tocommercial messages affecting our sense of self-worth and professional dignity. For this reason,lawyer advertising remains largely unpopularamong members of the bar.

It is only when one recognizes the substan-tial benefits to consumers of legal services canlawyer advertising be justified. Available eco-nomic research teaches us:

1. Stricter regulation of advertising in allproduct and service markets produces theunintended harmful effect of less adver-tising, rather than more informationaladvertising or more dignified messages;

2. The less use sellers make of advertising,the less competitive the market;

3. The less competitive a market, the higherproduct or service prices will be.

The legal services market is not exempt fromthese fundamental principles of economics.

Following the U.S. Supreme Court’s deci-sion in Bates v. State Bar of Arizona, four sub-stantial studies were conducted to determinethe effect of lawyer advertising on the price oflegal services. Two of them were funded bygrants from the National Science Foundation,and another was conducted by the FederalTrade Commission. All the studies came to thesame conclusion: lawyer advertising has result-ed in lower prices for legal services. No researchhas concluded otherwise.

One of the lawyer advertising studiesattempted to measure the comparative qualityof service between an advertising multi-officelegal clinic and non-advertising lawyers in LosAngeles. It concluded that the advertising clinicprovided higher quality service to its clientsthan did the more traditional, non-advertisingpractitioners. These qualitative differences areless settled than the effect of advertising onprice, but they are consistent with availableempirical data and economic theory.

It is no surprise that the numerous attemptsto re-regulate lawyer advertising originate with

See The Public’s Interest in Lawyer Advertising page 11

New E-mail RequirementsNew requirements regarding e-mail

addresses take effect this month. Inresponse to recent inquiries, the followingquestions and answers are offered to assistwith the transition:

Q: Do I have to include an e-mailaddress on every pleading I file in SuperiorCourt?

A: Yes, effective July 1, 2009. Specificrequirements are in Arizona Supreme CourtAdministrative Order 2009-43.

Q: By including an e-mail address onmy pleadings, am I agreeing to electronicservice from opposing counsel?

A: No. However, you may agree to elec-tronic service via Civil Rule 5(c) and youmay be ordered by the court to serve and beserved electronically in some situations.

Q: By putting my e-mail address onpleadings, will I automatically get myminute entries electronically?

A: No. Minute entries that are sent elec-tronically are delivered to one e-mailaddress per law firm. Each solo practitioneror firm must follow the Clerk’s process toprovide the Clerk’s Office with the desig-nated e-mail address for receiving minuteentries electronically. The minute entry dis-tribution agreement is available online atclerkofcourt.maricopa.gov/forms.asp.

Q: If I am using one e-mail address formy minute entries now and I use a differente-mail address on my pleadings, will myelectronic minute entries stop?

A: No. Solo practitioners or firms thathave already designated an e-mail address toreceive their minute entries electronicallywill continue to receive them from theClerk’s Office at the designated emailaddress on file with the Clerk.

Q: What if I don’t want to receiveminute entries electronically?

A: The Clerk is authorized to charge $1per paper minute entry mailed to an attor-ney. Attorneys who are not registered toreceive electronic minute entries by July 1,2009, may be charged for paper minuteentries until they register with the Clerk forelectronic distribution.

Q: What organization do I have to givemy e-mail address to and how do I do it?

A: Administrative Order 2009-43requires that an e-mail address be main-tained for accepting documents from thecourt, supplementing the requirements ofArizona Rule of Civil Procedure 5.1(b).Any change of information (e-mail, busi-ness address, name change, phone, etc.)

should be updated with the Clerk’s Office.Contact information can be updated onpaper at any Clerk’s filing counter or onlinewith the Clerk’s Office at www.clerkof-court.maricopa.gov/address_change_form.asp. In the Superior Court inMaricopa County, updating your informa-tion with the Clerk satisfies the Rule 5.1(b)requirement to notify the court administra-tor of changes.

Q: Is updating a change to my e-mailaddress on a pleading the same as notifyingthe Clerk that my e-mail address haschanged?

A: No. Although you are required tonotate a changed e-mail address on yourpleadings, Clerk staff are unable to updateyour records at the time of filing, given thevolume of filings processed each day in the Clerk’s Office. You must notify theClerk’s Office directly of any changes, per Administrative Order 2009-43 andArizona Rule of Civil Procedure 5.1(b). See the answer above for ways to notify the Clerk’s Office.

Q: Can I avoid electronic documentsaltogether?

A: No. Clerk’s Offices are required todistribute documents electronically as soon

as the technology allows. This technology is available now in Maricopa County.Regardless of individual preference, it is highly likely that all practitioners will receive at least some official court documents electronically after July 1, 2009.

Q: Do the rules relating to additionaltime after delivery by regular mail apply toelectronically transmitted documents?

A: Yes. See Administrative Order 2009-43, subsection (6).

Q: What else should I know?

A: To be effective, an e-mail accountmust have enough memory available toreceive e-mails from the courts. Thisrequires organization and maintenance toensure the inbox is available. It is importantto ensure the designated e-mail addressaccepts emails from the Clerk and courtsand that messages are not inadvertentlyblocked by the e-mail service provider’sspam filters. ■

See Supreme Court Administrative Order 2009-43, “Electronic Distribution of Court Documents” for more details:www.supreme.state.az.us/orders/admorder/Orders09/2009-43.pdf

Q&A on New E-Mail RequirementsMARICOPA LAWYER JULY 2009 • 3

MEDIATEwith JoyFAMILY MEDIATION CENTERwww.azfamilymediationcenter.com

480.949.9511*www.joyborum.com

JOY B. BORUM*

Lawyer Referral Service

Needs YouPotential clients can be yours with the MCBA Lawyer Referral Service.

The LRS receives more than 100,000calls per year from people seeking legal assistance as well as attorneys referring

clients outside their practice area. Among the areas needing coverage

are: administrative law, SSI-SSD/Medicare law, workers' compensation, and immigration. Spanish-speaking and West Valley

attorneys are also needed.

It's easy to join! Call Linda Peña at(602) 682-8590.

Did you know that it has been shown thatvolunteering can lead to living a longer andhappier life? Many people are feeling the tightpinch of today’s economy. However, your timeis more valuable than your money and manyagencies need your time and energy to assistthem in helping people in need.

Between family and work commitmentsmany of us feel we have spare time to give.With this in mind, I would like to highlight theopportunities the Paralegal Division’s OutreachCommittee organizes each year for divisionmembers to get involved in helping differentorganizations. Several of the events don’t requiremuch of your time, but they make a big differ-ence in other people’s lives.

The Paralegal Division Annual Dental Drive

is one such event. The Dental Drive benefitsthe John C. Lincoln Health Network’s DesertMission Children’s Clinic. The staff at the den-tal clinic looks forward to our donations ofdental goody bags, which contain toothbrushes,toothpaste, floss and stickers each year.

Previously the staff has told us it is notunusual for an entire family to share one tooth-brush or brush their teeth with no toothpaste.The staff has expressed how excited the childrenare to receive one of the dental goody bags.

To ensure we are able to give as many dentalgoody bags as possible, we need individualswilling to coordinate the collection of dentalitems within their firm or company. The collec-tion of dental items will continue through July10, and on July 13, we will assemble the dentalgoody bags to give to the clinic. All membersare invited to attend and help with the assemblyof the dental goody bags.

These bags will be delivered to the DentalClinic in time for their back to school rush. Ifyou are able to assist with this very worthwhileproject please contact Stacy Palmer at

spalmer@swlaw.com or (602) 382-6812.The second opportunity to volunteer will

come in November with the start of theParalegal Division’s annual Toy Drive. We willagain need people willing to coordinate the col-lection of unwrapped toys within their firm orcompany. The toys are presented to the agenciesat our end of the year celebration on Dec. 15.

A Couple of Notes Thank you to the Hon. Aimee Anderson,

Superior Court of Maricopa County; andDenise M. Quinterri, Law Office of Denise M.Quinterri, PLLC, for taking their time to pres-ent the June 17 CLE, “Attorney-Client PrivilegeDistinguished from Confidentiality.”

Don’t forget to register for the 10th AnnualParalegal Conference. Registration forms can befound on our website and look for the new sec-tion on our website “Updates from SuperiorCourt.”

The Paralegal Conference registration formand the new section can be found on our web-site www.maricopabar.org; click on the “ForParalegals” link. ■

Name: Method of Payment: Amount $ ______________________

Employer/School: ❑ Check (made payable to MCBA)

Address: ❑ Visa ❑ MasterCard

City, State, Zip: Credit Card # Exp Date:

Phone: Fax: Signature:

E-mail:

4 • JULY 2009 MARICOPA LAWYER

Yes, You Do Have Time to Volunteer Calendar of Events

INSIDE THE PARALEGAL DIVISION

10TH ANNUAL ARIZONA PARALEGAL CONFERENCE 2009Sponsored by the MCBA Paralegal Division

BUILDING OUR LEGACY: A DECADE OF GROWTHWHEN: Friday, September 25, 2009 ■ 7:30 a.m. – 5:00 p.m.

REGISTRATION: 7:30 – 8:30 a.m.PROGRAM: 8:30 a.m. – 5:00 p.m.

WHERE: Phoenix Convention Center, Downtown Phoenix 100 North Third Street (South Bldg., Exhibit Rms 160-167)

FEATURING: Robert J. LeClair, Esq., Therese A. Cannon, Esq., Susan J. Howery, M.A., Scott A. Hauert, Esq., Meredith L. Larabee, and Sybil Taylor Aytch, RP, M.Ed.:“The Future of the Paralegal Profession: Sustaining Viability in a Sharply Competitive Industry”

Jonathan B. Frutkin, Esq., The Frutkin Law Firm, PLC: “Bankruptcy Myth”

Marc H. Lamber, Esq., Director, and James Goodnow, Esq., Associate, Fennemore Craig, P.C.: “The Lean Mean Negotiating Machine: Cost-Effective Client Service”

Joshua R. Woodard, Esq., Partner, Snell & Wilmer, L.L.P.:“What Attorneys Expect from Paralegals: E-Discovery and Beyond”

CONFERENCE FEES:: MCBA Member - $175.00 Non-Member - $225.00 Student Member - $50.00 Student Non-Member - $75.00 Your Registration Fee Includes: ■ Comprehensive Educational Materials ■ 6.0 hours of Continuing Legal Education (CLE) including 1.5 hours of Ethics ■ Full Breakfast, Buffet Lunch, and Refreshments ■ Interaction With Vendors Who Serve the Legal Community ■ A Chance to Win Numerous Door Prizes

REGISTRATION:Please mail your registration form with payment to: Laurie Williams, MCBA, 2001 N. 3rd Street, Ste 204, Phoenix, Arizona 85004. Credit Card Registrations can befaxed to Laurie Williams at 602-682-8601 or online registrations can be completed at www.maricopabar.org (“For Paralegals” link).

For additional information, or if you have a disability and require accommodations, please contact Andrea Bartles at andrea.bartles@bowmanandbrooke.com orSara Neily at roger@rtsharp.com. For more information about the MCBA Paralegal Division, please visit our website: www.maricopabar.org (“For Paralegals” link).

JULY 7 Tuesday Conference Committee Meeting

10 Friday Dental Drive Ends11 Saturday CLA Review Classes Ends13 Monday Board of Directors Meeting

Assemble Dental Drive Bags following BOD Meeting

AUGUST4 Tuesday Conference Committee

Meeting10 Monday Board of Directors Meeting

SEPTEMBER8 Tuesday Conference Committee

Meeting14 Monday Board of Directors Meeting 25 Friday 10th Annual Paralegal

Conference Location: Phoenix Civic CenterRegistration: 7:30 am

OCTOBER13 Tuesday Board of Directors Meeting 20 Tuesday Quarterly Division Meeting

Time and Topic to be determined

NOVEMBER 9 Monday Board of Directors Meeting

16 Monday Toy Drive BeginsDECEMBER

14 Monday Board of Directors Meeting 15 Tuesday Division End of Year

Celebration Time: 5:30 pm

15 Tuesday Toy Drive Ends

Board of Director and Conference Committee meet-ings are held at 5:30 pm unless otherwise specified.Board of Director, Conference Committee andQuarterly Division Meetings are held at the MCBAoffice unless otherwise specified. ■

LOOK FOR THE $10 OFF REGISTRATIONCOUPON at www.maricopabar.org(“For Paralegals” link) inHonor of our 10th AnnualParalegal Conference!

$10 Off Conference Registration

Price

IN HONOR OF OUR 10TH ANNUAL PARALEGAL

CONFERENCEParalegals: Building our Legacy:

A Decade of Growth

Friday, September 25, 2009 at the Phoenix Convention Center

Mail this coupon with your registrration andreceive $10 off the registration price to:

Laurie Williams, MCBA, 2001 N. 3rd Street, Ste 204,

Phoenx, AZ 85004OR

Register on-line at www.maricopabar.org click on“Paralegals link” and type in Code:

2009 MCBA PDto receive $10 off the registration price

*See our website for further details: www.maricopabar.org click on “Paralegals link”

This past month, you have probably seen orread national reports about the recent acts ofviolence fueled by hate: the shooting of theArmy military recruiter in Little Rock, Ark., bya Muslim extremist; the gunning down of Dr.George Tiller as he served as usher at hischurch on a Sunday morning by an anti-abor-tion extremist; and the fatal wounding of aguard at the Holocaust Memorial Museum as a

white supremacist took two paces through thedoors and opened fire.

So what’s fueling the hate these days? Ofcourse, we could attempt to dismiss theseextremists as lunatics. But as I listen to the talkradio shows, Fox News, CNN, and read inter-net blogs, these extremists received applausefrom a number of citizens across America forcommitting these heinous acts of violence!

I don’t know all the root causes of hate(actually, I do, but I won’t throw my belief sys-tem over your eyes). One cause, however, isthat when people feel like their views are mar-ginalized, irrelevant, discounted, or otherwisesuddenly unpopular, they sometimes act outin ways that are not always the most rational

or healthy to bring attention to their ideas.Extremists, as the name suggests, will go to theextreme to draw attention to their views, to thedetriment (sometimes fatal detriment) of others.

Thankfully, we lawyers know how to dealwith our problems at a much higher and morepeaceful level than the rest of society, right? Wetalk. We listen. We write. We communicate.We lawyers are the social engineers of society,building and honoring the legal boundaries inwhich society operates.

Well (gulp), consistent with my plansannounced in my January column (of course,you remember my plans that appear in para-graph 14, page 6 of the January issue of theMaricopa Lawyer), I plan to test my faith in thelegal community by holding the YLD’s firstever Town Hall Forum.

At this first ever YLD Town Hall Forum,we will discuss what some believe is one source

of fuel pushing people over the edge: the eco-nomic downturn caused by the mortgage crisis.The YLD Town Hall Forum will take place atWild Thaiger (2631 N. Central Ave., which isnext to Durant’s) in the main dining roomfrom 4:30-5:30 p.m. on July 14.

The forum is free, and free appetizers andbeverages will be provided. Just bring your openand critical mind, and come prepared to grillour guest speakers from Bankers Trust who haveso graciously volunteered to. . . well, be grilled.

Keith Kormos, SVP of private banking andwealth management, and Duke Pyle, VP andmanager of residential real estate lending, willstate the banker’s side of the mortgage crisisargument, explaining their views on the causesand the government’s response to the crisis.They will also be joined by Matt Deuitch, for-mer president of Scottsdale Area Association ofRealtors, and others. ■

MARICOPA LAWYER JULY 2009 • 5

Let’s Talk About It

6 • JULY 2009 MARICOPA LAWYER

Now that we are officially in the thick ofbaseball season, I am reminded of some greatadvice a mentor once gave me when I firststarted practicing law: Avoid the wind-up(before the pitch) language.

These word-wasting phrases take up spaceand take the focus off the main point of thesentence or clause. These phrases can alsoaffect clarity, because it is hard to find themain subject or actor in the sentence orclause. Following is an example of needlesswind-up language:

It is a fact that the witness will delay talk-ing until such time that the court signs theorder. “It is a fact” does not add any meaning to

the sentence, and “until such time that” canbe replaced with the simpler word “until.”The sentence is clearer rewritten as follows:

The witness will delay talking until thecourt signs the order.Two red flags help you spot word-wast-

ing phrases: (1) the use of “it is” or “thereis/are” and (2) the use of phrases ending in the word “that” or “which.” Although not every use of these red flags is a word-wasting phrase, it is helpful to look for them in a document and assess whether the

phrase adds meaning to the sentence. If it does not, then you should edit thephrase.

Here is a list of some common wind-upphrases and their suggested replacements.

Wind-up Language Suggested Edit

It is clear/obvious that . . . . . . .Clearly, obviously (or leave out completely)

In the situation/case/ . . . . . . . .If, when (or leaveinstance that out completely)

In most/some situations/ . . . . .Mostly, sometimescases/instances that

Until such time that . . . . . . . .Until

This is the point/ . . . . . . . . . . .This point/topic/casetopic/case that

At the/such time that . . . . . . .When

For a period of ___ . . . . . . . . .For ___

There is no doubt . . . . . . . . . .Doubtless, no doubt but that

The question as to . . . . . . . . .Whetherwhether or not

Insofar as ___ is concerned . . .(leave out completely)

There is/are ___ that ___ . . .(take out “there are” and “that”)

Ex. There are five elements . .Ex. Five elementsthat prove the point prove the point.

Eradicating these phrases from your writingis worth the effort because improved clarity isalways a home run. ■

Play Ball! A ‘Playbook’ on Eradicating Wind-up Language By Joan Dalton

Eight Applicants Interviewed for SupremeCourt Judgeship

On June 29, the Arizona Commission onAppellate Court Appointments interviewedeight candidates vying for a vacancy resultingfrom Arizona Supreme Court Justice RuthMcGregor’s retirement from the ArizonaSupreme Court bench.

The eight candidates interviewed were:Robert M. Brutinel, Norman J. Davis, Philip G.Espinosa, John C. Gemmill, Wallace R.Hoggatt, Diane M. Johnsen, A. John PelanderIII, and Ann A. Scott Timmer.

The commission must send at least threenominations to Gov. Brewer, who will appointthe new justice.

Arizona Courts’ Communications GoDigitized

As of July 1, 2009, Arizona’s superior andappellate courts require attorneys to designateand maintain an e-mail address to which offi-cial court documents will be sent.

Attorneys must include the designated e-mail address on each filing and pleading filedin superior court or the state’s appellate courts.

Under Administrative Order No. 2009-43, theClerks of the Supreme Court, the Court ofAppeals, and the Superior Court are authorized todistribute any document electronically. In casesin which it is necessary to preserve the security of

confidential or sealed documents, clerks may usean alternate means of distribution.

An attorney wishing to obtain paper copiesof documents that could be distributed elec-tronically may do so upon paying a fee estab-lished by the board of supervisors to recoverpreparation, printing and mailing costs.

Obama Okay to Reining in MedicalMalpractice Lawsuits

President Obama has purportedly beenmaking the case that reining in the number ofmedical malpractice cases can reduce healthcare costs overall and should be considered aspart of any health care overhaul plan.

Obama is hoping that his support of curb-ing the number of medical malpractice law-suits will serve as a “credibility-builder” andkeep Republicans and doctors at the negotiat-ing table longer when it comes to health carereforms.

Tennessee Moving Away from MeritSelection of Judges

Under new legislation coming out ofTennessee, members of a commission thatselects a slate of potential judicial appointeesfor state judgeships will now be picked directlyby elected officials rather than by groups asso-ciated with the state’s organized bar.

The change is thought to remove the powerof the professional guild to control statejurisprudence and reintroduce judicial appoint-ments by way of elected officials. ■

By Douglas E. Abrams

The 2004 National Football League Draftwas fast approaching, and the last-place SanDiego Chargers held the first pick overall.Their expected pick, University of Mississippiquarterback Eli Manning, was no stranger tothe inner workings of the NFL because hisfather, former New Orleans Saints quarterbackArchie Manning, and his older brother,Indianapolis Colts quarterback PeytonManning, had preceded him to stardom.

Eli told the Chargers that he would not signif the team selected him, and he intimated thathe would instead re-enter the 2005 draft,expecting selection by another team. Sittingout the 2004-2005 season would mean losinga year’s multimillion-dollar income in his ath-letic prime, but media reports indicated thatthe young quarterback also believed he couldget a more favorable long-term contract from ateam in a major media market.

The Chargers did pick Eli first. To avoid astalemate that would leave them with nothingto show for the first round, however, they

immediately traded him to the New YorkGiants. The rest, as they say, is history. Just askany Giants fan about the team’s 17-14 upsetvictory over the New England Patriots in SuperBowl XLII in 2008.

How did future Super Bowl Most ValuablePlayer Eli Manning reach his high-stakes deci-sion to spurn the Chargers and threaten spend-ing a season on the sidelines?

“Eli did what I have always suggested inmaking big decisions,” said his father. “I’m alegal pad guy. He took out a legal pad, drew aline down the middle, and put the pluses onone side and the minuses on the other side. Itwasn’t even close, so he went with it.”

The Discipline of WritingThis sort of written decision-making also

aids presidents, legislators, judges, lawyers,business people, and others who recognize thatthe discipline of committing arguments topaper can focus thinking more clearly thanmere contemplation or oral discussion can.

As author John Updike put it, writing “edu-cates the writer as it goes along.” Indeed, said

California Chief Justice Roger J. Traynor, writ-ing is “thinking at its hardest.” “The act ofwriting,” concluded U.S. Circuit Judge FrankM. Coffin, “tells what was wrong with the actof thinking.”

At least three recent presidents—RichardNixon, Jimmy Carter and George H.W.Bush—were also “legal pad guys” whomethodically penned longhand lists of prosand cons to marshal their thoughts as theywrestled with major policy decisions.

Other leaders reliant on such lists whenmulling over vexing personal and professionaldecisions include Secretary of State HillaryRodham Clinton; Secretary of Agriculture TomVilsack; Sen. Blanche Lambert Lincoln andformer Sens. Lloyd Bentsen, Sam Nunn,Lincoln Chafee and Paul Simon; formerTreasury Secretary Robert Rubin; formerCongress member and 9/11 Commission vice-chair Lee Hamilton; former Govs. MichaelDukakis and Pete Wilson; and World BankPresident Robert Zoellick. Even naturalistCharles Darwin made extensive notes listingthe pros and cons of getting married before heproposed to his future wife.

Judges offer a solid rationale for writtendecision-making. “All of us have had seeminglybrilliant ideas that turned out to be much lessso when we attempted to put them to paper,”

said U.S. Circuit Judge Wade H. McCree, Jr.“Every conscientious judge has struggled, andfinally changed his mind, when confrontedwith the ‘opinion that won’t write.’”

Choosing the FormatRather than listing pros and cons in two

columns to expose tentative decisions that“won’t write,” the decision maker might penlonger passages, or even an informal essay.Hand-written diagrams or flow charts mightalso help. Felt need and personal preferencedetermine the format because the point-coun-terpoint is normally for the writer’s eyes only,unless the writer shares the document with asmall circle of advisors or other colleagues.

Regardless of the chosen format, writingcan influence not only lawyers’ own personaland professional decision-making, but also theadvice lawyers provide clients about how toreach decisions on matters within the scope ofrepresentation. Some individual and institu-tional clients adept at problem-solving mayalready understand how committing thoughtsto paper induces careful reflection, but otherclients may not.

Written decision-making should come nat-urally to lawyers because it remains fundamen-tal to the American judicial system, and thus to

But ‘Will It Write’?How Writing Sharpens Decision-Making

See But ‘Will It Write’? page 13

The public is invited to comment on45 applicants for a vacancy on theSuperior Court in Maricopa County creat-ed by the retirement of Judge SilviaArellano.

The applicants are:William D. Anderson, Bradley H.

Astrowsky, John F. Beatty, Jerry Bernstein,James B. Bowen, Mark H. Brain, TamikaN. Cheatham, Katherine M. Cooper,Christopher A. Coury, Wendy L. Coy,David O. Cunanan, John R. Doody, Jr.,Jeffrey R. Finley, Troy P. Foster, Colleen L.French, Pamela S. Frasher Gates, DouglasGerlach, Robert L. Greer, Roger L.Hartsell, Michael J. Herrod, Steven K.Holding, Jaime B. Holguin, Frank A.

Johnson, Jr., Daniel J. Kiley, William C.Knoche, Kirby D. Kongable, Thomas P.Liddy, Colleen A. Lomax, Steven P. Lynch,C. Steven McMurry, Michael T. Morrissey,James R. Morrow, Bernard C. Owens,David J. Palmer, Carolyn K. Passamonte,Wesley E. Peterson, Jay M. Polk, VirginiaL. Richter, Joan M. Sinclair, Barbara L.Spencer, Peter A. Thompson, Benjamin E.Vatz, Eartha K. Washington, Robert J.Weber and William R. Wingard.

The Maricopa County Commission on Trial Court Appointments will reviewthe applications and take public testimony at a meeting on July 22. Themeeting will be held at the State CourtsBuilding, 1501 W. Washington St., Room

345, starting at 9 a.m.Citizens may address the commission at

that time or send written comments to1501 W. Washington St., Suite 221,Phoenix, Ariz., 85007 or tojnc@courts.az.gov. Written commentsmust arrive by July 17 to be considered.Anonymous comments cannot be consid-ered.

At the July 22 meeting, the commissionwill choose the applicants to be inter-viewed. The selected applicants will beinterviewed on Aug. 21. After the inter-views, the commission will recommend atleast three nominees for the opening toGov. Jan Brewer, who will appoint the newjudge. ■

Q: What has sur-prised you the mostabout making thetransition from com-missioner to judge?

A: The adminis-trative details. Tonsof paperwork has tobe completed, andtwo critical positions

must be filled, allseemingly as soon as humanly possible.

Q: Early in your legal career, you were a lawclerk for Arizona Supreme Court Justice JamesMoeller. What did you learn from JusticeMoeller that has remained with you as yourcareer has progressed?

A: Brevity enhances clarity. Q: Who has been the biggest inspiration in

your legal career?A: United States Supreme Court Justice

John Marshall Harlan II. He was brilliant,good natured and intellectually honest duringthe historic upheaval of the Warren court.

Q: What’s your favorite quotation? A: “That whole porno website scandal is

behind us now!” Irrelevant outburst by a fami-ly court litigant (and, apparently, pornographicactress) to an astonished judicial officer (me)during a hearing.

Q: If you had a day to spend with anyone,living or dead, real or fictional, who would itbe and what would you do?

A: My father, who did not live to see metake the bench. I would show him around thecourthouse and tell him war stories (like theone above) from my days as a commissioner.He would be in stitches.

Q: Do you own an iPod? If so, what songsare currently in your playlist?

A: “Vodoo Chile (Slight Return)” – JimiHendrix

“Train in Vain” – The Clash“My Old School” – Steely Dan“Come as You Are” – Nirvana“Domino” – Van Morrison“Don’t Believe the Hype” – Public Enemy“Even Flow” – Pearl Jamm“Get Closer” – Seals and Crofts“Give Up the Funk” – Parliament“I Wanna Be Sedated” –The Ramones“I Want You Back” – Jackson 5“Killer Queen” – Queen“No Sleep ‘til Brooklyn” – Beastie Boys“Let’s Stay Together” – Reverend Al Green“Lonely Boy” – Andrew Gold“Paint it Black” – Rolling Stones“Tattooed Love Boys” – Pretenders“5:15” – The Who“American Idiot” – Green Day ■

MARICOPA LAWYER JULY 2009 • 7

Judge Scott McCoy

A Fond Farewell

INSIDE THE COURTS

By Jack Levine

On July 1, 2009, the mantle of ChiefJustice of the Arizona Supreme Court passesfrom Ruth V. McGregor to Rebecca WhiteBerch. Chief Justice McGregor leaves a legacy of accomplishments that will be hard to equal.

Having graduated summa cum laudefrom both the University of Iowa and fromArizona State University College of Law, shewas with the law firm of Fennemore Craigfor seven years before being tapped by newlyappointed U.S. Supreme Court JusticeSandra Day O’Connor to be her first lawclerk.

After returning to private practice, shewas appointed to the Arizona Court ofAppeals, Division One, in 1989 and servedas chief judge from July 1995 to July 1997before being appointed to the ArizonaSupreme Court in 1998. She is only the sec-ond woman to be appointed to the courtand to hold the position of chief justice.

Chief Justice McGregor has logged acombined total of 20 years as an appellatejudge through her service on the Court ofAppeals and then the Supreme Court.

“It will be hard to leave the court,” ChiefJustice McGregor said. “The work we do ischallenging and meaningful and the courthas become my work family.”

Although claiming no specific plans forretirement, she and her husband are lookingforward to spending more time with familyand friends, and are planning to take moretime to pursue other interests. Nevertheless,she does expect to remain involved withissues important to the judicial system,including the need to retain judicial inde-pendence and our merit selection system.

Also of concern to Chief JusticeMcGregor is “the need to provide adequateresources for all our courts so we can pro-vide access to those who need our services.”

Chief Justice McGregor points, withpride, to a number of accomplishments dur-ing her tenure as chief justice. It was underher leadership that an effort was launched toexpedite the processing of DUI cases“because of the severe consequences thesecases have on our community statewide.”According to Chief Justice McGregor, thateffort has reduced by 77 percent, DUI casesthat had been pending for more than an180 days.

Other innovations under Chief JusticeMcGregor’s leadership include providing anonline service that allows prospective jurorsto select their most convenient date for juryservice, objective performance evaluations tomeasure the level of satisfaction of thoseusing our courts so that improvements inour court system can be instituted, and aprogram to improve our criminal justice sys-tem by using research that helps to identifythose offenders who are most likely to re-offend and to provide appropriate supervi-sion and treatment that will reduce therecidivism rate.

Additional innovations which ChiefJustice McGregor points to with pride arethe expansion of the Self-Service Centers tothe Internet, so that litigants do not have totravel to the courthouse to obtain the formsthey often need; the use of the Internet todistribute information about court proceed-ings by posting court agendas, rulings andadministrative decisions, and by posting thequalifications of those who apply for judicialmerit selection openings, as well as informa-tion concerning the court’s rule-makingprocess. Chief Justice McGregor also sup-ported making arguments before theSupreme Court available live on the web.

In an effort to ensure the continuingadequate funding of the courts, Chief Justice

Deputy CourtAdministratorCompletesFellowship

Christopher G. Bleuenstein, deputycriminal court administrator, became afellow and certified court executive of theInstitute for Court Management by suc-cessfully completing the ICM’s CourtExecutive Development Program.

Bleuenstein and 21 other court pro-fessionals from around the United Statestook part in graduation ceremonies con-ducted at the Supreme Court inWashington.

Chief Justice John G. Roberts, Jr.,welcomed and addressed the graduates.

The Court Executive DevelopmentProgram is the only program of its kindin the United States. This professionalcertification program was establishedmore than 30 years ago, in part, by ChiefJustice Warren E. Burger in his call forimproving the management of state courtadministration.

The intensive four-phase educationalprogram better prepares court professionalsfor management and leadership positions.

Since the first class of CEDP graduat-ed in 1970, more than 1,100 court pro-fessionals in 48 states, the District ofColumbia, Guam and 12 foreign coun-tries have become fellows. ■

Public Comment Sought on Superior Court Applicants Q&A withSuperiorCourt JudgeScott McCoy

See A Fond Farewell page 14

JULY 2009

*Please watch your MCBA E-News for updated information

about meetings and events.

All events are held at the temporary MCBA headquarters

at 2001 N. 3rd Street, Suite 204,

Phoenix, unless otherwise noted. Also check www.maricopabar.org

or call (602) 257-4200.

July office hours: 8:00 a.m.-5:30 p.m.

Monday through ThursdayThe office is closed on Fridays.

8 • JULY 2009

2 Construction Law Section12 p.m.

MCBA Office closes at 12 p.m.

3 MCBA Closed for July 4 holiday

11 Paralegal CLA Review Class9 a.m.

13 Paralegal Division5:30 p.m.

REACH OVER 3,000MARICOPALAWYERS

Advertise in the

Maricopa LawyerCall

(602) 257-4200

MARICOPA LAWYER

By Kaye McCarthy, Arizonans for Children, Inc.

Arizonans for Children, Inc., (AFC) wasestablished in October 2002 by a small group ofconcerned volunteers who recognized and articu-lated the critical community need to provide suit-able home-like visitation space to the increasingnumber of children in state custody, their familiesand child care providers. This nonprofit organiza-

tion is committed to improving the fragile lives ofchildren and youth in foster care in MaricopaCounty by providing opportunities to help thembreak out of the cycle of abuse and poverty.

In this time of financial crisis, when peopleare out of work and losing their homes, theirchildren are also being taken away because theycan’t provide for them. AFC focuses on provid-

ing a safe, comfortable and neutral environmentspecially designated for supervised visitations sothat children who are wards of the state canestablish and maintain the best possible relation-ship with non-custodial parents and family. Wealso work to develop and offer innovative pro-grams which help foster youth improve academ-ic success, develop self esteem and life skills, andmake a successful transition to independentadulthood.

One of our programs that was initially estab-lished in 2007 through the generous support ofthe Maricopa County Bar Foundation is theJustice League Program, a legal education pro-gram developed to serve foster youth betweenthe ages of 12 and 17. The Justice League cur-riculum was designed to incorporate the bestpractices of law-related education, based on theprinciples of the American Bar Association andusing the resources of the Arizona StateUniversity’s Junior Law Program.

By almost any measurement, children andyouth in foster care are some of our most vul-nerable children. Given their histories of abuseand/or neglect and their tenure in the child wel-fare system, these children face an adulthoodshadowed by an exceptionally high risk of edu-cational failure, unemployment, emotional dis-turbances and mental illnesses, homelessness,incarceration, and dependency on public assis-tance programs. As wards of the state, all major

decisions regarding foster youths’ lives are madeby the court.

The decisions regarding each child or youth’sfoster care plan are governed by agreementsmade by attorneys, caseworkers and ultimatelythrough decisions handed down by a judge.Foster youth receive virtually no educationregarding this legal process that governs theirlives, and as a result, they often are ineffective atarticulating their needs, preferences and con-cerns, and fail to ask for explanations that couldhelp them grasp what’s going on.

As a result, foster youth become frustrated,resentful of the legal system, which they don’tunderstand and feel helpless to influence, andrebel, often resulting in further involvementwith the legal system due to delinquency.

The Justice League Program is designed toprevent delinquency by positively affecting atti-tudes and increasing understanding of laws andthe justice system among youth in foster care.The program also aims to empower these youthto advocate effectively for themselves in theirown dependency hearings and case planning,and to become informed citizens, able to func-tion in and contribute to the society in whichthey live. ■

This is the first in a series of articles about theorganizations that received a 2009 grant from theMaricopa County Bar Foundation (see story p. 1).

Grant Recipient, Arizonans for Children, Inc.,Improves Lives of Children and Youth in Foster Care

MARICOPA LAWYER JULY 2009 • 9

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Over $60,000 in Foundation Grants Help Local Non-Profits Fill Legal Needs continued from page 1

tion dues. And last, but certainly not least,

we’re grateful to those attorneys and firms that

responded to our year-end appeal. It all goes

to help those who really need, but can’t afford,

help from the justice system to get on with

their lives,” she said.

The 2009 recipients are:

■ Arizonans for Children - $3,150*

■ Advocates for the Disabled - $5,000

■ MCBA Young Lawyers Division Law Week - $4,487

■ Arizona Coalition Against DomesticViolence - $2,500

■ Volunteer Lawyers Program (Tenant’sRights/HALP) - $10,000

■ Volunteer Lawyers Program/Children’sLaw Center - $10,000*

■ Partners for Paiute - $2,700

■ Area Agency on Aging - $3,000

■ ASU College of Law Civil Justice Clinic -$2,500

■ MCBA Young Lawyers Division DomesticViolence Program - $2,222

■ YMCA Teen Court - $10,000*■ Arizona Center for Disability Law -

$2,000■ Never Again Foundation - $2,500

The Foundation, the charitable arm of theMaricopa County Bar Association, makes

grants each year to nonprofit organizations

who further the goals of its mission: “…to

enhance the rule of law and the system of jus-

tice in Arizona, with a focus on programs that

relate to the administration of justice; ethics in

the legal profession; legal assistance for the

needy; the encouragement of legal research,

publications and forums; and the education of

the public.” ■

At the Foundation Grants Breakfast, heldlast month at the University Club, are, frontleft: Kaye McCarthy and Charlie Stayton,Arizonans for Children; Gwyneth Cowger,Advocates for the Disabled; and RoniTropper, Volunteer Lawyers Program. Fromleft, back row are: Lisa Randall and ValerieKime-Trujillo, Partners for Paiute; JannetteBrickman, Arizona Coalition AgainstDomestic Violence; Beth Haugen, YMCA;Jennifer Barnes, ASU Civil Justice Clinic;LaShawn Jenkins, MCBA YLD president;Elaine Timmins, Arizona Center forDisability Law; Mary Lynn Kasunic, AreaAgency on Aging; Edward Myers, ArizonaCenter for Disability Law; Nicole Holt,MCBA YLD; Patricia Nolan, MCBF; LeslieSatterlee, MCBA YLD; Robbin Conlon, AreaAgency on Aging; and Pat Gerrich,Volunteer Lawyers Program.

10 • JULY 2009 MARICOPA LAWYER

ADOPTIONRobert S. Reder, two cases

Bryan Cave

BANKRUPTCYRobert Ray Teague, four cases

Phillips & Associates

CONSUMERJames A. Craft, two casesGammage & Burnham

Eric B. JohnsonQuarles & Brady

FAMILY LAW/DOMESTIC VIOLENCE:

Ruth A. LusbySole Practitioner

Ronee Korbin SteinerSole Practitioner

GUARDIANS AD LITEM/COURTADVISORS FOR CHILDREN

Jessica M. CotterSole Practitioner

Ronda R. FiskOsborn Maledon

Harold M. (Pat) Gilbert, Jr., two cases

Marc Center of Mesa

Robert J. KramerFennemore Craig

Laura J. ZemanSnell & Wilmer

GUARDIANSHIPS OFINCAPACITATED ADULTS

Lisa M. CoulterSnell & Wilmer

Marsha GoodmanSole Practitioner

Marian Zapata-RossaQuarles & Brady

Michelle Anne SchultzQuarles & Brady

GUARDIANSHIP OF MINOR CHILDRENChristina Geremia

Jones Skelton & Hochuli

Kyle S. Hirsch, three casesBryan Cave

Nancy M. LashnitsBallard Spahr Andrews & Ingersoll

HOME OWNERSHIP ISSUESMadelaine R. BergSole Practitioner

Marguerite M. BreidenbachAWEE

John T. GilbertAlvarez & Gilbert

Timothy MackeyMackey Law Firm

Sarah E. PriceWarner Angle Hallam Jackson

& Formanek

TENANTS’ RIGHTSVictoria E. TandyQuarles & Brady

TORT MOTOR VEHICLEDEFENSE

Neil J. HarringtonSole Practitioner

OTHER ISSUESKenneth W. BurfordHastings & Hastings

Candess J. HunterHunter Humphrey & Yavitz

W. LaNelle OwensQuarles & Brady

Volunteer Lawyers Program Thanks AttorneysThe Volunteer Lawyers Program thanks the following attorneys and firms for accepting

36 cases during the past month.VLP supports pro bono service of attorneys by screening for financial need and legal

merit and provides primary malpractice coverage, donated services from support professionals, training, materials, mentors, and consultants. Each attorney receives a certificate from MCBA for a CLE discount.

For information about cases and other ways to help, please contact Pat Gerrich at VLP at (602) 254-4714 or pgerrich@clsaz.org.

With a little whim-sy and a lightheartedchuckle, attorneyThomas Moring quips,“I should have been arock star.” His othergifts not to be denied,Moring is currentlybeing recognized asAttorney of the Monthby the VolunteerLawyers Program

(VLP) for the expertise and compassion hebrings to his pro bono work for those with civillegal problems.

In 2001, Moring was an associate at thelaw firm of Morrison and Hecker. The firm’spolicy on pro bono work supported hisinterest in community service, and helearned of VLP by conducting case assess-ment interviews with applicants for assis-tance at Community Legal Services.

Thereafter, Moring began to provide directrepresentation to clients referred by VLP, andhas continued to participate in intake andadvice clinics as well. In fact, when Moringvolunteers for a clinic, he often “takes caseshome,” as VLP staff members say. Moringexplains, “Once a legal problem has a face anda name, it’s difficult to walk away.”

Certainly, that motivation inspiredMoring in a VLP case involving a single par-ent of two children. The seller of the family’smobile home was withholding title andextorting more than the purchase price theclient had agreed to pay.

“When the client came to VLP, the resi-dence was in horrible condition and the familywas facing homelessness because there was noexpendable income for repairs,” Moring says.“The situation was additionally compelling inview of the client’s physical disability.”

In the course of his legal assistance, two ofMoring’s private clients, a dentist and a con-tractor, offered help with some of the family’sother needs. When the case concluded, theclient had title to the home at the original pur-chase price.

Many low income people, especially thoseliving on disability benefits or other fixedincome, seek help at VLP to address debt relat-ed problems. Moring has been instrumental inproviding legal advice to those facing harassingcollection practices and resolving cases where adefense can be asserted. He notes that lawyerswho represent collection agencies will oftenrespond positively to an advocate who offers areasonable approach.

Another of the clients Moring met at VLPwas a defendant in a complaint filed by a com-pany who had purchased credit card debts. Theclient’s only income was Social Security bene-fits. Despite there being no wages or assets atstake, a judgment could have subjected theclient to a debtor’s exam and possible attemptsat collection of protected income.

The debt had originated years earlier, as theresult of a credit card solicitation by mail. Onreceipt of the card, the client had destroyed itwithout reading the fine print which definedthe terms of cancellation. Although the cardhad never been used, the issuing creditor hadapplied a $50 activation fee to the account andattached late fees to the unpaid balance untilthe account was sold for collections. WhenMoring intervened, the plaintiff agreed to dis-miss the law suit.

Moring credits his law partner, James Pak,with supporting his involvement in VLP andnotes that Pak also participates in pro bonowork originating in Scottsdale, where theyshare a practice they opened together in 2006.

He adds, “Some of our community serviceis more indirect, such as contributing toScottdale’s Shop With A Cop program, wherepolice officers use the donations to take chil-dren on shopping trips for school supplies. Ialso like to encourage colleagues to getinvolved by suggesting I trade my consultationsfor their pro bono time at VLP. Sometimes vol-unteering can be the ‘coin of the realm’!” ■

If you would like more information about pro bonoopportunities, contact VLP Director PatriciaGerrich at (602) 254-4714.

VLP ATTORNEY OF THE MONTHThomas Moring Takes Cases Home

Thomas Moring

The City of Mesa is seeking a currentMaricopa County Bar Association memberwho resides in Mesa to serve on the city’sJudicial Advisory Board.

Designed to make recommendations tothe city council, the Judicial Advisory Boardreviews city magistrate applicants, evaluatesappointed magistrate performances, andadvises the council about retaining them.

Three nominees selected by the MCBAboard of directors will be recommended tothe Judicial Advisory Board, one of whichwill be appointed by the Mesa mayor withthe concurrence of the city council. Theselected nominee will serve a two-year term

and must maintain his or her membership inthe MCBA during that period.

The Volunteer Lawyers Program AdvisoryBoard currently has two vacancies whichmust be filled by the MCBA board of directors. The Advisory Board provides oversight to the VLP, which is a joint venture of Community Legal Services and the MCBA.

If you wish to apply or if you have ques-tions regarding either board, please contactMCBA Executive Director Allen Kimbroughat akimbrough@maricopabar.org.Applications for the VLP Advisory Boardmust be received by Aug. 1, 2009. ■

Mesa Judicial Advisory Board, VLPAdvisory Board Seek Nominees

By Pamela Anders, CP

Often times, when I introduce myself to alawyer as a contract paralegal, the response goessomething like this: “I am a small practice; Ican’t afford to pay for an assistant,” or “I alreadyhave a full time legal assistant; I don’t need anymore help.”

These are both reasonable and understand-able responses, yet I must present a few counterquestions that make an argument for use of con-tract paralegals.

“Have you ever had to turn down a newclient or case because you were already buried inwork, and couldn’t find a way to come up forair?” “How many times have you listened toyour assistant groan, as you piled another taskon top of her already overflowing inbox?”“What do you do when your already over-worked assistant goes on vacation or medicalleave?” These are all scenarios that suggest a needin the legal community for contract paralegals.

As your practice grows, there seems to be lessand less time to adequately service your clients.As your existing clients’ demands increase, sodoes your workload. Keeping up with the court’srequirements, the needs of your clients, and theadministrative tasks involved in running yourpractice, can quickly become a pressure cooker.

Without the high cost of a placementagency, contract paralegals can be highlytrained and skilled temporary assistants.They can work in your office or in their ownoffice, picking up and dropping off theirassignments as needed. They are there when

you need them, for as long as required.They are self-employed, independent con-

tractors who do not expect benefits or paid holi-days. When you use their services, you are notrequired to pay workers compensation, insur-ance or social security. When the task is finished,their services are terminated until needed again,without the need for a human resources expertor an employment law attorney.

The services of a contract paralegal can be oftremendous benefit to a young lawyer or thesolo practitioner just starting out and growing apractice. Rather than stifling the growth of thepractice by turning away business that they areunable to handle, they can turn to a contractparalegal to assist them, thus removing much ofthe workload from their shoulders. Once theyhave offloaded the tasks to the contract parale-gal, they are free to spend their time more prof-itably, working billable hours.

Contract paralegals can help you by offer-ing flexibility and experience. Those who aretrained and experienced legal professionalsare able to assist your practice during peaktimes with filing, correspondence, motions,research, or organization. Additionally, theyare there to fill in and provide coverage forstaff members who are on vacation, or med-ical or maternity leave. ■

Pamela Anders is a Phoenix-based certified paralegal,and can be reached at pam.anders@paralegal4hire.net.

How Can a ContractParalegal Help Your Practice?

MARICOPA LAWYER JULY 2009 • 11

setup service and the most competitivepricing program in the industry. You maycontact NxLegal at (866) 863-6063 orinfo@nxlegal.com. Be sure to mention that you are MCBA Referral ProgramMember #7734 in order to receive discounted services.

Vision Care Direct saves you moneywhen you visit a private optometrist for aneye exam, glasses or contact lenses. Alloptometrists on the Vision Care Directplan own their practice and offer the veryhighest standard of care, along with a wideselection of frame and lens products.

Though there are many mass marketalternatives to a private optometrist, thesediscounters generally cannot offer the samestandard and continuity of care. VisionCare Direct practitioners have invested inadvanced technology and education todetect diseases and eye disorders that cancause vision impairment or irreversible loss.

Vision Care Direct has developed severalcompetitively priced plans for MCBAmembers for both individuals and groups,and these are offered exclusively throughCabrera Financial. Contact Jane Kassel orSteve Cabrera with Cabrera Financial at(602) 346-5155 or jmkassel@cox.net orstevecabrera@yahoo.com for more informa-tion. ■

Two New Member Benefits Add to Membership Valuecontinued from page 1

Supreme Court Credit Card RulesThe Supreme Court of Arizona adopted

amendments to Rules 42 and 43 of the Rules ofthe Supreme Court that will allow attorneys toaccept credit cards.

Effective Jan. 1, 2009, attorneys may acceptcredit cards for advance fees, costs and expenses.However, only three methods of accepting creditcard payments will be permitted by the stateSupreme Court.

(1) Attorneys or law firms may accept creditcard payments for earned fees and the reim-bursement of costs or expenses, in which thefunds must be deposited into the attorney’sor law firm’s operating or business account. (2) In cases of advance fees, costs or expens-es, funds generated from credit cards mustbe deposited into the attorney’s or law firm’strust account.(3) Lastly, attorneys or law firms may use acredit card processing service that allows theattorney or law firm to identify the accountinto which funds from each credit cardtransaction should be deposited.There is no prohibition against using one

credit card account for the payment of earnedfees and cost and expense reimbursements, andanother account for the payment of advancefees, costs or expenses.

Earned fees and funds for reimbursement ofcosts or expenses may be deposited into anattorney’s or law firm’s trust account only if theyare part of a single credit card transaction thatalso includes the payment of advance fees, costsor expenses. In such cases, the earned fees andfunds for reimbursement of costs or expensesmust be promptly withdrawn from the trustaccount.

In the event that an attorney or law firm usesa credit card processing service that permits it toidentify accounts into which funds from eachtransaction will be deposited, earned fees andfunds for reimbursement of costs or expensesmay never be deposited into the trust account;separate transactions should be conducted forthe payment of earned fees or cost or expensereimbursements.

Attorneys and law firms should strive to usea processing service that deposits advance fees,costs and expenses into the trust account, butwhich debits the operating or business accountfor fees and charges related to credit card trans-actions. ■

This article originally appeared in the January2009 Maricopa Lawyer.

lawyers—not consumers. Historically, efforts tocontrol markets and prices by limiting competi-tion have come from established product andservice sellers, not from members of the public.

Much of the enthusiasm for restrictinglawyer advertising appears to have as its realobjective the re-distribution of plaintiffs’ person-al injury work. Rarely is there any criticism ofthe vast marketing activities of large commerciallaw firms. Does good taste quiet the criticism?

The next time you bristle at a lawyer adver-tisement, try doing what I do. Remind yourselfthat the First Amendment does not guaranteegood taste and this commercial message—pro-vided it is truthful and not deceptive—hasvalue to someone, including those who uselawyers who do not advertise.

The bar’s role in regulating lawyer advertis-ing should be limited to insuring that it istruthful and not misleading. Consumersrequire no more protection than this, andlawyers deserve no more insulation from com-petition. ■

Van O’Steen, a member of O’Steen & Harrison,PLC, was one of the litigants who challenged theprohibition against lawyer advertising in the case

of Bates v. State Bar of Arizona, 433 U.S. 350(1977).

The Public’s Interest inLawyer Advertisingcontinued from page 2

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By James C. Goodwin and Emily Vatz

Rule #1: Tell the TruthThe core of every preparation session

between attorney and witness should alwaysbe “tell the truth.” Not only do the ethicalrules require an attorney to avoid suborningperjury, and to deal with false statementswhen they are known to emerge, but it justmakes good strategic sense to encouragepursuit of the truth.

Long before an attorney ever disclosesan expert, he should be quite comfortablethat the expert is going to be fully support-ive. By the time an expert is ready to beprepped for deposition, both the attorneyand expert should know their themes,know the evidence, and anticipate thestrengths and weaknesses of both sides ofthe case.

Periodically reminding the expert to tellthe truth reinforces the importance of theirtestimony, the sanctity of the process, andquite simply gives them renewed confi-dence in their own opinions.

Why Your Medical Expert or Client is Unique

You should begin your preparation withyour expert by reminding him or her thatas a doctor or nurse, s/he will be the onlytrue medical expert sitting in the room.

Opposing counsel will likely employvarious intimidation tactics, such as: 1.Reading perjury statutes, or making repeat-ed references to the witness being underoath; 2. Keeping the room uncomfortablyhot or cold, or affecting some other envi-ronmental factor; 3. Having the recordreflect conferences between counsel and the

witness; 4. Making gestures that suggest thelawyer thinks the witness’s answer is soobviously false as to be funny or incredu-lous; and/or 5. Name dropping to suggestthe lawyer knows more about the witnessor the subject than the witness does.

Your expert should take confidence inthe fact that he is the one in possession ofdetailed medical knowledge—and knowl-edge is power.

Secondly, the expert must know that adeposition is not like peer review, wherethings are discussed with candor and pro-tected by privileges. Medical experts shouldnever volunteer information without evenbeing asked a question out of some mis-guided hope that doing so will “win thecase.” Instead, depositions are truly aboutgetting the relevant facts and opinions out,and leaving any excess emotions behind.

Working with the Court ReporterMedical experts need to understand not

only when to answer questions, but alsohow to answer questions.

As a courtesy to the court reporter, themedical expert should speak slowly andshould let the attorney finish his entirequestion before beginning to answer. Theexpert should avoid the use of utterances,such as “uh-huh,” or non-verbal responses,such as nodding of the head, and shouldspell out technical terms, either when usingthem during testimony or during a break.

The Importance of Listening to the Question and Thinking Before Answering

The medical expert must listen to thequestion, and think about the answerbefore answering aloud.

The expert should listen for “yes” or“no” questions, and limit response to “yes”or “no” answers where appropriate. Theexpert should only answer the question thatwas actually asked, and not the questionthe expert thinks the lawyer meant to ask.If the lawyer says he will restate a question,the expert should listen to the restatedquestion, and answer the restated question(not the “original” question). If the expertdoes not understand the question, heshould realize that he can, and should, askto have the question read back or restated.

The expert should never guess. Forinstance, it is okay to ask to look at recordswhen the expert thinks he will find theanswer within them. If timing is an issue,the expert should look at his watch andreconstruct the sequence of events in hismind to determine reliable times.

Additionally, he should not automatical-ly yield to questions such as: “Well, can youat least say whether it was less than 10 min-utes?” Sometimes it is possible to do so, butother times it is not.

Another area of confusion can stem sim-ply from a lack of definition of what isbeing timed. For example, when the lawyerasks how long “scrubbing” takes, the expertneeds to understand what is meant by

“scrubbing.” Is it just the time to actuallywash your hands? Or does it mean the timeit takes to walk from the side of the operat-ing table, into the scrubbing room, washyour hands for the requisite period, drythem, and walk back into the room forgowning? In short, the expert must be prepared to seek clarification whenever necessary.

When there are multiple questions, theyshould each be answered separately. If thequestion asks the expert to agree with a spe-cific proposition, he should not answerwith a general statement.

For example, if the question asks: “Didyou prepare a statement in which youadmitted falling below the standard ofcare?” the expert should not answer by sim-ply saying, “Yes, I wrote a statement.” Suchan answer suggests that the statement does,indeed, contain an admission that theexpert fell below the standard of care.Instead, the expert should say, “No, I didnot prepare a statement admitting I fellbelow the standard of care, but I did pre-pare a statement.”

The expert should be careful whenanswering questions that refer to events oritems as “this,” “that,” “these,” “those,” orother similar vague references. The expertmust make sure that both he and the recordare clear as to what is meant by “that.” Ifnot, the expert should either ask the lawyerto clarify what was meant by “that,” or hewill need to at least clarify his answer bydefining “that” within the answer.

The expert should answer the correctquestion, and avoid answering a long stringof questions with simply “yes” or “no”answers. Opposing counsel will sometimesget the expert in a “yes” or “no” mode, bygetting him to agree with a series of easyquestions. In doing this, counsel hopes the expert will reflexively answer “yes” to a question which he would not haveanswered “yes” to had it been asked independent of the other questions in the string.

At the same time, while you do notwant the expert to volunteer informationbeyond that which would answer the ques-tion asked, the expert must understand thesignificance of being fair and complete. Therules require complete disclosure of thatwhich will be presented at trial.

Finally, the expert should never yield toopposing counsel’s phrasing of “would thisbe consistent with good medical practice?”“Good medical practice” is not the legalstandard medical practitioners are held to.Medical practitioners are judged accordingto the applicable “standard of care.” ■

This is the third in a series of articles from theauthors on preparing medical experts for deposi-tion and trial. Goodwin may be reached atJames.Goodwin@SandersParks.com and Vatzmay be reached at ejvatz@gmail.com.

12 • JULY 2009 MARICOPA LAWYER

Preparing Medical Experts for Deposition and Trial: Preparing the Medical Expert to Testify, Part One

Rather than trying to be all things to allpeople, the best way for law firms to attractnew corporate clients is to emphasize theirspecialties, a recent survey suggests.

Almost half (45 percent) of in-house attor-neys interviewed said practice area expertise isthe most important factor when deciding tohire outside counsel. Previous experienceworking with the law firm ranked second,with 35 percent of the responses from corpo-rate attorneys. Litigation and intellectualproperty were identified as the matters legaldepartments most often assign to outsidecounsel.

The survey was developed by RobertHalf Legal, a staffing service specializing inattorneys, paralegals and other highlyskilled legal professionals. It was conductedby an independent research firm andincludes responses from 150 attorneys fromamong the largest corporations in theUnited States and Canada. All respondentshave at least three years of experience in thelegal field.

Lawyers were asked, “Which one of thefollowing criteria is most important whendeciding to hire outside counsel?” Their responses:

Practice area expertise . . . . . . . . .45%Previous experience working

with the firm . . . . . . . . . . . . . . .35%Knowledge of business/industry . .9%Reputation of the firm . . . . . . . . .6%Cost or project pricing . . . . . . . . .3%Other . . . . . . . . . . . . . . . . . . . . . .2%

100%

Lawyers also were asked, “Which of thefollowing matters, if any, does your legaldepartment assign to outside counsel?”

Their responses:*Litigation . . . . . . . . . . . . . . . . . .92%Intellectual property . . . . . . . . . .75%Mergers and acquisitions . . . . . . .71%Bankruptcy . . . . . . . . . . . . . . . . .60%Financial or regulatory . . . . . . . .60%Employment . . . . . . . . . . . . . . . .55%Electronic discovery . . . . . . . . . . .53%Environmental . . . . . . . . . . . . . .52%Corporate transactional . . . . . . . .51%Real estate . . . . . . . . . . . . . . . . . .45%Securities . . . . . . . . . . . . . . . . . . . .3%Antitrust . . . . . . . . . . . . . . . . . . . .1%Insurance . . . . . . . . . . . . . . . . . . . .1% Other . . . . . . . . . . . . . . . . . . . . . .3%*Multiple responses were allowed.

“In a challenging economy, competitionamong law firms has intensified as legaldepartments carefully monitor their spend-ing and assign more projects to internalteams,” said Charles Volkert, executivedirector of Robert Half Legal. “But for cer-tain matters, companies will always have aneed for specialized legal services. Law firmsthat showcase their practice area expertiseand demonstrate a thorough understandingof an organization’s specific needs, chal-lenges and goals will have an advantage inattracting business.”

Volkert added that legal departmentsoften must develop comprehensive strate-gies to prepare for litigation and to safe-guard their company’s assets.

“In-house attorneys are seeking timely,value-added advice and support from out-side firms to successfully navigate complexissues and minimize risk.” ■

Practice Area Makes PerfectIn-House Attorneys Say Practice Area Expertise Key When Choosing a Law Firm

Nominations may be made by mail or e-mail. Go to www.maricopabar.org for electronic forms and more information. Submit nomination form to Allen W. Kimbrough, Executive Director, Maricopa County Bar Association, 2001 N. 3rd Street, Suite 204, Phoenix, AZ 85004-1439; Phone: (602) 257-4200; akimbrough@maricopabar.org.

DEADLINE FOR SUBMISSION IS AUGUST 7, 2009

MARICOPA LAWYER JULY 2009 • 13

MARICOPA COUNTY BARHALL OF FAME

2009 NOMINATION FORM Throughout its history, Maricopa County has been blessed with extraordinary lawyers dedicated to the improvement of the legal profession and the lives of its citizens. Many ofthose attorneys have also served in leadership roles in the Maricopa County Bar Association. The MCBA has created the Maricopa County Bar Hall of Fame to recognize andthank in some small way these true giants of our profession. Thirty-six distinguished attorneys were the first inductees into the Hall of Fame in 2008. This year, we again seeknominations to represent the broad diversity of the legal profession in Maricopa County.

HALL OF FAME CRITERIAThe Maricopa County Bar Hall of Fame will recognize Maricopa County attorneys who have practiced for at least 10 years and who have:

1. Played prominent and important roles that have had an impact on the history and development of our local bar and the legal profession; 2. Made significant or unique contributions to the law or the administration of justice; or3. Demonstrated significant leadership, advocacy and accomplishments in service to the community or the profession.

Full name of nominee:

PLEASE ATTACH A DETAILED BIOGRAPHICAL DESCRIPTION OF NOMINEE Brief statement of nominee’s significant qualifications and achievements:

NOMINATION SUBMITTED BY:

Name:

Firm:

Address:

City, State, Zip:

Telephone:

E-mail:

the way law schools teach students to “thinklike lawyers.” In bench trials or actions tried toan advisory jury, Rule 52(a) of the FederalRules of Civil Procedure requires the court to“find the facts specially and state its conclusionsof law separately.” Appellate courts commonlyhand down decisions with signed opinions(including majority, plurality, concurring anddissenting opinions), per curiams, or unpub-lished opinions or orders stating reasons. Thesecornerstones of trial and appellate judging holdlessons fundamental to the everyday decision-making of lawyers and their clients.

Rule 52(a)The trial court’s written findings and con-

clusions focus appellate review, permit applica-tion of preclusion doctrines, and inspire confi-dence in the trial court’s decision-making. Butthe federal courts of appeals have also recog-nized a “far more important purpose” of Rule52(a), “that of evoking care on the part of thetrial judge in ascertaining the facts.” TheSupreme Court has recognized that “laymen,like judges, will give more careful considerationto the problem if they are required to state notonly the end result of their inquiry, but theprocess by which they reached it.”

In United States v. Forness in 1942, theSecond Circuit gave perhaps the most thought-ful judicial explanation of the prime goal ofRule 52(a). The unanimous panel includedJudge Charles E. Clark, the chief drafter of theFederal Rules of Civil Procedure and an

acknowledged expert in their meaning andapplication.

Writing for the panel, Judge Jerome Franksaid this: “[A]s every judge knows, to set downin precise words the facts as he finds them is thebest way to avoid carelessness . . . . Often astrong impression that, on the basis of the evi-dence, the facts are thus-and-so gives way whenit comes to expressing that impression onpaper.” Judges hold no monopoly on thisknowledge.

Appellate Decision-makingThe appellate court’s full opinion or abbrevi-

ated writing shows litigants that the court con-sidered their arguments, facilitates furtherreview on remand or by a higher court, anddefines the decision’s meaning as precedent. Butthe written word’s capacity to sharpen the deci-sion makers’ internal thought processes loomslarge, as it did in the district court. “Theprocess of writing,” says Justice Ruth BaderGinsburg, is “a testing venture.”

Chief Justice Charles Evans Hughes found “nobetter precaution against judicial mistakes thansetting out accurately and adequately the materialfacts as well as the points to be decided.”

“Reasoning that seemed sound ‘in thehead’,” U.S. Circuit Judge Richard A. Posnerexplained decades later, “may seem half-bakedwhen written down, especially since the writtenform of an argument encourages some degreeof critical detachment in the writer. . . . Manywriters have the experience of not knowingexcept in a general sense what they are going towrite until they start writing.”

Conclusion: ‘The Human Factor’In Forness, Judge Frank acknowledged that

“fact-finding is a human undertaking” which“can, of course, never be perfect and infallible.”Writing can certainly sharpen thought in every-day decision-making, but the outcome dependson prudent use of the writing and other extrin-sic sources of information and reason. Listingpros and cons can orient the decision maker,but the list offers no compass pointingineluctably to the right answer.

When President Bush pondered a SupremeCourt nomination in 1990, for example, hetook a legal pad and carefully penned the prosand cons of naming U.S. Circuit Judge DavidH. Souter, whose tenure on the court did notturn out the way the president had anticipated.

Because so much professional and personaldecision-making involves emotion and otherintangibles whose force written words alone can-not capture, the outcome does not necessarilydepend on which side of the ledger—pro orcon—holds the longer list. Indeed, when CharlesDarwin pondered whether to propose to hisfuture wife, his list contained 13 “cons” and onlynine “pros,” but he married her anyway.

The “human factor,” sometimes called a“gut feeling,” may tilt the scale and ultimatelycarry the day. When Thomas P. Schneider’sterm as U.S. attorney for the Eastern District ofWisconsin ended in 2001, for example, heweighed offers to join large influential law firmsat handsome salaries, plus friends’ suggestionsthat he cap his 29-year career as a prosecutor byrunning for state attorney general.

“As most lawyers would,” reported theMilwaukee Journal Sentinel, “Schneider grabbeda legal pad and divided the page into twocolumns: pro and con.” Then his wife steppedin. “This is not a legal brief,” she told him.

“This is your life.”And the rest is history, as it was with Eli

Manning. Schneider rejected politics and lucra-tive private law practice to become executivedirector of COAYouth and Family Centers, anagency dedicated to improving poor Milwaukeeneighborhoods by enhancing opportunities forneedy children and their families.

“I’ve always loved working with kids,” hesays, “What I really care about is how you makea positive difference in this world.” ■

Abrams is a professor at the University of MissouriSchool of Law. This article originally appeared inPrecedent, the quarterly journal of The Missouri Bar.

But ‘Will It Write’?continued from page 6

warrant authorized the state to seize person-to-person wire transfers sent from states otherthan Arizona to numerous locations inSonora. When a person in Sonora requestedpayout of a covered transfer, Western Unionwas required to retain the funds, notify theintended recipient of the seizure, and remitfunds to the superior court.

Western Union challenged the court’sjurisdiction and asked it to enjoin the statefrom seeking further warrants in similar cir-cumstances. The court agreed that it lackedjurisdiction to seize funds sent to Sonorafrom states other than Arizona. It quashedthe warrant, holding that there was no prob-able cause to believe that any specific wiretransfer involved the proceeds of Arizonaracketeering activity.

The court of appeals reversed. State v. W.Union Fin. Servs., 219 Ariz. 337, 199 P.3d592 (App. 2008). It held that “if a foreigncorporation is subject to general in personamjurisdiction in Arizona, its debts can be con-sidered within this state for purposes of inrem jurisdiction.” The supreme court grant-ed review, vacated the court of appeals’ opin-ion, and reinstated the trial court’s judg-ment. Justice Andrew Hurwitz wrote themajority opinion.

Before analyzing the issue, Hurwitz empha-sized that in rem jurisdiction was the onlyquestion. “Because Western Union does notdispute that its activities in this state allow theexercise of general jurisdiction, . . . the DueProcess Clause permits the corporation to besued in personam in Arizona for any reason,”he wrote. Consequently, “the FourteenthAmendment poses no bar to an Arizona court,after an appropriate showing, issuing in per-sonam orders to Western Union governing thedisposition of wire transfers involving the pro-ceeds of racketeering conducted in this state.”

The particular issue, as posed byHurwitz, was “whether the superior courtcan properly exercise in rem jurisdiction overWestern Union money transfers originatingin other states and directed to Sonora,Mexico.” Analyzing the rocky road that theUnited States Supreme Court had blazed onthe subject of in rem jurisdiction, Hurwitzagreed with the superior court that it lackedjurisdiction here.

Hurwitz asked whether “a money transfersent from a state other than Arizona to a recip-ient in Sonora, Mexico [is] located within this

state for purposes of in rem jurisdiction?” It iseasy to determine the location of tangibleproperty. But intangible property can be prob-lematic; as the Fifth Circuit has noted: “Thesitus of intangible property is about as intangi-ble a concept as is known to the law.”

This brought up cases that you mightremember from law school, including World-Wide Volkswagen Corp. v. Woodson, Shaffer v.Heitner, International Shoe Co. v. Washington,and so on back to the 1877 case of Pennoyerv. Neff. But the bone of contention wasHarris v. Balk, 198 U.S. 215 (1905), wherethe court had indulged the legal fiction thata debt follows the debtor. From that reason-ing, the court had concluded that when thedebtor’s creditor himself owed money to athird party, that third party could garnishthe debtor wherever he might be found.

The state asserted that in its wire-transfertransactions, Western Union was indebted tothe sender, and thus the debt was located inArizona because Western Union could befound here. But Hurwitz questioned thestate’s analogy.

He felt that the company’s role was less adebtor and more a courier “who has agreedto deliver a package containing cash sentfrom Colorado [Western Union’s homestate,] to Mexico.” In such a situationinvolving a tangible package, Arizona couldnot obtain jurisdiction when the packagewas in either Colorado or Mexico, even ifthe cash inside was proceeds of a crime com-mitted in Arizona.

But Hurwitz also rejected the notion thatcash in the form of an electronic transfertruly represents money that is physically inArizona. “The technical complexities of theelectronic age should not blind courts to thesubstance of transactions in conductingjurisdictional analyses,” he wrote.

Nevertheless, the state’s contention ledHurwitz to question whether “the hoarydoctrine of Harris v. Balk”—as he called it—remained good law. The Supreme Courtappears to have abandoned the notion of“attempt[ing] to assign a fictional situs tointangibles” in favor of “general principlesgoverning jurisdiction over persons andproperty rather,” Hurwitz wrote, quoting theCalifornia Supreme Court. “Courts must,”he continued, “focus on reality, not fiction.”

Wire transfers from other states, initiatedby persons who are not Arizona residentsand sent to recipients in a foreign country

who are also not Arizona residents, were notlocated in Arizona simply because WesternUnion is generally amenable to suit here.Nor did the possibility that the seized fundsmight be payment for a crime committed inArizona locate the funds here.

In Hurwitz’s eyes, these facts pretty muchdoomed the state’s argument: “We decline toresuscitate the moribund Harris fiction as asubstitute for reasoned analysis of the situs ofthe particular intangible at issue, and as thestate concedes, that fiction is the essentialunderpinning of its in rem jurisdictionalclaim.”

Joining Hurwitz in holding that there wasno in rem jurisdiction over the seized fundswere Chief Justice Ruth V. McGregor andJustices Michael D. Ryan and W. Scott Bales.

Division Two Judge Philip G. Espinosa—sitting for Vice Chief Justice Rebecca WhiteBerch—dissented. He opined that the majori-ty opinion had only succeeded in erecting, andknocking down a straw-man argument inHarris v. Balk.

Holland v. AnthonyMeanwhile, Division Two faced its own

jurisdictional issue arising out of the newelectronic frontier: Do Arizona courts havejurisdiction over a person outside the statewho uses the Internet—specifically Ebay—tosell a product to an Arizona citizen? Thatwas the question in Holland v. Anthony, No.2 CA-CV 2008-0126 (Ariz. App. May 19,2009).

Arizonan Jimmie D. Holland bought aused car from Michagander MichaelAnthony Hurley through the Internet auc-tion site, Ebay. Holland had the car shippedto Tucson, where he discovered that it need-ed extensive repairs. Believing that Hurleyhad misrepresented the car in his Ebay list-ing, Holland sued Hurley in the PimaCounty Superior Court. The superior courtdismissed for lack of personal jurisdiction,and Holland appealed.

The court of appeals affirmed in an opin-ion by John Pelander. The issue was whetherthe trial court had specific jurisdiction overHurley. Thus, the court had to determinewhether Hurley had purposely availed him-self of conducting activities in Arizona orhad purposefully directed his activitiestoward Arizona.

Pelander held that Hurley had done nei-ther by posting an ad for his car on Ebay.There was, he held, no evidence that anindividual who sells an item on Ebay “cancontrol the state of residence of the buyer ofthat item.” This was, he wrote quoting theNinth Circuit, “a one-time contract for thesale of a good that involved the forum stateonly because that is where the purchaserhappened to reside.” The fact that Hurleyhad sold several other products on Ebay didnot change that conclusion.

Joining Pelander in affirming the dis-missal were Espinosa and Judge Joseph W.Howard. ■

14 • JULY 2009 MARICOPA LAWYER

Arizona Courts Grapple with New Age Jurisdictional Questionscontinued from page 1

A Fond Farewellcontinued from page 7

McGregor instituted the FARE program,which requires criminal defendants to paythe fines, fees and restitution that areowed, but which were frequently not previ-ously enforced. According to Chief JusticeMcGregor, this program has recoveredmore than $100 million in amounts thatwere past due, together with the recoveryof more than $350 million dollars in annu-al fines, fees and restitution.

Of great concern to Chief JusticeMcGregor during the last year has beenthe effect of the state budget crisis on thecourt system. Working with the legislatureand the governor, Chief Justice McGregorreported that the courts have absorbedstate funding cuts and fund sweeps ofmore than $28 million. Because of thesecuts, the court system has had to eliminatemore than 125 state positions and, inaddition, Arizona lower courts have frozenhundreds of other positions as a result of spending cuts imposed by counties and cities.

Taking a tough position in her recentState of the Judiciary Address to theArizona Legislature, Chief JusticeMcGregor’s message was respectful, butdirect, in response to the current financialpressures felt by the judicial system as wellas all branches of state government:

“Our ability to absorb cuts is not with-out limits. The judicial branch of govern-ment is a separate, co-equal branch of gov-ernment, not a discretionary agency: wemust operate no matter the economic climate.”

In her last address, Chief JusticeMcGregor also told the legislature:

“What we can not do, however, is totake steps to make it impossible for thejudicial branch of government to operate.In these challenging days, [although]Arizona state government may have toeliminate some services; a fair and impar-tial justice system can not be one of them.”

Chief Justice McGregor in assessing theeffect of our current financial crisisobserved that “during bad economic times,people need the courts more than ever andour case loads will increase even as ourresources decrease.” She believes thatstatewide Superior Court civil filings willincrease by 50 percent over the next twoyears and that we can expect contract law-suits to increase by 90 percent.

Because of the predicted huge increasein court cases, Chief Justice McGregorbelieves that this can not be handled with-out implementing state-of-the-art auto-mated case management system which thecourt has mandated and is currently in theprocess of being developed.

Chief Justice McGregor leaves thebench with the gratitude of many wellwishers and supporters and with total con-fidence that her successor, Vice ChiefJustice Rebecca White Berch, and herother colleagues on the court, will amplylead and serve the judicial system and thestate. ■

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POSITIONS

ASSOCIATE ATTORNEY NEEDED Bilingual a plus. Oneyear minimum experience. Criminal defense attorney. Domesticrelations attorney. Superior Jury Court trial experience. Location:131 East Broadway Blvd. Tucson, AZ. Compensation: $60,000-95,000 per year + Benefits + Bonuses. If interested you may call(520) 623-2044 or camarenalaw@qwestoffice.net.

ASSOCIATE LITIGATION ATTORNEYAV-Rated mid-sizefirm seeks associate for its litigation department. Our firm offersa wide range of commercial litigation services to publicly andprivately held corporations, regulated entities, partnerships,small businesses, and individuals. Our commercial litigationdepartment represents parties in a wide range of complex litiga-tion areas, including: contract and UCC disputes; lender liabili-ty; business torts; collections; judicial and non-judicial foreclo-sures of real and personal property security interests. Prefer 3-5years commercial litigation experience. Candidates must bemembers of the State Bar of Arizona, have excellent profession-al credentials, good communication skills and demonstrateexceptional analytical and writing skills. If you seek a balancedlifestyle and are interested in joining a collegial and client-cen-tered firm, please forward your resume in confidence to:Recruiting Director, Ridenour, Hienton & Lewis, PLLC, 201 N.Central Ave., 33rd Floor, Phoenix, AZ 85004 or fax to 602-254-8670. www.rhk-law.com.

BISHOP & MARTIN LAW OFFICEAV rated law firm seeksfamily law attorney. At least 2 yrs exp. and excellent writing skillsreqd. Fax resume to (602) 749-8502 or e-mail to bill@bishopla-woffice.com.

CONSUMER BANKRUPTCY ATTORNEY wanted forArizona’s largest consumer bankruptcy firm. Excellent pay andbenefits. Please fax confidential resume to 602-288-1665.

LITIGATION ATTORNEY Greenberg Traurig continues itsgrowth with over 1,800 lawyers in 32 offices. The Phoenix Officeis seeking a litigation attorney with 3-5 years commercial litiga-tion experience in Arizona. Excellent academic credentials andtop tier law firm experience required. Please send your resumeto PhxCareers@gtlaw.com. Greenberg Traurig is an EqualOpportunity Employer.

MEDIATORS WANTED Established divorce mediation firmseeks mediators with JD and undergraduate or higher degree inpsychology or similar area of study. Positions available in EastValley, Phoenix and Tucson, Arizona. E-mail resume to: media-tor.resume@gmail.com.

NORTH SCOTTSDALE LAW FIRM seeks a part-time con-tract attorney with civil litigation experience. Class action expe-rience a plus. Candidates must be licensed to practice in Arizonaand current on their CLE requirements. Competitive hourlysalary; however, since this is a part-time contract position, bene-fits are not offered. Fax resume to 480-348-6415.

TITUS, BRUECKNER & BERRY, PC, an AV-rated northScottsdale law firm, is looking for senior level attorneys or prac-tice groups to join its busy commercial practice. As a 20-year-oldlaw firm with strong community ties, we are looking for self-starters and groups for expansion into areas which complementour existing practice and its strong reputation:Bankruptcy/Creditor Rights, Commercial Litigation, InsuranceDefense, Patent and Employment Law. Experience and portablebook of business are required. Please send confidential resume,cover letter and references to mlevine@tbb-law.com.

SERVICES:

A DAY-IN-THE-LIFE VIDEO shows your client’s challenges.Experienced video documentary producer and paralegal.References. (520) 358-0726.

ADD 50 YEARS EXPERIENCE to your most important casefiles. Corporations, contracts, securities. Real estate, commer-cial/civil litigation. First class editing gets results. Draft pleadings,motions, discovery, depositions, arbitrations, court appearances,etc. The Bentley Law Firm, PC. bmb@burtonbentley.com,phone: (602) 861-3055, fax: (602) 861-3230.

BAXTER ENGINEERING Expert Witness, MechanicalProducts and Equipment, Accident Reconstruction. Gene K.Baxter, Ph.D., P.E. (480) 832-7744.

HANDWRITING EXPERT Forensic document examination,handwriting/signature identification, court testimony. Heidi H.Harralson, Board Certified, Court Qualified in Maricopa County.Spectrum Forensic International, LLC, 520-975-2275,Spectrum008@aol.com, www.spectrumhandwriting.com.

I GIVE BUSY LAWYERS RELIEF Contract Paralegal - (602)740-5274. www.paralegal4hire.net.

TECHNICAL TAX ASSISTANCE- I will assist you on a refer-ral or per diem basis for those difficult issues involving Estate &Gift/Trust tax planning or returns, Tax Exempt Orgs or CRUTs,Real Estate transactions, Business Valuations, Exit Planning orSale of a Business, Penalties, IRS or ADOR Appeals. Resume at:www.felco.biz Call me Ira Feldman CPA, CVA, CEP at 602-850-5101 or ira@felco.biz.

OFFICE SPACE:

16TH STREET & GLENDALE Just off fwy. 700 sq ft, newspace in professional bldg. Ideal for CPA, Atty, Financial. Accessto large conf room, breakroom, and office services. Short termlease at great rate. Jason.feldman@cox.net (602) 850-5110.

DOWNTOWN LAW OFFICES Three offices and one secretarial workstation available. Conference rooms, library,kitchen, fax, photocopy, storage, parking and easy access to light rail. Excellent location and working environment. 1100 E. Washington. Call Lisa, Crowe & Scott, (602)252-2570.

FIRST MONTH FREE View office on the 11th floor of Bankof America Financial Plaza building in Mesa. Perfect for solepractitioner. Amenities include covered parking, receptionist,conference rooms, phone and internet. Beginning at $600.00.Jeanne@sperrylawfirm.com or 480-491-5152.

GREAT LOCATION 2701 E. Camelback. Approximately3300 sq. ft. of office space available for lease. Generous tenantimprovement allowance. Signage on Camelback. Covered park-ing. Contact Buddy Rake at (602) 264-9081.

HOURLY OFFICE SPACE $20 per hour for beautiful furnished office and conference room at the Mirage Executive Suites. Water features and soothing Tuscan décor. Business identity packages available starting at $60 per month. See us at 10575 N. 114th Street, Suite 114,Scottsdale, AZ, 85259, (480) 344-7700 or at www.mirage-suites.com.

NORTH SCOTTSDALE OFFICE SHARING Attorney’soffice along with conference room and staff space. Phones, dig-ital copier, fax, voice mail, kitchen, and free health facility allavailable. Share with long established tax and estate planningfirm of Bredemann & McFarlane, PLC. Referrals available. ClassA building located at 8655 E. Via de Ventura, right off the 101.Contact Richard Bredemann at 480-998-0999, extension 102.

OFFICE SHARE Two offices available, $500 per month each,32nd St and Osborn, many amenities, possible referrals, shortterm lease. 602-954-1300.

OFFICE SPACE CHANDLER Located at 101 & 202 freeway.Available immediately. Granite reception. Conference and cov-ered parking. Offices surround courtyard and waterfalls. Ideallaw space. Call Chris at (480) 329-3733 or e-mail at cswan-son@mammothequities.com.

OFFICE SPACE ON TATUM Fully furnished attorney officeand secretarial/paralegal work station available in new class-Aoffice building owned by firm’s partners. Located on TatumBoulevard, north of Shea. Shared use of office equipment, phonesystem, Internet, conference room, and kitchen. Receptionistincluded. Highly professional and friendly environment. ContactDonald Loose, 602.971.4800, for more information, and viewphotos at www.loosebrown.com.

OFFICES/SECRETARY STATIONS Law firm BaumannDoyle Paytas & Bernstein has one office / two secretary stationsavailable located at 44th Street/Thomas. Exceptional opportuni-ty for solo bankruptcy practitioner because of potential referrals.Excellent location with easy access for: 202, airport, East Valley,Northeast and Downtown courts. Additional benefits: coveredparking, receptionist services, exercise/fitness room with rac-quetball courts, high-speed copier/fax. Call Carolyn or Mike fortour 602-952-8500.

OFFICES AND SECRETARIAL STATION(S) available inlaw office located at 7th Street and Palm Lane. Use of conferenceroom, reception area, library, copy/assembly area, break roomand covered parking. Available immediately. Please contactWendi at 602-252-4861 to discuss further and to arrange a visit.

PROFESSIONAL LEGAL OFFICE SPACE Very nice suiteavailable in one of downtown’s more popular small office build-ings. Close to the courts. Amenities include a receptionist, phonesystem, two conference rooms, library, full kitchen, gym withJacuzzi, and lots of free parking. Perfect for solo practitioner withan assistant. This is a highly desirable location and space usual-

ly does not last long. Call David Rose at (602) 340-8400. 1440East Washington Street Phoenix, Arizona 85034. First time thisspace has been available in years.

SCOTTSDALE SUBLEASE AVAILABLE within doctor’soffice. Perfect for young attorney or solo practitioner. Call (480)860-6890.

SHARE SUITE with two experienced civil attorneys at 2999 N.44th Street, Phoenix. Some overflow work available.Beautiful building, large third floor offices. One office has nearby secretarial bay, excellent view, hardwood floor. A second office has excellent view w/o secretarial bay. Will rent separately or together. Rent includes receptionist services, conference room, workroom/kitchen, telephone system, high speed Internet. Pass through cost of use of fax, copy machine, postage meter. Reserved covered parking available. Call 602-614-4488 or contact us atlogan@loganlf.com.

SIX EXECUTIVE OFFICE SPACES AVAILABLE in historicPhoenix mansion. 125 E. Coronado Rd. $800-$3,200/mo.Includes receptionist, conference room, covered parking,phones and copier. Contact Jessica at (602) 253-1388.

TATUM/SHEA OFFICE SHARE One prime office in newly-renovated building to share with A-rated real estate lawyer. Largeor small office available. Space wired for own phone. Fax, copi-er, scanner and part-time secretarial assistance available; pricebased upon usage. Call Mike Mulchay at (602) 264-4232.

THREE ATTORNEY OFFICES AVAILABLE in new 9,000sq. ft. build-out. Amenities include spacious secretarial bays,receptionist, four conference rooms, ADA restrooms, copy room,file room, executive covered parking. Fifth Avenue and Osbornarea. Flexible terms. For more details e-mail magunzo@dyerfer-ris.com or visit www.dyerferris.com.

JULY 2009 • 15MARICOPA LAWYER

CLASSIFIEDSTo place a classified ad, please e-mail maricopalawyer@maricopabar.org or call (602) 257-4200.

COLLECT THOSE JUDGMENTS!Get them out of your files and generate revenue

Let an AV Rated Attorney with 24 years of experience handle them for you

MICHAEL J. FULLER, ESQ.3030 North Third Street, Suite 200, Phoenix, Arizona 85012

602-241-8599mjfuller.esq@juno.com | www.mjfullerlaw.com

Contingency Fee Splitting available in compliance with Ethical Rule 1.5(e)

5,400 SF NRA

Easily Subdivided

4,003/1,397 SF

Top Floor � NE CornerMAGNIFICENT VIEWS

Signage Available on Camelback � All Visitor Parking Covered & Convenient � All Tenant Parking Underground

Privatized Underground Storage Facilities Available � Seven Built-In Custom Work Stations

Kitchen/Break - Fully Equipped � Custom Reception Desk & Counter

A TRUE EXPRESSION OF CORPORATE DISTINCTION

FOR FURTHER INFORMATION CONTACT:

CAMIDORNicole Brook � nbrook@camidor.com Terry Biehn � tbiehn@camidor.com Joe Blegen � jblegen@camidor.com

CAMIDOR PROPERTY SERVICESVisit our website: www.camidor.com

(602) 650-2260

FOR LEASEEstablished Law Office Space

2198 E. Camelback, Phoenix

16 • JULY 2009 MARICOPA LAWYER

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Robert Half Legal contacts over 20,000 legal hiring managers each week – gaining the experience and perspective necessary to create the profession’s authoritative salary guide. It is your essential resource for national salary ranges, in-depth regional salary analysis, top specialties in demand and more.

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2375 E. Camelback Road, Suite 290, Phoenix, AZ 85016

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