Key changes to court's local rules of practice - Quarles ...

AUGUST 2013Volume 32, Number 8

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Where The Legal Community Connects

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INSIDE...n Criminal law update–p. 3

n Separate but not equal–p. 6

n SPECIAL SECTION Paralegals and the legal profession–p. 8

It’s all cool fun with the Coyotes Curling Club on Sat-urday, Aug. 17 from 5-9 p.m. at the Ice Den in Scottsdale. Get started at 18˚ (inside the Ice Den) with complimentary appetizers and a no-host happy hour. Don’t know how to curl? No problem, you’ll learn. Regardless of expertise, having fun and raising funds for the Foundation is the goal. Regis-ter now online at www.marico-pabar.org. This event is limited to the first 50 who sign up.

Support the Foundation—

and beat the heat

Members interested in running for one of five available seats on the MCBA’s Board of Directors are invited to declare their can-didacy.

Incumbents are Zachary Cain, Michael Kielsky, Cathy Knapp, Norma Izzo Milner, and Chris Rike. At least one of the candidates has advised MCBA staff that they will not be seeking re-election. Each of the five posi-tions consists of a two-year term beginning in 2014.

Board members attend monthly meetings, liaise with one or more MCBA sections, divi-sions, or committees, and support the work of the association.

Candidates must be licensed Arizona attor-neys or judges, active members of the MCBA, and in good standing with both MCBA and the State Bar of Arizona.

Candidates are asked to:(1) Submit a letter of candidacy to MCBAExecutive Director, Allen W. Kimbrough,

either by email or postal mail: MCBA, 303 E. Palm Lane, Phoenix, AZ 85004-1532 or [email protected] no later than 5 p.m. Sept. 16, 2013.

(2) Provide additional required election

By John F. Barwell

Substantial changes to the Maricopa Coun-ty Superior Court’s lo-cal rules of practice went into effect July 1, impacting policy and procedure for all types of cases.

While practitioners and legal professionals should review the Ari-zona Supreme Court’s June 12 order approv-ing the amendments, some of the more broad-ly relevant changes are summarized below.

To determine whether a specific rule was changed and to see how it affects your practice, check the court’s order at http://www.azcourts.gov/Portals/20/2013Rules/R120033Order.pdf.

Among the changes affecting all cases are the following:

n Local Rule 2.5 – Witnesses, Subpoenas, Summonses, and Orders to Appear:The required language for summonses, subpoenas and orders to appear was modified to contain the following: “(1) Requests for reasonable accommodation for persons with disabilities must be made to the division assigned to the case by the party needing accommodation or his/her counsel at least three (3) judicial days in advance of a scheduled proceeding. (2) Requests for an interpreter for persons with limited English proficiency must be made to the division assigned to the case by the party needing the interpreter and/or translator or his/her counsel at least ten (10) judicial days in advance of a sched-uled court proceeding.” If the required language does not appear on a summons or subpoena presented to the Clerk of the Superior Court for issu-ance, the clerk will refuse to issue the sum-mons or subpoena.

n Local Rule 2.14 – Motions to Contin-ue or Extend Time:In any motion to continue or motion to extend a deadline, the filing party must state in the motion whether the opposing party or parties object to the continuance or extension. If the filing party is unable to contact the opposing party or parties, the motion must demonstrate the attempt to contact the opposing party or parties. n Local Rule 2.16 – Size of Print:The typeface used in all pleadings, motions and other original papers or documents (including text, quotations and footnotes) filed with the Clerk of the Superior Court shall be in a type size no smaller than twelve (12) point. n

John F. Barwell is an attorney with Polsinelli, PC and a member of the Maricopa Lawyer Editorial Board.

Key changes to court’s local rules of practice

Candidates for MCBA Board of Directors invited to declare

See Candidates for MCBA Board page 15

The Estate Planning, Probate & Trust Section’s annual judicial reception was held earlier this summer at the Wells Fargo Museum in downtown Phoenix. Enjoying the evening are Commissioner Carolyn Passamonte, Judge Edward Bassett, and Kevin Parker of Snell & Wilmer.

EPPT Section welcomes judges

John F. Barwell

It’s August. July has come and gone and, for better or for worse, we have to get back to work. At some point in the foreseeable future (and we may still be a long ways off), temperatures will cool, and the Valley will become palatable again. That also means ev-eryone will be back from vacation and things will get going again.

The same holds true for the MCBA. We have a busy fall, and I hope you will join us for an exciting line-up of events. Of course, we always have great CLEs and monthly meetings for all of our sections, divisions and committees. But, there is much, much more.

Race JudicataThe fall kicks off with our annual Race

Judicata, which offers a 5k and 1 mile race and a Kids’ Dash, all of which benefit the charitable endeavors of our Young Lawyers Division. This annual event will be held on Sunday, Oct. 6. I plan to “activate” myself for this one, and I hope you will too. More information about Race Judicata can be found here at www.maricopabar.org..

First annual Bench-Bar ConferenceUp next will be our first ever Maricopa

County Bar Association Bench-Bar Confer-ence. This conference will be held at the Hotel Palomar on Friday, Oct. 11, beginning at 1:30 p.m. The mission of the Bench-Bar Committee is to forge a spirit of coopera-tion, collegiality, and exchange among the judiciary and the practicing bar by providing a resource to collaboratively solve problems and improve the legal system, thereby pro-viding an accurate public perception of the judicial system.

And, the conference will be no different. We expect over 100 attendees from both the bench and bar. We also hope we will have a productive and constructive dialogue, as well as a learning experience for all. Keep an eye out in both the Maricopa Lawyer and our website for more information about this exciting event.

Annual Meeting and Hall of Fame Luncheon

October concludes with our Annual Meeting and Hall of Fame Luncheon on

Oct. 30, 2013 at the Downtown Hyatt. As in years past, the pillars of our legal community, both past and present, will be inducted into the Maricopa County Bar Hall of Fame. And, for the second year in a row, our luncheon will include a Member of the Year award.

This is the best time for all members of our legal community to come together, cel-ebrate another successful year (our 99th year at that!), and to recognize those members of our local bar that have gone above and beyond the call of duty.

MCBF Pro Bono Golf ClassicIt wouldn’t be November without the Mari-

copa County Bar Foundation Pro Bono Golf Tournament, sponsored this year by BMO Private Bank. Founded in 1983, the MCBF is the charitable arm of the MCBA. Each year the MCBF Board of Trustees awards grants to organizations and projects that support the mission of the Foundation.

The work of the MCBF is a tribute to the concern, commitment and generosity of Maricopa County’s lawyers toward their com-munity. The Pro Bono Golf Tournament is the primary fundraiser for the MCBA each year, so I hope you will lay out your golf slacks, shine up your clubs (or, like me, get them down from your attic) and meet us at the Legacy Golf Resort on the morning of Saturday, Nov. 2.

It should be self-evident, but there is lots to do this fall to help support your MCBA, to reconnect with your peers, and very likely help a great cause.

So, let’s get back to work! n

MARICOPA LAWYER2 • AUGUST

The Maricopa Lawyer is published monthly on the first of each month and mailed to members of the Maricopa County Bar Association, 303

E. Palm Lane, Phoenix, AZ 85004-1532. Please send address changes to the MCBA at the

above address or to [email protected] or (602) 257-4200. The MCBA website is at www.maricopabar.org and pdf copies of past issues are available for viewing. Please send editorial submissions to Isolde Davidson at

[email protected]. The editorials and other views expressed in the Maricopa Lawyer

are not necessarily those of the Association, its officers or its members. Advertising rates and in-formation are also available from Karla Durazo at [email protected] or (602) 257-4200.

GIVE US YOUR OPINIONThe Maricopa Lawyer welcomes letters to the

editors or opinion pieces for publication. Letters and opinion pieces should be typed and

preferably submitted electronically. Opinion pieces are limited to 1,500 words and letters to 700 words, and the editors reserve the right to reject submissions or condense for clarity, style

and space considerations. Letters must be signed to verify authorship, but names will be withheld

upon request. Authors of opinion pieces will have their names published. Letters and opinion

pieces should be mailed to: Isolde Davidson, editor, Maricopa County Bar Association,

303 E. Palm Lane, Phoenix, AZ 85005-1532. Phone: (602) 257-4200.

Fax: (602) 257-0405.Email: [email protected].

Let’s get back to work!

The Official Publication of theMaricopa County Bar Association

EDITORIAL BOARDAaron Nash, Chair

Clerk of the Superior Court’s Office John F. Barwell

Polsinelli, PCEda Barolli

Snell & Wilmer, LLPBrian E. Cieniawski

Bremer Whyte Brown & O’Meara, LLP Margaret Olek Esler

Fennemore CraigJenna Gamble

Maricopa County Attorney’s OfficeTamara Herrera

Clinical Professor of Law, ASU Sandra Day O’Connor College of Law

Amber Pershon Student Rep – Phoenix School of Law

Meagan Pollnow Asimou & AssociatesDaniel P. Schaack

Assistant Attorney General, State of ArizonaRiley S. Snow

Law Office of Riley S. Snow, PLCStan Watts

Dohrer & Watts, PLC

Ex-OFFICIO MEMBERSKaren Arra

Director of Media Relations Superior Court of Maricopa County

MCBA PresidentDavid E. Funkhouser III

Quarles & Brady, LLPMCBA Executive Director

Allen W. KimbroughBoard Liaison

Comr. Keelan BodowMaricopa County Superior Court

Staff EditorIsolde Davidson

Director of Membership & Communications

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Writing pitfalls come in various types. Al-though many legal writers assume the most obvious errors cause the most confusion for readers (such as typos), I have found that the smaller grammar and style issues end up caus-ing more legitimate confusion. Pronouns are perfect examples of simple words with poten-tial pitfalls.

The first pitfall that can trap the unwary pronoun user is what I call “the unfinished comparison.” Consider the following sentence:

Gabriel spent more time with Sam than you.The comparison is signaled by the word

“than,” but the actual activity being compared is open to two, perfectly understandable inter-pretations. The sentence could mean that Ga-briel spent less time with you lately, or the sen-tence could mean that in a race to spend more time with Sam, you have lost and Gabriel has won. To avoid this potential pitfall, make sure to use a full subject/verb clause to match the

construction of the first half of the sentence. A pronoun subject works fine.

Gabriel spent more time with Sam than you spent.Gabriel spent more time with Sam than he spent with you.The second pitfall is also an issue of a con-

struction mismatch. Consider the following sentence:

Each participant should pay attention to the dis-claimers, or you may miss the important terms.The sentence contains a mismatch between

the main subject (participant) and the replac-ing pronoun in the second clause (you). Is this “you” a participant, and is the advice intended specifically for “you”? Or is this advice intend-ed to be a blanket word of caution for every-one participating? To avoid the confusion, use the pronouns “he” or “she” when replacing a noun that describes a person’s role.

Each participant should pay attention to the dis-claimers, or he may miss the important terms.To avoid using a gendered pronoun, re-

write the sentence with a plural subject (if this makes sense) and use “they” as the pronoun.

Participants should pay attention to the disclaimers, or they may miss the important terms.Although these grammar mismatches do

not show up on most word processors’ gram-mar check programs, they are worth looking for to avoid confusion. n

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By Jenna Gamble

The MCBA’s crimi-nal law series offered in May and June pro-vided practical infor-mation pertinent to defense attorneys and prosecutors alike. Each session built off the last, beginning with the inner-workings of cen-tral intake at the Fourth Avenue Jail and ending with factors used by the Adult Probation Presentence Division to assess an offender’s risk level in the final session.

The Session One panelists, including Deputy Public Defender Jennifer Rock and Mesa City Prosecutor Jon Eliason, discussed the booking process, initial appearance, and implications of technology in the jail.

Key points addressed in the series: n Filming in jails: Other than jail calls

that are constantly monitored, filming in jails has become increasingly popular. Me-dia access into the jails is allowed and each inmate has the option of signing a media waiver. As a result, defense attorneys must give their in-custody clients certain advise-ments. On the flip side, prosecutors have more sources of data available to review for information useful to the case.

n Two tech advances might be in the future for the jails:

— With the overwhelming popular-ity and accessibility of email, an inmate email system may be in the distant fu-ture. The emails would be treated as phone calls and subject to monitoring, thus potentially causing a slew of head-aches for defense attorneys and a moun-tain of information for prosecutors.— Another potential advancement that may prove to be convenient for busy de-fense attorneys is a web-based visitation program. Over a secure sever an attor-ney would be able to “visit” their client from the comfort of their office. n Plea negotiations: — Raise the subject of a plea agreement to the client early on in the case. One important reason is that many mitigation

materials may take some time to obtain. The panelists make a practice of gath-ering, for example, letters from family, friends, and employers early on so they are available to submit to the prosecu-tor along with a deviation request early in the case. These same materials may be used again at the time of sentencing.— The significance of conveying the potential consequences that are not list-ed in any plea agreement. For example, the impact of a criminal conviction on the client’s credit report, professional li-cense, and state benefits such as financial aid. Especially with regard to profession-al licenses, it is crucial to determine the scope of representation – if the client is in a self-reporting profession, is the attorney responsible for reporting the arrest or conviction to the appropriate board? n Sentencing: — Adult Probation Officer Janet Blake spoke about the role of the Maricopa County Adult Probation Presentence Di-vision, which “provides evidence-based investigation results for examination at the presentence and post-sentence lev-els.” The division provides a forum for defendants, victims, and other interested parties in an effort to recommend the most appropriate sentence to the court. — Categories likely contribute to an of-fender’s criminal behavior include edu-cation, drug abuse, and attitude, to name a few. Generally, a score above 60% un-doubtedly indicates a need for treatment and intervention. — Defense attorneys, prosecutors, and judges rely heavily on the information provided by the Adult Probation Office.

The details of major topics discussed by the article are available in self-study materi-als from the MCBA. For more information, contact Bree Boehlke at [email protected]. n

Jenna Gamble is a member of the Maricopa Law-yer Editorial Board and an attorney with the Mari-copa County Attorney’s Office.

Practice tips, glimpse of future presented in Criminal law series

Pronoun pitfalls

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Legal BriefsBy Meagan Pollnow

Federal appellate courts must issue mandate after certiorari is denied, absent extraordinary circumstances

The U.S. Supreme Court held that federal appellate courts cannot stay mandate after the Supreme Court denies certiorari except, possibly, in extraordinary circumstances.

In Ryan v. Schad, the federal habeas petition of Edward Schad, an Arizona man sentenced to death for a 1978 strangling, was denied in district court. The Ninth Circuit reversed in part, but the Supreme Court vacated and remanded. On remand, the Ninth Circuit affirmed the district court’s ruling and initially denied Schad’s motion to vacate and remand for additional proceedings in light of new case law. Schad then filed for certiorari which was denied.

The Ninth Circuit stayed the mandate in order to reconsider the previously denied motion to vacate and remand and subsequently granted the motion and stayed Schad’s execution. The state of Arizona petitioned for certiorari, arguing that the Ninth Circuit had improperly withheld the mandate after Schad’s petition for certiorari was denied.

The Court held that an appellate court must issue its mandate if certiorari is denied. Emphasizing the federalism and finality concerns inherent in federal habeas review

of state court judgments, the Court found that the Ninth Circuit had abused its discretion in withholding its mandate after certiorari had been denied.

Assuming without deciding that extraordinary circumstances may justify an appellate court’s stay of mandate, the Court found that the circumstances of this case did not support deviating from normal mandate procedures. Here, the Ninth Circuit stayed its mandate in order to reconsider an issue previously presented to and decided by the Supreme Court with no intervening change in law or circumstances.

Full opinion can be found at http://www. supremecourt.govopinions/12pdf/12-1084_ ap6c.pdf.

Heavy burden under the Indian Child Welfare Act not applicable where parent never had custody of child

The Indian Child Welfare Act’s heavy burden for involuntarily terminating the parental rights of Indians does not attach when a biological parent never had legal or physical custody of the child.

In Adoptive Couple v. Baby Girl, a Cherokee man who had previously indicated that he preferred to relinquish his parental rights rather than pay child support challenged the adoption of his newborn baby girl by a non-Indian couple. The mother found the adoptive parents before the child was born and they

initiated adoption proceedings when the child was days old. The father did not meet the child until he won custody in state court and the child was 27 months old.

The father challenged the adoption in South Carolina state court by arguing that the adoptive parents had not shown the child would suffer serious emotional or physical harm if not adopted as required by the ICWA. The South Carolina Supreme Court ruled for the father.

The U.S. Supreme Court reversed. Drawing on legislative intent and the sociological circumstances surrounding the enactment of the ICWA, the Court construed the relevant sections of the ICWA to protect only the rights of parents whose continued custody of a child is jeopardized by involuntary termination.

Full opinion can be found at http://www.supremecourt.gov/opinions/12pdf/12-399_ 8mj8.pdf.

Arizona law requiring documentary proof of citizenship for voter registration pre-empted

The U.S. Supreme Court recently held that an Arizona law requiring documentary proof of citizenships in order to register to vote is pre-empted by the National Voter Registration Act of 1993.

In Arizona v. Inter Tribal Council of Arizona,

Inc., a group of Arizona residents and non-profit organizations challenged Proposition 200—a law requiring county recorders to reject applications for voter registration if not accompanied by documents verifying U.S. citizenship. The NVRA requires states to “accept and use” a voter registration form created by the federal Election Assistance Commission. The federal form requires that an applicant declare he or she is a citizen under penalty of perjury but does not require documentary evidence of citizenship.

The Court held that, through the NVRA, Congress knowingly invoked its authority to pre-empt state regulation of the time, place and manner of electing federal representatives under the Elections Clause. The Court read the NVRA as comporting with the exclusive authority of a state to determine voter eligibility, because the NVRA permits the inclusion of state specific information on the federal voter registration form.

The Court noted that Arizona may still challenge the Election Assistance Commission’s determination regarding the adequacy of the federal form’s proof of citizenship requirements under the Administrative Procedure Act.

Full opinion can be found at http://www. supremecourt.gov/opinions/12pdf/12-71_ 7l48.pdf. n

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As the month of August greets us, we approach ever closer to cooler temps, warm beverages, nights by the fire (usually accompanied by the distinct Southwestern smell of mesquite) and yes, football. We also approach several great YLD activities that benefit both the legal community and the residents of Maricopa County.

The 9th Annual Race JudicataOne of the best ways to shake off the

remnants of the dog days of summer is to lace-up those running shoes and walk, shuffle, or glide your way through an in-vigorating race in a great environment. The perfect opportunity to do so is on Sunday, Oct. 6 when the MCBA YLD will host the 9th Annual Race Judicata at Kiwanis Park, 5500 S. Mill Ave., Tempe, AZ 85283.

The race appeals to every end of the fitness spectrum with a 5k race and 1 mile walk in addition to a Kids’ Dash. Check-in and registration begin at 6:00 a.m., with the 5k race starting at 7:00 a.m. and the 1 mile walk shortly thereafter at 7:10 a.m. The cost is reasonable, with a price tag of $25

for an early bird registrant and $30 for a late registrant (after Sept. 23). If you would like to support the race but cannot attend, there is a “Sleep-In” option where you can donate $25.

Awards for the race will be given in the following categories: overall fastest male/female; three fastest females and three fast-est males in each 10 year age group for the 5k; and the biggest team. For the younger members of the crowd there will be a bounce house, music and balloons. Partici-pants will also receive a goodie bag, t-shirt and free food and drink after the race.

Race Judicata benefits the YLD and survivors of domestic violence through the YLD’s Legal Assistance to Women and Shelter’s program (LAWS). LAWS provides informational sessions on law-related top-ics to women and men in shelters across the Valley. Participants in the race are encouraged to bring a new tooth brush or tube of tooth paste to be distributed to area shelters for the YLD’s annual Necessi-ties Drive.

The Necessities DriveThe Necessities Drive is an annual event

held by the YLD where necessities like toiletries, diapers, toilet paper and paper towels are collected and distributed to shel-ters in Maricopa County. The YLD uses funds from the race to purchase necessities and relies on the generous donations from law firm collections to assist local shelters in meeting the needs of their residents. YLD volunteers then gather together at the end of October at Two-Men-and-a-Truck to organize and assemble the packages.

Mock interviewsEvery year the YLD and its volunteers

spend many hours giving back to the legal community and assisting law students in re-fining their interviewing skills. This fall, the YLD is looking for attorney volunteers to conduct mock interviews of law students at Phoenix School of Law on Sept. 11 and 12.

Get involved!The Young Lawyers Division is always

looking for new members and fresh ideas. It is also a great opportunity to meet other lawyers and connect with the community. If you would like to get involved with the YLD or participate in any of the above activities please do not hesitate to contact me at [email protected]. n


The YLD races towards fall

By Matt Meaker, Section Chair

Last year, as the start of a coordinated effort to “reboot” the MCBA’s Litigation Section, we launched a series of CLE pro-grams designed to raise the section’s profile and increase its relevance to the diverse population of Maricopa County litigators. As the section’s leadership continues to en-hance the professional development of its members, I want to highlight two opportu-nities in particular that we believe will pro-vide real value.

First, the MCBA Litigation Skills In-stitute will offer litigators real-world trial experience and feedback in an intensive, one-day CLE. Scheduled for Saturday, Oct. 26 the focus of this year’s Litigation Skills Institute is expert witness examinations and presentations.

Participants will receive a case study and contact information for their expert witnesses (real experts, not actors). Partici-pants will conduct and defend direct and cross examinations of the experts, as well as make opening statements and closing arguments, before the Institute’s faculty of experienced trial attorneys and current and former judges.

At the end of each trial, the faculty will

provide direct, one-on-one feedback to the participants. The Institute is limited to 28. I am excited about the makeup of the faculty, which will include judges Snow and Silver.

Second, the section is launching the long-overdue revision of the MCBA Liti-gation Guide. We are eager to produce an update that captures the many changes that have occurred since the last update more than 15 years ago. Our editorial board has reviewed the current edition and is actively seeking contributing authors.

The goal for this guide is to create a real desktop resource for litigators, providing guidance and feedback from case intake through trial. The goal is for this publica-tion to be finalized by the spring of 2014. If you are interested in contributing to the Litigation Guide, please contact me, Matt Meaker, at (480) 425-2627 or [email protected].

Finally, we are actively looking for attor-neys who would like to be involved in the section or have ideas for increasing its value. Your contributions will help us achieve our objective of making the Litigation Section one of the MCBA’s most active and impact-ful groups. n

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A great man visits A “melting pot.” That was how Dr.

Booker T. Washington characterized Phoenix from his home in Tuskegee, Alabama, after his visit during the fall of 1911. Dr. Wash-ington was impressed with the diversity that greeted him during his three-day visit to com-memorate President Lincoln’s Emancipation Proclamation.

As the most celebrated black man of his time and a dominant leader of the U.S. African-American community, Washington was welcomed to the city by two brass bands, one from the Indian School and one made up of talented local “colored people.”

He was entertained by baseball games be-tween a Mexican team and a black team, and by a footrace between an American Indian, a Mexican and a white man (the time-keeper was a black man). He shared the speaking platform with an African-American and a white minister and Arizona’s acting-governor, George E. Young.

During his visit, he met with “Mayor Dick,” the leader of the city’s Chinese com-munity and encountered his first restaurant operated by a Chinese proprietor. He was introduced to Japanese residents and Euro-pean immigrants.

Washington claimed to meet people from almost every state of the Union, most of Canada, and a cross section of Europeans. His assessment was that “everyone in Phoe-nix, I discovered, has come from somewhere else, except the Indians.”

Washington was impressed that “it will be found in this state that there are a greater variety of races and people who are struggling up out of a primitive and backward condition than in any other part of the United States.”

He observed a community that he praised as having “so little friction between the races and so much confidence, hope and good will among all classes.” Washington believed the community had “no past to live down”—prej-udice had not fixed itself in institutions and each race was “allowed to find for itself its position and place in the life of the communi-ty, and work out its salvation in its own way.”

Washington’s favorable comments may have been a bit overstated.

Racial strata True enough, the city was home to striking

ethnic and economic diversity. The popula-tion included black barbers, field workers and entrepreneurs; Chinese restaurateurs, launder-ers, and laborers; Japanese farmers and house boys; Hispanic shop-keepers, farm workers and land owners; Jewish clerks, merchants and bankers, and Native American students.

However, in the late territorial years, it could be argued that it may have been less a melting pot and more of a parfait. Each mi-nority retained a separateness from the others and clearly was assigned a societal strata that

limited, to some degree, the full social and economic integration of the community.

In one respect, however, these cultural bar-riers were not evident. Students in Arizona’s public schools before statehood shared teach-ers, facilities and homework without official regard to race. A few months after statehood, the new Democratic Arizona Supreme Court conclusively addressed this vestige of Lincoln Republicanism.

Despite the heroic efforts of some of the territory’s most respected lawyers, segregation of Arizona’s schools was held to be Constitu-tional in Damron v. Bayless, 14 Ariz. 180 (1912).

Winds of change Segregation of Arizona schools had its

origins in the Spring of 1909. By a vote of 20 to 4, House Bill 101 passed and was sent to the Territorial Council. With minor changes, the bill passed both houses of the Territorial Legislature and was sent to the governor.

HB 101 provided that school districts with more than eight pupils of “African ances-try” may “segregate pupils of the African from pupils of the White races.” Governor Joseph H. Kibbey, a Progressive Republican, appointed by President Roosevelt in 1905, immediately vetoed the bill.

Governor Kibbey attacked the extra cost and inconvenience of the proposal, ques-tioned the educational equality of forcing African-American students to attend ungrad-ed schools (due to the small numbers of such students) and emphasized the impracticability of providing equal facilities.

He argued that the proposed law “ignores those conditions and compels the parents of children of the African race to send their children to the inferior schools . . . .” Kib-bey considered this “a denial of not only a moral but a legal right.” A few days later the legislature passed the bill again, with sufficient

margins to override the governor’s veto, and on March 17, 1909, segregation became legal in the territory.

Segregation in Phoenix Most Arizona school districts ignored

this newly granted license to discriminate, but Phoenix did not. Six months after the segregation statute became law, the qualified voters of Phoenix District #1, which included only residents of the district who actually paid property taxes (including women and partners in tax-paying partnerships), approved the school board’s plan to issue $125,000 in build-ing bonds by a vote of 54 to 8.

These funds were designated for the con-struction of three new buildings and the pur-chase of land for the future construction of two more schools. One of the new buildings was designated to be the “colored school.”

Although the official notices preceding the bond election made no mention of the concept of a new segregated school, the sub-ject came up in interviews of board members that appeared in the media. Because of this publicity, the board argued that the public will expressed in the election was overwhelmingly in favor of a separate school for the commu-nity’s 53 black children (12 each in first and second grade, 10 in third grade, 5 in fourth, 7 in fifth, 3 each in sixth and seventh grade, and 1 in eighth) scattered throughout 4 town wards.

In light of the well-publicized rationale that the bond was needed to relieve extreme overcrowding for the district’s 3,204 enrolled pupils of all races, building a new school and equipping and staffing it for so few black students seemed an extravagance to some. To the board however, cost was no object in ac-complishing their perceived mandate.

At a meeting of the school board on January 31, 1910, the district’s electors present

heard arguments from William P. Crump, the black proprietor of a successful wholesale produce business, for abandoning the segrega-tion plan. The vote of the electors at the meeting, more than half of whom were black, was 14 for segregation and 52 opposed.

Undeterred, the board continued its search for the site of the proposed segre-gated school, and in a heated meeting on April 18, 1910, forced a vote of the electors to select a site for the school. Despite strong arguments from Mr. Crump and white opponents of the decision, including Col. James H. McClintock, Phoenix’s respected postmaster, Arizona reporter for the Los Angeles Times and the namesake of Tempe’s McClintock High School, a location for the new school was selected between 5th and 6th Street north of Jackson.

Civil rights litigation Having failed in their political efforts to

thwart the board’s efforts to construct the all-black school, leaders turned again to Judge Kibbey, who had been replaced as governor and was in private practice with Walter Ben-nett (forming the firm that would become today’s Gust Rosenfeld).

Kibbey, a legendary territorial lawyer and judge, had served on the Territorial Supreme Court, had been elected to the Territorial Legislature and was appointed Territorial attorney general. As a judge, he authored the landmark decision in Wormser v. Salt River Canal Co., establishing Arizona’s foundational water rights law.

In private practice, he drafted the Articles of Incorporation for the Salt River Valley Wa-ter User’s Association and represented them in Hurley v. Abbot, another fundamental water rights case that determined the allocation of water rights from the valley’s canal systems after construction of Roosevelt Dam.

On June 17, 1910, Judge Kibbey and his allies filed for an injunction against the school board to prevent it from “segregating the colored school children from those of other


Separate but not equal—the story of school segregation in Arizona and Phoenix

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See Separate but not equal page 15

conclusion, Hyder dismissed the petition and remanded Gault to custody, in a one-sentence ruling.

With the ACLU’s financial and legal sup-port, Lewis petitioned the Arizona Supreme Court to review McGhee’s commitment hear-ings, Hyder’s ruling, and the constitutionality of Arizona’s juvenile law generally. Tanenhaus 39. Justice Charles Bernstein’s unanimous opinion rejected all of Lewis’s arguments that Arizona’s juvenile code was unconstitutional on its face. It also found McGhee had followed the required minimum procedures. It therefore affirmed Hyder’s ruling. Application of Gault, 99 Ariz. 181, 407 P.2d 760 (1965). By then, Gault had received a home placement after spending 161 days at Fort Grant. However, he was still within its jurisdiction.

Supreme Court representationLewis immediately sought permission from

the Northern Arizona ACLU chapter and the national ACLU board to appeal the Gaults’ case to the U.S. Supreme Court. She sent the habeas corpus hearing transcript, the Arizona Supreme Court’s opinion and a draft jurisdic-tional statement to Melvin Wulf, ACLU’s na-tional legal director, with the request that the ACLU “take the matter from here.”

Wulf in turn asked Gertrude Mainzer, a research consultant for a Project on Social Welfare Law created by Norman Dorsen, a New York University law professor, to redraft Lewis’s jurisdictional statement. Dorsen was a “rapidly rising star” in constitutional law. He was vice-chairman of the ACLU’s board of di-rectors. He had clerked for Justice Harlan and was responsible for the ACLU’s amicus brief in Gideon. He also had played varsity basket-ball at Columbia University with Lewis’s son.

Dorsen and Mainzer reworked Lewis’s draft statement. Charles Ares, also an NYU law pro-fessor and a consultant for the Social Welfare

Law project, assisted them. Ares later became dean at the University of Arizona law school. The Court accepted jurisdiction on June 20, 1966, a week after deciding Miranda.

Dorsen then prepared Gault’s merits brief, assisted by Daniel Resneck, an associate at Ar-nold & Porter (Fortas’s former firm). Lewis was not involved in that process. Wulf and Dorsen later apologized, and the ACLU paid Lewis’s way to watch Dorsen argue Gault’s ap-peal. Frank Parks, now retired from Sanders & Parks, P.C., briefed and argued the appeal as an assistant Arizona attorney general. Oral argu-ment occurred on December 6, 1966.

Context and consequencesLike Gideon and Miranda, Gault reached

the Supreme Court at exactly the right time. Although the Court had held due process ap-plied to juveniles involved in adult criminal court proceedings, it never had decided a juve-nile justice case. However, in June 1964, Chief Justice Earl Warren’s address on “Equal Justice for Juveniles” to the Annual Conference of Juvenile Court Judges emphasized the impor-tance of constitutional rights in juvenile cases. Warren also there stated that the idea children had such rights as human beings was an idea that courts could no longer ignore.

Fortas’s Supreme Court appointment in 1965 continued the liberal majority created by Arthur Goldberg’s 1962 appointment. Fortas was interested in social justice law. He had been appointed to represent Gideon. He also provided the decisive fifth vote in Miranda.

In March 1966, Fortas wrote the Court’s unanimous decision in Kent v. United States, 383 U.S. 541 (1966). Kent held federal statutory procedures for waiving District of Columbia juvenile court jurisdiction and transferring ju-veniles for trial in adult court required an op-

By Paul G. Ulrich

The decisionIn re Gault, 387 U.S. 1 (1967), extended

the Warren Court’s due process revolution to state juvenile courts. It reversed the Ari-zona Supreme Court’s affirmance of the dis-missal of a habeas corpus petition filed by 15-year-old Gerald Gault’s parents on his behalf. Their petition challenged the legal-ity of Gault’s June 1964 delinquency com-mitment and sentence of up to nearly six years at the Arizona Industrial School at Fort Grant for allegedly making a lewd telephone call. Had Gault been convicted as an adult, his maximum sentence would have been no more than a $50 fine or imprisonment for not more than two months.

Justice Abe Fortas’s majority opinion recognized that the prevailing parens patriae model, in which juvenile courts’ unlimited dis-cretion substituted for parental control, was inadequate to assure the due process guaran-tees to which children also were entitled. It stated, “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone. . . . Under our Constitution, the condition of be-ing a boy does not justify a kangaroo court.”

Based on the Fourteenth Amendment’s due process clause, Gault therefore held juve-nile courts determining children’s delinquency in adjudicatory hearings must provide:

n Written notice of the specific charges to the child and his parents, sufficiently in advance of scheduled court proceedings to provide a reasonable opportunity to prepare.

n Advice to the child and his parents that the child has the right to be represented by retained counsel, or that counsel will be appointed if they are unable to afford counsel, whenever “coercive action” is a possibility. That holding applied Gideon v. Wainwright, 372 U.S. 335 (1963), to ju-venile cases, without citing it as such.

n The privilege against self-incrimination, based on Miranda v. Arizona, 384 U.S. 436 (1966), even though the Court had held Miranda could not be applied ret-roactively.

n The right to confront and cross-examine witnesses.

Gault expressly reserved five questions in-volving juvenile adjudicatory hearings:

n Whether and to what extent the juvenile court might admit hearsay or other tes-timony normally inadmissible under the rules of evidence.

n What is the correct burden of proof.n Whether there is a right to have a tran-

script or other record kept of the pro-ceedings.

n Whether there is a right to appeal from a delinquency adjudication.

n Whether a juvenile judge must state rea-sons for findings when he is the trier of fact.

Gault did not address the right to a jury trial, the right to a public proceeding, or the right to compulsory process to secure defense witnesses in juvenile court adjudicative hear-ings. It also did not decide any issues relating to the juvenile court’s pre-judicial or dispo-sitional stages. It thus clearly only began the juvenile court’s constitutional domestication. DaviD S. TanenhauS, The Constitutional Rights of Children 99 (2011).

BackgroundLike Clarence Gideon and Ernesto Mi-

randa, Gault became an accidental constitu-tional icon. Gault lived with his parents and a brother in Globe, Arizona. In February 1964, he was placed on six months’ probation for al-legedly stealing a wallet from a woman’s purse.

Before completing that probation, Gault and another boy were arrested in June 1964 for allegedly making a lewd telephone call. Af-

ter two brief, informal hearings at which the complainant did not testify, and without any sworn testimony or cross-examination, Gila County Superior Court Judge Robert Mc-Ghee found Gault delinquent and sentenced him immediately to Fort Grant. Gault’s par-ents did not retain counsel for those hearings. Globe’s police chief had told them counsel was unnecessary because McGhee would give Gault only a year’s probation.

After Gault’s incarceration, his parents were referred to Amelia Lewis, who practiced law in Sun City. Lewis had previously prac-ticed in New York City for 33 years and was actively involved in the American Civil Liber-ties Union. She moved to Arizona in 1957 af-ter her husband died. Lewis agreed to accept the Gaults’ case on the Arizona Civil Liber-ties Union’s behalf. Since Arizona law did not then permit juvenile appeals, her only option was to file a habeas corpus petition challeng-ing the legality of the process by which Gault was detained, not his actual innocence or guilt.

Lewis prepared affidavits for Gault’s par-ents, then met with Arizona Supreme Court Justice Lorna Lockwood. After reading the affidavits, Lockwood told Lewis to add a caption and she would accept the “petition in the form of affidavit.” Lockwood also telephoned the Maricopa County Superior Court’s presiding judge to arrange for a ha-beas corpus hearing.

Judge Fred Hyder presided over a day-long habeas corpus hearing in August 1964. Mc-Ghee then had difficulty stating how he ap-plied the relevant statutes and why he had sen-tenced Gault to Fort Grant. However, despite stipulated limitations on the hearing’s scope, both McGhee and deputy probation officer Charles Flagg testified that Gault had con-fessed to saying at least one of the allegedly obscene words at the first commitment hear-ing. McGhee also testified that Gault admit-ted some of the statements during the second such hearing. At the habeas corpus hearing’s


In re Gault: Juvenile justice unfulfilled?

See In re Gault: Juvenile justicel page 15

AUGUST 2013 CAlENdARAll events at MCBA Office,unless otherwise specified.

Please watch your MCBA E-News for updated information about meetings and events.

1 Construction Law Section Board meeting 12:00 p.m.

2 Estate Planning, Probate & Trust Section Board meeting 7:30 a.m.

5 Diversity Committee meeting 12:00 p.m. Litigation Section Board meeting 12:00 p.m.

6 MCBA Executive Committee meeting 7:30 a.m.

7 Young Lawyers Division Board meeting 12:00 p.m.

12 Paralegal Division Board meeting 5:30 p.m.

14 Environmental & Natural Resources Section Board meeting 12:00 p.m.

15 Employment Law Section Board meeting 12:00 p.m. MCBA Board of Directors meeting 4:30 p.m.

17 Maricopa County Bar Foundation Curling Fundraiser 5:00 p.m. The Ice Den

20 Family Law Section Board meeting 12:00 p.m.

21 Bankruptcy Law Section Board meeting 7:30 a.m. CLE: You Want Me to Bill How Much This Year? Ethically Meeting Your Billing Requirement 7:30 a.m. Lawyer Referral Committee meeting 12:00 p.m.

22 Estate Planning Probate & Trust Section Members: What’s on Your Desk? 11:30 a.m.

26 Membership Committee meeting 12:00 p.m.

27 Public Lawyers Division Board meeting 12:00 p.m.

28 Maricopa County Bar Foundation Trustees meeting 7:30 a.m. CLE: Preliminary Agreements--LOIs, Confidentiality Agreements and More 12:00 p.m.

29 CLE: Lifetime Transfer Formula ‘Savings’ Clauses in Estate Planning 7:30 a.m.


Paralegals and theLegalProfession

I’m warning you, I’ve gotten soft this month. This is not a typical diatribe I subject you to every month. By the time you read this, I will be celebrating my 30th birthday (gulp) and getting ready to give birth to my second son (double gulp).

It’s time to reflect on the last 10 years and see what I have learned, what I would like to work on, and where I would like to be in the next few years. Since you are a captive audi-ence, I will share with you what I’ve learned. And since the majority of my 20s was spent in the legal industry, I will share what the legal profession has taught me.

More than 50 shades of grayThere are no yes or no answers. Well, that

depends on the context of the situation, the facts surrounding the situation, and who you are talking to. One of the things I admire most about attorneys is their ability to see the gray in things. I can’t tell you how many times I’ve asked one of my attorneys a ques-tion on behalf of a client and the response was: “Well, I can argue it both ways.”

Although frustrating to hear time and time again, it wasn’t until my three-year-old son asked me if the sky was blue that I real-ized this trait had rubbed off on me. After my five minute dissertation on why the sky appeared to be blue and my son’s eyes glaz-ing over, I realized how valuable this trait is. The ability to see both sides of an argument means you are using your analytical skills to examine the information you’ve been given.

Seriously?Several years ago, I went to work with

two different shoes on. I’m not talking about wearing similar shoes, such as one in black and the other in midnight blue. In my case, one had a slight heel and one did not. When one of my co-workers pointed this out, I looked down, paused, and responded, “At least they are both black!”

You can’t take yourself too seriously. Don’t lose the ability to laugh at yourself when you make a mistake or do something foolish. This shows you are human! This industry often makes us feel we must be perfect. The fact remains, we are not perfect, our clients are not perfect, the judges and courts are not perfect. The sooner you can realize that, the better off you’ll be.

Details matterBut as a paralegal, you need to have a

mind like a steal trap. You will be an invalu-able resource to your attorneys and co-workers if you remember major details of working cases, the important little details, and the fact that Mrs. Smith just got her York-shire Terrier a new sweater for the winter.

Remembering these details, no matter how silly they may seem, shows that you care and that you have taken ownership of your job. Treat the clients as if you owned the

firm. Your boss and your clients will notice this attention to detail. They will appreciate they aren’t just another case number and that you are actually listening to them.

Stay calm in the stormI have been called every name in the

book, threatened, belittled and harassed. I am still standing to tell you about it. Don’t take things too personally. In the heat of the moment it may feel like a personal attack, but remember this profession is stressful and we are all under a lot of pressure.

Attorneys, clients and clerks all have bad

days and more often than not, you will be the whipping post. Stay as calm and positive as you can and don’t stop smiling. Remember, you have bad days too. Ruth Graham said it best-- just pray for a tough hide and a tender heart.

Live and learn so you can love your jobDo not lose sight of your priorities. This

profession is demanding and it can be easy to make your boss, your clients, and your co-workers your priority. In the end, there is more to life than billable hours.

Set some boundaries for yourself. You may not always be home for dinner but make it a priority to be home in time to tuck your kids into bed. In order to stay sane and con-tinue to love what you do, you need to have some sort of work/life balance in your life.

Of course, I could go on for another page or two but I felt these were the most important lessons that I’ve learned--and am still learning--from this profession I love so much. The most important thing to remem-ber is to never stop learning. Now that I have that out of my system, I’ll start working on my bitter diatribe for next month. n

All I really need to know I learned from the legal profession

By Tina Ziegler

An upcoming trial can seem overwhelm-ing, but if you pre-pare early, you can and will be success-ful. Trial preparation starts at the onset of a case, whether it is the initial filing of a complaint or answer.

If you assume that all cases are going to trial, you will prepare a more detailed initial disclo-sure statement, propound useful discovery, take productive depositions, and thoroughly prepare your client and witnesses.

Upon receipt of a trial notice, determine whether you need to supplement any dis-covery documents. Create a trial deadline schedule to track all pre-trial deadlines and appearances, listing them in chronological order and updating as needed. Circulate this schedule among those in your office involved with the trial.

Also, maintain a contact list that includes the name, title, and contact information of each witness, attorney, and paralegal work-ing on the case. This list should contain the judge’s name, location, and phone number along with the courtroom’s hours. Keep this handy during the trial in the event you need to contact someone at the last minute.

Set aside an area where you can store your file, notebooks, exhibits, and deposi-tion transcripts, as well as conduct meet-ings between the attorney and staff and to prepare your client and witnesses. Having a place away from the distraction of other cases, emails, phone calls, and other inter-ruptions will allow you to better focus on the case during trial preparation. Make sure the information is kept current.

Using technology during trialIf you intend to use technology dur-

ing trial, you need to plan ahead. First, you should think of your opponent and the complexity of the case to determine wheth-er it is even necessary. You don’t want to run the risk of upstaging the other side if there’s a chance it might backfire on you.

As part of your trial preparation, you should schedule a time to visit the court-room to determine what technology is avail-able. Become familiar with the layout of the courtroom. Speak with the clerk ahead of time to see if you need to supply items like extension cords. You can even coordinate with the court to see what your exhibits will look like when displayed on the big screen and make any necessary adjustments before the trial.

Technology should be considered when you are dealing with dry material or have a difficult subject matter and need a visual aid to make the judge or jury understand your case. If you choose to use demonstrative ex-hibits that need to be enlarged, copied, and/or reproduced, be sure to start early as you most often will be tied to the schedule of an outside vendor.

Trial notebooks keep everyone organized

Trial notebooks can be a helpful way to keep information organized and easily ac-cessible. Consider creating a notebook for the key witnesses in your case, including their contact information, deposition tran-script, and any exhibits pertaining to that witness. Use different colored notebooks for each witness. Group information about minor witnesses in one notebook. Create a separate notebook for the final pretrial conference including copies of the docu-ments to be discussed. Create an objection list, including witness and exhibit objec-tions and, in jury trial cases, create a list for

You’re going to trial—now what?

This special

section on paralegal

topics was prepared

by the MCBA

Paralegal Division,

one of the

association’s most

active groups.

In future special

sections, the

Maricopa Lawyer

will feature articles

on selected areas of

substantive law or

on timely topics of

importance to legal

professionals.


By Sarah Fluke

I recently read an article about Ken Ilgunas. After paying off $32,000 worth of college loan debt, he decided to live in a van and pursue a graduate degree at Duke. Why live in a van you ask? He was determined to not go back into debt and to pay for his education without loans.

This article forced me to think (scary, I know) about the last time I did whatever it takes to accomplish something? The answer? 2007.

I got married a week before finals, graduated from Phoenix College with my Associates in Paralegal Studies, went on my honeymoon, enrolled in the Certified Parale-gal Exam review course, passed the test, and closed on our first house--all within a period of two months. I slept little and saw my husband even less, but I did what it took to accomplish my goal.

When talking with paralegals about joining the MCBA as a Paralegal Member, I often hear, “I’m not certified and I don’t need CLE so there’s no point in me joining.” It’s disheartening to hear that because the division is more than CLE--but that’s for another article.

The real issue I have is the mindset that since CLE is not required of you, you don’t

need to attend it. True, there is no regula-tory agency for paralegals, there are no set standards for a paralegal, nor is it specified what skills or education are needed in order to become one and maintain one’s status.

You can talk to 15 different lawyers and probably get 15 different answers as to what paralegals do and what qualifications they should have. Until something changes, I believe it is our responsibility as paralegals to set the standard and determine how seriously we want to be taken in the legal profession. In comes continuing legal education…

For lawyers, it’s plain and simple. They have to take 15 hours every year with 3 of those hours on ethics. Most lawyers take more than what’s required and attend semi-nars in their practice field or on topics they would like to learn more about.

The court designed this rule to hold at-torneys accountable for staying current on the ever-changing rules, laws and issues of the profession. Since we can all agree that the basic responsibility of a paralegal is to assist a lawyer, why wouldn’t paralegals want to attend CLE for the same reasons?

Attending a seminar provides much more than knowledge on a specific topic. I have never been to a CLE where at least one question wasn’t asked. The first question often leads to a second question and then

a third and so on. It allows you to have a legal discussion with your peers and the speaker. Thoughts are exchanged, opinions expressed, knowledge gained.

It also provides an opportunity to net-work and meet people within the profession that can become invaluable resources to you down the road. A good CLE should be designed to promote professional growth and give you a greater understanding of the topic presented. Why wouldn’t you want to participate in that?

The answer I typically get is money and time. My response is, you can’t afford to not attend, and time is of the essence to take advantage of these seminars. If you don’t invest in your career, someone else who has is waiting right behind you to show your boss how serious they are about being a paralegal.

Don’t get me wrong, I am not saying that if you don’t attend CLE seminars, it makes you a bad paralegal. But if you don’t, I would encourage you to think about how you are staying fresh in the profession and enhancing your skills.

There are several organizations that offer CLE topics for lawyers and paralegals. Prices range from $15 an hour to $39 an hour but most organizations offer a discounted price for paralegals. There are also a plethora of

options when taking CLE. You can take them online, you can rent a DVD of a previ-ously presented seminar, or you can attend in person.

Most organizations offer seminars throughout the day to accommodate any-one’s schedule. You may feel uncomfortable asking your attorney if you can attend a CLE during the workday, but I would be shocked if the answer was no. If your attorney sees you are actively furthering your skills and knowledge, I would hope he or she would jump at the opportunity to support that.

Don’t know where to start? The Parale-gal Division is offering a CLE on Aug. 21 from 7:30 to 9:00 a.m. on ethical billing for paralegals. A light breakfast will be served and networking time will be available. If that doesn’t work for you, our annual education conference will be on Sept. 27. I will highlight the conference in my next month’s column.

To get more information about this seminar, visit www.maricopabar.org and click on the CLE tab. To read more about Ken Il-gunas, you can visit www.kenilgunas.com. n

Sarah Fluke is president of the MCBA Paralegal Division and is the member services administrator at the State Bar of Arizona.

Boost your legal immune system: Get your CLE shot today!

By Cami Barnella

Certificate and certification may seem very similar, but are actually two completely differ-ent things in the paralegal commu-nity.

Certificate in Legal Studies

Certificate refers to a “Certificate of Completion” that a person can obtain at a college that offers paralegal studies--if a per-son already has a four-year college degree. The certificate program calls for passing ap-proximately 10 legal classes but not any of the general studies courses needed for a de-gree in Paralegal Studies. (These would have already been completed with the previously obtained degree). When you have complet-ed a certificate program, you are not a Certi-fied Paralegal, you just have a certificate in paralegal studies.

CertificationA certification is something in addition

to a two-year Paralegal Studies degree or a four-year college degree and involves tak-ing an examination. The two most nation-ally-recognized certification exams are the Certified Legal Assistant exam through the National Association of Legal Assistant (NALA), and the PACE Registered Para-legal exam and CORE exam, both through the National Federation of Paralegal As-sociation (NFPA). The exam that is a bit more popular in our community at the mo-

ment is the Certified Legal Assistant exam through NALA.

The NAlA certification examTo be eligible to obtain your certification

through NALA, you must meet one of their three requirements, which can be found on their website at www.nala.org. If you do, you can file an application to take the exam.

The NALA exam is divided into five sec-tions, each of which needs a minimum pass-ing score of 73%. Paralegals that pass the cer-tification can use the letters “CP” or “CLA” after their name (i.e. Cami Barnella, CP).

As of March 15, 2013, there were 17,410 CP/CLAs nationwide and 1,221 of those are in Arizona. Arizona is ranked third (be-hind Florida and Texas) in the number of CP/CLAs obtained in each state. For more information about the CLA exam, you can go to www.nala.org.

The NFPA certification exams— PACE and CORE

NFPA has historically had one exam that was used for experienced paralegals known as the PACE (Paralegal Advanced Com-petency Exam) Certification. As of 2011, NFPA also began administering a certifica-tion exam for early career paralegals called CORE Competency Exam.

To be able to take the PACE exam through NFPA, you must meet one of their four different requirements, which can be found on their website at www.paralegals.org. If you do meet one of them, you may file an application to take the PACE exam.

The PACE exam is made up of 200 mul-tiple choice questions in the following areas: administration of client legal matters, devel-

opment of client legal matters, factual and legal research, factual and legal writing, of-fice administration, ethics, technology in the law, and some substantive areas of law. Para-legals who pass the PACE exam may use the letters “RP” after their name. Currently, there are approximately 600 RPs nationwide, 17 of whom are from Arizona.

To take the CORE exam through NFPA, you must meet one of eight requirements, that can be found on their website at www.paralegals.org. If you do, you may file an application to take the CORE exam. The CORE exam is made up of 125 multiple choice questions in the areas of paralegal practice and substantive areas of law.

Paralegals who pass the CORE exam may use the letters “CRP” after their name. As of this exam’s creation in June 2011, there are approximately 146 CRPs nationwide, 1 of which is from Arizona. Currently the NFPA exams are available all year round through Sylvan Technology Centers. For more infor-mation about the PACE or CORE exam, you can go to www.paralegals.org.

I received my certification through NALA in 2008. I can honestly say that it was the hardest thing that I have done profes-sionally and it is also the thing that I am most proud of in my professional life. I would en-courage anyone thinking about taking one of these exams to do it. It does not neces-sarily mean you’ll get paid more, but it does show that you take your career seriously. To me, it is also a great personal achievement. n

Cami Barnella was the 2012 president of the MCBA Paralegal Division and is a paralegal at Sacks Tierney, PA.

Paralegal certificate vs. certification: What’s the difference?

See You’re going to trial page 15

jury instruction objections. It may also be helpful to prepare a liti-

gation time line to track legal theories, af-firmative defenses, and the disclosure of information, especially if such issues will be discussed during the conference. These lists will allow you to track the outcome of each objection and know what issues still need to be addressed at trial.

For jury trials, consider creating a ju-ror notebook containing copies of the agreed-upon exhibits. These make it easier for jurors to follow along with the case, take notes, write down any questions they have, and review the evidence during their deliberations. Usually, these are jointly pre-pared by the parties.

If you are dealing with a case involv-ing unfamiliar terms specific to a particu-lar industry, you should consider includ-ing an agreed-upon glossary of terms for the jurors’ reference. If you are assigned the task of creating these notebooks, be sure that you prepare one for each juror, attorney, the judge, the clerk, your client, your key witness(es), the paralegal, and one “to grow on.”

If the other side chooses not to pre-pare a juror notebook or prefers to pre-pare their own, it may be helpful to have different colored notebooks for each side so they can be easily referenced by the judge and jury.

Prepping witnessesTrial witnesses must be well-prepared

and familiar with the exhibits. Start early, with your first meeting taking place sev-eral weeks before the trial. Some witnesses may require a subpoena to appear and you will need to know this well in advance so you have enough time to issue and serve the subpoena.


INSIDE THE COURTS

Judge Glenn Davis retired from Superior Court on June 30. During his tenure at the court, he presided over civil, criminal and family court calendars. Judge Davis’s volun-teering was a tremendous asset to the legal community.

He worked with the Volunteer Lawyer’s Program and numerous bar committees, in-cluding his service as president of the Mari-copa County Bar Association. At the MCBA he initiated the Maricopa County Bar Hall

of Fame and he was also instrumental in the creation of the Maricopa County Justice Mu-seum and Learning Center on the 6th Floor of the Old Court House.

The MCBA awarded Judge Davis the Robert R. Mills Member of the Year Award in 2012.

Superior Court Judge Helene Abrams also retired from the Superior Court on June 30. Judge Abrams was appointed to the

bench in 2005 and has served in Juvenile, Family, Criminal and Civil courts.

Prior to joining the bench, Judge Abrams was the Juvenile Division chief at the Mari-copa County Public Defender’s Office from 1993 to 2005. She began working at the Maricopa County Public Defender’s Office in 1983.

Judge Abrams received her JD and bach-elor’s degrees from the University of Ari-zona.

Judge Davis

Retirements, appointments, rotations

Judge Abrams Comr. LeMaireComr. Van Wie Comr. Mata

Commissioner Michael Hintze’s farewell party drew a crowd.

Commissioner Michael Hintze retired on June 30 but will serve as a judge for the City of Phoenix. Commissioner Hintze was pas-sionate about improving the circumstances of the mentally ill, veterans and the home-less. He was instrumental in promoting and establishing a Veteran’s Court during his ser-vice in Rule 11 and Mental Health Court.

Presiding Judge Norman Davis appointed three new commissioners to fill the vacancies created by the retirements of commissioners Michael Hintze and Stephen Kupiszewski, and the judge appointment of former com-missioner Jay Adleman.

Commissioner Kerstin LeMaire will be as-signed a probate/civil calendar at the North-east Regional Center. Commissioner Julie Ann Mata will be assigned an Early Disposi-tion Court calendar at the Southeast Regional Center, and Commissioner Annielaurie Van Wie will be assigned to a juvenile calendar at Durango. n

The 26 justices of the peace in Maricopa County have elected two judges to leadership positions within the Maricopa County Justice Courts. Judge C. Steven Mc-Murry, Encanto Precinct jus-tice of the peace, has been se-lected for a second term as the presiding judge of the Mari-copa County Justice Courts by his colleagues on the bench.

As presiding judge, Mc-Murry manages the opera-tion and administration of the Maricopa County Justice Court system, and continues to pre-side in the Encanto Justice Court. Justice of the Peace Gerald Williams, North Valley Precinct, was selected as asso-ciate presiding judge. Williams will assist McMurry with the leadership responsibilities of the courts.

A justice of the peace since 1999, McMurry was appointed by Chief Justice Rebecca White Berch to the Committee on Limited Jurisdiction Courts, a standing committee of the Arizona Judicial Council. He teaches a class for other justices of the peace entitled “The Bill of Rights: Ameri-can Common Sense in Our Courtrooms,” and serves as a mentor for new justices of the peace.

McMurry received his JD cum laude from the ASU College of Law (now the Sandra Day O’Connor College of Law). He was an attorney in private practice until joining the bench.

Williams has served on the bench since 2004, fol-lowing other public service with the U.S. Air Force, the Department of Veterans Af-fairs, and the Arizona Com-mission on Judicial Conduct. He has taught courses for Ar-izona New Judge Orientation, served on the Arizona Su-preme Court’s DUI Case Pro-cessing Committee, and—as a member of the statewide Committee on Civil Rules of Procedure for Limited Juris-diction Courts—he recently assisted in drafting the new Justice Court Rules of Civil Procedure.

He also serves on the Constable Ethics Standards and Training Board. Williams

received his undergraduate degree from Oklahoma State University and earned his law degree from the University of Okla-homa College of Law.

There are 26 justice courts in Mari-copa County, which hear a combined case-load of more than 350,000 cases each year, including civil lawsuits where the amount in dispute is $10,000 or less, landlord and tenant controversies, small claims cases and civil and criminal traffic offenses, including DUIs. Justices of the peace also resolve other types of misdemeanor allegations and handle requests for orders of protec-tion and injunctions against harassment. n

Judge McMurry

Maricopa County Justice Courts bench selects leadership

Judge Williams

Do you have a few hours a month to help children learn about the judicial system?

Maricopa County Superior Court is launching its 23rd year of the Courthouse Experience Program.This program has given students an opportunity to see and understand what really goes on behind closed courtroom doors.

But to reach these children and make a difference in their lives, the superior court needs the help of volunteer attorneys.

The program’s success is due greatly to volunteer attorneys who provide valuable

time leading groups varying from 6th grade through college age on personal tours of the court.

A Courthouse Experience often includes visits with judicial officers and staff, observations of court proceedings, including trials (we will schedule this for you), visits to the jury assembly room and law library, and informative question and answer periods.

If you are interested in becoming a volunteer for this year’s program, please send a confirmation email with your name, phone number and email to: [email protected] n

Courthouse Experience Program needs volunteer attorneys


By Brian K. Johnson & Marsha Hunter/Reviewed by Suzanne Dohrer

As lawyers, we use language as an art form to control situations and outcomes and to exert power. The meaning of the spoken language is conveyed by much more than words – the tone, facial expressions, body language and gestures convey the power-ful meaning of those words. Brian Johnson and Marsha Hunter, experts on the subject of public speaking for lawyers, presented a fabulous continuing legal education program at the MCBA in May, “Becoming More Fluent on Your Feet.”

Johnson and Hunter’s program covered much of the material in the second edition of their book The Articulate Attorney. It brought home the importance of practice and techniques to coordinate the flow of adrenaline with your body, brain and voice for effective speaking, whether it be before a panel of judges, a conference room full of attendees, or a one-on-one meeting with a new client.

Johnson and Hunter are recognized for the effective training they regularly provide for attorneys at the U.S. Department of Justice and the National Institute for Trial Advocacy, among others.

Johnson and Hunter practice what they preach. Their well-choreographed duet of a presentation was energetic, focused and full of information. At least one attendee at the program came because he had seen their presentation before and knew the impact of their training. In a brief hour, they covered dozens of effective tips for planting your feet, controlling your breath, placing

your hand gestures “on a shelf,” and using deliberate practice, that help attorneys appear professional in public speaking.

Even if you consider yourself already to be an effective public speaker, some new techniques for improvement will likely be

found in Johnson and Hunter’s The Articulate Attorney: Public Speaking for Lawyers, 2d ed. This slim volume of just under 200 pages presents all of their training session and much more in four concise sections: Your Body; Your Brain; Your Voice; and How to Practice. Each chapter concludes with a review list of bullet points.

The book has helpful illus-trations and examples, as well as checklists and tips for prac-tice. The authors employ a pre-performance ritual like that

of an athlete. The use of natural gestures, phrases in speech and reference to notes as a visual aid or slides are covered, as well as other ideas, such as planning to forget.

One of the more unusual techniques described is to prepare a sequential outline from right to left, so that the speaker’s eyes and gestures appear to flow left to right to the audience.

How-to books litter the library shelves, but The Articulate Attorney provides some-thing special. The book presents specifics, techniques and practice pointers to improve speaking, specifically for the legal profession. Published by Crown King Books, it would be a valuable resource for experienced and new attorneys. n

Suzanne Dohrer is an assistant professor at the Phoenix School of Law and is a member of the firm of Dohrer & Watts.

BOOK REVIEWBecoming More Fluent on Your Feet The Articulate Attorney: Public Speaking for Lawyers

ADOPTIONKristy B. BlackwellStuart & Blackwell

Amie S. ClarkBurguan & Clark

Kristina LeonhardtOwens & Perkins

Shawnna R.RiggersLaw Office of

Shawnna R. RiggersCody G. Smith

Bryan CaveRuth A. Szanto

Phoenix School of Law

BANkRUPTCYMatthew L. White

Udall Shumway

Robert R. TeagueTeague Law Firm

CONSUMERMatthew W. Lockin

Snell & Wilmer

COURT AdVISORS FOR CHILDREN IN FAMILY

COURTGregory O. HingStockton & Hing

GUARdIANShIP OF INCAPACITATEd AdUlTS

Laura H. KennedyCohen Kennedy Dowd

& Quigley

Carlos A. SugichSnell & Wilmer

Marvin S. Swift, Jr.Snell & Wilmer

MINOR GUARdIANShIPCamila AlarconWithey Morris

Erin N. BiencourtBest Law Firm

Jane A. ProctorFennemore CraigSarah J. Michael

Law of Office Sarah J. Michael

**PRO BONO SPOTlIGhT ON CURRENT NEEd**Lawyers and paralegals who speak Spanish are needed to assist low-income families.

Volunteer Lawyers Program Thanks AttorneysThe Volunteer Lawyers Program thanks the following attorneys and firms for agreeing to assist

on 17 cases referred by VLP to help low-income families. VLP supports pro bono service of at-torneys by screening for financial need and legal merit and provides primary malpractice coverage, donated services from professionals, training, materials, mentors, and consultants. Each attorney receives a certificate from MCBA for a CLE discount. For information about ways to help, please contact Pat Gerrich at VLP at 620-254-4714 or [email protected].

By Peggi Cornelius, VLP Programs Coordinator

“I joke with Roni Tropper that she has a file entitled, ‘Send weird stuff to Sarah’.” A sense of humor, a willingness to learn by doing, and an exemplary commitment to serv-ing low income clients typify the pro bono efforts of Sarah Michael. Within a year of enrolling in the Volunteer Lawyers Program (VLP), Michael has been honored by VLP as Attorney of the Month.

Tropper is the Coordinator of VLP’s Children’s Law Center (CLC). She describes Michael as a volunteer who regularly requests pro bono case assignments and is always open to representation of clients whose circum-stances pose unusual legal issues. Since August of 2012, Michael has accepted six case refer-rals from the CLC.

Like many volunteer lawyers, Michael says she is motivated to represent pro bono clients by “the feeling I have afterward that I’ve made a difference in their life.” When speaking of her own life experience, Michael recalls the way in which her family of origin has made a positive difference.

“My mother is a legal transcriptionist who is legally blind. In my childhood, she inspired me to believe you can do what you want to do, as long as you put your mind to it. In later years, I became a single mother, work-ing on a bachelor’s degree and attending law school. My parents and the rest of my family provided me emotional support and assistance so I could properly care for my daughter and achieve my personal aspirations, too.”

Admitted to practice in October 2008, Michael now has a solo practice, focusing on juvenile and family law. But the path has had some twists and turns. Her plan for a career in medicine was altered by an injury which even-

tually lead her back to a job she’d had previously in the law firm that would become the first law office in which she practiced as an attorney. Her undergraduate degree in busi-ness management wasn’t planned as preparation for law school, but she’s found knowledge of business very beneficial as a solo practitioner.

Among the cases she has accepted from the CLC, Michael has found two of them especially challenging and heart-warming. One case is a dependency action, which always reflects a sad situation. But Michael has found the silver lining in the cloud, saying, “In this case, I can see the grandparents’ love for one another, and how much they love their grand-children, wanting only what’s best for them.”

The second case involves an established guardianship, which is being contested several years after the appointment. From Michael’s perspective, “There is always more than one way to achieve a given outcome. I really enjoy looking at the client’s situation and deciding which course of action is best. It gives me a chance to go beyond filling out forms to explore creative solutions, prepare intricate motions, and generally flex my legal muscles.”

In addition to her pro bono legal work, Michael has volunteered with the Arizona Animal Welfare League. She, her fiancée and daughter currently share family life with four dogs they have rescued. They recently provided foster care for a puppy, until it was old enough to be neutered and offered for adoption. It was difficult to let go.

Michael acknowledges that volunteer work with humans, as with animals, creates attach-ments that can lead to the shedding of tears. As she wisely comments, however, “Nothing beats the gratification of happy tears at the end of a case.” n

VLP ATTORNEYS OF THE MONTHCreative solutions and happy tears motivate this volunteer

Sarah Michael

CLASSIFIEDSTo place a classified ad, please e-mail [email protected] or call (602) 257-4200.

SERVICESlEGAl RESEARCh – hIGh QUAlITY, thoughtful, thorough, 30 years experience & 15 years trial at-torney, in Arizona. 480-432-9874 . $20/hour.

ExPERT WITNESSES-Title Insurance and Escrow. More than 40 years professional experience. Founder or co-founder of a number of Title Agen-cies. Gregory A. Mihelich, Sr. 602-618-6878 or [email protected]

lEGAl RESEARCh -- lITIGATION SUPPORT. PER-SONAL INJURY/MEDICAL MALPRACTICE. EXPE-RIENCED ATTORNEY. CALL CLIFFORD HEINEY, ESQ. (480) 510-9524

OFFICE SPACEOFFICE SPACE AVAILABLE AT 7TH ST. & THOM-AS RD. Executive Suites, Virtual Offices and Large standalone offices. Executive Suites include full service reception, kitchen, conference rooms, copy machine, security system. Large standalone offic-es: 1,230 sf, 1,750 sf and 2,252 sf. 777 E. Thomas Road 602-722-4251.

NORTh CENTRAl lUXURY OFFICES with secre-tarial space, smaller offices available. Large and small conference rooms, kitchen, cable, quiet street, covered parking. North of Bethany at 714 East Rose Lane. Call Rick 602-230-2916.

MESA, 1310 E. SOUThERN AVE- 6,532 SF of rent-able office space available for single tenant lease. 10 private offices with class “A” upgrades featuring high-end finishes, custom iron doors and arched doorways, granite desks and countertops, Trav-ertine flooring, chandeliers, kitchen, conference room with flat-screen TVs and mini-fridge. Lease

beginning June 2014 with or without as-is furnish-ings, full-service copier and/or installed telephone system. Visit www.galleryPlazaAz.com for photos. Please call 602-380-8080 or 602-354-5066.

LEGAL OFFICES FOR RENT- Up to 5 offices with 3 secretarial stations available. Near third street and Os-born. Conference room and kitchen facilities. Rent ne-gotiable. Contact Elna at [email protected].

OFFICE SHARE (SCOTTSDALE AIRPARK AREA). A MUST SEE! - Second story office(s) with beautiful artwork in reception area. Three attorneys’ office(s) with or without secretarial bay included. Rent in-cludes use of conference room, internet access, law library and kitchen. Furniture and covered parking is available if needed. Easy access to 101 Freeway, full security system, affordable rates and immedi-ate occupancy is available. Call Susan at 602-263-0203 or email [email protected].

NEWlY REMOdElEd lEGAl EXECUTIVE OFFICE SPACE -7th St/Indian School location. Excellent lo-cation with easy access to I17, I10, 51, 202, 101, and Downtown courts. Included: conference room phones, copier, fax, kitchen, storage, conference rooms, admin bays. Benefits: free covered tenant and client parking, 24/7 card access, no building operating costs/CAM. Perfect for sole practitioner, or multi-staff. Flexible terms. Please call Tammy Forbis, Colliers International, at 602-222-5103 or email [email protected].

SHARE SPACE WITH ESTABLISHED 30+ ATTOR-NEY AV-RATED law firm located in central Phoenix with direct freeway access. Completely remod-eled with high-end finishes, conference rooms with smart boards/full AV, library with librarian, kitch-ens, signage, on-site copy/office services.

12 • AUGUST MARICOPA LAWYER

Most CLEs are available for simultaneous webcast or later viewing through West LegalEd at http://tiny.cc/kg4cjw ( icon indicates confirmed webcast)

PROGRAM LOCATIONUnless otherwise specified, all programs are held at the Maricopa County Bar Association office at 303 E. Palm Lane, Phoenix 85004.

ATTENDANCE POLICIESADVANCE REGISTRATION Full payment must be received in advance of the program before you are considered registered.

LATE REGISTRATION All registrations must be paid in full two business days prior to the program date or a late fee of $15 applies. For example, registrations for a September 17 program must be paid by September 15 in order to avoid the late fee.

WALK-INS You may register at the door if space is available; the $15 fee will apply. If you do not register at least two business days in advance of a program, MCBA cannot guarantee space or availability of materials.

CANCEllATIONS/REFUNdS Refunds, less a $10 fee, will be issued only if the MCBA receives your cancellation, in writing by mail, fax at (602) 682-8601, or email [email protected] at least two business days prior to the program.

NO SHOWS If you registered and paid, but could not attend, you may request that materials be sent to you, free of charge (allow3-4 weeks). If audio media is available, registrations may be converted to a self-study package for an additional $15 charge.

THREE WAYS TO REGISTER

Register online at:www. maricopabar.org. Click on “Calendar of CLE & Events” or on the CLE program listing on the right side

ONLINEFollow directions for online registration. Then, from the program’s online registration page, download a print registration form to mail or fax.

DOWNLOAD PRINTED FORMCall Breeat (602) 682-8588

PHONE

The State Bar of Arizona does not approve or accredit CLE activities for the Mandatory Continuing Legal Education requirement. The activities offered by the MCBA may qualify for the indicated number of hours toward your annual CLE requirement for the State Bar of Ari-

zona, including the indicated hours of professional responsibility (ethics), if applicable.

WEdnEsday n august 217:30 - 9 aM (Breakfast included)

You Want Me to Bill How Much This Year? Ethically Meeting Your Billing RequirementSPONSORED BY the Paralegal Division 1 hour of CLE credit available As billing requirements become more demanding, paralegals are forced to become more creative in order to meet their require-ments. This CLE will offer an expert opinion on what paralegals can bill for, what descrip-tions we should use for our billing, and what recourse we have if our attorney asks us to bill something unethically. Come at 7:30 a.m. for a light breakfast and networking.PRESENTER:Lynda Shely, The Shely Firm, PC

COST: n MCBA Paralegal Division members: $15 n MCBA Student members: $10 n MCBA Non-Paralegal members: $45 n Paralegal Non-members: $30

WEdnEsday n august 2812 - 1:30 PM (Lunch included)

Preliminary Agreements—LOIs, Confidentiality Agreements, and More SPONSORED BY the Corporate Counsel Division 1.5 hours CLE credit available Join the Corporate Counsel Division for a practical, hands-on discussion of how to draft and review preliminary agreements such as Letters of Intent, Term Sheets, Confidential-ity Agreements, and Due Diligence requests. Learn about best practices for the preliminary and negotiation phases of a transaction. Pan-elists will tackle this subject matter from vari-ous perspectives including (1) what the client really needs and wants to accomplish, (2) what the drafter needs to be sensitive to, (3) what your tax advisor or CPA wishes went into these agreements before they were executed, and (4) how matters get resolved in litigation when something goes wrong.MODERATOR: William Kastin, Snell & Wilmer, LLPPANEL: In-House: Ruth Hay, IOLitigation: Chad Hester, Wallin Hester, PLC Drafting : Robert Moya, Quarles & Brady, LLP

COST: n MCBA members: $62.50 n MCBA Corporate Counsel Division members: $55 n MCBA Paralegal & Public Lawyer Division members: $40 n MCBA Student members: $10 n Non-members: $92.50

thursday n august 297:30 - 9 aM (Breakfast included)

Lifetime Transfer Formula ‘Savings’ Clauses in Estate PlanningSPONSORED BY: Estate Planning, Probate & Trust Section1.5 hours CLE credit availableA formula clause sets forth a method for allocating property to, between, or among dif-ferent persons. Historically, such a provision has been referred to as a “savings clause” and considered invalid. More recently, a “formula clause” has been distinguished and viewed as valid. Although there are numerous examples of formula clauses in estate planning, the in-creasing prevalence of such clauses in lifetime transfers is a relatively new phenomenon. This presentation will consider the history, use, case law, and trends concerning such clauses. PRESENTER:Prescott Pohl, Snell & Wilmer, LLP

COST: n MCBA members: $62.50 n MCBA Estate Planning, Probate and Trust members: $55 n MCBA Paralegal & Public Lawyer Division members: $40 n MCBA Student members: $10 n Non-members: $102.50

Friday n OCtObEr 1812 - 1:30 PM (Lunch included)

Social Security Benefits and Claiming Strategies for the Family Law AttorneySPONSORED BY: Family Law Section1.5 hours CLE credit available This CLE will focus on the issues family law attorneys must consider when a client receives or plans to receive social security benefits. This seminar will provide a basic explanation of social security benefits and rules, as well as address issues specific to divorce, including a discussion of the divorced spouse’s benefit and the effects of delayed retirement on social security. In addition, this seminar will identify various claiming and planning strategies that will be useful in advising divorcing clients. PRESENTERS: Nancy Fromm and Cristina Acosta, Co-owners, Money Wise

COST: n MCBA members: $62.50 n MCBA Family Law Section members: $55 n MCBA Paralegal & Public Lawyer Division members: $40 n Non-members: $102.50 n MCBA student members: $10

thursday, sEPtEMbEr 128:30 aM - 5:30 PM (Lunch included)

How to Work with Child Protective Services: An Overview for Family Law PractitionersSPONSORED BY the Family Law Section

6 hours CLE credit available

TOPICS:A Child Protective Services Case Manager shows up at my client’s door. Now what?

n A primer for the family law practitioner on the Arizona Child Welfare Systemn The options for services to prevent removaln Substantiation and its effects on a clientn Why children are removed and the resultn The Indian Child Welfare Act and its role in removal

Obtaining a non-parent custody order—looking at a client’s options n In loco parentisn Guardianshipn Dependencyn A.R.S. §8-807 – How to obtain CPS records • Breakdown of the statute • DES policy on release of information • What can you get? What are you never going to get? • A CPS case worker as a witness--what they can say and what they cannot

Dealing with multigenerational families--how to prevent/avoid conflictsn Primary goal: Keep the children safen Representing grandparent and parentn Who is the client? n Duty of confidentiality and waiver

PRESENTERS:Laura B. Monte, Donaldson Stewart, PCRebecca L. Owen, Rebecca L. Owen, PLLColleen O. Smith, Protective Services Section Unit Chief, Arizona Attorney General’s Office Wendy Brishke, Deputy Program Manager, Arizona Department of Economic Security, CPS

COST: n MCBA members: $180 n Non-members: $275 n MCBA Family Law Section members: $160 n MCBA Paralegal & Public Lawyer Division members: $120 n MCBA Student members: $10

ALL DAY

MARICOPA LAWYER JUNE • 13

saturday n OCtObEr 267:15 aM - 4 PM (Lunch included)

2013 MCBA Litigation Skills Institute: Expert WitnessSPONSORED BY: Litgation Section.

7 hours CLE credit available, 1 hour ethics

COST: n MCBA members: $280 n Non-members: $385

The MCBA Litigation Skills Institute provides litigators with the chance to get real-world trial experience and feed-back in an intensive, single-day CLE. The focus of this year’s Litigation Skills Institute is expert witness examinations and presentations. Participants will re-ceive a case study and contact informa-tion for their expert witnesses—who are real experts, not actors. Participants will conduct and defend direct and cross examinations of the experts, as well as make opening statements and closing arguments, before the Insti-tute’s faculty members, all of whom are current and former Arizona judges and experienced Arizona litigators. At the end of each trial, the faculty will provide direct, one-on-one feedback to the participants.

The Institute is open to any active Ari-zona attorney, but it will likely be most beneficial to litigators who already have some courtroom experience and are eager for a more advanced experience, particularly on expert witness examina-tions. The Institute is also designed to be a resource to litigation practice group leaders who are looking to train their rising litigators in an affordable manner. In making the pairings for the trials, every effort will be made to try to match attorneys with similarly expe-rienced attorneys. In order to ensure one-on-one feedback, the program is limited to 28 participants.

FACuLTY: Hon. Roslyn SilverHon. Mark AcetoHon. David GassHon. Douglas RayesHon. Brian ReesHon. Timothy RyanTony Freeman, Freeman Law, PLLCAndrew B. Turk, Polsinelli, PCRick Erickson, Snell & Wilmer Foster Robberson, Lewis and Roca, LLPRandy Papetti, Lewis and Roca, LLP Sharon Shively, Sacks Tierney, P.A. Jeffrey Leonard, Sacks Tierney, P.A.Scott Gibson, Davis Miles McGuire Gardner. PLLC

ALL DAY

NEW FIRMLee Stein, formerly of Perkins Coie, Barry

Mitchell, and Flynn Carey, formerly of Gallagher & Kennedy, are pleased to announce the formation of Mitchell Stein Carey, PC, a boutique law firm located at 1440 E. Missouri Ave., Suite C-100, in Phoenix, representing clients in the full spectrum of criminal, regulatory, and complex civil fraud cases.

Stein’s practice centers on white collar criminal defense and internal investigations; Mitchell’s practice encompasses the full range of criminal, regulatory, and administrative matters, including healthcare fraud, corporate investigations, and the representation of licensed professionals; and Carey’s practice includes a broad range of criminal cases, including vehicular and DUI matters, along with representation of licensed professionals before their respective boards and licensing agencies.

NEW HIRESThe Law Firm of Renaud

Cook Drury Mesaros, PA an-nounces that Holly Liebengood has joined the firm as an associate.

Tyler M. Allen joined Elkie Law Office, PC as an associate in their Fountain Hills office. Tyler’s practice will focus on DUI/criminal defense, estate planning, and civil litigation. He earned his JD from Phoenix School of Law where he served as a delegate for the Student Bar Association and

received recognition for his pro bono service.

Rose Law Group, PC (RLG) announces an expansion of the Family Law Department with the hire of family law attorney Jana Weltzin. After graduating from ASU’s Sandra Day O’Connor College of Law, Weltzin worked on high profile divorce cases

at Franks, Sheldon and Houser, PC. Weltzin, who primarily handles high asset and complex divorce law cases, was an integral part of the legal team who represented several high profile athletes and business owners. Born in Fairbanks, Alaska, Weltzin received her JD from ASU’s Sandra Day O’Connor College of Law, where she graduated in the top third of her class. Weltzin continues to play soccer, which has been her sport since the age of five

Ryley Carlock & Applewhite welcomed Lisa Wahlin to the firm’s Litigation Practice Group. Wahlin joins an established group that represents clients throughout the United States and internation-ally, offering legal counsel from

start-up companies to mature businesses. Prior to joining the firm, Wahlin dedicated the first 16 years of her practice to public service, working for various government agencies as prosecutor, police legal advi-

sor, and civil litigator. Since transitioning to private practice, she has continued to focus on defending and advising governmental entities in a variety of areas.

In addition to her litigation experience, Lisa has served as a legal advisor to law enforcement agencies and was a frequent instructor on search and seizure and laws of arrest at the Arizona Law Enforcement Academy from 1999 to 2004. Lisa has also aided various government entities in responding to and litigating issues arising out of public records requests. Wahlin’s practice has also included insurance defense, emphasizing cases involving negligence, wrongful death and personal injury, and defamation. She earned her law degree from ASU’s Sandra Day O’Connor College of Law in 1991.

Polsinelli welcomes Karen Dickinson to its Phoenix office. Dickinson has extensive experience negotiating and advising on com-plex international and e-commerce legal issues involving international contracting, joint ventures and alliances, software and intellectual

property licensing, joint developments, trademark prosecution and licensing, and web development. She has experience as a senior manager of in house lawyers for a large U.S. multinational conglomerate where she negotiated multimillion dollar transactions in Europe, Canada, Japan and the People’s Republic of China.

She has also been a partner in a start-up online business and is a sought-after speaker on issues in-volving international business. Dickinson is the chair of the Arizona District Export Council, a member of the Greater Phoenix Economic Council’s Internation-al Leadership Committee and a founding member of Arizona Women in International Trade. She earned her JD, magna cum laude, from the ASU Sandra Day O’Connor College of Law and clerked for Judge Mary M. Schroeder of the Ninth Circuit Court of Appeals. Dickinson was also a Fulbright Scholar during her career, studying European Union law at the University College London and working with the global law firm of Allen & Overy in London.

Perkins Coie announces that Bart J. Page has joined the firm’s Real Estate & Land Use Practice as a senior counsel in the Phoenix office. He was most recently of counsel at Squire Sanders. Page focuses on real estate development and financing, including pur-chase and sale transactions, secured financing transac-tions (including CMBS loans), leasing transactions, private and public development agreements, engineer-ing and construction agreements, CFD/SID bond financing, and formation and operation of homeown-ers’ associations and condominiums. He represents homebuilders, commercial developers, real estate investment funds, banks, financial institutions and other real estate developers and lenders in Arizona, Nevada and other jurisdictions. Page also represents healthcare systems and medical providers in acquiring, developing, leasing and financing medical properties. Page received his JD from the University of Utah, Order of the Coif. He has been listed in Best Lawyers in America since 2010.

raiser of the year for the Valley’s two – and soon to be three – Ronald McDonald Houses, which provide a home-away-from home for families whose children are undergoing medical care in the Valley. In 2012, more than 400 people attended the event, raising over $300,000 to ensure that no family is ever turned away because they can’t afford the $15 nightly fee the House asks

Jennings, Strouss & Salmon announces that attorney John “Jack” G. Sestak, Jr. has been appointed to the Phoenix Sister Cities Board of Directors. Phoenix Sister Cities focuses on developing and sustaining lasting, impactful relationships with cities around the globe. Sestak is a transactional

and litigation attorney with more than 35 years of experience. In addition to his involvement with Phoenix Sister Cities, he serves on the Board of Directors of Silent Witness and has been a long-time member of the Executives Association of Greater Phoenix. Sestak has received numerous honors and awards, including being recognized by Best Lawyers in America as Lawyer of the Year 2013 for Admin-istrative/Regulatory Law, Phoenix. He earned a JD from Vanderbilt University and served as an associate editor of Vanderbilt Law Review.

PROMOTIONSLewis and Roca, LLP an-

nounces that two attorneys have recently been named partners with the firm: Sam Chang and Milton Wagner. Chang practices with the firm’s Business Transac-tions Practice Group, focusing his practice on real estate debt and equity financing, real estate sales and acquisitions and commercial lending. He received his JD from the UofA, James E. Rogers Col-lege of Law in 2006. Wagner is with the firm’s Litigation Practice Group, concentrating in the area

of business litigation, primarily business torts and fi-nancial disputes. He received his JD from the George Washington University Law School in 2006. n

Jennings, Strouss & Salmon, PLC, announces that John C. Norling and Ryan Womack have joined the firm.

Norling is a member in the Corporate, Securities and Finance Department of the firm’s Phoenix office. He focuses his practice on commercial transactions, mergers and acquisitions, real estate, and general business advice with an emphasis on representing the interests of automobile dealer-ships. Norling also serves as general counsel for the Arizona Automobile Dealers’ Association

and several dealer marketing associations. He earned his JD from Ohio State University.

Womack is an Associate in the Litigation Depart-ment of the firm’s Phoenix office. Prior to joining Jennings, Strouss & Salmon, Womack served as a judicial clerk with Arizona Court of Appeals Judge John Gemmill. He earned a JD from Regent Univer-sity School of Law in Virginia Beach.

HONORS & AWARDSQuarles & Brady, LLP

announced that Jacque N. Westling, a partner in the firm’s Phoenix office, was elected to a three-year term as director of Ari-zona Technology Council’s Board of Directors.

The council is Arizona’s premier trade association for science and technology companies. Council members work toward furthering the advancement of technology in Arizona through leadership, education, legislation and social action. Westling is a member of the firm’s Corporate Services Practice Group and chair of the firm’s Corporate Group in the Phoenix office. Her practice focuses on corporate, securities, commercial transac-tions, and mergers and acquisitions, with a focus on companies in the technology and healthcare indus-tries. She received her law degree from the University of California Berkeley Law School.

Jennings, Strouss & Salmon is pleased to an-nounce that Kami M. Hoskins will be honored by the Black Women Lawyer’s Association of Arizona (BWLAA) during its annual awards dinner. Hoskins will be receiving the Charlotte E. Ray Award of Excellence. The BWLAA’s mission is to recognize and celebrate the accomplishments of African American female attorneys in Arizona. The Charlotte E. Ray Award of Excellence is presented annually to an outstanding attorney who practices in the state of Arizona.

Hoskins was past chair and is a current member of the State Bar of Arizona’s Mentor Committee. She is also an active member of both the state bar’s Committee on Minorities and Women in the Law and its Diversity Task Force. A native Arizonan, Hoskins earned a JD from the UofA James E. Rogers Col-lege of Law. Charlotte E. Ray was the first African American woman and the third woman to earn a U.S. law degree when she graduated from Howard Law School in 1872. Ray became the first African Ameri-can woman lawyer in the U.S. when she was admitted to the District of Columbia Bar.

Phoenix Mayor Greg Stanton and his wife, at-torney Nicole Stanton, will serve as honorary chairs for “A McNight to Remember in Neverland,” the annual gala fundraiser for Ronald McDonald House Charities on Nov. 2. The event is the largest fund-


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portunity for hearing, the right to representa-tion by counsel, and that counsel have access to the child’s social records.

Kent was decided on statutory grounds. It thus did not apply to state juvenile courts. Accordingly, Fortas wanted to write Gault to reform yet another area, and Warren gave him the opinion. It was Fortas’s major opinion be-fore he was forced to retire from the Court in May1969. LucaS a. Powe, Jr., The warren courT anD american PoLiTicS 437 (2000).

Gault’s supporters considered it an exten-sion of Gideon. Opponents viewed it as a mistaken extension of Miranda. However, within a few years, Kent and Gault would be “treated as relics.” Later empirical studies confirmed juvenile courts’ limited compli-ance with Gault’s requirements that juveniles be advised of their rights to counsel and to confront witnesses against them, and of their privilege against self-incrimination. Twenty years later, many states still did not appoint counsel for juveniles. An article by Patricia Puritz, executive director of the National Juvenile Defender Center, has stated, “the promise of In re Gault remains largely unful-filled and, indeed, the juvenile defense bar is in crisis.”

Later casesIn the Matter of Winship, 397 U.S. 358

(1970), narrowly extended Gault to hold that

juveniles, like adults, are constitutionally en-titled to proof beyond a reasonable doubt when they are charged with a criminal law vi-olation. However, Richard Nixon’s election in 1968, followed by Warren Burger’s and Harry Blackmun’s appointments to the Court in 1969 and 1970, respectively, ended the War-ren Court’s due process revolution.

Blackmun’s plurality opinion in McKeiver v. Pennsylvania, 403 U.S. 528 (1971), instead restored parens patriae to juvenile court ju-risprudence in holding that juveniles had no right to a jury trial, based on a “fundamen-tal fairness” test. McKeiver thus halted the juvenile court’s constitutional domestication. The Burger Court emphasized the differences between juvenile and criminal courts, rather than their similarities, in not requiring addi-tional procedural protections. Accordingly, states could largely decide how to run their juvenile courts and judges could adapt Gault, rather than adapting to it.

The Burger Court’s last juvenile decision, Schall v. Martin, 467 U.S. 253 (1984), upheld the constitutionality of a New York statute per-mitting 17-day pretrial detentions of accused juvenile delinquents if there was a “serious risk” they would commit another crime be-fore their hearing. Justice William Rehnquist believed the “charge of the denial of due pro-cess [in that case] is simply frivolous.” Instead, applying the “fundamental fairness” standard

used in McKeiver, his 6-3 majority opinion held there were enough procedural protections to ensure a fair process, and that parens patriae included incarceration as a legitimate expres-sion of state authority.

More recently, Roper v. Simmons, 543 U.S. 551 (2005), has held the Eighth and Four-teenth amendments prohibit states from us-ing the death penalty on offenders under 18 when their crimes were committed. Safford Unified Sch. Dist. #1 v. Redding, 557 U.S. 364 (2009), held a 13-year-old girl student had a Fourth Amendment right against a strip search when there was no probable cause to believe she had concealed drugs. However, the school officials were held entitled to qual-ified immunity because they could not have definitely known they were violating her con-stitutional rights.

ConclusionThe Supreme Court “has made constitu-

tional promises to children but must rely on other state actors to keep them. It remains primarily in the hands of local communi-ties to safeguard the constitutional rights of their children, whether they are in the public schools or the deep end of the juvenile justice system.” Gault turned out to be an important “period piece.” Although it “proved impos-sible to implement fully because of local resistance and the unfinished constitutional domestication of the justice court, it did help cement in American law the idea that children had constitutional rights.” n

Paul G. Ulrich recently retired as a Phoenix law-yer. His former practice emphasized civil appeals and related litigation. Between November 1965 and Oc-tober 1969, he was one of the lawyers at Lewis and Roca who represented Ernesto Miranda. This article with all citations included is available online at www.maricopabar.org.

In re Gault: Juvenile justice unfulfilled? continued from page 7

materials. A 200-word bio and a color jpeg photograph (see details in sidebar) must be submitted by email only to Mindy Haskins at [email protected] no later than 5 p.m., Sept. 16, 2013.

For complete election information, go to www.maricopabar.org or see below.

A. General policies1. Required election material must be sub-

mitted electronically, as detailed in Section B (with the exception of the formal letter of candidacy, which may be mailed), and all ma-terials must be received by Sept. 13.

2. Submitted biographies that exceed the 200-word limit may be edited by staff.

3. Position statements and any other cam-paign or election materials may not refer to other candidates nor include defamatory or inappropriate language, as determined by an ad hoc Election Review Committee appoint-ed by the President of the Association.

B. Candidate Election MaterialsThe following materials are required from

candidates no later than Sept. 16.1. A signed letter formally declaring can-

didacy for the Board of Directors, with the candidate’s signature and addressed to the Executive Director. This document may be submitted electronically as a pdf document, but a mailed paper version is also acceptable.

2. A 200-word biographical statement. This

bio may include an optional “position state-ment” of the candidate’s vision and priori-ties for the MCBA. This information must be submitted electronically as an attachment to an email, preferably in MS Word. Regardless of what is included in the biography, the word limit total is 200 words as counted electronically in MS Word. MCBA staff may edit bios exceed-ing the limit. (Please note that a standard-form resume or curriculum vitae are not acceptable.)

3. A color photograph in jpeg format, sent as an attachment to an e-mail. The photo for-mat must be jpeg, no other types of files or format can be accepted. Please note that pho-tos taken directly off a website are of poor quality. n

Candidates for MCBA Board of Directors invited to declare continued from page 1

races.” Judge Edward Kent, Jr. would hear arguments in Bayless v. Dameron. The named plaintiff, Samuel F. Bayless, was a car cleaner for the Southern Pacific Railroad.

Before segregation, Bayless’ two daugh-ters, six and ten years old, respectively, had to walk a short five blocks to their school. Afterwards they had to trek a mile and a half, across two different sets of dangerous railroad tracks.

Counsel argued that the new school would of necessity be ungraded due to the small number of students in each grade – graded schools being believed to be superior to ungraded “one room schoolhouses.”

Kibbey objected when Judge Kent com-mented that he thought the “Africans” would

be happier “with their own.” The lawyer argued eloquently that the aspiration of all parents, of whatever race, was to see their children have the advantages and stimulation of association with “men who have come down a long line of progress.”

He analogized to the desire of white parents to aspire for their children to attend the great universities, like Judge Kent’s own alma mater, Harvard. Superintendent John D. Loper offered testimony that the black school was equal or superior to those of-fered to whites, citing the new building and close personal attention the students would receive. Judge Kent ruled that because of the distances and dangers involved, students under 4th grade were exempt from the

segregation requirement. In early 1911, the ruling was appealed to

the Arizona Supreme Court. A final deci-sion of the case was deferred until the new state Supreme Court was seated more than a year later. Relying on the U.S. Supreme Court decision in Plessy v. Ferguson (1896), the court disapproved of Judge Kent’s decision and found no merit in the exception he had carved out.

The institutionalization of prejudice that Booker T. Washington believed Arizona had previously avoided, was approved by the new supreme court. Phoenix schools remained segregated until 1953, when Judge Fred C. Struckmeyer, Jr. announced his decision in Phillips v. Phoenix Union High School that “a half century of intolerance was enough” and declared the segregation law unconstitution-al.Over a year later, Struckmeyer’s view was validated by the U.S. Supreme Court in Brown v. Board of Education. n

Separate but not equal—the story of school segregation in Arizona and Phoenix continued from page 6

Supply witnesses with copies of any important documents to review ahead of time and have any questions prepared be-fore you convene to maximize your meet-ing time. Schedule your final meeting a couple of days before your witnesses’ tes-timony, so whatever is discussed is fresh in their minds.

Provide your key witnesses with a copy of the juror or trial notebook at this time. Be sure they know what to expect when they arrive at the courthouse, including parking, security, courtroom etiquette, proper attire, and the trial process.

Knowledge is key If you are second chairing a trial,

whether you are an attorney or paralegal, you need to know the file inside and out so you can find anything with minimal description. Read deposition transcripts to familiarize yourself with the case and witnesses. Study all of the trial exhibits and know their location in any notebook. Attend all meetings with clients and wit-nesses. Make lead counsel aware of any suggestions or concerns you have.

Very few cases get to trial today. In-stead, they are settled, reduced to judg-ment by way of a motion, or dismissed. But being part of a trial can be very excit-ing. If you start early, know your case, and are well-prepared, you will do your client a great service and, hopefully, prevail. n

Tina Ziegler is secretary of the Paralegal Division and a senior paralegal at Hammerman & Hult-gren, PC.

You’re going to trial—now what? continued from page 9

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