Arkansas Lawyers Advance Sheet Study Group
  • Main Page
  • Links
  • Continuing Legal Education
  • Members Only
  • Gerry's Blog
  • Advance Sheets Blog
  • Schedule
  • Case Summaries
  • Per Curiam Opinions
  • Videos

September 26, 2014

9/26/2014

0 Comments

 
We had a great meeting today.  We have a growing crowd. We have more lawyers engaged in different areas of practice.  


Two of the members were able to add some personal insight on decisions.  R. David Lewis prevailed in O'Dell v. Director of Workforce Services.  This was a victory for small businesses who hire truly independent contractors.  Gerry Schulze prevailed in Abo v. Walker, which was hotly contested on both substantive and procedural grounds.  The procedural issue carried the day, but in a footnote the Court indicated the substantive issues would have resulted in a favorable outcome as well.


One of the great things about this group is that we have a wide range of experience.  When a question of eminent domain arose, there was someone who knew about it.  The Rules of Criminal Procedure can be complicated, but several members who are active in criminal defense work provided some perspective.  The damages issues in a motor vehicle accident case were discussed by several members, including one who had handled one of the earlier cases the Court of Appeals relied on in deciding Fort v. Miller.


Experience is invaluable.  We encourage lawyers to keep up to date on the new wrinkles in the law.

0 Comments

Advance sheets began again August 29, 2014

8/29/2014

0 Comments

 
The Arkansas Court of Appeals issued its first decisions after the summer break on Wednesday, August 27, 2014. There were 10 decisions.

Where the decisions significant? Well they certainly were to the parties. Some of the members of our group have discussed what constitutes a significant case. Before 2007, the court could designate a case for publication or, not for publication. If the case was designated is not for publication it could not be used as legal authority. There was a certain amount of opposition to this practice. For that reason the Arkansas appellate courts system no longer issues unpublished decisions. All decisions are published on its website and given a unique identifier so that they may be referred to and cited for any legal propositions found in the case.

That does not mean that every single case will be significant. There will be cases that simply repeat or apply the findings and conclusions of previous cases. Nevertheless, as lawyers we like to keep up with what the courts are doing so that we can follow trends and try to anticipate what will be happening next.

Two of our members, Robert Tschiemer and Gerry Schulze, recently spoke at a continuing legal education program for the Arkansas Bar Association. Our task was to select the most significant cases of the last year and talk about how they would impact the law and the legal system. We feel like the presentation was a success.

As the courts return to publishing decisions, we recommend that lawyers keep up to date with the changes in the law. We believe that our weekly sessions are beneficial to lawyers trying to keep up with the times. As always we are looking for additional legal professionals with different points of view to join our group and meet with us.
0 Comments

Arkansas Chief Justice Jim Hannah Named President of National Court Association!

8/13/2014

0 Comments

 
The Chief Justice of the Arkansas Supreme Court has been named chair of the Board of Directors of the National Center for State Courts and president of the Conference of Chief Justices.  This is a huge honor for the State of Arkansas.  

For more please see this News Release.

We congratulate Chief Justice Hannah on this appointment, and we are confident that he will make us all proud.
0 Comments

2014 is looking interesting

1/21/2014

1 Comment

 
Picture
The year has started out with some interesting and important decisions.  We have had some lively discussions about the new developments in the law.

The Arkansas Supreme Court appointed a committee to make some recommendations on changes of the Arkansas Rules of Civil Procedure.  The impact of those decisions on litigants and lawyers promises to be great.  

We are now in a comment period.  Several of us are working on comments on the proposed rules.  We think the Court has an opportunity to improve the legal system with these rules, but the one law that can never be repealed is the law of unanticipated consequences.  Several of us will be suggesting some possible consequences we anticip

1 Comment

The meetings are as lively as ever

10/16/2013

0 Comments

 
No meeting this week.

There won't be a meeting October 18, 2013, but we expect to be back again the week after that.

We have shuffled our order of presenters.  That's made it harder to know who will be up next.  We've tried to rearrange it so that people won't have to do presentations two weeks in a row.  You get the Supreme Court one week, then you do the Court of Appeals three or four weeks later.  At least that's the plan. 
0 Comments

Few cases, but spirited discussion

12/7/2012

0 Comments

 
There weren't many cases today, but there was a lot of discussion of the few that were there.  We had ten participants, which is pretty good for December.  Participation seems to drop off in December, but apparently not this year, at least not yet.

There was a lot of interest in the Arkansas Supreme Court's decision upholding the constitutionality of the Freedom of Information Act.  That decision got a lot of press coverage as well.  

There was interest in the Arkansas Supreme Court's decision interpreting an inter vivos trust.  A lot of us felt like we had gone back to law school.

The Court of Appeals decided an important case on charitable immunity.  One of the participants of our group has some cases pending involving the same issue, so we were able to get a lot of insigh
0 Comments

As long as we're talking about field sobriety tests

11/2/2012

0 Comments

 
0 Comments

November 2, 2012 meeting

11/2/2012

0 Comments

 
Picture
We had a very successful meeting. There were nine people present but there is always room for a few more.

Technicalities dominated the day's discussions. Today we spent a lot of time discussing Baylark v. Helena Regional Medical Center, et al., 2012 Ark. 405.  It is difficult to keep up with the twists and turns of the law dealing with service of process. Service of process is necessary to get a lawsuit started. In Arkansas, the rules for service of process must be strictly complied with.  The case creates uncertainties for getting an extension of time to serve a defendant.  To move for an extension of time, a party must show "good cause."   The fact that the lawyer anticipates a challenge to attempted service of process is not enough for good cause.  

Chambers v. State, 2012 Ark. 407 is a very important case in defending charges of DWI. The Arkansas Supreme Court has held that it is not necessary to bring the officer who tested the breathalyzer machine and certified it for accuracy to the trial. The certificate of the officer who calibrated and tested the machine is sufficient. The concurring opinion is particularly troublesome in that the trial judge did not explicitly declare whether he was finding the defendant guilty under subsection (a) or subsection (b) of Arkansas's DWI statute.

Ark. Code Ann. § 5-65-103 (Repl. 2005), reads:

(a) It is unlawful and punishable as provided in this act for any person who is intoxicated to operate or be in actual physical control of a motor vehicle.

(b) It is unlawful and punishable as provided in this act for any person to operate or be in actual physical control of a motor vehicle if at that time the alcohol concentration in the person’s breath or blood was eight-hundredths (0.08) or more based upon the definition of breath, blood, and urine concentration in § 5-65-204.

As you can see, there are two ways you can be convicted.  The first section is much easier.   The state can prove intoxication in any number of ways, including performing poorly on a field sobriety test, regardless of the results of a breathalyzer, blood test, or urine test.

The concurring opinion found that the trial judge's decision could be upheld under subsection (a).  It may become necessary in defending a DWI case that you wish to take up on appeal to get the judge to specifically rule as to which section (or both) of the DWI statute is relying upon.

The devil is in the details.  Hashing out the details with other lawyers can be very helpful in understanding the significance of some of these cases.

Again we were fortunate to have some of the lawyers involved in some of the big cases of the last couple of weeks to discuss the cases.


0 Comments

Great meeting this week.

10/26/2012

0 Comments

 
We had a good meeting this week.  David Hodges presented the cases.  We had some lively discussion about some of the cases.  That is what this group is about.  Different lawyers with different areas of expertise and different experiences can give our own points of view on important decisions and the implications those cases may have.  We discussed how criminal defense lawyers can improve their practices in response to decisions such as Gordon v. State, 2012 Ark. 398.  It is essential to make the best objection that you can, even when the objection has to be on the fly because of unanticipated evidence.  In that case the prosecution was allowed to introduce evidence that the defendant was an aggressor in a fight that broke out while he was in jail awaiting trial.  This evidence is highly prejudicial, but the trial court found it was admissible to contradict the defendant's testimony.  The court also sustained a Daubert style objection to testimony of defendant's expert witness.  Unfortunately, the proposed testimony wasn't proffered, so the Supreme Court couldn't consider the issue.

There was also a vigorous discussion of Mathis v Estate of McSpadden, 2012 Ark.App. 599.  Should a mother's paternity suit, which she lost for failure to appear at trial, prevent a daughter from trying to prove paternity for purposes of inheritance years later?  The Court of Appeals held that under the principle of res judicata, 

Sometimes there is simply nothing that can be done about a serious error.  Arnold v. State, 2012 Ark. 400 is an example of that.  After a criminal trial, one of the jurors came forward and said that she misunderstood the instructions and doubted whether she had followed the instructions correctly. Under our rules, however, a court cannot hear evidence as to any matter or statement during the jury's deliberations unless outside information was brought to the attention of the jurors.  Merely misunderstanding evidence, or the law, is outside the realm that a trial court can consider.

David had to put off discussion of a case he was involved in because we ran out of time.  He is going to open the discussion of Smith v. Heather Manor Care Center, 2012 Ark. App. 584 next week.  This case is very instructive on what we lawyers call "Batson" challenges.  In Batson v. Kentucky, 476 U.S. 70 the United States Supreme Court held that it was improper to use preemptive strikes of jurors merely to exclude jurors simply on the basis of race.  Here the defendant used all of its strikes on African-American jurors.  The plaintiff showed a pattern of excluding African-Americans.  This allowed the Court to inquire as to the basis for the strikes.  The party who exercised the strikes must state a racially neutral explanation.  It must be more than a mere denial of racial motivation, but it does not have to be a particularly good explanation.  It need not be persuasive or even plausible.  "Indeed, it may be silly or superstitious."  Then the Court must determine if there was a racial motivation.  Here the defendant's lawyer gave race-neutral reasons for excluding the particular jurors.  The Court found that the plaintiff had not shown that the true motivation was race and upheld the strikes.  This case is very instructive on how to handle a situation when you believe your opponent is using peremptory strikes to change the racial composition of the jury, and just how difficult it can be to actually prove it.
0 Comments

No Meeting This Week

10/18/2012

0 Comments

 
There were no decisions this week due to the Judicial Conference.  I don't know what that will do the schedule.  We'll just have to talk about it sometime next week.
0 Comments
<<Previous

    Gerry Schulze

    Gerry Schulze is a lawyer in Little Rock, Arkansas and one of the members of the Arkansas Advance Sheets Study Group.  He created this webpage and blog.  We hope that in the future other members of the group will participate, but for right now, this is it.

    Archives

    September 2014
    August 2014
    January 2014
    October 2013
    December 2012
    November 2012
    October 2012
    September 2012
    August 2012
    July 2012

    Categories

    All

    RSS Feed

Powered by Create your own unique website with customizable templates.
Photos used under Creative Commons from cortneymartin82, Sweet One, dogbomb, melloveschallah, Sergey Vladimirov