Hanging of Stan Whiting`s Bill of Rights

Transcription

SEPTEMBER/OCTOBER 2013
ISSUE NO. 270
Hanging of Stan Whiting’s
Bill of Rights
Tripp County Courthouse
200 East Third Street, 3rd Floor
Winner, South Dakota
Friday October 11, 2013
4:30 p.m. Central
See page 13 for details!
Inside this issue….
AAJ Paralegal of the Year
Dennyce Korb — see page 8
Reflections of MLK &
Voting Rights History — page 9
Law School Times — see page 11
Coffee with Judge Percy — page 14
Is Facebook Your Friend?
- see page 19
and much, much more…..
S e pte m b e r / O c to b e r 2 0 1 3
Page 2
PRESIDENT ’S MESSAGE….
BY STEPHANIE E. POCHOP
Officers
President: Stephanie E. Pochop
President-Elect: G. Verne Goodsell
Secretary-Treasurer: Steven C. Beardsley
Board of Governors
Timothy Rensch, AAJ Delegate
Richard D. Casey, AAJ Delegate
Clint Sargent, AAJ Governor
Terrence R. Quinn, AAJ Governor
Aaron D. Eiesland
Casey W. Fideler
Alecia E. Fuller
Raleigh E. Hansman
Margo Tschetter Julius
Ryan Kolbeck
Brad J. Lee
Melissa B. Nicholson
Kasey L. Olivier
Robbie J. Rohl
McLean Thompson Kerver
T.J. Von Wald
Past Presidents
Immediate Past President
Steven S. Siegel
William J. Holland - Stan Siegel
Joseph M. Butler - John H. Zimmer
Carleton R. Hoy - Horace R. Jackson
William F. Day Jr. - Vincent J. Protsch
Gale E. Fisher - A. William Spiry
Franklin J. Wallahan - Gerald L. Reade
Rick Johnson - David V. Vrooman
Terence R. Quinn - Thomas R. Pardy
Charles M. Thompson - David R. Gienapp
Gary E. Davis - Gregory A. Eiesland
James S. Nelson - Robert J. Burns
Brent A. Wilbur - Steven M. Johnson
Glen H. Johnson - William J. Srstka Jr.
Gary D. Jensen - John P. Blackburn
Michael W. Day - Michael J. Schaffer
Bruce M. Ford - Nancy J. Turbak Berry
Scott Heidepriem – Michael D. Stevens
Robert L. Morris II - Richard D. Casey
Jon Sogn – Mark V. Meierhenry
Brad Schreiber – Jeff A. Larson
Mark Connot – Tina M. Hogue
James Roby - Wally Eklund
Michael F. Marlow - Clint Sargent
Michael A. Wilson—Roger A. Tellinghuisen
Association Office
104 W Spring Creek Dr — PO Box 1154
Pierre, SD 57501-1154
605-224-9292
Each year when we send in our SDTLA dues as current
members, we all re-commit to the SDTLA mission of working
to preserve the jury trial system in South Dakota. For that
reason, I must extend a special “thank you” to the following
SDTLA members who have helped grow our membership by
sponsoring law student memberships at the USD School of
Law:
Tara Adamski
Stephanie Amiotte
John Blackburn
Mary Burd
Aaron Eiesland
Greg Eiesland
Alecia Fuller
Peter Horner
George Johnson
Ryan Kolbeck
Mike Marlow
Mark Meierhenry
Melissa Nicholson
Jane Pfeifle
Robbie Rohl
Rep. Mike Stevens
Sid Strange
Marya Tellinghuisen
Hon. Kathleen Trandahl
Hon. Jeff Viken
Linda Lea Viken
and
Me (Stephanie E. Pochop)
As a result of these members’ generosity, we have 66 brand new SDTLA members.
It is particularly heartening to see that so many different types of members took the
time to reach out to law students with the welcoming message that we should strive
to share with all our members: “You belong.”
While encouraging student membership is critical to the future of the SDTLA, providing our current lawyer and judicial members with value for their memberships is
equally important to today’s SDTLA. We are doing fine in terms of maintaining our
regular membership, but the value of membership can not be entirely measured in
terms of how many people pay their dues. The SDTLA Board wants to serve our
members – all of them – with substantive educational and professional opportunities
that advance the goals of our organization.
I was thinking about this because SDTLA just finished our annual Fall Seminar in
Deadwood, gratis Terry Quinn’s ability to suss out interesting presenters and Sara
Hartford’s ability to organize it so that we’re all together in a great setting. As is our
tradition, a pleasing variety of practice interests were represented in the crowd. As is
our tradition, our presenters offered practical, practice-improving advice; this seminar’s speakers left us with some interesting ideas about presenting medical evidence
during discovery, mediation and trial. And as is our tradition, there was what can
Continued on page 6
The Barrister is published electronically six times a year by the South Dakota Trial Lawyers Association as a service to its membership and as part of its continuing commitment to educate and promote
professionalism among trial attorneys. Submissions are welcome. Interested authors should contact Sara Hartford, Executive Director at the above address. Articles are accepted from contributors who
share the goals of the South Dakota Trial Lawyers. All submissions must be signed by the author. The Barrister is not responsible for cite-checking or reference checking materials cited in submissions. The author must verify that any sources included, relied upon or quoted in the submission have been properly credited and cited; the author must obtain all necessary permissions for publication of
copyright protected materials. The Executive Director and Editor have the right to edit all submissions or refuse to publish articles that are not in keeping with the goals of the organization. Subscriptions of
$25 are included in the Association’s annual membership dues. Non-members subscription rate is $50 per year.
Statements and opinions in the Barrister editorials and articles are not necessarily those of SDTLA. Publication of advertising does not imply endorsement of products or services or statements made about
them. Advertising copy is subject to approval by SDTLA. Copy deadlines are February 1, April 1, June 1, August 1 October 1 and December 1. Call for advertising rates.
Scott A. Abdallah
Michael C. Abourezk
Charles Abourezk
Grant G. Alvine
Stephanie R. Amiotte
Kenneth E. Barker
Steven C. Beardsley
John P. Blackburn
Michael D. Bornitz
John William Burke
Michael J. Butler
Renee H. Christensen
Page 3
SUSTAINING MEMBERS
J. Michael Dady
Patrick K. Duffy
Gregory A. Eiesland
Aaron Eiesland
Dennis W. Finch
Jay R. Gellhaus
G. Verne Goodsell
Scott N. Heidepriem
Scott G. Hoy
John R. Hughes
Gary D. Jensen
Steven M. Johnson
James C. Roby
Michael K. Sabers
Clint Sargent
Steve S. Siegel
Michael J. Simpson
Michael D. Stevens
Michael W. Strain
Roger A. Tellinghuisen
Thomas P. Tonner
Nancy J. Turbak Berry
TJ Von Wald
Thomas K. Wilka
George Johnson
David J. King
Jeff A. Larson
James D. Leach
Michael F. Marlow
Lee C. 'Kit' McCahren
Mark V. Meierhenry
N. Dean Nasser
James S. Nelson
Stephanie E. Pochop
Terence R. Quinn
Timothy J. Rensch
Michael A. Wilson
Sustaining members pay $700 in dues each year, which entitles them to attend the Association’s annual fall seminar, the annual meeting and
luncheon and a plaque denoting their sustaining membership status. Our gratitude goes to these members so that the association can continue to
sustain funding for an on-going defense of the civil justice system!
SDTLPAC is the political action committee of the SD Trial Lawyers Association. Organized in 1987, SDTLPAC contributes to any candidate
for a state office who will support fair and equitable legislation to protect
the rights of South Dakotans through the preservation of our justice system. WE THANK THESE CONTRIBUTORS FOR THEIR SUPPORT!
$1,800 ANNUAL
Michael F. Marlow
Lee C. “Kit” McCahren
Stephanie E. Pochop
$1,200 ANNUAL
Kenneth E. Barker
John P. Blackburn
Aaron D. Eiesland
Gregory A. Eiesland
Scott N. Heidepriem
Clint Sargent
Michael D. Stevens
Roger A. Tellinghuisen
$1000 ANNUAL
Scott Hoy
$900 ANNUAL
Gary D. Jensen
Nancy Turbak Berry
$720 ANNUAL
Michael A. Wilson
$600 ANNUAL
Terry L. Hofer
Margo T. Julius
Mark V. Meierhenry
James C. Roby
Michael J. Schaffer
Whiting Hagg & Hagg
$500 ANNUAL
John W. Burke
Courtney R. Clayborne
Terry Pechota
$480 ANNUAL
Jon C. Sogn
$300 ANNUAL
Charles Abourezk
Steven C. Beardsley
G. Verne Goodsell
Wm. Jason Groves
Paul H. Linde
Thomas Tobin
$240 ANNUAL
Richard D. Casey
$200 ANNUAL
Stephanie Amiotte
$180 ANNUAL
Brad J. Lee
$150 ANNUAL
Jeremiah “Jay” Davis
$120 ANNUAL
Kenneth D. Bertsch
Daniel F. Duffy
Richard A. Engels
Dennis W. Finch
Robert B. Frieberg
Alecia E. Fuller
George E. Grassby
Ryan Kolbeck
Michael Paulson
Catherine V. Piersol
Haven L. Stuck
T. J. Von Wald
LIFETIME ACHIEVEMENT AWARD
Carleton “Tex” Hoy
John F. Hagemann
Robert C. Ulrich
Fred J. Nichol Award for
Outstanding Jurist
Hon. Ernest W. Hertz – 2000
Hon. Andrew W. Bogue - 2001
Hon. John B. Jones – 2002
Hon. George W. Wuest - 2003
Hon. Marshall P. Young – 2004
Hon. Robert A. Amundson – 2005
Hon. Lawrence L. Piersol – 2006
Hon. Richard W. Sabers – 2007
Hon. Judith K. Meierhenry - 2008
Hon. Tim D. Tucker – 2009
Hon. David R. Gienapp - 2010
Hon. Jack Von Wald – 2011
Hon. John Bastain - 2012
Hon. David Gilbertson -2013
TRIAL LAWYER
OF THE YEAR AWARDS
87-88
88-89
89-90
90-91
91-92
92-93
93-94
94-95
95-96
96-97
97-98
98-99
99-00
00-01
01-02
02-03
03-04
04-05
05-06
06-07
07-08
08-09
09-10
10-11
11-12
12-13
Terry Quinn
Greg Eiesland
Steve Johnson
Glen Johnson
Bob Burns
Gary Jensen
Joe Butler
Mark Meierhenry
Jeff Larson
Nancy Turbak
David Gienapp
Rick Johnson
Jim McMahon
Mike Schaffer
John Blackburn
William F. Day, Jr.
Michael Abourezk
Michael W. Strain
Patrick Duffy
Thomas G. Fritz
Michael J. Butler
Wally Eklund
James D. Leach
N. Dean Nasser, Jr.
Stanley Whiting
Charles M. Thompson
TOAST OF TRIAL LAWYERS
June 2006
Nancy Turbak
T.F. Martin
Travis Jones
Michael Stevens
June 2007
Roger Tellinghuisen
Mike Butler
Eric Schulte
June 2008
Sid Strange
Jerry Reade
Jim Leach
June 2009
Mike Abourezk
Alecia Garcia
Scott Heidepriem
Shiloh MacNally
Doug Cummings
June 2010
Michael DeMersseman
Hon. John Schlimgen
Joni Cutler
Margo Julius
Scott Abdallah
June 2011
Susan Sabers
TJ Von Wald
John Murphy
Steve Siegel
June 2012
John Blackburn
Linda Lea Viken
Hon. Mark Smith
Ronald Parsons
June 2013
Rep. Michael Stevens
Hon. John Hinrichs
Hon. Michelle Percy
Clint Sargent
Eric C. Schulte
Tim Rensch
Stephanie Pochop
Richard Casey
Ryan Kolbeck
Page 4
EDITOR’s Notes & Comments
Marya V. Tellinghuisen
I attended the recent board meeting and CLE in Deadwood. The CLE was very interesting and no matter your
field of interest, there was something you could take from
the CLE to use in your practice. At the board meeting, Terry Quinn announced that he was resigning from our CLE
committee. Terry has done an outstanding job over the
years of getting national speakers to come to South Dakota
to share their knowledge with us. I completely understand
Terry’s desire to step down, but we all owe him our appreciation as there are not many lawyers who have the connections and persuasive skills to get these speakers here.
We had a short discussion on future CLE formats. Several
ideas were thrown out. Clint Sargent suggested having our
members each do a 10 minute session about any topic of
interest. This is similar to the Early Bird CLE the State Bar
does during the Bar Convention each year. Most of us struggle to sit in a 3 hour
seminar so perhaps a different format would appeal to people. Stephanie has
urged you to give thought to how our organization can serve you better. This is an
area that really deserves consideration. Please let someone from the board know
your thoughts.
After the board meeting, the CLE began. While I was sitting there, I was still thinking
about the format of the CLEs. I Googled something and a link to the “Invisible Gorilla” came up. This is a book written by Christopher Chabris and Daniel Simon. They
have a website with a video which is kind of a fun experriment. Go to http://
www.theinvisiblegorilla.com/overview.html to watch the video. The authors wrote
this book about how we think we see ourselves and the world as they really are, but
we're actually missing a whole lot. It made me wonder if this book would be helpful
in trying cases. Jurors think a whole lot differently than we do. This phenomenon is
called “inattentional blindness.” What do they think and see when a case is presented to them? One review stated:
Should be required reading by every judge and jury member in our
criminal justice system, along with every battlefield commander, corporate CEO, member of Congress, and, well, you and me ... because
the mental illusions so wonderfully explicated in this book can fool
every one of us. Michael Shermer, Publisher of Skeptic magazine,
monthly columnist for Scientific American, and the author of Why People
Believe Weird Things
In this issue of the Barrister, we have a delightful interview of Judge Michelle Percy
submitted by Robbie Rohl. We also have a thought provoking article from Eric
Schulte about the anniversary of Martin Luther King’s “I have a Dream” speech and
the Voting Rights Act. Finally, Margo Julius presented a session last May at the
Trial Lawyer’s seminar regarding Facebook and what you need to know to best represent your clients. Margo kindly submitted her outline to us for publication.
If you want to know why the gorilla is atop my article, you have to go to the gorilla
website mentioned earlier. Or maybe you didn’t notice. Just checking.
Page 5
SDTLA CALENDAR OF EVENTS
2013
October 11
Stan Whiting Bill of Rights Hanging Party, Winner, 4:30 pm CT
October 15
Meeting with Chief Justice and Board meeting, 11 am CT
November 14
Board conference call, 4 pm CT
December 19
Board Conference call, 4 pm CT
2014
January 14 – March 14
January TBA
February TBA
South Dakota Legislative Session
Board Conference call for legislative issues, 4 pm CT
Board Meeting for legislative purposes
April 17
Board Conference call, 4 pm CT
May 8-9
Spring Seminar & Board Meeting,
Holiday Inn City Centre,
Page 6
Trophies, Trinkets and Toasts
By Ret. SD Supreme Court Justice Judith Meierhenry
What to do with a lifetime of mementos, certificates and plaques? Although they sketch our lives and arouse personal
memories, they beg to be organized or discarded, knowing they are all dumpster bound on the estate sale.
Ok! Ok! This one goes, these stay. Some only kept as reminders in case my memory dims. Others I keep because of the
honor they represent. I hold these precious few close.
One of my most treasured sits proudly on my credenza. It is Lady Justice holding the scales of justice standing atop a
base that proclaims “The Fred Nichol Award for Outstanding Jurist.” I treasure it because it symbolizes a profession I
love, but also speaks personally of how proud I am to have been recognized by those who I hold in highest esteem –
trial lawyers.
Each year, the luncheon awards never fail to tug tears from the most stoic of us. I think partly because the room is filled
with dedicated people who work hard to be good at what they do. And, the awards renew our faith that it is all worth it.
For that glorious moment, what we love about the profession eclipses a client’s harsh words, a lost-case disappointment,
any self-doubt or worries. The awards elevate the significance of our daily toils --often grueling, sometimes menial, but
always important.
What I have come to believe is that sincere awards of recognition are important. Not just for the recipient but for all of us.
The awards inspire us to see the good in ourselves and each other. It can’t get much better than that.
“Hear, hear Trial Lawyers!”
Continued from page 2
only be classified as a lively social event following the CLE. The feedback we received confirmed that the seminar was
both an educationally and professionally valuable to the lawyers and paraprofessionals who attended.
While we did draw a very nice crowd, it was hard not to think about who was not there. Running through my own list of
the cool people that we missed at this event made me think that we do need to take a look at our SDTLA traditions to
see if they still fit us. Trust me: I can pull out 15 exhibits from my closet that will establish beyond a reasonable doubt
that even a beautiful and well-designed fit can go out of style. Since I had this thought even though I’m the person using
stationery from 1963 who has 15 un-wearable looks hanging in her closet, I had to imagine that other members who are
less steeped in SDTLA tradition might think the same thing:
Do we need to replace, upgrade or tailor our membership
services to maintain an engaged membership?
Consider the following changes that impacted our members within the last ten years:
 By design, the SDTLA membership is more diverse than ever.
 Technological advances have caused a major shift in what constitutes effective communication.
 Alternative dispute resolution techniques have become so much more accessible and effective that it is hard
for newer lawyers to develop a litigation practice via jury work.
 The important work of the Bar’s Lawyers Assistance committee reminds us that we need to redesign our
social events to offer better networking opportunities to our members.
 Increasing numbers of lawyers achieve work/life balance by limiting their organizational membership obligations.

Fewer lawyers are willing to run for the legislature.
 Judges increasingly have to deal with the threat of politicized judicial elections.
 Effective legislative efforts require more time, more money and increasingly complex strategizing.
In light of this arguably technologically distanced environment, we can’t expect our members – and the people that we
want to join – to take our word for it that our favorite SDTLA traditions still work.
To (lamely) paraphrase: if the tradition don’t fit, we must change it…. The SDTLA Board exists to make SDTLA so useful, comfortable and inviting that you’ll gladly pay your dues -- and sponsor a student membership -- so that you won’t
miss out on our next event. Here is where you can help us again: if you have not attended an SDTLA event in the past
twelve months, we want to know what we can do to get you back. Feel free to contact me by email with your ideas.
Your input will be presented to the Board for consideration.
Page 7
Page 8
KORB AWARDED
AAJ PARALEGAL OF THE YEAR
Dennyce (Denny) Korb was awarded the 2013 American Association for Justice and Advocate Capital
Paralegal of The Year Award at the AAJ Annual Convention in San Francisco. Her journey to this award
began as a young court reporter in Minneapolis. Denny and her husband, Carroll, moved to Rapid City in
1979 when her husband Carroll followed a business opportunity in the lumber industry. Denny intended to be
a court reporter in Rapid City. Because she didn’t know the local legal community she decided to apply for a
legal secretary position with Lynn, Jackson, Shultz & Lebrun and become familiar with the community. She
was interviewed by a then young Greg Eiesland. In the interview she had laryngitis and could barely whisper.
She got the job and has been speaking out and advocating ever since.
Along the way Denny began taking on more of the work paralegals do in law firms. In 1989 she sat for the 2day exam given by the National Association of Legal Assistant and became a certified paralegal.
Denny became active in ATLA and has gone to most of the annual and winter meetings for over 25 years.
Over the course of years she has been active in a number of litigation groups, including products liability,
trucking litigation group, medical malpractice group, and personal injury litigation group. But, over the last
almost eight years, she has been most active in the nursing home litigation group. The attorneys nationwide
who practice in the area of nursing home abuse and neglect know the name Denny Korb. She frequently
posts information from all over the country and has become somewhat of a clearing house for up-to-date
information and rulings in nursing home cases around the country. Denny also follows the legislative
struggles in protecting elderly citizens and is an outspoken critic of the arbitration process which does not
serve the elderly and hides the abuse from the public.
Her outside interests includes travel (Machu Picchu and the Galapagos Islands this fall), acting in local
theater, singing as a soloist and in groups, and as a long suffering Minnesota Twins and Vikings fan.
Denny has been active in the South Dakota Trial Lawyers since the 1980s. She is an unapologetic plaintiff’s
advocate and a great ambassador for the legal profession.
Page 9
REFLECTIONS ON THE ANNIVERSARY OF
DR. MARTIN LUTHER KING’S “I HAVE A DREAM” SPEECH
AND SHELBY COUNTY, ALABAMA v. HOLDER.
By Eric C. Schulte
This past summer marked two milestones in our nation’s long struggle to guaranty civil rights for all
of our citizens. First, our country celebrated the 50th anniversary of Dr. Martin Luther King’s historic
and inspirational “I Have a Dream” speech. Second, on June 25, 2013, the United States Supreme
Court struck down a key provision of the landmark Voting Rights Act of 1965 in Shelby County, Alabama v. Holder, 133 S.Ct. 2612 (2013). In a 5-4 ruling, the Court held in Shelby that Section 4 of
the Voting Rights Act was unconstitutional, thus giving States a nearly unfettered ability to enact
new voting restrictions without federal oversight. Dr. King’s speech and the Supreme Court’s decision in Shelby County warrant reflection not only for trial lawyers but every American citizen.
On August, 28, 1963, in the shadow of the Lincoln Memorial, Dr. King addressed thousands of people, including religious leaders, labor leaders, and people of every race and social standing. In his
speech, Dr. King said the time had come to “make real the promises of democracy.” With passion
and conviction, Dr. King told the crowd and the nation of his “dream that my four little children will
one day live in a nation where they will not be judged by the color of their skin but by the content of
their character.” His words moved the nation then, and still resonate with us today. If you have not
seen Dr. King’s speech, or if you have not seen it for a while, it is easily available on YouTube. It
lasts only 17 minutes, and I highly recommend everyone take the time to watch it.
Dr. King’s speech and other historical events formed the impetus for the passage of the Voting
Rights Act of 1965. For a little perspective on why the Voting Rights Act was necessary, consider
that in 1896 there were 130,334 African Americans registered to vote in Louisiana. In 1904, there
were 1,342. In the 1904 presidential election, black voter turnout in Virginia and South Carolina
was zero. At every turn, African Americans were denied the basic opportunity to vote. Several
states openly violated the Fifteenth Amendment’s strict prohibition against voter discrimination
based upon race or color. This blatant discrimination persisted for decades and was put on display
for the nation during the infamous Bloody Sunday on March 7, 1965. On this date, television cameras captured 600 peaceful marchers being attacked by law enforcement officers while marching
from Selma, Alabama, to Montgomery, Alabama.
Based in large part on the horrific violence occurring in Alabama, President Lyndon Johnson became convinced the country needed voting rights legislation. In his typically abrasive style, President Johnson reportedly told his Attorney General that “I want you to write me the goddamnest
toughest voting rights act that you can devise.” The result was the landmark 1965 Voting Rights
Act.
What makes the Voting Rights Act extraordinary and powerful is Section 4 of the Act. Section 4
provides a “coverage formula,” defining “covered jurisdictions” as States or political subdivisions
that maintained tests or devices as prerequisites to voting, and had low voter registration or turnout
in the 1960s and early 1970s. In those jurisdictions, which were southern states, Section 5 of the
Act provided that no change in voting procedures could take effect until approved by federal authorities in Washington. This practice was known as “preclearance.” There is no question that the
practice of preclearance significantly diminished overt voter discrimination in covered jurisdictions.
Continued on page 10
Page 10
The coverage formula and preclearance requirement were reauthorized by Congress several times.
In 2006, the Act was reauthorized by Congress for an additional 25 years. Notably, the reauthorization was passed after an extensive investigation by Congress on voter discrimination and by
overwhelming majorities in the Senate and the House. The Senate voted to reauthorize the Act 980, while the House voted to reauthorize the Act by a vote of 390 yeas and 33 nays. South Dakota’s
congressional delegation unanimously voted for the Act’s reauthorization. President Bush signed
the reauthorization into law on July 27, 2006, stating that the Act’s reauthorization was “an example
of our continued commitment to a united America where every person is value and treated with respect.”
Against this backdrop the Supreme Court addressed the case of Shelby. In Shelby, Shelby County, Alabama, filed a declaratory judgment action against the United States, arguing that the preclearance requirement in Section 4 of the Act was an unconstitutional intrusion into the State of Alabama’s sovereignty. Writing for the majority, Chief Justice Roberts acknowledged that the Voting
Rights Act was “strong medicine … needed to address ‘an insidious and pervasive evil which had
been perpetrated in certain parts of our country through unremitting and ingenious defiance of the
Constitution.’” Shelby, 133 S.Ct. at 2618 (quoting South Carolina v. Katzenbach, 383, U.S. 301,
309, 309 86 S.Ct. 803 (1966)). Justice Roberts also acknowledged that “voting discrimination still
exists; no one doubts that.” Id. Nonetheless, the Court held that the preclearance formula was too
dated, and because Congress had not used another formula in 2006 the Court “was left with no
choice but to declare § 4(b) unconstitutional.” Id. at 2631.
In a scathing dissent, read orally from the bench, Justice Ginsburg remarked that “[i]n the Court’s
view, the very success of § 5 of the Voting Rights Act demands its dormancy.” Shelby, 133 S.Ct. at
2632 (Ginsburg, J., dissenting). Justice Ginsburg also outlined various “second generation” barriers to voting equality, including the redrawing of legislative districts to segregate races for the purposes of voting, and Congress’ finding that voting discrimination still exists to this day. Id. at 2636.
In Justice Ginsburg’s view, the “determination of the body empowered to enforce the Civil War
Amendments ‘by appropriate legislation’ merits this Court’s utmost respect. In my judgment, the
Court errs egregiously by overriding Congress’ decision.” Id. at 2652.
This short article is not meant to be a detailed critique of the rationale behind the Court’s ruling in
Shelby. Such a critique is for another time and place and can be written by others with more
knowledge of voting rights law than me. It is sufficient to say that I respectfully but strongly disagree with the majority’s ruling. I think the majority’s ruling strikes right at the heart of the equality
Dr. King spoke about so passionately 50 years ago.
My only purpose in writing this article is to encourage everyone to reflect on the message Dr. King
sent to the nation in his speech 50 years ago. It is every citizen’s obligation to seek equality for
every other citizen. In my view, however, trial lawyers play a unique and critical role in fighting for
the equality Dr. King spoke about so eloquently 50 years ago. Most trial lawyers fight for this
equality in various ways. In my view, the best way for trial lawyers to fulfill Dr. King’s legacy is by
taking on an occasional pro bono case where you know you are never going to get paid a dime. I
am encouraged by the fact that many South Dakota trial lawyers annually fulfill their pro bono obligation as required by the Rules of Professional Conduct. As Dr. King said, the arc of the moral universe is long, but it bends towards justice. It is the obligation of trial lawyers to fight for the justice
and equality Dr. King spoke of every day.
Page 11
Law School Times
By Kelsea K. Sutton
[email protected]
(605) 830-5039
SDTLA Law Student Liaison
The Fall Semester is an exciting time of year at the Law School. As veterans, the third
year students gear up in anticipation for their final year, second year students reunite
as old friends after a summer of internships, and first year students appear as fresh
faces eager to join the ranks of those who pursue a career in justice.
Student organizations like the Native American Law Student Association, R.D. Hurd,
and the Domestic Violence Legal Program are busy hosting meetings to better train
legal advocates. The Student Bar Association successfully hosted its first annual Student Involvement Fair to showcase all of the law school student organizations. The
Fair was followed by USD Law’s Second Annual Social Justice Week. The sociallyjustice-minded organizations hosted this event in order to promote membership and
their various platforms, which to some degree are the same: all people deserve equal
economic, political, and social rights. The Social Justice Week events were fun, informative, and inspiring.
The South Dakota Law Review is just beginning the editing process for Volume 59.
The Board recently selected three student articles for publication and is excited for the
way the first issue is shaping up. Every year, the Law Review trains new students in serious legal research and writing
skills that will be essential to their careers. As a testament to the important skills gained from the Law Review, the Board
honors a successful Law Review alumnus each fall at their Wine Review Banquet. This year, the Board will honor Chief
Justice Gilbertson at their event in Sioux Falls in October.
The Moot Court Board has many competitions scheduled for the fall including the Burton D. Wechsler First Amendment
Competition, the International Competition in Information Technology and Privacy Law, and the National Entertainment
Law Competition. The USD Law Moot Court has a lot of talent on their team, and they will certainly find success this fall
in their preparation for and competition in appellate advocacy, a process that includes both brief writing and oral arguments.
The Alternative Dispute Resolution Board has announced that they will send five teams to various contests this fall.
Their competitions include the Entertainment Law Negotiation Competition, the ABA Regional Negotiation Competition,
and the ABA Regional Arbitration Competition. As the South Dakota Trial Lawyers are well aware, alternative dispute
resolution is becoming an increasing reality in litigation and is thus an important skill for students and practitioners alike
to hone.
Finally, the USD School of Law Trial Teams will travel to San Francisco in October for the ABA’s National Employment
Discrimination Mock Trial Competition. They will also travel to Buffalo, New York, in November for the Tenth Annual Buffalo-Niagara Mock Trial Competition. The Buffalo-Niagara Competition is an “invitation only” national tournament featuring thirty-six of America’s top trial advocacy programs. Representing the USD School of Law in Buffalo-Niagara will be
Zach Flood, Shane Andrews, Christen Leedom , and Emily Swanson. Representing USD in San Francisco will be David
Sahli, Beau Barrett, Molly McKenzie, and Swapna Kilani.
If you have any questions about law school events, or would like help contacting your new student mentee, feel free to
call or email me anytime.
SDTLA HAS SOCIAL MEDIA!!!!
The South Dakota Trial Lawyers Association is pleased to announce that it has recently re-launched its official Facebook page in an effort to connect
and unite more attorneys and legal support staff throughout South Dakota. Currently, the SDTLA page features videos of SDTLA’s 50 Year Anniversary Party held at Grand Falls Casino this past May and a tribute video to all of the great SDTLA members, past and present. Videos, pictures, and
information about upcoming SDTLA events will be posted soon. Members are also invited to post questions, comments, articles, etc. on SDTLA’s
Facebook wall.
Not yet a SDTLA Facebook page member? Become one today by typing South Dakota Trial Lawyers Association – SDTLA into your Facebook search
function and click JOIN!
Page 12
SOUTH DAKOTA TRIAL LAWYERS ASSOCIATION
Board of Governors
Meeting Minutes
August 15, 2013
Vermillion Holiday Inn Express
In attendance: Stephanie Pochop, Steve Siegel, Alecia Fuller, Ryan Kolbeck, Casey Fideler, Raleigh Hansman, Kasey Olivier and
Sara Hartford. Attending by telephone: Steve Beardsley and Brad Lee. A quorum was not present. Amy Bartling, George Johnson
and Law Student Liaison Kelsea Sutton were in attendance also.
President Pochop asked for discussion on topics to address with the Chief Justice for our annual visit to be scheduled in the near future. Topics could include: the drug court implementation; the rural practice update; uniform scheduling procedures; FAQ online for
procedural issues by judge or circuit; proposed electronic filing issues; Supreme Court encouraged legislation; and mandatory CLE or
ethics certification. This list will be finalized at the September 19 th board meeting. The process to set a date for the Chief Justice
meeting is underway.
Dean Thomas Geu joined the meeting. There was lengthy discussion regarding SDTLA’s role at the law school.
Fuller reported SDTLA’s event “A Welcome to the Courtroom and the Beginning of Your Career as a Trial Advocate” is being held
immediately following the meeting at the Law School with a social at Carey’s to follow.
Olivier and Hansman reported the new Social Media committee has put together a FACEBOOK page for SDTLA to attract more members and provide another form of networking among our members.
The next Board meeting is Thursday, September 19, 2013 at 11:00 am MOUNTATIN at the Lodge at Deadwood. Lunch will be
served before the seminar begins at 1 pm.
Meeting adjourned.
Board of Governors
Meeting Minutes
September 19, 2013
Lodge at Deadwood
In attendance: Stephanie Pochop, Verne Goodsell, Steve Siegel, Clint Sargent, Terry Quinn, Tim Rensch, Dick Casey, Aaron
Eiesland, Margo Julius, McLean Thompson Kerver, Ryan Kolbeck, Brad Lee, Melissa Nicholson, Robbie Rohl, Casey Fideler, Raleigh
Hansman, Kasey Olivier and Sara Hartford. Also in attendance Barrister Editor Marya Tellinghuisen and Lobbyist Roger Tellinghuisen. A quorum was present.
President Pochop asked for approval of the July 18 and August 15 minutes. Quinn made a motion to approve as presented, Kolbeck
seconded. Motion unanimously carried.
Lee gave the treasurer’s report for Secretary Treasurer Beardsley. Account balances are $21,654 in Operations, $64,232 in Savings
and $5,106 in the Reserve Fund. Two CDs were purchased for $10,000 each, one a six month, one a 12 month. The PAC account
has a balance of $26,118.
Pochop asked for discussion on topics to address with the Chief Justice for our annual visit scheduled for Tuesday October 15 th in
Pierre. A list of topics includes: the drug court implementation and the DUI courts; the rural practice update; FAQ online for procedural issues by judge or circuit; pro bono work and pro se litigants.
Under new business, Lee asked for discussion on health care providers and ambulance services refusing to bill health insurance or
Medicaid when the patient’s injuries were caused by another and there may be liability insurance. The health providers and ambulance
services are then requesting 100% of the billed charges from the patient/victim without willing to reduce the amount for reimbursement. There was discussion and a working group was appointed to research the issues and report back for the October 15 th meeting. Volunteers are Lee, Tellinghuisen, Julius and John Hughes.
There was discussion regarding the format for the spring seminar scheduled for May 8-9 in Sioux Falls and next year’s fall seminar.
The CLE committee of Kolbeck, Sargent, Von Wald, Goodsell, Nicholson, MTellinghuisen, Pochop and Thompson Kerver will meet
briefly after the October 15th meeting in Pierre.
There was also discussion regarding a legislative review committee. Volunteers are Siegel, Kolbeck, RTellinghuisen, and Goodsell.
The next Board meeting is Thursday, November 14, 2013 at 4:00 pm Central/3 pm MOUNTATIN by conference call.
Meeting adjourned.
Page 13
Page 14
Coffee with Judge Michelle Percy
By Robbie Rohl
I recently had the opportunity to travel to Deadwood and take in the Fourth Circuit, Lawrence County Courthouse scene. In addition to catching up with old friends at the
Courthouse (I used to be the clerk there), I was tasked to interview the always friendly
and wise Judge Michelle Percy. Judge Percy is currently the acting Magistrate Judge
for the Fourth Judicial Circuit (Butte, Corson, Dewey, Harding, Lawrence, Meade, Perkins and Ziebach counties). In addition to effectively handling her judicial duties, Judge
Percy is a full-time mother, integral part of the Northern Hills Drug Court Program, and
active member of the Lead-Deadwood community. At the 2013 Bar Convention, Judge
Percy received the SDTLA’s “Toast of the Trial Lawyer.”
As the questioner, I chose to fashion the interview with an advice-seeking focus for us
less seasoned practitioners. To a large degree, the interview was self-serving because
I got to ask questions that helped me, but hopefully you all will take something beneficial from it as well. I can
assure all readers that the answers are excellent; however, to the extent you think the questions could have
been better … well, that blame is appropriately directed towards the voters that voted me on the SDTLA
Board of Governors. Over coffee at the Deadwood Pumphouse, I asked Judge Percy the following:
Me:
What do you now know, that you wish you would’ve better understood as a young lawyer?
Judge Percy: I wish I would’ve better understood the fact that, at least in private practice, the law is a business. Looking back, I was somewhat naive in that I would engage in tons of reading, writing and research
and often times lose track of that underlying fact. Also, I don’t mean that in a way where I’m implying it’s all
about money. Often times, it’s not. In order to best help clients, the business needs to be fully selfsustaining. When entering into private practice out of law school, I didn’t realize all of the things that are not
taught in school (i.e. collecting, billing, incorporating, tax issues and etc.).
Me:
Looking back to your young lawyer days, not that you aren’t still young Judge Percy, what types of
things were most positive or influential in your practice?
Judge Percy: MENTORSHIP. I was incredibly lucky to get into a small firm with great attorneys. I was fortunate in that I was given the opportunity to have a relationship with each attorney in the office. Each
relationship was different in that each attorney had great advice, guidance and suggestions which
benefited my practice, my career and my understanding of the law. Also, my practice was diverse. I
was not molded into simply one or two specialty areas of the law. This is something I really enjoy
about being a Judge as well.
Me:
If I told you to develop a “list of advice” for young attorneys, what types of things would be on it?
Judge Percy: Well, this is a non-exhaustive list, but some of the things are as follows:
 develop a balance between work and personal life, I struggled with this
 remember, the law is a “jealous mistress,” keep that in mind
 have friends and family to always stay grounded and remember where you’re from
 develop relationships with other attorneys
 don’t be afraid to ask questions or to look dumb
 call the clerks, they are the best resource ever; I always used to call “Alice Bruce” and comb through
similar types of files to learn from
 it’s good to try and do things on your own, but be humble and ask when you are at a “stand-still”
 ask staff members, i.e. secretaries and paralegals for help, when I was in private practice there was a
paralegal with 30 years of experience, what a great resource she was
 have a great relationship with all the staff
Page 15
Me: From your experience on the bench, is there any advice you have regarding young attorneys’ advocacy?
Judge Percy: Sometime it seems like young lawyers, I was guilty of this as well, take things too personally.
Intense advocacy is very important, but it should always be accompanied with the utmost professionalism. At
all times, treat everyone with respect while advocating. The public recognizes and notes how attorneys treat
each other and the Court. They also note how attorneys dress in Court as well. If attorneys are not professional to one another and/or the Court, in both demeanor and dress, why would the public be respectful?
Always stand when addressing the Court, unless told not to. Professionalism often goes hand-in-hand with
mentorship. It’s not clearly defined or understood by reading text books in law school, but it is learned from
the relationships young attorneys have with seasoned practitioners. Professional relationships with other attorneys are important to a successful practice. Remember that when advocating and be professional.
Me:
Is there any other advice you can think of that younger attorneys need to be aware of?
Judge Percy: Never talk bad about other lawyers and judges. We have an incredibly small bar here in
South Dakota, this is a great thing and a tremendous advantage. As a member of the South Dakota Bar every attorney seems to be separated by, at most, one degree of separation. What I mean by this is that after
spending some time in the practice, you will be able to contact any attorney in the state simply through your
own network. If you are not acquainted with an attorney you need to speak or make contact with, after some
time you will know an attorney that knows the individual you wish to get into contact with. This is a tremendous advantage, but you limit or take that away by speaking negatively about other attorneys. Additionally, it
is just simply disrespectful.
Me:
What are some of the attributes or underlying principles you try and bring to the bench?
Judge Percy: Respect. I want to make people comfortable to say whatever it is they wish to say. Justice
seems more likely if people feel comfortable to share all of the information with me. I try to accomplish this
by making my courtroom somewhat hospitable. Every judge is different, just like attorneys. You need to be
yourself. In Court, I try to be myself. I justify my “nicer” courtroom demeanor because that is how I am and I
think it works for me. I hope that my courtroom demeanor and approach to the bench makes the judicial process somewhat invisible. I don’t want people to walk away blaming the Court, I want them to blame themselves. Clearly this is not always realistic, but I still try and achieve that goal. If I can make the judicial process invisible, consequences and culpability are more visible on the appropriate party. I think this method
also fits better with my personality. This works for me and is consistent with who I am.
Me:
What is the definition of successful attorney?
Judge Percy: A successful attorney is an individual that practices the type of law they want to practice and
is respected by their peers. There is a wrong perception by the public that a successful attorney is one that
makes lots of money. Being an attorney is the hardest job ever. Dealing with clients, endless hours and the
job follows you home. Also, nothing is more irritating than hearing individuals devaluing an attorney’s services. A successful attorney is an individual practicing the type of law they want to practice because it’s interesting to them, they like doing it and naturally a great advocate will follow. When I was a lawyer, I was not in
a position to recognize this. As a Judge, I feel I now am in a position to answer this question.
Me:
What is the definition of successful judge, aside from Judge Michelle Percy?
Judge Percy: You’re too funny, Robbie. A successful judge is someone that is respected by other judges
and also the bar. I think it is an individual that is true to himself. This is an individual remains consistent with
his/her upbringing and remembering where one came from. At any moment, but for the grace of God, the job
and life I love could end. I always take that into consideration. Also, and I digress, since becoming a Judge,
attorneys think my corny jokes are way funnier than anyone ever used to.
At the conclusion of the interview, I promptly informed Judge Percy that none of her jokes are “corny.” If anyone ever has the opportunity to introduce themselves to Judge Percy, I highly recommend doing so. Thanks
for your time Judge Percy and thanks for laughing at my corny jokes.
Page 16
Page 17
South Dakota Trial Lawyers Association
Notice of 2013—2014
MEMBERSHIP DUES
DUE July 1, 2013
CATEGORIES
Check one:
_______ Legal Support Staff …………………. $50.00/ year
________ Law Student…………...………………$10.00/ year
________ 0-2 years in Practice…………………$70.00/year
________ 3-5 years in Practice……..………..$100.00/year
_____ Public atty employed over 2 years*……$100.00/year
______ Over 5 years in Practice …………… $350.00/year
______ Sustaining membership ** …………$700.00/year
______ Subscribing membership *** ……..$125.00/year
Please print or type
Name _________________________________________________ Email Address_______________________
Mailing address______________________________________________________________________________
CITY _____________________________________ State__________________________ ZIP _______________
Telephone _________________________________ Cell number ____________________________________
County _____________________________________ Date Admitted to Bar __________________________
Return to with appropriate dues:
SDTLA
PO Box 1154
Pierre, SD 57501-1154
* All public attorney members must be employed on a full-time basis by the Federal, State, county or municipal
government or legal aid association.
** Any sustaining member must be engaged in the practice of law for more than five years and be a member in good standing of the
Association for five years. Attendance at the Association’s annual fall seminar is free for sustaining members.
*** Anyone may apply for a subscribing membership in the Association, i.e. associations, institutions of higher learning, research
companies, etc. Subscribing members shall receive all Association membership benefits, but are not entitled to vote.
Page 18
NEW LAWYER REFERRAL LIST
The South Dakota Trial Lawyers Association has compiled a list of aspiring young trial lawyers who are interested in
accepting civil case referrals. The list is not for pro bono referrals, but rather cases that another attorney is not interested
in handling due to his or her caseload, area of interest, or the client’s ability to pay.
The purpose of creating this list is to allow young lawyers to gain experience handling civil cases on their own, while at
the same time matching a worthy client with a willing lawyer. The goal is to give the lawyer the opportunity to
independently plan case strategy, pursue a discovery plan and try a jury trial. By agreeing to be on the list, the attorneys
have not automatically agreed to accept a case. They have the independence to accept or decline any case referred to
them. Any lawyer in practice less than five years interested in accepting referrals is encouraged to contact the SDTLA
office to join this list.
First Circuit
Kraig L. Kronaizl
Blackburn & Stevens
100 West 4th Street, Yankton, SD 57078
665-5550
Family Law, General Civil Litigation, Some Criminal
Defense
Laura Brahms
Kading Kunstle & Goodhope
7400 S Bitterroot Pl #100
Sioux Falls, SD 57108
336-1730
Family Law, Criminal Defense, Worker’s Comp, General Civil Litigation
Katie Johnson
PO Box 136
Beresford, SD 57704-0136
763-8013
Family Law, Criminal Defense, Bankruptcy
Katie Johnson
PO Box 136
Beresford, SD 57704-0136
763-8013
Family Law, Criminal Defense, Bankruptcy
Second Circuit
Cesar Juarez
Siegel, Barnett & Schutz
PO Box 1286, Sioux Falls, SD 57101
335-6250
Family Law, Criminal Defense & General Civil Litigation
Third Circuit
Seamus W. Culhane
Turbak Law Office
1301 4th St NE, Watertown, SD 57201
886-8361
Long Term Care, Homeowner’s, Worker’s Compensation and
other Non-ERISA Insurance Denials
Meghann Joyce
Boyce Greenfield etal
PO Box 5015, Sioux Falls, SD 57117
336-2424
Family law, Civil Litigation and Insurance Litigation
Casey W. Fideler
1301 4th St NE, Watertown, SD 57201
886-8361
Personal Injury, Wrongful Death, & Tax Implications of Settlements & Judgments
James Nasser
Nasser Law Office
204 S Main, Sioux Falls, SD 57104-6310
335-0001
General civil litigation
WELCOME NEW SDTLA MEMBERS!
Jennifer Ferris graduated from USD School of Law with honors in May 2010. After graduation, Jennifer
spent a year clerking for the judges in the Third Judicial Circuit. In August of 2011, Jennifer joined the firm of
Lynn, Jackson, Shultz & Lebrun, P.C. in its Sioux Falls office. Since joining the firm, Jennifer has focused her
practice on insurance defense litigation including, liability and worker’s compensation.
Nicole Martin is a paralegal at the Abourezk Law Firm in Rapid City. She earned her A.A.S. from Western
Dakota Tech in paralegal/legal assistant studies in 2008 and she is an active member of the Black Hills Legal
Professionals Association and NALS. In 2013 she was awarded the Black Hills Legal Professional of The
Year. She fosters rescue animals for the Oglala Pet Project and hikes in her free time with her three dogs.
Page 19
CYBER-SLEUTHING SOCIAL NETWORK SITES:
“IS FACEBOOK YOUR FRIEND?”
By: Margo Tschetter Julius, Julius & Simpson, L.L.P
INTRODUCTION:
Do you talk to your clients about their online activities? Do they reveal a lot about themselves
online? Do they tweet about their every move and upload personal photos and posts of their activities on the Facebook page? Do they boast about car racing? Running marathons? Or even taking
family vacations? If you answered yes to any of the above, then like it or not, you need to know
about social networking sites. Social network sites such as Facebook have become extremely
broad and useful and voluntary form of surveillance for insurance investigators and claims adjusters.
Websites like Facebook, Myspace, Linkedin and YouTube are all becoming increasingly popular
not only with the nearly 50% of all adult Americans who have a social networking profile (with Facebook and Myspace being the most popular sites)1 but also with law enforcement, debt collectors,
lawyers and insurance fraud and claims investigators.
I.
FACEBOOK BACKGROUND AND BASICS:
Facebook was founded in February of 2004 and its mission statement is “To give people the power
to share and make the world more open and connected”. Millions of people use Facebook every
day to keep up with friends, upload an unlimited number of photos, share links and videos and
learn more about the people they meet. As of February of 2012, Facebook had more than
845,000,000 active users.
A:
Registration and Profile
Users must register before using this site after which they may create a personal profile, add other
users as friends and exchange messages including automatic notifications when they update their
profile.
Facebook users can create profiles with photos, lists of personal interest, contact information and
other personal information. They can also communicate with friends and others through private or
public messages and a “chat” feature. Facebook enables users to choose their own privacy settings and choose who can see specific parts of their profile. However, Facebook requires that a
user’s name and profile picture is to be accessible by everyone. Users can somewhat control who
sees other information they have shared as well as who can find them in searches on the internet
through their privacy settings.
B:
Applications
Facebook has a number of features in which users can interact. Users may join common interest
users groups or categorize their friends to lists such as people from work, people from college,
close friends, etc.
C:
“Sharing,” Liking and Tagging
Facebook users can also “like” other pages, including businesses, common interests or causes.
The “tagging” option also allows not only the user but also “friends” to add user’s names to photos,
events and posts. The user (and his friends) can also “share” their photos, links, and posts to other
people’s walls and pages. The “share and connect” principle utilized by Facebook provides and
accumulates a wealth of information for investigation in worker’s compensation claims, and other
litigation.
Page 20
D.
No Expectation of Privacy
When Facebook users consent to contribute their social and personal data to the electronic storage
system maintained by Facebook, they freely consent to provide the data. In Facebook’s own definition as a “social utility that helps people communicate more effectively with their friends, families and
co-workers”, then becomes a social networking device that provides radically transparent cyberspace experience where nothing is confidential.
II.
WHOSE “CREEPING” WHO?
A.
Employers and Law Enforcement
Employers and law enforcement have been searching Facebook and other social network sites for
years in connection with their hiring practices and criminal investigation.
B.
Debt Collectors
Debt collectors have been scouring Facebook for years looking for information to allow them to find
debtors and catch up with their exact whereabouts. Facebook and different applications such as
“Four Square” (which is an app that many social network users use to literally tell people where they
are at any given moment) allow debt collectors to simply get online and if the debtors privacy settings are not stringent, collectors can tell exactly where the debtors are located and use this information to collect a debt. Facebook is also a haven with information as to where the debtors work,
who they hang out with, who their friends are, etc.
C.
Jury Consultants and Lawyers
Jury consultants regularly “creep” a potential juror’s page to find out not only his activities, but importantly his likes, political affiliation, religious affiliation and any strong feelings he has on certain
issues.
D.
Insurance Investigations
Insurance claim and fraud investigators have jumped on the bandwagon. Why? Under the definition
of the user agreement for Facebook and several court decisions, there is no real expectation of privacy information shared on Facebook, despite a person’s privacy settings. Therefore, the
“Facebook Wall” is an open book!
III.
ETHICAL CONSIDERATIONS IN CYBER SLEUTHING
Some attorneys have argued that investigators scouring social networking sites in search for reasons not to hire someone, or evidence of insurance fraud, is an invasion of privacy. But the insurance companies and their attorneys argue that the internet searches for public social networking
profiles are similar to informal video surveillance investigations of property casualty claimants that
are common in the industry.
Is it unethical for a defense attorney or an agent of the attorney such as an insurance company representative or investigator, to access a Claimant’s information and photographs that are stored on a
site that isn’t protected with privacy settings? Professor Gregory Duhl from the William Mitchell College of Law and Attorney Jacqueline Millner encourage investigators who are trying to prevent insurance fraud to routinely look at Claimant’s profiles on sites such as Facebook, Linkedin or Myspace.
See Social Networking and Worker’s Compensation Law at The Crossroads Vol. 31 Pace Law Review Issue 1 (2011). Duhl and Millner do not believe it is unethical to “creep” these pages, as
searching for public information on a social networking site is no different than video surveillance in
Page 21
any public location. They contend that there is no reasonable expectation of privacy with respect to
their social networking account or in what is posted on his or her profile. Even if a Claimant protects
his profile with privacy settings, the information is available to at least some third parties that the
Claimant has given access (i.e. their “friends”).
The attorneys, insurance companies, and investigators will increasingly face discovery, privacy and
professional responsibility issues that arise when dealing with social networking information.
Attorneys and their investigators are bound by professional responsibility and cannot initiate contact
(such as sending a friend request allowing them to view the profile).
Courts have ruled it is not unethical for a defense attorney or an agent of the attorney accessing an
employee’s information and photographs stored on a social networking site that are not protected
with privacy settings that block public access. See Moreno v. Hartford Centennial, Inc. 91 California
Reporter 3d 858, at 862 (CTAPP2009).
But what about information that is not publically available because the employee has protected it
with privacy settings?
See Model Rule of Professional Responsibility 4.1, 4.2, 4.3, 4.4, 5.2, 5.3, 8.4.
It is generally recognized that lawyers may not attempt to “friend” a witness or Claimant through deceptive practices. It is also generally held that the lawyer cannot direct an agent or investigator to do
the same. Lawyers should carefully review the Model Rules of Professional Responsibility when
dealing with informal discovery, social media sites and/or directing investigators to do the same.
IV.
DISCOVERY AND USE OF INFORMATION
If the claim is in litigation, social media information (even under strict privacy settings), may be secured through the use of a subpoena or interrogatories. Several courts are allowing access to such
information especially if the publically accessible content suggests the information may be favorable
to the party or the insurer. In Ramono vs. Steelcase, Inc., a 2010 New York Supreme Court case,
Ramono sued Steel Case for permanent injuries that prevented her from leading an active lifestyle.
Steel Case argued that public portions of Ramono’s Myspace and Facebook pages showed she was
living a more active lifestyle and that Ramono should be required to turn over all social media content, even the information that she had only intended to share with her friends. The Court held that
precluding Steel Case from accessing Ramono’s profile “would condone [her] attempt to hide relevant information behind self-regulated privacy settings.” It was reasonable to conclude that the profiles “may contain further evidence such as information with regard to her activities and enjoyment of
life, all of which are material and relevant to the defense of this action. Ramono v. Steel Case, Inc.
(NY 2010).
Generally, Courts allow discovery of personal information posted on social networking websites if it
is relevant to the litigation and the discovery request is narrowly tailored.
See Resources list at the end of this outline for specific cases addressing discovery and production
of social media information.
V.
OBTAINING, PROCESSING AND AUTHENTICATING INFORMATION
Accessing and effectively using the electronically stored data on social network sites becomes rather
complicated and can be a hazardous experience for claims personnel and lawyers. Locating,
Page 22
archiving and preserving this electronically stored data must comply with legal considerations. Investigators hired to gather the information, whether hired by the employer’s insurance carriers or attorneys, are required to maintain a chain of custody over the data or act in a fashion that would prevent spoliation of the evidence. Further, Claimant’s attorneys need to comply with the rules of professional responsibility and cannot direct an agent or a client to violate the law or commit a fraudulent, deceitful or dishonest act. It is the same for investigators hired by attorneys. They cannot be
instructed to illegally “friend” an individual, clients cannot be instructed to illegally manipulate the
electronically stored data. It is absolutely essential that the Claimant’s lawyer advise his clients
about the lack of privacy of social networking and the need to refrain from posting any data that
would not be appropriate. The Rules of Professional Conduct would prohibit an attorney from advising his client to obstruct justice by destroying or removing electronically stored data.
In the judicial or administrative setting, the Court is the gate keeper in determining what information
is fairly gathered, relevant and admissible. The parties need to authenticate the information, filter
out hearsay evidence, and object to unreliable and irrelevant evidence.
There are companies you can hire to “capture and authenticate” social media content. See e.g.
Cyber Controls which advertises “as a leading provider of electronic discovery and computer forensic services nationwide, cyber controls will provide your firm with a complete inventory of a subject’s
personal account on a social media website that is publically accessible with all of the necessary
metadata for admissibility purposes.” http://www.cybercontrols.com. Another third party provider
which sells lawyers the tools to effectively archive, manage and produce information from these ever
evolving social network sites is Kroll On Track at http://www.krollontrack.com
VI.
CONCLUSION
When I first meet with a potential client injured worker, I tell him once he has a work injury, he is a
“fish in a fish bowl.” His life is the world’s to see. I used to be talking about video surveillance.
Now, what was once a seemingly harmless past-time of tech savvy college students, has now become haven for investigators offering a wealth of information on sometimes unsuspecting users. Facebook is ubiquitous and the “fish bowl” has become a veritable ocean with cameras potentially at
every angle.
Like it or not, Facebook and MySpace and other social networking sites, are here, and experienced
attorneys can’t ignore them. We know that embracing new technologies can make the difference
between winning and losing cases.
This outline is intended to alert lawyers to the vast amount of information that is available on social
media websites and admittedly, a lot of the information out there in the case law deals with potentially damaging information to a Claimant’s or injured worker’s workers compensation lawsuit. However, there may be a great deal of information available on the client’s Facebook page, that clearly
documents and supports his injury and claim. Perhaps even more so than the Claimant can do in
his or her own testimony. If incriminating or potentially impeaching photos posted on a person’s Facebook page are admissible then it is likely the favorable posts and photos will be too. Also, posts
from friends regarding helping a Claimant with his housework or driving him to an appointment or
simply thinking about them and wishing they could do something to help, would all be relevant and
potentially admissible. At the very least, they lead you to witnesses who could help articulate and
support your Claimant’s injuries and claims.
Page 23
The internet and sites like Facebook are transforming the way we share and disclose personal information. If you have not heard of Facebook, MySpace, Twitter, and other current trends, you need to
“Google” them. Social media can be a fun and dynamic way to stay in touch with friends and family;
however, it has created a whole new set of dynamics for litigators. As we grapple with these issues
with the Court, we need to make a conscious effort to be on the forefront and consider whether social media discovery and use of the same is appropriate in each particular case. We need to be
wary of the pitfalls for our clients at the earliest opportunity. Welcome to cyberspace!
VII.
RESOURCES
A.
Caselaw
1.
Romano v. Steelcase Inc., 30 Misc3d 426, 907 N.Y.S. 2d 650 (2010). The Supreme Court, Suffolk County held that:
(1)
private information sought from plaintiff’s social networking website accounts was material and necessary for
defendant’s defense;
(2)
plaintiff did not have a reasonable expectation of privacy in information published on social networking websites; and
(3)
defendant’s need for access to plaintiff’s private information on social networking websites outweighed any
privacy concerns voiced by plaintiff.
In the Romano case, the Court stated: The information sought by Defendant regarding Plaintiff’s Facebook
and MySpace accounts is both material and necessary to the defense of this action and/or could lead to admissible evidence. In this regard, it appears that Plaintiff’s public profile page on Facebook shows her smiling
happily in a photograph outside the confines of her home despite her claim that she has sustained permanent
injuries and is largely confined to her house and bed. In light of deposition testimony, there is a reasonable
likelihood that the private portions of her sites may contain further evidence such as information with regard to
her activities and enjoyment of life, all of which are material and relevant to the defense of this action. Preventing Defendant from accessing to Plaintiff’s private postings on Facebook and MySpace would be in direct
contravention to the liberal disclosure policy of New York State. *Note - The Court sites and analyzes several
Canadian cases in this decision.
4.
Tomkins v. Detroit Metropolitan Airport, 2012 WL 179320 (E.D. Mich.) (2012). Court DENIED airline’s request
that customer sign authorizations to release records from her social networking website account holding social
networking website account was protected from discovery as irrelevant and overly broad. The Court stated,
“Customer’s entire social networking website account, including those sections she designated as private in
order to preclude viewing by general public, were not discoverable, as irrelevant and overly broad, in slip-andfall cases claiming back and other injuries related to accident at airport, since customer’s public postings of
photographs of herself holding a very small dog that could be lifted with minimal effort and standing with two
other people at birthday party in Florida were not inconsistent with her claim of injury or with medical information that she disclosed, and entire account could contain voluminous personal material having nothing to
do with her lawsuit.”
5.
Offenback v. L.M. Bowman Inc., 2011 WL 2491371 (M.D.Pa.). The District Court has referred the abovecaptioned action to the Magistrate Judge for purposes of conducting an in camera review of Plaintiff’s Facebook and MySpace accounts in order to determine whether certain information contained within Plaintiff’s
accounts is properly subject to discovery in this case. (Doc.19.) The Court subsequently held a telephonic
case management conference with the parties to address the discovery dispute, and directed Plaintiff to provide the Court with the log-in information for his Facebook and MySpace accounts. Plaintiff subsequently
provided this information to the Court with respect to his Facebook account, and represented that he could no
longer locate information related to his MySpace account, since he had neither activated nor used the account
since November 2008. Plaintiff conceded that limited public information contained his Facebook account was
properly subject to discovery, provided that the information could be considered relevant in accordance with
Rule 26 of the Federal Rules of Civil Procedure. The Magistrate Judge viewed plaintiff’s entire profile and
ordered certain limited postings and photos discoverable. In doing so the court stated, “In closing, we express
some confusion about why the parties are required the Court’s assistance in deciding what information within
Plaintiff’s Facebook account is responsive to Defendant’s discovery requests and therefore properly discoverable. Although Defendants have taken a broad view of the potential relevance of Plaintiff’s Facebook account,
Plaintiffs do not appear to have argued that the information in the bulleted paragraphs above should be protected from disclosure in this lawsuit. It is thus unclear why the Court was called upon to conduct an initial
review of Plaintiff’s entire Facebook account to determine whether it contained potentially responsive, nonprivileged information that should be produced as part of discovery in this case. Given that the Plaintiff is the
party with the greatest familiarity with his own Facebook account, we submit it would have been appropriate
and substantially more efficient for Plaintiff to have conducted this initial review and then, if he deemed it warranted, to object to disclosure of some or all of the potentially responsive information included in his account.
The Court recognizes that the scope of discovery into social media sites “requires the application of basic
discovery principles in novel context,” and that the challenge is to “define appropriately broad limits . . . on the
discovery ability of social communications.” EEOC v. Simply Storage Mgmt., No. 1:09-cv-1223, 270 F.R.D.
430, 2010 WL 3446105, *3 (S.D.Ind. May 11, 2010).”
B.
Page 24
Secondary Sources:
1.
Comprehensive Law Review Articles:
a.)
Saving Facebook, by James Grimmelmann, University of Iowa College of Law, Law Review http://
www.law.uiowa.edu/journal/ilr/Issue%20PDFs/ILR_94-4_Grimmelman.pdf
b.)
Pace Law Review, Volume 31, Issue 1 “Social Networking and the Law”, Winter 2011. Entire issue
dedicated to legal and ethical issues regarding Social networking. (Complete list of articles in this
issue and authors attached to this outline).
c.)
Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites. Kansas Law Review, Vol. 58, pp. 1279 - 1309(2010).
2.
Podcasts:
a.
http://www.gelmans.com/ReadingRoom/tabid/65/ctl/ArticleView/mid/372/articleId/555/categoryId/7/Privacy-Clientsand-Social-Media-Discussion.aspx - podcast Social networking has become a popular topic within the workers’
comp community. In this edition of Workers’ Comp Matters, host Attorney Alan S. Pierce, welcomes Attorney Jon
L. Gelman, to take a look a social networking in the workers’ comp world. Alan and Jon discuss privacy and their
clients, client responsibility when it comes to putting up information on social media sites and how social networking
can be used as a portal to monitor clients
b http://www.propertycasualty360.com/2011/02/04/social-media-and-investigations-tips-from-the-fiel?t=investigative
“Podcast” of insurance investigators tips on cyber sleuthing.
3.
Websites and Articles:
a. http://www.propertycasualty360.com/2011/02/08/your-guide-to-claim-investigations-and-social-medi
Insurance investigator site containing a guide for claims professionals, attorneys, and special investigation units alike to educate and inform themselves on how to properly — and legally — use social
media sites to their advantage while punishing criminals. The authors claim “We compiled everything we've written about it in order to help you do your jobs better and more effectively; we hope
you find it helpful. Bookmark the page and come back often, as we'll update the guide as more
information becomes available.”
b. http://www.propertycasualty360.com/2011/02/03/15-questions-to-ask-claimants-about-social-media- “15
Questions to Ask Claimants about Social Media Usage”- In this article a defense attorney and
claims investigator provide a checklist for adjustors and investigators to ask a claimant to gain information on his or her social media sites. They caution that while these questions may alert the
claimant to what the insurer is up to, they indicate that traditionally the claimant will comply in the
spirit of cooperation- often times the adjuster will “play dumb” feigning ignorance of social media
and the claimant becomes more than happy to comply and “educate” the adjustor!
c. http://www.propertycasualty360.com/2011/02/08/facebook-becomes-a-questionable-friend-ofworker “Facebook becomes a questionable friend of Workers Compensation, by Jon Gelman. Jon
Gelman is a claimant’s lawyer and also authors a highly educational blog on worker’s compensation.
Reprinted from the South Dakota Trial Lawyers Association Spring Seminar, May 2012
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