KADC Kansas Defense Journal - Kansas Association of Defense

Transcription

Kansas Defense Journal
Winter 2015
Page
KADC Kansas Defense Journal
Winter 2015
Inside this issue of
Kansas Defense Journal:
Chief Justice Lawton R.
Nuss Provides Insightful
Speech Addressing Funding
of the Kansas Judicial
Branch at the KADC
Annual Conference:
December 6, 2014
1
Daubert’s Wake and Other
Ripples of S.B. 311
1
President’s Message
2
KADC Presents 2014 Kahrs 3
Lifetime Achievement Award
to Dick Honeyman
Executive Director’s Report
4
Judge Leben Receives
Rehnquist Award
5
DRI Report
6
Judicial Feature:
Teresa Watson
7
Amicus Committee Update
7
8
A Look at Violence Against
the Kansas Legal Profession:
Results of the 2013 Survey
Meet KADC’s Legislative
Committee
Kansas Bar Foundation
Update
Judicial Feature:
Judge Kim W. Cudney
Young Lawyer Highlight:
Andrew Holder
Kansas Association of Defense Counsel
CHIEF JUSTICE LAWTON R. NUSS PROVIDES INSIGHTFUL
SPEECH ADDRESSING FUNDING OF THE KANSAS
JUDICIAL BRANCH AT THE KADC ANNUAL CONFERENCE:
DECEMBER 6, 2014
KADC was pleased to have Chief Justice
Lawton R. Nuss speak at the
KADC Annual Conference this
past December 6, 2014.
Chief Justice Nuss gave an
inspiring speech addressing
an issue that remains
critically important to this
organization: the funding of
the Kansas judicial branch.
The following is an excerpt of
Judge Nuss’ remarks at the
annual conference. We hope
you find it as inspiring as we
did and that you continue to
support the fight for judicial
funding both as a Kansas lawyer and as a
KADC member.
Judicial Feature:
Judge John Klenda
12
Membership Application
23
Law Student Membership
Application
24
Amicus Committee Request
Form
25
Of all the moral and ethical
guideposts that we had been
brought up to recognize, the
one that, for me, stands above
the rest – the one that I have
kept in the forefront of my
mind – is integrity. It is my ethical and
(Continued on page 14)
DAUBERT’S WAKE AND OTHER RIPPLES OF S.B. 311
As of July 1, 2014, Kansas courts are
applying a new standard when determining
9
whether to admit an expert’s testimony. Last
year, the Kansas legislature adopted S.B. 311
which amended K.S.A. § 60-456 through §
10
60-458 to align with Federal Rules of
Evidence 702 through 704. This likely will
10 supersede the old standard of Frye
altogether, and implement the famous
Daubert test as the new hurdle.
11
I would like to talk about a speech given
years ago by the leader of the United States
Marine Corps, the
commandant and 4-star
general, Charles Krulak.
While they come from a
Marine, his words actually
speak to everyone here today.
Here is what Commandant
Krulak had to say:
Of course, we cannot know for sure how
Kansas courts will interpret the new Daubert
standard but we can look to federal cases
that interpret Rule 702 for guidance. This
article outlines the difference between the
Frye and Daubert standard, possible
extensions of S.B. 311 arising from the
“Daubert trilogy” of United States Supreme
Court cases, and other implications of S.B.
311 relating to expert testimony.
1. Replaces the
“general acceptance”
test with a two-prong
analysis of relevancy
and reliability.
The Daubert standard
involves a two-prong
test for the court to
determine if an expert
Frank W. Basgall
opinion is admissible.
Martin Pringle
To be admissible, the
Oliver
Wallace &
expert opinions must be
Bauer LLP
both (1) relevant; and
(2) reliable.1 As to
relevancy, the important questions are
whether the opinion is sufficiently tied to the
facts of the case and whether the testimony
will aid the jury in deciding a factual dispute.2
KADC
Officers and
Board of Directors
PRESIDENT
Michael G. Jones
PRESIDENT ELECT
Mark Katz
TREASURER
Sarah Warner
SECRETARY
William Townsley
PAST PRESIDENT
Amy E. Morgan
BOARD MEMBERS
Zach Chaffee-McClure
Timothy Finnerty
Terelle Mock
Melissa Moodie
Brooks Severson
Lora Jennings
Peter Johnston
Nathan Leadstrom
Larry Nordling
Shannon Wead
DRI REPRESENTATIVE
F. James Robinson, Jr.
Winter 2015
Page 2
PRESIDENT’S MESSAGE: ARE YOU AWARE? ARE YOU
ENGAGED?
Most of us interact with KADC primarily
through the Annual Meeting. It is a great
event and a valued time to get together with
our colleagues. But are you aware of how
active and involved KADC is on your behalf
year-round? Right now the legislature is in
session and our legislative committee led by
Mark Katz is working night and day to keep
up and provide thoughtful and reasoned
written and oral testimony in support of
issues of great interest to our clients and us
as professionals. Due to years of hard work
in this area and meaningful and levelheaded input, KADC enjoys a respect within
the legislature that few organizations can
claim.
Right now, the amicus committee stands
ready to react to requests for amicus briefing
on issues important to you and your
clients. Right now, our opinion summaries
committee is positioned to identify and
summarize for you unpublished opinions that
come out each week to save you time and
money. Right now, a team of writers and
editors of this fine publication you are now
reading and working toward the next
excellent edition.
As you read this, our other committees are
hard at work planning networking
opportunities, CLE, membership programs,
liaising with DRI and other similar
organizations, preparing trial skills
workshops, energizing and recruiting young
lawyer members to become more active and
improving our website and social media
presence.
So your dues
investment should
strike you as a good
one on that basis
alone. But you can
improve your return
on investment even
more by reinvesting
with something even
more valuable than
your dollars: your
Michael G. Jones
interest and your
Martin Pringle Oliver
time. It doesn’t take
Wallace & Bauer LLP
much but it can
exponentially expand the value you get out of
KADC, and the organization itself will be
much better for it. Volunteer for a
committee. There is plenty of room for more
active people. Respond to our electronic
surveys when we reach out to you for
input. (We promise to keep them
brief). Follow through on our invitations for
you to reach out to legislators on pending
issues of importance to our practices, which
we make as easy as possible for you.
In short, make this organization your own.
It has great potential to become better and
even more relevant than it already is. That is
our main initiative for this year. We have a
great talent pool and would like to get
everyone more engaged. So please take up
the challenge and jump in. 
JOIN KADC ON SOCIAL MEDIA
The Kansas Defense Journal is a
quarterly publication of the
Kansas Association of Defense
Counsel. If you have any
questions, comments, or ideas
for future articles, please contact:
KADC.
825 S. Kansas Avenue, Ste 500
Topeka, KS 66612
785-232-9091
Fax: 785-233-2206
www.kadc.org
Last Fall KADC created a LinkedIn group for members. We anticipate utilizing this group to
share ideas, tips, experts, and answer questions. We would like to transition all content
sharing from the old Yahoo list serve format to the LinkedIn Group. This is a closed group
for members only. If you are not already a member of the group, please join! While you’re
at it, like us on Facebook and follow us on Twitter.
Winter 2015
Page 3
KADC PRESENTS 2014 KAHRS LIFETIME ACHIEVEMENT AWARD
TO DICK HONEYMAN
At our Annual Conference in December,
KADC presented the 2014 Kahrs
Lifetime Achievement Award to Dick
Honeyman of Hite, Fanning &
Honeyman in Wichita. The Kahrs
Lifetime Achievement Award is KADC’s
highest award; it is named after a cofounder of KADC and longtime Wichita
attorney William A. Kahrs, who had a
distinguished legal and public service
career spanning five decades.
Dick is a founding partner in his law
firm and has remained active in the
legal community since his admission to
the bar in 1964. Throughout his 50year career he has represented clients
in a wide range of industries in civil
litigation and personal injury defense.
He is a frequent lecturer at CLE
programs on litigation topics. He also is
a frequent mediator for cases pending
in the United States District Court for
the District of Kansas and the
Eighteenth Judicial District of the State
of Kansas.
Festival. He also has served on the
Board of Directors and as Secretary of
the Starkey Foundation, which raises
funds to meet the needs of individuals
served at Starkey who have intellectual
disabilities.
Dick also is a longtime supporter of the
arts. He recently concluded a five year
term as Chairman of the Orpheum
Performing Arts Center, was a longtime
Producer of the Wichita Bar Show, and
served on the Board of Directors for the
Wichita Community Theatre and for the
Wichita Music Theatre.

KADC Member and former
Board Member (1987-1990)

KBA Member and former
president of the KBA Litigation
Section

Wichita Bar Association
member and former President
Recipient of WBA’s
President’s Award (1987)
The respect he has earned in his legal
career is confirmed by the many honors
he has received. His Honors include:

Fellow of the American College
of Trial Lawyers (1995-present)

AV® Peer Review Rating from
Martindale Hubbell®

Best Lawyers in America 2014,
Personal Injury Litigation Law –
Defense

Missouri & Kansas Super
Lawyers®, 2007-2011
Editions

Ranked by Chambers USA as a
leading lawyer in the practice
area of General Commercial
Litigation.
But beyond his skill as an attorney, Dick
has been very involved in bar
organizations and has taken on
numerous leadership roles over the
years:
Recipient of WBA’s Howard
Kline Distinguished Service
Award (2007)
Recipient of WBA’s Lifetime
Achievement Award (2013)

Wichita member for the
Association of Defense Trial
Lawyers

Fellow, Kansas Bar Foundation

ABA member

DRI member
Outside of his professional
commitments, Dick has been involved
in many civic endeavors. In his
community, Dick has served as Chair of
the Wichita Downtown Development
Corporation, which aims to enhance the
economic vitality of the downtown area.
He has served as the President of the
Wichita Festivals, Inc., which organizes
events such as the Wichita River
Dick received his A.B. from Wichita
State University and his LL.B. from
Washburn University. He is married to
Bonnie Bing Honeyman. Their son,
Marshall, graduated with a B.S. degree
in Mechanical Engineering from Kansas
State University in 1988. Marshall
received a J.D. degree from Washburn
Law School, passed the patent law
examination and served as an attorney
in the electrical division of the United
States Patent Office in Washington, D.C.
He is currently practicing intellectual
property law in Kansas City, Missouri,
with the law firm of Lathrop & Gage,
L.C. Their daughter, Susan, graduated
with honors in English literature at
University of Kansas and undertook one
year of graduate studies at University of
Hull, England. Susan received her
Master's degree from Kansas University
in 1993, a Ph.D. in English literature
from Wayne State University, and
currently is teaching at the University of
Nebraska at Kearney.
It is KADC’s honor to have Dick as a
member. Congratulations on being the
2014 recipient of the Kahrs Lifetime
Achievement Award. 
Winter 2015
Page 4
EXECUTIVE DIRECTOR’S REPORT
Greetings from the KADC office!
Following the KADC Annual Conference last December I have transitioned into the role of KADC Executive
Director. I am following in the footsteps of Scott Heidner, who was your devoted Executive Director for ten
years. I have worked closely with KADC for over 15 years in multiple capacities including: Annual
Conference planning, Journal publication, website development and maintenance, and membership
services. I am very appreciative that the leadership has put their trust in me as your Executive Director,
and am looking forward to working with all of you.
I recently attended the DRI Executive Directors meeting in Chicago where I was able to share and bring
back some great ideas.
I encourage you to get involved with one of the following KADC committees. Please contact me for
additional information or to volunteer.









Brandy Johnson
KADC
Executive Director
Amicus
Legislative
Social Media
Trial Skills Workshop
Young Lawyers
Membership
Opinion Summaries
Conference
Conference Sponsor/Vendor
The KADC Legislative Committee, chaired by Mark Katz, has been working closely with KADC staff on multiple issues of interest
to KADC. Committee members have presented written and verbal testimony on multiple bills this session, all of which are
available on the KADC website. Watch your email for weekly legislative updates.
As a reminder the following staff is available to assist you:
Brandy Johnson
Executive Director
[email protected]
Amy Dubach
Membership Services Manager
[email protected]
Amber Hermreck
Executive Assistant
[email protected]
Mindy Ketchum
Financial Management
[email protected]
KADC MISSION
The Kansas Association of Defense Counsel (KADC) is a statewide non-profit organization of Kansas lawyers who
devote a substantial part of their practice to the civil defense of litigated cases, and has a membership of over
230 attorneys. The goal of KADC is to enhance the knowledge and improve the skills of defense lawyers, elevate
the standards of trial practice, and work for the administration of justice.
Winter 2015
Page 5
JUDGE LEBEN RECEIVES REHNQUIST AWARD
(November 20, 2014) During a solemn
ceremony in the Great Hall of the U.S.
Supreme Court with Chief Justice John
Roberts presiding and about half of the
states’ chief justices looking on, Judge
Steve Leben of the Kansas Court of
Appeals received the 2014 William H.
Rehnquist Award for Judicial Excellence
from the National Center for State
Courts. One of the nation’s highest
judicial honors, the Rehnquist Award
recognizes a state court judge
who exemplifies judicial
excellence, integrity, fairness,
and professional ethics. Judge
Leben was honored in part for his
extensive work nationally in
educating judges about the
importance of procedural
fairness— making sure that those
coming through courts leave
feeling fairly treated by listening
to them, treating them with
respect, and applying neutral
rules in a transparent way.
Judge Leben has co-authored two
key white papers for the American
Judges Association titled “Procedural
Fairness: A Key Ingredient in Public
Satisfaction” and “Minding the Court:
Enhancing the Decision-Making
Process.” He has conducted training
sessions for thousands of judges
across the country. He co-founded
proceduralfairness.org, a website
devoted to advancing procedural
fairness. He has served as president of
the American Judges Association,
published more than a dozen law
review articles, served as editor of
“Court Review,” a national journal for
judges, since 1998 and co-founded
Ethics for Good, an annual continuing
legal education program in Kansas City
that has raised more than $500,000
for law-related charities over the past
15 years.
Here is an excerpt from Judge Leben’s
remarks during the ceremony:
Before I get started, I want to give you a
behind-the-scenes look at how this
event works for the Rehnquist Award
winner. While traveling in August, I got a
text from my Chief Justice: "Please call
me when you can." I had no idea what it
meant, but my mind could envision a
number of bad possibilities. Obviously,
that call went well: he told me I'd won
the award, and he told me to call Mary
McQueen [President of the National
Center for State Courts] for more
information.
Things turned a bit odd when I called
Mary. She congratulated me, but then
she told me that the award was—well—
conditional. She explained that I would
be speaking here in between the salad
and the meal, and that if I went longer
than 10 minutes, the award would be
taken back. I said, “Okay, not a
problem,” and thought that would be
the last I'd hear of it. They wouldn't
actually take the award back—that
would be too awkward.
Then when I came to the building
tonight, Mary was waiting for me. And
she gave me this—a wind-up kitchen
timer. So, in the hope that I can take
this nice award back to Kansas with
me, let me get this set.
....
[After giving thanks to a number of
people, he continued.] It's my
collaboration with these talented
people—focused in many respects on
work that's important to courts today—
that has brought me here tonight.
So now let's talk a bit about that work. I
want to share the result of a December
2013 Gallup survey that should be of
concern to all of us. When asked to rate
the honesty and ethical standards of
judges, less than half—45%—said that
the honesty and ethical standards of
judges was either high or very high.
That put us just below day-care
providers and just ahead of nursinghome operators and auto mechanics.
This comes at a time when surveys also
show great dissatisfaction with
government generally. Also in 2013,
the Gallup survey recorded the
highest dissatisfaction it had ever
seen with the way the nation was
being governed—greater
dissatisfaction than Watergate
levels.
In this environment, the teachings
of procedural fairness—also called
procedural justice—offer a proven
way to gain a greater sense of the
legitimacy of our authority from
the public. Yale Law School
professor Tom Tyler, who has
been working with David Rottman,
Kevin Burke, and me on a website and
in other ways, has more than two
decades of research showing that both
police and judges who emphasize four
key principles will be seen as legitimate
authorities. Those principles are
allowing voice to those who come in
contact with us, treating them with
respect, openly applying neutral
principles, and showing that we're
sincere and caring. Practicing these
principles gains greater public trust and
satisfaction and greater levels of
compliance with judicial orders.
With that in mind, I am greatly honored
by this award and the focus it places on
these efforts to improve the
performance of America's courts on
procedural fairness.
Given tonight's audience, with many
appellate judges and justices in
attendance, I might note that this
applies to appellate courts as well as
trial courts. In fact, [Minnesota judge]
Kevin [Burke] and I did two blog
postings rating the Supreme Court's
Winter 2015
Page 6
DRI REPORT: DRI CLE OFFERINGS
DRI is what it has always been—the leading provider of
affordable, high-quality defense-oriented education on timely
and important topics. A must attend event is DRI’s Annual
Meeting held in October. Mark your calendar now for October
7-11, 2015 at the Washington Marriott Wardman Park in
Washington D.C.

THURSDAY, APRIL 23, 2015
Hot Topics in International Dispute
Resolution
Swissotel Zurich Switzerland

WEDNESDAY, MAY 6, 2015
Employment and Labor Law
Omni Scottsdale Resort & Spa at
Montelucia 4949 East Lincoln Drive
Scottsdale, AZ 85253

THURSDAY, MAY 7, 2015
Retail and Hospitality
Loews Chicago Hotel Chicago, IL

Intellectual Property Litigation
Loews Chicago Hotel 455 North Park Drive Chicago, IL
60611

Drug and Medical Device
San Francisco Marriott Marquis 780 Mission Street San
Francisco, CA 94103
Other upcoming events you should consider are:





THURSDAY, MARCH 12, 2015
Medical Liability and Health Care Law
Parc 55 Wyndham San Francisco 55 Cyril Magnin St. San
Francisco, CA 94102
WEDNESDAY, MARCH 18, 2015
Trial Tactics
Caesars Palace 3570 Las Vegas Boulevard South Las
Vegas, NV 89109
WEDNESDAY, MARCH 25, 2015
Insurance Coverage and Claims Institute
Chicago Marriott Downtown Magnificent Mile 540 North
Michigan Avenue Chicago, IL 60611
THURSDAY, MARCH 26, 2015
Toxic Torts and Environmental Law
Hilton Austin Hotel 500 East 4th Street Austin, TX 78701
WEDNESDAY, APRIL 15, 2015
Life, Health, Disability and ERISA
Marriott Marquis Washington D.C. 901 Massachusetts
Avenue NW Washington, DC 20001
F. James Robinson
Hite, Fanning &
Honeyman L.L.P.
For more information about these and other programs please
visit: http://www.dri.org/Events. 
Winter 2015
Page 7
JUDICIAL FEATURE: TERESA WATSON
“I love it,” Judge Teresa Watson said, “I’m right where I want
to be.”
On December 12, 2014, Judge Watson, a former KADC
member and partner at Fisher, Patterson, Sayler, & Smith,
LLP’s Topeka office, assumed a new role and was sworn in
as the newest District Court Judge in Shawnee County.
Members of Judge Watson’s family, friends, and colleagues
attended the investiture ceremony.
David Cooper, KADC member and former
partner of Judge Watson, introduced Judge
Watson and spoke of her great qualities as
a jurist and a friend. Following the
introduction, Watson took an oath and
assumed her new role. Watson’s husband,
Whitney Watson, assisted her in putting on
her judge’s robe. Judge Watson then
stepped to the bench and gave a brief
speech in which she noted becoming a
judge was a moment she had dreamed of
since she was a child.
Judge Watson began her path to the bench
at Washburn University, where she
graduated summa cum laude in 1991; she
then graduated magna cum laude from
Washburn University School of Law in 1994. After law school,
Judge Watson clerked for Hon. J. Patrick Brazil, retired chief
judge of the Kansas Court of Appeals. Judge Watson returned
to the court as a research attorney for the Kansas Supreme
Court after practicing with Polsinelli Shughart in Topeka.
Judge Watson subsequently joined Fisher, Patterson, Sayler,
& Smith, LLP in February 2003. Judge Watson’s private
practice focused on civil rights litigation,
governmental liability, and appellate
practice. She defended a number of
complex civil rights cases against cities,
counties, and other quasi-governmental
entities in state and federal courts.
Judge Watson now has the domestic
docket in the Shawnee County District
Court. “Although the
law is different than
what I practiced
Sarah A. Morse
before, I am still able to
Fisher
Patterson
use the skills and
Sayler
&
Smith, LLP
knowledge I developed
as a litigation attorney every day in the
courtroom,” Judge Watson said. Judge
Watson noted her private practice
experience has particularly aided her ability
to think quickly and cut through extraneous
details to get to the heart of a case.
Judge Watson also noted she has especially
enjoyed getting to work with the attorneys
who appear in her courtroom. The domestic
docket has introduced opportunities to work
with a different group of attorneys than
Judge Watson encountered in her private practice.
Judge Watson’s KADC colleagues know the Kansas judiciary
has gained a strong legal mind. While the defense bar will
miss practicing with Judge Watson on a day-to-day basis, they
are thrilled to see her accomplish her lifelong dream. 
AMICUS COMMITTEE UPDATE
The KADC Amicus Curiae Committee now has a revised policy which is posted on the KADC website, along
with a Request Form. The Request Form can be found on page 25 of this newsletter. If you are
defending a case you feel raises issues of significant interest to the defense bar, consider requesting
KADC’s participation as an Amicus. You can submit the request to Anne Kindling, Chair
([email protected]) or to Brandy Johnson ([email protected]). Feel free to talk to any KADC Board
member or Amicus Committee member if you want to discuss it before submitting a request. Amicus
Committee members are Anne Kindling, Mike Kelly, Steve Kerwick, Amy Morgan, Bill Townsley, and Sarah
Warner. 
Anne Kindling
Stormont-Vail
HealthCare, Inc.
Winter 2015
Page 8
A LOOK AT VIOLENCE AGAINST THE KANSAS LEGAL PROFESSION:
RESULTS OF THE 2013 SURVEY
In 2014, news agencies reported a number of “extraordinary” incidents of threats and violence against
the legal profession. For example, in Alabama, a city attorney was shot in the chest while at the office.
In Tennessee, a former attorney was killed and his wife injured by a package bomb left at their residence.
In Delaware, a man attempted to hire an undercover detective to kill his prior defense counsel and the
prosecutor. In Florida, a Florida State University law school professor was shot and killed at home. In
North Carolina, an inmate assisted in the kidnapping of a prosecutor’s father. In New York, a corporate
lawyer, angry over a court ruling, hit opposing counsel in the face and chest with his briefcase, while in
court, requiring the victim to have back surgery. In Illinois, a woman plotted to kill a town attorney. In
North Carolina, a man drove his burning truck, loaded with propane tanks and gasoline, into the law
office of his girlfriend’s attorney.
Just because these incidents didn’t happen in Kansas doesn’t mean that the Kansas legal profession is
Stephen Kelson
immune from work-related threats and violence. To better understand the level of threats and violence at
Christensen &
the state level, from April 8, 2013 through May 10, 2013, all active, in-state members of the Kansas legal
Jensen
Attorneys
profession were invited to participate in a privately conducted on-line survey regarding violence they have
experienced in the practice of law. Responses to the 2013 survey (the “Survey”) provide a previously
unknown look into work-related threats and violence experienced by members of the Kansas legal profession.
Existing Statewide Studies of Violence against the Legal Profession
To date, twelve other statewide surveys have been conducted regarding violence against the legal profession, and the results
present surprising details of threats and violence experienced by attorneys related to the practice of law.
Table 1:
Statewide Surveys of Violence Against Attorneys
% In-State
Threats/
In-State
Membership
Violence
%
2006
Utah
6,832
904
13.2
417
46.1
2008
Idaho
3,627
780
21.5
319
40.9
2012
Nevada
8,245
1,039
12.6
412
40.0
2012
Wyoming
1,639
467
28.5
211
46.0
2012
Oregon
13,916
1,862
13.4
684
36.7
2013
New Mexico
6,170
919
14.9
369
40.0
2013
Arizona
17,383
1,841
10.6
777
42.2
2013
Iowa
7,329
1,333
18.2
547
41.0
2013
N. Carolina
21,856
2,251
10.3
732
32.5
2014
Michigan
35,824
4,219
11.8
1,529
36.2
2014
Mississippi
7,048
422
6.0
195
46.2
2014
N. Dakota
1,663
243
14.6
113
46.5
Many of these threats included written letters, e-mails, text, and on-line posts, verbal threats of physical violence and death
threats. Violence included physical contact, assaults and batteries experienced by attorneys, and vandalism to attorneys’
businesses and personal property. The results of each of these surveys show that threats and violence against the legal
profession is far more prevalent than reported by the media or commonly perceived by practitioners.
Winter 2015
Page 9
MEET KADC’S LEGISLATIVE COMMITTEE
Jim Robinson is a master storyteller—
not a surprising trait in a trial lawyer—
although he is not much given to
exaggeration. So, when he told me that
being the chair of KADC’s Legislative
Committee was like drinking water from
a fire hose, I should have taken him
seriously. As of the writing of this
article, six weeks since the Legislature
convened on January 12, 2015, the
Legislative Committee is monitoring the
status of approximately twenty bills and
resolutions of interest to KADC’s
members. Committee members have
prepared written testimony on six bills,
we have tapped non-committee
members for written testimony on two
bills, and we have prepared drafts of
written testimony on two other bills, in
case they come up for hearing. We
have attended four legislative hearings
to supplement KADC’s written
testimony. The dedication of the
Legislative Committee’s members and
other volunteers has ensured that
KADC is heard on issues ranging from
the selection of Supreme Court justices
to the award of attorneys’ fees in
insurance cases, and from financing
the judiciary’s budget to extending
municipality notice of claim provisions
to municipal employees.
These are the members of the
Legislative Committee who are working
to make sure that KADC’s voice is
heard in Topeka:
Robert Moody. Robert is a 2014
graduate of Washburn Law School and
a new KADC member. Now a
commercial litigator at the Martin
Pringle firm in Wichita, he clerked for a
lobbying firm during his second and
third years of law school. In that
capacity, he covered hearings and
prepared reports for clients. For
Robert, it was a wonderful opportunity
to see the legislative process unfold
and to interact with members of the
Senate and House of Representatives.
He joined the Legislative Committee to
use his experience to help KADC in its
ongoing efforts in the Legislature.
Nathan Leadstrom. Nathan serves as a
KADC board member. He is the
managing partner at Goodell, Stratton,
Edmonds & Palmer in Topeka, and his
firm has been heavily involved in
legislative efforts over the years. He
joined the Legislative Committee to
carry on his firm’s tradition of legislative
advocacy. In his words, “KADC has a
rich tradition in legislative advocacy and
is uniquely positioned as a wellrespected and influential voice for our
members. We have the privilege of
helping to shape legislation while
directly carrying out KADC’s mission.”
Sarah Warner. Sarah is KADC’s
Treasurer and a partner at Thompson
Ramsdell Qualseth & Warner in
Lawrence. Sarah and her firm have a
long history of service to KADC, the bar,
and the State of Kansas. She served as
a judicial clerk to the Honorable Robert
E. Davis of the Kansas Supreme Court
before joining her firm in 2009. She
brings extraordinary drafting skills to
the committee, not to mention
exceptional insight, and has had a hand
in drafting or editing much of the
written testimony submitted on KADC’s
behalf.
Tim Finnerty. Tim has the distinction of
being a past President of KADC and
current board member. He practices at
the Wallace Saunders firm in its Wichita
office. Tim’s interest in KADC’s
Legislative Committee is a natural
extension in his involvement as an
author of KADC’s amicus brief in
Bussman v. Safeco Insurance Company
of America. In that
case, he argued
that the attorney fee
award provisions of
K.S.A. 40-908
should apply only to
first-party property
claims, as originally
intended. While the
Supreme Court
Mark D. Katz
found Tim’s
Coronado Katz LLC
arguments on behalf
of KADC persuasive, it felt constrained
by the plain language of the statute.
The Court suggested that perhaps the
statute should be amended, and Tim
has been instrumental in KADC’s efforts
to follow that suggestion.
Mark D. Katz. I serve as KADC’s Vice
President and the chair of its Legislative
Committee. I am also the managing
member of Coronado Katz in Kansas
City. My interest in legislation began
when I took a legislative research
seminar in law school, but it only found
an outlet when I joined KADC. I had my
first taste of success when I advocated
KADC’s position in favor of bringing the
Daubert standard to Kansas. I am evermindful of KADC’s tradition as a strong
and credible voice in the Kansas
Legislature, and KADC and I are deeply
indebted to the committee’s members
for their passion and time, as well as to
Jim Robinson, this committee’s past
chair, for his excellent advice and
guidance.
We are honored to serve KADC and
represent its positions before the
Legislature, and we are always happy to
welcome new members. If you are
interested in advocating KADC’s
positions in the Capitol, or if you are
interested in a particular piece of
legislation, please contact me. 
Winter 2015
Page 10
KANSAS BAR FOUNDATION UPDATE
The Kansas Bar Foundation held its
quarterly Trustee Meeting on February
13, 2015 in Topeka. The KBF and KBA
jointly hosted a court appreciation
dinner the night before at Topeka
Country Club which was well attended
by numerous state and federal judges
and Kansas Supreme Court
justices. Prior to the Board meeting,
the KBF and KBA also jointly sponsored
a lunch at the Kansas Judicial Center
and shared a meal with the appellate
court judges and justices. In addition
to the general business of the KBF, the
following highlights some of the more
significant events and activities:
In the KBF’s new role as the sponsor of
the golf tournament held in conjunction
with the KBA Annual Meeting, the Board
formed a committee to plan the
tournament. The event will be held at
the Ironhorse Golf Club in Overland
Park on the day before the KBA Annual
Meeting in June. The KBF also decided
to continue to open up its Fellows
Dinner to the entire Kansas Bar.
Invitations will continue to be sent to
Fellows as done in years’ past, but any
member of KBA will be able to sign up
when they fill our their registration for
the annual meeting.
The KBF was also invited by the Kansas
Supreme Court to make a presentation
to the court on a program for a
comprehensive IOLTA rule. This is part
of the ongoing efforts by KBF to require
interest on lawyers’ trust accounts to be
retained for the benefit of Kansas
residents by using the proceeds to fund
KBF’s access to justice
programs. Kansas is one of the few
states where IOLTA accounts are not
mandatory which the KBF hopes to
rectify with the adoption of a
comprehensive IOLTA rule. KBF was
also alerted that as part of a large case
settlement it will soon be the recipient
of funds in an amount yet to be
determined but expected to be in
excess of $250,000.
The KBF decided to take a more active
role in managing its investment
portfolio in order to show direct
stewardship of the
funds used in
support of its
mission, programs
and scholarships. It
will also include
scholarship
amounts on
applications and is
undertaking efforts
Nathan Leadstrom
to obtain more
applicants for the
Goodell Stratton
various scholarships
Edmonds &
available. At the
Palmer LLP
same time, KBF will
continue its efforts at both increasing
members and giving by members as
well as initiatives to develop future
grants and scholarship opportunities.
Anyone interested in becoming a
Fellow, increasing their giving, or
learning more information about the
KBF and its programs can find out by
visiting its website at: http://
www.ksbar.org/default.asp?page=kbf
JUDICIAL FEATURE: JUDGE KIM W. CUDNEY
Chief Judge Kim W. Cudney’s position
with Kansas’ 12th Judicial District is a
demanding one. She covers Cloud,
Jewell, Lincoln, Mitchell, Republic, and
Washington Counties – 4,690 square
miles – herself. In fact, her commute
from her home in Washington County to
Lincoln, Kansas is a 4 hour round trip.
A wide variety of experiences have
prepared her well for the challenge.
Judge Cudney grew up outside of
Barnes, Kansas in Washington County,
and studied political science at Kansas
State. Following college, she attended
Washburn Law School. When asked
about her time at Washburn, Judge
Cudney reflected, “Law school was
difficult – I studied hard.” Through her
efforts, she earned a clerkship with
Justice Harold S. Herd of the Kansas
Supreme Court. Following her work
with Justice Herd, she also clerked for
Judge Patrick F. Kelley of the United
States District Court for the District of
Kansas.
Judge Cudney then moved to private
practice with the litigation division at
McDowell, Rice & Smith, P.C. in Kansas
City for several years, focusing on
medical malpractice defense and
business disputes. While she enjoyed
her focused litigation practice in a
larger city and working on cases that
took her around the
country, she and her
husband wanted to
raise a family with a
more rural lifestyle.
Accordingly, she
moved closer to
home and practiced
with Gallaway,
Weigers & Heeney,
Jake Peterson
P.A. in Marysville,
Clark, Mize &
Kansas, and then
Linville, Chtd.
started a solo
practice in Washington, Kansas. Her
practices in Marysville and Washington
were more general than in Kansas City:
she not only served as litigation
counsel, but also provided estate
planning and family law services,
among others. She took quickly to the
variety and personal nature of rural
practice, and enjoyed representing
individual clients. “I missed working for
Winter 2015
Page 11
YOUNG LAWYER HIGHLIGHT: ANDREW HOLDER
Andrew Holder, a KADC young lawyer,
has known he wanted to be an attorney
since he was young. Andrew found he
was well suited to the role in fifth grade
during an assigned debate. Even now,
his friends agree he has found the right
profession. Andrew’s friends believe so
much in his ability to discover the
relevant facts and present a strong
argument that they have selected him
investigator for their murder mystery
parties two years in a row.
“My background is in business
management, so the employeremployee dynamic has always
particularly interested me,” Andrew
said. “I also love being able to work on
Constitutional cases because the
After meeting
Andrew, you will
quickly learn he is
Sarah A. Morse
a huge baseball
Fisher Patterson
fan. A recent
Sayler & Smith, LLP
highlight for
Andrew was the Royals’ World Series
appearance. “This fall, I got to witness
in person the joy of victory in Game 2 of
the World Series and the agony of
defeat in Game 7.” Andrew also enjoys
spending time on the field and was the
self-appointed captain of the YLD
softball team this fall.
Andrew attended the University of
Kansas from 2006 to 2009 and
received a BS in business
administration. He then attended
Washburn University School of Law
from 2009 to 2012. During law school,
Andrew served as a law clerk for the
Kansas Court of Tax Appeals from 2009
through 2012.
Andrew also wrote for the Washburn
Law Journal in law school. His
comment, “Negligent Entrustment: The
Wrong Solution to the Serious Problem
of Illegal Gun Sales in Kansas,” 50
Wash. L.J. 743, was selected as the
GNIP-GNOP Best Comment. The
following year, Andrew served as the
comments editor for the Board of
Editors.
During his last semester of law school,
Andrew began clerking at Fisher,
Patterson, Sayler & Smith, LLP. Andrew
joined the firm as an associate in the
summer of 2012 and his practice has
focused on employment law and
government liability.
need to be
prepared for at
trial,” Andrew said.
“Plus, it was a
really great way to
meet other young
attorneys from
across the state.”
impact of those kinds of cases is so
important to everyone.”
Now a Topeka resident, Andrew has
become involved in the local
professional community. In addition to
the KADC, Andrew is also a member of
the Topeka Bar Association and the
Defense Research Institute. Andrew
attends the KADC conference annually
and this past year, participated in the
Young Lawyers Trial Skills Workshop.
“I thought the KADC trial skills
workshop was a great opportunity to
polish my skills and identify issues I will
Now that baseball season is over,
Andrew’s extracurricular focus can
return to sharpening his investigation
skills. KADC members beware, Andrew
has eight months until his next murder
mystery party to hone his prosecutorial
skills. His next murder mystery party
prosecution may make him eligible for
the 2015 Benedict Arnold Award. In the
meantime, Andrew will enjoy
participating in Wednesday night trivia
league and spending time with his oneyear-old beagle, Brady. 
Winter 2015
Page 12
JUDICIAL FEATURE: JUDGE JOHN KLENDA
Becoming a district court judge wasn’t
always the plan of John Klenda. He
knew he wanted to become a lawyer,
but when the opportunity arose to
become a judge, Klenda decided to take
on the new challenge.
Honorable John Klenda is the newest
judge in the 9th Judicial District. In 2013,
Judge Klenda decided to apply for the
judicial appointment. Klenda said he
thought it was a long shot, but wanted a
new challenge. That long shot turned
into a realistic possibility when his name
was sent to Governor Brownback. On
July 1, 2013, Klenda was sworn in to
preside over McPherson County District
Court.
McPherson is a small, rural, yet unique
community. It thrives on its plastics and
oil industries. The downtown is bustling
and filled with unique shops. McPherson
offers a unique ability to practice law
with a diversified client list. Growing up
near McPherson, Judge Klenda knew
McPherson was a special place and
eventually, he received the opportunity
to return to his roots.
Judge Klenda grew up on a farm near
Pilsen, Kansas, a small town east of
McPherson, near Marion, Kansas. The
tenth child out of twelve, Judge Klenda
claims to be the favorite. Klenda’s
parents farmed, but insisted that each
child receive an education.
Attending Emporia State University,
Judge Klenda received a Bachelor’s
Degree in Political Science and a minor
in Business. He then received his
Master’s in Public Administration from
the University of Kansas. To gain
experience, Klenda worked as the
director of the Beloit Chamber of
Commerce for two years. He enjoyed
this work and enjoyed the community.
Klenda, however, decided to continue
his education and enrolled at Washburn
University School of Law. It was during
law school Judge Klenda would make
his return to central Kansas.
During law school, Judge Klenda
interned for the McPherson County
Attorney’s Office. Judge Klenda interned
under Tim Karstetter, then county
attorney. Karstetter asked Judge Klenda
to return after he graduated. Judge
Klenda noted that “back then” the job
market was very different than it is now.
He commented that most law graduates
received several offers to choose from,
whereas today, most law graduates only
have one or two, if that.
In 1980, Judge Klenda returned to
McPherson with his wife, Pam. He
times. He found a
good balance: one
and a half days in
Marion, the rest in
McPherson. Judge
Klenda offers a tip:
be organized. He
said that
organization
allowed him to
travel between two
offices with more
Ann M.E. Parkins
fluidity. Judge
Wise & Reber, L.C.
Klenda also
enjoyed having two offices because it
allowed him to diversify his practice.
Judge Klenda primarily focused his
practice on municipal law, education
and school district issues, business, and
domestic work. He also continued to
serve the community as McPherson City
Prosecutor until he became judge.
worked as an assistant county attorney
until 1982 and then became county
attorney. Judge Klenda remarks that he
enjoyed this type of work.
He offered a piece of advice for young
lawyers: do not be afraid to get in the
courtroom and litigate matters. He noted
that practical experience is the best
experience. Judge Klenda shared he
enjoyed trial work. He liked the
challenge of thinking on your feet, yet
knowing that the real work is done
before trial. Judge Klenda shared that it
is critical to be prepared. Most of the
work for a trial occurs before the trial
ever begins. Even if you don’t have facts
on your side, he remarks, being
prepared goes a long way. As a presiding
judge, Judge Klenda expects the lawyers
who enter his courtroom to be on time
and prepared.
Something unique to small towns is the
ability to diversify one’s practice. While
Judge Klenda served as county attorney,
he also developed a private practice. In
1985, Judge Klenda joined Karstetter in
private practice. Judge Klenda joined as
an associate, but quickly became
partner. Getting back to his roots, Judge
Klenda and Karstetter took over the
Westerhaus Law Office in Marion,
Kansas in 1986. When asked about
juggling two offices, Judge Klenda said
he enjoyed it but that it was difficult at
Judge Klenda noted that he learned a lot
about dealing with clients over his 32
years of practice. Client control is very
important. Judge Klenda shared that he
learned it is important to discuss costs
and expectations with a client up front.
Without clear communication, clients
may have unrealistic expectations of
costs and outcomes. Judge Klenda
shared that, especially in a small
community, maintaining good client
contact is critical. Judge Klenda found
that having a 24 hour call back rule
worked best at maintaining good client
contact.
Now that Judge Klenda presides over
District Court rather than his private
practice, he does not have to deal with
client issues, but he comments on the
new challenges, one of which is
technology.
Like in other rural counties, the ability to
integrate technology into the courtroom
is not always easy. Judge Klenda is
working hard to modernize not only the
courtroom, but also the court system in
McPherson County. He believes
technology is a valuable asset that
makes the courtroom run smoother, not
only for him, but for the court staff and
attorneys. Judge Klenda looks forward to
the new challenges being a judge
presents and is excited to bring new
things to McPherson County. 
Winter 2015
Page 13
WELCOME NEW KADC MEMBERS
Sam Heaney - Martin Pringle Oliver Wallace & Bauer LLP
John Hicks - Norris & Keplinger LLC
Terry Malone - Martin Pringle Oliver Wallace & Bauer LLP
Robert Moody - Martin Pringle Oliver Wallace & Bauer LLP
Brendan Murphy - Martin Pringle Oliver Wallace & Bauer LLP
Ann Parkins - Wise & Reber, L.C.
Brett Reber - Wise & Reber, L.C.
Marcia Wood - Martin Pringle Oliver Wallace & Bauer LLP
Nichole Woods - Hite, Fanning & Honeyman, LLP
SHARE YOUR TRIAL RESULTS
WITH FELLOW MEMBERS OF KADC
Provide a summary of your trial so that it may be published in the
Kansas Defense Journal.
Please include the following information:
Type of Suit
Case Title
Court Docket No.
Attorneys for Each Party
Date Decided
Result
Significant Holding or Finding
Liability and Injury Facts
Verdict or Settlement Amount
Comments
Email to: Jackie Sexton, Editor, Kansas Defense Journal [email protected]
KADC OFFERS MEMBERSHIP INCENTIVES
There are now MORE reasons to share the great news about KADC with your colleagues!
Lawyers admitted to the Bar five years or less who join KADC will receive one free registration to
the Annual Conference in their first year of KADC membership (a value of up to $410).
Lawyers who are members of DRI, but who have never been a KADC member,
will receive a free one-year membership in KADC (a value of up to $190).
Lawyers who are members of KADC, but who have never been a member of DRI,
will receive a free one-year membership in DRI (a value of up to $285).
Law students who are members of KADC will receive free registration to the
Annual Conference while they are full time students.
Young lawyers admitted to the Bar five years or less who join DRI will also receive a certificate for
a free registration for one DRI seminar of their choice or the DRI Annual Meeting.
Chief Justice Lawton R. Nuss Provides
Insightful Speech Addressing Funding of the
Kansas Judicial Branch at the KADC Annual
Conference: December 6, 2014
(Continued from page 1)
personal touchstone. Integrity as we
know it today stands for soundness of
moral principle and character,
uprightness, honesty. Yet there is more.
Integrity is also an ideal, a goal to strive
for. And for a man or woman to "walk in
their integrity" is to require constant
discipline and usage.
The word "integrity" itself is a martial
word. It comes to us from an ancient
Roman Army tradition – about 2000
years ago. During the time of the twelve
Caesars, the Roman army would
conduct morning inspections. As the
inspecting centurion would come in
front of each legionnaire, the soldier
would strike with his right fist the armor
breastplate that covered his heart. The
armor had to be strongest there, to
protect against sword thrusts and arrow
strikes. As the soldier struck his armor,
he would shout, "Integritas," which is
Latin for material, wholeness,
completeness, and entirety.
The inspecting centurion would listen
closely for this word. He would also
listen carefully for the unmistakable ring
that well-kept armor would give off.
Only after he was satisfied that the
armor was sound, and that the soldier
beneath it was protected, would the
centurion then move onto the next man.
But, at about this time, the praetorians
– or imperial bodyguard – began to
move into power and influence. They
were drawn from the best "politically
correct" soldiers of the legion. They
received the finest equipment and
armor, and they no longer had to shout
"integritas" to show their armor was
Winter 2015
sound. Instead, as the praetorians
struck their breastplates, they would
shout "Hail Caesar" to show their heart
belonged to the imperial personage –
not to an institution, not to a code of
ideals, not to any laws. Instead they
armored themselves to serve the cause
of a single man.
A century passed. The rift grew larger
between the legionnaires on the one
hand and the praetorians with their
improper excesses on the other. To
show the difference between the two
groups, the legionnaires, upon striking
their armor, would no longer shout
"integritas." But instead they would
shout "integer" which is Latin for
undiminished, complete, perfect.
This not only showed that the armor was
sound. But it also showed that the
soldier wearing that armor was of sound
character. He was complete in his
integrity. In other words, it showed the
soldier's heart was in the right place,
that his standards and morals were
high, and that he was not connected to
the immoral and other improper
conduct that was rapidly becoming the
signature of the praetorians.
This "armor of integrity" continued to
serve the Roman legionnaires well. For
more than four centuries they held the
line against the marauding Goths and
other barbarians. But by 383 A.D.,
about 400 years after the death of
Jesus, the social decline that infected
both the nation and the praetorian
guard also had its effects upon the
proud legion.
As a fourth century Roman general
wrote:
"When, because of negligence and
laziness, parade ground drills were
abandoned . . . the customary armor
began to feel heavy since the soldiers
Page 14
rarely, if ever, wore it. Therefore, they
first asked the emperor to set aside
the breastplates . . . and then the
helmets.
"So our soldiers fought the barbarians
[Goths] without any protection for the
heart and head. And we were often
beaten by archers.
"Although there were many disasters
which led to the loss of great cities,
no one tried to restore the armor to
the infantry. They took their armor
off, and when the armor came off, so
too came their integrity."
History shows that the Roman legion
gradually rotted from within. It was
unable to hold the frontiers. The
barbarians were at the gates of
civilization.
General Krulak then summarized,
pointing out that the word "integrity" is
actually a combination of these two
words: "integritas" and "integer." It
refers to the putting on of armor, of
building a completeness. A wholeness.
A wholeness in character.
But as Krulak emphasized, this
character is not formed instantly.
Character requires that integrity become
a way of life. It must be woven into the
very fabric of our soul, just as it was true
2000 years ago in the days of imperial
Rome.
So every one of us has two basic
choices. We can either walk daily in our
integrity, or we can take off the armor of
the "integer" and then leave our heart
and soul exposed, open to attack.
General Krulak's challenge to his
audience that day – and to us here
today – is very simple, but often very
difficult. We must wear our armor of
integrity; take full measure of its weight;
Chief Justice Lawton R. Nuss Provides
Insightful Speech Addressing Funding of the
Kansas Judicial Branch at the KADC Annual
Conference: December 6, 2014
find comfort in its protection; and not
become lax. We must always remember
that no one can take our integrity from
us. Only we can give it away.
Thus ended the remarks of
Commandant Krulak.
Now, I can tell by the looks on many
faces that you are saying, "Well, this
speech is just like the judicial opinions
written by the Chief Justice. Ten
minutes into it, although interesting, I
still don't know where he's going!"
Good observation. So let me explain.
Like the Roman legionnaires of 2000
years ago, today's licensed lawyer in
Kansas did not take an oath to serve
the cause of Caesar or to any other
man – or woman – imperial or not.
Instead, we all took an oath to support
and bear true allegiance to the
constitution of the State of Kansas: a
constitution whose preamble begins
"we, the people of Kansas . . . do ordain
and establish this Constitution of the
State of Kansas;" a constitution that
contains Section 18 of the Bill of Rights
which has provided since 1861 that "all
persons" are entitled to "remedy by due
course of law, and justice administered
without delay;" and a constitution that
contains Section 10 of the Bill of Rights
which since 1861 similarly guarantees
to criminal defendants "in all
prosecutions" . . . "a speedy public trial
by an impartial jury."
These rights and others are in jeopardy
because of underfunding of the Kansas
judicial branch. And the figurative
armor of some lawyers is being allowed
to slip off because they feel it's just
getting too heavy to wear – because
they feel fighting for judicial funding is
getting tiresome.
I completely sympathize, and here's
why. Thirteen years ago this month
Dave Rebein was the outgoing
president of KADC. As the KADC annual
meeting was ending, he made a parting
comment to me, the incoming
Winter 2015
president. Dave said the KADC
president was invited to attend a
meeting later that month with the chief
justice of the Supreme Court of Kansas
in the court's conference room. All
Dave knew was that other bar leaders
were also invited to attend.
I attended that meeting on behalf of
KADC, along with the president of the
KBA, the KTLA, and the County and
District Attorneys Association. Chief
Justice McFarland advised us that the
judicial branch needed additional
funding. She said the Supreme Court
was proposing an "emergency
surcharge" on court filings to raise
several million dollars. The Court later
implemented such a plan.
As recently as last month, one of those
association presidents asked me if I
remembered that meeting. I said, "I
certainly do." We both remembered
what a surprise the meeting had been
for all the bar presidents. Because, as
a self-styled country lawyer from Salina,
I had spent 19 years representing
clients and trying cases and never gave
a thought to court funding or other
court problems. I simply had not heard
of any before. Then 11 months later I
was on that Supreme Court.
The Court has essentially faced the
same judicial branch funding problem
every year since early 2010 – almost
five years ago. So I know what it is like
to grow tired when wearing the heavy
armor. And I know what it is like to
grow tired in the fight.
For example, in September I wrote a
report asking the legislature for a
supplemental appropriation of $3.6
million so the Kansas court system can
finish the fiscal year that ends June 30.
Then in October I wrote an article about
judicial branch underfunding in the KBA
Journal issue that was sent to everyone
licensed to practice law in Kansas.
Then in November I gave a speech in
the Great Hall of the United States
Supreme Court to an audience of 250
lawyers and judges from around the
country including Chief Justice John
Roberts, Jr. There I mentioned
underfunding in Kansas could mean at
least three weeks of closures of all our
courts. Then just before Thanksgiving I
Page 15
sent letters to the governor and
legislative leaders reminding them of
this underfunding. Last Monday I gave
a speech – with the governor in the
audience – reminding those present of
the dangers of closed courts. And just
yesterday my colleagues and I met with
the 32 chief judges in the state to
discuss options if the funding hole is
not filled.
So I know exactly what I am asking
when I ask each of you to continue with
your armor firmly strapped on, when I
ask each of you to keep fighting the
good fight, and when I ask each of you
to remember that, like me, you have not
sworn allegiance to one person or to a
small group of powerful people. Rather,
you and I have sworn to "uphold and
bear allegiance" to the constitution of
the people of the state of Kansas.
What I wrote in last year's report about
the State of the Judiciary in Kansas still
holds true:
"[I]t is clear that administering justice
to all Kansans has been an original
function of government performed by
the Judicial Branch since 1861.
Such an original function certainly
qualifies as a core function, i.e., an
essential service . . . .
"Adequate court funding is critical to
providing these essential services –
while inadequate funding
undermines not only access to
justice, but also the people's belief in
the justice system itself." (Emphasis
added.)
Simply put, underfunding and court
closings jeopardize the fundamental
rights of Kansans and undermine the
public's confidence in our system. And
ultimately, they undermine the public's
confidence in officers of the court – the
legionnaires, if you will. That means
everybody in this room.
I think you will agree. Kansans deserve
better.
Introductory Comments by Jacqueline
M. Sexton. 
Daubert’s Wake and Other Ripples
of S.B. 311
The second prong—reliability—replaces
the dispositive test of “general
acceptance” found in Frye, making it
only one factor the court looks to when
performing the reliability analysis. Along
with whether the opinion is generally
accepted, a court will look to whether
the expert’s methodology has been
tested; whether it has been subject to
peer review; and whether the expert’s
opinions are testable. 3
2. Passes the baton from the scientific
community to the court as gatekeeper.
Under Frye, the trial judge’s
responsibility was limited to
determining whether an expert’s
testimony was “generally accepted” in
the scientific community.4 This placed
the burden on the scientific community
and left the court with the responsibility
of simply counting heads. However,
under Daubert, the court sitting as the
“gatekeeper” is the party responsible
for assessing the reliability of an
expert’s opinion.5 This will still involve
determining whether the opinion is
generally accepted, as well as
becoming familiar with the expert’s field
and analyzing the methodology
employed by the expert.
3. Extends the Daubert test to all areas
and fields, rather than just to the
scientific arena.
Probably less certain is how, or if,
Daubert will be applied to nonscientific
areas. Along with Daubert, two other
cases form the “Daubert trilogy.” Under
Winter 2015
Kumho Tire Co., Ltd. v. Carmichael, the
court held that Daubert extended to all
experts’ opinions—including
nonscientific or technical opinions.6
While it cannot be certain, it is likely
that Kansas will follow suit and adopt
Kumho with the new Daubert standard
in place. This will require all experts,
regardless of their fields of expertise, to
satisfy the elements of relevance and
reliability.
And to round out the trilogy, the Court in
General Electric Co. v. Joiner held that
determinations made regarding the
admissibility of expert opinions are
subject to an abuse of discretion
standard.7 Such a standard is already
Kansas law and will likely remain so,
especially since it aligns with General
Electric.8
4. Removes the ipse dixit exception to
Frye—preventing the bypassing of
Daubert by claiming the expert’s
testimony is a matter of pure opinion.
Probably the biggest practical
implication for replacing Frye with
Daubert is the elimination of the pure
opinion exception. In Kansas, a “pure
opinion” did not have to meet the Frye
test because it was based on the
expert’s personal experience and
training.9 But other state courts that
have moved from Frye to Daubert held
that Daubert essentially eliminates the
pure opinion exception.10
5. Experts may now rely on inadmissible
evidence in forming their opinions.
Finally, flying a little under the radar is
another amendment to K.S.A. § 60458. The amendment now allows
experts to rely on evidence that is
Page 16
otherwise inadmissible at trial.11 The
one caveat being that it must be data
that experts in that field normally base
their opinions on.12
These are just some of the likely
implications of S.B. 311. The newly
amended K.S.A. § 60-456 requires that
the court become more familiar with the
expert’s field and, by eliminating the
pure opinion exception, it should help
eliminate unreliable opinions and junk
science. But only time will tell how close
Kansas will align itself with the federal
courts in the expert witness arena. 
_____________________
1.
Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993).
2.
Id. at 591.
3.
Id. at 593-94.
4.
Frye v. United States, 293 F. 1013,
1014 (D.C. Cir. 1923).
5.
Daubert, 509 U.S. at 592-93.
6.
526 U.S. 137 (1999).
7.
522 U.S. 136 (1997).
8.
Dieker v. Case Corp., 276 Kan. 141,
154 (2003).
9.
Kuhn v. Sandoz Pharmaceuticals Corp.,
270 Kan. 443, 458-59 (2000).
10. Perez v. Bell South Telecomms., Inc.,
138 So. 3d 492, 497 (Fla. Dist. Ct. App.
2014).
11. K.S.A. 60-458.
12. Id.
Judge Leben Receives Rehnquist Award
handling in 2012 of the Affordable Care
Act cases under procedural-fairness
principles. For tonight's purposes, I'm
especially pleased that two years ago,
we had some specific praise for Chief
Justice Roberts:
Chief Justice Roberts acted
evenhandedly in presiding over the
arguments. Although the justices and
frequent court-watchers may be used
to it, the public was no doubt
surprised by how often justices
interrupted one another—and also
interrupted attorneys while the
attorney was still responding to
another justice’s question. Roberts
frequently asked attorneys to return
to the question that had initially been
asked by another justice but not fully
answered, ensuring that the
advocates had a fair chance to
respond to the important questions
that the justices had posed to them.
Winter 2015
Page 17
Chief Justice Roberts' example is one
that other appellate judges should
consider. We all need to think about
how those who come through our
courts perceive what we're doing and to
think about ways we can improve. A
procedural-fairness scorecard gives us
a good lens through which to make that
calculus.
the survey day for 2013: 96% agreed
with the statement, "I was treated with
courtesy and respect," and 93% agreed
that "I understood what happened in
my case." We can tell you from surveys
in other places that those numbers
don't occur without focused work by
judges and court staff to make them
happen.
Let me also note the efforts of two
state chief justices who have made
procedural fairness the centerpiece of
State-of-the-Judiciary addresses to their
state legislatures in the past two years.
Chief Justice Dana Fabe in Alaska told
legislators about a new Fairness Pledge
that had been placed in poster form in
every Alaska courthouse. The pledge, in
six languages, promises to treat
courthouse visitors with respect, listen
to them, and respond to their questions
about court procedure.
I know that the National Center for
State Courts will be continuing its good
work in this area, and I look forward to
continuing to work with its staff—and
with many of you—in this effort. I hope
that you will join us—please follow the
effort on our website,
proceduralfairness.org.
Chief Justice Matthew Durrant in Utah
told legislators about the great scores
Utah courts got in fairness surveys of
those who were in Utah courthouses on
I want to thank the National Center for
State Courts for this award. [At this
point, the kitchen timer set earlier rang
out.] I'm very pleased that I get to take
it back to Kansas. Thank you.
Introductory Comments by F. James
Robinson. 
Winter 2015
Page 18
A Look at Violence Against the Kansas Legal Profession: Results of the 2013 Survey
The Survey of Violence against the Kansas Legal Profession
The Survey was conducted independently by the author, using an email list provided by the Supreme Court of Kansas, and
administered through http://www.surveymonkey.com. The questions sought responses regarding:
Whether respondent had ever received threats or been the victim of violence
Types of threats and/or violence
Number of threats received
Whether threats and/or violence occurred while employed in public or private practice
Locations where threats occurred
Association between threats and assaults
Relationship with perpetrator
Whether incidents were reported to the police
When threat and/or violence last occurred
Change in conduct
Demographic information
For the purposes of the Survey, a “threat” was defined as: “A written or verbal intention to physically hurt or punish another,
and/or a written or verbal indication of impending physical danger or harm.” In April 2013, the Kansas legal profession
consisted of 8,177 in-state attorneys. The Survey received a total of 1,185 responses, representing 14.5 percent of all
registered in-state attorneys. The following summarizes the responses of attorneys of the Kansas legal profession who
responded that they have been the recipients of threats and/or violence.
Threats and Acts of Physical Violence
The Survey’s primary question asked attorneys if, whether while serving as a member of the legal profession, they had ever
been the recipient of a threat or had been the victim of a violent act. Of the 1,185 responses to this question, 480 (40.5
percent) of the respondents reported that they had been threatened and/or physically assaulted at least once.
Respondents to the Survey provided over 360 examples of work-related threats and/or acts of violence perpetrated against
them. Some examples of the kinds of threats and violence reported by members of the Kansas legal profession include:










[A] concrete block was thrown through our large front window with the names of our firm lawyers was broken out [sic].
Received letter bomb at office – dismantled by bomb squad – fake.
[I]n a medical malpractice case … during his deposition he started yelling at me and had to be physically restrained by
his lawyer as he tried to come across the table.
Verbal threats, windows in vehicle shot out, windows at residence shot out, windows at office shot out.
I represented a woman in a divorce. During a hearing, her husband chased her and me around the courthouse with a
knife.
Found snakes in my mailbox.
After a hearing [sic] the husband of my client hid under my car in the parking lot adjacent to the courthouse. When I
got to my car he appeared and verbally threatened me and I believed would have physically attacked me, [sic] a guard
was quickly called.
During a trial, an associate of the Defendant, [sic] threatened to shoot people leaving the courthouse, [sic] . . . later
that night the party was arrested with loaded weapons in vehicle.
While dividing property at the home of my client’s estranged husband, he pulled a gun, threatened me, killed his wife
and then committed suicide.
[F]amily pet shot; family pet poisoned; aggressive confrontation at courthouse office by defendant; multiple photos of
my personal auto parked at various locations delivered to police department and sheriff’s office.
As part of the Survey, respondents were asked to identify the area of law which comprises the majority of their legal practice.
Not surprisingly, a significant percentage of respondents who reported threats and violence practice in the areas of criminal
defense/prosecution (22.4 percent) and family law (17.6 percent). However, respondents in other areas of practice also
reported being the recipients of threats and violence: Wills/Estates (5.0 percent); Administrative (3.6 percent); Corporate/
Commercial/Real Estate (5.5 percent); and General Litigation (12.8 percent). Moreover, an additional 29 percent or
respondents practicing in other areas of law reported being the recipients of threats and violence.
Winter 2015
Page 19
Types of Threats and Violence
The Survey asked respondents to identify the types of threats and/or acts of violence received relating specifically to their
responsibilities as a legal practitioner. There were 471 respondents who reported their responses set forth in Table 2 below.
Inappropriate and threatening communications were those communicated by letter, email, phone, fax or verbal interaction.
Inappropriate approaches included being followed, face-to-face confrontations or attempts to commit violence. Only 47
respondents (10.0 percent) who identified themselves as recipients of threats and violence reported physically being
assaulted.
Similar to the results of the other twelve state surveys, the vast majority of respondents identified inappropriate and
threatening communications and approaches. Inappropriate communications were made primarily in person or by phone, and
included direct and veiled threats. For example, individuals made threats of: “I’ll get you”; “I know where you live”; “I’m going
to kill you”; “I know how to find you and your family”; “You’re never gonna be rid of me”; “Wait until I get out”; “You’ll pay for
this”; “[I’m going] to send some people to see you who will change your entire world”; etc. While the majority of reported
threats were made directly against attorneys, multiple threats were directed against attorneys’ families and children.
Respondents who experienced other forms of threats and inappropriate communications were asked to identify how these
threats were received. In response, attorneys reported threats made secondhand through their clients and opposing counsel,
through authorities regarding attempts to hire “hit men,” and letters/emails. Others reported learning about threats through
other means, including vandalism to their offices, home and vehicles (slashed tires, keying, damage to engine, cut brake lines,
etc.), and shots fired at their home and office. For example, one respondent reported feces and vomit being left on the home
front porch. Another respondent reported receiving threats, that his brake lines were cut on his spouse’s vehicle, and his
children’s vehicles were vandalized.
Table 2:
Types of Threats/
Inappropriate Communications
Type
Number
Inappropriate Communications
399
Inappropriate Approaches
257
Physical Assault
47
Property Damages
65
Other
31
Total
714
Number of Threats Received
The Survey requested those respondents who identified themselves as recipients of threats and/or violence to indicate the
number of threats they received. A total of 480 respondents reported they had received threats in the practice of law. Of the
respondents who were recipients of threats and/or violence, 89.0 percent received more than one threat during their legal
career.
Threats and/or Violence as a Public or Private Attorney
The Survey asked respondents to identify whether the most recent threat(s) and/or violence experienced occurred while they
were employed as public or private attorneys. Of 462 respondents, 222 (48.1 percent) identified the last threat and/or
violence occurred while employed in private practice, 160 (34.6 percent) occurred while employed in public practice, and 80
(17.3 percent) identified that it occurred while they were employed in both public and private practice. These responses may
suggest that Kansas attorneys employed in private practice are more likely to experience threats and violence than those in
public practice.
Locations of Threats
The Survey asked members of the Kansas legal profession to identify the location/s where they experienced threats. Not
surprisingly, respondents identified the most prominent locations of threats and violence as the courthouse (245 responses)
Winter 2015
Page 20
and business office (296 responses). However, many respondents reported the occurrence of threats and violence at other
locations, including at home (77 responses) and elsewhere (127 responses). For example, attorneys reported threats and
attacks made while at jail, at stores, while eating out, traveling to and from home and court, and other public places.
Threats and Subsequent Assaults
Attorneys who received threats were asked to identify if the individual who made the threat was the same person, or
connected to the person, who subsequently assaulted them. Of 467 responses, 42 incidents of subsequent physical assaults
were reported, and an additional 16 could not identify whether the assault was related to the threat.
Relationship with the Perpetrator of Threats/Assaults
Recipients of threats and violence were also asked to identify their association with the individual who most recently
threatened and/or assaulted them. See Table 3. Similar to the surveys conducted in other states, 174 respondents reported
that threats and violence were primarily perpetrated by opposing parties and the attorney’s own client. However, responses
show that threats and violence can occur from any individual involved in a legal case, unfortunately including other members
of the bar. For example, one respondent reported “I was cursed, chased, reviled [sic] and finally hit by another attorney in the
courthouse after a very long day of trial.” Another reported that attorney supervisors would angrily hit things or throw things at
their associate.
Table 3:
Perpetrators of
Threats / Assaults
# of Respondents
Percentage
Client
131
28.1
Relative/Associate of Client
43
9.2
Opposing Party
276
59.1
Relative/Associate of Opposing Party
106
22.7
Opposing Counsel
41
8.8
Unknown
27
5.8
Other
70
15.0
Total
467
100%
When threats/assaults last occurred
Respondents were asked when they last received a work-related threat or when they were the victims of a physical assault.
See Table 4 below. Results show that of 464 respondents to the question, the majority, 246 (53.0 percent), reported such
acts had last occurred within the past five years.
Time
Table 4:
Last Work-Related Threat
Or Physical Assault
Number
Percentage
Within the past year
83
17.9
1 – 5 years ago
163
35.1
6 – 10 years ago
89
19.2
More than 10 years ago
129
27.8
Total
464
100%
Winter 2015
Page 21
Whether incidents were reported to Police
Attorneys who reported being the victim of threats and/or violence were asked if it was reported to police. Of 467
respondents, 185 (39.6 percent) indicated yes, while 227 (48.6 percent) said no. Another 55 respondents (11.8 percent) did
not find the question applicable.
Change in Conduct
The Survey also asked respondents that had received threats and/or had been the victim of physical assault, if such threats
and/or violence had altered the way they conducted their legal business. Of 460 respondents to this question, only 23 (5.0
percent) reported that such incidents had affected their conduct a great deal, 157 (34.1 percent) indicated that their conduct
had been somewhat affected, and 280 (60.9 percent) identified that it did not at all alter the way they conducted business.
Some reported taking steps to protect themselves, including: carrying concealed weapons, carrying mace or pepper spray, and
changing the area of law in which they practiced.
Conclusion
The Survey’s results show that, contrary to the general perception, a significant number of members of the Kansas legal
profession have experienced work-related threats and violence, and it should not be assumed that threats and violence
against attorneys are entirely random or can only happen to someone else. The reality is that work-related violence can come
from any side of a given case and can reach beyond the courthouse and office, regardless of one’s area of practice. 
Judicial Feature: Judge Kim W. Cudney
real people,” she said. While
maintaining her private practice, Judge
Cudney also served as Washington
County Attorney from 1996 – 2006.
Judge Cudney assumed the office of the
12th Judicial District Judge in 2006,
preceded by Judge Thomas M. Tuggle.
She finds her position one of great
responsibility, as many of her decisions
have a real, lasting impact on people’s
lives. When asked about the most
rewarding aspect of being on the
bench, Judge Cudney replied, “Being
affirmed by the Supreme Court,” with a
joking smile.
Winter 2015
As a jurist, she places a high value on
preparation and attention to detail.
Judge Cudney contends that
preparedness is one of the most basic
and important aspects of effective
advocacy and professionalism, but is
one of the most neglected. Simple
matters such as having motions to
continue on file before a hearing or
having child-support payments
calculated in advance are expected by
the Court, and are very helpful.
Substantively, “Lawyers often appear to
gloss over or fail to engage the difficult
issues in their case.” Advocates who do
so in oral argument can lose credibility
before the Court. “It leaves me
wondering if they truly understand the
issues involved,” she said.
Page 22
Judge Cudney lives in the small town of
Greenleaf, Kansas with her husband
and two boys, aged 18 and 15. When
she’s not on the bench, she can be
found attending her sons’ school and
extra-curricular activities. Her oldest
son has a unique interest in exotic
animals – specifically ball pythons, dart
frogs, and other reptiles and
amphibians. He even manages an
internet business shipping the ball
pythons all around the country. While
supportive, Judge Cudney takes a less
hands-on approach: “I have not held a
snake to date.”
Do you have an idea for either a new or not-so-new member who should be featured in an upcoming
edition of the Kansas Defense Journal?
Contact the Journal Editor, Jackie Sexton at [email protected].
Application for Attorney Membership
Categories for individual membership in KADC:
 Private Practice Attorney – $190 / yr
 In-House Counsel – $190 / yr
 Government Attorney – $100 / yr
 Young Lawyer – $100 / yr (admitted to a bar for five or fewer years) Young Lawyers receive one FREE registration to
the KADC Annual Conference in their first year of KADC membership.
 Mr.  Ms.
Name
Title _____________________
OPTIONAL: KADC is committed to the principle
of diversity in its membership and leadership.
Accordingly, applicants are invited to indicate which
one of the following may best describe them:
Organization
Address
City ________________________ State _______ Zip Code __________
Telephone ____________________ Fax
Email
Date admitted to the Bar in the State of Kansas
African American
Hispanic
Caucasian
Asian American
Native American
Other _____________
Date of Birth ______________________
month/day/year
Primary area(s) of practice
Number of attorneys in your organization 1-2 3-10 11-20 21-50 51-99 100+
Bar associations, professional organizations or law societies to which you belong
Legal or public offices held
Are you a current member of DRI, The Voice of the Defense Bar?  Yes  No
Free 1-Year KADC Membership Promotion: Lawyers who are members of DRI, but who have never been a KADC member,
will receive a free one-year membership in KADC (a value of up to $190). Please check here if you are a current DRI Member
and would like 1-year free KADC membership (pending confirmation).
Yes
No
Free 1-Year DRI Membership Promotion: Attorneys who join KADC and have not previously been a member of DRI, the
Voice of the Defense Bar, are entitled to a free 1-year membership with DRI. After the free 1-year membership expires, attorneys
have the opportunity to renew or decline to continue DRI membership when DRI sends an invoice for future dues. I authorize
KADC to submit this membership application to DRI on my behalf to obtain a free 1-year DRI membership, if I have not
previously been a DRI member (a $160-$285 value).  Yes  No
Referred by (name of referring KADC member(s), if applicable)
I devote a substantial amount of my professional time to representation of business, insurance companies or their insureds,
associations or governmental entities in civil litigation. I have read the above and hereby make application for individual
membership. Signature of Applicant______________________________________________ Date_________________
This application, together with membership fee, should be mailed to:
Kansas Association of Defense Counsel,
825 S. Kansas Ave., Suite 500, Topeka, KS 66612
AMOUNT DUE
Total Due $______________
PAYMENT METHOD
My check for $_______________ is enclosed
Please bill me (your membership will be inactive until KADC receives payment).
Please Charge My: □ VISA □ MASTERCARD
Credit Card Number_________- ________- _______ - _______
Expiration Date_____/_____
Application for Law Student Membership
 Mr.  Ms.
Name
Law School
Address
City ________________________ State _______ Zip Code __________
Telephone _____________ Email
Permanent Mailing Address ____________________________________
__________________________________________________________
OPTIONAL: KADC is committed to the principle
of diversity in its membership and leadership.
Accordingly, applicants are invited to indicate which
one of the following may best describe them:
African American
Hispanic
Caucasian
Asian American
Native American
Other _____________
Date of Birth ______________________
month/day/year
Expected graduation date _________ (Student membership expires 6 mos after graduation)
Future area(s) of practice, if known _________________________________________________________________________
Associations, professional organizations or student law societies to which you belong _________________________________
____________________________________________________________________________________________________
Bar associations, professional organizations or law societies to which you belong
Are you a student member of DRI, The Voice of the Defense Bar?  Yes  No
Referred by (name of referring KADC member(s), if applicable)
I have read the above and hereby make application for individual membership. I am currently registered as a student pursuing
a J.D. at the school identified above.
Signature of Applicant____________________________________ Date_____________
Individual law student membership in KADC – $20 / yr
This application, together with membership fee, should be mailed to:
Kansas Association of Defense Counsel,
825 S. Kansas Ave., Suite 500, Topeka, KS 66612
AMOUNT DUE
Total Due $ 20
PAYMENT METHOD
My check for $ 20 is enclosed
Please bill me (your membership will be inactive until KADC receives payment).
Please Charge My: □ VISA □ MASTERCARD
Credit Card Number_________- ________- _______ - _______
Expiration Date_____/_____
AMICUS CURIAE BRIEF REQUEST FORM
The Kansas Association of Defense Counsel’s Amicus Curiae Committee and its Board
of Directors evaluate potential amicus curiae participation on appellate matters involving
issues of substantial interest to KADC. If you would like KADC to consider preparing
and filing an amicus brief, please complete this Request Form in its entirety, including
submitting a copy of the underlying dispositive ruling subject to review and, if available,
the Docketing Statement and appellate briefs.
Amicus Participation Requested By:
Name
Law Firm/Organization
Address
City __________________________________ State _______
Zip Code __________
Telephone ____________________ Email
Requestor’s relationship to or involvement with the appellate matter, including
disclosure of any personal or professional interest or conflict of interest:
Appellate Case Information:
Case Caption/Case No.:
Appellate Court where case is pending: ______________________________________
District Court where case originated: ________________________________________
Counsel for Appellant(s): _________________________________________________
Counsel for Appellee(s): _________________________________________________
Briefing deadlines and oral argument date, if known:
Brief recitation of the facts of the case:
Requested KADC Participation:
Issue(s) on appeal and specific issue(s) that the requestor asks KADC to address:
Brief statement of the principles of law to be supported, together with an explanation of
the reasons this case is appropriate for KADC participation:
Identify any potentially-dispositive issues that the appellate court could decide before
reaching the issue of substantial interest to KADC:
Identify all KADC Amicus Curiae Committee members or Board members with whom
the requestor has communicated regarding this case, if any:
Additional information:
(Optional): Recommend a KADC member who may be appropriate to author the brief:
________________________________________________________________
(Name)
(Law Firm)
______________________________________________________________________
(Phone Number)
(Email)
Submit with this completed Request Form the underlying dispositive ruling
subject to review and, if available, copies of the Docketing Statement and
appellate briefs filed in the case. If the Docketing Statement and appellate briefs are
not yet available, the requestor shall provide them when they become available. Other
materials shall be provided to the Committee if requested.
Submit to: (1) the KADC Amicus Curiae Committee Chair; and (2) the KADC
Executive Director. Submission may be satisfied via electronic means. The email
address for the Committee Chair, Anne Kindling, is [email protected]. The
email address for the KADC Executive Director, Brandy Johnson, is [email protected].

KADC Kansas Defense Journal - Kansas Association of Defense

Transcription

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