March/April 2016 - South Dakota Trial Lawyers Association

March/April 2016
ISSUE 285
Inside this issue……
An Interview with Judge Zell — page 6
Litigating Trust Disputes in
South Dakota—page 7
Why is a Plaintiff treated like a Roman
Slave? - page 9
Legislative Wrap Up— page 12
Annual Seminar—page 14-17
Call for Board of Governors
Nominations— page 22
and so much more…..
What is Trending Now in Trial
2016 SDTLA Annual Seminar
& SDTLPAC Golf Tournament
May 12-13, 2016
Lodge at Deadwood
Deadwood, SD
Come for a round of Spring golf in the beautiful Black
Hills and stay to enhance your legal ‘skills’ at our CLE
with John Romano as our premiere speaker and
some gaming! Your golf game may be sub-par, but
the CLE is bound to be a hole-in-one!
SEE REGISTRATION
Pages 14-17
March/April 2016
Page 2
P r e s i d en t ’ s M ess ag e … .
By Steven C. Beardsley
WHISTLEBLOWING
Officers
President: Steven C. Beardsley
President-Elect: Margo T. Julius
Secretary-Treasurer: Ryan Kolbeck
Board of Governors
Timothy Rensch, AAJ Delegate
Aaron D. Eiesland, AAJ Delegate
Clint Sargent, AAJ Governor
Terrence R. Quinn, AAJ Governor
Nathan R. Oviatt, AAJ Young Governor
Stanton A. Anker
Amy R. Bartling
Michael S. Beardsley
Casey W. Fideler
Alecia E. Fuller
Raleigh E. Hansman
Jason KW Krause
Melissa B. Nicholson Breit
Kasey L. Olivier
Robbie J. Rohl
McLean Thompson Kerver
T.J. Von Wald
Joshua G. Wurgler
Past Presidents
Immediate Past President
G. Verne Goodsell
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—Steven S. Siegel
Stephanie E. Pochop
Association Office
104 W Spring Creek Dr — PO Box 1154
Pierre, SD 57501-1154
605-224-9292
sdtla@mncomm.com (email)
Sara Hartford—Executive Director
My guess is that most lawyers in South
Dakota have only heard about whistleblowing against employers. It is prevalent
in various agencies, including the Internal
Revenue Service, Occupational Safety
and Health Administration, Securities &
Exchange Commission, and others.
Recently, a medical device manufacturer
admitted bribing doctors and hospital to
induce them to buy products. This case
involved endoscopes. The former employee was fired after raising concerns about
the bribes. He then filed a whistleblower
lawsuit.
The endoscopes are used in the treatment and discovery of cancer.
People are subjected to equipment that may not be the best tool, but
is being used anyway, because of the bribes.
The fines totaled more than $640 million. Of that, the whistleblower
received $51.1 million of the settlement. The amount is not as significant as the fact that watching over the acts of large corporations is
more important than ever.
For many years, attorneys have policed large corporations through
product liability lawsuits. These are incredibly expensive and longlasting endeavors. There is no question attorneys have made products safe by their product liability lawsuits.
Whistleblowing can also contribute to peoples’ safety. The incentive
for whistleblowing includes payment to the whistleblower. But the byproduct is the identification of various fraud and other illegal activity.
The hope is that companies will actually abide by the law because of
the fear that huge fines will result if they don’t.
The Dodd-Frank Act specifically states that employers may not fire,
demote, suspend, threaten, harass, or discriminate against an individual who provides information to the SEC. Whistleblowers who suffer
from employment retaliation may sue for reinstatement, back pay, and
any other damages that occur. Many times the identity of the whistleblowers themselves can be protected.
Lawyers have been the watchdogs of corporations for many years.
That can and should continue with the whistleblower program.
March/April 2016
Page 3
EDITOR’s Notes & Comments
Marie H. Ruettgers
Spring is here. New life. New articles. New contributors to The Barrister!
Thank you to Mark Meierhenry for his fantastic article on “assumption of the
risk.” Anything informative that makes you laugh is well worth the time to read.
Thanks, Mark. Thank you also to Brendan Johnson and his partners at Robins
Kaplan for their article on litigating trust disputes.
Thank you also to the Honorable Judge Bradley Zell for taking far more than the
30 minutes he promised me for his interview, and sharing his funny stories. I
hope that you enjoyed being interviewed as much as I enjoyed interviewing you.
I have a new respect for pole vaulting now. Running full blast with a long pole in
your hands, jamming into the ground, and then flying over it backwards and upside down takes far more courage than the average person can muster.
Although, sometimes trial work feels very similar. Especially the flying backwards and upside down part.
Enjoy the weather and let’s keep our fingers crossed that we don’t relapse back into winter. Judge Zell has
some fishing to do.
Marie
Toast of the Trial Lawyer Award
Seeking Nominations
The SDTLA Board of Governors is accepting nominations for the Toast of Trial Lawyers annual
awards selected from member nominations. SDTLA is seeking nominations for lawyers who deserve special recognition for an act or acts of outstanding service to their community, profession or
client(s) over the past year. The awards are given each year at the Annual Meeting in June. Multiple recipients are possible. Please send a letter with a brief synopsis of your nomination's exceptional service or representation for use by the selection committee, which is made up of five SDTLA
members appointed by the president. Nominations must reach the SDTLA office by May 1, 2016 to
be considered. Mail them to SDTLA, Trial Lawyer Toast Award, PO Box 1154, Pierre, SD 575011154 or email to sdtla@mncomm.com.
NOTE TO YOUR ACCOUNTANT:
The NON-Deductible percentage
Of your paid dues for the FY 14/15
36%
March/April 2016
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
Alicia 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
McLean Thompson Kerver
Eric C. Schulte
Tim Rensch
Stephanie Pochop
Richard Casey
Ryan Kolbeck
June 2014
Clint Sargent
Raleigh Hansman
Ronald Parsons
Joseph Kosel
Page 4
SDTLA Calendar of Events
April 14
2016
Board Conference Call
May 12
Board Meeting, 8 am MT, Lodge at Deadwood
May 12—13
SDTLA Annual Seminar & PAC Golf Tourney
Lodge at Deadwood
June 22
Board Meeting at Bar Convention
Sioux Falls, 11 am
June 23
Annual Meeting and Elections
Ramkota Sioux Falls
July TBA
Board conference call
August TBA
Board meeting, 11 am, Vermillion
1Ls Event 1pm, USD Law School Courtroom
September TBA
Board conference call or meeting
HURRY!
The SDTLA Room Block
at the Lodge of Deadwood will be
released April 11!!
Call to reserve your room today!!
877-393-5634
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.
March/April 2016
Page 5
SUSTAINING MEMBERS
Scott A. Abdallah
Michael C. Abourezk
Grant G. Alvine
Kenneth E. Barker
Steven C. Beardsley
John P. Blackburn
John William Burke
Michael J. Butler
Renee H. Christensen
J. Michael Dady
Gregory A. Eiesland
Aaron Eiesland
Jay R. Gellhaus
G. Verne Goodsell
Scott N. Heidepriem
Scott G. Hoy
John R. Hughes
Gary D. Jensen
Brendan V. Johnson
Steven M. Johnson
George Johnson
Margo T. Julius
David J. King
Ryan Kolbeck
Jeff A. Larson
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
Thomas J. Von Wald
Thomas K. Wilka
Michael A. Wilson
James D. Leach
Brad J. Lee
Michael F. Marlow
Lee C. 'Kit' McCahren
Mark V. Meierhenry
Bret C. Merkle
N. Dean Nasser
James S. Nelson
Melissa B. Nicholson
Stephanie E. Pochop
Terence R. Quinn
Timothy J. Rensch
James C. Roby
Sustaining members pay $700 in dues each year, which entitles them to a discounted attendance at the Association’s annual 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
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
Beardsley Jensen & Von Wald
Dorothy & Krause
Goodsell Quinn
Heidepriem Purtell & Siegel
Johnson Abdallah Janklow
Johnson Pochop & Bartling
Meierhenry Sargent
Robins Kaplan
Scott Hoy
Turbak Law Office
$900 ANNUAL
Gary D. Jensen
Nancy Turbak Berry
$600 ANNUAL
Terry L. Hofer
Margo T. Julius
Mark V. Meierhenry
James C. Roby
Michael J. Schaffer
Whiting Hagg & Hagg
Michael A. Wilson
$500 ANNUAL
DeMersseman Jensen Tellinghuisen
& Huffman
Nicholson Tschetter Adams & Nicholson
Plastic Surgery Associates
Steven S. Siegel
$300 ANNUAL
G. Verne Goodsell
Wm. Jason Groves
$250 ANNUAL
Hoy Trial Lawyers
Johnson Eiesland Law Office
Lynn Jackson Shultz & Lebrun
Waltner Kolbeck Law Firm
$180 ANNUAL
Alecia E. Fuller
Brad J. Lee
$120 ANNUAL
Richard A. Engels
Robert B. Frieberg
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
Terry Quinn
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 W. Bastian - 2012
Hon. David Gilbertson -2013
Hon. John K. Konenkamp—2014
Hon. Janine Kern—2015
TRIAL LAWYERS OF THE YEAR
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
13-14
14-15
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
Linda Lea Viken
Clint Sargent
March/April 2016
Page 6
The Honorable Bradley Zell
Interview by Marie Ruettgers
The Honorable Bradley Zell is writing his life story for his family. “I’ve already selected the title: “From the Melon Patch to the Bench.” Judge Zell grew up in Forestburg,
South Dakota, on the family farm where he and his brothers helped with row crops,
dairy cattle, stock cattle, hogs, and an 80 acre melon patch. He fondly remembers
planting and tending the melon patch by hand as a kid, where the family grew watermelon, muskmelon, and pumpkins.
The youngest of four boys, Judge Zell excelled in the pole vault in high school track and field. “Believe it or not, I was 5
foot 10 inches and 135 pounds when I graduated from high school. I wasn’t fast as I didn’t have the lungs, so I did field
events including pole vault and the triple jump.” Judge Zell signed a National Letter of Intent to compete in track and
field for the University of South Dakota as a pole vaulter, but after his first semester at USD Judge Zell transferred to
South Dakota State University. Because of his transfer between the two universities, Judge Zell was ineligible to compete in the spring track and field season. “I showed up to practice anyway and eventually became an assistant coach
for the SDSU women’s track team.” Giving up his competitive pole vaulting career for coaching turned out well for
Judge Zell. He eventually married Elaine Kempf Zell, a member of the women’s track team.
After graduating from SDSU with a Bachelor of Science in history and political science, Judge Zell considered returning
to the family farm. But, the farm crisis in the late 1970s made it impossible for the family farm to support his father, two
brothers and Judge Zell. As Judge Zell tells it “Dad said ‘no room, figure out something else.’” That something else
was law school.
After graduating from the USD School of Law in 1985, Judge Zell served as a law clerk in the 7 th Circuit for thenPresiding Judge Marshall Young, and Circuit Court Judges Merton B. Tice, Roland Grosshans, Jeff Davis and John
Konenkamp. Elaine followed him to Rapid City where she worked as a teacher and a coach.
The young couple wanted to stay in Rapid City, but the economy in the 1980s again played a big role in Judge Zell’s
life. Judge Zell, like many other new lawyers in the mid 80s, struggled to find a position after his clerkship and found
himself competing for limited openings with his unemployed classmates and a new class of 1986 graduates. A law
school classmate and friend, Jeff Fox, was lobbying in the legislature at that time and knew Representative Scott Heidepriem was looking for help for his Miller, SD law firm. Scott asked Jeff if he knew of any young lawyers with a farming
background who might want to practice law in a small community such as Miller. The rest is history. Judge Zell joined
the Heidepriem Widmayer Law Firm in Miller where he practiced until his appointment to the bench over 12 years ago.
“The practice of law has changed since I became an attorney. There are two significant changes: technology and civility.” Judge Zell recognizes the need for and improvement to the practice of law technology has brought. But, he cautions practitioners that with the speed and convenience of email and electronic filing negative consequences can occur
to the professional practice of law and the civility within the profession. “Technology is causing us to move away from a
formal motions practice to an informal email practice. Attorneys set forth arguments about facts not sworn under oath or
otherwise in the record through emails and forget those “facts” are not evidence and never make it into the record if not
included in affidavits filed with the court.” A very informal and sloppy practice occurs when counsel seeks a remedy
from the court in such a manner.
Judge Zell also notes the effect technology has had on clients, whose expectations are analogous to fast- food restaurants where the clients expect “drive thru justice” when it comes to how quickly clients expect an outcome or ruling from
the Court. “The expectation has become ‘I’ve placed my order, where’s my justice?’” The speed of technology affects
the perception of how fast the legal system should move, and Judge Zell advises lawyers to manage their clients’ expectations.
When it comes to technology, Judge Zell adds “technology makes it possible to type and send without thinking or time
to reflect before hitting send.” Animosity that starts in emails, can move into depositions or discovery and eventually
poison or taint personal interactions between counsel. “Think before sending,” he cautions.
Judge Zell’s advice to new practitioners is “to jump in and try a little of everything. Then as you approach 8 to 10 years
in practice, you should be more selective in the areas in which you practice, and have the experience necessary for
good case selection.” Judge Zell believes reflection on the front end of a case is critical. He notes, “Attorneys should
ask themselves at the front end: ‘how should I present this case?’ and try to visualize the answer before accepting the
case.”
Continued on page 20
March/April 2016
Page 7
Litigating Trust Disputes in South Dakota
By Brendan V. Johnson, Anthony A. Froio and Manleen Singh
The greatest transfer of wealth in the history of the world is underway. According to a study from the consulting firm
Accenture, baby boomers are expected to transfer approximately $30 trillion in assets to their heirs over the next 30-40
years. South Dakota is poised to be a focal point in that transfer of wealth. In 2013, there were 65 trust companies
chartered in South Dakota, most of which had been authorized over the past 15 years, and total assets surpassed $120
billion. Putting that in context, at the same time Minnesota had combined assets of just over $7 billion with three nonbank trust charters, and there had been no new charters since 2005. (https://www.minneapolisfed.org/publications/
fedgazette/in-south-dakota-we-trust). The purpose of this article is to provide a brief history of how South Dakota became a magnet for trust assets, and then to discuss strategies for litigating trust disputes.
Understanding South Dakota Dynasty Trusts
Several states, including Minnesota, still have remnants of the arcane “rule against perpetuities.” As you may recall,
this essentially requires that a trust extinguish and funds be distributed within a limited period of time, generally less
than 100 years from the formation of the trust. In application, the rule has many complexities that risk the effectiveness
of the trust and minimize tax savings that would exist if the trust could last longer. In 1983, South Dakota abolished the
rule against perpetuities. See SDCL 43-5-8. This allowed for the creation of a true dynasty trust, a trust that lasts in
perpetuity. The popularity of South Dakota dynasty trusts has also been the product of our state tax code. Of all the
states that allow for true perpetual trusts, South Dakota is the only one that does not impose any type of tax on trust
assets. In sum, properly implemented, a South Dakota dynasty trust is one of the most powerful estate planning tools in
existence.
Litigating Trust Disputes in South Dakota
As South Dakota’s trust industry matures, it is expected that we will also become home to an increasing number of highstakes trust disputes. The challenge for South Dakota attorneys interested in developing a trust litigation practice is that
in South Dakota, the court is required to seal court filings and orders relating to trust actions if requested by a living trustor or by any fiduciary or beneficiary. See SDCL 21-22-28. These documents are generally protected in perpetuity and
are not available to the public. This is an added benefit for those interested in a South Dakota dynasty trust, but it provides a practical challenge to attorneys looking to develop their practice in this area of the law. Accordingly, the remainder of this article will provide examples of trust litigation that our firm has been involved with outside of South Dakota
and some of the most important lessons learned.
Examples of Trust Disputes
In one matter, we represented a trustee of a testamentary trust with two categories of beneficiaries. Class A beneficiaries (several charitable entities) received the proceeds of the sale of real estate, while Class B beneficiaries (heirs and
friends of the settlor) received the remainder of the trust assets after the payment of specific distributions and trust expenses. After the death of the settlor of the trust, the trustee discovered a serious environmental hazard on the real estate that required extensive and expensive clean-up before it could be sold and the profits distributed. The trustee allocated the cost of the clean-up as a general trust administration cost. Class B beneficiaries disputed the allocation, arguing that it should have been charged against the proceeds received from the sale of the real estate. Despite the trustee’s numerous attempts to reach an out-of-court settlement, Class B beneficiaries filed suit in a court of general jurisdiction. The complaint included allegations of breaches of fiduciary duty for such allocation of clean-up costs, misappropriation of trust assets, and several other claims. While ruling that the trustee did not breach his fiduciary duty, the court
held that the clean-up costs should have been deducted from the sale proceeds only.
In another matter, a husband and wife owned and controlled a one hundred-year old family funeral home business. The
couple created a testamentary trust with their two sons as co-trustees. The trust provided that upon the death of the
surviving spouse, their two sons would inherit the family business and their three daughters would receive reasonably
equivalent value from the sale of all remaining assets. Not only was there a dispute about what “reasonably equivalent
value” meant, but the co-trustees had competing claims regarding operation of the business. As a result, the three
daughters and one co-trustee filed separate suits, resulting in competing litigations in different courts. On behalf of the
other co-trustee, we filed suit in probate court, seeking instructions on valuation of the assets. The parties successfully
mediated the valuation issue. However, the co-trustees could not agree on the terms of operating the business and ran
the risk of liquidating the business. Ultimately, during the course of litigation and on the eve of trial, the two brothers settled their dispute with the operational brother buying out the other.
We also represented a trustee facing allegations of breaches of fiduciary duty and unfair dealing. In this matter, the wife
died first, and the husband created an estate plan whereby he deliberately disinherited one child and bequeathed his
assets in trust for the benefit of his remaining five children. His assets included $2million in cash, 3 beachfront
Continued on page 13
March/April 2016
Page 8
March/April 2016
Page 9
WHY IS A PLAINTIFF TREATED LIKE A ROMAN SLAVE?
By Mark Meierhenry
In the Burhenn v. Dennis Supply 2004 S.D. 91 685 N.W.2d 778 appeal, the Supreme Court knocked my arguments out
like an Alaska fisherman using a baseball bat on a 20 pound Halibut. My partner, Clint Sargent, said “No. It was worse
than that.”
Now twelve years later, I was reminded of the concept of “assumption of the risk” by waiting my turn for a hearing. The
defense lawyer was arguing the defense. Nothing sticks with a trial lawyer like a loss.
South Dakota remains as one of three jurisdictions to retain the common law defense of assumption of the risk after the
adoption of comparative negligence theory. Nebraska alone has a statute approving the defense.
The purpose of the English common law assumption of risk defense was “to protect employers in the industrial revolution from being sued by workers.”1 The Romans invented the legal defense. The English adopted the Roman Conqueror’s law from antiquity. The Romans developed the legal defense to protect masters from slaves. Free men who entered
slavery voluntarily were prevented from recovering damages against their master because of their master’s negligence.” 2
Not many slaves file cases in South Dakota anymore!
The Comparative Negligence Manual describes the defense thusly:
Assumption of risk has evolved from a simple concept into a somewhat complicated one. This evolution
occurred because courts and society began to view as unfair the existing rule precluding a plaintiff from
recovering any damages where plaintiff knowingly accepted the risk. As courts developed an approach
that apportioned fault between plaintiff and defendant, known as comparative negligence, assumption
of risk evolved into several sub-concepts, which resulted in such confusion and differences among different jurisdictions that some courts suggested either abolishing the concept, or precluding the jury from
being instructed on it for fear of hopelessly confusing them. 3 4
My aim in this short article is to heighten the discourse on this illogical and little understood defense. All too often, plaintiff lawyers permit such an instruction to be given when the defense has no evidence to support its submission.
People like visual information. States that have adopted comparative negligence and the judiciary retains the defense
are shaded in stripes. States whose judiciary has abandoned the defense are white.
Continued on page 18
March/April 2016
Page 10
South Dakota Trial Lawyers Association
Notice of 2015-2016
MEMBERSHIP DUES
DUE July 1, 2015
CATEGORIES
Check one:
_______ Legal Support Staff …………………. $50.00/ year
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________ 3-5 years in Practice……..………..$100.00/year
_____ Public atty employed over 2 years*……$100.00/year
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* All public attorney members must be employed on a full-time basis by the Federal, State, county or municipal
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** 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
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*** 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.
March/April 2016
Page 11
March/April 2016
Page 12
2016 Legislative Report
By Roger Tellinghuisen
Another year of work by the South Dakota Legislature has drawn to a close. The number of bills introduced was remarkably low this year – even lower than last year. There were 247 House bills and 172 Senate bills for a total of 419
which compares to 429 last year and 448 from the year before. Again this year, like last year, there were no real “tort
reform” bills introduced. We did not introduce our proposed amendment to our comparative negligence statute this year
(more on that below). Of the bills introduced, we actively tracked 50 bills as compared to 42 bills tracked last year.
Sara Hartford’s March 12th Legislative Update lists all the bills we tracked and gives their status as of that date. As of
this writing, I am not aware of the Governor having vetoed any of the bills we were tracking that reached his desk.
To determine the final outcome of a Bill, go to the Legislative Research Council’s website at “legis.state.sd.us”, click on
“Legislative Session”, select “2016” and “Bills”. Then you can either scroll through the entire list of bills by clicking on
“Full List” in the menu to the left or you can use the “Quick Search” feature by typing in the specific bill number you are
interested in (without typing in the prefix “HB” or “SB”). Scroll to the bottom of the bill status and you will see the bill’s
final disposition.
Last year’s HB 1103 was our bill aimed at amending our existing comparative negligence statute found at SDCL 20-9-2
to remove the bar to recovery in the event a plaintiff’s contributory negligence was more than “slight” in comparison to
the negligence of the defendant. Although the bill passed out of the House last year with a strong vote in favor (54-13),
it ran into serious trouble over in the Senate where it only garnered 9 votes for passage. This year, a decision was
made by the board, upon my recommendation, that we not put the bill in.
My reasons for recommending that we not reintroduce the bill this year basically came down to: 1) the membership in
the Senate was exactly the same this year as it was last year so the chances of holding the 9 who voted for it last year
AND getting an additional 9 who voted against it last year to change their vote was insurmountable; and 2) I’m sensitive
to asking legislators who have supported us in the past on what turned out to be a losing effort to support us again when
the likelihood of a different result is so poor. Additionally, 1 of the “yes” votes we got last year, Dan Lederman, resigned
after session last year, so that only left us with 8 of the “yes” votes from last year. It’s a matter of not unnecessarily using up the “chits” we work so hard to accumulate with legislators on a matter that doesn’t stand a chance of passage
this particular year.
This year is an election year and 4 of the senators who voted against us last year are term limited out, so they will be
replaced. We’ll need to see how the elections for the legislature turn out this November to see whether the make-up of
the Senate is better for us next year and make a decision whether the timing is right to once again reintroduce this bill.
Following are some of the other bills taken up by this year’s Legislature (they’re in no particular order of significance):
HB 1077 - An Act to grant limited immunity from arrest and prosecution for certain related offenses to persons
who assist certain persons in need of emergency assistance or who are themselves in need of emergency assistance. This bill would have granted limited immunity to persons from arrest or prosecution for misdemeanor possession, inhalation, or ingestion of a controlled substance if that person contacts law enforcement or emergency medical
services and reports that a person is in need of emergency medical assistance as the result of a drug overdose. This bill
passed the House on a 59 – 6 vote, but didn’t make it out of the Senate Judiciary committee where it died on a 2 – 5
vote.
HB 1078- An Act to grant limited immunity from arrest and prosecution for certain alcohol related offenses to
persons who assist a person in need of emergency assistance or who are themselves in need of emergency
assistance. This bill is basically a companion bill to HB 1077, except it deals with persons who are in need of emergency medical treatment as a result of alcohol over indulgence. It provides immunity to persons from prosecution for
underage consumption, open container or public intoxication if that person contacts law enforcement or an emergency
medical services provider and reports that a person is in need of emergency medical assistance. The bill also provides
immunity to an underage person who basically self-reports that they are in need of emergency medical services as a
result of alcohol consumption.
SB 94 – An act to repeal the death penalty. As I predicted in last year’s Legislative Update, this bill came back and
would have prospectively repealed the death penalty. Like last year, there were a number of “traditional” opponents to
the death penalty who spoke in favor of the bill, including myself. One of the more interesting presenters was a former
Supreme Court Justice, Norman Fletcher, from Rome, Georgia. He spoke of the many death penalty cases he presided
over and how he has come to believe it’s not an appropriate penalty for a civilized society to impose. The testimony
from both sides was emotional and heart wrenching at times. The bill was once again started in the Senate this year as
it was last year and unfortunately, the result was the same - the bill was killed on a 7- Continued on page 21
March/April 2016
Page 13
Continued from page 7
Properties and his residence. The trustee was a neutral, third-party, charged with paying income to the 5 children for
their lifetimes. The trustee also had the authority to invade the principal for the “serious health or life-altering circumstances” of the 5 children. Finally and to the extent all beneficiaries agreed, the trustee was authorized to sell any of the
beachfront properties to any one or more of the beneficiaries. A dispute arose as to the trustee’s attempt to sell the
beachfront properties and faced accusations that the sales were not arms’ length and of preferential treatment to certain
buyers.
Lessons Learned
When a trust relies on valuation of assets for distributions to beneficiaries, such as in the last two examples in the previous section, a trustee should immediately commission an appraisal completed by a reputable and qualified appraiser
using commercially acceptable valuation methods and procedures. Without it, disputes will most definitely arise as to the
reasonableness of the trustee’s actions, whether the sale price of an asset represented fair market value, and delay of
distribution payments, to name just a few.
Trustees should be wary of a catch-22 type situation when the trust has multiple beneficiaries. Trustees have several
duties with which they must comply while administering the trust, including the fiduciary duty and the duty to treat all beneficiaries equally and in strict accordance with the trust terms. But, at times, compliance with all duties may force a trustee into a situation where any beneficiary could raise an issue. Take the first example of a trust dispute in the previous
section. The trustee allocated the clean-up cost as a general trust administration cost. It was reasonable for her to do so
since the trust required her to sell the property and distribute the proceeds. However, it is equally reasonable for the trustee to have charged the clean-up costs against the sale proceeds since the two are intertwined. The trustee’s decision
has a necessary impact on the amount of distributions. Whichever allocation the trustee chose, one class of beneficiaries
would be able to argue that the trustee did not treat them equitably, in accordance with the terms of the trust, or as intended by the settlor. Trustees must be mindful that this type of situation could arise in any trust with more than one beneficiary.
One potential resolution of the catch-22 type situation described above is going to court early. One lesson we have
learned is that seeking instructions from the probate court, or other court of specialized jurisdiction, early in the administration of a trust may be the most efficient and cost-effective way to resolve disputes with beneficiaries. This lesson
may seem counter-intuitive as formal court proceedings have been known to be lengthy and expensive. But, if done with
careful thought and consideration, going to court early may avoid a lengthy and expensive trust administration process
before a trust can be closed. And going to court early is key. Trustees tend to wait too long before going to court, allowing disputes to simmer. But, trust disputes are not like red wine – they do not improve with age.
Going to court early is most effective when a trustee is faced with particularly aggressive beneficiaries whose only focus
is on the bottom line – the dollar amount of their distributions. With a court order in hand, such beneficiaries will have no
choice but to accept the distributions, rather than refusing to assent to the accounting and forcing the trustee to continue
to manage the trust assets and incur cost. If the trustee does not go to court first, she risks being brought into court by
the aggressive beneficiaries, who may deliberately choose a court of general jurisdiction, as opposed to a specialized
court with the relevant experience. Such proceedings are almost always unduly lengthy and expensive.
Trustees must also be careful in their choice of litigation counsel. While a trust typically allows a trustee to hire counsel,
the trustee must always act reasonably. A trustee cannot accrue substantial legal fees on the assumption that the trust
will cover the cost. Instead, the trustee must carefully choose a law firm, with legal fees reasonable and proportionate to
the dispute at issue. Trustees should insist on a reasonable budget and ensure that counsel does not exceed that budget. Consequences of a trustee’s failure to keep a close watch on growing legal fees include being found to have
breached the fiduciary duty and being held liable for payment of the legal fees, whether charged against compensation
owed to the trustee or direct payment from the trustee to counsel.
About the Authors:
Anthony A. Froio, Robins Kaplan LLP, Managing Partner, Boston Office, Member of the Executive Board
Brendan V. Johnson, Robins Kaplan LLP, Co-Chair of Government and Internal Investigations Group, South Dakota Office
Manleen Singh, Robins Kaplan LLP, Associate, Boston Office
March/April 2016
Page 14
What’s Trending Now in Trial
2016 SDTLA Annual Seminar & SDTLPAC Golf Tourney
May 12-13, 2016—Lodge at Deadwood– Deadwood, SD
Don’t miss out on the fun and networking during this year’s SDTLA Seminar! “What is Trending Now in Trial” is
designed for all ages and practice areas! The Education Committee has engaged nationally recognized speakers to educate and revitalize your practice. John Romano will discuss how to infuse your trial practice with old
and new trends. John is an internationally recognized trial lawyer and speaker. He represents his clients with
vigor, dignity and professionalism. His passion for the law and his practice has been passed on to his trial lawyer sons and the members of the Romano firm.
The Hon. Jeffrey Viken will share his professional journey from private practice to his appointment to the Federal bench. As the present Chief Judge of the District of South Dakota, Judge Viken will also impart his observations from the last few years as well as what he sees on the horizon.
Don Bauermeister will present on the application of recent cognitive neuroscience discoveries to understanding
the art (and now science), of persuasion in the courtroom. Cognitive neuroscience is the scientific study of
how the physiology of the brain produces the phenomenology of consciousness. The lecture will introduce
cognitive neuroscience briefly to those who are new to the subject. It will then proceed to discuss what recent discoveries in this area of science have to tell us about how jurors and juries process information to arrive
at the motivated conduct we think of as their verdict.
You also do not want to miss the 2nd Annual SDTLPAC Golf Tournament at the beautiful Spearfish Canyon
Country Club. Springtime in the Black Hills… golf with friends… what better way to recharge? From novice
(Steve Beardsley) to pro (Clint Sargent), there is a golf cart waiting for you!
Thursday, May 12, 2016
Agenda
9:00a.m.
9:30 am
Registration – Pine Crest C
SDTLA President’s Welcome – Steve Beardsley, Rapid City
9:35a.m.
Connectionology - The Art and Science of Communicating With Jurors
John Romano, West Palm Beach, Florida
10:30 a.m.
BREAK
11:00 a.m.
Hon. Jeffrey Viken, Chief Judge of the U.S. District of South Dakota
11:30 a.m.
Seminar adjourns… Golfers & non-golfers adjourn to bus for transportation to Spearfish Country Club
Lunch at the course – (included in registration)
1 pm
Shotgun Starts to 2nd Annual SDTLPAC Golf Tournament (must pre-register)
5:15 pm
6:00 pm
Cash Bar opens – Pine Crest A
Networking Reception – (included in tuition) - Pine Crest A
Tournament Awards and other excitement!!!
6:45 p.m.
Dinner (must have pre-registered) – Pine Crest A
3rd Annual Storyteller Award – all speakers
Heavy gaming to follow!
Friday, May 13 – Pine Crest C
9:00 a.m.
Jury Selection, the Neuroscience of Decision Making and Storytelling
Don Bauermeister, Bremerton, Washington
10:00 a.m.
BREAK
10:15 a.m.
Bauermeister Continued….
11:15 a.m.
Romano Part 2
Noonish
adjourn
SEMINAR REGISTRATION FEES: (All registrations include the banquet dinner & roast)
____ $100.00 Sustaining members
____ $175.00 members over 3 years in practice
____ $150.00 members less than 3 years in practice
____ $100.00 public attorneys
____ $175.00 Minnesota, Iowa, Nebraska & North Dakota TLA members
____ $ 50.00 Judges, Legal Support staff & USD Law School Students
____ $100.00 Legal Support Staff non-member
____ $ 50.00 Spouses/Guest Banquet only*
*must pre-register
ADDITIONAL FEES for Golf: (must pre-register)
_____$100.00/per person…this registration includes the golf course lunch, green fees, cart AND a contribution to the
SDTL Political Action Committee which makes contributions 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.
ACCOMODATIONS:
Rooms can be reserved by calling the Lodge at Deadwood at 877-393-5634 and ask for reservations in the SD Trial
Lawyer Association block. The block will be released APRIL11. The SDTLA rate is $99/night plus tax.
Please photocopy and use a separate registration form for each registrant. Return this form and the appropriate fees to:
SDTLA Office
PO Box 1154
Pierre, SD 57501-1154
If you have questions, call (605) 224-9292.
Name_______________________________________
Email Address________________________________
City_____________________State________________
Telephone____________________________________
REGISTER ON-LINE by sending an email message with the above information to sdtla@mncomm.com. Please send
your registration fee by mail to SDTLA, PO Box 1154, Pierre, SD 57501-1154.
March/April 2016
Page 18
Continued from page 9
Below is a part of my brief from 2004, which did not convince our Supreme Court. Please improve it and use it in the circuit courts. Few cases warrant the use of the defense, even as now retained. Finally, ignore the South Dakota pattern
jury instructions on assumption of risk. The South Dakota patterns are simplistic and seldom properly worded to fit the
facts of your case.
This abstract of my brief will give you a template to begin the long road to convince the Court not to continue to treat
plaintiffs like the slaves of Rome.
South Dakota is an island of assumption of risk law. South Dakota is one of only three jurisdictions out of fortysix that had adopted comparative negligence and in which the Judiciary retained assumption of risk as an absolute defense. Davenport v. Cotton Hope Plantation Horizontal Property Regime states that “To date, the only comparative fault
jurisdictions, that have retained assumption of risk as an absolute defense are Georgia, Mississippi, Nebraska, Rhode
Island and South Dakota.” 508 SE2d 565, 571 (SC 1998). Since the 1998 South Carolina Supreme Court review of jurisdictions, Mississippi abandoned assumption of the risk. South Dakota joins Georgia and Rhode Island as the last
three states which retain “judge-made” assumption of risk as an absolute defense to secondary assumption of risk.
Mississippi wrote in 1999, “to hold once again that assumption of risk doctrine is subsumed into comparative
negligence.” Churchill v. Pearl River Basin Development District, 757 So2d 940, 942 (MS 1999). The Mississippi Court
established the view that “the doctrine of assumption of risk should either be subsumed into comparative negligence or
abolished outright and Horton accordingly carried precedential authority in this regard.” Id. at 942 (citing Horton v. American Tobacco Co., 667 So2d 1289 (MS 1995)).
The Supreme Court of Wyoming in 1994 discussed assumption of the risk. The case involved an interpretation
of the newly enacted RECREATION SAFETY ACT in Wyoming. The Court in Halpern v. Wheeldon, succinctly described
the status of assumption of the risk in Wyoming. 890 P2d 562 (WY 1995). The Wyoming Court stated that, “In Wyoming, the absolute defense of secondary assumption of risk (contributory negligence) was abolished when the legislature
adopted the comparative negligence statute. Wyo. Stat. § 1-1-109 (1988) (amended 1994). Secondary assumption of
the risk is a basis for apportionment of fault under the comparative negligence scheme.” Halpern, 890 P2d at 565 (citing
Brittain v. Booth, 601 P2d 532, 534 (WY 1979)).
The Wyoming Supreme Court joined Montana, North Dakota, Minnesota, and Iowa in abolishing assumption of
the risk in negligence actions. The North Dakota Supreme Court observed in Wentz v. Deseth, “the affirmative defenses
of assumption of the risk and contributory negligence are no longer the law of North Dakota and negligence cases are
now governed by the doctrine of comparative negligence.” 221 NW2d 101, 104 (ND 1974).
The Iowa Supreme Court abolished assumption of risk as a defense under comparative negligence:
We hold that in a common-law tort case, in which the defendant raises the issue of plaintiffs negligence,
the elements of “assumed risk” shall no longer be pled and instructed on as a separate defense. The
Continued on next page
March/April 2016
Page 19
Continued from previous page
facts of the case, as they bear on the reasonableness of the plaintiff’s conduct, may well be proper affirmative allegations of plaintiff’s negligence in the answer.
Rosenau v. City of Estherville, 199 NW2d 125, 133 (IA 1972).
The Minnesota Supreme Court likewise abolished assumption of the risk in Springrose v. Wilmore. 192 NW2d
826 (MN 1971). The Minnesota Court departed from precedent. The Court disposed of assumption of risk as a defense.
It stated, “The practical and most important impact of this decision is to mandate that, like any other form of contributory
negligence, assumption of risk must be apportioned under comparative negligence statute,” Id. at 827.
Eighth Circuit Judge McMillian writing the decision in Rini v. Oaklawn Jockey Club, made two wily observations
concerning Arkansas law. 861 F2d 502 (8th Cir 1988). Circuit Judge McMillian observed that at least two things are
commonly said about the doctrine of assumption of risk. Id. at 504. First, it is a frequent cause of confusion. “The second thing that is said of assumption of the risk is that it is not well liked, particularly in recent times.” Id. Judge McMillian
set forth in Rini the state of law of assumption of the risk as defense to tort actions citing numerous commentators and
cases on the subject of the assumption of the risk and comparative negligence.
Nebraska, by statute, has the affirmative defense of assumption of the risk. Neb. Rev. Stat. § 25-21, 185.12 (1995).
Assumption of the risk is a more narrowly applied doctrine in Nebraska than South Dakota.
South Dakota and Nebraska do not have the same general elements of the defense of assumption of the risk. 5
Nebraska Supreme Court holds, “the standard to be applied in determining whether a plaintiff has assumed the risk of
injury is a subjective one based upon the particular facts and circumstances of the event.” 6 The Court in Nebraska Supreme Court offered an historical perspective on assumption of the risk:
Assumption of the risk rests in contract or in the principle expressed by the ancient maxim,
‘volevolenti non fit injuria,’ whereas contributory negligence rests in tort. The former involves a choice
made more or less deliberately and negatives liability without reference to the fact that the plaintiff
may have acted with due care, whereas the defense of contributory negligence implies the failure of
the plaintiff to exercise due care. As stated in some decisions, assumption of risk is a mental state of
willingness, whereas contributory negligence is a matter of conduct. Cassio v. Creighton University,
446 NW2d 704, 713 (NE 1989). Assumption of risk differs from contributory negligence in that a subjective standard is applied to the former and an objective standard is applied to the latter.
Jay v. Moog Automotive, Inc., 652 NW2d 872, 880 (NE 2002) (citing Pleiss v. Barnes, 619 NW2d 825 (NE
2000)); Talle v. Nebraska Dept. of Soc. Services, 541 NW2d 30 (NE 1995). South Dakota’s pattern instruction creates
an objective standard “constructive knowledge” of “the existence of the specific risk.” No other state gives that broad protection to negligent actors. South Dakota should abolish the defense of implied assumption of risk in negligence actions
brought under the comparative negligence statutes.
Continued on next page
March/April 2016
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Continued from previous page
My practice advice is:
1. Discover facts on the defense – early;
2. Test the defense pretrial;
3. Make a summary judgment motion on the defense;
4. Submit proper instruction if the judge allows the defense – do not use the pattern instruction.
Have fun and do better.
Notes
1
Comparative Negligence Manual, § 1:34, supra
2
Comparative Negligence Manual, § 1:34, supra
3
Burhenn v. Dennis Supply, 685 N.W.2d 778 (2004)
4
Comparative Negligence Manual, § 1:34 (3rd Ed.)
5
South Dakota’s pattern jury instruction, sets forth the following elements: 1) that the plaintiff had actual or constructive
knowledge of the existence of the specific risk involved; 2) the plaintiff appreciated the risk’s character and 3) the plaintiff voluntarily accepted the risk having had the time, knowledge, and experience to make an intelligent choice.
6
Nebraska’s elements are, “before the defense of assumption of the risk is submissible to the jury, the evidence must show that
1) knew of the specific danger, 2) understood the danger; and 3) voluntarily exposed himself for herself to the danger that approximately caused the damages. Jay v. Moog Automotive, Inc., 652 NW2d 872, 881 (NE 2002) (citing Pleiss v. Barnes, 619
NW2d 825 (NE 2000)).
Continued from page 6
When in Judge Zell’s courtroom, he appreciates and can tell who is prepared. “Those who can be brief and succinct
are the ones who are well prepared.” He also appreciates attorneys who file pleadings and motions early, before the
deadlines set in scheduling orders. “Giving a judge more time to review and prepare for a hearing or trial is something I
appreciate.” He adds, “The Second Circuit is buried in volume, and that volume makes it difficult for judges to have sufficient time to review everything submitted. Giving the judge a little extra time is greatly appreciated.”
Finally, Judge Zell says “if you want to be good at something, you need to watch and learn from the best. If you want to
be a great basketball player, you study Michael Jordan. If you want to be a great trial attorney, you need to sit, listen,
and watch the best attorneys in our state. You want to watch the jury’s expressions in reaction to what a lawyer is or is
not doing.” He adds, “We all know who the great attorneys are, and we as a profession spend too little time just watching and learning.”
Judge Zell lights up when he talks about his family; and fishing. Mrs. Zell, who teaches
middle school science in Brandon, was honored last year as one of SDSU’s Top 50
Women Athletes. Judge Zell and his wife have four children. Shannon, their eldest
daughter, is a music teacher in Tea. Jennifer is an accountant for a HVAC business in
Sioux Falls. Their son Ben, an entrepreneur, recently sold his business in Miller and is
considering returning to school. Their youngest daughter, Mariah, attends Mitchell College in Connecticut and works part time as a professional model.
Not bad for a once-skinny kid from Forestburg, South Dakota, who grew up tending the
family melon patch.
March/April 2016
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Continued from page 12
2 vote. I don’t know whether this bill will be back again next year, but I suspect it will.
SB 44 - An Act to classify vehicular homicide as a crime of violence. In its original form this bill would have done
exactly as the title implies – it would have made vehicular homicide a crime of violence which would have lengthened
the time a person would serve before they would have first been eligible for parole. This was an Attorney General’s bill
and the Governor’s office came out in opposition because by increasing the time an inmate must serve before they’re
eligible for parole, it would negatively affect prison populations. The bill was extensively hog housed to create a whole
new category of crime called “aggravated vehicular homicide”. This new language was not acceptable to our organization or the South Dakota Criminal Defense Lawyers. As a result of the opposition to this hog housed bill, the bill was
amended back to its original form which, once again brought out the Governor’s office in opposition. Long story short,
when the Senate and the House could not agree, the bill went to a conference committee to see if something could be
worked out. It could not – the Senate voted to approve in the conference committee recommendation which, was to not
concur and to not reappoint a new conference committee which effectively killed the bill for this year.
HB 1135 – An Act to establish venue for certain actions arising out of real property lease agreements. This was
a pretty simple bill that requires a plaintiff to bring a breach of contract action arising out of a lease agreement in the
county where any portion of the real property subject to the lease is located. The justification for the bill was that in
those cases where a landlord has a tenant who moves out of the county where the property under lease is located, the
landlord should not have to go to the expense of bringing their lawsuit for breach of contract in a venue that may be on
the other side of the state.
HB 1167 – An Act to revise certain provisions regarding the use of a suspended imposition of sentence for a
misdemeanor and a felony. This bill will now allow a person to receive a suspended imposition for 1 felony AND for 1
misdemeanor. Under current law, a person was only entitled to a suspended imposition once in their lifetime regardless
of whether it had been used for a felony or a misdemeanor. Now, a person will be allowed to receive 1 suspended imposition for a felony and a misdemeanor.
HB 1084 – An Act to define when concurrent employment may be used to calculate earnings in workers’ compensation cases. This bill was introduced in response to the Supreme Courts holding in Wheeler v. Cinna Bakers,
LLC, 864 N.W.2d 17 (2015) regarding the aggregation of wages in workers compensation cases. The legislature in effect drew a line and established that wages from concurrent employment can be used in workers compensation cases
arising after May 5, 2015 and that such wages could not be used for cases arising prior to May 6, 2015 (the date of the
Supreme Court’s decision).
In closing I would once again like to thank all of you who took the time to comment on specific legislation. Although this
year was not a particularly eventful year for our organization, we did make our presence AND our mission known to the
Legislature. Hopefully, in the years to come, whether it’s with me as the lobbyist for this organization or someone else,
we’ll continue to “fight the good fight” for the folks we represent. It’s important to always remember that the “little guy”
doesn’t have a lobbyist in Pierre and so often times we need to take up the cause on their behalf.
Thank you to Sara for keeping the Legislative Update up-to-date and forwarding the questions and comments that come
in while I’m in Pierre. Once again, thank you to all of you for allowing me to act as your lobbyist once again this year.
Lastly, “thank you” to my wife, Marya, for putting up with me being gone for the better part of two months in the dead of
winter while I get to do something I so thoroughly enjoy!
March/April 2016
Page 22
NOTICE OF NOMINATIONS
The Elections Committee of the South Dakota Trial Lawyers Association
is seeking nominations for the following offices:
President-Elect
Secretary-Treasurer
AAJ Governor 2016-19
AAJ Delegate 2016-18
four (4) At Large Members of the Board of Governors for the 2016-18 term
one (1) At Large Member of Board of Governors in practice
not more than three years/2016-17 term
NOTE: This notice is in lieu of the call for nominations from the floor during the
2016 SDTLA Annual Meeting, June 23, 2016.
If you wish to nominate someone for one of the above offices, fill out the nomination form below and
return it to the SDTLA office. All nominations must be received by May 1, 2016.
All nominees will be notified of their nomination by mail.
A sample ballot will be published in the May/June issue of the BARRISTER.
**********
SDTLA NOMINATION FORM
I, ______________________________________, of _________________________, nominate
__________________________________________________ for the office of
_______________________________________________________________________________
He/She is a member of the __________________________________________ firm
and his/her address and email address is _____________________________________________.
RETURN TO by May 1, 2016:
Elections Committee
South Dakota Trial Lawyers Association
PO Box 1154
Pierre, SD 57501-1154
March/April 2016
Page 23