modl spring 08.qxp - Missouri Organization of Defense Lawyers

Missouri Organization
of Defense Lawyers
P.O. Box 1072 Jefferson City, MO 65102
Phone: (573) 636-6100 Website: www.modllaw.com
Spring, 2008
2008 MODL President’s Message
by Karl W. Blanchard, Jr., MODL President
Blanchard, Robertson, Mitchell, & Carter; Joplin, MO
In my first newsletter
report I indicated a desire
for MODL to develop a
working relationship with
MATA in areas of shared
interest. I can report to you
that we have in fact been
working
together
in
defense of the Missouri
Non-partisan Court Plan.
Representatives from both
organizations appeared
together at the hearing to
oppose the proposed changes. The reporter from
Lawyers Weekly who called seemed somewhat amazed,
but I submit that such events should be common on
issues where we have common interests. Certainly
protecting the integrity of the judicial selection process
and the right to trial by jury are high on my list. This
fight is not going away any time soon in my opinion.
There are folks out there whose rhetoric is not too far
removed from Shakespeare’s. What each one of us can
do to combat these people is to act professionally in
everything we do. Just as everything that happens in the
courtroom will go into the jury room, so it is with life.
Thus endth the sermon.
Richmond to present an in-trial ethics problem. It was,
no doubt, educational and (as many who know Doug)
entertaining. By the way, in the future, if the Trial
Academy chairman asks you to serve on the faculty,
please do so. To be a success requires both great faculty
and great students. We continue to be very fortunate to
have had that combination every year, but it requires
busy lawyers to volunteer their time. Also, when you
just say yes it makes the chairman’s job a lot easier!
The Third John L. Oliver MODL Trial Academy was held
March 26-28th in Columbia. Recently retired Judge J.
Edward Sweeney from Monett, MO served as our trial
judge. We once again had a great faculty and it was a
fine experience for all. On the subject of “faculty,” this
year we had Professor James Devine team up with Doug
Sincerely yours,
The Annual Meeting is coming up June 5, 6, & 7 at TanTar-A. Bob Buckley and his Committee have a great
event planned, so plan on attending with the entire
family.
At the conclusion of that meeting a new President will
be elected, in all probability Marty Buckley unless we
change tradition which is not going to happen. Last year,
some of you indicated a desire to be active in the
Organization. I remembered some and I am sure forgot
others (solely due to my advanced years, not anyone’s
abilities). I would suggest that if you want to be active,
more active or have a specific interest, let Marty know
before the meeting in writing. He will have a record and
trust me he will be looking for willing workers!
Hope you all have a great spring and I will see you at the
Lake in June.
Karl W. Blanchard, Jr.
MODL President
Missouri Organization of Defense Lawyers
The MODL Newsletter is a quarterly publication of the Missouri Organization of Defense Lawyers. If you have any
comments or questions about the MODL Newsletter, please contact: Deanna M. Wendler Modde; Armstrong
Teasdale LLP; One Metropolitan Square, Ste. 2600; St. Louis, MO 63102; (314) 621-5070 (phone); (314) 5524818 (facsimile); dwendler@armstrongteasdale.com
Missouri House Defeats
Attack on Court Plan
The Missouri House of Representatives dealt a stunning
setback to the small group of proponents attempting to
change the Missouri Non-Partisan Court Plan. House Joint
Resolution 49 (HJR 49), sponsored by Rep. Stan Cox (RSedalia), proposed a constitutional amendment which
would have dramatically politicized the Missouri NonPartisan Court Plan by granting the Governor immediate
control of the Appellate Judicial Commission, with the
appointment of a majority of the Commissioners with
terms to run concurrent with his term of office.
HJR 49 was given first round approval in the House by a
vote of 80-63. However, this was still two votes short of the
82 needed for final passage in the House. The Bill failed on
Third Reading by a vote of 69-83, thirteen votes short of
that needed for final passage.
Opposition to HJR 49 was led by MODL, along with virtually
all of the statewide bar organizations and associations,
including MATA, MACDL, MOBAR, KCMBA, BAMSL, and the
Justice Institute for Missouri. The grassroots effort to
educate the public on the implications of changes such as
those included in HJR 49 was led by the Missourians for Fair
and Impartial Courts (MFIC), a statewide coalition of nearly
forty (40) businesses, legal and educational groups.
MODL Executive Director and Lobbyist, Randy Scherr
chaired the statewide coalition while Sara Schuett,
Executive Director of the Missouri Association of Trial
Attorneys, served as the vice-chair of the statewide
coalition. “The overwhelming turn around and the
stunning defeat on the Third Reading vote was the result of
a massive effort by a well organized and coordinated team
of coalition members. It was a very large team effort and
everyone should be recognized” said Randy Scherr, MODL
Lobbyist. MODL was a founding member of the
Missourians for Fair and Impartial Courts.
A Few Annual Meeting
Highlights
“The Nobility of Lawyers”
The Honorable Wendell L. Griffen, Arkansas Court of
Appeals, Little Rock, AR
“Dealing With Gross Pictures”
R.T. Beard III, Mitchell, Williams, Selig, Gates & Woodyard,
P.L.L.C., Little Rock, AR
“Views from the Trial Bench – Judicial Panel
Moderator: Dale L. Beckerman, Deacy & Deacy, L.L.P.,
Kansas City, MO - Panel: The Honorable Richard E. Dorr, US
District Court - Western District of Missouri; The Honorable
Michael B. Calvin, Circuit Judge, 22nd Circuit – City of St.
Louis; The Honorable Patricia S. Joyce, Circuit Judge, 19th
Circuit – Cole County
Fun for Everyone!
Family Buffet Lunch Golf Tournament Family Lake Area
Activities Cocktail Hours “Ozark Feast” Kid’s Kabin
Party “Atlantic Express” Band
Exhibits
Legislative Report
Missourians for Fair and Impartial Courts - Randy J. Scherr,
MODL Executive Director
“Bringing it All Together for Trial”
J. Ric Gass, Gass Weber Mullins, Milwaukee, WI
“Update on the Law”
At Your Service
MODL has an Amicus Committee that
is ready to be of service! If you would
like to request an amicus filing from
MODL, please contact Susan Ford
Robertson at:
Ford, Parshall & Baker
3210 Bluff Creek Drive
Columbia, MO 65201
573-449-2613 (phone)
srobertson@fpb-law.com
Page 2
Jeffrey T. McPherson, Armstrong Teasdale LLP, St. Louis, MO
“Views from The Appellate Bench”
Moderator: Martin J. Buckley, Buckley & Buckley, L.L.C.,
St. Louis, MO - Panel: The Honorable William Ray Price, Jr.,
Judge of the Missouri Supreme Court; The Honorable
Clifford H. Ahrens, Missouri Court of Appeals, Eastern
District; The Honorable Lisa White Hardwick, Missouri
Court of Appeals, Western District; The Honorable Daniel E.
Scott, Missouri Court of Appeals, Southern District
MODL Awards Luncheon
And, there’s more! Come to the Lake and
find out what you’ve been missing!
Spring, 2008
A LOOK BACK AT THE “JOHN L. OLIVER, JR.”
MODL TRIAL ACADEMY
March 26-2
28, 2008 MU School of Law Columbia, MO
Spring, 2008
Page 3
MODL Annual Meeting
We hope you will make plans now to attend MODL’s 23rd
Annual Meeting, “No Suits ... No Ties ... No Problem,” June 5-7,
2008 at Tan-Tar-A Resort, Osage Beach, Missouri. Once again,
we expect that this year’s Meeting will be MODL’s biggest and
best ever! S
This year’s CLE programming explores the challenges in
defending cases involving catastrophic damages. We are very
pleased to welcome two esteemed trial attorneys, Ric Gass from
Milwaukee, Wisconsin and Rick Beard from Little Rock,
Arkansas to give presentations on what can be a tremendous
challenge for any defense attorney irrespective of the liability
issues. We are also very fortunate to welcome the Honorable
Wendell Griffen from the Arkansas Court of Appeals to give his
dynamic presentation on the Nobility of Lawyers! In addition,
our CLE program features our ever-popular judges’ panels and
the latest updates in the law.
We have planned great events for your entire family! Our
Meeting kicks off lakeside with a “Margaritaville” Welcoming
Reception. Get out your best parrot-head shirt and come enjoy
frozen drinks, great food and Jimmy Buffet tunes around the
Resort’s enormous pool deck.
Friday evening features an outdoor cocktail reception and
fantastic dinner followed by dancing the night away to Kansas
City’s legendary Atlantic Express! From Motown and rhythm
and blues to funk and rock-n-roll, this band will have you
boogie’n all night. We have reserved Tan-Tar-A’s Kid’s Kabin on
Friday evening for the kids to enjoy movies, games and tons of
activities.
Golfers will enjoy this year’s tournament at one of Missouri’s
finest courses, Old Kinderhook. Spend the afternoon on or
around the Lake with water sports, shopping, the resort’s
indoor water park, trail rides, mini-golf, go carts, and much
more. All children in attendance will receive a complimentary
one-day pass to enjoy Timber Falls Indoor Water Park.
We hope that you can come and bring your family for what will
be a terrific weekend. Leave the suits and ties at home and come
join us for a great family weekend at the 2008 MODL Annual
Meeting!
For Summer Meeting Registration Information:
http://www.modllaw.com
Golf Outing - June 6
Page 4
Spring, 2008
WHO IS LORD CAMPBELL, AND WHY SHOULD WE CARE?
Reception and Reliance on English Law
by Chuck McPheeters; Carson & Coil, P.C.
The Missouri Supreme Court is currently digesting Smith
et al. v. Brown & Williamson Tobacco Co.1 , which was
sent to them late last year following a dissent in the
Western District Court of Appeals by Judge James M.
Smart. Among other issues, Judge Smart disagreed with
the majority opinion’s position that Missouri’s wrongful
death statute provides a cause of action to statutory
beneficiaries, even if the decedent had already
compromised and settled all of her applicable, underlying,
claims while still alive. Oral argument was held several
weeks ago, and the entire Bar eagerly awaits the Supreme
Court’s opinion. That opinion, in fact, could be handed
down by the time you read this.
When I read Judge Robert Ulrich’s2 opinion in Smith, I was
struck by two things: the first was the prospect of never
again settling a lawsuit, for as long as I live, if wrongful
death claims are allowed to proceed even in the face of
prior releases from the deceased; the second, and the
more important for this article, was Judge Ulrich’s brief
history, and longer parsing, of the “original” wrongful
death statute, cited in Smith as “Lord Campbell’s Act.” By
its name you can deduce the Act was a bit of legislation
from across the pond. The law was passed in England as
“The Fatal Accidents Act of 1847.”3
There are several learned treatises on the development of
wrongful death law, and it is not my intent to add to such
scholarship, even if I could. The question I raise is this:
why should Missourians, at the dawn of the 21st century,
have to rely in any way on a relatively obscure piece of
1
- - - S.W.3d - - -, 2007 WL 2175034 (Mo.App. W.D. 2007). The parties
are, at the time of this writing, in a period of additional briefing.
2
Judge Ulrich retired from the bench last August, and is professor of
law at Liberty University in Lynchburg, Va.
3
9 & 10 Vict. C.93; repealed, 1976. The legislation was closely related
to the “Deodands Act” of 1846 (see Note 4, infra), as the laws
together set out procedures allowing such suits against railroads,
and established the sole measure of damages. The eponym was John
Campbell, a Scottish lawyer and politician who rose to become Privy
Councillor to Queen Victoria, Lord Chief Justice and, briefly, Lord
Chancellor of the Realm. Much of the biographical information about
Lord Campbell never even mentions the 1846 legislation, pointing
out his more substantive work in Parliament on copyrights, wills and
estates.
4
Spring, 2008
Lord Campbell’s cause was to encourage railroads to be safer, since
they had been spreading injury, dismemberment and death around
the country. The law in England at the time prohibited suits for
wrongful death. Coroners’ juries, however, had discovered a way to
punish the railroads, if not help the survivors of the deceased, by the
ancient law of “deodands.” If some piece of your personal property,
such as a horsecart, a bull, or an axe, had caused injury to another
person, the property was forfeited to the Crown, to be used for some
legislation in the British Parliament that is more than 150
years old? After all, we dissolved the political bands that
connected us to the Empire seventy years before Lord
Campbell took up his cause.4 The answer, it turns out, will
“to a degree, shape the future of [our] law, its institutions,
and ultimately our lives.”5
Missouri, like most states, decided early on that it needed
some body of law to serve as the basis for its judicial
opinions. How else could judges decide the rights of the
parties, the elements of claims and defenses, the measure
of damages? And Missouri, like most states, embraced
British law as its judicial bedrock. A “reception statute”
was actually passed by the Territorial Assembly in 1816,
two years before Missouri became a state. That law,
although amended more than a dozen times since 1816,
adopts as Missouri’s body of decisional law, “The common
law of England and all statutes and acts of parliament
made prior to the fourth year of the reign of James the
First,” so long as they’re not inconsistent with the laws of
the United States or the State of Missouri.6
But why James the First? When we broke from Britain and
became a nation, King George III was on the throne. James
I was nine kings and ten years of Oliver Cromwell before
our Declaration of Independence. And why the odd
reference not to the start of his reign, but to the fourth
year of his reign? It turns out the answers to those
questions are also essential to how we, as Americans and
Missourians, shape our law and its institutions.
Who Is Lord Campbell >p11
pious use, the words “Deo dandum ” being Latin for a thing or a gift
given to God. Railroads were understandably unhappy that a
coroner’s jury could attach, for example, one of their locomotives,
and present it to the Crown. As a way to appease the railroads, the
Fatal Accidents Act was tempered with the outlawing of deodands in
1846.
5
Benson, RECEPTION OF THE COMMON LAW IN MISSOURI, 67 Mo.
Law Review 595 (2002).
6
The current law is found at § 1.010 RSMo (2000), and reads: “The
common law of England and all statutes and acts of parliament made
prior to the fourth year of the reign of James the First, of a general
nature, which are not local to that kingdom and not repugnant to or
inconsistent with the Constitution of the United States, the
constitution of this state, or the statute laws in force for the time
being, are the rule of action and decision in this state, any custom or
usage to the contrary notwithstanding, but no act of the general
assembly or law of this state shall be held to be invalid, or limited in
its scope or effect by the courts of this state, for the reason that it is
in derogation of, or in conflict with, the common law, or with such
statutes or acts of parliament; but all acts of the general assembly, or
laws, shall be liberally construed, so as to effectuate the true intent
and meaning thereof.”
Page 5
Who Is Lord Campbell
(Continued from page 10)
James I took the throne of England in 1603, after the death of
Queen Elizabeth. Since James had already been in power as
King James VI of Scotland for almost forty years7 , his ascension
unified the crowns of England and Scotland for the first time. In
1606 the King granted a royal charter to “The Virginia
Company,” with the express purpose of traveling to Virginia,
settling the area, and finding a water route to the Orient. The
company’s ship landed on the banks of the James River in midMay of the next year. While the constant attacks of the
Algonquin Indian tribe might have distracted the settlers from
their goal of finding a water route to China, the new “Virginians”
managed to settle themselves in what they called Jamestown, in
1607, during the fourth year of the reign of James I.
Now we know what happened in the fourth year of James’ reign,
but why would the settling of Jamestown (even if it was the first
permanent settlement in America) be the link to the
establishment of our common law? The simple and practical
answer is that the “common law” of a people is what they decide
it to be, based on their needs and wants and the peculiarities of
their situation. Oliver Wendell Holmes’ landmark treatise on
American law took the idea a step further, perhaps, noting that
while the long history of the law is one of almost constant
improvement and refinement, the common law of a land at any
given time “pretty nearly corresponds, as far as it goes, with
what is then understood to be convenient.”8
Life in the New World was vastly unlike life in Britain at the
dawn of the 17th Century. Although guided by the laws and
statutes of England, settlers in the Americas reacted to their own
experiences to subtly change and amend British precedent.
There was no great intellectual outpouring that demanded
changes; the changes came naturally in response to the plights
and postures of the people. “The life of the law has not been
logic; it has been experience.”9 Since the American experience
was entirely new and different, the law changed to reflect the
enterprise.
Missouri’s judicial decisions specifically cite to our reception
statute, § 1.010, dozens of times. The first appears to be the case
of Bean v. Valle,10 a contract dispute over the sale of land that
touched on a statute of frauds issue. Judge Matthias McGirk
noted that the Territorial reception statute in effect at the time
of the contract adopted only that English law in existence in
1607. There was a difference between Missouri’s Statute of
Frauds and the similar law in England. The appellant tried to
make some hay out of the difference, apparently arguing that
the English statute supplied certain common law rights that
7
James was crowned King of Scotland at one year old, after his mother, Mary,
Queen of Scots, was forced to abdicate following the assassination of her
husband, an act in which the Queen’s paramour, and future husband, was a
leading suspect.
were not part of the Missouri statute. But Judge McGirk said the
English Statute was written during the reign of Charles II. As
Charles was the grandson of James I, and did not inherit the
crown until 1660, no law passed in his reign was covered by the
reception statute.
Many of the other cases citing the reception statute deal with
estates and trusts, particularly charitable trusts. In Baker’s Adm’r
v. Crandall,11 the plaintiff, personal representative of the
deceased, wished to sue the defendant for property damage done
while the decedent was still alive. Harmonizing a law passed in
England 300 years before James was King, with a Missouri
statute on survival actions, Judge Robert Ray held the ancient
right was allowed, and the plaintiff prevailed. “English statutes,
passed before the emigration of our ancestors, and applicable to
our situation, and in amendment of the law, constitute a part of
the common law of this country.”12 Of course, English courts
have been developing and interpreting those same pre-1607
laws for four-hundred years. While the decisions of English
judges are not judicially binding, our courts “may look to the
decisions of . . . the English courts; and . . . such decisions and
other authorities may . . . properly be considered as indicative of
what the common law was in any time past or what it may be at
present.”13
Which brings us back to Lord Campbell, and the Missouri Court
of Appeals’ recent detailed dissection of his mid-19th century
statute. The Fatal Accidents Act of 1847 was a clean break from
the common law, and wiped away centuries of precedent that
had prevented claims for wrongful death. As such, it was neither
encompassed by Missouri’s reception statute (it came 241 years
too late), nor within the body of law post-1607 upon which
Missouri courts can rely for interpretation. As historical artifact,
Lord Campbell’s statute may be interesting. It is not, however,
precedential. Under our reception statute you could even argue
that it is not instructive. One could say that § 1.010 sets an
absolute limit on the impact of British law on Missourians. If a
law came into existence after 1607, we pay it no heed. “(T)he
common law is not a static but a dynamic and growing thing,”14
which rises out of our common lot, and changes as our society
changes.
I suspect that most of the reliance on English law in judicial
decisions in this country is a simple recognition of the fact that
our legal system came from that legal system. That is
understandable, to a degree. But it has been 400 years since the
founding of Jamestown. Our societies are not the same. We live
Who Is Lord Campbell >p12
12 Id., 1883 WL 9444 at *2.
8
Holmes, Oliver W., THE COMMON LAW, Little, Brown and Co., 1881, Reprint
1963 at pg. 5.
9
Id.
13 Dickey v. Volker, 11 S.W.2d 278, 285 (Mo. 1928). But see, Benson, supra at
Note 4, questioning the historical and legal soundness of Dickey in its
holding that chancery law, Roman and Civil Law (e.g., the Corpus Juris of
Justinian, the Napoleonic Code) are not part of the common law. Dickey has
been cited favorably for other of its holdings as recently as 2003. Burnside
v. Gilliam Cemetery Ass’n., 96 S.W.3d 155, 158 (Mo.App. W.D. 2003).
10
2 Mo. 126 (1829).
14 La Plant v. E. I. Du Pont De Nemours & Co., 346 S.W.2d 231 (Mo.App. S.D.
11
78 Mo. 584 (1883).
Page 6
1961).
Spring, 2008
Who Is Lord Campbell
(Continued from page 11)
differently, act and react differently, and often think differently
than the fine folks in the ‘old country.’ It might just be time to
stop looking back over our shoulders.
Our common law owes a great debt to the British, and the
system which they created. Within the limits of § 1.010, we
should always give our ‘cousins’ their due. But we are not
continually beholden to English law. We need not rely on it, even
when it is similar in subject or wording to a law of our own
devise. It could even be dangerous for Americans to parse
English law in the hopes of understanding American law. As
Winston Churchill famously said, “Americans and British are one
people, separated only by a common language!”
Judicial Luncheons
Columbia, Missouri
March 30, 2008
Keynote Speaker: Judge Jon Beetem
St. Louis, Missouri
April 18, 2008
Keynote Speaker: Judge David L. Dowd
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Spring, 2008
Page 7
MODL Annual Meeting
Save the Date! Bring the Family!
June 5-7, 2008
Tan-Tar-A Resort
Osage Beach, MO
Golf Outing - June 6
Missouri Organization of Defense Lawyers
(MODL)
P.O. Box 1072
Jefferson City, Missouri 65102
First Class Mail
U.S. Postage
PAID
Jefferson City, MO
PERMIT NO. 118