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); [email protected] 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) [email protected] 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 (Picctureed beelow, fro om leftt: Mik ke Hu ugh hes, Ju udgee David Do owd, Mik ke Ward, and Bo ob Ro oseentthall) 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
© Copyright 2024