The
West
Virginia
Lawyer
Volume
11
Number
4
November
1997
Practice
Pointers
By
Rodney
Teal,
Clerk
Family
Violence
Impacts
Children
Also
By
Virginia
Jackson
Hopkins,
Esq.
Sharing Office Space - Is It The Right Choice For You?
By Robert Reis, ALPS Manager
PBRP Update
Young Lawyers Section
Dean's Column
President's Page
D.C. Offutt, Jr.
For those of you who have practiced law for more than a decade, let me take you back in time for
a moment. In 1985, lawyers in West Virginia and around the country faced an enormous crisis.
Insurance coverage for attorneys was nearly impossible to obtain at a reasonable cost. Insurance
companies were slashing malpractice coverage or pulling out of the state altogether. Costs were
rising. Service was declining. Only one major insurance company was offering legal malpractice
insurance coverage in West Virginia. Bar leaders, here and elsewhere, began to look for a stable
source of high-quality, reasonably priced coverage. Many bar organizations in larger states formed
their own state bar sponsored captive carriers, but West Virginia was too small to support its own
insurance company. Finally bar leaders in our state joined forces with bar leaders from other
smaller states and created the Attorneys Liability Protection Society (ALPS). What happened from
that point forward is a remarkable success story of which we should all be proud.
ALPS today is an A.M. Best A+ rated insurance company that has grown tremendously from its
beginnings. It now insures attorneys in Alaska, Delaware, Idaho, Kansas, Montana, Nevada,
North Dakota, South Carolina, South Dakota, Vermont, West Virginia, Wyoming and the Virgin
Islands. Yet it remains loyal to its roots. It still specializes in attorneys professional liabilityIt is still
owned by the attorneys it insures. It still considers service, not profit, to be its bottom line.
The service philosophy of ALPS manifests itself in many ways, from underwriting to claims
handling. The underwriting process is simple and fair. Most insurance companies set your firm's
rates based on its highest risk attorney. ALPS rates and writes each attorney in the firm individually.
The final firm premium depends on many factors including policy limits, claims history, firm size and
area of practice. The ALPS' insurance policy is designed to protect each insured as much as
possible and offers many coverages notavailable from other companies. For example, the ALPS
policy automatically includes Directors and Officers coverage for an insured's non-profit activities at
no extra charge. This coverage is not available at any cost through many other companies.
ALPS also gives attorneys a hand in controlling rates. Premium credits are given for participation in
CLES, computer docket controls, conflict of interest systems and for participation in its risk
management program. The risk management program will visit your office and perform a risk
review, assessing office systems, policies and procedures. For participating, you receive an
automatic reduction in your premium.
Even the claims department is managed differently. ALPS encourages attorneys to call at the very
first sign of a problem, even if its just for advice or guidance. Often, this avoids litigation entirely. If
you have a claim, or if you anticipate one, you can reach the ALPS claim department instantly with
a toll free call, 24 hours a day, 365 days a year. You take part in choosing your defense attorney
and actively participate in your defense. Most insurance companies treat their insured attorneys as
adversaries. The ALPS philosophy is based on cooperation, not conflict. As a result, ALPS boasts
the industry's fastest case closure rate, the lowest malpractice claim frequency and the lowest claim
severity rate.
You might ask, if ALPS is so great, why isn't every firm insured by the company? The simple
answer is cost. When ALPS was formed it needed capital to operate. Subscribers had to make a
surplus contribution, over and above their premium, in order to capitalize the company. For many
firms, this surplus contribution was the equivalent of one year's premium. As a result, many firms
simply did not consider ALPS as a viable option when considering malpractice coverage. Another
problem was limited coverage. As a new company, ALPS offered very low limits of coverage,
making it unsuitable to many firms that needed higher levels of coverage. Both problems have now
been solved, making ALPS an attractive option for West Virginia$300,000 to
$10,000,000/$10,000,000. Deductibles begin at $1,000. Deductibles apply to indemnity payments
only, not defense costs. Also, unlike some other carriers, the ALPS' limits do not include the cost
of defense. The ALPS' policy provides a claim expense allowance equal to 50% of the policy's
perclaim limit, subject to a maximum of $500,000.
In May, 1997 the ALPS Board of Directors determined that the company had reached the financial
status where the collection of further surplus contribution was no longer necessary to ensure long
term stability for policyholders. (Policyholders in each ALPS state elect a member to the Board of
Directors.) This is good news for every West Virginia attorney, making the cost of being insured by
ALPS comparable to being insured by other companies.
The next time your malpractice insurance policy is up for renewal or you are searching
for new coverage, take a look at ALPS. Consider being insured by a company sponsored by your
State Bar. By a company that you own. By a company that treats you like a partner, not a statistic.
Have the peace of mind that comes with knowing that you are insured by a company that will not
drop you at the first sign of a problem and won't raise your premiums indiscriminately. Be insured
by a company that offers superior services designed specifically for attorneys by attorneys. We are
currently living in a time when insurance coverage is easily available at a reasonable cost to most
attorneys. This will not always be the case. The pendulum will swing back to a period of high
premiums and limited availability of coverage. You can rest assured that, as the official West
Virginia State Bar sponsored insurance program, ALPS will always be there. (At one time ALPS
was the only insurance carrier providing coverage to lawyers in the state of Alaska). ALPS is not
available through your local insurance broker. To obtain an application, you have to give their
marketing department a call at 1-800-3672577. Give them a call. You will be glad you did.
Supreme Court Corner
A Message From WV Supreme Court Chief Justice Margaret L. Workman
A. Reorganization of the Supreme Court Clerk's Office In recent months the Supreme Court has
undertaken a majorreview of the intake, management and processing of the Court's caseload. Such
a review is critically important in an era of significant increase in the number of petitions and
miscellaneous motions filed. Tremendous growth has taken place and is projected to continue in
civil appeals and in workers' compensation appeals. The growth and complexity of the cases
demand that we examine the structure, procedures and practices of the Court.
The Court recognizes that the management of the caseload must be handled in a cost-effective,
efficient and productive manner that does not impair the rights of litigants. With that fundamental
consideration, the Court made a significant effort during the January 1997 Term to review its
internal organization. That review resulted in a decision to separate the responsibilities related to the
review and presentation of legal issues from the administrative case management function. Thus, we
have created the Office of Counsel as a separate entity.
As a general matter, the Court Clerk will have responsibility for developing a modern case
management system that addresses intake, filing and storage of documents. This is a task of high
priority. Many people are unaware that the software for the Court's docketing system was created
in 1983. Unfortunately it does not meet the present needs of the Court or the litigants. The National
Center for State Courts is reviewing our case processing system, and assisting us in modernizing it.
The Clerk will continue to be involved in the preparation of the calendar and docket, as well as
"calling" the docket in open court. Additionally, the Clerk will be the point of contact with respect
to the revision and publication of Court Rules. Preparing and disseminating orders to appropriate
parties, as well as to the Internet and publishing companies, will be the task of the Clerk. The Clerk
will also develop and maintain the Court's web page and prepare and distribute Court publications.
The Office of Counsel will have as its emphasis the legal analysis and presentation responsibilities.
The Office of Counsel will assist the Court in making determinations as to what matters will be
presented orally to the Court, prepare memoranda and other material for the Court's use in
considering the motion and argument dockets, and present the miscellaneous motions and rehearing
dockets. The Chief Counsel will be responsible for developing a system for ensuring that cases be
given appropriate consideration, based on the facts and legal issues so as to render just and fair
determinations. The Office of Counsel will also develop screening procedures to identify routine
cases that can be processed and resolved expeditiously, so that the Court can spend more time on
matters involving complex issues, developing areas of law or constitutional questions. The Office of
Counsel will also supervise the Court's Writ Clerks.
B. Office Space
The Court was successful this year in negotiating with theexecutive and legislative branches to
acquire substantial office space in the Capitol. This is the first work space that the Court hasadded
in the Capitol in approximately twenty years. The additional space will facilitate our reorganization
and allow us the ability to perform our responsibilities in a more efficient environment. We will take
possession of the additional space in December.
C. Commission on the Future of the West Virginia Judicial System
The Court has appointed a Commission on the Future of the West Virginia Judicial System to
oversee a comprehensive study of the structure of our court system with the goal of creating a
system capable of serving the needs of the people of West Virginia into the 21st century. The task
of the Commission is to define what the judicial system should be like, and to determine how that
vision can be accomplished.
The process will involve examining external factors likely to affect the court system in the future,
identifying the strengths, weaknesses and barriers to progress in the current system, and assessing
the public's understanding and confidence in the Court system. The Commission will also work with
the National Center for State Courts in defining problems and finding solutions, and review its
preliminary findings.
Members of the Commission include representatives from the court system, other governmental
agencies and the private sector. The membership is broad and diverse, and is meant to ensure that
the study considers the unique circumstances and characteristics of the state and the concerns and
needs of both those who work in the courts and those who use them every day.
D. Oral Presentation of Petitions for Appeal
The past practice of the Court has been to permit an automatic
right to oral presentation of petitions on the motion docket if oral presentation was requested by the
petitioner in the docketing statement filed with the petition.
The volume of cases has necessitated that the Court revisit the issue of the automatic right to oral
presentation. Beginning with petitions filed this term, oral presentation of the petition for appeal will
be discretionary with the Court. In making the determination regarding oral presentation on the
motion docket, the Court may, in some instances, proceed to consider the merits of the petition.
The ,,result is that counsel may learn in a much more timely fashion whether the petition has been
accepted or refused.
Rule 5 of the Rules of Appellate Procedure addresses the matter of hearings on petitions. While
oral presentation is not a matter of right under Rule 5, the Rule is not a model of clarity. Thus, in
connection with the changes in practice regarding oral presentation, please be aware that a change
in Rule 5 will be forthcoming.
Institutional and procedural change is always a painful process, but we have reached a point where
the interests of continued efficiency and fairness in the processing of the cases require that we make
both organizational and operational innovations.
The help of the members of the bar in the coming months, along with any suggestions for
improvement, will be greatly appreciated.
Dean's Column
John Fisher
Thanksgiving is a time of year that causes us to pause and reflect on how much for which we have
to be thankful. Just as we as individuals should reflect on our blessings, both public and private
institutions should do the same. Therefore, on behalf of the law school community, I would like to
use this column at this time of year to thank the many lawyers and judges (including "Justices") who
volunteer their time and talents to assist the law school and to enrich the educational opportunities
of our students. While this volunteerism serves to enrich the learning environment for our students,
one of its most important legacies is that it serves as an example to our students of the importance
of contributing to the community in which we live and work.
While I have attempted to get as extensive a list as possible, and the list is quite impressive, I am
not at all certain that my list is exhaustive. If I have inadvertently missed some activities, please call
those to my attention and I will supplement the list contained herein at some future time. The
numbers that are used reflect the involvement of members of our profession during the 1996-97
academic year.
Institutionally, the College of Law is assisted by three committees. The College of Law Visiting
Committee serves as advisors and counselors to the Dean. It facilitates communication within the
law school as well as between the law school and the greater legal community of which the law
school is a part. Threejudges and 20 lawyers, including 2 representatives of the State Bar's Board
of Governors, served on the Visiting Committee last year.
The second institutional committee is the Development Council which advises and counsels the
Dean as it relates to the law school's private fund-raising efforts. In response to a question which
appeared in last month's issue, concerning my role as Interim Dean, I explained some of the many
activities that are made possible by privatefunds. The thirty-one lawyers who served on the
Development Council last year deserved much of the credit for helping to secure the funds which
made these activities possible. The Development Council was assisted in their task by 60 Class
Agents who served as the principal liaison with members of their graduating classes.
The third committee is the West Virginia Law School Association Board. The 10 alumni who serve
on the Board assist us in maintaining relations with alumni and friends and in raising financial support
for students.
While the American Bar Association and the Association of American Law Schools' accreditation
rules require that accredited law schools rely upon full-time faculty for the substantial majority of
their course offerings, our law school, like most others, supplements its basic course offering by the
use of adjuncts. The courses in Coal, Oil & Gas, Estate Planning, Estate & Gift Tax, and Business
Planning as well as seminars in energy law and health care law are made possible through the
involvement of practicing attorneys. In addition, two judges and three lawyers assisted as adjuncts
in the Trial Advocacy course during the academic year and five lawyers assisted with the summer
Trial Advocacy course. Seven lawyers served as adjuncts in the Appellate Advocacy course which
involves the preparation and argument of appellate briefs, and four lawyers served as adjuncts
supervising students with clients in the' Clinical Law Program. While these adjuncts may receive
some compensation, the compensation is more of an honorarium as opposed to a realistic
compensation for the time devoted to these teaching activities.
New learning/service opportunities for our students are made possible by the Appalachian Center
for Law and Public Service. Currently, the Appalachian Center coordinates three projects that use
volunteer attorneys to supervise law students inassisting low-income clients. The first is the Family
Law Project which provides legal assistance in domestic matters. Students, working under the
supervision of an attorney, assist the clients in matters pertaining to domestic violence, divorce,
custody, and support issues. Thirty-one lawyers have volunteered to supervise students working in
the Family Law Project.
The second project of the Appalachian Center is the Wills Project which involves students drafting
wills and health care directives for senior citizens or other needy individuals. Again, the students,
under the direct supervision of volunteer lawyers, interview the clients and draft the necessary
documents to meet the clients' needs. Twenty-nine lawyers supervised students within the Wills
Project.
Finally, the Appalachian Center has allowed students to work under the supervision of lawyers in
assisting individuals filing in Chapter 7 or Chapter 13 bankruptcy petitions. Four lawyers supervised
students as they interviewed clients, performed the necessary legal research, and prepared the
schedule or other pleadings necessary for these clients to proceed in bankruptcy court.
For most students, the first opportunity to try a case or argue an appeal before someone other than
their professors is provided by the Moot Court program and the Lugar Trial Association. While all
students are required to take the course in Appellate Advocacy, which involves the preparation of
the brief and argument of the case, many students seek additional experience in these areas. The
Moot Court program provides these students an opportunity to participate in both intra-school and
inter-school competition. Each year, a number of udges and lawyers provide the "courts" in which
the,4'e students gain valuable experience. During the 1996-97 academic year, 18 judges and 31
lawyers served as appellate judges in the Moot Court competition, and four judges and 18 lawyers
served as trial judges or lecturers for the Lugar Trial competition.
Many members of our faculty enrich the classroom experience of their substantive courses by use
of guest lecturers or speakers. During the 1996-97 academic year, eight judges and forty-four
lawyers visited our classrooms to share with the students both practical insight and an
understanding of the substantive material gained through years of experience. In addition, practicing
lawyers frequently help by serving as judges in the Appellate Advocacy courses. Last year, five
lawyers assisted in this manner.
One of the highlights of the academic year is the appearance of the West Virginia Supreme Court
of Appeals to hear real cases argued in the Lugar Courtroom. For the majority of our students,
their first opportunity to see a case argued before the highest appellate court of the state occurs
during these visits. This educational opportunity would not be available if the Supreme Court
Justices were not willing to participate by presenting these cases. In addition, the West Virginia
Supreme Court of Appeals has, for many years, heard the Baker Cup competition finalists argue
theircases and has decided, along with the brief score, the recipient of the Baker Cup.
During the summer of 1997, West Virginia University served as the host to the Governor's Honors
Academy, a program which brought rising high school seniors to the campus for five weeks to
experience and enjoy a variety of educational opportunities. The Governor's Honors Academy
provided an opportunity for interested students to participate in a mock trial experience. Because
of the limited time available to prepare students to present their case, the assistance of a large
number of lawyers was essential. This summer, forty-eight lawyers served as mentors and judges as
these students gained first-hand experience as participants in a jury case.
Without the contributions of the many lawyers andjudges, it would not be possible for us to do
many of the things that we presently do, and, many of the things we do, we would not be able to do
nearly as well. It is n-ty privilege, on behalf of the students, the faculty, and the staff, to thank so
many of you for making a difference in the quality of the legal education available at our College of
Law.
Young Lawyers Section
Jodie Boylen
Should Judges Be Appointed Or Elected?
In The End, Does It Really Matter?
The debate has been on for years as to what method should be used to select Judges; chosen or
appointed by politicians or chosen and elected by the general public. I can see the pros and cons
for both sides. If one is appointed, the chosen one never has to worry about elections and therefore
their decisions should never be politically based. However, if one is elected, worries arise that
decisions may be politically based. I guess I choose to be shallow and apathetic on this issue. To
me, the definition of Murder is the same whether read to the jury by a republican or democrat and
the bottom line is if a Judge is ethical and learned, whether appointed or elected, itjust doesn't
matter. I encourage you to persuade me otherwise.
However, until you do, I would like to point out that my experience from practicing before judges
all over this state, some appointed and some elected, has caused me to notice that where I enjoyed
practicing the most, these judges had reoccurring traits. These traits include being:
1. JUDICIOUS. If you look up this word in the dictionary, synonyms include 11 sensible, rationale,
sound and common sense." Beside this definition is a picture of Judge A.L. Sommerville,
affectionately known to the community of Webster Springs as "Boonie." I practiced in front of
Boonie in 1988. Boonie was the kind of judge that looked at the whole picture and used his
common sense as a guide to decisions that were right for the situation. A goodjudge knows that in
addition to the law that is written in books, the person seeking relief needs to understand the
rationale and reasonableness for any actions taken. To a person who is not a lawyer, this
reasonableness comes from common sense. Boonie could always make the people appearing
before him believe in the soundness of his decisions. In return, these persons left with the belief that
they had received their day in court even if they did not receive the relief requested. A judge can't
get any better results than this.
2. UNDERSTANDING. A good judge must also have understanding, not only of the law but also
of people and the situation from which they come. Dan Douglass was a Circuit Court Judge in
Wood County in the early 1990's. Not many prosecutors wanted to practice in front of Judge
Douglass because he was known to be liberal. I viewed a man who had compassion and empathy
toward those who appeared before him. I found a home in his courtroom. Judge Douglass looked
like Santa Claus and even believed his name was Kris Kringle in the month of December when he
would show up to parties in his red suit, bells jingling and laughter roaring. He showed people
respect in his courtroom and this respect did not vary whether you were charged with a crime or
malpractice, or you happened to be a party, a litigator, courtroom personnel or a spectator. He
believed in rehabilitation when few people remember this is one of the primary goals of criminal
prosecution. He believed in good old fashioned lawsuits where juries, not judges, determine the
issues. The bottom line is he believed in the adversarial process, as we all would want to practice:
giving all persons, no matter what their lot in life, an equal right to their day in Court.
3. DEDICATION. In a world where people want to go home at 5:00 p.m. and return to work at
9:00 a.m., in 1986 there lived ajudge named Thomas Steptoe. Judge Steptoe was truly dedicated
to his beliefs, his job, and his duties. When the work needed done, he didn't hesitate to call his
Court to order at 7:00 a.m. In the youthful era of my practice, he taught me what the word
dedication means. This definition includes: working long hours, when needed, while testing and
enhancing your abilities to the point of reaching your goals, desires, and obligations and still finding
time to eat dinner with the children, take a walk with the dog, play a round of your favorite game,
and read the new bestseller before bedtime; thus instilling confidence in oneself on both professional
and personal levels.
4. GEOGRAPHICALLY CONNECTED. In the county of Randolph, a District Court Judge on
Senior Status is the nucleus of his community. He is admired and loved by the people.
InsidehisCourt,heisamaster. His name is Judge Robert E. Maxwell and he believes in his district
both inside and outside the courtroom. He supports the small local towns. If there is a spaghetti
dinner in Coalton or a folk festival in Helvetia, my bet is Judge Maxwell is nearby. Judge Maxwell
also continues to be the leader of the legal community within this area. Young lawyers look to him
for guidance and example of which he provides both.
5. ETHICAL. Long after I left the Martinsburg area to practice in other parts of the State, when an
ethical dilemma arose wherein a Judge was concerned, I contacted Judge Patrick J. Henry, 11, to
get his opinion on how the matter should be handled. Judge Henry loved to theorize and give great
dissertations on the interaction between judges and lawyers, plus he usually knew what to do when
questionable situations surfaced. A judge who practices good conduct and imparts in those lawyers
who practice in front of him the want and desire to be ethically concerned and correct, is the
crowning glory of our judicial system.
6. STUDIOUS. Nothing pleases me more than to be able to pick up an opinion written by a judge
and be able to understand that opinion upon reading it once and receive direction as well. The
ability to be able to write an opinion of this nature flows from the talent of ajudge who is well
versed in the law and practice thereof. Our Supreme Court has in the recent past had two special
judges who have dedicated their tenure to the education of lawyers as well as the imparting of
justice: Justice Franklin D. Cleckley and Justice Thomas E. Miller. These two justices, through their
opinions, have made life easier for young lawyers practicing in this state due to their ability to
reduce their knowledge into words upon the written page, in terms all can understand and execute.
I practiced under most of these respected Judges the first few years after graduation from law
school. These Judges made an impact upon me. As young lawyers, you need to recognize the
benefits you can reap from knowing and listening to judges. As Judges, you need to know the
impact you make upon young lawyers. Good judges can provide young lawyers with a foundation
to build trial techniques and professional habits that will not whither away in a storm. This
foundation includes not only a proficient understanding and utilization of the trial process, the need
for ethical conduct, and the love of our system, but also the professional and personal confidence
that comes from the plain enjoyment of your job.
As a footnote, you will notice that I did not mention the wonderfully organized and expeditious
work of Judge George W. Hill, or the conservative yet enlightened nature of Judge Robert A.
Waters, or the amazing sense of hunior and youthful nature that gives a delightful edge to the
courtroom demeanor of Judge Jeffrey B. Reed. These three judges are located in Wood County,
West Virginia and I practice before them on a daily basis. Although I have learned much from these
three remarkable judges, I did not want to mention their qualities for fear that the defense bar in my
area would think I was trying to score points. As they well know, I would never do that.
Practice Pointers
By Rodney Teal, WV Supreme Court Clerk
This monthly column is designed to assist members of the Bar who practice before the Supreme
Court ofappeals. As this is the first month for the column, I am reviewing the Rules of Appellate
Procedure governing (a) the petition for appeal and (b) the timelyfiling of'pleadings, as well as
introducing the new (c) Workerv'Compensation Docketing Statement. In future months, I intend to
address such topics as "The Docketing Statement and W. Va. Code 58-5-25 " and other matters
ofpractical importance.
As Clerk of the Supreme Court, I have the opportunity to review the various filings made by
members of the Bar. While the vast majority of the pleadings comply with the Rules of Appellate
Procedure, there are some which do not. In order to streamline the review process and to ensure a
thorough review of the written submissions of the parties appearing before the Court, it may be
beneficial to review several Rules governing The Petition for Appeal and Timely Filing of Pleadings.
a. Requirements for Petitions for Appeal
Rule 3(c) clearly sets a skeletal format for and the required content of the petition. A brief review of
the relevant requirements shows that the petition must contain the following:
1. The kind of proceeding and nature of the ruling in the lower tribunal.
2. A statement of the facts of the case.
3. The assignments of error relied upon on appeal and the
manner in which they were decided in the lower tribunal. 4. Points and authorities relied upon, a
discussion of law, and the relief prayed for.
The Rule further provides, "[a] petition for appeal shall ,tate the [above-listed items] in the order
indicated."
A number of petitions have been filed which do not meet the requirements of the Rule. For
example, one attorney merely submitted a copy of the appealable order (attached to the docketing
statement). That filing was returned, undocketed. In another example, an attorney filed a petition for
appeal without any discussion of law. The attorney merely listed the points and authorities relied
upon, but did not elaborate. The petition was returned, with instructions to amend or risk dismissal.
The information required under Rule 3(c) allows the Clerk's Office, Chief Counsel's Office and the
Court to evaluate and give appropriate consideration to the issues on which the petitioner seeks
appellate review. Failure to follow Rule 3(c), impedes the Court's ability to thoroughly evaluate
these issues.
b. Timely Filing of Pleadings
1. Petition for appeal must be filed (in the office of the clerk of the circuit court from which the
appeal is taken) four months from the date of the circuit court's "appealable order", unless the
circuit judgehasenteredanorderextendingtheperiod. Thecircuitjudge's order must state that the
extension is warranted by "good cause." In addition, in order to be entitled to an extension order,
the petitioner must have requested a transcript within 30 days of the appealable order. The
extension granted by the circuitjudge cannot exceed two (2) months. Of course, when the appeal is
from an administrative agency, the petition for appeal shall be filed within the applicable time
provided by the statute. Rule 3(a).
2. Response to petition for appeal must be filed (in the office of the Clerk of the Supreme Court)
within thirty days after the filing of the petition for appeal in the office of the clerk of the circuit
court. Rule 3(f).
If a respondent wishes to file a response outside the 30 day window, a Motion for Leave to File
Out of Time must be filed prior to or along with the filing of the Response. A Response which is
filed beyond the 30 day window and which is not accompanied by a Motion for Leave to File Out
of Time will be returned as a matter of course.
The Court will rule on the Motion before reviewing the Response on the merits. Failure to file the
Motion or the Court's decision to deny the Motion, will result in the Response being stricken from
the record.
3. Appellant's brief must be filed in the Clerk's office (Supreme Court) within 30 days of the date of
the notice of the filing of the appellate record. Rule 10(a). See also Rules 8 & 9.
4. Appellee's brief must be filed within 30 days from the date of receipt of the appellant's brief.
Rule 10(b).
Violation of this rule has been particularly troublesome, lately. The Clerk's office returns, as a
matter of course, all appellee's briefs which are filed out of time. In order to file a brief beyond the
30 days period, the appellee must submit a Motion for Leave to File Out of Time along with the
brief. The Court will rule on the Motion for Leave to File Out of Time before reviewing the
(appellee's) Brief on the merits. If the Motion is not received or if it is received but denied the
appellee's brief may be stricken from the record and the appellee (and counsel) may be precluded
from participating in oral argument.
Recently, an appellee was precluded from filing a brief and from participating in oral argument
because counsel for the appellee did not file a brief in a timely fashion.
5. Appellant's reply brief must be filed within fifteen days from the date of receipt of the appellee's
brief. Rule 10(c). Reply briefs which are filed out of time will be returned. Filing of a brief beyond
the 15 day period will require contemporaneous filing of a Motion for Leave to File Out of Time.
6. General rule regarding time for riling. Please note that without
prior permission from the Clerk's office no pleading (includiiie a Motion for Leave to File Out
ol'Time) may be filed less than 48 hours prior to oral presentation or argument of a proceeding.
Rule 28(d). Any pleadings filed within 48 hours of oral presentation or argument will be returned,
as a matter of course.
c. Proposed Worker's Compensation Docketing Statement The Supreme Court is facing a large
number of appeals from the Workers' Compensation Appeal Board. In order to facilitate this
appeal process, the Court is considering the adoption of a Docketing Statei-neiit for Workers'
Compensation appeals. The Docketing Statement is designed to provide a one-page overview of
the appeal.
Any coin inents from you or froi-n other members of the bar on the Docketing Statement would be
most helpful. To evaluate this new procedure, appeals using the Docketing Statement prior to its
formal adoption will be considered on a priority basis. The priority basis will apply to appeals using
the Docketing Statement that are filed in September and October 1997.
The form for the Docketing Statement is available from the Court's WEB Site and can be
downloaded. The Court's WEB Site address is: http://www.state.wv.us/wvsca. A single copy of
the Docketing Statement is available without charge from the Clerk's office through October 1997.
The form may be duplicated or scanned in for use on a computer. A reasonable facsimile of the
form is acceptable: Provided the facsimile is limited to one page. Any Docketing Statement
submitted to the Court should look exactly like our form.
Family Violence Impacts Children Also
by Virginia Jackson Hopkins, Esq.
In July of 1995 in Reedsville, West Virginia, a man knocked his wife to the ground and repeatedly
kicked her face and back as their horrified children watched and begged him not to kill their
mother.
* In St. Albans, a father repeatedly beat his wife and their five year old daughter and then in
January of 1996, he strangled and fractured the skull of the couple's five month old daughter.'
* A Preston County man broke into his ex-wife's home and sexually assaulted her. As he left her
bleeding on the floor, he stopped by the bedroom of her six year old son long enough to threaten
that the child should not tell or, "I'll be back to kill you."
* During the time that the parties' children were exchanged for visitation, a Kanawha County man is
charged with having killed and chopped up his estranged wife's body, stuffing it into a pickup truck
tool box and dumping it in the Kanawha
River.'
National surveys estimate that at least two million women each year are battered by an intimate
partner, and crime data from the Federal Bureau of Investigation record about 1,500 murders of
women by husbands or boyfriends each year.'
Men who batter their wives are more likely to assault their children. A study conducted by the
Massachusetts' Attomey General's Office reports that in 1994, one-third of the men who killed
their wife orgirlfriend also murdered at least one of their own children. At least half of all battering
husbands also batter their children.' The more severe the abuse of the mother, the worse the child is
abused.'
Danger from the batterer to both the children and their mother is greatly increased when the
marriage is dissolving, the couple has separated, and the husband is highly committed to continued
dominance and control of the mother and children. (lbid) His wife's attempts to leave and establish
autonomy and independence from the husband, his efforts to control and prevent the separation
escalate.
Older children are frequently assaulted when they intervene to defend or protect their mothers.'
Daughters are more likely than sons to become victims of battering husbands.' When a male is the
perpetrator of child abuse, one study demonstrates that there is a 70% chance that any injury to the
child will be severe and 80% of child fatalities within the family are attributable to fathers or father
surrogates.'
Since the early 1970's, societal awareness of the issues of domestic violence has been increasing.
However, in cases involving domestic violence, children living in these homes are often the forgotten
victims of domestic violence. Early literature in the field made note that children of battered spouses
may be more at risk to grow up to be abusers or victims, but little attention was given to the
immediate effects on children witnessing domestic violence. Current research indicates that
domestic violence impacts children in a variety of ways and the overall impact may be profound.
Not all children are damaged by the perpetrator's violence in the same way.
Although it is recognized that children in homes where domestic violence is prevalent are at a
greater risk to be physically victimized, studies clearly show that we can no longer presume that
children free of physical injuries are not damaged psychologically, developmentally, and emotionally
by domestic violence. There is growing evidence of multiple ways perpetrators use children to
control their adult victims.'
Lawyers in most areas of practice have already had or will have a client who is a perpetrator or a
victim of domestic violence. Many of these clients are the parents of young children. These
perpetrators/victims are the parents of young children. Awareness of the issues involving domestic
violence should be considered in cases of abuse and neglect, juvenile delinquency, and domestic
violence. The West Virginia Supreme Court of Appeals has recognized in Henry v. Johnson, 450
S.E.2d 779 (1994), that a family law master should take domestic violence into account when
making an award of even temporary custody.
What role does the legal profession have in stopping family violence'?
1. Educate yoursell
Lawyers in most ireas of practice have already had clients who were perpetrators or victims of
domestic violence. Lawyers must first understand the dynamics of domestic violence. There are
many sources of such information."
2. Risk Assessment
Identify the circumstances when a batterer is most dangerous by evaluating the batterer's beliefs
and patterns of violence, coercion, and control. Barbara J. Hart, Esq., in Assessiny Whether
Batterers Will Kill, developed an assessment of predictors of lethality
which include: Threats of suicide or homicide, fantasies of homicide or suicide, weapons owned by
the perpetrator, feelings of "ownership" ot'the women, centrality to the women (extrei-ne
dependence), separation from the woman, dangerous behavior increases in degree without regard
to legal or social consequences, hostage taking, depression (acute), and repeated calls to the
police. The underlying presumption isthatthe higherthe numberof predictors, the higher the potential
for the batterer to commit a homicide or engage in potentially lethal behaviors." Be aware of these
factors and take steps to protect the battered partner and children.
3. Safety Planning
Safety planning means systematically looking at what is happening around a fai-nily violence victim
and assessing what the options are. It is a tool devised to give victims a specific plan to use in times
when violence begins to escalate or erupt. Once battered women have identified the abuse inflicted
on them and the risk for child abuse, they can design strategic plans to avert violence, whether they
elect to remain in the residence with the batterer or separate.
Since the exposure to violence typically lessons a mother's ability to protect her children, it is
essential to do safety planning with the children without diminishing the mother's role in the
protection of her children. Safety planning can help all family victims of violence identify safety
issues and build problem solving skills. With children, it can include things as simple as helping the
children devise ways to get out of a violent situation when violence erupts, have the children call 91
1, a trusted relative, or go to a neighbor's house. Domestic violence advocates have extensive
information on safety planning for victims of all ages.
4. We have encouraged establishment of supervised visitation centers.
Supervised visitation centers, although not usually available in West Virginia, have been in use in
other states and have proven quite successful. Since much of separation violence is an attempt to
coerce reconciliation at a time when batterers have limited access to their
Sharing Office Space: Is it the Right Choice
for You?
by Robert Reis, ALPS Risk Manager
In an age when economic pressures continue and it is imperative for lawyers to find the most
efficient way to practice, many have opted to share office space. These arrangements involve a
number of innovative ways to share the costs of practicing law. It can be an excellent method to
reduce rent and employee costs and still have an office that is both practical and one to which
clients want to come.
Like most other good things in life, there are drawbacks and potential concerns for office sharers.
In this article we highlight a number of concerns for the office-shafing attorney and offer some
suggestions on how to minimize the potential additional exposure to a professional liability claim for
those who do share offices.
The first concern for any office sharer is vicarious liability. Should any client, third party or other
interested parties see the arrangement as more than a group of independent practitioners who
happen to share space, there is the potential for being drawn into any litigation against any one of
the attorneys in the suite.
Avoiding this problem is not easy but it can be done. When considering the office suite, pay
particular attention to the "indicia of separation." Would a first-time client who walks in, receives a
letter from one of the attorneys or calls the office, understand that all practitioners have individual
practices or would that client see the arrangement as a fin-n, similar to other fin-ns? View the signs.
Do they announce separate law offices or do they simply list names as do signs for all law firms? Is
there any indication of a professional association among some or all of the practitioners in the suite?
Do all the practitioners have a separate telephone line? Are the phones answered with identification
of the individual practices or simply genefically'?
There is also some concern regarding the shared services of employees. To be truly separate, the
practitioner would have his/her own secretary and certainly a separate computer system with links
only between the practitioner and dedicated staff. Additionally, filing would be done separately and
the files would not be accessible by other practitioners within the office suite.
Preventing any loss due to vicafious liability of office shafing cannot be assured, but loss prevention
measures are possible and involve a number ot'different considerations. The first is to know
something about those with whom you will share office space, and particularly their practice habits.
An office sharing attorney will want to avoid sharing space with other attorneys who tend to take
on more cases than can be reasonably handled by one person. There are a number of indicators of
those who fall in this category. Do they advertise extensively, have a steady stream of potential
clients coming in and out of the office'? Do they have a high ratio of support staff personnel who
tend to do client interviews and a number of other tasks customafily done by attorneys due to the
sheer volume'? Is it their habit to accept most matters which are brought to them without necessary
screening'? Most importantly perhaps is an assessment of the diligence and work ethic of those with
whom one will share offices. Since there is some likelihood that someday you might be considered
one of their partners, do they practice as you wish a partner would?
A great many of the claims made against office shafing practitioners involve allegations of conflicts
of interest as well as failure to maintain confidentiality. Both arise from the ambiguous appearance
that may be part separate practices and part fin-n-like in appearance. Few want to forego the
clientattracting appearance of a firm. The ethics opinions in the disciplinary and professional liability
decisions suggest that trying to have it both ways can indeed lead to problems.
Confidentiality concerns can really best be dealt with utilizing the suggestions above regarding
separation of practices. Additionally, those in the office suite must be very careful to make sure that
file material is not left in common areas, such as conference rooms or librafies. The soundproofing
available between offices should be of sufficient quality to assure that conversations cannot be
overheard. Further, whatever common duties are assigned to the receptionist whose salary may be
paid by all, this employee should not be involved in forwarding mail or any task which allows
him/her to be pfivy to sensitive client material from more than one of the practices in the suite.
Conflict of interest concerns arise in two areas. Conflicts afising among clients - present and past -
can best be avoided by instituting i thorough trackin(, system. Regardless of the size of the office,
we have consistently i-ecoiiii-nended that attorneys develop databases ol'all parties with whom
there might be any potential conflict and access those databases before agreeing to any
representation. In an office-sharing suite where there is an assurance that all practices are separate,
this can be done separately. If there is no likelihood that any potential client orany otherparty would
see suite members as practicing within a firm, and the practice areas are sufficiently different so that
adverse parties will not meet in the waiting room, then individual conflict tracking should be
sufficient.
If others looking at the arrangei-nent might see it to be a firm, then a method should be devised to
have a database available for all office shares within one suite. All should communicate the identity
of any parties who approach them for representation and particularly those cases they take. There
is no need to communicate more than the identity of the parties involved in a vast majofity of
representatives. On rare occasions, such as lobbying endeavors, it might be necessary to
communicate the positions taken on behalf of clients, to avoid having office mates accept
representation and advocate a contrary position for others.
Of ten the more troubling conflicts of interest - ethical and professional liability problems - afise
from the personal interests of an attorney in office shafing and other situations. Such problems arose
in a case in New Hampshire, which pointed to problems of attorneys who share office space with
businesses in which they have a significant interest. Separation of the interests becomes difficult and
claims made against one entity usually flow over to the other. Methods to prevent this type of a
conflict and the resulting ethical and malpractice concerns involve two areas of endeavor. Either the
attorney who has an ownership interest must be very careful to separate the@ organizations,
employees, tasks and responsibilities, or he/she must avoid any ownership interest at the outset.
Clients who approach the law fin-n and the associated' business should be made aware of the
common ownership and have the option to use other firms or similar businesses to handle their
work.
Other problems that often arise for office sharers include possible violations of Rule 7, particularly
issues dealing with letterhead and firm or group advertising. Using the term "professional
association" to describe an office sharing arrangement is not favored- On the other hand, no officer
sharer wants to use the term "separate law office" in front of all listed names. Any office sharer
should be careful to comport with all requirements of Rule 7 of the Rules of Professional Conduct
as well as to be sure that any entity which is createdcomplieswithstatelawandtheRules. Letterhead
should be consistent. Nothing should leave the office indicating that there is a professional
association, when in fact, the practitioners maintain total independence.
Splitting business and fees has also created a number of problems for practitioners in all settings,
especially those who share offices. Under Rule 1.5, any two attorneys who share a fee must inform
the client of the arrangement and receive the client's consent before doing so. Failure to take these
steps will likely jeopardize any sharing arrangement. In addition, the failure to seek client approval
for the sharing of a fee is a strong indicator that the arrangement that the attorneys have is not
merely an office-sharing arrangement among independent practitioners, but rather some type of
association.
Perhaps the most troublesome concern for office sharers arises in applications of insurance
coverage. ALPS and all other professional insurers of which we are aware, customarily attach an
exclusion to policies written for office-sharing entities, withdrawingdefense and indemnification
forany claim made against the policy-holder which arises solely as a result of a mistake, act, error
or omission, or personal injury comi-nitted by another attorney in the office-sharing arrangement.
Office sharing practitioners will also want to look at each other's areas of practice and in light of the
discussion of conflicts above, consider the separation and independence or cohesion ol'the group
which will practice in one suite. If the practice areas are somewhat compatible, then perhaps office
systems need to be designed to assure that the case information is comi-nunicated and conflicts are
avoided among all in the suite. If all of the office sharers have distinctly different practice
concentrations, then perhaps the office will wish to maintain total independence and separation
among practitioners. If among those sharing the office there are some professional associations that
may involve two or more attorneys, then they will have to be identified and treated appropriately
insofar as signs and area of practice are concerned. Also, if a number of attorneys will customarily
act together on behalf of a client, special arrangements may need to be made concerning access to
files, communications with clients and confidentiality concerns.
In spite of the limitations as to insurance coverage, office-sharing attorneys are wise to require that
professional liability insurance be carried by all of them. Practically, the exclusion mentioned above
becomes a nightmare only if there is no pool of assets available should a claim arise. While it is a
major expense, professional liability insurance might be considered a minimal requirement for the
diligent practitioner concerned about the effect any singular mistake might have on his/her clients.
While on the topic of insurance, office sharers will want to be sure that one of the group takes
responsibility for insuring the suite and particularly including the contents in it. All office sharers
should be listed as named insureds on the policy. But, here again, make sure that the insurance
agent does not consider the group a firm but rather lists each as a separate attorney. The concept
of insurable interest should - in the event of a loss - protect all individuals. General liability limits on
the office policy should be sufficient to have all in the office be comfortably protected in the event of
a mishap on the premises or other event that may not be covered by the professional liability
policies in force.
These are but a few of the considerations office sharers will want to review before becoming
involved in any such arrangement. The benefits of office sharing can be great and worthwhile if
some of the pitfalls and concerns are addressed up front.
PBRP Update
The following attorneys have recently volunteered to give 20 hours of civil legal representation to
those who cannot afford legal counsel, or otherwise participate in programs sponsored by the
Project.. Referrals are made through the Pro Bono Referral Project.
Patrick J. McDermott, Wheeling
Kevin Stryker, Wheeling
Nicholas Wininsky, Wheeling
Jenna Wood, Wheeling
"If we are to keep democracy, there must be one commandment: Thou shalt not ration
justice." Judge Learned Hand
The Tinder Box
Tom Tinder
"Achievements and Accomplishments"
Each year ' it is important for an entity (including a law office) to review what it has achieved and
accomplished during the previous twelve months. There is always a need to gain the necessary
perspective as to what was planned, what occurred and what needs to be done.
For the past several years, the State Bar's Board of Governors have taken that type of look at the
programs and services which have been made available to our members. I wanted to share with
you some of the activities which happened in the last fiscal year. * Legal Ethics - The number of
complaints against attorneys remained at a level of approximately 500 with more than 700
individual instances of informal legal ethics advice being given by Lawyer Disciplinary Counsel.
More than twenty cases were argued before the State Supreme Court regarding lawyer discipline.
* Mandatory Continuing Legal Education - A two year reporting period ended at the beginning of
the fiscal year with twenty-one lawyers having their license to practice law suspended by the
Supreme Court at the end of the appeals period. The Mandatory Continuing Legal Education
Commission, made up of lawyers and lay persons, continued its extensive work in granting
approval for continuing legal education activities. * Bar Finances - The financial condition of the
State Bar improved dramatically during the fiscal year. With increased revenue and reductions in
expenses, approximately $1 10,000 was able to be added to the small reserves held by the
organization. * Continuing Legal Education - The West Virginia Continuing Legal Education
program, a unique partnership between the State Bar and the West Virginia University College of
Law, provided well received seminars throughout the year. The program uses primarily West
Virginia lawyers to give excellent and productive seminars at very economical rates.
* Membership Directory - For the first time in four years, a membership directory was provided,
free of charge, to every State Bar member. A commitment has been made to provide a
membership directory each and every year. * 50th Anniversary - The State Bar celebrated its
fiftieth anniversary in May with an expanded level of activities at the Annual Meeting. As a part of
the celebration, an extraordinary compilation of events from the origination of the State Bar in
1947, was distributed, free of charge, to every State Bar member. * By-Laws Revision - A
complete review of the State Bar's ByLaws was done by a group of Board of Governors
members. Numerous changes were made, including the elimination of the past president position on
the Board of Governors. * State Bar Center - The State Bar Center in Charleston continued to be
utilized to a great extent by State Bar membership. More than I 00 separate State Bar committee
meetings were held at the facility as well as numerous mediations, depositions, conferences, etc.
Relationship With Judiciary - As an administrative agency of the Supreme Court of Appeals, the
State Bar works closely with the members of the judiciary relating to a variety of programs and
services. The Bar officers meet regularly with the Supreme Court Chief Justice and other members
of the Court to review and discuss the Bar's activities.
* Legal Services for the Poor Symposium - The State Bar kept its commitment to provide the
necessary free civil legal services to low income citizens through the ongoing work of the legal
services for the poor symposium. A significant amount of time was spent during the year on
increased funding from the federal government and a new source of funding from state government
for legal services programs.
* Jury Revision - Throughout the year, the State Bar's Judicial Improvement Committee worked
diligently on revisions to the jury
system in the state. A formal set of recommendations was approved by the
Board of Governors and then presented to the Supreme Court for its consideration. * Lawyer
Advertising Commission Based upon language included in a recent Supreme Court opinion, the
State Bar set up a Lawyer Advertising Commission. The group consists of lawyers,judges and
laypersons with representation from the news media.
* Alternate Dispute Resolution - The growth of alternate dispute resolution techniques in the state
court system was significant during the past year. More circuit court judges required that mediation
be considered or utilized before a case could go to court and a pilot project for domestic relations
mediation was initiated in the eastern panhandle.
* Referral Services - To provide the necessary assistance, the State Bar continued to spend an
extensive amount of time and effort in operating a lawyer referral service and a mediation referral
service. * Lawyer Information Service - Keeping its outstanding tradition, the Lawyer Information
Service was in operation every Tuesday evening for two hours to answer questions from citizens on
a tollfree telephone number. For more than twenty years, the State Bar has had lawyers available to
respond to citizens' questions. * Regional Meetings - Nine regional meetings were held in all parts
of the state and were attended by hundreds of lawyers. An emphasis was placed on law office
automation as well as other State Bar activities.
* Pro Hac Vice Suit - The legal suit which was brought by a State Bar member, who is located
outside of West Virginia, was reviewed by the 4th Circuit Court of Appeals and the
constitutionality of the pro hac vice admission rule was upheld by the court. The time has expired
for an appeal to be made to the U. S. Supreme Court. * Minority Law Clerks - The State Bar
kept its involvement in providing law clerk opportunities for minority law students during the
summer months.
* West Virginia Bar Foundation - The State Bar kept its close working relationship with the Bar
Foundation which is the ownerof tFe State Bar Center and the administrator of the Interest on
Lawyers Trust Account (IOLTA) program.
Bar Organization Leaders - The State Bar coordinated meetings with the leaders of the four
voluntary bar associations in West Virginia during the past year.
Law School Scholarship - Again, the State Bar presented a scholarship to a deserving first year
law student at West Virginia University, based upon academic accomplishments and financial need.
If you ever have a question, comment or suggestion about the State Bar and its activities, please
contact me by letter, by telephone (304) 558-7993 on the TechNet System (tindert), or by Internet
tindert@wvbar.org.