nebraska lawyer magazine september/october 2014

PRS

RT

STD

US

PO

STA

GE

PAID

LIN

CO

LN, N

EP

ER

MIT

NO

. 220

Neb

rask

a St

ate

Bar A

ssoc

iatio

n63

5 So

uth

14th

Str

eet

P.O

. Box

818

09Li

ncol

n, N

E 68

501-

1809

Fulfilling a Temporary/Seasonal Need for Workers: It’s As Easy As H-2B (Visas)Ryan J. Sevcik

“Working to Make Government Work”: The Story of the Nebraska Office of Public CounselCarl B. Eskridge

Qualified Immunity: Super Soldier Serum for Government Officials?Stephanie Caldwell

/-\ C C E I' '1~

VISA • ·1 ·

GREAT CLIENT PAID ON TIME, INC·

THE CORRECT WAY TO ACCEPT PAYMENTS! Trust your credit card transactions to the only

merchant account provider recommended by

39 state and 50 local bar associations!

.../ Separate earned and unearned fees

.../ l 00% protection of your Trust or IOLTA account

.../ Complies with ABA & State Bar guidelines

.../ Safe, simple, and secure!

Reduce processing fees and avoid commingling

funds through LawPay.

VISA • · Process all major card brands through lawPay

lr--•••••••-~Terminals ••••••ill Md:*Ten'l'W\11~ 0 _,_ --

... _______ _ ----··----·--·--=-=----·- c..... ...... ---=----=--

Secure web payments

Mobile Swiper iPhone, iPad, Android

866.376.0950 LawPay.com/nebar

1T H E N E B R A S K A L A W Y E R S E p T E m B E R / O c T O B E R 2 0 1 4

Departments

The Nebraska Lawyer is the official publication of the Nebraska State Bar Association. A bi-monthly publication, The Nebraska Lawyer is published for the purpose of educating and informing Nebraska lawyers about current issues and concerns relating to their practice of law.

www.nebar.com

Features

The

Nebraska LawyerOfficial Publication of the Nebraska State Bar Association • September/October 2014 • Vol. 17 No. 5

President’s PageNSBA Self-Help Desks

................................................G. Michael Fenner

Executive Director’s ReportNew Website Means New Capacity

........................................... Elizabeth M. Neeley

Fulfilling a Temporary/Seasonal Need for Workers: It’s As Easy As H-2B (Visas)

...........................................................Ryan J. Sevcik

The Importance of Nebraska’s Lawyer Legislators

.............................Katie Weichman Zulkoski

Qualified Immunity: Super Soldier Serum for Government Officials?............................................. Stephanie Caldwell

“Working to Make Government Work”: The Story of the Nebraska Office of Public Counsel

.....................................................Carl B. Eskridge

G. Michael Fenner

3

7

27 Court News Feature In Case You Missed It! Changes Made by LB103, Laws 2013 by Hon. Patrick R. McDermott

28 2014 Judicial Evaluation Poll Results

49 Practice Tip George Orwell’s Classic Essay on Writing by Douglas E. Abrams

58 Court News

59 NSBA News

60 NSBA Member Spotlights

62 NSBA/NLF Budget

64 Upcoming CLE Programs

65 Transitions

67 In Memoriam

69 Legal Marketplace

71 Classified Ads

72 2014 NSBA Annual Meeting Information

9

13

17

Elizabeth M. Neeley

21


EXECUTIVE COUNCIL

President: G. Michael Fenner, Omaha President-Elect: Amie C. Martinez, Lincoln President-Elect Designate: Robert F. Rossiter Jr., Omaha House of Delegates Chair: Joel M. Carney, Omaha House of Delegates Chair-Elect: Timothy R. Engler, Lincoln House of Delegates Chair-Elect Designate: Robert J. Parker Jr., Hastings Past President: Marsha E. Fangmeyer, Kearney Past House of Delegates Chair: Steven F. Mattoon, Sidney First District Rep.: Glenda J. Pierce, Lincoln Second District Rep.: J. Scott Paul, Omaha Third District Rep.: Todd B. Vetter, Norfolk Fourth District Rep.: Hon. John F. Irwin, Omaha Fifth District Rep.: Michael R. Dunn, Falls City Sixth District Rep.: Michael J. McCarthy, North Platte

ABA State Delegate: Robert M. Hillis, Fremont Supreme Court Liaison: Chief Justice Michael G. Heavican, Lincoln

Young Lawyers Section Chair: Luke M. Simpson, Kearney Executive Director: Liz Neeley, Lincoln

EDITORIAL BOARDChair: P. Brian Bartels, Omaha

Executive Council Liaison: Robert F. Rossiter Jr., Omaha

Executive Editor: Kathryn A. Bellman [email protected]

Layout and Design: Sarah Ludvik

[email protected]

Library of Congress: Paper version ISSN 1095-905X Online version ISSN 1541-3934

ADVERTISING SALES: Sam Clinch

NSBA 635 S. 14th Street

Lincoln, NE 68508 Ph: (402) 475-7091, ext. 125

Fax: (402) 475-7098 [email protected]

www.nebar.com

CLASSIFIED ADVERTISING: Sarah Ludvik

Nebraska State Bar Association (402) 475-7091, ext. 138 • [email protected]

Nebraska State Bar Association 635 South 14th St., Lincoln, NE 68508(402) 475-7091 • Fax (402) 475-7098

(800) 927-0117 • www.nebar.com

Thomas F. Ackley, OmahaKelly L. Anders, OmahaMelodie Turner Bellamy, MindenChristopher P. Bellmore, OmahaJames C. Bocott, North PlatteM. Therese Bollerup, OmahaElizabeth S. Borchers, OmahaJoel M. Carney, OmahaThalia L. Downing Carroll, OmahaKent E. Endacott, LincolnElizabeth Eynon-KokrdaChristopher M. Ferdico, LincolnBrandie M. Fowler, OmahaJoseph W. Grant, OmahaCarla Heathershaw Risko, OmahaJustin W. High, OmahaTracy Hightower-Henne, Omaha

Andrea M. Jahn, OmahaBrandy R. Johnson, LincolnJustin J. Knight, LincolnJohn A. Lentz, LincolnJeanelle R. Lust, LincolnMichael W. Meister, ScottsbluffGregory B. Minter, OmahaLuke H. Paladino, OmahaDavid J. Partsch, Nebraska CityAmanda M. Phillips, OmahaEdward F. Pohren, OmahaNoah M. Priluck, OmahaKathleen Koenig Rockey, NorfolkMonte L Schatz, OmahaRonald J. Sedlacek, LincolnColleen E. Timm, OmahaJoseph C. Vitek, Houston, TX

issue editors

The Nebraska LawyerThe Nebraska Lawyer is published by the Nebraska State Bar Association through the work of the Publications Committee for the purpose of educating and informing Nebraska lawyers about current issues and events relating to law and practice. It allows for the free expression and exchange of ideas. Articles do not necessarily represent the opinions of any person other than the writers. Copies of The Nebraska Lawyer editorial policy statement are available on request. Due to the rapidly changing nature of the law, the Nebraska State Bar Association makes no warranty concerning the accuracy or reliability of the contents. The information from these materials is intended for general guidance and is not meant to be a substitute for professional legal advice or independent legal research. Statements or expressions of opinion or comments appearing herein are those of the authors and are not necessarily those of the Nebraska State Bar Association or The Nebraska Lawyer magazine.

John H. Albin

John H. Albin is Acting Commissioner of Labor and General Counsel to the Nebraska Department of Labor. He received his Juris Doctorate from the University of Nebraska, College of Law in 1979. Mr. Albin been with the Department of Labor for more than 24 years, having begun as an administrative law judge in 1990. He joined the Department’s Legal Division in 1993 and became General Counsel in 2000. Prior to joining the Department of Labor he was in private practice. Mr. Albin is the chair of the Executive Committee of the Government Practice Section of the Nebraska State Bar Association.

John Jelkin

John Jelkin is the Assistant Attorney General in the Civil Litigation Bureau. He received his J.D. from the University of Nebraska College of Law in 1978. He is a member of the Nebraska State Bar Association, Government Practice Section, Real Estate Probate and Trust Section and the Lincoln Bar Association.

P. Brian Bartels

P. Brian Bartels is an associate attorney at Kutak Rock LLP. Brian’s practice includes advising gov-ernmental, tax-exempt, and for-profit employers on health and welfare benefit plans, health care reform, fringe benefits, and qualified and nonqualified plans. Brian graduated summa cum laude from Creighton University School of Law. He earned a master of arts degree in political science from Indiana University and a bachelor of arts degree, summa cum laude, from Creighton University.

publications chair


Legal representation is expensive. There are plenty of people who badly need representation, but cannot afford it. None of us doubt that. In criminal cases, there is a constitutional right fulfilled by public defenders and court appointed counsel. There is no equivalent right in civil cases and many of these litigants are turning to self-representation—self-representation in serious cases with serious consequences: divorce, child custody, contract disputes, landlord-tenant dis-putes, wages withheld, and, as they say, the list goes on . . . and on.

I have written before about what I see as the obligation of the professional to assist those less fortunate. I did a Google search to see what I could find out about pro bono legal assis-tance in civil cases for the poor of Nebraska. One of the first-page sites was typical. Its Google tag showed up as “Finding a pro bono divorce lawyer in Nebraska.” The first page asked me for “Type of Case” and “Zip Code.” Divorce was up, so I left it up, typed in Creighton’s zip code, and clicked “Continue.” The second page asked me this: “How will you pay legal fees if you hire a lawyer?” The choices were cash, check, credit card, and “other.” (Other? I considered typing “Chickens.”)

Bait and switch? The site reminded me of that old joke about the lawyer who advertised, “Simple divorces $100.” A woman came into the lawyer’s office, laid a hundred dollars on his desk, and said, “I’d like to get a simple divorce.” “Okay,” said the lawyer, “but I have to ask you a few questions first.” She said, “Go ahead,” and the lawyer asked, “Are you married.” “Yes,” she said. “Well,” said the lawyer, “that complicates it.”

Google also led me to Legal Aid of Nebraska, the only non-profit law firm in the state and now 50 years old. Legal Aid attorneys serve all parts of the State with eight offices from Omaha to Scottsbluff. But they cannot do everything. Their budget is limited. There are cases where they are conflicted out. There are cases where litigants are not poor enough to get the help of Legal Aid and not rich enough to be able to pay a lawyer: Single individuals are ineligible if they make more than $14,588 per year and have few assets; the cutoff for a family of four is $29,813.

Another of the first-page links on my Google search was Nebraska Supreme Court Rule § 3-506.01. It weighs-in on our obligation: “A lawyer should aspire to render pro bono legal services,” either directly to the poor, or by providing legal ser-

vices to a nonprofit organization that addresses the needs of the poor. “In addition, a lawyer should voluntarily contribute financial support to organizations that provide

legal services to persons of limited means.”

president’s page

NSBA Self-Help Desks G. Michael Fenner

➡


Legal Aid was first on the list in my Google search. I am proud to say that right after Legal Aid I found “Nebraska State Bar Association Volunteer Lawyers Project.” The NSBA takes our responsibility to the less fortunate seriously, in no small part with its Volunteer Lawyers Program (VLP). Part of VLP’s mission is matching Nebraska lawyers with individuals who need pro bono assistance. In that regard, there are some very moving success stories, but they are outside the scope of this Page.

This Page is about the other part of VLP’s mission: NSBA Self-Help Desks. NSBA Self-Help Desks are located in Omaha, Lincoln, Grand Island, Madison, and Kearney. The NSBA is about to open one in Scottsbluff. These are attorney-staffed desks located in the courthouse. They are there to assist pro se litigants (many of whom, by the way, are making their first court appearance). Some come to the desk on their own. Many are referred to the desk by the court in front of which they are appearing. (One judge estimated that Lancaster County District Court judges refer litigants to the Self-Help Desk two or so times a month and that bailiffs do so several times each week.) In 2013, the desks served 3,500 individuals. As of the beginning of August of this year, they have served 2,203 individuals.

Entering the courthouse as a litigant (for the first time or not) is for so many a frightening experience. All they know about what they are doing is that they have a lot riding on the outcome.

Pro se litigants are often frustrated with the court’s inability to help them. “Having the Self-Help Desks available,” said one judge, “allows us to direct them to a resource that can help them.” And it must help ease the frustration of the judge as well.

The attorneys staffing these desks help the pro se litigants with the rules and procedures of the court. They help them get the right forms and fill them out in the right way. Taking one example to stand for many more, they help them navigate the Parenting Act and Child Support Guidelines, which (would

anyone not agree?) can be overwhelming.

Asked about the value of the Self-Help Desks, one judge said,

The guiding force behind the self help move-ment from the perspective of the courts is the principle that all are entitled to access to jus-tice. . . . Because the legal system is complex, with many rules and procedures, lay people are not equipped to enter the system without assistance. Without the benefit of Self Help Desks and the forms available on line, courts would be bogged down with persons appear-ing unprepared or perhaps not able to reach the courtroom at all.

And this:

A person-to-person conversation can often affirm the work [litigants] have already done, help them prepare the documents necessary to appear in court, or answer other concerns they have. If someone appears in court and does not have the right information or paper-work . . . and a quick fix from the bench is not possible, a referral to the Self Help Desk is valuable for the judge and the litigant.

Another judge echoed that thought. “[T]he Self-Help Desk is a valuable asset to the court and public. We are extremely grateful to all of the lawyers who donate their time and talent to assist pro se litigants and, thereby, the court.”

VLP runs the Self-Help Desks. VLP provides this protec-tion: Malpractice liability insurance covering self-help volun-teers with up to $1,000,000 first-dollar coverage per occur-rence. And this support: finding attorneys to staff the desks;

PRESIDENT’S PAGE


PRESIDENT’S PAGE

There are many reasons I am proud to be a Nebraska law-yer. VLP is one of them.

Endnote1 And the NSBA is at work on that “complaint.” The Omaha Self-

Help Desk is open Monday, Wednesday, and Friday, 10:00-2:00; Lincoln, Monday, 10:00-2:00 and Thursday, 9:00-1:00; Grand Island, Friday 10:00-2:00; Madison, the third Friday of the month, 10:00-2:00. Kearney, the first Friday of the month, 10:00-2:00. The Association is working to expand the Self-Help Desks’ locations (including opening one soon in Scottsbluff), days open, and hours staffed.

training Self-Help Desk volunteers, with a focus on legal topics frequently presented to the desks and the administra-tive and ethical issues associated with volunteering; providing equipment and supplies, including computers, forms, topic brochures, and the like; and publicizing the availability of this public service.

When asked what changes they would like to see in the Self-Help Desks, judges routinely offer two suggestions: serve more communities and keep the desks open longer hours. I’ve heard no complaints about what is being done other than it is not being done in enough places and for enough hours of the day.1 Many of these desks are so busy that there is often a wait for service.

Remember Nebraska Rule of Court 3-506.01? “In addi-tion, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.” With or without that rule, I am, and will remain, a dues-paying member of the NSBA because I feel a personal obligation to assist those less fortunate, including “persons of limited means.” In the last-previous edition of this magazine I wrote about one of the ways the NSBA helps those in need—the Nebraska Lawyers Assistance Program. VLP is another.

G. Michael Fenner, PresidentPhone: (402) 280-3090

E-Mail: [email protected]

The Self Help Desks are located in Lancaster, Douglas, Hall, Buffalo and Madison counties.

3,595 people were served at these Self Help Desks January 1, 2013 through December 1, 2013.

Pay it forward… If you are an attorney licensed in Nebraska, please consider volunteering at our self-help desks. Call (402) 475-7091 or visit www.nebar.com for more information.

“Because of the lawyers that volunteer here at the Self Help Desk, I was able to get the help I needed to be able to reunite and see my daughter and that makes me very grateful. Thank you all so much.”

– from a Self Help Desk client


Avis AndrewsLisa Gonzalez

Michael Greenlee*Luke KlinkerDiane Metz

Mark JacobsMargaret Zarbano

June and July 2014

VLP Pro Bono VolunteersVLP wants to thank the following attorneys who accepted cases through our program in June and July in 2014. Our clients could not access the justice system without your help. (*Denotes volunteers who accepted more than 1 case in June-July 2014)

Mike BaldwinEileen Riley BuzzelloKevin BrostromPat CahoonDennis CollinsAl CoreyRichard DrewsJoe DreesenTim EnglerShawn FarritorJessie FeinsteinStacie GodingJocelyn GoldenAndrew HanquistWinnie HawkinsEd Hoffman

Matt JenkinsSharon JosephKarissa JohnsonDavid KalisekJennifer KearneyMike KinneySusan M. KoenigTim LoudonSarah MillsapMike MollnerMike MoranMichelle OldhamJeff PattersonMark PortoJustin QuinnDennis Riekenberg

Hon. Pat RogersDanielle SavingtonMichael ScahillSusan SchneiderJudy SchwiekertGail SteenMitch StehlikRyan StoverHon. Stephen SwartzJim TruellAmy Van HorneGeorgiene Radlick WagonerJames WagonerKen WentzMargaret Zarbano

VLP wants to thank and recognize the following volunteer attorneys for staffing our Self Help Desks at the Courthouses in June and July 2014. We could not provide the services we do without your help.


executive director’s report

Elizabeth Neeley

The company that historically hosted the NSBA’s website and membership management system was recently acquired by Your.Membership.Com. The NSBA switched web platforms in early July. The NSBA website looks much like our previous one, but the new platform has many new functions that we want to bring to your attention.

Your “NBSA Profile”• Update your Profile: Market yourself! In addition to

your contact information, you can now personally update other information in your profile (educational background, profes-sional interests and experience, etc.). You can also customize each field to control which groups are able to see your profile information (e.g., other bar members vs. the public through the lawyer search function). Additionally, your profile now allows to you to see which NSBA Sections and Committees you par-ticipate in and links you directly to those group pages. You can update your profile by selecting “Manage Profile” and then by selecting “Edit Bio.”

• Update your Communication Preferences: The NSBA has a number of communications. For example, the Legislative Update is a weekly email during the legislative session that updates attorneys on pending legislation by area of practice. You can now tell us which communications you’d like to receive by simply updating your communication preferences through your membership profile. Update your communica-tion settings by selecting “Manage Profile,” then “Edit Bio,” and then “Email Preferences.”

• NCLE Tracking: Ever have trouble remembering all of the CLE that you took during the year when it comes time to report your hours to the Supreme Court’s MCLE Commission? When you log-in to your profile, you can now access a history of all of your NSBA CLE, complete with dates, activity number and hours attended. We hope this record will make your MCLE reporting to the Court more convenient. To view the hours you’ve completed via NSBA CLE events, log-in to the NSBA website, click on the “Manage Profile” link and then click on the “Professional Development” link. It is located in the Content & Features section of your profile. PLEASE NOTE: The list provided is not meant to be an official account of your CLE requirements, it is only meant to serve as a reference tool.

• Digital Pictures: You can now upload a digital picture to your profile. If you don’t yet have a headshot, RCL Portrait Design will be at the NSBA Annual Meeting (October 8-10) and will take a complimentary photo of you for the NSBA website/online directory (additional portraits are available for purchase-however, there is no obligation). To add your profile picture, select “Profile Home.” Place your cursor over the icon picture and the system will prompt you to add a digital picture.

New Resources• New Member Resources Page: The NSBA has a num-

ber of practice manuals, seminar manuals, worksheets and forms that will now be available for download for free to all dues-paying members. Simply login in and click on “Member

➡

New Website Means New Capacity


Resources” under the “Practice Tools” menu to access these resources. The page is organized by practice area and will be updated throughout the year.

• Law Student Resumes: Earlier this year, the NSBA began posting law student resumes as a way to connect law students with potential employers. Members can access law student resumes by logging-in and selecting “Law Student Resumes” under the “Practice Tools” menu.

Opportunities for Engagement• Connect via Social Media: Connect with the Nebraska

State Bar Association and other attorneys through the NSBA’s Facebook, Twitter and LinkedIn Profiles. Simply click on the social media icons on the top of any NSBA website page.

• Blog, message, upload files, etc: Eventually, through your profile you will be able to blog, share your favorite resources with your networks (ones that you create or existing ones like Sections or Committees), post photos, upload files, message other members, have forum discussions, etc. More information will be forthcoming as these options are introduced.

Other Upcoming Website Features• Online Classifieds: The NSBA currently offers classi-

fieds in The Nebraska Lawyer magazine. Published every other month, we are often not able to accommodate requests for publicizing vacancies that need to be filled promptly. By offer-ing online classifieds on the NSBA website, members will have a more timely option for publicizing positions, office space, paralegal positions, etc.

• Searchable Database of Expert Witnesses: The NSBA intends to offer a free searchable database of expert witnesses, consultants, litigation support and other qualified experts as resource to its members through the NSBA website.

Take a few moments to update your profile and browse the new NSBA website. Have questions or suggestions related to the NSBA website? Feel free to contact the NSBA’s IT Coordinator/System Administrator, Elisa Oria at [email protected] or 402-475-7091.

EXECUTIVE DIRECTOR’S REPORT

Elizabeth Neeley, Executive DirectorPhone: (402) 475-7091 • Fax: (402) 475-7098



OverviewIt is not difficult to find public commentary and opinions

regarding the need for a comprehensive reform of the immi-gration laws and policies of the United States. Even casual observers are more than likely aware that the topic has been a proverbial political football for the last several years. With most major news outlets and public commentary focused on why the system is broken, it is worthwhile to highlight an exist-ing nonimmigrant visa program that does seem to work.

For employers seeking to supplement their regular work-force with foreign national workers for purposes of fulfilling a need for temporary, nonagricultural work, the H-2B nonimmi-grant visa program (the “H-2B Program”)1 serves as a possible solution. At the most basic level, in order to use the H-2B Program, an employer must be able to demonstrate that: (1) the

offered positions represent a need for nonagricultural employ-ment that is seasonal, intermittent, peak-load, or a one-time occurrence; (2) that there are not sufficient United States work-ers who are capable of performing the services; and (3) that hir-ing foreign national workers will not adversely affect the wages or working conditions of the United States workforce.2 On a practical level, this means that the H-2B Program is often used by employers to supplement domestic workforces in industries such as roofing, construction, landscaping, maintenance, sea-sonal resorts, and hospitality. Rather than jeopardizing job opportunities for domestic workers, studies actually indicate that the H-2B Program is a critical element of many employ-ers’ ability to sustain operations.3 Moreover, employers can petition for the same foreign national workers year after year, which can provide increased skill levels and decreased training costs that might not otherwise be found with domestic workers looking to move on to permanent and higher paying positions.4 In short, the H-2B Program seems to work.

Using the H-2B Program in NebraskaPerhaps the best way to illustrate the usefulness of the

H-2B Program for Nebraska employers is by way of example. Let’s consider a hypothetical Nebraska business, ABC Lawn and Landscape (“ABC”). During the summer months, ABC’s business is booming as customers throughout the state engage ABC to beautify their commercial and residential properties. However, the winter months are a different story for ABC; it is hard to landscape in consistently sub-freezing temperatures! Because of the seasonal nature of its business, ABC faces chal-lenges finding workers to meet its increased need during the summer months. One option for ABC to explore in this situ-ation is utilization of the H-2B Program.

feature article

Fulfilling a Temporary/Seasonal Need for Workers: It’s As Easy As H-2B (Visas)

by Ryan J. Sevcik

Ryan SevcikRyan Sevcik is a shareholder with Koley Jessen P.C., L.L.O. and primarily practices with the Firm’s Employment, Labor and Benefits Practice Group. Ryan assists cli-ents with a variety of employment and labor issues encountered in the workplace, with a focus on employment-based immigration matters. In this area, Ryan regu-larly works with clients to develop strategies designed to address a

variety of workforce needs, including matters related to employer-sponsored nonimmigrant and immigrant visas.

➡


Although the H-2B Program is somewhat systematic in its implementation and less onerous than its temporary agricultur-al worker counterpart,5 there are still several steps and require-ments that necessitate precise coordination by both petition-ing employers and foreign national workers. In order to use the H-2B Program, ABC must methodically work through four key steps: (1) obtain a Prevailing Wage Determination (“PWD”) from the United States Department of Labor (“DOL”) National Prevailing Wage Center (“NPWC”); (2) conduct regulatory-required advertising and recruitment; (3) obtain a Temporary Labor Certification from the DOL; and (4) obtain approval of a petition for nonimmigrant workers from United States Citizenship and Immigration Services (“USCIS”).6 Following completion of the above steps, the for-eign national workers must apply for their actual H-2B nonim-migrant visas at United States consulates or embassies abroad.

In order to obtain a PWD, ABC must file a simple form with the NPWC that provides, among other items, a description of the duties to be performed and a listing of the required qualifications.7 Because it is necessary to identify the offered wages in the advertisements, it is highly advisable that employers obtain a PWD prior to commencement of the advertising and recruitment campaign. Under current regula-tions, the PWD is calculated according to the median wage for the offered position in the particular geographical locale.8

Thankfully, this information is publically available, so counsel can advise clients of what the wage is likely going to be for the particular position(s) prior to proceeding with this process.9

Once ABC obtains its PWD for the offered position (or, at a minimum, the likely wage is identified), the advertising and recruitment campaign can begin. The recruitment pro-cess must begin no more than 120 days before the intended “start date” for the seasonal workers.10 For example, if ABC’s busy summer season begins on April 1, then it may begin the recruitment process no earlier than the previous December 2 (or December 3 on a leap year). The required recruitment steps include: (1) placing a job order with the state workforce agency in the area of intended employment for a minimum of 10 days; (2) placing two advertisements for the position in a print news-paper of general circulation in the area of intended employ-ment (including one Sunday); and (3) notification of the labor union representing ABC’s employees who work in the offered position, if applicable.11 The “area of intended” employment is the area within normal commuting distance of the place of intended employment (if within a metropolitan statistical area, such as the Omaha-Council Bluffs-Fremont MSA, the area of intended employment automatically includes the entire area).12 So, for example, assuming ABC’s job opportunity was in Omaha, NE, ABC would likely place its print advertisements in the Omaha World-Herald and would place a job order with

FULFILLING A TEMPORARY/SEASONAL NEED FOR WORkERS

1345 Wiley Road, Suite 121, Schaumburg, Illinois 60173Telephone: 847-519-3600 Fax: 800-946-6990

Toll-Free: 800-844-6778www.landexresearch.com



interview process. A foreign worker with an H-2B nonimmi-grant visa may then apply for admission to the United States and coordinate with ABC to begin temporary employment.

Immigration ReformMany commentators have explored the question of what

immigration reform would mean to the H-2B Program. Indeed, amid fervent discussions across the country regarding potential immigration reform by Congress and the President, greater attention is being given to existing immigration pro-grams, including the H-2B Program. Due to what is seen as an excessively burdensome and restrictive system, many businesses and community leaders are calling for decreased regulation over the admittance of temporary foreign workers.23 These discus-sions have tangentially included possible reforms to the H-2B Program, with proposals ranging from increasing or eliminat-ing the program’s cap,24 to simplifying existing application processes.25

Regardless of what reform comes to the United States’ immigration system, it is clear that many will be lobbying to reduce the burdens on employers and employees alike when attempting to hire foreign national workers. Given that the H-2B Program appears to be one of the working immigration programs, any changes that will be made to the H-2B Program with comprehensive immigration reform efforts will hopefully further streamline and improve the availability of temporary foreign workers to domestic employers.

Closing ThoughtsAlthough the H-2B Program requires well-timed coordi-

nation by employers and foreign national workers, in many sit-uations it is worth going through the process. By utilizing the H-2B Program to fulfill temporary and seasonal labor needs, businesses can find consistency and possibly even expand operations. Attorneys working with employers that have such seasonal labor needs will be able to provide great service to these clients by understanding the purpose and operation of the H-2B Program. For those who need a solution to their seasonal workforce needs, the answer can be as easy as utilizing the H-2B Program.

Endnotes1 The regulations regarding the H-2B Program are codified

at 20 C.F.R. § 655.1 et seq. (2008). Notably, the version of the regulations represented by the final rule issued in 2008 (Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nurses in the United States (H-2B Workers), and Other Technical Changes, 73 Fed. Reg. 78,019 (Dec. 19, 2008)) currently control, with the exception of 20 C.F.R. § 655.10, given recent changes to the prevailing wage process. Although the DOL rewrote the H-2B Program regulations in 2012, these final rules were enjoined by the Eleventh Circuit Court of Appeals in Bayou Lawn & Landscaping Services v. Sec’y of Labor, 713 F.3d 1080 (11th Cir. 2013) (aff’g Bayou Lawn &

the Nebraska Department of Labor. Regulations require that employers track and document their recruitment efforts – and any responses they receive to the same. As such, a recruitment report must be prepared by ABC and submitted to the DOL during the next stage of the process.13

After completing the advertising and recruitment process, ABC must file an application with the DOL for Temporary Labor Certification (using ETA Form 9142B and Appendix B).14 In addition to submitting the completed recruitment report, ABC must attest as to whether their need is seasonal, intermittent, peak-load, or a one-time occurrence and provide the requisite documentation to support the same.15 Such doc-umentation may include signed work contracts, letters of intent from clients, or previous years’ invoices or payroll reports. The application must also affirm that domestic workers will not be adversely affected, whether by losing positions or decreased wages in the area of intended employment.16 The DOL Temporary Labor Certification must be applied for no more than 120 days prior to the need for the certification;17 submis-sion at least 60 days prior to the date of need is recommended from a practical standpoint to ensure sufficient processing time with the DOL and USCIS.

Upon receipt, the DOL will process the Temporary Labor Certification and will follow up with ABC if further informa-tion is needed via a request for further information.18 There is a short timeline for responses to these requests to ensure timely adjudication.19 Assuming ABC’s Temporary Labor Certification is certified, it will be valid only for the certi-fied number of foreign national workers, the area of intended employment, the specific occupation and duties, the period of time, and only for work with ABC.20 Notably, in the event ABC’s recruitment efforts result in the identification of United States workers to fill some of the available positions, the DOL will only certify ABC for the number of nonimmigrant visas requested minus the identified United States workers.

Upon receipt of certification from the DOL, ABC must file a Petition for Nonimmigrant Worker (using Form I-129 and Supplement H) with the USCIS. Fortunately, ABC is not required to specifically identify each of their anticipated temporary workers on this filing with the USCIS; rather, in many circumstances, it is appropriate to file a petition for “x” number of “unnamed” workers. This makes completion of the filing easier in situations where ABC still needs to locate workers to fill the available positions. Notably, the number of nonimmigrant visas issued under the H-2B program is capped at an annual limit of 66,000 visas.21 This quota is split into two waves, with 33,000 allocated to each half of the fiscal year (April-September and October-March) to help level the field for varying seasonal work.22 After the USCIS petition is approved, the foreign worker(s) must apply at United States consulates or embassies abroad and go through the customary

➡



9 Data Center Online Wage Library, H-2B Program Data, DOL, Office of Foreign Labor Certification (“OFLC”), http://www.flcdatacenter.com/CaseH2B.aspx (as of the date of this article, last visited July 15, 2014); see also Prevailing Wages, DOL, ETA, http://www.foreignlaborcert.doleta.gov/pwscreens.cfm (as of the date of this article, last visited July 15, 2014).

10 20 C.F.R. § 655.15(e).11 20 C.F.R. § 655.15(d)(2)-(4).12 20 C.F.R. § 655.4.13 20 C.F.R. § 655.15(j).14 20 C.F.R. § 655.20(a)-(b). 15 20 C.F.R. § 655.21.16 20 C.F.R. § 655.22(a).17 20 C.F.R. § 655.15.18 20 C.F.R. § 655.23(c).19 Id.20 20 C.F.R. § 655.34(b).21 See Cap Count for H-2B Nonimmigrants, USCIS, http://www.

uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultural-workers/cap-count-h-2b-nonimmigrants (as of the date of this article, last visited July 15, 2014).

22 Id. 23 Walter C. Jones, Business-Labor Coalition Calls for Immigration

Reform, Candidates Unconvinced, Athens Banner-Herald, July 12, 2014, available at http://onlineathens.com/business/2014-07-12/business-labor-coalition-calls-immigration-reform-candidates-unconvinced.

24 Alex Nowrasteh, How Obama Can Fix Immigration Without Congress, The Washington Post, July 8, 2014, available at http://www.washingtonpost.com/posteverything/wp/2014/07/08/how-obama-can-fix-immigration-without-congress/.

25 Sascha Cordner, Construction, Farm Industry Leaders Want Congress to Tackle Immigration Visa Reform, WJCT News (July 2, 2014, 6:28 PM), http://news.wjct.org/post/construction-farm-industry-leaders-want-congress-tackle-immigration-visa-reform (discussing how the seafood industry may need to seek H-2B visas for foreign workers in light of a congressional reform for J-1 visas, which were meant to allow foreigners to experience United States culture).

Landscaping Services v. Solis, No. 3:12-cv183/MCR/CJK (N.D. Fla. Apr. 29, 2012)).

2 20 C.F.R. § 655.1(a)-(b).3 See U.S. CHAMBER OF COMMERCE, LABOR,

IMMIGRATION & EMP. BENEFITS DIV. AND IMMIGRATION WORKS USA, THE ECONOMIC IMPACT OF H-2B WORKERS, at 10 (2010); available at http://www.whitehouse.gov/sites/default/files/omb/assets/oira_1205/1205_12202011-3.pdf (as of the date of this article, last visited July 15, 2014).

4 Id. at 11.5 See 20 C.F.R. § 655.100 et seq. of Subpart B (2010). See

also H-2A Temporary Agricultural Workers, U.S. Citizenship and Immigration Services (“USCIS”), http://www.uscis.gov/working-united-states/temporary-workers/h-2a-agricultural-workers/h-2a-temporary-agricultural-workers# (as of the date of this article, last visited July 15, 2014). The H-2A program has been established for use with respect to temporary agricultural positions and includes requirements in addition to the H-2B Program (such as required provision of suitable housing for the workers) as well as legally nebulous concepts (such as the attach-ment of certain rights to all United States workers engaged in “corresponding” employment). An in-depth review of the H-2A program is outside the scope of this article.

6 See 20 C.F.R. §§ 655.10, 655.15, 655.20. For examples of Department of Labor (“DOL”) forms and documents, see H-2B Certification for Temporary Non-Agricultural Work, DOL, Employment and Training Administration (“ETA”), http://www.foreignlaborcert.doleta.gov/h-2b.cfm (as of the date of this article, last visited July 15, 2014). For examples of USCIS forms and documents, see H-2B Temporary Non-Agricultural Workers, DHS USCIS (June 27, 2014), http://www.uscis.gov/working-united-states/temporary-workers/h-2b-non-agricultur-al-workers/h-2b-temporary-non-agricultural-workers. (as of the date of this article, last visited July 15, 2014),

7 DOL, ETA, OMB No. 1205-0508, ETA Form 9141, Application for Prevailing Wage Determination; see also 20 C.F.R. § 655.10.

8 20 C.F.R § 655.10 The current prevailing wage process has been the subject of much debate and controversy, having been fully implemented only after an unsuccessful lawsuit that sought to enjoin the DOL from implementing the current structure. See La. Forestry Ass’n Inc. v. Sec’y U.S. Dep’t of Labor, 745 F.3d 653 (3rd Cir. 2014).

Confidence.

Confidence is exactly what you’ll have when referring your landowner clients to UFARM. We are land professionals, ready to help landowners manage their assets. Contact us today!

Referrals Welcome.

FOR YOU AND YOUR CLIENTS800-509-3276 | ufarm.com

Lincoln, Kearney, Norfolk & North Platte

Your Trusted Partner.

FARM & RANCH MANAGEMENT | REAL ESTATE SALES & AUCTIONS | RURAL APPRAISALS | ASSET INVENTORY | RECEIVERSHIPS


Of the 49 members of Nebraska’s 103rd Legislature, 12 are lawyers. That means 24 percent of Nebraska’s legisla-tors are lawyers – a number that puts our state ahead of the national trends. According to the National Conference of State Legislators, approximately 15 percent of state legislators nationwide are attorneys. Comparatively, nine senators iden-tify as farmers or ranchers and six have backgrounds in educa-tion, either at the K-12 or college level.

The Bar benefits from the fact that lawyers make up the highest professional concentration in the Legislature. Our profession is well represented by those serving who come from a wide variety of practice settings, sizes, and locations. Nebraska also benefits from the individual expertise of these 12 lawyers elected to serve as state senators. Lawyer legislators are uniquely able to read legislative bills and quickly understand the impact a proposal will have on the citizens of Nebraska.

Lawyers in the legislative body have a working knowledge of the Constitution that causes many of their fellow legislators to turn to them for expertise. Importantly, lawyer legislators can foresee the ability of the legal system to absorb proposed changes and many know firsthand how new laws will play out in the courtrooms across the state.

The Clerk of the Nebraska Legislature, Patrick O’Donnell (also a lawyer) says lawyer legislators are an important part of the legislative process in Nebraska. “The appreciation of the law and its application are critically important qualities to a legislature as it fulfills its policy making responsibilities,” says O’Donnell.

“While attorneys practice their profession by applying and interpreting the law, it is the legislature that constructs and makes the law. Thus it seems fundamentally important for a policy making body to have the skills and experiences one garners in the practice of the law in the construction and the making of the law.”

The Nebraska Legislature’s webpage lists a Senator’s responsibilities. These include:

feature article

The Importance of Nebraska’s Lawyer Legislators

by Katie Weichman Zulkoski

Katie Weichman Zulkoskikatie Weichman Zulkoski is a Lawyer/Lobbyist at Mueller Robak LLC and serves along with William J. Mueller as Legislative Counsel to the Nebraska State Bar Association. In addition, Zulkoski’s practice at Mueller Robak LLC focuses on government relations matters for professional associa-tions, ag and conservation inter-ests, and small and large busi-nesses. Zulkoski graduated summa

cum laude from Creighton University School of Law in 2008 with a certificate of concentration in Business Law.

➡

There have been only three Clerks of the Nebraska Legislature since its beginning in 1937: Hugo Srb served from 1937-1970; Vince Brown from 1970-1977; and the current Clerk Patrick O’Donnell, 1977-Present. While it is not a job requirement, all three clerks have been attorneys. Nebraska Statutes set forth the duties of the Clerk’s office which include ensuring that all constitutional, statutory and policy requirements are followed when the Legislature conducts its business. Neb. Rev. Stat § 50-114.


• Representing the people and the best interests of his or her legislative district;

• Appropriating funds to further the state’s progress and that of its citizens, protecting property and persons, strengthening our productive capacity, and creating new opportunities;

• Righting injustices involving the public;

• Keeping a careful check and set policy on the operation of state government;

• Keeping a forum where people can be heard;

• Providing a means of access for a private citizen through the maze of government;

• Proposing constitutional amendments to be submitted for a vote by the people;

• Establishing state policy by introducing bills to create new programs, modifying existing programs, and repealing laws which are no longer needed;

• Observing the legislative rules of decorum and discipline, and encourage the promotion of the welfare and well-being of the citizens of the state;

• Studying legislation carefully;

• Exercising legislative power to the best of his or her ability; and

• Studying problems between sessions and determine whether legislative solutions are needed to correct them.

Senators are elected to four-year terms to represent approx-imately 35,000 residents in each district. In odd numbered years, the first year of the biennium, the annual legislative ses-sion extends for 90 legislative days – from early January until the beginning of June. In even numbered years, the second of the two-year biennium, session extends 60 legislative days, generally to mid-April. During the interim, senators attend constituent events, conduct interim study hearings, and begin to draft proposals to be introduced in the next year. This is an extensive time commitment for anyone who chooses to serve in public office – and brings special challenges for those continu-ing to work in a law practice or in other employment.

Seven of the twelve lawyer-legislators in Nebraska are serv-ing their last year in office, due to term limits. Term-limited senators Brad Ashford, Danielle Conrad, Steve Lathrop, Scott Lautenbaugh, John Nelson, Pete Pirsch and John Wightman

THE IMPORTANCE OF NEBRASkA’S LAWYER LEGISLATORS

Brad AshfordHome: OmahaServed: 1986-1994Elected: 2006

Scott LautenbaughHome: OmahaAppointed: 2007Elected: 2008

Ernie ChambersHome: OmahaServed: 1970-2008 Elected: 2012

John NelsonHome: OmahaElected: 2006

Danielle ConradHome: LincolnElected: 2006

Pete Pirsch Home: OmahaElected: 2006

Burke HarrHome: OmahaElected: 2010

Paul Schumacher Home: ColumbusElected: 2010

Sara HowardHome: OmahaElected: 2012

Les Seiler Home: HastingsAppointed: 2012Elected: 2012

Steve LathropHome: OmahaElected: 2006

John WightmanHome: LexingtonElected: 2006


THE IMPORTANCE OF NEBRASkA’S LAWYER LEGISLATORS

According to Omaha senator and attorney Brad Ashford, the current chair of the Legislature’s Judiciary Committee, “In an ideal world every lawyer should have some contact with the Legislature.” Lawyers across Nebraska should give strong con-sideration to serving in the Nebraska Legislature. A lawyer’s training and experience provides a strong background for an exciting opportunity to serve the state. O’Donnell sums up the opportunity this way, “As a law practitioner one may have the opportunity occasionally to reconstruct the law through court opinion. As a legislator you have the opportunity to craft the law every day you serve.”

represented their constituents and our profession well with their hard work, attention to detail, and collegiality. Thank you to those seven for your years in public office. In the com-ing legislative elections, eight races have a lawyer running for a seat in the Nebraska Legislature. We look forward to the opportunity to bring in new expertise and ideas – while retain-ing the importance of the role of the lawyer legislator.

“As a member for 16 years I have gained a great deal of respect and admiration for those who develop our statutes. A bill and then a law is an amalgam of many joint and several interests that must be carefully woven together. We are indeed fortunate to have the most open and efficient legislature in the country. We must be careful not to destroy it.”

- Brad Ashford, Judiciary Committee Chair

Omaha 402.330.9580 | Lincoln 402.742.0118 | pltechnology.com/law

NOLOGY. It’s so much more than tech.

PRACTICE LAW, NOT TECHNOLOGY. Pardon your office from the IT burden.

Contact P&L today and put our applied Nology

to work for you. pltechnology.com/law

P&L Technology’s applied Nology for law offices can provide proactive and accountable IT Management to help you realize greater efficiencies faster for improved profits. Our experienced staff is proficient in applications such as TABS, AbacusLaw and LexisNexis, along with a variety of IT needs unique to the legal profession.

THE VERDICT:Guilty of Too Many Non-Billable Hours Managing IT.

Full Pardon – If You Call P&L Technology.

THE VERDICT:

YOUR SENTENCE:YOUR SENTENCE:


In partnership with the Professional Education Group presents

Revisiting Younger’s Ten Commandments: An Update of Irving Younger’s Classic Rules for Cross-Examination

featuring Professor Stephen D. EastonWednesday, September 10, 2014 • 8:30 am - 4:00 pm

Scott Conference Center - 6450 Pine Street, Omaha, NE 68106*Nebraska MCLE Activity #93059. 6 CLE hours.

REGISTRATION FORM: Revisiting Younger’s Ten Commandments - September 10, 2014c $360 - Regular c $270 - (25% discounted price for NSBA dues-paying members)c $10 - Law Students

Name:_____________________________________________________________________Bar #_________________________Address:___________________________________________ City:______________________ State:_______ Zip:_________Telephone:___________________________________ E-Mail:___________________________________________________________ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEXAmount enclosed or to be charged $____________ Card number: _________________________________________________Security Code (located on back of card):_____________ Expiration Date:____________ Mo/YrPlease print name on credit card:____________________________________________________________________________Credit card billing address (if different from above):____________________________________________________________City:_______________________________________________________ State:__________________ Zip:_________________

Signature:________________________________________________________________________________________________Make checks payable to NSBA and return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098

You will receive an email from the NSBA confirming your registration. If you do not receive an email confirmation, please call 402-475-7091.

If you need any special accommodation for attending this event, please contact NSBA.

Easton rises to the task of revisiting Younger’s clas-sic Credibility & Cross-Examination—including The 10 Commandments of Cross-Examination. Incorporating video clips from Younger’s masterpiece presentation, Easton takes a fresh look at the philosophy, psychology and physiology of credibility. He analyzes modern tools for preparing a wit-ness to be credible and reflects on the skills that every lawyer must master to expose an adversary’s lack of credibility.

For 30 years, Younger’s grace and style set an unparalleled standard for excellence in the effective practice of law in the United States. Easton’s contemporary update of Younger’s magnificent work brings fresh relevance and perspective to one of the fundamental building blocks in effective advo-cacy. Easton will help you reconcile the rules of evidence law and the modern considerations of the craft of advocacy. This fast-paced, media-rich program will both entertain and pro-vide invaluable, practical tips to benefit every practicing law-yer—regardless of age, gender, experience or practice area.

8:30 am Preliminary Thoughts on Cross-ExaminationEvidence Law Regarding Impeaching and Accrediting

10:00 am Break

10:15 amIrving Younger’s “10 Commandments of Cross-Examination”

11:45 am Lunch (included with your registration)

12:45 pmFinal Arguments Attacking Witness CredibilityThe Truth About Ethics and The Ethics About Truth

2:15 pm Break

2:30 pmAttorney Credibility

4:00 pm Adjourn


To say my four-year-old son is fanatical about superheroes is putting it mildly. Of all the masked vigilantes and caped cru-saders who spark his imagination, the one he idolizes the most is Captain America. While reading to my son one day, he asked me if I, like his avenging superhero, wielded a similar inde-structible circular shield at my job. “Depends on the oppos-ing counsel,” I snickered. In preparing to write this article, I recalled my son’s question and recognized a sudden correlation – government officials actually do brandish this kind of shield, albeit in a slightly different way. It’s called qualified immunity.

Government officials, like the star-spangled superhero, are shielded from liability for civil damages under the doctrine of qualified immunity. And, qualified immunity is more than a mere defense. It is an absolute bar to liability. If a government official’s conduct does not violate a clearly established statutory or constitutional right of which a reasonable person would have known, the official avoids the burden and cost of litigation.1

With the increase of civil rights claims filed pursuant to 42 U.S.C. § 1983, there has been an equivalent escalation of court decisions on the doctrine of qualified immunity. The cases range from Fourth Amendment illegal use of force to First Amendment freedom of speech retaliation claims in the work-place. Government officials are being sued in their individual capacities for monetary damages for violating an individual’s constitutional or statutory rights. Just like the alter ego of Steven Rogers with his strengthening and protective super-soldier serum, qualified immunity makes state actors highly resistant to these types of lawsuits that could otherwise limit their focus and impede the responsibilities of their positions.

Qualified immunity allows for a swift resolution of certain civil rights claims. Qualified immunity also provides safe-guards from discovery proceedings. Consequently, government defendants are entitled to have discovery stayed entirely pend-ing the resolution of the immunity issue. Recent decisions have shown that one of the purposes of this immunity is to curtail the expenses associated with civil rights litigation. In addition to curtailing litigation expenses, another reason for staying dis-covery is to avoid subjecting a government official to litigation as it could constitute a distraction from their duties, inhibition of discretionary action, and a deterrence of able people from public service.2 Courts have acknowledged that subjecting government officials to further proceedings ultimately would defeat the purpose of qualified immunity because it is just that - an immunity.

Who qualifies for qualified immunity? The short answer is any government official for whom the answer is “no” to either of the following two questions; (1) did the official’s conduct violate a clearly established right?3 and (2) would a reasonable person in his or her position know that said conduct violated

feature article

Qualified Immunity: Super Soldier Serum for Government Officials?

by Stephanie Caldwell

Stephanie CaldwellStephanie Caldwell is an Assistant Attorney General at Nebraska Attorney General’s Office. Stephanie is the Section Chief of the Civil Litigation Section. Stephanie focuses primar-ily on civil cases where the State of Nebraska, its agencies and/or employees are sued including tort, civil rights, declaratory judg-ment, employment, and wrongful conviction actions. In addition,

Stephanie serves as Legal Counsel for the Nebraska State Claims’ Board.

➡


a clearly established right? Courts have discretion to decide which of the two questions to answer first.4 This inquiry is an objective standard that depends on the objective legal reasonableness of the official’s conduct in relation to the legal rules that were clearly established at the time the action occurred.5 Qualified immunity does not depend upon the actor’s subjective, good faith belief that he or she was not violating a clearly established right, but instead depends upon whether or not the belief was “reasonable.”6 If the official pleading qualified immunity claims that he or she neither knew of nor should have known of the relevant legal standard, and such belief was reasonable, the immunity defense should be sustained.7

Given the often ambiguous and ever evolving areas of constitutional law, courts have recognized that it would be unreasonable to require governmental officials to be liable each time a consti-tutional violation occurred. Qualified immunity recognizes that government officials, even when they commit errors and cause constitutional violations, do not necessarily forfeit the immunity. A defendant retains qualified immunity, notwithstanding a constitutional viola-tion, provided an official in the defen-dant’s position reasonably, albeit mistak-enly, could have believed the conduct in question was lawful.8 In other words, a defendant’s reasonably mistaken under-standing of the law at the time of the challenged conduct does not preclude qualified immunity. Moreover, the tim-ing of the alleged violation is equally essential. Earlier this year, the United States Supreme Court, in Plumhoff v. Rickard, stressed its continued instruc-tion to the courts not to define “clearly established law” at a high level of gen-erality because doing so would avoid the crucial question of whether or not a defendant acted reasonably at the time the incident occurred.9 The Plumhoff decision affirms that courts are to look specifically at whether or not the right that was allegedly violated was “clearly established” at the time of the challenged conduct.10

Because the inquiry is one of law, and not fact, courts have held that it should be decided at the earliest possible stage of litigation.11 Attorneys, particularly in federal district court, should notify opposing counsel and the court of their intent

QUALIFIED IMMUNITY

Valuable Coverage NegotiatedExclusively For NSBA MembersWhether you need term life coverage to help protect your family … solid disability insurance coverage to help protect your income … or long-term care coverage to help protect your quality of life, NSBA-sponsored Insurance Plans are a smart financial safety net — that are NOT tied to any firm or employee benefit program.

Insurance Protection You Can Trust — For more information, call 1-866-236-6582 or visit www.nebarinsurance.com for your free, no-obligation information packet including costs, eligibility, renewability, exclusions, limitations and terms of coverage. No insurance agent will call.

65156 NSBA AP Ad (9/14)Full Size: 4.875” x 8.5” Bleed: na Live: naFolds to: na Perf: naColors: 1C=(Black)Stock: na Postage: na Misc: naM

ERCE

R

AR Ins. Lic. #303439 | CA Ins. Lic. #0G39709In CA d/b/a Mercer Health & Benefits Insurance Services LLC

Plans may vary and may not be available in all states.65156 (9/14) Copyright 2014 Mercer LLC. All rights reserved.

NSBA-sponsoredInsurance Plans include:

• Group Term Life Insurance*

• 10-Year or 20-Year Group Level Term Life Insurance*

• Professional Liability Insurance

• Group Disability Income Insurance

• Health Care Coverage

• Business Owners Package

• Workers’ Compensation

• Auto/Home Insurance Program

• Employment Practices Liability Insurance

* Underwritten by The United States Life Insurance Company in the City of New York.

AG-10745


QUALIFIED IMMUNITY

the issue. Another advantage of qualified immunity is that it authorizes officials to seek an immediate interlocutory appeal when a lower court refuses to grant the immunity claims at the summary judgment stage.15 Again, recognizing that it is an “immunity from suit,” courts allow these types of appeals to proceed when summary judgment is not awarded. As qualified immunity is essentially a legal question, an interlocutory appeal review makes sense. Otherwise, if an official were required to proceed to a trial that never should have been held, the benefit of qualified immunity would be effectively lost.16 Appellate courts traditionally lack jurisdiction to hear appeals unless they arise from a final order. Though, when an official asserts a qualified immunity defense, a direct recourse subsists in that they can appeal under the collateral order doctrine.17 These “non-final” orders are now appealable and thus immediately reviewable under this doctrine. This second level of review at the appellate level provides yet another safeguard to govern-mental officials in resolving their claims without having to go before a jury.

One thing is clearly established: like Captain America, qualified immunity affords government officials a durable shield when carrying out their often difficult tasks. It may not be as exciting as saving the world from the clutches of Red Skull or foiling another domestic attack by Hydra, but quali-fied immunity lets the government machinery function more smoothly. And while I may not wear red and blue spandex to work, at least to my son, I’m still a superhero.

Endnotes1 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)2 Id. at 816.3 Id. at 818.4 Pearson v. Callahan, 555 U.S. 223, 236 (2009)5 Harlow, 457 U.S. at 818.6 Pearson, 555 U.S. at 243.7 Harlow, 457 U.S. at 819.8 Id. at 818.9 Plumhoff v. Rickard, 134 S. 2012, 2023 (2014) (citing Ashcroft v.

al-Kidd, 131 S. Ct. 2074, 2084 (2011))10 Id.11 Hunter v. Bryant, 502 U.S. 224, 228 (1991)12 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)13 Id. at 248.14 O’Neil v. City of Iowa City, Iowa, 496 F.3d 915, 917 (8th Cir.

2007)15 Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)16 Parton v. Ashcroft, 16 F.3d 226, 228 (8th Cir. 1994)17 Mitchell, 472 U.S. at 527; see also Williams v. Baird, 273 Neb. 977

(2007)

to assert the immunity through responsive pleadings and in the parties’ Rule 26(f) report to the court. While much of the case law on qualified immunity arises from summary judgment decisions, it is possible to assert this immunity in an initial 12(b) motion to the court before even answering a pleading. This motion practice is particularly valuable when, from the face of the complaint, it is evident that a pleading has not alleged a “clearly established right” or when, viewing the facts in the light most favorable to a plaintiff, a cognizable consti-tutional claim has not been alleged. It can be claimed, under the applicable case law on this issue, that even if a court were to find a plaintiff has alleged a state actor deprived them of a constitutional right, that officials are nevertheless still entitled to qualified immunity because the plaintiff cannot establish that the right was clearly established at the time of the alleged deprivation.

Just as the striped crusader Captain America has recurring enemies that attempt to infiltrate his shield, qualified immunity is not forever impenetrable. Courts have refused to grant the immunity based on a finding of a material issue of fact at the summary judgment stage. When factual disputes over the cen-tral elements of a claim exist, courts decline to resolve a quali-fied immunity claim at the summary judgment stage. Thus, a common response by plaintiffs to the assertion of qualified immunity is to allege that genuine issues of material fact exist. While this may sound like an absolute bar to the assertion of the immunity, it is not as clear-cut as this archenemy of quali-fied immunity attempts to maintain. Rule 56(a) provides that summary judgment shall be granted if the movant shows that “there is no genuine dispute as to any material fact.” As recog-nized by the United States Supreme Court, the standard, by its very terms, provides that some alleged factual disputes will exist.12 But, the mere existence of disputed facts will not over-come an otherwise properly supported motion for summary judgment. Only if “genuine” disputes of material facts exist – that is evidence where a reasonable jury could return a verdict for the nonmoving party – will summary judgment be denied.13 Thus, in qualified immunity cases, courts should be careful not to deny summary judgment any time an issue of fact exists as it not only undermines the goals of qualified immunity but it is contrary to the summary judgment standards. In response to the assertion of disputed facts by plaintiffs, courts should make a thorough determination of the record and determine which facts are indeed “genuine.”14

Although qualified immunity is a long recognized doctrine with ample case law on the issue, its function and application, particularly in the state courts, mystifies and puzzles some courts. Hence the ample number of appeals and opinions on


2014 Outstanding Young Lawyer AwardNOMINATION FORM

The Outstanding Young Lawyer Award is presented annually to a young lawyer who has made exemplary contributions to the community and to public service, who has actively participated in State and local bar activities, and who stands out in the areas of professional knowledge, skill, integrity and courtesy.

Screening and Selection Criteria• A “young lawyer” is any lawyer who has been engaged in the practice of law for five (5) years or less or who is under the age of thirty-six (36).• The nominated individual will have demonstrated the following qualities:

o Active participation in state and local bar activities;o Demonstrated service to the public;o Actively seeks to improve and enhance the public’s perception of the legal profession;o Stands out in areas of professional knowledge, skill, integrity and courtesy.

To nominate a young lawyer for this award, please complete and return this form. You may be contacted, confidentially, for more information on your nominee. Nominations must be received no later than September 12, 2014, by the YLS Executive Committee, c/o Katie Zulkoski; Mueller Robak, LLC; 530 S 13th St. #110; Lincoln, NE 68508. Nominations may also be e-mailed to [email protected].

NOMINEE NAME AND ADDRESS:____________________________________________________________________________________________________________________________________________________________________________

In a few paragraphs, please describe the reasons for nominating this person for the Outstanding Young Lawyer Award (if additional space is needed, attach a letter to this form).

Along with your nomination, you may submit a copy of the nominee’s resume and up to five (5) letters of recommendation by those qualified to speak of the nominee’s qualifications for this award.

Name of Nominator ________________________________ Phone Number ______________________


We hire the Public Counsel to be the public’s lawyer on our behalf ... This is the person you and I have hired and said, here is your gate into state government. You’ve got a problem, our bureaucracy isn’t working, you have some rights, state government isn’t giving them to you, here is your portal to the State of Nebraska. White, black, rich, poor, we make the door open to everybody and this is our person that we have said can do these kinds of things on behalf of the public, not the white public, not the red public, not the black public, the public. This is our employee that we have held out and said, as best as we can do as a legislative branch, here is the Public Counsel to give you a way to deal with difficult, intricate questions that involve your rights with respect to a bureaucracy.

Senator Dave LandisLegislative Debate on LB 340March 23, 1989

History of the OfficeThe concept of the Ombudsman is centuries old with

roots reaching back to the cultures of China, Korea, Persia and Rome, where officials were appointed and placed to help gov-

ern the people. The modern use of the Ombudsman was insti-tuted by the Swedish Parliament in 1809, establishing a legis-lative agency with direct access into government agencies that was itself independent of the executive branch. The Nebraska Legislature adopted this classical model of the ombudsman when it established the Office of Public Counsel/Ombudsman through its passing of LB 521 in 1969. Under classic model, the Nebraska Public Council would be an independent officer appointed by the Legislature for a term of six years. In 1971, two years after the office was created, Mr. Murrell McNeil began his service as Nebraska’s first Ombudsman. Mr. McNeil retired from the position after nine years of service and was replaced by then Deputy Ombudsman, Marshall Lux. Mr. Lux has served as the State Ombudsman since 1980. Under his adroit leadership the Ombudsman’s Office has become a vital arm of the Legislative branch assisting constituents with obstacles they face in dealing with state government, while helping to make state government more responsive and respon-sible to the people.

The Legislature’s establishment of the Ombudsman’s Office was well-timed as the scope of state government over the last half century has experienced tremendous change and frequent challenges. Due to the expanding influence of government in citizens’ lives, as well as the greater complexities in the role of government, the Ombudsman’s Office was ideally situated to assist people with their needs. Throughout its existence, the role of the Ombudsman’s Office has been refined and expanded in response to particular needs. As Nebraska and others states faced challenges in particular arenas of state government, the Legislature sought the assistance of the Ombudsman’s Office in addressing these concerns locally. For example, in the mid 1970’s, policy-makers throughout the nation saw a tremendous

feature article

“Working to Make Government Work”:The Story of the Nebraska Office of Public Counsel

by Carl B. Eskridge

Carl B. EskridgeCarl B. Eskridge has been in the Office of Public Counsel since graduating from the University of Nebraska College of Law in 1996 and currently serves as the Deputy Ombudsman. Carl is also an experienced mediator and a mem-ber of the Lincoln City Council, serving Central and Northwest Lincoln.

➡


need for reforming the corrections system. In response to the national crisis in corrections, the Legislature established the first specialist position, the Deputy Ombudsman for Corrections. The goal of this position was to provide dedi-cated staff who were equipped to assist incarcerated persons in addressing issues related to their imprisonment. The Deputy for Corrections not only provides a listening ear which by itself helps to reduce anger and frustration, but also serves as a voice to prison administration to effect necessary change.

More recently, as Nebraska counties have expanded their own correctional facilities and are housing more of their own inmates and detainees for longer periods of time, the Legislature responded to inmate needs across the state by adding jurisdiction for the State Ombudsman to address com-plaints relative to county jails. Here again the Legislature’s action was important, not only to address a rapidly increasing number of corrections issues, but this 2008 legislation has also put in place an important foundation as the state’s overcrowded prisons are now transferring state inmates to county jails at the completion of their sentences to reduce overcrowding in the state’s prisons.

Similarly, when the state’s system of delivering welfare services was dramatically restructured, the Legislature had the foresight to know that many recipients of these services would need assistance in navigating the changed system. In order to

better serve the needs of the citizens of the state it was impor-tant to have the energy and the expertise of someone devoted to addressing the challenges presented by the new system. Therefore in 1994 the Legislature approved a new Deputy Ombudsman for Welfare Services.

Over the last decade the challenges of addressing the needs of children and family in our state have increased dramatically. While the Ombudsman’s Office continues to be responsive to those issues, the Legislature recognized the need for a compre-hensive understanding of the systemic issues that are impacting families. In order to address these systemic complexities, the Legislature established the position of Inspector General for Children and Families in 2012. While the Inspector General is physically housed within the Ombudsman’s Office, the duties of the Inspector General are separate and distinct from the work of the Ombudsman in responding to individual complaints.

Changes in how the State of Nebraska chooses to treat its veterans, persons with serious mental health issues, and individ-uals with developmental disabilities have resulted in a great deal of concern about the well-being of the most vulnerable members of society. The issues related to the individuals housed in these facilities require persistent and careful attention as well as a great deal of knowledge of the systems that are at work. Therefore, in response to the new challenges being presented by the changes to the state’s institutions, in 2008 the Legislature created a

NEBRASkA OFFICE OF PUBLIC COUNSEL



at a community custody prison, I contacted the warden and arranged to meet with him about their concerns. Upon the completion of the meeting, we had lunch where the warden providing additional insight into the institution. Later that afternoon, in a meeting with the complainants, the inmates knew of my lunch date with the warden, seeing it as a violation of my independence from the administration.

Impartiality and Fairness. Similarly, the ombudsman must also seek to be impartial and fair. The perception of some com-plainants is that, even though the Ombudsman’s Office is inde-pendent of the executive branch, the office is still a state agency and likely to side with the state. On the other hand, there are bureaucrats who perceive that the Ombudsman is biased against their departments. Responsible work requires that the ombuds-man demonstrates to both the complainant and the agency impartiality and fairness. In those occasional instances where an agency is unresponsive, the Public Council Act provides the Ombudsman with subpoena power to require cooperation rela-tive to an investigation. Neb. Rev. Stat. § 81-8,245(5).

Credibility. Though the work of handling expanding numbers of complaints can be emotionally challenging, the staff of the Ombudsman’s Office tend to remain in their positions for lengthy tenures. Over a period of years, as staff demon-strate their knowledge, their fairness, and their effectiveness in obtaining results, they prove their credibility. When county jails were added to the jurisdiction of the Ombudsman, sheriffs and jail staff did not welcome the added scrutiny. However, with the experience of working with ombudsmen over the last six years, there has been a much improved working relationship.

Confidentiality. The final characteristic, confidentiality, can be particularly challenging to an ombudsman. It is not unusual where the complainant fears retaliation for the com-plainant to seek to remain anonymous. And yet, it is often the case that the complainant is so closely tied to the issues in the complaint that it is extremely difficult to protect the confidentiality of the complainant. Despite the challenges, the ombudsman will always honor the confidentiality of the com-plainant. Confidentiality is a frequent issue in cases from state employees. If the complainant qualifies as a whistle blower under the State Government Effectiveness Act, the employee complainant is protected against retaliation. Other employee complainants are also protected against retaliation under the Public Counsel Act. Neb. Rev. Stat. § 81-8,254. The Act also contains a shield provision whereby the Ombudsman may not be required to testify or to produce evidence in a judicial or administrative proceeding relating to a complaint. Neb. Rev. Stat. § 81-8,253.

While each case typically begins with a complaint, the Nebraska Ombudsman also is provided with the ability to self-initiate an investigation into any administrative act of a

Deputy Ombudsman for Institutions. It is important to note that as more services are being delivered by private providers in the community, the Deputy for Institutions is becoming increas-ingly involved in communities throughout the state.

Another important and increasingly complicated area of involvement concerns the Ombudsman’s attention to the issues of state employees. In order to promote governmental efficiency and to discourage official misconduct, in 1993 the Legislature passed the State Government Effectiveness Act. One of the provisions of the Act was the addition of protection to state employees against retaliation when they have disclosed significant wrongdoing in state government. State employee issues, including whistle blower cases, are addressed by the Deputy Ombudsman.

By way of summary, the Legislature has recognized the necessity to position the Ombudsman’s Office in order to its respond to the challenges and the complexities of state govern-ment. The foresight of the Legislature has resulted in staff that are equipped and able to respond to significant increases in caseloads. In 2013 the Ombudsman’s Office received a record 3042 cases. After the first seven months of 2014, the Ombudsman is on track to exceed 3200 cases in 2014.

How the Ombudsman’s Office Works

Mission Statement

To promote accountability in public administration and provide citizens with an informal means for the investigation and resolution of their complaints against the administrative agencies of Nebraska State Government.

Without question the ombudsman’s work is much more of an art than it is a science. There is no prescribed meth-odology or process that an ombudsman is expected to follow in all instances. With a staff of eleven unique professionals, the Ombudsman recognizes that each ombudsman has their own style and process for handling cases. Professional staff have backgrounds in law, social work, government, including work within state agencies and the offices of legislators and the governor. Each ombudsman utilizes their own skills in their work investigating and resolving complaints. While there are no formal procedures required of the ombudsman’s work, there are several critical characteristics that guide the work of the ombudsman working in the classical model.

Independence. As a legislative agency, the Ombudsman’s Office is positioned to have independence from the execu-tive department of state government. Maintaining that independence is an important component as each ombuds-man investigates the citizen’s complaint and seeks to find a resolution. Indeed, this writer was the beneficiary of a valu-able lesson about the importance of independence early in my career. Having received a petition on conditions from inmates ➡



ConclusionDuring its nearly half century of service, the growth of the

Nebraska Ombudsman has paralleled the remarkable growth in the prominence of various forms of alternative dispute resolu-tion. For example, in recent years there have been dramatic changes within the legal system, not just tolerating media-tion and arbitration, but frequently with courts ordering these practices. Similarly, there has been a dramatic expansion of ombudsmen in areas of government, business, health care, and higher education. Many of the newer uses of the ombudsman concept are so-called “organizational” ombudsmen. Unlike the classical model, the organizational ombudsman is hired by the agency or corporation and works at the direction of the employer to resolve issues. While there are certain advantages to the organizational model, the independence of the ombuds-man provided under the classical model offers citizens strong assurances that government is both responsive and responsible. In this instance, the classical model serves as an invaluable arm of the Nebraska Legislature in providing effective constituent services and holding governmental agencies accountable.

state agency. Neb. Rev. Stat. § 81-8,245(1). When a case is received, it is assigned to a staff person trained in that area for investigation and resolution. The assigned ombudsman will discuss the issues with the complainant and come to an under-standing of the concerns, review applicable laws and regula-tions that relate to each issue, and contact the agency seeking to negotiate a successful outcome of the complaint.

At the conclusion of each case the ombudsman makes a determination as to whether the complaint has been justi-fied. In more complex cases a written report may be gener-ated; however, due to the expanding case load, written reports are by no means the norm. It is much more common for the ombudsman to quietly resolve the issue with agency administra-tion and report the outcome to the complainant. Developing positive working relationships is critical to the effectiveness of the ombudsman. Typically when the ombudsman contacts an agency, the ombudsman only has the information supplied by the complainant. While the natural instinct of agency staff may be defensiveness, seasoned staff know that the ombudsman has an important role in accountability and typically are very respon-sive to inquiries. Indeed, some state agencies seem to value the role of the ombudsman and are frequent sources of referrals with complainants seeking the assistance of a third party.

In cases where there is a finding critical of an administra-tive agency or a person within an agency, the Ombudsman shall consult with the agency or person prior to announcing a conclusion which may be announced in a published report. Publishing reports that are critical of the actions of policies of departments requires careful attention to both the facts and the findings, as the executive office will often challenge the findings and may attempt to shift blame to the Ombudsman, the Legislature, or some other entity. Such was the scenario following the Ombudsman’s report on a highly publicized series of murders committed by a recently released state inmate, when the governor attacked the Ombudsman as being “soft on crime.” Senator Steve Lathrop, while speaking on the floor, described the link of the Ombudsman to the Legislature.

The Ombudsman’s Office is actually an extension of this body. It is an extension of the Legislature itself. We have the Ombudsman’s Office to investigate the conditions in a variety of settings. They look at mental institutions. They look at conditions like the Beatrice State Development Center. They’re charged with looking at conditions in county jails and the state’s corrections system. And they investigate. And we established the Office of the Inspector General within the Ombudsman’s Office to investigate all of the problems that have developed over the last several years in child welfare...They are our eyes and they are our ears and when they give us a report, we should take note. We should take note.

Senator Steve LathropLegislative Debate on LB 174January 17, 2014

IPE 1031 • 1922 INGERSOLL AVENUE • DES MOINES, IOWA 50309515.279.1111 • 888.226.0400 • FAX 515.279.8788 • [email protected]

WWW.IPE1031.COM

Manage Exchange and Professional Risk with the Midwest’s

Premier Exchange Resource


Call an ABA Retirement Funds Program Regional Representative today!

(866) 812-1510 I www.abaretirement.com I [email protected]

NO FIRM IS TOO SMALLFOR A COMPREHENSIVE AND AFFORDABLE RETIREMENT PLAN.

The ABA RETIREMENT FUNDS PROGRAM has provided

retirement plan services to firms of all sizes – even solo

practitioners – since 1963. We believe today, as we did then,

that the unique needs of the legal community are best served by

a retirement Program built exclusively to benefit its members.

The Program is available through the Nebraska State Bar Association as a member benefit. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security. Securities offered through ING Financial Advisers, LLC (Member SIPC).The ABA Retirement Funds Program and ING Financial Advisers, LLC, are separate, unaffiliated companies and are not responsible for one another’s products and services.

CN0228-8312-0315


Support the ProfessionNebraska Lawyers Assistance Program (NLAP): Offers help to lawyers, judges and law students troubled by sub-stance abuse, stress, depression and other types of disorders that may have a negative impact on their practice of law as well as their personal lives.

SOLACE: Provides assistance to anyone within the Nebraska legal community who suffers a sudden, catastrophic loss due to an unex-pected event, illness or injury through a statewide network of attor-neys willing to get involved. SOLACE does not solicit cash, but can assist with contributions of clothing, housing, transportation, medi-cal community contacts, and a myriad of other possible solutions.

Continuing Legal Education: NSBA provides an annual curriculum of seminars aimed at improving professional knowl-edge, skill, and overall competence of the members of the NSBA. Seminars are offered throughout the year in a variety of formats (live, webinars, teleconference, etc.)

Legislative Program: In addition to keeping practitioners up to date on changes to the law, the NSBA Legislative Program rep-resents attorneys’ professional interests. For example, in 2014, the NSBA was instrumental in the passage of a bill providing student loan forgiveness for attorneys serving in rural communities with limited access to attorneys.

Leadership Academy: The mission of the academy is to: nur-ture effective leadership with respect to ethical, professional and community service issues; build relationships among legal leaders from across the state and from across disciplines; raise the level of awareness among lawyers regarding issues facing the legal profes-sion; and enhance the diversity of leaders within the legal profession.

Fee Arbitration: Provides for expeditious resolution through voluntary arbitration of disputes involving fees charged by attorneys. It is available to both attorneys and their clients and also provides a forum for voluntary arbitration of fee disputes between attorneys and physicians, stenographers, consultants and expert witnesses.

Seek Counsel of Professional Expertise (SCOPE): A lawyer-to-lawyer, case-specific information service that provides the opportunity for an attorney who is unfamiliar with a legal area to talk to an attorney who is more experienced and knowledgeable.

Strengthen the CourtsJudicial Resources Committee: The NSBA proposes, con-siders and comments on the creation, reduction and relocation of judicial vacancies in the state courts.

Minority Justice Committee: A Joint Committee of the NSC and NSBA established to examine and address issues of racial and ethnic fairness in the courts.Responding to Unjust Criticism of Judges: Upon re-quest, the NSBA has adopted guidelines for responding when judges are subject to unfair criticism and educates the public on the importance of a fair and impartial judiciary.

Self Help Desks: The Self-Help desks offered through the Volunteer Lawyers Project assists the courts with the increasing number of pro se litigants (currently offered in Buffalo, Douglas, Hall, Lancaster, and Madison).

Legislative Program: The NSBA Legislative Program supports the Court systems. For example, NSBA lobbying protects the Court’s budgets and advocates for judicial salary increases, works to create new judgeships, helped to establish the Court of Nebraska Court of Appeals and the merit selection and retention system for judges, etc.

Practice and Procedure Committee: Makes recommen-dations concerning the betterment of judicial administration in all courts of this State, the improvement of the working conditions and compensation of the members of the judiciary and the evalua-tion and promotion of an independent and impartial judiciary. The Committee also evaluates the operation of the Nebraska Rules of Evidence (including all proposed changes) in order to determine their adequate operation.

Support the PublicVolunteer Lawyers Project: Provides legal assistance to low income Nebraskans through its self-help desks and direct case placement with pro bono attorneys.

Judicial Evaluation Poll: A poll taken in even-numbered years by the active NSBA membership which reviews the per-formance of Nebraska judges both state and federal. Results are mailed to the judges and later a summary is released to the press. NSBA also prepares voters’ guides to the help voters understand judicial retention elections.

Client Assistance Fund: Established in 1974, the purpose of the Client Assistance Fund is to reimburse a client who has suffered a financial loss due to dishonest attorneys.

Rural Practice Initiative: Expands access to legal services by helping to facilitate the placement of attorneys in underserved communities.

NSBA Programs


Your writer is a bit tardy in getting this to print, but LB 103, Laws 2013 removed the last remaining barriers to using video conferencing, telephonic, or other similar methods to present witnesses to be examined on oral examination, together with removing the geographical restraints on judge’s authority to act when outside their jurisdictions.

There have been very expansive enactments of the Legislature in recent years to expand the ability of courts to conduct proceedings in non-traditional styles using the latest technology to bring people together. Several statutes were amended to allow for using videoconferencing, telephonic communications and other similar methods to enhance the access to justice of the citizens of this state. However, there was an omission which frustrated all those efforts and that was the language of § 24-734 Neb. Rev. Stat. which greatly limited the ability to conduct proceedings in non-traditional styles, particularly when it came to presenting witnesses to be examined by oral examination using any of those new tech-nologies. What LB 103 did was to add specifically the terms videoconferencing and similar methods to the list of approved technologies. Moreover, it added a new section which gave specific authorization, with the consent of the parties, to permit any witness to be examined by oral examination to appear tele-phonically, by videoconferencing, or any similar method. This amendment throws open the door of emerging technology to the courts for use in an appropriate case. For those of us in rural courts it can ease the challenges of scheduling expert wit-nesses, social workers, and other providers who would other-wise have to travel long distances in order to appear before the

court. Even urban courts which may encounter more complex cases where experts from around the county may be required might be able to use this new authority to ease the difficulties of scheduling and reduce substantially the costs of that testi-mony. For persons who are incarcerated, it may make possible appearance in civil cases where they would otherwise be unable to afford the costs of appearance.

These technologies can offer access to more than just wit-nesses. They can be used to allow the court to provide judicial services, especially on time sensitive cases, to courts which are distant from where the judge might be located. For example, just last week I needed to do a juvenile detention hearing within 48 hours of a removal from home, but I was sched-uled and had a large docket in a county 50 miles distant from where the hearing was needed. The parties gathered in the courtroom and I used the State’s Jabber system to appear by videoconferencing. I was able to see all the parties, confer with counsel, take evidence, and render a temporary order in a mat-ter of thirty minutes. Had I traveled to the site of the hearing if my schedule would have permitted that in the first place, it would have taken at least three hours. There was no disruption for litigants in either county. When you think of technology in terms of access to justice, it makes sense to use everything you have to better serve our citizens. Prisoners awaiting bond hearings may find the court can hear that matter far sooner by videoconferencing than waiting for the next regular court day, which in some places can be two weeks or more.

In addition, LB 103 removed geographical barriers to judge’s acting on cases when they are not in their home courts or in the State for that matter. County Judges who use signdesk and docket on a regular basis and handle warrant requests by email can respond to requests from anywhere they can reach the internet. These tools will soon be available to district judges as well. Untethering the judge from the court-house can also enhance access to justice. Technology can help serve our citizens better and the provisions of LB 103, Laws 2013 does a lot to expand those powers. So just in case you missed it, give it a read.

court news

In Case You Missed It! Changes Made By LB103, Laws 2013by Patrick R. McDermott, County Judge

Hon. Patrick R. McDermottHon. Patrick R. McDermott has served as a 5th Judicial District County Court Judge since he was appointed in 1997. He is a gradu-ate of the Creighton University School of Law in 1974 and served in the Douglas County Public Defender’s Office doing juvenile cases until 1978. From 1978 to 1997, Judge McDermott engaged in the general practice of law and served various counties in Western

Nebraska as County Attorney.


Judicial Evaluation Poll Results


JUDICIAL EVALUATION POLL RESULTS

Nebraska Court of Appeals Please read a// instructions before beginning your evaluation.

Please rate each judge with whom you have professional experience on items #1-8 by writing one number in the appropriate space.

201

N" ... Ill

Use this scale: i5

" Cll 5 = Excellent (performance is outstanding) ~ 4 =Good (performance is above average) a: 3 = Satisfactory (perfom1ance is adequate) 2 = Deficient (performance is below average) ~ 1 = Very Poor (performance is well below average and Qi

<1l

unacceptable) .r:. .!::!

n = No Opinion :!!

Characteristics

1 LeQal Analysis 3.78

Impartiality: actions not affected by any outside influence 2 or the nature of the case 3.94

3 Attentiveness: oral arQuments 4.36

4 Opinions: quality and clarity of writinQ 3.83

5 Judicial Temperament & Demeanor 4.28 Appropriate Communication: absence of undue personal observations or criticisms of litigants, judges or lawyers;

6 from the bench or in written opinions 4.26 Does the judge do his/her work in a prompt and t imely

7 manner? 4.20

Yes 92.2%

In your opinion, should this judge be retained No 8 in office? (Circle the appropriate answer) 7.8%

*Retention Date 11 /2014

202 203 204 205

M ... ii) Ill <O i5 ... - ~ Ill ...

c: e. Ill c: ... i5 <1l Ill -E i5 ;::...

Cll "O

~ - 0 0 ii: C: .c 0

·~ .: :!: (.) - ci -; Q) u.: i:: Q)

'(3 c: Cll 32 c: ... c: <1l .r:. Cll ~ ... 0 >

LL. ..., w LL

3.85 4.16 3.95 3.86

4.03 4.19 4.07 4.04

4.35 4.44 4.36 4.34

3.91 4.17 3.95 3.87

4.30 4.40 4.27 4.30

4.35 4.41 4.31 4.32

4.14 4.27 4.15 4.19

Yes Yes Yes Yes 92.3% 89.7% 91.5% 86.7% No No No No 7.7% 10.3% 8.5% 13.3%



Nebraska District Court (2nd & 4th Districts) Please read all instructions before beginning the evaluation.

Please rate up to 30 district court judges with whom you have professional experience. Rate each judge on items# 1-13 by writing one number in the appropriate space.

301 302 303 304 305

N' N' .... • "' N' .... Use this scale: e. "' .... .... e. "' . "' e. E N' e. 5 = Excellent (performance is outs1anding) ~

:::J ..... QI .s ::! 4 =Good (performance is above average) -e "' -"' .2 e. c "' QI .. 3 = Satisfactory (performance is adequate) t: :::J N = u. "' 2 = Deficient (performance is below average) < = ai < u -; 1 = Very Poor (performance is well below average :.:: Qi ~ >. E

'C ::.:: ~

.. and unaccep1able) ·:;: )( ~ :;:

n = No Opinion .. .. QI ~ ~ 0 :::!!'; ...,

Characteristics 1 Legal Analysis 4.32 3.70 4.34 3.88 3.63

Impartiality: actions not affected by any outside 2 influence or the nature of the case 4.21 3.78 4.32 3.96 3.63

3 Attentiveness: arguments and testimony 4.49 3.89 4.47 4.05 3.79

4 Opinions: quality and clarity of writing 4.32 3.83 4.30 3.82 3.63

5 Judicial Temperament & Demeanor 4.42 3.43 4.55 4.14 4.01

Appropriate Communication: absence of undue personal observations or criticisms of litigants, judges or lawyers; from the bench or in written

6 opinions 4.40 3.76 4.54 4.16 3.98

Performance of his/her work in a prompt and 7 timely manner 4.45 4.23 4.47 3.95 3.75

Fairness: treats all equally, without regard to race, gender, age, national origin, religion, disability,

8 sexual orientation or economic status 4.41 4.09 4.53 4.35 4.04

9 Efficiency: Docket management and scheduling 4.40 4.13 4.35 4.07 3.79

10 Punctuality: attendance at court proceedings 4.63 4.44 4.62 4.41 3.97

11 Trial Management 4.52 4.03 4.38 4.19 3.88

Yes Yes Yes Yes Yes 49.0% 48.1% 44.9% 48.8% 90.1%

Is your principal practice in this judge's district? No No No No No 12 (Circle the appropriate answer) 51.0% 51 .9% 55.1% 51.3% 9.9%


In your opinion, should this judge be retained in No No No No No 13 office? (Circ le appropriate answer) 3.8% 14.2% 1.6% 9.5% 14.4%


306 307 308 309 310

• • • • .... .... "' .... .... e. "' "' • "' e. e. e. .....

- . "' c QI "' :.. e. g -~ E ~ ~

~ 0 :::> Q; 0 ID ID 0 0 ..

ID Qi a: Qi Qi u "' >. .. "' "' = = :::> 0 u "' ii a: :E :::J

E a: QI ~ 0.. i= -; -;

3.83 3 .79 4.31 3.88 3.88

3.80 3.87 4.20 3.90 3.87

4.07 3.93 4.34 4.04 4.02

3.82 3.81 4.21 3.84 3.94

4.1 1 3 .99 4.47 4.1 1 4.29

3.94 4.03 4.42 4.07 4.27

3.75 3.86 4.32 3.88 4.05

4.03 4 .1 4 4.45 4.19 4.13

3.95 3 .84 4.29 3.95 3.98

4.03 4.24 4.47 4.23 4.22

3.98 4.04 4.32 4.09 4.00

Yes Yes Yes Yes Yes 90.7% 91.7% 92.7% 91.8% 91 .8% No No No No No 9.3% 8.3% 7.3% 8.2% 8.2%

Yes Yes Yes Yes Yes 86.0% 91.4% 97.6% 91.6% 88.2% No No No No No 14.0% 8.6% 2.4% 8.4% 11 .8%



Nebraska District Court (2nd & 4th Districts) Please read all instructions before beginning the evaluation.


311 312 313 314 315

• • ... • ... • "' "' e. cs ... ... • Use this scale: "' "' ~ e. §. ·= ...

c "' ... c .. 0 e. 5 = Excellent (performance is outs1anding) QI "" ""' .<: 0 Q. c "' . 4 =Good (performance is above average) Cl ~ .. .><

"' .. a. QI 0 0 3 = Satisfactory (performance is adequate) 0 c (5 :E a. <i. 2 = Deficient (performance is below average) <.) ....,: >. ci

1 = Very Poor (performance is well below average en ;::

QI en .. ~

c c QI E 0

and unaccep1able) .. E 0 E ;::

n = No Opinion "' .. .<: ~

.. c ..., I- ~

Characteristics 1 Legal Analysis 3.79 3.62 4.39 3 .65 3.39






6 opinions 4.21 3.66 4.52 4.20 4.09






11 Trial Management 4.1 1 3.90 4.36 4.01 3 .73


Is your principal practice in this judge's district? No No No No No 12 (Circle the appropriate answer) 7.6% 8.2% 9.6% 6.6% 6.9%


In your opinion, should this judge be retained in No No No No No 13 office? (Circle appropriate answer) 6.0% 16.1% 4.0% 15.1% 18.0%


316 317 318 319 320

• .., • • "' • e. ... .., • .., "' "' en 't: e. e. ... e. 0 "' "Cl !:! c e. "' .. .

]l .. s .<: ..

IV u "() "Cl QI I/) ~ ... c 0:: Ui I-.. c :E 0:: c ~

Cl)

ai ~ ~ .<: .<: 0 .2:- Q.

~ Cl QI Cl l!! Qi en .. Qi .<: 0 (!) ...J (!) I/) ...,

4.08 4.18 3.53 3.91 3.88

3.94 4.13 3.58 4.00 4.01

4.21 4.29 3.65 4.14 3.97

4.11 4.13 3.68 4.02 3.88

4.06 4.18 3.49 4.19 4.13

4.13 4.19 3.71 4.23 4.14

3.99 4.27 3.84 4.16 4.00

4.14 4.22 3.91 4.11 4.22

4.07 4.23 3.95 4.12 4.13

4.13 4.33 4.05 4.29 4.30

4.12 4.23 3.87 4.10 4.07

Yes Yes Yes Yes Yes 92.1% 92.0% 92.1% 92.8% 91 .0% No No No No No 7.9% 8.0% 7.9% 7.2% 9.0%

Yes Yes Yes Yes Yes 87.6% 93.5% 81 .4% 94.6% 88.9% No No No No No 12.4% 6.5% 18.6% 5.4% 11 .1%



Nebraska District Court (3rd District)

Please rate up to 30 district court judges with whom you have professional experience. Rate each judge on items# 1-13 by writing one number in the appropriate space

321 322 323 324 325

;:;-..... "' ;:;-

Use this scale : ;:;- ;:;- §. ..... ..... ..... . "' "' .. c §. §. §. GI ;:;-.. ...: 5 = Excellent (performance is outstanding) .'2 .... "' E 0

..., "' 4 =Good (performance is above average) E 0 u tf §.

3 = Satisfactory (performance is adequate) :I .'2 .. 'E ID 0 ..., c c: GI 0 2 = Deficient (performance is below average) c:i (,) ::;; "'

1 =Very Poor (performance is well below average c <i. ~ c:i Qi GI GI z

c -c and unacceptable) > :; 'ij ~

.=. n = No Opinion 0 c .. 0

(/) ..., ~ D.. ...,

Characteristics 1 Legal Analysis 3.29 3 .93 3.82 4.38 3 .93




5 Judicial Temperament & Demeanor 3.15 4.23 4.32 4.05 3 .97


6 opinions 3.38 4.21 4.28 4.14 4.08










In your opinion, should this judge be retained in No No No No No 13 office? (Circle appropriate answer; ) 31.9% 9.8% 5.5% 4.9% 9.2%

•Retention Date 11 /2014

326 327

;:;-.... "' ;:;- §.

.... '>. "' §. u ~

GI (/) :t: ....: 0

GI c: c t: ..

.=. GI .'2 Q,

~ 0 a: (/)

3.49 3 .92

3 .84 3 .98

3.96 4.30

3 .69 4.06

4.15 4.20

4.15 4.27

3 .98 3 .55

4.14 4.30

3 .87 3 .71

4.25 4.20

3 .91 4.09

Yes Yes 88.9% 88.5% No No 11.1% 11.5%

Yes Yes 87.7% 95.4% No No 12.3% 4.6%



Nebraska District Court (All Other Districts) Please read all instructions before beginning the evaluation.


328 329 330 331 332

;:::-~

+.l ;:::- ...... ;;:;- ;;:;-.. +.l Use this scale: e. +.l .. +.l ... .. e. .. "' e. e. . e. ..: . 5 = Excellent (performance is outs1anding) ..,

c "' . 41

c 0 c 41 .>< 4 =Good (performance is above average) .. ::J "' c

~ c Iii ·c: ~ 3 = Satisfactory (performance is adequate) .<::. 5 :!:! ID 0 (/)

2 = Deficient (performance is below average) .., ::.:: G a: u.i 1 = Very Poor (performance is well below average ....i ~ u t: Qi >- ~ 41 and unacceptable) ·;: -"' :; &>

n = No Opinion .. u .. .. 0 0 > 0.. :::!: a::



3 Attentiveness: arguments and testimony 3.98 4.1 1 4.52 4.04 4.65




6 opinions 3.68 4.11 4.60 4.14 4.65





10 Punctual ity: attendance at court proceedings 4.63 4.52 4.49 4.16 4.65







333 334 335

~ ~ ~

u; +.l ... "' .. e. e. e. . .

c c c;; 0 .. :z: "' .<::.

E OI u .. ::J (/) ..

>- > 41 u.i ....; ii: c 0 .<::. :; 41 0 .. (.!) .., 0..

4 .03 4.30 4.35

3 .83 4.23 4.50

4.00 4.49 4.55

4.07 4.37 4.30

4.06 4.32 4.68

4.14 4.30 4.67

4.23 4.51 4.31

4.33 4.48 4.48

4.31 4.48 4.44

4.35 4.61 4.45

4.50 4.53 4.37

Yes Yes Yes 29.4% 25.4% 27.3% No No No 70.6% 74.6% 72.7%




Nebraska District Court (All Other Districts) Please read all instruc tions before beginning the evaluation.

Please rate up to 30 d istrict court judges with whom you have professional experience. Rate each judge on items# 1-13 by writing one number in the appropriate space

336 337 338 339 340

;::: 00 a> 00 Use this scale: ... ;::: ... ... Ill ... Ill ... ., e. ., e. ., e. e. e. 5 = Excellent (performance is outstanding) c . QI 0 ""' .,

8' 4 =Good (performance is above average) Ill QI QI QI

.Q ., -"' 3 = Satisfactory (performance is adequate) c :::i ·;;:; .. c .c

0 !.:: 0 0 QI

2 = Deficient (performance is below average) .., ci !.:: z .!:! 1 = Very Poor (performance is well below average <i. ., ci ....i a:

~ QI

~ c c and unacceptable) E ·;:: .c

n = No Opinion .. .. .. .. 0 :::!: .., :::!: !.:: ..,

Characteristics 1 Legal Ana lysis 4.37 4.32 4.00 3 .10 4.35




5 Judicial Temperament & Demeanor 4.59 4.50 3 .73 3 .57 4.34


6 opinions 4.54 4.34 3 .81 3 .64 4.40

Performance of his/her work in a prompt and 7 timely manner 4.42 4.31 4.00 3 .70 4.18


8 sexual orientation or economic status 4.59 4.53 4.15 3 .66 4.48



11 Trial Management 4.48 4.53 4.19 3 .53 4.27


Is your principal practice in th is judge's district? No No No No No 12 (Circle the appropriate answer) 47.4% 53.5% 70.2% 76.4% 45.7%


In your opinion, should this judge be retained in No No No No No 13 office? (Circle appropriate answer) 0.0% 5.1 % 13.0% 25.9% 4.4%


341 342 343 344 345

0 a> ~ .., ..,

Ill Ill

a> a> 0 e. e. ... ... ~

E . ., ., ... c e. e. ., £ e. ~ ., .... -"' QI .c

'L "' c = "' ~ ;; ~ QI

:::i "E ::::; ..... .. er: ci :.:: ....: :i:: c ., .. E <I) QI QI .,

~ .c

E f "E Q. .. QI ~ QI ~ .., ..... ..... "' 4.34 4.19 3.51 4.25 4.13

4.32 4.12 3.72 4.39 4.22

4.38 4.27 3.71 4.43 4.16

4.13 4.21 3.73 4.33 4.07

4.23 4.33 2.97 4.46 4.22

4.39 4.46 3.40 4.47 4.37

4.30 4.18 3.98 4.41 3.73

4.40 4.42 3.98 4.50 4.39

4.09 4.10 3.83 4.10 3.84

4.34 4.30 4.22 4.41 4.35

4.30 4.24 3.64 4.38 4.27

Yes Yes Yes Yes Yes 52.6% 53.2% 60.6% 46.3% 43.7% No No No No No 47.4% 46.8% 39.4% 53.7% 56.3%




Nebraska District Court (All Other Districts) Please read all instructions before beginning the evaluation.


346 347 348 349 350

-;::- -- ... - - .. - N' - ... e. -Use this scale: ... "' - -"' e. .. ... . e. .. "' "' ;:: i:::i §. e. 5 = Excellent (performance is outstanding) . c .:::. ti .. E >.

4 = Good (performance is above average) ~ j c :;:. 0 iii 0 .Q 0 3 = Satisfactory (performance is adequate) 0

0 0:: => > 2 = Deficient (performance is below average) <i. ui ~ ui ~ .Q 1 = Very Poor (performance is well below average 1! i:::i 0 .. "' iii i:::i 0 <II and unacceptable) .:::. E c > 0 (,)

n = No Opinion ii: .. 0 .. <II ..., 0 0 ...J


Impartia lity: actions not affected by any outside 2 influence or the nature of 1he case 4.26 4.38 4.04 4.65 3.92




Appropriate Communication: absence of undue persona l observations or criticisms of litigants, judges or lawyers; from the bench or in written

6 opinions 4.43 4.52 4.24 4.68 4.15


Fairness: treats all equally, wi1hout regard to race, gender, age, national origin, religion, disability,






Is your principal practice in 1his judge's district? No No No No No 12 (Circle the appropriate answer) 42.1% 57.1% 48.1% 47.5% 44.1%




351 352 353

N' N' - -.. .. ... N' e. .. -e. ... . "' :I • e. ~ c .. E ... .. <II c. ...

E 0 c. !,!> 'Qi :J 0 3: ....i a: u iii "' "" i:::i ·;; c ~ :! .. <II

0:: I- 0

4.88 4.62 4.11

4.88 4.72 4.14

4.84 4.79 4.65

4.80 4.57 4.26

4.79 4.77 4.73

4.92 4.69 4.73

4.78 4.54 4.36

4.88 4.73 4.44

4.70 4.56 4.49

4.83 4.73 4.69

4.78 4.54 4.45





Nebraska County Court (2nd & 4th Districts) Please read all instructions before beginning the evaluation.

Please rate up to 30 county court judges with whom you have professional experience. Rate each judge on items# 1-13 by writing one number in the appropriate space

401 402 403 404 405 406

N" .. .. ..... N" ..... .....

N" Cll Cll .. Cll Use this scale: B - e. e. ..... Cll ....

Cll ~ e. t: Cll . e. C1I a .!!! 5 = Excellent (performance is outstanding) "tJ .. t:::

4 =Good (performance is above average) . ·a; .l!l "' Cll .El c .s::: Cll co ·;::; c g c C1I "' 3 =Satisfactory (performance is adequate) ]i ==

ui "' u ::J co

2 = Deficient (performance is below average) :I: (/) 0 C1I :iE a: 0 1 = Very Poor (performance is well below -; u: t: c .s:::

C1I c c.. average and unacceptable) "tJ c C1I

~ "' C1I "tJ .s::: &l .,, Cll

n = No Opinion 0 0 0 "' ::J 0 I- ..., 0::: ...J (/) ...,

Characteristics 1 Legal Analysis 4.28 4.10 3.62 3.13 4.19 3.77

Impartiality: actions not affected by any outside 2 influence or the nature of the case 4.25 4.10 3.68 3.29 4.26 3.92

3 Attentiveness: arguments and testimony 4.37 4.21 3.78 3.24 4.32 3.87

4 Opinions: quality and clarity of writing 4.18 4.00 3.59 3.19 4.13 3.77

5 Judicial Temperament & Demeanor 4.54 3.88 3.47 2.90 4.40 4.06


6 opinions 4.46 4.01 3.67 3.08 4.32 4.08

Performance of his/her work in a prompt and 7 timely manner 4.40 4.20 3.59 3.60 4.22 4.02

Fairness: treats all equally, without regard to race, gender, age, national origin, religion,

8 disability, sexual orientation or economic status 4.44 4.17 4.11 3.49 4.34 4.07

9 Efficiency: Docket management and scheduling 4.36 4.27 3.60 3.65 4.13 4.03

10 Punctuality: attendance at court proceedings 4.45 4.36 3.42 3.90 4.35 4.18

11 Trial Management 4.33 4.17 3.75 3.55 4.19 3.89

Yes Yes Yes Yes Yes Yes 53.5% 56.0% 55.0% 95.1% 96.0% 95.8%

Is your principal practice in this judge's district? No No No No No No 12 (Circle the appropriate ans1.110r) 46.5% 44.0% 45.0% 4.9% 4.0% 4.2%


In your opinion. should this judge be reta ined in No No No No No No 13 office? (Circle appropriate answer) 3.9% 11.5% 17.3% 40.0% 2.5% 12.1%

"Retention Date 11 /2014

407

.. .... Cll e. c 0

E "' :I:

::.::: .,, "' E 0

.s::: I-

3.74

3.98

3.98

3.80

4.10

4.12

4.05

4.17

3.98

4.19

3.86

Yes 95.1% No 4.9%

Yes 89.3% No 10.7%



Nebraska County Court (2nd & 4th Districts) Please read all instructions before beginning the evaluation.

Please rate up to 30 county court judges with whom you have professional experience. Rate each judge on items # 1-13 by writing one number in the appropriate space.

408 409 41 0 411 41 2 413

... ... ... ... "' ... .... Use this scale: e. ... ... ... "' .... "' e. . - "' e. ....

>< "' e. "' 0 5 = Excellent (performance is outstanding)

·;:: e. . e. ::i ,, . "' 4 =Good (performance is above average) c • ... E :I . :I QI ·a; CV ~ ~

3 =Satisfactory (performance is adequate) :I: QI

::ic: .I:. CV

:E .'2 0 0 :E :I <i. ...J ...J 2 = Deficient (performance is below average)

CV :I:

....i a'. ....i 1 = Very Poor (performance is well below c ui CV >-QI Qi ~ ~ QI average and unacceptable) ~ c ~ ~ .I:. QI

n = No Opinion CV 0 CV .I:. CV :;.: ..., :;.: Cl) 0 ...,


Impartiality: actions not affected by any outside 2 influence or the nature of the case 3.96 3.61 4.1 6 3.47 2.62 3.50





6 opinions 4.03 3.44 4.22 3.57 2.41 3.67


Fairness: treats all equally, without regard to race, gender, age, national origin, relig ion,






Is your principal practice in this judge's district? No No No No No No 12 (Circle the appropriate answer) 4.8% 4.7% 5.7% 6.7% 3.2% 4.4%

Yes Yes Yes Yes Yes Yes 84.1% 79.7% 94.9% 71 .4% 48.4% 79.6%

In your opinion, should this judge be retained in No No No No No No 13 office? (Circle appropriate answer) 15.9% 20.3% 5.1% 28.6% 51 .6% 20.4%

*Retention Date 1112014

41 4

... .... "' e. ~ 0

E QI 0 t) :;.:

d Ol .i! u

4.02

3.94

4.05

3.91

4.11

4.15

4.08

4.18

4.09

4.24

4.08

Yes 96.5% No 3.5%

Yes 92.2% No 7.8%



Nebraska County Court (3rd District) Please read all Instructions before beginning the evaluation.

Please rate up to 30 county court judges with whom you have professional experience. Rate each judge on items# 1-13 by writing one number in the appropriate space.

41 5 416 417 418 41 9 420

<? <? <?

.... <?

<? Use this scale: "' .... e. <?

..... - .... "' "' "' "' e. e. e. "' .... e. 5 = Excellent (performance is outstanding) c.. "' Ci >. ... )( °' QI 4 =Good (performance is above average) J!! 0 ..c: >. c: 'E 3 = Satisfactory (performance is adequate) "' LL c.. c: 0 0 = "' 2 = Deficient (performance is below average)

LL ~ u 0 (/) >-....i "' >. "" -= -; 0 1 = Very Poor (performance is well below "' "' = c.. c: QI

average and unacceptable) QI E 0 QI .. 'C E 0 E Cii "' :::J

n = No Opinion "' ..c: :::J "' ..., I- j:: (.!) (/) ...J







6 opinions 406 4.17 4.25 2.29 4.35 4.35




9 Efficiency: Docket management and scheduling 4.26 4.08 4.1 5 3.30 4.12 4.24

10 Puncb.Jality: attendance at court proceedings 4.41 4.43 4.42 3.88 4.41 4.38

11 Trial Management 4.20 4.08 4.17 3.12 4.1 2 4.22


Is your principal practice in this judge's district? No No No No No No 12 (Circle the appropriate answer) 10.4% 11 .3% 10.8% 13.4% 9.2% 10.9%

Yes Yes Yes Yes Yes 92.5% 89.9% 93.5% 50.7% 93.3% Yes

In your opinion, should this judge be retained in No No No No No 100.0% 13 office? (Circle appropriate answer) 7.5% 10.1% 6.5% 49.3% 6.7% No0.0%




Nebraska County Court (All Other Districts) Please read all instructions before beginning the evaluation.


421 422 423 424 425

~ ii)" ii)" ... ..; -..; "' "' "' ~ e. e.

Use this scale: e. ... ..; !:: l: . "' c e. 0 c

"' E GI 5 = Excellent (performance is outstanding) E . ... (/)

4 = Good (performance is above average) J: E GI ... (.)

E c ~ 3 = Satisfactory (performance is adequate) "' (.)

"' "' i= ~ ::E "' 2 =Deficient (performance is below average) ai 0: (.) _j u) 1 = Very Poor (performance is well below average c .... "' GI (.)

"' and unacceptable) 'E > E -g

n = No Opinion :::J ~ "' c

(.) (/) Cl. :::i

Characteristics 1 Legal Analysis 4.40 3.81 4.13 4.47

Impartiality: actions not affected by any outside 2 influence or the nature of the case 4.60 3.77 4.08 4.53

3 Attentiveness: arguments and testimony 4.48 3.87 4.21 4.56

4 Opinions: quality and clarity of writing 4.38 3.85 4.23 4.40

5 Judicial Temperament & Demeanor 4.71 3.77 4.21 4.58


6 opinions 4.75 3.97 4.42 4.69

Performance of his/her work in a prompt and 7 timely manner 4.46 4.18 4.35 4.66


8 sexual orienta tion or economic status 4.71 4.10 4.17 4.63

9 Efficiency: Docket management and scheduling 4.50 4.18 4.45 4.63

10 Punctuality: attendance at court proceedings 4.74 4.17 4.57 4.69

11 Trial Management 4.52 3.88 4.45 4.63

Yes Yes Yes Yes 43.6% 37.5% 47.2% 34.0%

Is your principal practice in this judge's district? No No No No 12 (Circle the appropriate answer) 56.4% 62.5% 52.8% 66.0%

Yes Yes Yes Yes 93.5% 82.9% 87.1% 90.0%

In your opinion, should this judge be retained in No No No No 13 office? (Circle appropriate answer) 6.5% 17.1% 12.9% 10.0%


426

ii)" -"' e. "' Cl. :::J

0 .... (/)

-; .... c (!! ....

4.19

4.15

4.19

4.43

4.42

4.46

4.58

4.38

4.60

4.50

4.64

Yes 40.5% No 59.5%

Yes 84.4% No 15.6%




Please rate up to 30 county court judges with whom you have professional experience. Rate each judge on items# 1-13 by writing one number in the appropriate space.

427 428 429 430 431 432

~ .... en

~ e. ~ . .... ;:::-Use this scale: .... c en ;:::-en

~ 0 e. .... e. en .... en .... Gi en e. . e. 5 = Excellent (performance is outstanding) 1' en ::I "' e. E 0 ..

4 =Good (performance is above average) Cll

"' a. ~

0 :::i lii CJ) E >.

3 =Satisfactory (performance is adequate) ..J

"' .9 "' .J Cl ~ > t-2 = Deficient (performance is below average) "' Cll CJ) a:: ....: en E s <i. 1 =Very Poor (performance is well below "' .....: Cl Cll "' average and unacceptable) "' c en c

:::i t: :::!:: c en c n = No Opinion 0 :::i Cll 0 0

0 ~ u ~ a:: 0







6 opinions 4.03 3.30 4.10 3.89 4.04 3.92










In your opinion, should this judge be retained in No No No No No No 13 office? (Circle appropriate answer) 12.9% 27.3% 15.6% 24.1% 23.1% 24.1%


433 434 435

co co ~ .... i5 co en e. .... ""' en 0 e. ~ Cll c .'2 .. Cll "t:I 0 .:::. ~ 0

CJ) ID -; ~ .J en

QI ·e c E "' "' "' <( ..., t-

3.89 3.95 4.33

3.85 4.30 4.14

4.04 4.22 4.23

3.73 3.79 4.00

4.14 4.37 4.23

4.11 4.37 4.27

4.18 4.05 4.48

4.29 4.37 4.36

4.21 4.11 4.41

4.39 4.28 4.43

4.17 4.20 4.32







436 437 438 439 440 441

O> ..... "' e. 0 ..; O> .....

0 ~

Use this scale: .., O> ..... - ..... "' "' .... .... c ..... e. "' e. ..... ..... GI e. "' "' 5 = Excellent (performance is outstanding) "' . . e. e. c: "' GI c: a; E 4 = Good (performance is above average) ~ l:I Q; GI t! :::s c: 3 =Satisfactory (performance is adequate) 0 "' GI co c: ·; ..,

:E :: = 2 = Deficient (performance is below average) a: 0 Q.

ci :E u; 1 =Very Poor (performance is well below a; a; :E "CJ Q.

... "' "' ~

:::s GI average and unacceptable) ~ ~ ~ c: u u n = No Opinion GI ~ t:

~ ~ c:

C) Q. <( <(




4 Opinions: quality and clarity of writing 3.95 4.00 4.12 4.26 408 4.00



6 opinions 4.25 4.21 4.32 4.33 4.21 4.76



8 disabil ity, sexual orientation or economic status 4.60 4.29 4.31 4.55 4.38 4.52







In your opinion. should this judge be retained in No No No No No No 13 office? (Circle appropriate answer) 7.0% 11.1% 5.4% 4.5% 2.2% 3.6%


442

~ ..... ..... -"' e. . 0 0 u u 0:: u.i a; "' ~ u ~

4.48

4.38

4.60

4.33

4.56

4.52

4.54

4.67

4.46

4.56

4.55

Yes 58.6% No 41.4%

Yes 89.3% No 10.7%





443 444 445 446 447 448

~ .,.... ...... .... ...... N' N' Ill ~ ..... ..... ..... e. ......

Ill .,.... ..... ..... N' Use this scale: ..... e. Ill Ill .

"' e. e. ...... ~ e. c: ..... :J CV "E "' 5 = Excellent (performance is outstanding) ..Q « s ~ e. c: ~ cu

4 = Good (performance is above average) cu :; ~ ... 1:1 ~ ..Q Cl CV u c:

3 =Satisfactory (performance is adequate) CJ) E ~ ::c ~ CV

2 = Deficient (performance is below average) c:i :J ~ ==

c:i 0 I- a::

1 =Very Poor (performance is well below "E! c::i >. Qi c: ·= average and unacceptable) ~ .... cu "' ~ 1:1

c: ~ "' "' c: n = No Opinion 1:1 cu :J ~ CV

w ::.:: ..., a:: a::







6 opinions 4.33 3.88 4.71 4.58 3.45 4.38



8 disabil ity, sexual orientation or economic status 4.75 4.24 4.76 4.65 3.57 4.58






Yes Yes Yes Yes Yes Yes 96.2% 85.2% 94.7% 91 .3% 58.3% 89.7%

In your opinion. should this judge be retained in No No No No No No 13 office? (Circle appropriate answer) 3.8% 14.8% 5.3% 8.7% 41.7% 10.3%


449 450

N' ...... .....

N' Ill e. ...... ..... • "' c:

B cu 1:1

"' 0 "' ~ ~ ~ ci "' cu :; E CV CV a.. ...,

3.86 4.27

4.20 4.36

4.25 4.35

3.93 4.05

4.56 4.48

4.44 4.52

4.19 4.33

4.63 4.62

4.31 4.10

4.38 4.38

4.08 4.55

Yes Yes 71.4% 72.0% No No 28.6% 280%

Yes Yes 84.2% 83.3% No No 15.8% 16.7%



Nebraska Separate Juvenile Court Please read all Instructions before beginning your evaluation.

Please rate each judge with whom you have professional experience on items # 1-13 by writing one number in the appropriate space.

501 502 503

N' .. M' "' e. N' .. "' .... .. e. Use this scale: "' ..!!! e. ,, c

c e 5 = Excellent (performance is outstanding) QI -m (!) QI QI

4 =Good (performance is above average) z ,, c:i 0 ·a;

3 = Satisfactory (performance is adequate) QI J:

2 = Deficient (performance is below average) ai (,,) ....; 1 = Very Poor (performance is well below c t: ...

~ QI QI average and unacceptable) ~ .c gi

111 0 n = No Opinion ...J 0::: 0:::

Characteristics 1 Legal Analysis 4.36 3.48 4.04

Impartiality: actions not affected by any outside 2 inftuence or the nature of the case 4.21 3.00 3.96

3 Attentiveness: arguments and testimony 4.38 3.55 4.04

4 Opinions: quality and clarity of writing 4.33 3.55 3.81

5 Judicial Temperament & Demeanor 4.48 3.36 4.26


6 opinions 4.33 3.57 4.29

Performance of his/her work in a prompt and timely 7 manner 4.33 3.39 4.30


8 sexual orientation or economic status 4.46 3.95 4.19

9 Efficiency: Docket management and scheduling 4.38 3.48 4.30

10 Punctuality: attendance at court proceedings 4.50 3.05 4.36

11 Trial Management 4.56 3.71 4.12

Yes Yes Yes 31 .3% 28.9% 55.6%

Is your principal practice in this judge's district? No No No 12 (Circle the appropriate answer) 68.8% 71.1% 44.4%

Yes Yes Yes 94.9% 83.3% 100.0%

In your opinion, should this judge be retained in No No No 13 office? (Circle appropriate answer) 5.1% 16.7% 0.0%

•Retention Date 11'2014

504

M' .. "' e. '-QI t: 0 a.. II) 111 ,, c ::i

3.11

3.54

3.74

3.00

3.24

3.85

3.54

4.00

4.26

3.92

3.11

Yes 56.3% No 43.8%

Yes 83.3% No 16.7%

505 506 507 508 509 510 511

~ .. ~ ~ "' ~ e. .. .. M' M' "' "' ..

.s:: ~ e. e. "' .. .. .!::! e. "' .. "' > "' c ~ e. e. 0 e. 0 Qi ..: ..:.: "' ..., ... c E "' c ::.:::

ui QI 0 .s:: u.i ,, !:!? 0 ]! 0 111 >- ..., ... E 0::: 0 <.:) c QI .s:: 111 u.: .s:: 0

.J I- .s:: c .s:: .... "' c. I-

.~ (!) QI c ..!l! 0 .c 0 - .~ Cl ·- ~ E Cl "' Cl c :l ·.::: ,, QI 0 QI 0 .s:: ~ 0::: I- w > c 0

3.57 3.41 2.64 3.71 3.94 3.78 3.86

3.39 3.07 2.16 3.72 3.79 3.85 4.05

3.74 3.31 3.08 3.65 4.10 4.11 3.79

3.46 3.30 2.85 3.55 3.88 4.00 3.69

3.50 3.54 1.98 3.69 4.29 3.77 3.79

3.24 3.48 2.00 3.98 4.17 3.89 3.83

3.78 1.93 2.67 3.36 3.98 4.13 4.25

3.74 3.89 2.92 4.15 4.19 4.11 4.14

3.78 2 .18 2.63 3.21 3.74 3.89 4.10

4.04 1.96 2.45 3.61 4.02 4.20 4.45

3.72 2 .70 3.02 3.53 3.98 3.90 4.11

Yes Yes Yes Yes Yes Yes Yes 55.3% 56.3% 82.8% 83.9% 82.1% 80.7% 81.5% No No No No No No No 44.7% 43.8% 17.2% 16.1% 17.9% 19.3% 18.5%

Yes Yes Yes Yes Yes Yes Yes 91.4% 63.9% 43.6% 82.1% 89.3% 83.9% 88.2% No No No No No No No 8.6% 36.1% 56.4% 17.9% 10.7% 16.1% 11.8%



Workers' Compensation Court Please read all instructions before beginning your evaluation

Please rate each judge with whom you have professional experience on items# 1-12 by writing one number in the appropriate space.

601 602

c: 0 (,) c:

ra :J Use this scale: ~ "O ra iii E ....

0 QI 5 = Excellent (performance is outstanding) C)

4 =Good (performance is above average) or N 0 .t:

3 =Satisfactory (performance is adequate) (.) LL.

Qi 2 =Deficient (performance is below average) ci ra 1 = Very Poor (performance is well below average and VI ~

QI u unacceptable) E ~ n = No Opinion ra -; .., Characteristics

1 Legal Analysis 3.77 3.80

Impartiality: actions not affected by any outside influence 2 or the nature of the case 3.60 3.48

3 Attentiveness: arguments and testimony 3.57 4.18

4 Opinions: quality and clarity of writing 3.67 3.55

5 Judicial Temperament & Demeanor 3.07 4.06

Appropriate Communication: absence of undue personal observations or criticisms of litigants, judges or lawyers;

6 from the bench or in written opinions 3.35 4.04

Performance of his/her work in a prompt and timely 7 manner 3.76 3.88

Fairness: treats all equally, without regard to race, gender, age, national origin, rel igion, disabil ity, sexual

8 orientation or economic status 3.78 4.37

9 Efficiency: Docket management and scheduling 3.87 3.94

10 Punctuality: attendance at court proceedings 4.36 4.50

11 Trial Management 3.65 3.88

Yes Yes 78.4% 84.9%

In your opinion, should this judge be retained in office? No No 12 (Circle appropriate answer) 21 .6% 15.1%

*Retention Date 11/2014

603 604 605 606 607

c: 0 u c: :J

ra ra -~ c:

~ «

ra 0 c: ra c: E (,) 0 E

ra c: u e 0 :J c: 0

:J - 0 ~ - • z « u ~ ~

QI ·;:: c: c: "O .21

~ +:: ra

·;:: ::c "' > LL.

~ u.i ~ ::c ci Qi ci VI c: Qi

ra QI ra c: E e ·c ~ u ~ 0 :I ra ~ 0 ~ j c .., I-

4.38 3.68 4.47 3.73 3.66

4.31 3.91 4.30 3.97 3.81

4.54 4.09 4.65 4.18 4.19

4.42 4.00 4.61 403 3.83

4.64 4.32 4.80 3.97 4.43

4.49 4.25 4.65 4.14 4.43

4.38 2.16 4. 14 4.26 3.89

4.46 4.14 4.44 4.16 4.31

4.38 3.38 4.43 4.18 4.00

4.63 4.45 4.67 4.46 4.40

4.43 4.14 4.59 4.15 4.05




Federal Judges, Magistrates and Bankruptcy Court Please read all instroctions before beginning your evaluation


701 702

Use this scale: c: 0

5 = Excellent (performance is outstanding) "C (11 ....

4 = Good (performance is above average) - (11 (11 .... al ....

3 = Satisfactory (performance is adequate) ~

u.: (!) 2 =Deficient (performance is below average)

~ 1 = Very Poor (performance is well below average .i::. Q.

and unacceptable) ~ c: Ill .i::.

n = No Opinion 0 0 .., ..,

Characteristics

1 Legal Analysis 3.88 4.49

Impartiality: actions not affected by any outside 2 influence or the nature of the case 3.74 4.45

3 Attentiveness: arguments and testimony 4.06 4.48

4 Opinions: quality and clarity of writing 3.81 4.52

5 Judicial Temperament & Demeanor 4.04 4.58

Appropriate Communication: absence of undue personal observations or criticisms of litigants, judges

6 or lawyers; from the bench or in written opinions 3.94 4.56

Performance of his/her wor1< in a prompt and timely 7 manner 3.89 4.38

Fairness: treats al l equally, without regard to race, gender, age, national origin, religion, disability, sexual

8 orientation or economic status 4.09 4.60

9 Efficiency: Docket management and scheduling 409 4.51

10 Punctuality: attendance at court proceedings 4.43 4.70

11 Trial Management 4.18 4.55

703 704 705

Q.

E ..... (11 Q. (.) 0

ll::: .i::. E :!::: 0

cj E .... -"C "' "' .... u.i (11 ~

.i::. ·.::: :I ~

l.J

~ ii: j

4.18 4.24 4.41

3.90 4.26 4.46

4.26 4.39 4.45

4.28 4.25 4.43

3.64 4.51 4.52

3.58 4.46 4.50

4.17 4.37 4.35

3.91 4.46 4.59

4.18 4.41 4.38

4.54 4.64 4.71

4.36 4.55 4.60

706

E 0 .c .... :::> ~ c: ~ .... (11

:::

4.54

4.67

4.42

4.47

4.67

4.64

4.37

4.84

4.39

4.69

4.58



Federal Judges, Magistrates and Bankruptcy Court Please read all instructions before beginning your evaluation

Please rate each judge with whom you have professional experience

on items# 1-12 by writing one number in the appropriate space.

Bankruptcy Magistrate Judges Judge 707 708 709 710

Use this scale: 0 c Q) .!:

5 = Excellent (performance is outstanding) .:a: ,,

- ii t:: .!!! 4 =Good (performance is above average) i::

~ «'Cl «'Cl I- ~ "' 3 =Satisfactory (performance is adequate) (II

ci N ell _j 2 =Deficient (performance is below average) ell 0: 0 ell ell 1 = Very Poor (performance is well below average (!) «'Cl

~ «'Cl

E E and unacceptable) <i. 0 Q) 0 n = No Opinion u: ~ ~ ~

I- 0 I-

Characteristics

1 Legal Analysis 4.25 4.02 4.39 4.44

Impartiality: actions not affected by any outside influence or the 2 nature of the case 4.38 4.15 4.47 4.52

3 Attentiveness: arguments and testimony 4.44 4.17 4.46 4.63

4 Opinions: quality and clarity of writing 4.31 4.15 4.38 4.58

5 Judicial Temperament & Demeanor 4.33 4.09 4.57 4.59

Appropriate Communication: absence of undue personal observations or criticisms of litigants, judges or lawyers; from

6 the bench or in written opinions 4.43 4.39 4.58 4.64

7 Performance of his/her work in a prompt and timely manner 4.46 4.28 4.44 4.45

Fairness: treats all equally, without regard to race, gender, age, national origin, religion, disability, sexual orientation or economic

8 status 4.54 4.36 4.58 4.61

9 Efficiency: Docket management and scheduling 4.49 4.40 4.47 4.44

10 Punctuality: attendance at court proceedings 4.64 4.62 4.56 4.59

11 Trial Management 4.46 4.35 4.35 4.41

Yes Yes Yes 89.7% 88.1% 93.7%

In your opinion, should this judge be retained in office? (Circle No No No Yes 93.3% 12 appropriate answer) 10.3% 11.9% 6.3% No6.7%



Social Security Administrative Law Judges Please read all ins tructions before beginning your evaluation


801

Use this scale: c: 0 Ill ...

5 =Excellent (performance is outstanding) QI "C

4 =Good (performance is above average) c: ct

3 =Satisfactory (performance is adequate) (.)

2 =Deficient (performance is below average) ·.::: QI

1 =Very Poor (performance is well below average "C 0

and unacceptable) 0:::

n = No Opinion (!)

Characteristics

1 Legal Analysis 4.55

Impartiality: actions not affected by any outside influence or the 2 nature of the case 4.71

3 Attentiveness: arguments and testimony 4.82

4 Opinions: quality and clarity of writing 4.70

5 Judicial Temperament & Demeanor 4.77

Appropriate Communication: absence of undue personal observations or criticisms of litigants, judges or lawyers; from the

6 bench or in written opinions 4.73

7 Performance of his/her work in a prompt and timely manner 4.45

Fairness: treats all equally, without regard to race, gender, age, national origin, religion, disability, sexual orientation or economic

8 status 4.59

9 Efficiency: Docket management and scheduling 4.14

10 Punctuality: attendance at court proceedings 4.41

11 Trial Management 4.55

802

c: 0 :i:: :::s c u.i c: cu ....,

2.76

2.00

2.86

2.95

1.95

2.38

3.76

2.43

3.48

3.76

3.10

803 804 805

Ill ... QI c: -

.s::. E ~ j cu .s::. 0

ci <n ~ 0 C> 3:! :::s

cu ~ 0 c: ·e c 0 0::: w ,

3.15 4.65 3.83

3.10 4.70 4.20

3.45 4.80 4.33

3.42 4.63 4.25

3.50 4.30 4.17

3.70 4.55 4.17

3.25 4.35 3.17

3.20 4.60 4.33

3.40 4.30 3.60

4.10 4.50 4.17

3.75 4.35 4.20


NSBA Core BenefitsCasemaker: Includes legal authorities for all 50 states plus the federal government and has a companion mobile app. Casemaker also offers a number of additional premium services, free to NSBA members (an additional value of $450 per year). To learn more, visit www.nebar.com or call Casemaker at (877) 659-0801.

Free and Reduced Cost CLE: Receive a 25% discount on NSBA CLE seminars and two (2) free hours of NSBA live ethics CLE. If you receive all ten of your mandatory hours of CLE through the NSBA, this benefit saves you more than the cost of NSBA dues ($240 in CLE discounts vs. $237 for regular active dues).

Section Membership: NSBA members can connect with other attorneys in their area of practice through NSBA Section events, seminars and listservs and gain access to resources developed spe-cifically by Sections.

NebDocs: Research indicates that creating documents from within a document assembly system is 50% to 80% quicker than standard creation. In 2014, the NSBA will be working to strengthen NebDocs, an online document assembly system. NebDocs tem-plates ask questions and automatically create customized docu-ments based on the answers given - saving members time, effort and money in the production of repetitive documents and forms.

Legislative Update: As lawyers, it is imperative that we are up-to-date on changes to the law. The NSBA Legal Counsel reviews hundreds of bills each session. During the session, the NSBA Leg-islative Update is sent out weekly to update members on the status of bills impacting their areas of practice.

The Nebraska Lawyer Magazine: Published six times a year, The Nebraska Lawyer offers articles on a variety of substantive legal topics, practice tips, ethics articles, as well as news from the bar, the court, and their colleagues.

Insurance: Through its partnership with Mercer, the NSBA of-fers a full range of insurance options, including health, life, disabil-ity, and employment practice liability. Our most popular option is our Professional liability coverage, available only to NSBA mem-bers through our endorsed provider. For additional information on Mercer Consumer’s insurance products, call (866) 236-6582 or visit online at www.nebarinsurance.com.

Coming in 2014NSBA Lawyer Referral Program: An opportunity to link NSBA members with new clients. More information to come.

Additional Member BenefitsABA Bookstore: Receive a 15% discount on all books ordered through the ABA Bookstore. www.ababooks.org. Use promo code: NEBAR

ABA Retirement Program: Call (866) 812-3580 or visit www.aba-retirement.com for more information and a prospectus.

Conference Calling Services: Through your NSBA membership, you have access to InterCall, at only 4 cents a minute. For further information call Emilee Fries at (402) 934-9706

Credit Card Processing: Process credit cards the right way with LawPay. To learn more call (866) 376-0950

Hotel Discounts: • Cornhusker Marriott (Lincoln) - (866) 706-7706, Corporate Code: ABA. • Lincoln Embassy Suites - http://www.embassysuites.com, Corporate Code: 0560039593. • Omaha Hilton - (800) HILTONS or (402) 998-3400, NSBA Corporate Number: 2624356

Office Supplies: Office Depot is proud to partner with the NSBA. For further information about Office Depot and the NSBA supply program, call Scott Davis at (888) 438-2822 ext. 205

Payroll Processing: Paychex provides a 15% NSBA member dis-count, one month free service and no set up fees! Take advantage by calling Paychex at (402) 331- 6600 or visit www.paychex.com.

Probate System V: Manage all your probates with this combined electronic manual, automated forms systems and probate informa-tion manager, co-developed by the Nebraska State Bar Association and Basha Systems LLC. Probate System V includes a wealth of practitioner tools, including a document abstracter, a file manage-ment system, a contact manager, and a form manager for modify-ing shipping forms and creating custom forms for your firm. All forms have been reviewed and approved by the Nebraska State Bar Association’s Probate Committee. The software is free. Installation is free. Updates are free. Pay only for the files you need.

Software Discounts: Save up to 10%! Tabs3 and PracticeMaster make up a reliable, easy-to-use, seamlessly integrated suite of soft-ware products ranging from billing to practice management, check writing to general ledger and trust accounting. Visit the website at http://www.tabs3.com/offers/nebraskabar.html for more informa-tion or a free trial of software.

TechnoLawyer: TechnoLawyer is an award-winning network of email newsletters for lawyers and law office administrators. The newsletters cover law office management, law firm marketing, le-gal technology, and litigation practice. For more information, visit http://technolawyer.com/affinity/nsba.asp

Wardrobe: • The Men’s Wearhouse Perfect Fit - NSBA members receive a $50 merchandise reward certificate for every $500 they spend. • JoS. A. Bank Clothiers Corporate Card Program - NSBA mem-bers receive a lifetime benefit of 20% off all regular prices. For more information about the Corporate Program, call (800) 827-3921

2014 NSBA Benefits & Member Services


Like other Americans, lawyers and judges most remember British novelist and essayist George Orwell (1903-1950) for his two signature books, Animal Farm and 1984. Somewhat less known is his abiding passion about the craft of writing. It was a lifelong passion,1 fueled (as Christopher Hitchins recently described) by Orwell’s “near visceral feeling for the English language.”2

Orwell’s most exhaustive commentary about writing was his 1946 essay, Politics and the English Language,3 which minced no words. “[T]he English language is in a bad way,”4 he warned. “Debased”5 prose was marked by “abuse,”6 “sloven-liness,”7 and a “lifeless, imitative style”8 that was nearly devoid of “a fresh, vivid, homemade turn of speech.”9 A “tendency . . . away from concreteness”10 had left writing “dreary,”11 “ugly and inaccurate.”12 “[V]agueness and sheer incompetence,” he said, “is the most marked characteristic of modern English prose.”13

Orwell’s 12-page essay diagnosed what he called the “decay of language,” and it offered six curative rules.14 The diagnosis and rules still reverberate among professional writers. More

than 65 years later, Judge Richard A. Posner calls the essay “[t]he best style ‘handbook’” for legal writers.15 Nobel Prize-winning economist Paul Krugman recently went a step further, calling the essay a resource that “anyone who cares at all about either politics or writing should know by heart.”16

If I were a law partner employing young lawyers or a judge employing law clerks, I would add Orwell’s essay to a list of reading recommended on the way in. If I were a young lawyer not required to read the essay, I would read it anyway. The entire essay is available for downloading at http://orwell.ru/library/essays/politics/english/e_polit.

Orwell stressed that he was dissecting, not “the literary use of language, but merely language as an instrument for express-ing and not for concealing or preventing thought.”17 The narrower scope does not deprive legal writers because Justice Felix Frankfurter was right that “[l]iterature is not the goal of lawyers, though they occasionally attain it.”18 Orwell’s essay approached language as a tool for clear communication, an aspiration that defines what lawyers and judges do through-out their careers. “The power of clear statement,” said Daniel Webster, “is the great power at the bar.”19

As Orwell’s title intimates, the essay included criticism of political writing done by government officials and private observers. The essay’s staying power, however, transcends the political arena. By calling on writers of all persuasions to “sim-plify your English,”20 Orwell helped trigger the plain English movement, which still influences legislators, courts, adminis-trative agencies, and law school legal writing classes.

This article proceeds in two parts. First I describe how judges, when they challenge colleagues or advocates in par-ticular cases, still quote from Orwell’s plea for clear expression

practice tip

George Orwell’s Classic Essay on Writing:“The Best Style ‘Handbook’” For Lawyers and Judges

by Douglas E. Abrams

Douglas E. Abrams

Douglas E. Abrams, a University of Missouri law professor, has written or co-authored five books. Four U.S. Supreme Court deci-sions have cited his law review articles.

This article was originally published in Precedent, The Missouri Bar’s quarterly magazine. Reprinted with permission.

➡


and careful reasoning. Then I present Orwell’s diagnosis of maladies that plagued contemporary prose, together with his six curative rules and their continuing relevance for today’s lawyers and judges.

I: TODAY’S JUDGES

1. Take the Necessary Trouble”

“[W]ritten English,” said Orwell in his essay, “is full of bad habits which spread by imitation and which can be avoided if one is willing to take the necessary trouble.”21

In 2012, the United States Court of Appeals for the District of Columbia Circuit quoted this passage in National Association of Regulatory Utility Commissioners v. United States Department of Energy.22 The issue was whether the challenged agency determination violated the Nuclear Waste Policy Act of 1982, and the parties hotly contested the case with hefty serv-ings of alphabet soup.

On page 48 of its 58-page brief, for example, the National Association argued that, “Although DOE has not disclaimed its obligation to dispose of SNF, it is undisputed that DOE currently has no active waste disposal program. . . . The BRC is undertaking none of the waste disposal program activities identified in NWPA § 302(d). Its existence therefore cannot justify continued NWF fee collection.”23

On page 24 of its 60-page brief, the agency countered that “[t]he plain language of the NWPA . . . provides the Secretary [of Energy] with broad discretion in determining whether to recommend a change to the statutory NWF fee. . . . In section 302(a)(2) of the NWPA, Congress set the amount of the NWF fee – which is paid only by utilities that enter into contracts with DOE for the disposal of their SNF and HLW. . . .”24

The National Association of Regulatory Utility Commissioners panel unanimously struck down the challenged agency deter-mination. Judge Laurence H. Silberman’s opinion quoted Orwell and admonished the parties for “abandon[ing] any attempt to write in plain English, instead abbreviating every conceivable agency and statute involved, familiar or not, and littering their briefs with” acronyms.25

Other decisions have also quoted Orwell’s call to “take the necessary trouble” to achieve maximum clarity.26 In Sure Fill & Seal, Inc. v. GFF, Inc.,27 for example, the federal district court awarded attorneys’ fees to the defendant on its motion to enforce the parties’ settlement agreement. The court criticized both parties’ submissions. “Imprecision and lack of attention to detail,” wrote Judge Elizabeth A. Kovachevich, “severely dampen the efficacy of Plaintiff’s written submission to this Court. Equally unhelpful is Defendant’s one sentence, con-clusory response that is completely devoid of any substance. Advocates, to be effective, must take the ‘necessary trouble’ to

PRACTICE TIP


PRACTICE TIP

devices cloud thinking because they “save the trouble of pick-ing out appropriate verbs and nouns, and at the same time pad each sentence with extra syllables which give it an appearance of symmetry.”40 Among the shortcuts he assailed here were replacing simple, single-word verbs with phrases that add little if anything (beginning with “prove to,” “serve to,” and the like); using the passive voice rather than the active voice “wherever possible”; using noun constructions rather than gerunds (for example, “by examination of” rather than “by examining”); and replacing simple conjunctions and prepositions with such cum-bersome phrases as “with respect to” and “the fact that.”41 “The range of verbs is further cut down by means of the ‘-ize’ and ‘de-’ formations, and the banal statements are given an appear-ance of profundity by means of the ‘not un-’ formation.”42

“Pretentious diction.” Orwell included words that “dress up simple statement and give it an air of scientific impartiality to biased judgments” (such as “constitute” and “utilize”); and foreign phrases that “give an air of cultural elegance” (such as “ancien regime” and “deus ex machina”).43 “Bad writers . . . are always nearly haunted by the notion that Latin or Greek words are grander than Saxon ones,” even though “there is no real need for any of the hundreds of foreign phrases now current in English.”44

“Meaningless words.” Here Orwell targeted art and literary criticism, and political commentary. In the former, “words like ‘romantic,’ . . . ‘values,’ . . . ‘natural,’ ‘vitality’ . . . are strictly meaningless.” In the latter, the word “Fascism,” for example, had “no meaning except in so far as it signifies ‘something not desirable.’”45

2. Cures

Orwell believed that “the decadence of our language is probably curable” if writers would “let the meaning choose the word and not the other way about.”46 He proposed six rules. “These rules sound elementary, and so they are,” Orwell wrote, “but they demand a deep change of attitude in anyone who has grown up used to writing in the style now fashionable.”47 The rules are worth contemplation from lawyers and judges who write.

Rule One: “Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.”

Orwell discussed clichés that might entertain, divert and perhaps even convince readers by replacing analysis with labels. “By using stale metaphors, similes and idioms,” he said, “you save much mental effort, at the cost of leaving your meaning vague, not only for your reader but for yourself. . . . People who write in this manner usually have a general emotional meaning . . . but they are not interested in the detail of what they are saying.”48 He urged “scrapping of every word or idiom which has outworn its usefulness.”49

present the Court with coherent, well-reasoned and articulable points for consideration.”28

“At times,” Judge Kovachevich specified, “the Court was forced to divine some meaning from the incomprehensible prose that plagued Plaintiffs’ written objections. Lest there be any confusion, the Court graciously did so even though it could have simply refused to give the faulty objections any consid-eration at all. The Court would have been equally obliged to treat Defendant’s failure to provide meaningful response as a concession of Plaintiffs’ objections.”29

2. “Like Soft Snow”

Orwell held keen interest in politics, and his 1946 essay attributed “the decadence of our language” partly to political motivation.30 “[P]olitical language,” he wrote, “has to consist largely of euphemism, question-begging and sheer cloudy vagueness. . . . [W]ords fall[] upon the facts like soft snow, blurring the outlines and covering up all the details.”31

This passage appeared in Stupak-Thrall v. United States,32 a 1996 en banc decision of the U.S. Court of Appeals for the Sixth Circuit that carried no political overtones. The full court remained evenly divided on the question of whether the plain-tiffs’ riparian rights may count as “valid existing rights” to which U.S. Forest Service regulations are subject under the federal Michigan Wilderness Act (MWA). The dissenter criticized his colleagues who favored affirmance of the decision below. “The interpretation of the ‘valid existing rights’ language in Section 5 of the MWA to mean that [plaintiff] has no rights that the Forest Service is bound to respect is a good example of the dis-tortion of language decried by” Orwell’s essay.33

II: ORWELL’S DIAGNOSES AND CURES Orwell rejected the notion that “we cannot by conscious

action do anything about” the decline of language,34 believing instead that “the process is reversible.” The essay’s capstones were his diagnosis of the maladies that afflicted writing, fol-lowed by his six curative rules.35

1. Diagnosis

Orwell diagnosed four “tricks by means of which the work of prose-construction is habitually dodged.”36

“Dying metaphors.” The English language, Orwell wrote, sustains “a huge dump of worn-out metaphors” that “have lost all evocative power and are merely used because they save people the trouble of inventing phrases for themselves.”37 He cited, among others, “toe the line,” “run roughshod over,” and “no axe to grind.”38 To make matters worse, “incompatible metaphors are frequently mixed, a sure sign that the writer is not interested in what he is saying.”39

“Operators or verbal false limbs.” Orwell said that these

➡


PRACTICE TIP

Rule Two: “Never use a long word where a short one will do.”

This rule placed Orwell in good company. Ernest Hemingway said that he wrote “what I see and what I feel in the best and simplest way I can tell it.”56 Hemingway and William Faulkner went back and forth about the virtues of simplicity in writing. Faulkner once criticized Hemingway, who he said “had no courage, never been known to use a word that might send the reader to the dictionary.” “Poor Faulkner,” Hemingway responded, “Does he really think big emotions come from big words? He thinks I don’t know the ten-dollar words. I know them all right. But there are older and simpler and better words, and those are the ones I use.”57

Hemingway was not the only writer who valued simplic-ity. “Broadly speaking,” said Sir Winston Churchill, “the short words are the best, and the old words when short are best of all.”58 “Use the smallest word that does the job,” advised essayist and journalist E. B. White.59 In a letter, Mark Twain praised a 12-year-old boy for “us[ing] plain, simple language, short words, and brief sentences. That is the way to write English -- it is the modern way and the best way. Stick to it; don’t let fluff and flowers and verbosity creep in.”60

Humorist Will Rogers wrote more than 4,000 nation-ally syndicated newspaper columns, including ones that spoke about language.61 “[H]ere’s one good thing about language, there is always a short word for it,” he said. “‘Course the

In 2003, concurring Judge Stephen R. Reinhardt of the U.S. Court of Appeals for the Ninth Circuit cited Orwell’s first rule in Eminence Capital, LLC v. Aspeon, Inc., a securities fraud class action.50 The court of appeals held that the district court had abused its discretion by dismissing, without leave to amend, the first amended consolidated complaint for failure to state a claim. The panel reiterated, but rejected, the district court’s conclusion that the plaintiffs already had “three bites at the apple.”51

Noting that the district court failed to identify or analyze any of the traditional factors that would have supported dis-missal without leave to amend,52 Judge Reinhardt cautioned against “the use of cliches in judicial opinions, a technique that aids neither litigants nor judges, and fails to advance our understanding of the law.”53 “Metaphors,” he explained, “enrich writing only to the extent that they add something to more pedestrian descriptions. Cliches do the opposite; they deaden our senses to the nuances of language so often critical to our common law tradition. The interpretation and application of statutes, rules, and case law frequently depend on whether we can discriminate among subtle differences of meaning. The biting of apples does not help us.”54

“The problem of cliches as a substitute for rational analy-sis,” Judge Reinhardt concluded, “is particularly acute in the legal profession, where our style of writing is often deservedly the subject of ridicule.”55


PRACTICE TIP

Rule Five: “Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equiva-lent.”

One federal district court advised that legal writers gamble when they “presuppose specialized knowledge on the part of their readers.”71 In 2008, the U.S. Court of Appeals for the Seventh Circuit explained the dangers of presupposition in Indiana Lumbermens Mutual Insurance Co. v. Reinsurance Results, Inc., which held that the parties’ contract did not require the plaintiff insurer to pay commissions to the company it had retained to review the insurer’s reinsurance claims.72

Writing for the Lumbermens Mutual panel, Judge Posner reported that the parties’ briefs “were difficult for us judges to understand because of the density of the reinsurance jargon in them.”73 “There is nothing wrong with a specialized vocabu-lary – for use by specialists,” he explained. “Federal district and circuit judges, however, . . . are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has. Lawyers should understand the judges’ limited knowledge of specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance indus-try has a counterpart in ordinary English.”74

Counsel in Indiana Lumbermens Mutual Insurance Co., Judge Posner concluded, “could have saved us some work and pre-sented their positions more effectively had they done the trans-lations from reinsurancese into everyday English themselves.”75

Rule Six: “Break any of these rules sooner than say anything outright barbarous.”

Orwell punctuated each of his first five rules with “never” or “always.” Lawyers learn to approach these commands cautious-ly because most legal and non-legal rules carry exceptions based on the facts and circumstances. Conventions of good writing ordinarily deserve adherence because most of them enhance content and style most of the time. They became conventions based on the time-tested reactions elicited by accomplished writers. Orwell recognized, however, that “the worst thing one can do with words is to surrender” to them.76 As writers strive for clear and precise expression, they should avoid becoming prisoners of language.

Orwell’s sixth rule wisely urges writers to follow a “rule of reason,” but I would rely on personal judgment and common sense even when the outcome would not otherwise qualify as “outright barbarity.” Good writing depends on sound grammar, spelling, style and syntax, but it also depends on willingness to bend or break the “rules” when advisable to maintain the bond between writer and reader. Within bounds, readers concern themselves more with the message than with what stylebooks

Greeks have a word for it, the dictionary has a word for it, but I believe in using your own word for it. I love words but I don’t like strange ones. You don’t understand them, and they don’t understand you. Old words is like old friends -- you know ‘em the minute you see ‘em.”62

“One of the really bad things you can do to your writing,” novelist Stephen King explains, “is to dress up the vocabu-lary, looking for long words because you’re maybe a little bit ashamed of your short ones.”63 “Any word you have to hunt for in a thesaurus,” he says, “is the wrong word. There are no exceptions to this rule.”64

Rule Three: “If it is possible to cut a word out, always cut it out.”

What if the writer says, “In my opinion it is not an unjus-tifiable assumption that. . . .”? Orwell proposed a simpler, less mind-numbing substitute: “I think.”65

This third rule also placed Orwell in good company. “The most valuable of all talents is that of never using two words when one will do,” said lawyer Thomas Jefferson, who found “[n]o stile of writing . . . so delightful as that which is all pith, which never omits a necessary word, nor uses an unnecessary one.”66 “Many a poem is marred by a superfluous word,” said poet Henry Wadsworth Longfellow.67 “Less is more,” explained British Victorian poet and playwright Robert Browning, wasting no words.68

Judges, in particular, can appreciate this short verse by Theodor Geisel (“Dr. Seuss”), who wrote for children, but often with an eye toward the adults: “[T]he writer who breeds/ more words than he needs/ is making a chore/ for the reader who reads./ That’s why my belief is/ the briefer the brief is,/ the greater the sigh/ of the reader’s relief is.”69

Rule Four: “Never use the passive where you can use the active.”

The passive voice usually generates excess verbiage and fre-quently leaves readers uncertain about who did what to whom. The active voice normally contributes sinew not fat, clarity not obscurity.

Consider the second line of the Declaration of Independence: “We hold these truths to be self-evident, that all men are cre-ated equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

Historians have praised Thomas Jefferson as “a genius with language” whose draft Declaration resonated with “rolling cadences and mellifluous phrases, soaring in their poetry and powerful despite their polish.”70 Would Jefferson have rallied the colonists and captivated future generations if instead he began with, “These truths are held by us to be self-evident. . . .”?

➡


PRACTICE TIP

This rule of reason grounded in personal judgment and common sense extends beyond Orwell’s first five rules to writ-ing generally. For example, when splitting an infinitive or ending a sentence with a preposition would enhance meaning or produce a more fluid style, then split the infinitive or end the sentence with a preposition. Maintaining smooth dialog is more important than leafing through stylebooks that readers will not have leafed through.

Sir Winston Churchill, a pretty fair writer himself, report-edly had a tart rejoinder for people who chastised him for sometimes ending sentences with prepositions. “That,” he said, “is the sort of arrant pedantry up with which I shall not put.”77

CONCLUSIONLack of clarity, Orwell’s major target, normally detracts

from the professional missions of lawyers and judges. What Justice William J. Brennan, Jr. called “studied ambiguity”78 might serve the purposes of legislative drafters who seek to avoid specificity that could fracture a majority coalition as a bill proceeds to a final vote. Studied ambiguity might also serve the purposes of a lawyer whose client seeks to feel out the other parties early in a negotiation. Without maximum clarity, however, written buck-passing may compel courts to finish the legislators’ work, or may produce an agreement saddled with misunderstandings.

say about conventions.

Orwell’s fourth and fifth rules illustrate why good writing sometimes depends on departing from conventions. The fourth rule commands, “Never use the passive where you can use the active.” Look again at the second line from the Declaration of Independence, quoted above. It contains a phrase written in the passive voice (“that they are endowed by their Creator with”). The active-voice alternative (“that their Creator endowed them with”) would not have produced a result “outright barbarous,” but Jefferson would have sacrificed rhythm and cadence. The passive phrase left no doubt about who did the endowing, and two extra words did not slow the reader.

Orwell’s fifth rule commands, “Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.” But suppose, for example, that a lawyer or judge wants to write about “causation” in tort law, which would qualify as jargon because the term “causation” does not normally roll off the lips of laypeople. A readership of judges or tort lawyers will connect with the jargon easier than a readership of lay clients, who in turn will connect better than teenage readers in a middle school civics class. To an audience of lawyers who are comfortable with discussing “causation,” choosing another word might even cloud or distort legal mean-ing. A writer uncertain about connecting with the audience can cover bases by briefly defining the term.

How does your firm face risk?

Rated A+ (Superior) by A.M. Best • LawyerCare.com • 800.292.1036

Claims against attorneys are reaching new heights.Are you on solid ground with a professional liability policy that covers your unique needs? Choose what’s best for you and your entire firm while gaining more control over risk. LawyerCare® provides:

Company-paid claims expenses—granting your firm up to $5,000/$25,000 outside policy limits

Grievance coverage—providing you with immediate assistance of $15,000/$30,000 in addition to policy limits

Individual “tail” coverage—giving you the option to cover this risk with additional limits of liability

PracticeGuard® disability coverage—helping your firm continue in the event a member becomes disabled

It’s only fair your insurer provides you with protection you can trust. Make your move for firm footing and call today.


PRACTICE TIP

comprehension more, not less, difficult”).27 2012 WL 5199670, No. 8:08-CV-882-T-17-TGW (M.D. Fla.

Oct. 22, 2012).28 Id. * 3.29 Id.30 Orwell, supra note 3, at 334.31 Id. at 333.32 89 F.3d 1269 (6th Cir. 1996) (en banc).33 Id. at 1292 (Boggs, J., dissenting); see also, e.g., Grutter v.

Bollinger, 288 F.3d 732 (6th Cir. 2002) (en banc) (Boggs, J., dissenting), aff’d, 539 U.S. 306 (2003) (“[W]hatever else Michigan’s policy may be, it is not ‘affirmative action,’” quoting Orwell’s “soft snow” metaphor); Palm Beach County Sheriff v. State, 854 So.2d 278 (Fla. Dist. Ct. App. 2003) (quoting Orwell’s “soft snow” metaphor and holding that in applying sov-ereign immunity, there is no distinction between the “reimburse-ment” and “recovery” to which the plaintiff sheriff said his office was clearly entitled, and the right to “damages” which sovereign immunity precedent rejected); cf. Quartman v. Martin, 2001 WL 929949, No. 18702 (Ohio Ct. App. Aug 17, 2001) (in discussion of probable cause, quoting Orwell essay that “[p]olitical language . . . is designed to make lies sound truthful and murder respect-able, and to give an appearance of solidity to pure wind”).

34 Orwell, supra note 3, at 325.35 Id.36 Id. at 327.37 Id. at 327.38 Id. 39 Id. 40 Id. at 328. 41 Id. 42 Id. 43 Id. 44 Id. 45 Id. at 329.46 Id. at 334, 335. 47 Id.48 Id. at 331-32.49 Id. at 334.50 316 F.3d 1048 (9th Cir. 2003).51 Id. at 1053.52 See Foman v. Davis, 371 U.S. 178, 182 (1962) (stating the fac-

tors).53 Eminence Capital, 316 F.3d at 1053.54 Id. at 1053-54.55 Id. at 1054.56 A.E. HOTCHNER, PAPA HEMINGWAY 69 (1966) (quot-

ing Hemingway).57 Id. at 69-70 (1966) (quoting Hemingway); see also, e.g., Kurt

Vonnegut, Jr., The Latest Word (reviewing THE RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE (1966)), N.Y. TIMES, Oct. 30, 1966, at BR1 (“I wonder now what Ernest Hemingway’s dictionary looked like, since he got along so well with dinky words that everybody can spell and truly understand.”).

58 Susan Wagner, Making Your Appeals More Appealing: Appellate Judges Talk About Appellate Practice, 59 ALA. LAW. 321, 325 (1998) (quoting Churchill).

59 Max Messmer, It’s Best to be Straightforward On Your Cover Letter, Resume, PITTSBURGH POST-GAZETTE, Nov. 29, 2009, at H1 (quoting White).

60 ROBERT HARTWELL FISKE, THE DICTIONARY OF CONCISE WRITING: 10,000 ALTERNATIVES

Similar impulses prevail in litigation. Advocates persuade courts and other decision makers most effectively through pre-cise, concise, simple and clear expression that articulates why the facts and the governing law favor their clients.79 Judges perform their constitutional roles most effectively with forth-right opinions that minimize future guesswork.

How often today do we still hear it said that someone “writes like a lawyer”? How often do we hear it meant as a compliment? Judge Reinhardt put it well in Eminence Capital, LLC.: “It is long past time we learned the lesson Orwell sought to teach us.”80

Endnotes1 George Orwell, Why I Write (1946) (“From a very early age, per-

haps the age of five or six, I knew that when I grew up I should be a writer.”).

2 Christopher Hitchins, The Importance of Being Orwell, VANITY FAIR, Aug. 2012, at 66, 66.

3 George Orwell, Politics and the English Language, in ESSAYS ON LANGUAGE AND USAGE (Leonard F. Dean & Kenneth G. Wilson eds., 2d ed. 1963).

4 Id. at 325.5 Id. at 333.6 Id. at 325.7 Id. 8 Id. at 332.9 Id. 10 Id. at 330.11 Id. at 334.12 Id. at 325.13 Id. at 327.14 Id. at 336.15 Richard A. Posner, Judges’ Writing Styles (and Do They Matter?),

62 U. CHI. L. REV. 1421, 1423 n.8 (1995).16 Paul Krugman, Orwell, China, and Me, N.Y. TIMES BLOGS

(July 20, 2013). 17 Orwell, supra note 3, at 335.18 Felix Frankfurter, When Judge Cardozo Writes, THE NEW

REPUBLIC, Apr. 8, 1931.19 Letter from Daniel Webster to R.M. Blatchford (1849),

in PETER HARVEY, REMINISCENCES AND ANECDOTES OF DANIEL WEBSTER 118 (1877).

20 Orwell, supra note 3, at 336.21 Id. at 325. 22 680 F.3d 819 (D.C. Cir. 2012); see Douglas E. Abrams,

Acronyms, 6 PRECEDENT 44 (Fall 2012).23 Nat’l Ass’n of Regulatory Utility Comm’rs, Final Brief of Consolidated

Petitioners 48, 2011 WL 5479247 (2012).24 Nat’l Ass’n of Regulatory Utility Comm’rs, Final Brief for Respondent

24-25, 2011 WL 5479246 (2012).25 Nat’l Ass’n, 680 F.3d at 820 n.1; see also Illinois Public Telcomm.

v. FCC, No. 13-1059 (D.C. Cir. Mar. 25, 2014) (per curiam) (order striking parties’ briefs and ordering submission within two days, of briefs that “eliminate uncommon acronyms”).

26 See, e.g., Delgadillo v. Astrue, 601 F. Supp.2d 1241 (D. Colo. 2007) (discussing confusion caused by confusing “attorney fees” and “attorney’s fees” under the Equal Access to Justice Act); Anthony A Gagliano & Co. v. Openfirst, LLC, 828 N.W.2d 268, 271 n.2 (Wis. Ct. App. 2013) (“acronyms and initials make

➡


PRACTICE TIP

ed., 1985) (“Everyone who writes strives for the same thing . . . To say it swiftly, clearly, to say the hard thing that way, using few words. Not to gum up the paragraph.”).

69 Richard Nordquist, “We Can Do Better”: Dr. Seuss on Writing, http://grammar.about.com/od/advicefromthepros/a/seuss-write09.htm.

70 JOSEPH J. ELLIS, AMERICAN CREATION: TRIUMPHS AND TRAGEDIES AT THE FOUNDING OF THE REPUBLIC 56 (2007) (genius); WALTER ISAACSON, BENJAMIN FRANKLIN: AN AMERICAN LIFE 311 (2003) (rolling cadences).

71 Waddy v. Globus Medical, Inc., No. 407CV075, 2008 WL 3861994 *2 n.4 (S.D. Ga. Aug. 18, 2008).

72 513 F.3d 652 (7th Cir. 2008).73 Id. at 658.74 Id.75 Id.; see also, e.g., Miller v. Illinois Cent. R.R. Co., 474 F.3d 951,

955 (7th Cir. 2007) (“much legal jargon can obscure rather than illuminate a particular case.”); New Medium LLC v. Barco N.V., No. 05 C 5620, 2009 WL 1098864 * 1 (N.D. Ill. Apr. 15, 2009) (Posner, J., sitting by designation as a trial judge) (“All submis-sions must be brief and non-technical and eschew patent-law jargon. Since I am neither an electrical engineer nor a patent lawyer, . . . the parties’ lawyers must translate technical and legal jargon into ordinary language.”).

76 Orwell, supra note 3, at 335.77 See, e.g., Susan E. Rowe, Six to Nix: Grammar Rules to Leave

Behind, 67 OR. ST. BAR BULL. 37 (Nov. 2006).78 William J. Brennan, Jr., Some Thoughts On the Supreme Court’s

Workload, 66 JUDICATURE 230, 233 (1983). 79 HENRY WEIHOFEN, LEGAL WRITING STYLE 8-104

(2d ed. 1980) (discussing these four fundamentals).80 316 F.3d at 1054.

TO WORDY PHRASES 11 (2002); see also, e.g., British Victorian novelist George Eliot (Mary Ann Evans), quoted at Plainlanguage.gov, http://www.plainlanguage.gov/resources/quotes/historical.cfm (“The finest language is mostly made up of simple unimposing words”); Irish poet William Butler Yeats, id. (“Think like a wise man but communicate in the language of the people.”); C.S. LEWIS’ LETTERS TO CHILDREN 64 (Lyle W. Dorsett & Marjorie Lamp Mead eds., 1985 (emphasis in original) (“Don’t implement promises, but keep them.”). some-thing really infinite.”).

61 Mark Schlachtenhaufen, Centennial Snapshot: Will Rogers’ Grandson Carries On Tradition of Family Service, OKLA. PUBLISHING TODAY, May 31, 2007.

62 BETTY ROGERS, WILL ROGERS 294 (1941; new ed. 1979) (quoting Will Rogers).

63 STEPHEN KING, ON WRITING: A MEMOIR OF THE CRAFT 110 (2000).

64 Stephen King, Everything You Need to Know About Writing Successfully: in Ten Minutes (1986), https://www.msu.edu/~jdowell/135/King_Everything.html.

65 Orwell, supra note 3, at 331.66 Cindy Skrzycki, Government Experts Tackle Bad Writing, WASH.

POST, June 26, 1998, at F1 (“most valuable,” quoting Jefferson); THE FAMILY LETTERS OF THOMAS JEFFERSON 369 (E.M. Betts and J.A. Bear, Jr. eds., 1966) (letter of Dec. 7, 1818) (“stile of writing”).

67 III THE WORKS OF HENRY WADSWORTH LONGFELLOW WITH BIBLIOGRAPHICAL AND CRITICAL NOTES AND HIS LIFE, WITH EXTRACTS FROM HIS JOURNALS AND CORRESPONDENCE (1886-1891), at 278.

68 Robert Browning, Andrea del Sarto, in PICTOR IGNOTUS, FRA LIPPO LIPPI, ANDREA DEL SARTO 32 (1925); see also, e.g., SOMETHING TO SAY: WILLIAM CARLOS WILLIAMS ON YOUNGER POETS 96 (James E. B. Breslin

8:30 am EthicsJohn Steele

9:30 am Property Seller Disclosure Statement Shannon Harner, Scott Vogt

10:30 am Break

10:45 am Escrow & ClosingsJennifer Strand, John Daum

11:15 am Construction Liens/ Nonconsenual LiensDoug Lash

12:15 pm Lunch (included with registration)

1:15 pm Purchase AgreementsDennis Collins, Adam Pavelka

2:45 pm Break

3:00 pm DeedsJeff Peetz

4:00 pm 1031 ExchangesTimothy Moll

5:00 pm Adjourn

2014 NCLE Real Estate InstituteFriday, September 12, 2014 • 8:30 am - 5:00 pm

Cornhusker Hotel • 333 S 13th St., Lincoln, NE 68508*Nebraska MCLE Activity #95838. 7 CLE hours including 1 hour ethics.


REGISTRATION FORM: 2014 NCLE Real Estate Institute - September 12, 2014ALL registrants will receive a link to download and print the materials ahead of time

as well as a CD of the materials the day of the seminar.Materials will NOT be printed for registrants unless requested and paid the additional fee below.

**************************

c I am attending the 2014 Real Estate Institute & want printed materials - $45 (cost is additional to registration fee)

**************************c $420 - Regular Registration c $315 - (25% discounted price for NSBA dues-paying members)c $285 - NSBA REPT Section Member (if registering online, use promo code realestate) c $10 - Law Students

I am unable to attend, please send me: c Printed Manual - $95

Name:_____________________________________________________________________Bar #_________________________

Address:___________________________________________ City:______________________ State:_______ Zip:_________

Telephone:___________________________________ E-Mail:_____________________________________________________

______ Check enclosed OR Charge to ______ MasterCard _______ Visa _______ Discover _______ AMEX

Amount enclosed or to be charged $____________ Card number: _________________________________________________

Security Code (located on back of card):_____________ Expiration Date:____________ Mo/Yr

Please print name on credit card:____________________________________________________________________________

Credit card billing address (if different from above):____________________________________________________________

City:_______________________________________________________ State:__________________ Zip:_________________

Signature:________________________________________________________________________________________________Make checks payable to NSBA and return to NSBA, PO Box 81809, Lincoln, NE 68501 or Fax to 402-475-7098

You will receive an email from the NSBA confirming your registration. If you do not receive an email confirmation, please call 402-475-7091.

If you need any special accommodation for attending this event, please contact NSBA.

2014 NCLE Real Estate InstituteFriday, September 12, 2014 • 8:30 am - 5:00 pm

Cornhusker Hotel • 333 S 13th St., Lincoln, NE 68508*Nebraska MCLE Activity #95838. 7 CLE hours including 1 hour ethics.

WANT TO WATCh ThE WEBCAST?Returning this form does NOT register you for the available webcast. You must register with our 3rd party provider.

http://nebar.bizvision.com/product/2014nclerealestateinstitute%2811738%29*Distance Learning Credit - Nebraska MCLE Activity #95840. 7 CLE hours including 1 hour ethics.

**Only 5 distance learning CLE hours may be claimed per year for Nebraska.**


The Supreme Court Attorney Services Division is now testing the changes to the program that tracks MCLE report compliance to incorporate the attorney licensure process. With respect to filing your MCLE reports you will notice no change. Attorneys will continue to see the credits they have earned and course numbers from accredited sponsors on the “My Account Lawyer” screen and will continue to transfer those credits to their transcript.

The license renewal process will be found on the same My Account Lawyer Page. The attorney will fill in the blanks to file a Trust Account Certification, file the insurance liability report and pay mandatory dues all on line. A letter is being sent out from the Supreme Court with detailed instructions. In addition the system will allow a firm to designate a person who pays licensure for all attorneys in the firm. The last step is for the attorney to print off the NSBA bar card which will look the same as current NSBA cards.

Inactive attorneys will receive their user credentials by the end of August by U.S. mail. Remember to keep the Supreme Court current on contact information. If you have user creden-tials you do that by logging in and update user information in the Court’s on-line system.

In order to reconcile the due dates for all practice require-ments, late fees for nonpayment of the mandatory assessments will not accrue in 2015 and subsequent years until January 20th, the day MCLE reports are considered due.

The following link, which can also be reached from the Supreme Court Web site, will be the source for address and status information for practicing attorneys:

https://mcle.wcc.ne.gov/ext/SearchLawyer.do

For full details of the recent changes see Neb.Ct.R. § 3-100; § 3-310; § 3-803; § 3-1010; § 3-905.

COURT NEWS

Carole McMahon-BoiesCarole McMahon-Boies holds a B.S. from University of Nebraska at Omaha and a J.D. from the University of Nebraska College of Law. She was in private practice spe-cializing in employment discrimination and civil litigation for 23 years. During her years in practice she often taught both as college adjunct faculty and at MCLE events. After 23 years in practice she began exclusively teaching and training. She taught at Union College, Nebraska Wesleyan University and Doane College before becoming Judicial Branch Education Director with the Supreme Court. Her responsibilities now include serving as Administrator for the Attorney Services Division. She has served as president for the Robert Van Pelt American Inns of Court, and as Chairperson for the U.S. District Court Federal Practice Committee. She is a member of the Nebraska and Iowa Bars and is admitted to practice before the United States Supreme Court.

Attorney Services Division Updateby Carole McMahon-Boies, Administrator for Judicial Branch Education & Attorney Services Division


Currently, across Nebraska’s 93 counties, there are 12 counties without an attorney and 22 others with 3 or fewer attorneys. The NSBA hears from attorneys in rural Nebraska, that they would like to retire but their clients won’t let them. We hear that they would hire someone tomorrow, if the right person walked into the door—but no one is walking in the door. As Howard Olsen, past president of the NSBA says “Twenty years ago, Chadron had 10 lawyers; Alliance had a dozen and now each just has two or three”. Mr. Olsen said that clients in rural Nebraska who used to find a lawyer across the street may now drive “50, 60, sometimes 100 miles” to find one.

In 2013, the NSBA established its Rural Practice Initiative. The primary objective of the Initiative is to increase the number of attorneys (recent law graduates) practicing in underserved rural communities. As NSBA President G. Michael Fenner explains, this effort is not solely for the benefit of the students: “Att ract ing new gradu-ates to rural areas is essen-tial in ensur-ing access to legal services across the state, to keeping courthouses in rural com-munities open, and to providing future leaders for many of these areas.”

One of the primary ways in which this objective can be met is to expose law students to the practice of law in rural com-munities. To that end, the NSBA has just received a $15,000 grant from the American Bar Association that will allow the NSBA to expand the number of clerkship opportunities made available to law students in rural areas in two ways. First by, increasing the number of rural law firms that participate; and second, by making these clerkship opportunities more afford-able for students by helping them secure temporary housing in rural communities.

NSBA news

The NSBA has realized that a part of the answer to the lack of lawyers in Greater Nebraska is to get law students out there so they can see the kind of law practice they can have, so that they can see the quality of life, the quality of the schools and the medical care, the availability of low cost housing, the opportunities for their spouses. As President Fenner explains, “Graduating law students are like jurors: you must show them. You can tell them how great rural life and practice is until you are blue in the face. But you won’t convince them until you show them.” The Rural Practice Initiative shows them.

Funds through the American Bar Association’s Legal Access Catalyst Grant Program will be used in two ways. First, the NSBA will recruit ten new law firms to participate in the Summer Clerkship Program. The grant will allow the NSBA to provide a financial incentive for law firms to participate by making funds available to help offset some of the costs of tak-

ing on a summer law clerk. Priority will be given to firms in commu-

nities with the most disparate ratio of attorneys to county

residents (see attached map of distribution of active attorneys in Nebraska).

Second, the NSBA will provide the stu-dent law-clerks a mod-est housing stipend.

One of the chal-lenges of placing

law students in summer clerk-

ships in rural Nebraska has been securing housing. Relocating to a rural area for a clerkship can be cost prohibitive for many law students.

The NSBA believes that getting more firms to participate in the Rural Practice Initiative will demonstrate the value of the program and will encourage their continued participation beyond the grant period. And getting students to participate will show them the value of a rural practice. The more success-ful the program is in placing summer law clerks, the more likely additional firms and students will want to participate.

The Nebraska State Bar Association Awarded $15,000 for Clerkship Program in Rural Nebraska


What kind of legal matter do you find most rewarding/personally satisfying?Navigating the bureaucracy of in-surance. Morbid perhaps but very needed whether government, in-surance companies or medical providers. Often, frustration with insurance is a matter of misunder-standing based on misinformation.

What is an unconventional lesson you’ve learned about the practice of law?Lawyers are trained with tools to improve or destroy both lives and corporations. Use correct tools at correct times.

Complete the sentence: I never leave home without______, because_______.I never leave home without my Windows Surface tablet, which has all the Windows applications software so my work product is with me where ever I go. I am ready to provide a testimonial (for a fee, of course.)

What is your favorite book?Black Like Me - read in the sixth grade because it tells best the message on empathy.

What do you like best about your practice area?That now it is top news. Insurance regulation was not something anyone wanted to know about until Health Care Reform.

Most rewarding moment of your practice?Helping a terminally ill teenager with insurance needs so she could get the care she deserved.

What advice would you give a brand new lawyer?Be thankful and practice with humility.

Favorite NSBA Member Benefit or Program?Insurance, of course!

NSBA MemberSPOTLIGHTS

Ann FrohmanPrincipal

Frohman Law Offices, LLC

What is the best career advice you ever received?From my father: “At the end of ev-ery day, look yourself in the mirror and ask if you have truly done your best under the circumstances. If you can honestly say you have, put the day behind you regardless of the outcome (good or bad). If not, figure out how you can answer yes to that question tomorrow.”

What kind of legal matter do you find most rewarding/personally satisfying?I really enjoy working with individuals and families through some of their most life changing experiences (divorce, aging parents, adoption of a child, etc.)

Complete the sentence: I never leave home without______, because_______.I never leave home without a suit and a pair of dress shoes, because in a small office like mine, you may need to meet a new client or cover a court hearing without much warning!

What do you do for fun?I love to read, attend live music and poetry events, and spend time with my husband and our dogs at the park or the lake.

If you weren’t a lawyer, you’d be?A children’s theatre director. Or a novelist.

Favorite law school memory?Studying with friends using those humorous little cards that gave hypothetical questions using famous characters from movies, fairy tales, and history.

Favorite NSBA Member Benefit or Program?Leadership Academy and Volunteer Legal Services. And Case-maker is a lifesaver for our small office!

Vanessa J. GordenAttorney/OwnerGordenLaw, LLC


What is the best career advice you ever received?Read the Nebraska Supreme Court and Court of Appeals opinions weekly.

What is an unconventional lesson you’ve learned about the practice of law?Put EVERYTHING in writing.

Complete the sentence: I never leave home without______, because_______.Pocket change because the parking garage attendant is only going to let me slide so many more times before he refuses to let me leave without paying.

What do you do for fun?I love going to see the latest movie & scarfing down movie popcorn.

What do you like best about your practice area?I practice in about four different areas. The one I find the most re-warding is juvenile law. My juvenile law clients drive me bonkers, but I often feel like I am actually helping someone.

What is one thing you know now, that you wish you would have known in your first year of practice?I’m only a couple of months into my second year of practice, but now I know that while I was waiting around for my bar results I should have been in court observing trials and hearings. Unfortunately, my schedule doesn’t really allow for it now.

Who is your hero?My mom. She raised me to work hard, respect others, but not to take any sh#t.

What is your favorite movie?The Color Purple

Favorite NSBA Member Benefit or Program?I love the section listservs! They are so helpful and informational.

Karen HicksAttorney

Solo practitioner

What kind of legal matter do you find most rewarding/personally satisfying?I most enjoy doing criminal de-fense and juvenile work. I find it gratifying that we can help turn people around from bad decisions and help them become happier and healthier.

Do you have a hidden talent?I play the cello and have since the fourth grade. I currently play with the Hastings Symphony Orchestra, as well as gigs in Holdrege.

What do you do for fun?I drag race. I have a 2004 Pontiac GTO that I enjoy drag racing. I grew up going to the track, as my dad has a 1966 GTO that he’s raced since before I was born. It’s really exhilarating!

What advice would you give a brand new lawyer?Don’t be afraid to try new things and to seek advice from more experienced attorneys. I’ve found that lawyers are willing to pro-vide advice, guidance, and forms if you just ask. Plus, when you’re willing to talk to other lawyers you make great connections that are helpful professionally, but also great friendships outside of our work.

Favorite NSBA Member Benefit or Program?Casemaker and Rural Practice Initiative.

Tana FyeSole Practitioner, Law Offices of Tana M. Fye

Deputy Public Defender, Buffalo County

Take our online survey at: https://www.surveymonkey.com/s/spotlilghtinterview

NSBA Member Spotlights?

Interested in introducing yourself to the legal profession

through the


2013 2012CHANGES IN UNRESTRICTED NET ASSETS

Revenue and supportMembership dues 1,841,467$ 1,832,805$Contributions 12,186 129,500Special events 168,440 135,350Publications and label sales 82,801 71,732Registration fees 434,686 543,990Advertising 57,137 67,181Recovery of costs 87,556 82,373Grants 41,831 198,395Interest income 3,454 5,270Other income 57,375 62,195

Total revenue and support 2,786,933 3,128,791

Transfer to Client Assistance Fund (20,000) (20,000)Net assets released from restrictions 330,915 361,560

Total net assets released and transferred 310,915 341,560

Total unrestricted revenue and support 3,097,848 3,470,351

ExpensesProgram services

Administration of justice 568,309 843,733Professional & Practice Development 932,183 1,227,665Grants 267 5,059

Supporting servicesGeneral and Administrative 1,655,580 1,435,031Fundraising 66,464 54,192

Total expenses 3,222,803 3,565,680

Decrease in unrestricted net assets (124,955) (95,329)

CHANGE IN TEMPORARILY RESTRICTED NET ASSETSLegislative check-off dues 3,246 2,687Other income 13,556 12,629Contributions 19,662 275Section dues 60,045 46,550Transfer to Client Assistance Fund 20,000 20,000Client Assistance Fund 6,225 234Grants 209,362 266,021Net assets released from restrictions (330,915) (361,560)

Increase (decrease) in temporarily restricted net assets 1,181 (13,164)

DECREASE IN NET ASSETS (123,774) (108,493)

NET ASSETS, beginning of year, as previously stated 1,562,672 1,641,165

Prior period adjustment - 30,000

NET ASSETS, beginning of year, as restated 1,562,672 1,671,165

NET ASSETS, end of year 1,438,898 1,562,672

NEBRASKA STATE BAR ASSOCIATION and NEBRASKA LAWYERS FOUNDATIONCONSOLIDATED STATEMENTS OF ACTIVITIES

The full NSBA budget, the complete audit and the annual plan for 2014 is on the NSBA website, www.nebar.com.


2013 2012CURRENT ASSETS

Cash and cash equivalents 2,032,132$ 2,333,922$Accounts receivable 48,122 86,645Accounts receivable from related organizations 30,000 49,857Pledges receivable 19,662 650Grants receivable 201,154 217,000Prepaid expenses 16,805 26,275Certificates of deposit 600,377 600,000

Total current assets 2,948,252 3,314,349

PROPERTY AND EQUIPMENT, net of accumulated depreciation 199,656 199,783

Total assets 3,147,908$ 3,514,132$

CURRENT LIABILITIESAccounts payable 4,467 68,289Assessments payable 540,727 341,250Accounts payable to related organizations 4,807 2,550Accrued liabilities 148,198 138,551Deferred income 1,010,811 1,400,820

Total current liabilities 1,709,010 1,951,460

NET ASSETSUnrestricted

Board designated - House of Delegates reserve 301,254 472,856Undesignated 33,733 (12,914)

Temporarily restricted - Client Assistance Fund 542,281 540,528Other temporarily restricted 561,630 562,202

Total net assets 1,438,898 1,562,672

Total liabilities and net assets 3,147,908 3,514,132

ASSETS

CONSOLIDATED STATEMENTS OF FINANCIAL POSITIONNEBRASKA STATE BAR ASSOCIATION and NEBRASKA LAWYERS FOUNDATION

LIABILITIES AND NET ASSETS

The full NSBA budget, the complete audit and the annual plan for 2014 is on the NSBA website, www.nebar.com.


SEPTEMBERSeptember 8Role of “Trust Protectors” In Trust PlanningTelephone - #PENDING (1 CLE hour)

September 9UCC Toolkit: Promissory NotesTelephone - #96297 (1 CLE hour)

September 10Stephen Easton - Revisiting Irving Younger’s 10 Commandments of Cross ExaminationLive - #93059 (6 CLE hours)Scott Conference Center, Omaha

UCC Toolkit: Letters of CreditTelephone - #96295 (1 CLE hour)

Make Your Witness a Star!Webcast - #88275 (2.25 CLE hours)

September 11UCC Toolkit: Equipment Leases Telephone - #96293 (1 CLE hour)

September 12NCLE Real Estate InstituteLive - #95838 (7 total hours/1 hour ethics)Cornhusker Hotel, Lincoln

Ethics, Technology and Small FirmsTelephone - #96270(1 CLE ethics hour)

September 16Restructuring Failed Real Estate Deals, Part 1Telephone - #96242 (1 CLE hour)

September 17Restructuring Failed Real Estate Deals, Part 2Telephone - #96244 (1 CLE hour)

September 18Trusts and the New Medicare TaxTelephone - #PENDING (1 CLE hour)

September 19Attorney Ethics When Starting a New Law FirmTelephone - #PENDING (1 CLE ethics hour)

September 22Designing & Drafting Grats in Estate PlanningTelephone - #PENDING (1 CLE hour)

September 24Clarence Darrow - Crimes, Causes, and the CourtroomWebcast - #88120 (3 CLE ethics hour)

September 25Law of Religious Organizations, Part 1Telephone - #PENDING (1 CLE hour)

September 26Law of Religious Organizations, Part 2Telephone - #PENDING (1 CLE hour)

September 29Sale/Leaseback Transactions in Real EstateTelephone - #PENDING (1 CLE hour)

OCTOBEROctober 8 - 10NSBA Annual MeetingLive - #95699 (21 CLE hours/13.5 ethics)Embassy Suites, La Vista

October 8The Art of Advocacy - What Can Lawyers Learn from Actors?Webcast - #87973 (3 CLE hours)

October 22Thurgood Marshall’s Coming!Webcast - #88292 (2.5 CLE ethics hours)

Upcoming CLE Programs

New seminars are added to this list weekly. Visit the NSBA Calendar at www.nebar.com for the most up-to-date listing of seminars being offered.

The Nebraska State Bar Foundation is pleased to support

CLE for Bar members.

Nebraska state bar FouNdatioN


We are pleased to announce that DAVID M. HOHMAN and kELLI J. WATSON have joined the FITZGERALD SCHORR law firm. Both Dave and Kelli have extensive experience in their respective legal practice areas and are well known in the legal and Omaha communities. DAVE is a graduate of Stanford University and the University of Nebraska Law School, Cum Laude, and practices in the areas of corporate and busi-

ness law, mergers and acquisit ions, business start-ups and real estate law. kELLI received her degrees in Business Administration and in Law from the University of Nebraska, with Distinction, and concentrates her practice in the areas of estate planning and admin-

istration, guardianships and conservatorships, business plan-ning and real estate, also representing Trustees and Personal Representatives. Both Dave and Kelli are active members of the Nebraska Bar Association, regular presenters at legal semi-nars and active in leadership roles in community organizations.

ADAM kUENNING a 2013 graduate of Creighton University School of Law has joined ERICkSON | SEDERSTROM as an associate practicing in Corporate and Health Law. Kuenning teaches upper level undergraduate business courses as an Adjunct Professor at Bellevue University and practiced in Broken Bow, Nebraska prior to joining Erickson | Sederstrom.

ANDREW COLLINS is now a partner at Erickson | Sederstrom and will continue his practice in the areas of Corporate, Intellectual Property, Real Estate and Litigation. Collins grad-uated cum laude from Creighton University School of Law and Joined Erickson | Sederstrom as an associate in 2008.

transitions

Career Changes....................................................and Relocations

David M. Hohman

➡Kelli J. Watson

It’s Monday, the First Day of the Rest of Your Life.

Too bad last Friday was the last day to file the Bergstrom motion. Did you know that missing deadlines continues to be one of the most common mistakes leading to malpractice claims? “Procrastina-tion in performance/followup” was the second most common error leading to a malpractice claim*. A dual calendaring system which includes a firm or team networked calendar should be used by every member of your firm.

At Minnesota Lawyers Mutual we don’t just sell you a policy. We work hard to give you the tools and knowledge necessary to reduce your risk of a malpractice claim. We invite you to give us a call at 800-422-1370 or go online at www.mlmins.com and find out for yourself what we mean when we say, “Protecting your practice is our policy.”

* American Bar Association Standing Committee on Lawyers’ Professional Liability. (2012-2013). Profile of Legal Malpractice Claims, 2008-2011. Chicago, IL: Vail, Jason T. and Ewins, Kathleen Marie.

R

Protecting Your Practice is Our Policy.800.422.1370 www.mlmins.com

Life- Nebraska Lawyer 2010


kENT E. ENDACOTT, JEFFERY T. PEETZ and PATRICk D. TIMMER have announced the formation of their new law firm: ENDACOTT, PEETZ & TIMMER. THOMAS J. FITCHETT has joined the law firm as an of-counsel member. Endacott, Peetz

& Timmer will focus on trust and estate law and community banking law. The law firm will assist closely held busi-ness owners, including, farmers and ranchers, with business succession plan-ning and other transac-tions. All members of the law firm have been elected as Fellows of the American Col lege of Trust and Estate Counsel (ACTEC). ACTEC is comprised of the nation’s top trust and estate attor-neys; membership is extended only to lawyers

who meet strict criteria. Endacott, Peetz & Timmer, PCLLO serves clients throughout Nebraska, South Dakota and Iowa. The firm will be located in the historic Kennard Building at 10th and K Streets in Lincoln, which is currently under renova-tion. Endacott, Peetz & Timmer, PCLLO can be reached at (402) 904-3629 or at www.eptlawfirm.com.

The firm of DORNAN, LUSTGARTEN & TROIA, PC, LLO, is pleased to announce that ANNE M. BREITkREUTZ has joined

the firm as a partner. Anne, a graduate of the University of Nebraska School of Law, has twenty years of legal experience and has established expertise in family law. Anne also practices in the areas of estate plan-ning, probate and general corporate law. She is currently the co-chair of the Nebraska Academy of Collaborative Professionals and a trained mediator. STEPHEN OMEARA,

formerly Assistant United States Attorney in Iowa and Special Assistant United States Attorney in Nebraska , has also joined the firm. Stephen has practiced law at both the federal and state levels in criminal and civil litigation. During his career, Stephen has led task forces aimed at human trafficking and child exploitation. He has extensive experi-ence in the areas of drug trafficking, firearms and violent crime enforcement and will use this expertise in the criminal defense division.

TRANSITIONS

Kent E. Endacott

Jeffery T. Peetz

Patrick D. Timmer

Thomas J. Fitchett

Anne M. Breitkreutz

Stephen Omeara

If you are aware of anyone within the

Nebraska legal community (lawyers, law office personnel,

judges, courthouse employees or law students) who suffers a sudden, catastrophic loss due to an unexpected event, illness or injury, the NSBA’s SOLACE Program can likely assist that person in some meaningful way.

Contact Mike Kinney at [email protected] and/or Liz Neeley at [email protected].

We have a statewide and beyond network of generous Nebraska attorneys willing to get involved. We do not solicit cash, but can assist with contributions of clothing, housing, transportation, medical community contacts, and a myriad of other possible solutions through the thousands of contacts available to us through the NSBA and its membership.

Legal Nurse Consulting Justice LLC13533 Boyd StreetOmaha, NE, 68164

Larry Krafka RN, MPA, CPHQ, CLNC®

Certified Legal Nurse Consultant

40 years of nursing experience

Value of the LNC to the Legal Process- Cost-effectiveness- Resourcefulness

- Knowledge- Experience

“Even though you are on the right track – you will get run over if you just sit there.”

- Will Rodgers

(402) 763-0737 • [email protected]


in memoriam

ROBERT FRANCIS ROSSITER, SR., formerly of Glen Mills, PA, passed away peacefully on July 17, 2014 in Omaha, Nebraska. Robert was born in Omaha, Nebraska on August 27, 1931. Robert was a graduate of Creighton Prep High School in Omaha, the University of Notre Dame undergraduate and Notre Dame Law School. A retired Major in the U.S. Marine Corps, Robert was a successful

attorney, specializing in medical malpractice defense work in law firms in Philadelphia, PA, and in Omaha, NE. He was a member of the Nebraska, Pennsylvania and Indiana Bar Associations and was admitted to the United States Supreme Court Bar. He successfully argued and won a case before the Pennsylvania Supreme Court. Early in his career he also worked for Medical Protective Insurance Company, Farmer’s and Central Mutual Insurance, and Harleysville Insurance Company. Robert’s passions included: his family, Notre Dame sports, Egyptology, fishing, music, poetry and vacationing with

his family at the New Jersey Shore. Robert is survived by his beloved wife of 59 years, Mary Jane (nee Paden); sons: Robert Rossiter, Jr. (Mary Beth), James Rossiter (Kathleen), and William Rossiter (Susan); daughter, Sandra Rossiter Lastowka. Robert has tremendously impacted the lives of his twelve grandchildren (Robert III, Andrew, Katherine, Erin, Zachary, Margaret, Mitchell, Mary, Joseph, Samantha, Nicholas, and Catherine) as well as numerous others he has mentored or coached. He was preceded in death by his parents, Francis K. Rossiter and Florence Rossiter (nee Kibbie), along with broth-er, Thomas Rossiter.

The memory of your colleagues may be honored with a memorial to NSBA’s Nebraska Lawyers Foundation, PO Box 81809, Lincoln, NE 68501-1809 or to the Nebraska State Bar Foundation, PO Box 95103, Lincoln, NE 68509-5103.

Note: If you hear of the death of a bar member please feel free to contact The Nebraska Lawyer and staff will follow up to obtain information and prepare a notice. You may contact [email protected]. We receive notices, but they come from different sources and at different times, so your assistance is appreciated in sharing this important information with your colleagues.

Robert F. Rossiter Sr.


The Nebraska Bar is proud to offer Casemaker's suite of premium services at no additional cost to our members.

Now, Nebraska Bar members have access to not only Casemaker's broad and comprehensive libraries which cover all 50 states and Federal level materials -but members also have access to a suite of tools that make research faster and easier.

CaseCheck+® A negative citator system that let's you know instantly if the case you're reading is still good law. CaseCheck+ returns treatments instantly as you research. Link to negative treatments and quickly review the citation history for both state and federal cases.

~CiteCheck by Casemaker

Upload a brief or pleading and within 90 seconds Casemaker will provide a report stating whether your case citations continue to be good law.

CasemakerDigesf Daily summary of appellate decisions for all state and all federal circuits, categorized by subject. Casemaker Digest will email or send you an RSS feed of the latest cases in your selected jurisdictions and subject areas of interest.

To learn more about Casemaker and the tools available to you as a Nebraska Bar member, call Customer Support at 877.659.0801

)_j_j Casemaker· --- THE LEADER IN LEGAL RESEARCH ..

www.casemakerlegal.com


legal marketplace

Forensic Accounting Investigations

Cody F. Carse, CPA402-201-6427

[email protected]

www.CodyFCarseCPA.com

(402) 879-4619

www.writefacts.com [email protected] E. 3rd St. Suite #3 • Superior, NE 68978

Sandra FooteHandwriting Specialist since 1991

Handwriting Examination/Comparative StrokesJury Screening • Anonymous Notes & Graffiti

Wills, Loan and Probate Documents

, LLC

2801 Pine Lake RdLincoln / 402.420.7288

emsuds.comFREE ALTERATIONS ON ITEMSAT THE TIME OF PURCHASE

SUITSSTARTING

AT $199SUITS & SPORTCOATS

DRESS & CASUALWEARTIES / BOWTIES / SHOES

• Certified Forensic Document Examiner • Handwriting Expert • Certified Life Coach • NE Trained Mediator

Sylvia Kessler 402-331-3447 • [email protected]

www.forgerydetectionexperts.comCourt Qualified: State and Federal

Experienced - Reliable - Trained - ResourcefulDisputed Signatures/Documents/Electronically Lifted Signatures

Litigation Support/Handwriting/Signature Identification/Cut & PasteMember of: Scientific Association of Document Examiners (SAFE)

Forensic Expert Witness Association (FEWA)


Courthouse Prints & Notecards

Courthouse Print Order Form 16” x 20” $100 (plus applicable sales tax) 20” x 24” $150 (plus applicable sales tax)

Please send me the following print(s): (Indicate size and quantity)

County Size Quantity Total Box Butte _______ _______ $________Colfax _______ _______ $________Custer _______ _______ $________Dakota _______ _______ $________Douglas _______ _______ $________Frontier _______ _______ $________Furnas _______ _______ $________Gage _______ _______ $________Hall _______ _______ $________Kearney _______ _______ $________Madison _______ _______ $________Nuckolls _______ _______ $________Otoe _______ _______ $________Richardson _______ _______ $________Saunders _______ _______ $________Scotts Bluff _______ _______ $________Thayer _______ _______ $________

Total $________

Courthouse Notecards Order Form Box of 25 $10 (plus applicable sales tax)

Please send me the following notecards: County Quantity TotalBox Butte _______ $________Colfax _______ $________Custer _______ $________Dakota _______ $________Douglas _______ $________Frontier _______ $________Furnas _______ $________Gage _______ $________Hall _______ $________Kearney _______ $________Madison _______ $________Nuckolls _______ $________Otoe _______ $________Richardson _______ $________Saunders _______ $________Scotts Bluff _______ $________Thayer _______ $________Mix of all counties _______ $________

Total $________

Name:_________________________________________________

Address:_______________________________________________

City:______________________ State:______ Zip:____________

Phone:_________________ Email:________________________

Amount enclosed or to be charged:_____________________

_____ Check Enclosed or

Charge to: ___Mastercard ___Visa ___AMEX ___Discover

Card#:__|__|__|__|__|__|__|__|__|__|__|__|__|__|__|__|__|

Exp. Date: ______________ Security Code: ______________

Signature: ____________________________________________

Return to NSBA, PO Box 81809, Lincoln, NE 68501 or fax to 402-475-7098.

Enjoy these beautifully rendered watercolors of Nebraska Courthouses in your office.

Prints are available in two sizes, 16” x 20” and 20” x 24”, and are printed on high-quality art stock and ready to be framed. Notecards are available as a boxed set of 25 blank cards with envelopes included.

See individual pictures of the County Courthouses available on the NSBA website www.nebar.com.


classified ads

OFFICE SPaCE avaILaBLE - Well – established solo-practitioner has office space available. Paralegal, secretary, phone, fax, internet, conference room, furniture. Centrally located. Free parking. Reasonable rent. All responses kept in strictest confidence. Mail letter of interest to: Brian J. Muench, PC LLO, 7701 Pacific Street, Suite 301, Omaha, NE 68114; Email to: [email protected]; Phone: 402-556-2819; Fax: 402-556-3014

DOWNTOWN OMaHa LaW OFFICE SHaRE avaILaBLE-Office share located directly across the street from the Douglas County Courthouse, 3 offices available immediately. Each office has large windows with views of the Courthouse or the Omaha Building. Amenities included in the monthly rent: use of 2 conference rooms, receptionist, phones, internet, server, fax, printer, copier, scanner, and full kitchen. Attached, covered garage parking available. Call 402-932-9550.

OFFICE SHaRING aRRaNGEMENT - Office sharing arrangement for up to three attorneys. Well established visible and accessible location in the south central Omaha area. Convenient to Douglas and Sarpy County Courthouses. Private offices, multiple conference rooms, telephone, internet and all other amenities provided. Contact Mark Klinker or Barbara Van Sant, (402) 331-3330 or email [email protected].

aPPELLaTE BRIEF-WRITING: Former Illinois Assistant Appellate Defender Michael Wilson available as co-counsel for appeals, criminal and civil. Since joining Omaha firm Schaefer Shapiro LLP in 2009, Mr. Wilson has successfully represented several clients before the Nebraska appellate courts. For more information, contact Mr. Wilson at 402-341-0700 or visit www.michael-wilson-law.com.

aSSOCIaTE: Keating, O’Gara, Nedved & Peter, P.C., LLO, an AV rated firm in Lincoln, seeks an associate with two or more years of experience in transactional, estate planning, and/or general practice work. Please send resume and cover letter to Joel Bacon. 530 S. 13th St., Suite 100, Lincoln, NE 68508 or [email protected].

FOR SaLE - 9 Phillips attorney recorders, 8 Phillips secretary transcribers with foot pedals, 5 headsets and numerous blank dictation tapes. Machines are in working order; our office switched to digital dictation so do not have a need for these items. $2,500.00 obo. If interested, please call Peggy at 402-474-1731.

Thank you to our 2014 GAP Class Sponsors & Exhibitors

Exhibitors: Casemaker

Cozad Nursing Consultant, LLCLegal Nurse Consulting Justice, LLC

MercerNebraska Mediation Association

Smart Start of Nebraska


SponSorS/ExhibitorS• ALPS, Lawyers Professional Liability Insurance • Cozad Nursing Consultant, CLNC

SponSorS

President’s Dinner• MercerPresident’s Reception• Minnesota Lawyers MutualWednesday Coffee Break• Affirmative Dispute ResolutionThursday Coffee Break• US Bank

Hotel Key Cards• LawPayIn Honor of Your Honors Reception• Lincoln Bar Association• Omaha Bar Association• Buffalo County Bar Association• Lincoln County Bar Association• Madison County/7th Judicial District

Bar Association• Sarpy County Bar Association• Tri-County Bar Association

ExhibitorS• ABA Retirement Funds• AEI (Advanced Engineering

Investigations• Affirmative Dispute

Resolution• Ameritas Financial Center• Case Forensics• Casemaker/NSBA• Edwards Jones Investments

• Hertz Farm Management Co.• Intercall• Law Pay• Legal Aid of Nebraska• Legal Nurse Consulting

Justice, LLC• Mercer• Midwest Special Needs Trust• Minnesota Lawyers Mutual• Nebraska.gov• Office Depot

• P&L Technology• PNP Private Wealth Resources• RCL Portrait Design• Run Networks• Smart Start of Nebraska• Tabs3/PracticeMaster• Thomas & Thomas Court

Reporters, Legal Video & Video Conferencing

• Wahltek, Inc.


Welcome to the 2014 edition of the Nebraska State Bar Association Annual Meeting. As you no doubt know, this has been a critical year for the NSBA. This has been a year of hard work for the NSBA staff—particularly Liz Neeley, our wonderful new Executive Director, and Sam Clinch, our terrific Associate Executive Director. It has been a year of hard

work for the officers—myself as President, Amie Martinez, our President-Elect, Bob Rossiter, our President-Elect Designate, and Joel Carney and Tim Engler, the Chair and Chair-Elect of the House of Delegates. It has also been a year of hard work for a number of dues-paying and assessment members of the NSBA who have generously volunteered their time and energy to work on this transition.

All of those mentioned above have been busy implementing changes in the structure and financing of the NSBA. The bar—our bar—is being reset.

Many changes are in place and already apparent—changes in attitude, in responsiveness, in programs; many will be so subtle and seamless that you will not notice; others are on the way. I know that all of this work is already paying off in the form of an even better NSBA—and that the pay-off will only increase as we move through the next year under the leadership of our next president, Amie Martinez.

We have a new focus on our mission: working for Nebraska lawyers to help them achieve the highest standards of competence, ethics, and professionalism and to protect and promote the administration of and access to justice in this great state of ours.

The Annual Meeting is an important part of the mission. The opportunities for education, fellowship, and discovering resources and benefits are three of the things I have gotten out of my long record of attendance.

Education: Take our keynote speaker, Erwin Chemerinsky, for example. He is the Dean and the Raymond Pryke Professor of First Amendment Law at the University of California – Irvine. Find him too liberal, find him too conservative, agree with him or not, he is one of the best speakers I have encountered and one of the most knowledgeable individuals in one of my areas of expertise: Constitutional Law. His talk, addressing the changes wrought by the Roberts Court and where it is headed, will be interesting and educational no matter

what your views regarding politics or constitutional law.

Fellowship: I like lawyers. I like their energy, their intelligence, their commitment. I like being around them. Many of my heroes are attorneys. This opportunity to associate with comrades at the bar is one of the annual meeting benefits I take most seriously, and look forward to most eagerly.

Discovering Resources and Benefits: If you don’t know of the benefits of Casemaker—whether you are a solo practitioner, in a small firm, or in a mega multiple-location firm—you will have a chance to learn about those benefits at the annual meeting. And about software that might be of value to you, such as Probate System V, to learn about NebDocs, NLAP, the Volunteer Lawyers Project and the Rural Practice Initiative, to name but a few NSBA resources and benefits.

Welcome! Thank you for coming. Enjoy yourselves. Enjoy your friends at the bar. Learn a few things. And say thank you to Liz Neeley and Sam Clinch and the rest of the NSBA staff for all that they have put into resetting our bar.

resetting the bar

G. Michael Fenner, PresidentPhone: (402) 280-3090



We recommend that you REgISTER EARLY. Space is limited and when capacity for each seminar has been reached, the seminar will be closed to walk-in registrants. A ticket will be required at the door for each seminar you registered for and attend. Your tickets will be at the NSBA registration desk.

To receive CLE credit, you must sign the back of your ticket and hand it to a NSBA staff member at the door. You MUST register even if you only attend the complimentary events.

You can register online at: http://www.nebar.com/event/NSBAAnnualMeeting_14

nsba has gone greenYou may download seminar materials from the NSBA website and print them off beginning two weeks before the conference. A link to download materials will be included in your confirmation email. Materials will be available for download two weeks after the meeting, as well.

mcle accreditationThe 2014 NSBA Annual Meeting has been accredited for 21 CLE hours including 13.5 ethics hours. The meeting is accredited as ONE event (each seminar is NOT individually accredited). Report the hours you attend under MCLE Activity #95699.

hotel guestsAll events are scheduled at the Embassy Suites Omaha - La Vista Hotel & Conference Center. A block of rooms has been reserved through September 27, 2014. To reserve a room online, go to https://resweb.passkey.com/Resweb.do?mode=welcome_ei_new&eventID=11657880&utm_source=11252556&utm_medium=email&utm_campaign=35212428. If you prefer to book via phone please contact the reservations team at (402) 331-7400 and reference the Nebraska State Bar Assocation. Group Code SB7

Special rates cannot be guaranteed after September 27, 2014. If you require any special service or auxiliary aids to assist you while attending the annual meeting, please contact Sam Clinch at [email protected] or (800) 927-0117, ext. 125.

Let Me Help You Make Sense Out of Your Medical Records

Virginia Cozad, BSN, ARNP

Certified Legal Nurse ConsultantMember National Alliance of Certified

Legal Nurse Consultants

[email protected]

715 North Main St.Valentine, NE 69201


leadership academy reception• TUESDAY - All Leadership Academy classes are invited to this reception from 6:00 - 7:00 pm.

breakfasts• WEDNESDAY - ADR Section (7:30 am); ACTEC Fellows (8:00 am); Barristers’ Ball Committee (9:00 am)

• THURSDAY - Bank Attorneys (7:30 am); Women & the Law Section (7:30 am)

nebraska state bar foundation legacy of liberty breakfast• THURSDAY - All lawyers, spouses and guests are invited to this complimentary breakfast at 7:45 am.

law school alumni lunches• WEDNESDAY - The UNL, Creighton and University of Iowa lunches are from Noon to 1:00 pm.

WEDNESDAYjudges’ reception: in honor of your honors

Join us from 5:00 - 7:00 pm at this special reception honoring Nebraska judges. (Complimentary hors d’oeuvres, cash bar)

THURSDAYnsba association lunchJoin the NSBA at this celebration lunch, from Noon to 1:00 pm, to recognize public service award winners and pass the gavel to the incoming President.

president’s receptionCelebrate 2014 with outgoing President G. Michael Fenner and incoming President Amie Martinez. The reception will be from 5:00 - 7:00 pm. (Complimentary hors d’oeuvres, cash bar)

late night receptionJoin the NSBA Young Lawyers Section starting at 8:00 pm at Beyond Golf Sports & Spirits - 12040 McDermott Plaza, #330, La Vista, NE 68128.

FRIDAYnsba legacy lunchJoin fellow bar members to honor 25 and 50 year members from Noon - 1:00 pm.

Register online at http://www.nebar.com/event/NSBAAnnualMeeting_14 Total Credit

Ethics Credit

Wednesday, October 8thProbate System V - 8:00 am - 9:00 am 1.0 0.0Immigration Section - Deferred Action for Childhood Arrivals - 8:00 am - 10:00 am 2.0 0.0Family Law Section - Reading Tax Returns and Financial Statements - 8:00 am - 10:00 am 2.0 0.0NATA - The Best of NATA CLE 8:15 am - 10:00 am 2.0 0.5ADR Section - Self-Represented Litigants in Family Law: Questions & Answers for Courts and ADR Providers - (9:00 am - 11:00 am) 2.0 0.0

Law Practice Management Section - E-Filing, Appellate Court Searches & Receiving Electronic Court Documents - 9:00 am - 11:00 am 2.0 0.0

Midlands Bar Association - Three Perspectives on Termination of Parental Rights Proceedings - 9:30 am - 11:30 am 2.0 0.0

NLAP - The Nebraska Lawyers Assistance Program - Serving Nebraska Lawyers - 10:00 am - Noon 2.0 2.0Real Estate Probate & Trust Law Section - Dealing with the Insolvent Estate - 10:00 am - Noon 2.0 0.0Law Practice Management Section & General Practice Section - Lawyers Online: Ethics, Security and Best Practices - (1:15 pm - 3:15 pm) 2.0 1.0

Juvenile Law Section - Guardian ad Litem Training - (1:15 pm - 4:15 pm) 3.0 0.0NebDocs - Intro & Basic Training on Using NebDocs in Your Practice (2:00 pm - 3:00 pm) 1.0 0.0Labor & Employment Law Section - USERRA Requirements for the Military Employee and Their Employer Along with Common Pitfalls - (3:00 pm - 4:00 pm) 1.0 0.0

Introduction to Casemaker - (3:00 pm - 4:00 pm) 1.0 0.0Securities Law Section - A Survey of the Current Securities Law Landscape and its Practical Implications - (3:30 pm - 5:00 pm) 1.5 0.0

Advanced Casemaker - (4:15 pm - 5:15 pm) 1.0 0.0Thursday, October 9th

Women & the Law Section - (9:00 am - 10:30 am) 1.5 0.0Bank Attorneys Section - Banking Law Update 2014 - (9:00 am - 10:30 am) 1.5 0.0Young Lawyers Section - Debt Counseling: Getting a Grip on Your Student Loans - (10:00 am - 11:30 am) 1.5 0.0Government Practice Section - (10:00 am - Noon) 2.0 2.0Nebraska Innocence Project - Eyewitness Identification Practices and the Consequences for Legal Practice in Nebraska - (10:00 am - Noon) 2.0 0.0

Business Law Section - Applying the New Model Business Corporation Act and Other New Business Entity Acts to Your Practice - (10:30 am - Noon) 1.5 0.0

Practical Ethics & Attorney Licensing - (1:15 pm - 3:15 pm) 2.0 2.0Nebraska Defense Counsel Association - NDCA Annual Ethics Update - (1:15 pm - 3:15 pm) 2.0 2.0Corporate Counsel Section - E-discovery and Document Retention for the Corporate Attorney - (1:15 pm - 3:15 pm) 2.0 0.0

General Session Featuring Erwin Chemerinsky - The Roberts Court at Age 10 - (3:45 pm - 5:00 pm) 1.0 0.0Friday, October 10th

Christian Legal Society - (8:00 am - 10:00 am) 2.0 1.0NCDAA & Minority Justice: Implicit Bias: The Neuroscience and Empirical Psychology of Decision-Making - (9:00 am - Noon) 3.0 3.0

Litigation Essentials: Step by Step - (10:00 am - 11:30 am) 1.5 0.0Nat. Resources & Env. Law Section - Trends in Envrironmental Law - (10:00 am - 11:30 am) 1.5 0.0Military Law Section - Helping Veteran Clients with Government Contracts - (10:00 am - Noon) 2.0 0.0Legislative Update - (10:00 am - Noon) 2.0 0.0UPL - Protecting the Public from the Unauthorized Practice of Law - (10:00 am - Noon) 2.0 2.0Nebraska Criminal Defense Attorneys Association - Framing the Issues - (1:00 pm - 4:30 pm) 3.5 0.0IP Section - Data Security Basics for the Non-Specialist - (1:15 pm - 2:45 pm) 1.5 0.0Agricultural Law Section - 2014 Farm Bill Overview & International Agricultural Trade Issues - (1:15 pm - 2:45 pm) 1.5 0.0VLP - Family Law Basics- (1:15 pm - 2:45 pm) 1.5 0.0NSBA Hispanic Attorneys Section - I Have My First Jury Trial - What Next? - (1:15 pm - 3:15 pm) 2.0 0.0Elderlaw & Senior Lawyers Section - Older Clients, Lawyers & Ethics: Focusing on the Effects of Dementia on the Attorney-Client Relationship - (1:15 pm - 4:15 pm) 3.0 2.0

9401CBNebraskaLawyerAd_fnl.pdf 1 8/8/14 5:21 PM

CARLSON BURNETT ATTORNEYS AT LAW

Congratulations to Mark A. Weber on his appointment as Counsel for Discipline of the Nebraska Supreme Court.

At Carlson & Burnett, our attorneys do their best to be genuine friends of the

families they serve. On the rare occasion, being that kind of friend means leaving

colleagues behind. Such is the case of Mark Weber, the recently appointed

Counsel for Discipline of the Nebraska Supreme Court. Taking over from the

venerable Dennis G. Carlson, Mark will help ensure that every Nebraskan is

ethically served by all who practice law within our state.

PERSONAL INJURY• ESTATE PLANNING• DIVORCE• BUSINESS PLANNING• REAL ESTATE