M a y / J u n e 2 0 2 0 I s s u e N u m b e r 3 1 0

Inside this issue…

Protecting Plaintiffs with a Section 130-Exempt Structured Settlement Administration Trust— See page 6 Twenty-Five Propositions for the Practice of Law—see page 8 Dues Renewal Form—page 16 Board of Governor Candidate Profiles — see pages 18-20 Law School Times - see page 12-15 and so much more…..

SDTLA Annual Meeting SDTLA Annual Meeting CancelledCancelled

Elections Held Elections Held ElectronicallyElectronically June 1June 1--17, 202017, 2020

Members will receive Members will receive

a ballot via email for electronic a ballot via email for electronic voting on June 1.voting on June 1.

Or you may request a ballot and mail to SDTLA, PO Box 1154, Pierre, SD 57501.

P r e s i d e n t ’ s M e s s a g e … . B y A l e c i a F u l l e r

Officers President: Alecia E. Fuller

President-Elect: Kasey L. Olivier Secretary-Treasurer: Timothy J. Rensch

Board of Governors

Timothy Rensch, AAJ Delegate Aaron D. Eiesland, AAJ Delegate

Brad Lee, AAJ Governor Stephanie E. Pochop, AAJ Governor

Terrence R. Quinn, AAJ Governor Emeritus

Nathan R. Oviatt, AAJ Young Governor Beau Barrett

Michael S. Beardsley Joseph B. Erickson

Koln B. Fink Nicole J. Griese

Raleigh E. Hansman George F. Johnson Ashley Miles Holtz Melissa E. Neville

Melissa B. Nicholson Breit Robert J. Rohl

Brad A. Schreiber

Past Presidents Immediate Past President

T.J. Von Wald

William J. Holland - Stan Siegel Joseph M. Butler - John H. Zimmer

Carleton R. Hoy - Horace R. Jackson William F. Day Jr. - Vincent J. Protsch

Gale E. Fisher - A. William Spiry Franklin J. Wallahan - Gerald L. Reade

Rick Johnson - David V. Vrooman Terence R. Quinn - Thomas R. Pardy

Charles M. Thompson - David R. Gienapp Gary E. Davis - Gregory A. Eiesland James S. Nelson - Robert J. Burns

Brent A. Wilbur - Steven M. Johnson Glen H. Johnson - William J. Srstka Jr.

Gary D. Jensen - John P. Blackburn Michael W. Day - Michael J. Schaffer

Bruce M. Ford - Nancy J. Turbak Berry Scott Heidepriem – Michael D. Stevens Robert L. Morris II - Richard D. Casey

Jon Sogn – Mark V. Meierhenry Brad Schreiber – Jeff A. Larson Mark Connot – Tina M. Hogue

James Roby - Wally Eklund Michael F. Marlow - Clint Sargent

Michael A. Wilson Roger A. Tellinghuisen—Steven S. Siegel Stephanie E. Pochop—G. Verne Goodsell

Steven C. Beardsley-Margo T. Julius Ryan Kolbeck

Association Office

104 W Spring Creek Dr — PO Box 1154 Pierre, SD 57501-1154

605-224-9292 sdtla@mncomm.com (email)

Sara Hartford—Executive Director

Page 2

When you google “Trial Lawyers in the Age of COVID-19” you will get about 23.4 million results. 23.4 million. There are results covering the areas of ethics, remote working, social distancing, cyber-security tips, maintaining mental and physical well-ness, expanding pretrial services, employment law, and the decline of the jury trial. The New Normal… I don’t know that I am ready for the change. But I don’t think I have a choice. Our lives and our profession will be different as we move forward. I would encourage everyone to read Mark Cohen’s March 24, 2020 article in FORBES titled “COVID-19 Will Turbocharge Legal Industry transformation.” When I read the article, two months after it was published, it rang true. In my career at the Pennington County Public De-fender’s Office, I always had a paper file. We all did. When people would ask me about our office going paperless, I would always say I can’t see it happening while I am here. Well I was wrong. In my final month at the PDO, they went paperless. From what I observed it was pretty efficient and all the lawyers and staff adapted. The transition to paperless always seemed to me to be a daunting task. Perhaps it was the fabulous staff and “just get the job done” lawyers at the PDO, but it wasn’t that hard. And Mark Cohen predicted the same as he stated that while the legal pro-fession was unprepared for digital transformation, the coronavirus “will produce a swift, comprehensive, top-to-bottom re-imagination of the legal sector.” Many lawyers, paralegals, secretaries and receptionists are working from home. It didn’t seem a possibility that our profession could shift to remote work, but we have. Our legal culture is changing. As everyone is aware the 2020 State Bar is indefinitely postponed. However, I received the notice that our State Bar Business meeting will be held on Zoom. The South Dakota Supreme Court held oral arguments in its April Term via Zoom. It is so hard to fathom this as a possibility, but it is happening. Our profession is adapting to get the job done. SDTLA is also adapting to the changes. Our election for the 2020-2021 Board of Governors will be electronic. Look for the email and please vote! Our Annual Semi-nar “Jammin for Justice” is still slated for September 17-18 in Deadwood. We have discussed different options if we can’t hold it, but the entire Board of Governors stressed the importance of our friendship and comradeship that develop and grow when we get together. While a Zoom training may be educational and assist with trial skills, there is just something about getting a coffee in the morning or a cocktail at the banquet with an old friend and asking about his or her family. Two of SDTLA’s primary goals are “Preserve the jury system” and “Promote justice and efficiency in all matters pertaining to the trial of civil and criminal cases.” If there was ever a more difficult time to achieve these goals I don’t know when it could be. In state and federal courts continuances are being liberally granted and jury trials are not being held. In-custody defendants don’t leave the jail. They appear via video into the courtroom. Courts have determined the right to a speedy trial is tolled as to all de-fendants. Efficiency, quite simply, isn’t a possibility. Other jurisdictions are trying to adapt to ensure there can be jury trials. A Montana court was planning on utilizing a high school gymnasium for a jury trial so all parties can practice social distancing. In Florida, Broward Chief Circuit Judge Jack Tuter is working with ABOTA and New York University’s Civil Jury Project to create a model

May /June 2020

Continued on page 21

May/June 2020 Page 3

EDITOR’s Notes & Comments Timothy W. Billion

The Barrister is published electronically six times a year by the South Dakota Trial Lawyers Association as a service to its membership and as part of its continuing commitment to educate and promote professionalism among trial attor-neys. Submissions are welcome. Interested authors should contact Sara Hartford, Executive Director at the above address. Articles are accepted from contributors who share the goals of the South Dakota Trial Lawyers. All submis-sions must be signed by the author. The Barrister is not responsible for cite-checking or reference checking materials cited in submissions. The author must verify that any sources included, relied upon or quoted in the submission have been properly credited and cited; the author must obtain all necessary permissions for publication of copyright protect-ed materials. The Executive Director and Editor have the right to edit all submissions or refuse to publish articles that are not in keeping with the goals of the organization. Subscriptions of $25 are included in the Association’s annual membership dues. Non-members subscription rate is $50 per year. Statements and opinions in the Barrister editorials and articles are not necessarily those of SDTLA. Publication of ad-vertising does not imply endorsement of products or services or statements made about them. Advertising copy is subject to approval by SDTLA. Copy deadlines are February 1, April 1, June 1, August 1 October 1 and December 1. Call for advertising rates.

Greetings and happy spring! First and foremost, I hope everyone is adjusting to current circumstances, whatever they may be, and managing to stay healthy and happy. In this era of social distancing, we hope that the Barrister can help people stay connected with each other and maintain ties to a professional community. Our first article, from Professor Jon Van Patten, provides some excellent practical advice for law students and young lawyers. These tips, though aimed primarily at young law-yers, should resonate with lawyers regardless of experience. I appreciate the reminder to occasionally step back from the details and look at the big picture. We also have an article from Jim Leach about Section 130-Exempt Structured Settlement Administration Trusts. This article responds to an article by Professor Tom Simmons, “Protecting Plaintiffs Post-Settlement With a Trust,” published in the March/April 2020 issue of the Barrister. While the SDTLA is not recommending any particular type of post-settlement asset management strategy or provider, we are happy to provide a forum for our members to present and reflect on their experi-ences with different asset protection vehicles. When we communicate and collaborate, we make our individu-al practices stronger, and our collective practice improves as well. Finally, thank you to our outgoing law school liaisons, Kylie Beck, Aidan Goetzinger, Mae Meierhenry, and Thad Titze. Best wishes to all of them as they join us in the legal profession. I am also excited to introduce our new law school liaisons: Courtney Buck, Conor Casey, Cate Dougherty, John Nelson, and Tierney Sco-blic. Thank you in advance to each of them for keeping us connected to the Law School. We look forward to getting to know each of them more. Thanks! Tim

May/June 2020 Page 4

TOAST OF TRIAL LAWYERS June 2006

Nancy Turbak T.F. Martin

Travis Jones Michael Stevens

June 2007

Roger Tellinghuisen Mike Butler Eric Schulte

June 2008 Sid Strange Jerry Reade Jim Leach

June 2009

Mike Abourezk Alicia Garcia

Scott Heidepriem Shiloh MacNally Doug Cummings

June 2010

Michael DeMersseman Hon. John Schlimgen

Joni Cutler Margo Julius

Scott Abdallah

June 2011 Susan Sabers TJ Von Wald John Murphy Steve Siegel

June 2012

John Blackburn Linda Lea Viken Hon. Mark Smith Ronald Parsons

June 2013

Rep. Michael Stevens Hon. John Hinrichs Hon. Michelle Percy

Clint Sargent McLean Thompson Kerver

Eric C. Schulte Tim Rensch

Stephanie Pochop Richard Casey Ryan Kolbeck

June 2014

Clint Sargent Raleigh Hansman Ronald Parsons

Joseph Kosel

June 2017 Matthew Kinney

June 2018

James Leach

June 2019 Eric Schulte Paul Linde

SDTLA Calendar of Events

2020 June 18 Board Meeting by Zoom, 11 am June 18 Elections finalized July 16 Board Meeting by Zoom, 11 am August 12 Board meeting by Zoom+Mock Trial Event 1pm, USD Law School Courtroom, Vermillion

September 16 Board meeting Tentative Deadwood Mountain Grand, 4 pm MT September 17-18 Jammin for Justice—tentative SDTLA Annual Seminar & PAC Poker Run

Deadwood Mountain Grand October TBA Board meeting with Chief Justice November 12 Board meeting by Zoom, 11 am December 10 Board Meeting by Zoom, 11 am

NOTE TO YOUR ACCOUNTANT: NON-DEDUCTIBLE

PERCENTAGE Of Your DUES

July 1, 2017– June 30, 2018 38.2%

May/June 2020 Page 5

Scott A. Abdallah Michael C. Abourezk Grant G. Alvine Amy Bartling Jacobsen Kenneth E. Barker Steven C. Beardsley Michael S. Beardsley Jeffrey R. Beck John P. Blackburn Daniel Brendtro John William Burke Michael J. Butler Renee H. Christensen Liam M. Culhane

$1,800 ANNUAL Michael F. Marlow

Stephanie E. Pochop

$1,200 ANNUAL John P. Blackburn Aaron D. Eiesland

Gregory A. Eiesland Clint Sargent

Michael D. Stevens

$900 ANNUAL John W. Burke

$600 ANNUAL Margo T. Julius

Mark V. Meierhenry James C. Roby

Michael J. Schaffer Whiting Hagg & Hagg

$500 ANNUAL

Brad J. Lee Steven S. Siegel

$300 ANNUAL G. Verne Goodsell

$240 ANNUAL Ryan Kolbeck

$180 ANNUAL Alecia E. Fuller

$120 ANNUAL

Richard A. Engels Robert B. Frieberg George E. Grassby

Michael Paulson Catherine V. Piersol

Haven L. Stuck T. J. Von Wald

SDTLPAC is the political action committee of the SD Trial Lawyers Association. Organized in 1987, SDTLPAC contrib-utes to any candidate for a state office who will support fair and equitable legislation to protect the rights of South Dako-tans through the preservation of our justice system. WE THANK THESE CONTRIBUTORS FOR THEIR SUPPORT!

SUSTAINING MEMBERS

Sustaining members pay $700 in dues each year, which entitles them to discounted attendance at the Association’s annual seminar, the annual meet-ing and luncheon and a plaque denoting their sustaining membership status. Our gratitude goes to these members so that the Association can contin-ue to sustain funding for an on-going defense of the civil justice system!

Fred J. Nichol Award for Outstanding Jurist

Hon. Ernest W. Hertz – 2000 Hon. Andrew W. Bogue - 2001

Hon. John B. Jones – 2002 Hon. George W. Wuest - 2003 Hon. Marshall P. Young – 2004

Hon. Robert A. Amundson – 2005 Hon. Lawrence L. Piersol – 2006 Hon. Richard W. Sabers – 2007 Hon. Judith K. Meierhenry - 2008

Hon. Tim D. Tucker – 2009 Hon. David R. Gienapp - 2010 Hon. Jack Von Wald – 2011 Hon. John W. Bastian - 2012 Hon. David Gilbertson -2013

Hon. John K. Konenkamp-2014 Hon. Janine Kern-2015

Hon. Karen Schreier-2016 Hon. Thomas Trimble-2017 Hon. Roger Wollman-2018

Hon. Bradley Zell-2019

TRIAL LAWYERS OF THE YEAR 87-88 Terry Quinn 88-89 Greg Eiesland 89-90 Steve Johnson 90-91 Glen Johnson 91-92 Bob Burns 92-93 Gary Jensen 93-94 Joe Butler 94-95 Mark Meierhenry 95-96 Jeff Larson 96-97 Nancy Turbak 97-98 David Gienapp 98-99 Rick Johnson 99-00 Jim McMahon 00-01 Mike Schaffer 01-02 John Blackburn 02-03 William F. Day, Jr. 03-04 Michael Abourezk 04-05 Michael W. Strain 05-06 Patrick Duffy 06-07 Thomas G. Fritz 07-08 Michael J. Butler 08-09 Wally Eklund 09-10 James D. Leach 10-11 N. Dean Nasser, Jr. 11-12 Stanley Whiting 12-13 Charles M. Thompson 13-14 Linda Lea Viken 14-15 Clint Sargent 15-16 Richard Casey 16-17 Tim Rensch 17-18 G. Verne Goodsell 18-19 Margo T. Julius

LIFETIME ACHIEVEMENT AWARD

Carleton “Tex” Hoy

John F. Hagemann

Robert C. Ulrich

Terry Quinn

John P. Blackburn

Mark V. Meierhenry

Seamus W. Culhane J. Michael Dady Gregory A. Eiesland Aaron D. Eiesland Jay R. Gellhaus G. Verne Goodsell Raleigh E. Hansman Scott N. Heidepriem John R. Hinrichs Scott G. Hoy John R. Hughes George F. Johnson Steven M. Johnson Margo T. Julius

David J. King Ryan Kolbeck Jason KW Krause James D. Leach Brad J. Lee Michael F. Marlow Lee C. 'Kit' McCahren Mark V. Meierhenry N. Dean Nasser James S. Nelson Melissa E. Neville Melissa B. Nicholson Breit Kasey L. Olivier Stephanie E. Pochop

Vincent A. Purtell Terence R. Quinn Timothy J. Rensch James C. Roby Michael K. Sabers Clint Sargent Steve S. Siegel Michael J. Simpson Michael D. Stevens Michael W. Strain Thomas J. Von Wald Kyle L. Wiese Dylan Wilde Thomas K. Wilka

May/June 2020 Page 6

Continued on next page

Protecting Plaintiffs with a Section 130-Exempt Structured Settlement Administration Trust

by Jim Leach

Professor Tom Simmons’s excellent article, “Protecting Plaintiffs Post-Settlement With a Trust” in the March/April 2020 Barrister, addresses a vital subject too often neglected by attorneys for plaintiffs: after an attorney helps an injured client obtain a significant settle-ment, how can the attorney protect the client from squandering it? The best data available shows that 90% of people who receive a large sum of money (by inheritance, lottery, a lawsuit, or otherwise) will spend it within five years. Examples abound. I had a client recently who received a substantial six-figure settlement in a per-sonal injury case. Despite my best efforts, I could not talk her into a structured settle-ment. Within a year, all the money was gone, leaving her to live on social security disabil-ity benefits—and with the regret that she had lost the best chance she would ever have to live the rest of her life more comfortably. John Steinbeck’s classic little novel The Pearl describes how sudden wealth can ruin a person’s life. As amazon.com summarizes: “For the diver Kino, finding a magnificent pearl means the promise of a better life for his impoverished family. His dream blinds him to the greed and suspicions the pearl arouses in him and his neighbors, and even his lov-ing wife cannot temper his obsession or stem the events leading to the tragedy.” Clients who receive a large sum of money and promptly spend it are doing what our consumer society tells them to do: use it for material goods that supposedly will improve their lives and make them happy. Such clients are often under substantial pressure from family members and friends, who may have completely legitimate financial needs, to “help them” by “loaning” or giving them money. Or, never having owned or run a business, they may think that starting or buy-ing one will be an easy way to increase their wealth. Professor Simmons’s article described a potential solution to this problem: an Asset Protection Trust. This article de-scribes another potential solution that has great flexibility; is suitable both where the client receives a large recovery, and where the client receives as little as $50,000; and costs relatively little to set up and maintain: a Section 130-Exempt Structured Settlement Administration Trust (“SSAT”). (The term “Section 130-Exempt” refers to it being exempt from § 130 of the Internal Revenue Code). But wait, I hear you say, a “structured settlement” is completely inflexible, and does not pay much of a return. Worse, people who have them are subject to a barrage of television commercials imploring them to “get the money you need now” by selling the structured settlement—without disclosing that doing so will result in them getting cents for every dol-lar of present value they sell. For a standard structured settlement, all that is true. But the SSAT is different. Created over 40 years ago by the late Richard Halpern of The Halpern Group, an expert on financial negotiation and plaintiff recovery, the SSAT provides a plaintiff with a way to protect a recovery by promoting safety and growth, while also providing flexibility for medical, edu-cational, and lifecare needs, and preventing the client from selling her future income stream after hearing the siren song of a predatory buyer. The Halpern Group, which survives him, continues his work.

1 An SSAT has tremendous substantial advantages over a

traditional structured settlement:

The return will likely be significantly better.

A plaintiff can receive money for reasonable unexpected needs.

If the plaintiff dies before the money is paid out, the remainder of the money goes to the plaintiff’s estate.

The client cannot sell the structure without a court order—not after seeing endless late-night television commercials, not after having been pressured by a spouse or relatives, and not after deciding that they have a “better plan” for the money.

I hear those of you who are familiar with structured settlements say something like: those bullet points don’t square with what I know about structured settlements. So I’ll address them, one-by-one. The return will likely be significantly better than with a traditional structured settlement because the plaintiff’s money will be invested, not by itself, but with a great deal of other money in the Plaintiffs’ Common Trust Fund, using proprietary

May/June 2020 Page 7

investment software that diversifies investments between stocks and bonds. Unlike a traditional structured settlement, a specific return is not guaranteed. I’ve been helping my clients fund their own SSAT’s for more than twenty-five years, through stock market plunges and financial crises, and I’ve never had a bad result. The Halpern Group uses its proprietary investment software to prepare sample illustrations with payment and duration options chosen by the client, based on the settlement money available. These options illustrate conservative returns. All excess earnings generated by the investment belong to the client’s SSAT. Some clients, upon being told that their money will have exposure to the stock market, choose not to purchase an SSAT. That is their right, but it is almost always unwise. Any company that sells a traditional structured settlement with a “guaranteed” return does so only by promising a return that can be earned through extremely conservative, low-paying investments. And a traditional structured settlement requires the client to sell the rights to the principal in exchange for a “guaranteed” immutable string of payments, thus losing all flexibility and the potential of additional earnings. I put “guaranteed” in quotation marks because the Great Recession of 2008-09 showed that even triple-A rated companies can fail. We have yet to see how this same risk will play out with the so-far-unknown financial consequences of COVID-19. By purchasing an SSAT, the client is likely to receive significantly more money than from a traditional structured set-tlement. What about a beneficiary’s ability to receive money for reasonable unexpected needs? This ability is established by the papers that create the Trust. “Reasonable unexpected needs” might include the unexpected need for a vehicle, emer-gency home repairs, or temporary rent or mortgage payments after a lay-off. They do not include luxuries or unneces-sary consumer goods. The Halpern Group works directly with the national-bank Trustee on a case-by-case basis to an-alyze these requests. They review the circumstances surrounding the request, the terms of the Trust, prepare new illus-trations to show how the account will be affected, and review the trend of disbursements made from the Trust. I say above “If the plaintiff dies before the money is paid out, the remainder of the money goes to the plaintiff’s estate.” In a traditional structured settlement, when the beneficiary or beneficiaries die, the money stops, subject to a “20 year certain” or “30 year certain” provision that keeps it coming for that long. But in an SSAT, when the beneficiary dies, the remaining money in the Trust passes to the beneficiary’s estate. This is a huge benefit over a structured settlement. The final benefit bullet-pointed above, that the client cannot sell the structure, is the most important. People, especially the financially unsophisticated, are often drawn to exchange a future cash stream for money now. An SSAT makes this legally impossible unless a court so orders. In any case in which an SSAT may be appropriate, the attorney should begin to educate the client very early in the case. Put yourself in the client’s shoes. As soon as the client believes she has a significant case, she—often with the help of family members—will start thinking about how she is going to spend the money. Before long, the money may be effec-tively “spent” in the client’s mind, for a new home, a new car, a big vacation, etc. And the client may become mesmer-ized by the opportunity, for once in her life, of having control over a large sum of money and the power to spend it as she wishes. Once this psychological shift has occurred, an attorney will have a hard time changing the client’s mind. In cases in which I believe that an SSAT may be appropriate, I talk to the client about this subject in the same visit in which I agree to take the case and the client signs a fee agreement. I continue to discuss the subject with the client as the case proceeds. An SSAT can be particularly appropriate for minors. As with any settlement for a minor, it requires court approval to be established. The Halpern Group works with the attorney in this process. I settled a case recently for a 5-year-old child in which the child’s portion of the settlement was $50,000. Her parents are poor. With the court’s approval, they agreed to put the entire $50,000 into the structure, with no payout until the child reaches age 25, then $1,000 per month until the money is gone. All the money, as in any structured settlement, will be tax-free. An SSAT is also well-suited for workers’ compensation cases, where the client’s loss of earning capacity will last a lifetime. I don’t recommend an SSAT in every case. If the client is in her fifties or older, has a track record of being responsible with money, does not have family members who seem to be waiting to get their hands on her recovery, and does not have family or friends who think they are financial experts, I will offer the client the option, but not necessarily recom-mend it. The Halpern Group can provide services in Spanish when needed. It does not charge to provide sample proposals. Its service is always prompt. It can provide as many different proposals as the client wants, or as you want to show the cli-ent. So it costs nothing to provide the client with options that, for many clients, will be highly beneficial in the long run. The money to establish the Trust is paid from the defendant to your trust account and from there by you to a trustee, so you do not need the defendant’s approval. The defendant will not even be aware that your client has chosen this option.

Continued on page 21

May/June 2020 Page 8

Twenty-Five Propositions for the Practice of Law Jonathan K. Van Patten†

1. It is very important to recognize what you don’t know. The extent of your compe-tency falls off sharply. No matter how well you have done in the past, you are always one step away from disaster. Always be vigilant; do not assume. Do not be afraid to ask for directions. Donald Rumsfeld’s observation is especially applicable to the practice of law:

As we know, there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don’t know we don’t know.

See also Clint Eastwood: “A man’s got to know his own limitations.” 2. Know yourself. Try to understand why you do the things you do, especially the stupid stuff. You must scout yourself. That is, look at yourself as if you were the opponent. It is time to do so, because your opponent has already been scouting you. You need to find your weaknesses and deal with them before your opponent pushes those buttons that make you less effective. Identify the wolf, who has been roaming around your inner-self, unchecked.

3. Know your opponent. When you think about the other side, be clear in your as-sessment. Don’t project yourself on to the subject. Don’t discount the power of the other side’s argument simply because you disagree. The best way to eliminate your blind-spots is to start with a healthy re-spect for the other side. See what they can teach you about the problem. Some recommend writing out the other side’s closing argument early in your trial preparation.

If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.

Sun Tzu, The Art of War.

4. Learn how to deal with adversity. Conflict is inherent in the profession. Part of the process of becoming a law-yer is to become strong enough emotionally so that you can be effective in conflict situations. Acquiring strength through adversity is like the child who develops resistance to disease through experiencing sickness. This is not to justify every-thing that goes on in law school or in practice. But, if you survive law school and the bar exam with your body, mind, and soul intact, you will be stronger and more effective throughout your career. The caution is that you should not become so strong or detached that you forget where you came from. 5. Develop a bullshit detector. Not everyone is telling you the truth. Your own client may not be telling you the whole truth. A clear understanding of the situation (diagnosis) is essential to figuring out what to do (prescription). It is your job to figure out who is not reliable and why. This is a basic skill for lawyers (and an important life skill as well). To do this, you must employ healthy skepticism; everything must be questioned. But don’t get stuck in this phase. Your questioning will lead you to figure out whom you can trust. You can use a mentor (and probably should) to help you through this thicket, but eventually you will have to grow into making this assessment on your own.

6. Develop your listening skills. Listening is not simply waiting for the other person to stop talking. Real listening is a discipline; it is classic multi-tasking. It requires respect, voluntary loss of control, suspension of disbelief in order to take in information accurately, and judgment that allows for an appropriate response. Listening poorly is like an astigma-tism of the brain that prevents you from taking in information accurately. Listening well helps you to get to the diagnosis of your client’s problems and as well as enhancing the counseling side of your practice. 7. Learn the skill of asking good questions. Good lawyers know how to ask questions. Questions are an instru-ment of control. Questions frame the issues, control the agenda or discussion, lead to the discovery of evidence and arguments, and are the means through which evidence comes into the courtroom. Know the difference between open-ended and closed-ended questions. This is key to effectively taking depositions and controlling a witness at trial. 8. Know how to say no. The art of negotiation is learning how to say no, until it is time to say yes. No is essential in getting to yes. Whether in the litigation or transactional context, you cannot be effective in representing your client’s interests without a healthy dose of no. A continual resort to no, however, may be ineffective because it stands as an obstacle to agreement. No is necessary, but off-putting. It advances the process of coming to an agreement, but may derail it, if not used with care. Knowing how to say no is essential. Continued on next page

May/June 2020 Page 9

9. Know how to tell a story. Storytelling is an essential part of advocacy. It involves much more than telling facts in chronological order. You will need to find your theme; plan where to begin the story; think about how to balance be-tween background (who, when, and where) and action (what, how, and why); consider when to deliver the important facts; “squeeze” the facts to include important inferences; figure out how to express your theme through thoughtful word choices and metaphors; and build all this toward the ending of your story. 10. Find the theme for your story. Every story has a theme. Look for it. The search for the right theme is one of the most critical tasks facing a trial lawyer in presenting a case to a jury. Human beings do not absorb facts in the abstract. The theme gives them the necessary perspective to understand the evidence. If the plaintiff attorney does not provide jurors with the right theme, the defense will, or jurors will do it for themselves.

William S. Bailey, Tie Your Case Together With A Good Theme, Trial, Feb. 2001, at 58. People are theme-seeking creatures. If you do not provide a theme, someone else will, and it may not be one to your liking. A theme has organizing power. It helps the storyteller to decide what to include and what not to include. It sup-plies the measure through which to highlight the important facts and exclude or diminish lesser or countervailing facts. If a theme resonates with listeners, it can become so powerful as to override any opposing narrative. Embedding a theme in a story becomes a way to tie into people’s own narrative stories that drive their decision-making processes. 11. Look for the moral center of the argument. Similar to finding the theme, but here you dig deeper. Trial lawyer Rick Friedman emphasizes what he calls “moral core advocacy.” He asks lawyers to confront what they are afraid of, even what they are ashamed of, and challenges them to talk honestly about it. This is similar to Gerry Spence’s advice to use voir dire to talk to the jury about what scares you about your own case. See also Nick Rowley, Trial By Human (2013). Looking for the moral center of the case should lead you away from theory to the common sense of what you should be telling your listener. You appeal to shared values, as if you were Atticus Finch. 12. Understand the strategy of storytelling. People do not like to be told what to think or even how to think. But law-yers do this all the time. Give the audience the space to make the decision and it might stick; if you do not give them space, they will resist. The story is a way to advocate without appearing to do so. This is indirect persuasion. The se-quence or timing of the telling of the facts is important. What you want is the audience to be led at the beginning, but to be ahead at the end. Good storytelling requires audience participation, though not necessarily verbal (although a few “amens” going off in the mind would be good). At least by the midway point, you want the audience to be invested in your narrative emotionally and eventually to arrive at the conclusion before you do.

13. It is important to think about what to include and what to exclude. The purpose of the initial draft of a letter, memo, or brief is to research and collect the relevant materials into a single document. Another purpose is to begin the process of exclusion. Culling and synthesizing are just as important as the collection phase. Be vigilant about clutter, but don’t decide against more explanation when it is needed. What is going on in your head is not always reflected in what is on the paper (or the screen). Include what needs to be included and omit what does not. Got it? 14. Learn how to be responsive to questions. Most people do not have this skill. Only when you have developed this skill will you realize how useful it is. The question and answer process is very familiar to students, but it is not prac-ticed with much rigor before law school. Because students often stick with what they think they know, the answer they give may be true, but not responsive to the question. The questioning process in law school provides students, particu-larly the ones not called upon, with plenty of practice in developing this skill. Just listen and evaluate. It will take time, but less so if you concentrate on the responsiveness of the answer. One eventually develops an ear for it, like a piano tuner's for when the pitch is true. This will become a necessary skill in depositions, negotiations, and trials. The ability to gauge when the responder is evasive or incomplete will usually lead to productive follow-up.

15. Know when you are on offense and when you are on defense. Probably the best advice I heard on argument was from Professor Ken Graham at UCLA: “There are two ways to win a race: run faster than anyone else or make sure that no one runs faster than you.” In terms of argument, it means that you can win by making sure the other side does not win. It also means that you should not try to win arguments you cannot win, just do not lose them. Many law-yers, being naturally aggressive, try to win every argument. This is a mistake. A corollary is: do your side of the argu-ment, then deal with the other side. 16. “Don’t beat up on a witness until the jury gives you permission to do so.” Very good advice from Gerry Spence. But what exactly does it mean? The attorney’s natural instinct is often to attack first. But the jury’s first impression may be sympathy for the witness. The jurors were previously interrogated by the lawyers during voir dire and that experience may not have been pleasant. And they may also have brought with them some bad thoughts about lawyers in general. In any event, don’t assume the jury is on your side. The best way to bring them over is to show, gently at first, that the witness is lying. When you sense that the jurors have given permission, then you can turn up the heat.

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17. The paragraph is the unit of composition. This concept is the essential tool for writing (composition) and fixing writing (editing). The paragraph is the right size for thinking about composition. It forces the writer to think about the issues of proposition, support, transition, and sequence in the most productive way. Similarly, this concept is the most useful diagnostic tool for editing, especially for your own writing. It will expose structure, sequence, and tone problems. It will slow you down to the right pace to discover problems, both large and small. Substantively and procedurally, the paragraph is the right size unit for thinking about writing and editing.

18. Omit needless words. The second most important principle for writing, especially during the re-write process, is to strike out unnecessary words. Trim, trim, and trim. Crossing out unnecessary words is the editor’s primary tool. Ste-phen King tells it this way:

In the spring of my senior year . . . I got a scribbled comment that changed the way I rewrote my fiction once and forever. Jotted below the machine-generated signature was this: “Not bad, but PUFFY. You need to revise for length. Formula: 2

nd Draft = 1

st Draft – 10%. Good luck.”

The second draft is the first draft minus ten percent. This is a great formula for all writers to live by. First drafts always have too many words. Inexperienced writers use too many words. Lawyers generally use too many words. Inexperi-enced lawyers? Watch out. 19. The use of adjectives and adverbs is okay in legal argument, but be careful. Adjectives and adverbs are the language of opinion, whereas nouns and verbs sound more in fact. They are useful to shade the argument, but don’t rely on them to close the deal. They are supporting actors, not lead actors. Argument by adjectives and adverbs is cheap argument. It is only slightly more sophisticated than ad hominem, which in turn is only slightly more sophisticated than a fistfight outside of a bar.

20. Try to refrain from editorializing when making the presentation or argument. Don’t trust an advocate who uses ALL CAPS or snarky quotation marks to make a point. Shouting is not persuasion, neither is insincere sarcasm. When trying to persuade, you must give the listener space. People resist being told what to think. Editorializing during the ar-gument is premature. You want the decider to reach the desired conclusion before you do. When you try to close the deal with “clear” or “obvious” or “obviously,” you put your credibility at risk, if the listener is not yet ready to agree. Don’t disclose what else is going on inside your head, like “This might be a stupid question, but . . . .” or “Well, this is just off the top of my head . . . .” False modesty does not play well in argument. Not much good can come from editorializing. 21. What might you say if you are asked: how can you defend a guilty person? We have all heard this question, even when we do not practice criminal law. Here is a possible response: “It’s because I believe in our system of justice. The State may not put someone in prison unless it follows its own rules. The rules say one is presumed innocent and the State must prove its case beyond a reasonable doubt. It has to show that the evidence is both relevant and properly obtained. The lawyer makes sure the State follows the rules and that the process is fair. This is for everybody’s protec-tion and I can get behind that.” 22. For newer lawyers, be patient while you are growing. There is a certain amount of seasoning that is required to transform the foundational skills and knowledge from law school into problem solving reflecting good judgment. Don’t sell yourself short. You know more than you think. But it takes time. Malcolm Gladwell says it takes roughly 10,000 repetitions before one becomes proficient at his or her craft. That is probably overstated, but don’t disregard that thought. It takes time, for example, to absorb the rules of evidence in order to make the quick, correct calls that are nec-essary at trial. With experience, “the game begins to slow down,” and the calls become more instinctive. There are few shortcuts, although the key is not just working hard; it is working smart. Repetition with reflection will lead the way. 23. Pick your fights wisely. Win the fights that you can win. Do not lose the fights that you cannot win. Recognize the difference between the two. Got it? You do not have to always fight like a terrier at the first sign of conflict. You must control your inner terrier. Visualize the endgame. Figure out how to make the fight take place under favorable cir-cumstances.

24. The lawyer is not like the captain of the ship; you are not obliged to go down with your client. The lawyer has a duty to zealously represent the client’s interests. Your advocacy of those interests requires you to care. But, caring has limits. There are worse things than losing. You have worked hard to become a lawyer. Don’t throw that away in the heat of the moment. Zealous advocacy requires you not to lose your head when everyone else is losing theirs.

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Law School Times By Kylie Beck, Aidan Goetzinger, Mae Meierhenry & Thad Titze, SDTLA Law Student Liaisons

From your 2019-2020 SDTLA Liaisons: Thank you for allowing us to be your liaisons! We have enjoyed all of the opportunities to be involved with SDTLA and hope to continue to stay involved, but as attorneys in a few short months. Though our time is up, your law school updates will continue through the wonderful work of the new 2020-2021 SDTLA liaisons, Courtney Buck, Conor Casey, Cate Dougherty, John Nelson, and Tierney Sco-blic. Here are a few words of goodbye from this year’s liaisons. Kylie Beck: These past three years flew by at USD Law. Though the times went by fast, I made many memories and learned a lot of life lessons. Whether it was being cold called on in a lec-ture, late-night trial team practices before a competition, or at Eagles for karaoke on a Fri-day night, each experience taught me something I will take with me. Always be prepared, or make sure you can fake it ‘til you make it. Success takes time, it is not something that

happens overnight. Be open to feedback and criticism, it’s meant to help and make you better. Take in the time spent outside of the classroom with friends and classmates because these will be the people you will see frequently once out in practice. But most importantly, and although cliché, to believe in myself. As a first-generation law student, going to law school and intending to practice law was unchartered territory for me and my family—my dad is a project manager and my mom works with special needs students, so no real exposure to the law growing up besides watching CSI or Judge Judy. I found being involved with pro bono work and trial team to really help me develop into the soon-to-be lawyer that I am. I am grateful to have been an SDTLA liaison as it is an organization that has helped to shape me and guide me as to what kind of lawyer I want to be. As I leave Vermillion after seven years and the friends and professors that have become like family, both from undergrad and law school, I know that I am prepared to be the best lawyer I can because of them. A special thank you to Prof/Coach Rose for all you have taught me, both in and out of the courtroom. Without your support and constant willingness to go above and beyond for me and all your students for that matter, I would not be near as prepared to step into a court-room as a litigator. And although I am hesitant to say I am excited to leave what has become a comfort and consistency for the past three years in law school, I am beyond excited to begin the next chapter of my life. After studying for and taking the bar, I will be moving back to Sioux Falls where I have accepted a position as a deputy public defender at the Minnehaha County Public Defender’s Office. I am ecstatic to begin working and see my hard work pay off. Thank you again for allowing me the opportunity to serve as one of the 2019-2020 SDTLA student liaisons alongside three other wonderful individuals, and hopefully the next time I see you, I will be a licensed attorney! Kylie Aidan Goetzinger: Graduation from USD School of Law marked the culmination of seven years in Vermillion for me, the last three of which

have been spent in the same brick building on the southeast corner of Cherry Street and Dako-ta Street. Those three years in that brick building taught me more about myself than I can ex-press in a couple short paragraphs. As I rack my brain for a defining theme to sum up my time at the law school, one word comes to mind: persistence. This place taught me just how im-portant it is to persist in whatever it is that you do. I persisted until I understood Palsgraf and the “zone of danger”; I persisted until I understood the proper uses of character evidence; I per-sisted until I became a slightly comprehensible legal writer. Now, as I study for the bar exam, I will continue to persist until I understand the dreaded UCC § 2-207. In all seriousness, the law school has given me so much more than just a legal education; it has also given me lifelong friends, mentors, and life lessons that I would not trade for anything. Several thanks are in order for all of those who helped me get to where I am today. First, I have to thank my family for always supporting me in my pursuit of a legal career. Without my family’s guidance, I’m not sure that I would have ended up in law school. Next, I want to thank the facul-ty at the law school. Not many law schools can boast such an impressive set of faculty with such an open-door policy. I spent many hours in Professor Hutton’s office attempting to under-stand hearsay, the third-party doctrine, and life in general. Not only did the faculty help me im-measurably in my time at the law school, they showed me that I belonged here. Third, I’d be remiss if I did not thank all the friends that I made along the way in Moot Court, trial team, and around the school. Finally, a big thank you to the SDTLA for taking me on as a student liaison this past year. I learned so much about the practice of law, and liti-

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May/June 2020 Page 13

gation in particular, just by sitting in on conference calls, meeting with members at the bar convention, law school events, and working for some of the members. We are lucky to have such a tight-knit state bar that is willing to engage with aspiring attorneys. I look forward to becoming your colleague in the near future. I’ll sign off with a tiny piece of advice to any current or incoming law students: whatever it is that you are doing, persist! Aidan

Mae Meierhenry: It is time that the SDTLA liaisons from the 2020 Class “Zoom” out into the next chapter of our adventures. Our class feels robbed of some memories we could have had in our final months in law school, but future Dakota Days events will have to suffice. And, as we delve into our Bar Study, it is best we remind ourselves of all the advantages USD Law and SDTLA afforded us during our time. I loved law school. I realize I might wear rose colored glasses on occasion, but overall that statement is true. I have met the most interesting, supportive, and brilliant people – at the law school, the bar convention, SDTLA meetings and other law related gatherings. When my classmates and I were each asked what we will miss most about law school, nearly every stu-dent responded along the same theme: we will miss the community. Luckily, although we are leaving law school, we are not leaving our community. Those of us

that are staying in South Dakota already feel that we are part of the State Bar and legal community. SDTLA welcomed and included us before students even took their first class. Because law school has been such an exciting time, it could feel dismal to be leaving it behind. But instead I am excited because I know I have only had a taste of the excitement that comes with practicing law in South Dakota. The South Dakota Trial Lawyers are some of the most inspirational peo-ple who fuel my excitement. Thank you for the opportunity to be part of this organization this past year. Thank you for deliberately including the law students and creating a welcoming community as we enter the profession.

Thad Titze: As I write this, I realize many of you may be coming out of quarantine from covid-19. Mean-while, many recently minted graduates of USD School of Law are undertaking their own quar-antine to begin intensive bar study. Though this long season of covid-19 robbed us of many end of semester and graduation festivities, I am so grateful for the last three years at USD Law. Even amidst covid-19, the faculty, staff, and administration helped our class celebrate our law school hooding over Zoom. As with any institution or organization, it's the people who make it. Speaking about my classmates, I remember telling Professor Hutton, "I can't wait to practice law with these people!" I carry with me such admiration for the work ethic, integrity, and commitment to service found in my classmates. These three years flew by quickly, and there was always something to work on: the next arti-cle, the next brief, the next GA assignment, the next meeting, the next project. We are al-ready practicing for the demands of practice where there is always something on the hori-zon! My three years at USD Law also provided me the opportunity to get to know members of the bar. These interactions at bar meetings, SDTLA meetings, and law school events had a

significant impact on me as I consider what my practice will look like and who I will turn to for mentorship. For the next two years, I look forward to clerking for Judge Schreier alongside my friend and fellow SDTLA liaison, Aidan Goetzinger. Thank you, SDTLA, for the opportunity to learn about your organization, its members, and the important work of the association for justice in South Dakota. Thad

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Mae Meierhenry

May/June 2020 Page 14

Updates from Organizations Trial Team: The USD School of Law Trial Team has worked hard and remained positive this semester, despite several competitions being cancelled due to the pandemic. We would like to take this moment to recognize all the effort and countless hours of practice and preparation put in by every member of the team. Special congratulations to the following award recipi-ents:

Thomas J. Horton Advocates of Excellence: Nolan Welker and Brianna Eaton

International Academy of Trial Lawyers Student Advocacy Award: Kyle Beauchamp, Meaghan Janousek, and Edward Swiontek

South Dakota Trial Lawyers Association Award:

Garrett Keegan, Joseph Mattson, Whitney Reed, and Kylie Beck Although this semester was cut short, we are proud of our accomplishments and look forward to come back stronger than ever next semester. We are always looking for SDTLA members to become involved with the team. One possibility is to have SDTLA members volunteer to be guest judges in order to help squads prepare for competitions. We also en-courage everyone to attend team practices, which are open to all who are interested. More information about future competitions and practices will be provided as we get closer to the fall semester. Alternate Dispute Resolution Board: The 2020-2021 ADR leadership board includes President: Natalie Gronlund, Vice President: Erica Reber, Arbitration Coordinators: Andy Grocott and Bryton Severson, Negotiation Coordinator: Shanya Burt, Client counseling coordinator: John Nelson. The ADR board is excited to welcome its newest members: Josh Baumgaart, Brett Bradshaw, Hannah Honrath, Jennifer Nelson, Alyssa Stevens, and Erik Wehlander. Though competition dates are up in the air due to COVID-19, The ADR board plans to host an Interscholastic Arbitration Competition in Sioux Falls in November. The South Dakota Law Review: Once the university moved to online instruction, the South Dakota Law Review found new ways to continue editing and publishing from a distance. Issue I of Volume 65 came out in print in late April. Issues II & III will be out over the sum-mer. The Law Review banquet honoring Professor Pommersheim and Justice Zinter has been postponed to sometime in the fall. Had the banquet occurred as planned in April, the board would have recognized the work of four stu-dents. Danie Rang has been selected as the Outstanding Staff Writer for Volume 65. John Haraldson, Chesney Arend, and Josh Liester wrote the best write-on case notes as incoming staff writers. Scholarships for the best case note writ-ers are generously funded by Judge Piersol, Mrs. Piersol, and Mr. Harvey Jewett. If you see any of these students in summer internships, please congratulate them! As always, we welcome written submissions to the South Dakota Law Review from practicing attorneys, and we encour-age subscriptions to support the Law Review's sixty-seven-year legacy of legal academic scholarship in South Dako-ta. To subscribe or submit an article, email. Moot Court Board: Moot Court is excited to announce its new officers for 2020-2021: President Courtney Buck, Vice President Tierney Scoblic and Business Manager Aspen Bechen. Our Brooklyn team, Mae Meierhenry, Tom Schartz and Tierney Scoblic, won best brief at the 2020 Jerome Prince Me-morial Evidence Competition hosted by Brooklyn Law School. They beat thirty-five teams from across the country, in-cluding second and third place teams, Duquesne University School of Law and UCLA School of Law. Two teams reached elimination rounds of the Mitchell Hamline School of Law Moot Court Tournament. Third-year law students Kyle Beauchamp, Aidan Goetzinger and Drew Hurd received fifth place. Second-year law students Courtney Buck, Michael Ewald and Abbey Farley earned sixth place. Both teams went undefeated in the first three preliminary rounds. Tanner Anderson, Morgan Erickson and Aspen Bechen advanced to the quarterfinal round at the Frank A. Schreck Gaming Law Moot Court Competition in Las Vegas, NV. Morgan Erickson also won the top oral advocate for the second time this year. Due to COVID-19 and the closure of USD’s campus, Moot Court hosted this year’s Sam Masten Intramural Tournament online via videoconferencing. Moot Court Board members served as the judges and the first-year law students excelled in delivering their arguments. First-year law student Zach Schmidt won first place defeating fellow first-year student Anne Weyer. The best appellant and appellee brief awards went to Cameron McCue and Anne Weyer respectively.

May/June 2020 Page 15

Agriculture Law Society: On April 15, 2020, an Ag Law Society meeting was held over Zoom. Election of Officers for the 2020-2021 academic year was held. Congratulations to the new officers. President - Shelby Webb, Vice President - Cling Fisher, Secretary - James Roemer, Treasurer - Owen Weise, 3L Rep - Jenika Arens, 2L Rep - Brett Bradshaw

The Ag Law Society is also looking forward to the 2020 Annual AALA Symposium that is scheduled for November in Kansas City. The Ag Law Society is planning to be in attendance at the Symposium. Anyone who is interested is wel-come to attend. Additionally, the Ag Law Mentor/Mentee Program is ramping up with Attorney/Student matches taking place and connections being made. Furthermore, Clint Fisher was elected as the law school liaison for the South Dakota State Bar Association Ag Law Sub-Committee. Lastly, the committee briefly began to plan events for the upcoming school year, including speakers and events. Family Law and Child Advocacy: The new Family Law and Child Advocacy Board includes: President: Ian Hause, Vice President: Joshua Liester, Secre-tary/ Treasurer: Promise Costello. Women in Law: USD Women In Law is excited to announce the 2020-2021 Officers: President - Anna Maher, Vice President - Leah Ceranski, Secretary - Madelyn Braun, Treasurer - Alyssa Stevens, 2L Representative - Elise Haugaard, Faculty Advisor - Professor Laura Rose. USD Women In Law is now accepting nominations for the 2020 Female Attorney of the Year Award. USD Women in Law seeks to champion women in the legal profession through educational programming, men-torship, and outreach. The Attorney of the Year Award recognizes a woman who has demonstrated exceptional skill with-in her field. If you know a special attorney who deserves this award please nominate them by writing a 1-2 page letter addressing why they are deserving. Please address nomination letters to the USD Women in Law Board and send via email to anna.maher@coyotes.usd.edu. Nominations close at 5 pm on June 30th.

A Message from the Dean Social distancing. You’d be forgiven forgetting that there was a time you had never heard that phrase or that there will be a time down the road where it won’t define your existence. Undeniably COVID-19 has uprooted our lives personally and professionally. We’ve undeniably felt that at that Law School. I routinely tell people, “for good or bad, we are a small, connected, com-munity driven law school.” It’s true. The Class of 2020 consistently observed in their quotes for our remote graduation ceremony how much being part of that community has meant to them. As a result of the depth of our connections, the loss of in person connection hit particularly hard at the Law School at the outset. But over recent weeks, I’ve been heartened to see that community extends beyond in person contact. Faculty and stu-dents have worked through taking classes online. We’ve worked to continue mentoring relationships through phone, Zoom, and email. Our connections may have become mostly virtual, but no less vital. All of you have helped make that happen. Law School students have benefitted from online happy hours, coffee breaks, and mentoring meetings. South Dakota firms consistently honored their commitments to host interns and demonstrated their creativity and “can do” spirit by adjusting how those would be conducted. Many of your reached out quietly, personally to check on how the Law School community is doing. Your support has been invaluable. One of the Law School representatives of SDTLA asked if I wanted to contribute to the newsletter this month and I was happy to do so. And although I’ve said more, my entry could have been two words: Thank you. I never stop being en-couraged and amazed by how South Dakota lawyers support the Law School community. And I never run out of reasons to say thank you. So thank you, to all you SDTLA friends of the Law School. We look forward to welcoming you home to campus in safer times. Be safe. Be well.

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South Dakota Trial Lawyers Association

Notice of 2020-2021

MEMBERSHIP DUES DUE July 1, 2020

CATEGORIES

Check one:

_______ Legal Support Staff …………………. $50.00/ year

________ Law Student…………...………………$10.00/ year

________ 0-2 years in Practice…………………$70.00/year

________ 3-5 years in Practice……..………..$100.00/year

_____ Public Attorney employed over 2 years*……$100.00/year

______ Over 5 years in Practice …………… $350.00/year

______ Sustaining Membership ** …………$700.00/year

______ Subscribing Membership *** ……..$125.00/year

Please print or type

Name _________________________________________________ Email Address_______________________

Mailing address______________________________________________________________________________

City _____________________________________ State__________________________ ZIP _______________

Telephone _________________________________ Cell number ____________________________________

County _____________________________________ Date Admitted to Bar __________________________

Return to with appropriate dues:

SDTLA

PO Box 1154 Pierre, SD 57501-1154

* All public attorney members must be employed on a full-time basis by the Federal, State, county or municipal government or legal aid association. ** Any sustaining member must be engaged in the practice of law for more than five years and be a member in good standing of the Association for five years. Attendance at the Association’s annual seminar has a discounted fee for sustaining members. *** Anyone may apply for a subscribing membership in the Association, i.e. associations, institutions of higher learning, research companies, etc. Subscribing members shall receive all Association membership benefits, but are not entitled to vote.

Thank You for Paying

Your Dues! Your Membership Counts!

May/June 2020 Page 17

NEW LAWYER REFERRAL LIST

The South Dakota Trial Lawyers Association has compiled a list of aspiring young trial lawyers who are interested in ac-cepting civil case referrals. The list is not for pro bono referrals, but rather cases that another attorney is not interested in handling due to his or her caseload, area of interest, or the client’s ability to pay. The purpose of creating this list is to allow young lawyers to gain experience handling civil cases on their own, while at the same time matching a worthy client with a willing lawyer. The goal is to give the lawyer the opportunity to inde-pendently plan case strategy, pursue a discovery plan and try a jury trial. By agreeing to be on the list, the attorneys have not automatically agreed to accept a case. They have the independence to accept or decline any case referred to them. Any lawyer in practice less than five years interested in accepting referrals is encouraged to contact the SDTLA office to join this list. Emily Maurice Goosmann Law Firm 2101 W. 69th St., Suite 200 Sioux Falls, SD 57108 605-371-2000 MauriceE@Goosmannlaw.com Practice Areas: Family Law, Civil Litigation Circuits: First, Second, and Third Erin Willadsen Meierhenry Sargent LLP 315 S. Phillips Avenue Sioux Falls, SD 57104 605.336.3075 Practice Areas: Criminal Defense, Personal Injury, Eminent Domain, and any other small matter that a new attorney could handle on their own (ex: easy divorce case)

Promoting Justice in South Dakota

SDTLA Goals:

Preserve the jury system. Promote justice and efficiency in all matters pertaining to the trial of civil and criminal cases. Establish a high standard of ethics among trial lawyers. Clarify and simplify trial procedures. Promote a program of continuing education in trial practice. Encourage and assist younger members of the Bar to become trial lawyers. Create good fellowship and friendship among members, and a sense of pride in the Association and its purpose. Promote laws, rules and regulations to accomplish the above purposes and to promote the public good.

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SDTLA ELECTION 2020 CANDIDATE PROFILES FOR PRESIDENT-ELECT:

“ I want to help the trial lawyer in any way I can. It is a vibrant and im-portant group, which teaches and mentors while at the same time pro-moting cordiality and friendship.” Tim Rensch graduated from USD Law in 1991. After serving a judicial clerkship, he opened his own law office in Rapid City in 1992. Since that time, he has actively represented people in both criminal and civil cases. He has tried everything from murder cases to Class 2 misdemeanors, plain-tiffed and defended personal injury torts and sexual harassment claims, and successfully handled many appeals. He is licensed to practice before the United States Supreme Court, the Eighth Circuit Court of Appeals, the Su-preme Court of South Dakota, and the United States District Court for the District of South Dakota. He is a member of the American Association for Justice, a lifetime member of the National Association of Criminal Defense Lawyers, a Sustaining Member of the South Dakota Trial Lawyers Associa-tion, a member of the Board of Governor’s for the South Dakota Trial Law-yers, two-time past president of the Black Hills Criminal Defense Bar, a

member of the South Dakota Defense Lawyers Association, the American Board of Criminal Lawyers, and the Pennington County Bar Association.

FOR SECRETARY-TREASURER:

“I would be honored and humbled to serve as SDTLA Secretary/Treasurer. In

an age of technology, paperwork, and dual working parents, efforts to sustain

valuable organizations are critical to their survival. Mentorship and, some-

times, civility are threatened by the efficiency of email. Making personal con-

nections within our profession reinforces the idea that communication is

sometimes pivotal to find the best solution or strategy for resolving conflict

or advancing legal cases. I would like to work to proliferate the proficiency,

education, and high-ethical standards SDTLA has always provided in advanc-

ing cases through various stages of litigation. I’d also welcome the oppor-

tunity to be involved personally and socially with such a quality group of at-

torneys facing similar challenges.”

Melissa Nicholson Breit received her B.A. from DePauw University (Mathematics)

in 1996, and J.D. from USD in 1999, and joined the practice of law alongside her

father, Tom. Her practice consists mainly of family law with emphasis on business

issues, select civil litigation, while her father, Tom, has a business, select civil litiga-

tion, and trust litigation practice. Tom will soon be retiring and they look forward to

ushering in Shane Vogt, who will graduate from University of Minnesota Law School

this month. Melissa resides in Sioux Falls with her husband, Tony Breit, and their

two daughters, Presley and Octavia, while her stepdaughter, Ashtyn, attends Au-

gustana and stepson, Layken, resides in Pueblo, Colorado. She enjoys spending time with her friends and family, read-

ing, music and anything athletic, time permitting.

May/June 2020 Page 19

FOR AAJ DELEGATE 2020-22

For Four At-Large Board of Governors (2020-22):

“I would like to continue to be one of the SDTLA’s representatives to AAJ as my continuing protection of the right to trial under the Constitution is unwavering. I have brought our litigation issue to the national forum with AAJ and brought back great information and tools from the national trial bar to help protect the right to raise disputes in an independent judicial forum. I take this responsibility to heart each and every day and request that you allow me to continue to do this work by your vote.” Aaron Eiesland is an attorney with Johnson Eiesland Law Offices in Rapid City, South Dako-ta. Aaron graduated from Rapid City Central High School in 1992. He received his Bachelors Degree in Business and Marketing from the University of Wyoming at Laramie in 1996. Aaron received his Juris Doctorate from the University of South Dakota School of Law in 2000.

Aaron practices civil trial litigation representing plaintiffs in all types of cases. Aaron is committed to continuing educa-tion through his involvement as a member of the State Bar of South Dakota, the South Dakota Trial Lawyers Associa-tion, the American Association for Justice, and the National Trial Lawyers Association. He has also participated with the Trial Lawyers College. Currently, he serves on the South Dakota State Bar Elder Law Committee, the South Dakota State Bar Strategic Planning Committee, and the Board of Governors for the South Dakota Trial Lawyers Association as a State Delegate to the American Association for Justice. Aaron is a 2012 graduate of the American Association of Jus-tice’s Ultimate Trial Advocacy Course at Harvard University School of Law. He has tried dozens of personal injury cases to verdict.

“It has been a privilege to serve on the SDTLA Board of Governors for the last five years. Highlights of my time on the Board include drafting an amicus curiae brief on SDTLA’s behalf and heading up the SDTLPAC Golf Tournament. I am proud of what SDTLA has accomplished, and I am excited for the future opportunities SDTLA has to make a posi-tive impact in South Dakota.”

Raleigh Hansman has been in practice with Meierhenry Sargent LLP since August 2012 and

became a partner in 2017. Her practice includes civil litigation, criminal defense, and appellate

work. She graduated from the University of South Dakota School of Law in May 2012 with Ster-

ling Honors. She and her husband, Tom, live in Sioux Falls with their daughter, Davis, and son,

Harvey.

I’m throwing my hat back into the race again for the Board of Governors. As many of you probably know, my grandfather, George Fielding Johnson, helped start the SDTLA; my dad, Charles “Rick” Johnson, served on the SDTLA board; and even my sister, Stephanie E. Poch-op, managed to find her way onto the SDTLA board. That said, it seems like a family tradition I would like to follow. For those of you who don’t know me, I graduated from the USD School of Law in 1999. I then worked as a Law Clerk for Federal District Judge Bill Wilson in the Eastern District of Arkan-sas for two years before moving back to Gregory to practice law with my family. Over the years I’ve tried civil and criminal cases in State, Federal and Tribal courts. These days I’m primarily doing criminal defense work, but I’m also working as a prosecutor for the Lower Brule Sioux Tribe. Practicing out of Gregory has help me understand some of obstacles facing trial lawyers who practice primarily in rural areas. A good number of our rural courtrooms sit dormant all but two or three days a month; many rural clients think they need a “city” lawyer to get things done; and it feels like we are headed towards having regional courthouses instead of county court-

houses. If I have the honor of serving on the Board of Governors I intend to be a voice for rural and small firm trial law-yers. Hope to get your vote. George Johnson

May/June 2020 Issue Number 310

Page 20

Robert "Robbie" J. Rohl is a trial attorney with Johnson, Eiesland & Rohl. Robbie is pas-sionate about representing people and prides himself as a trial advocate. He has dedicat-ed his career to zealously advocating for his clients while demonstrating the utmost pro-fessionalism and ethical advocacy. Robbie vigilantly remains a student of the criminal and civil jury systems and continuously strives to become a better advocate for his clients. He has tried cases to jury in both civil and criminal cases. Robbie fights hard to ensure that his clients receive fair treatment. He is determined to maximize recovery against the accountable party and their insurance company. As a trial lawyer, Robbie prides himself in investing in his clients and will fight to obtain the right re-sult. Since joining the Firm in 2015, Robbie has recovered millions of dollars for his cli-ents. He has represented catastrophically injured people, and he works resolutely to ob-tain adequate compensation. Robbie Rohl is also a well-respected criminal defense attorney in South Dakota. He has handled criminal cases across the entire State, and regularly tries criminal cases to jury in both state and federal courts. Robbie has represented people with charges ranging in

severity from that of capital punishment (death penalty) all the way to DUI 1st Offense. Robbie's success as a criminal defense attorney simply requires a brief review of past cases. He has tried and won felony jury trials, South Dakota Su-preme Court appeals, and obtained dismissals by way of Motion practice and Constitutional Rights violations. Robbie is currently the President of the American Association for Justice's Criminal Law Section. This is a national organization of trial lawyers which consists of thousands of attorneys across the country.

“It has been an honor to have the opportunity to serve on the SDTLA Board of Gover-nors for the past year. I am running for an At-Large Position on the Board for the com-ing term so that I can continue to build upon the work that we’ve started in my first year on the board and to continue to serve the members of the SDTLA. If elected, I would strive to grow our membership through active recruitment of Law Students and Young Lawyers, increase the monetary reserve and reach of the SDTLA in order to further our legislative advocacy to ensure that the SDTLA’s voice is heard by our public and the judiciary, and I would continue to promote access to the court and jury system and pro-mote trial practice for other young and aspiring attorneys. There’s nothing more fulfilling, yet at times burdensome, in the practice of law than be-ing a trial lawyer, and I hope to help show that the fulfillment is worth the burden. I would humbly welcome the opportunity to serve those in our membership and to con-tinue to assist in the growth of this great organization so that It can continue to aid the members of the SDTLA and the SD Bar Association as a whole. Thank you for your consideration.”

Koln Fink is a native of Harrisburg, SD. He completed his undergraduate degree at the Univ. of Sioux Falls and then attended University of South Dakota School of Law and graduated in May of 2014. Koln practiced as a Deputy State’s Attorney in Pennington County, South Dakota from 2014 – 2017 and has now been in practice with Myers Billion, LLP since September of 2017. He currently lives in Sioux Falls with his wife, Molly, and 2 children, Maxine and Clayton.

For At Large Member in practice not more than Three Years (2020-21)

“I am running for the SDTLA Board of Governors because I believe in its purpose, fu-ture, and members. After serving on the SDTLA Board of Governors over the last year, I understand and appreciate the challenges that SDTLA faces and the opportunity to strengthen this association for the next generation of lawyers. I will work with all the members to implement goals that will ensure a bright future for SDTLA. Further, I hope to continue the tradition of SDTLA’s excellence in providing valuable educational tools to all its members.” Joe Erickson graduated from Dell Rapids high school and graduated from USD with a busi-ness degree in 2014 and continued onto USD Law School. Joe clerked with the First Judicial Circuit of the State of South Dakota. After completing his clerkship, Joe, his wife, Sara, and their baby boy, Harvey, moved to Watertown where Joe began as an associate attorney at

Schoenbeck Law. Joe’s practice focuses primarily on personal injury litigation, insurance litigation, crop insurance litiga-tion, commercial litigation, estate planning litigation, and professional negligence litigation.

Outside of work, Joe enjoys family time and all of South Dakota’s outdoor activities, including pheasant hunting with his dog June, deer hunting, golfing, and fishing local lakes and the Missouri River.

May/June 2020 Page 21

for remote jury trials that can be followed by other jurisdictions. With the exception of jury selection, Tutor ran a mock civil jury trial from start to finish. While there are obvious issues with remote jury trials (accessibility for all citizens to serve on the jury, not being able to see the entire panel when questioning one juror, and technology), there are also ma-jor issues with empaneling a jury in the courthouse. There is simply no way to ensure social distancing. The lack of space starts at the courthouse doors and throughout the building, no space is big enough. Judges and lawyers don’t want to risk empaneling a jury and take the chance that one of them gets sick. The traditional jury trial just isn’t possible right now. In closing, I think Mark Cohen said it far better than I could:

The contours of the AC (after-Corona) legal world are taking shape. There are challenges and opportunities. Those who upskill and adopt a learning-for-life mindset will find oppor-tunity. Others that stand pat, hoping that things will soon return to the BC (before-Corona) world, will be redundant. COVID-19 will produce a thinning of the heard and a reimagined legal industry. Embrace the challenge.”

I will embrace the challenge, will you join me?

Continued from page 2

And if the client is determined to have some money immediately, as some are, the entire recovery need not go into the Trust. I believe that lawyers should consider an SSAT for any client who receives a substantial recovery. It has many benefits over a traditional structured settlement or annuity. And for many clients, it is the only thing that will stop them from wast-ing by far the largest sum of money they will ever see. [1]

In the interest of full disclosure, I do not have any relationship with The Halpern Group. I have worked with them and

recommend them to other plaintiff lawyers.

Continued from page 7

25. Think like a lawyer, talk like a real person. The practice of law is not just mastery of a set of rules. It requires many additional skills, including understanding yourself, careful listening, ability to synthesize law and fact, working smart, exercising good judgment, reflection on experience, and tenacity. While this is a complex mix, the outcome also needs some translation back to simple terms. The one who makes it the simplest generally wins. And that outcome must make sense. If the law is to continue to command respect, it must make basic common sense. † Professor of Law Emeritus, University of South Dakota School of Law. See generally my articles from the South Dakota Law Review, which are available for download, free of charge, at the USD Law website: https://works.bepress.com/jonathan_vanpatten/.

Twenty-Five Ways To Say No, 63 S.D. L. Rev. 337 (2018); Skills for Law Students, 61 S.D. L. Rev. 165 (2016); On Editing, 60 S.D. L. Rev. 1 (2015) Metaphors and Persuasion, 58 S.D. L. Rev. 295 (2013); Storytelling for Lawyers, 57 S.D. L. Rev. 239 (2012); Themes and Persuasion, 56 S.D. L. Rev. 256 (2011);

Twenty-Five Propositions on Writing and Persuasion, 49 S.D. L. Rev. 250 (2004)

Continued from page 10

May/June 2020 Page 22

SOUTH DAKOTA TRIAL LAWYERS ASSOCIATION Board of Governors Conference Call Minutes AMENDED

April 16, 2020

On the call: Alecia Fuller, Kasey Olivier, Tim Rensch, TJ Von Wald, Nate Oviatt, Brad Lee, Terry Quinn, Stephanie Pochop, Aaron Eiesland, Melissa Neville, Ashley Miles Holtz, Melissa Nicholson Breit, Raleigh Hansman, Joe Erickson and Sara Hartford. Lobbyist Steve Siegel and Law Student Liaisons Meierhenry, Beck, & Titze were also on the call. A quorum was present. President Fuller called the meeting to order. Rensch read the account balances for the record as follows: $6,987 in op-erations, $0 savings, $0 the reserve fund, and $15,805 in the Promoting Justice account. The PAC account has $34,153. Hartford answered questions on the 3

rd quarter budget report. Fuller reported a COVID-19 Payroll Protection

Plan loan application has been completed for $14,800 to cover payroll expenses for May & June as voted unanimously in favor by the Board of Governors by email on April 3, 2020. Olivier made a motion to authorize acceptance of the PPP funds from SBA and to authorize Fuller to execute the documents through authority of the Board of Governors, Rensch seconded. Motion unanimously passed. Olivier made a motion to create a committee to evaluate income & expenses and to write a proposed budget for 20-21 to be presented to lawyer-only members of the board by the May 14

th meeting, Rensch seconded. Motion unanimously

passed. The committee will consist of Olivier, Rensch, Fuller, Hansman, Quinn, Eiesland, Miles Holtz, Von Wald & Ovi-att. Under old business, Fuller postponed discussion on the membership survey until further notice. Olivier & Lee reported postponing fundraising for Promoting Justice until further notice. Olivier suggested using some of the funds to purchase and distribute PPE for court system frontline workers in Sioux Falls. There was discussion about doing this statewide as the COVID-19 virus spreads across South Dakota. Quinn made a motion to use $2000 to pur-chase masks, Rensch seconded. Motion unanimously carried. Olivier will lead communications with the presiding judg-es to determine need. Under new business, Hansman reported the Law Student Liaison search has begun with a deadline of April 24 for appli-cations. Olivier alerted the board regarding the use of the Care 19 app in criminal cases and in court. The board will discuss us-es and updates at the next meeting. There was discussion regarding distributing information on legal issue arising out the COVID-19 virus and the ethics of working at home. Olivier announced Deadwood Mountain Grand is currently closed due to the virus. She will keep the board advised on the status of our Annual Seminar scheduled for September 16-18 and the Deadwood Jam. Hartford will start the Elections nomination process for next year’s board with co-chairs Beardsley & Neville. There was discussion on how to hold the election since the Bar Convention and our annual lunch meeting has been postponed. Hansman will look into Survey Monkey and Hartford will look into the electronic system AAJ uses to hold votes and re-port back at the May meeting. There was discussion on annual awards given. This item will be revisited at the May 14 meeting. Meeting adjourned.

Next Board meeting is by conference call Thursday May 14, 202 at 11:00 am CT/10:00 am MT. Dialing instructions will be sent with the agenda.

May/June 2020 Page 23

SOUTH DAKOTA TRIAL LAWYERS ASSOCIATION Board of Governors Conference Call Minutes

May 14, 2020

On the call: Alecia Fuller, Kasey Olivier, Tim Rensch, TJ Von Wald, Nate Oviatt, Terry Quinn, Brad Lee, Stephanie Pochop, Aaron Eiesland, Melissa Neville, Melissa Nicholson Breit, Raleigh Hansman, Beau Barrett, George Johnson, Joe Erickson, Robbie Rohl, Nicole Griese, Koln Fink and Sara Hartford. Barrister Editor Tim Billion was also on the call. A quorum was present. President Fuller called the meeting to order with a motion to amend the April 16 meeting minutes to reflect Olivier’s mo-tion for the special budget committee to present to the lawyer-only members of the board prior to the May 14

th meeting,

Rensch seconded. There was no discussion. Motion carried. Rensch made a motion to approve the April 16 meeting minutes as amended, Hansman seconded. Motion unanimously carried. Rensch read the account balances for the record as follows: $16,673 in operations, $0 savings, $0 the reserve fund, and $13,701 in the Promoting Justice account. The PAC account has $34,805. Fuller made a motion to table the budg-et discussion until a special meeting to be set later in May so the budget committee of the officers & executive director can meet to establish a proposed 20-21 budget, Rensch seconded. Motion carried. Under old business, Olivier reported 500 COVID-19 masks were distributed to court personnel across the state with $2104 of promoting justice funds. She issued press releases. Olivier also reported she has been in communication with Lobbyist Siegel and Criminal Defense Bar regarding the Cares19 app and its use in courts. She will continue to report to the board on this issue. Hansman reported the Law Student Liaisons have been selected and will be included in board meetings starting in June. Liaisons are John Nelson, Tierney Scoblic, Courtney Buck, Cate Dougherty & Conor Casey. Hartford will send photos and place of summer employment to the board. Olivier reported Deadwood Mountain Grand is open so the Annual Seminar scheduled for September 16-18 is still booked but she will continue to monitor COVID-19 peaks for a determination of holding the seminar. Ovaitt suggested a possible virtual seminar. Neville reported the elections process for board of governors is complete with a ballot of six members for the four at-large seats. Olivier made a motion to hold the election June 1-17 by Survey Monkey in lieu of voting at the Annual Meeting, Barrett seconded. Motion unanimously carried. Printable ballots will be available for any member that would prefer to vote by mail. Results of the election will be blasted to members June 18. There was discussion on annual awards given. This item will continue to be revisited as the pandemic unfolds. Under new business, Fuller asked for comments on the State Bar’s Court Record Preservation report regarding the lack of court reporters. The board instructed Fuller to respond to the Bar that SDTLA believes in court reporting and the Bar’s plan is acceptable as drafted. Meeting adjourned.

Next Board meeting is by conference call Thursday June 18, 2020 at 11:00 am CT/10:00 am MT. Dial-ing instructions will be sent with the agenda.