M a r c h / A p r i l 2 0 1 6 I S S U E 2 8 5

What is Trending Now in Trial 2016 SDTLA Annual Seminar & SDTLPAC Golf Tournament

May 12-13, 2016 Lodge at Deadwood

Deadwood, SD

Come for a round of Spring golf in the beautiful Black Hills and stay to enhance your legal ‘skills’ at our CLE with John Romano as our premiere speaker and some gaming! Your golf game may be sub-par, but the CLE is bound to be a hole-in-one!

SEE REGISTRATION Pages 14-17

Inside this issue…… An Interview with Judge Zell — page 6

Litigating Trust Disputes in South Dakota—page 7

Why is a Plaintiff treated like a Roman Slave? - page 9

Legislative Wrap Up— page 12

Annual Seminar—page 14-17

Call for Board of Governors Nominations— page 22 and so much more…..

March/Apri l 2016

President’s Message…. B y S t e v e n C . B e a r d s l e y

Officers President: Steven C. Beardsley President-Elect: Margo T. Julius

Secretary-Treasurer: Ryan Kolbeck

Board of Governors Timothy Rensch, AAJ Delegate

Aaron D. Eiesland, AAJ Delegate Clint Sargent, AAJ Governor

Terrence R. Quinn, AAJ Governor Nathan R. Oviatt, AAJ Young Governor

Stanton A. Anker Amy R. Bartling

Michael S. Beardsley Casey W. Fideler Alecia E. Fuller

Raleigh E. Hansman Jason KW Krause

Melissa B. Nicholson Breit Kasey L. Olivier Robbie J. Rohl

McLean Thompson Kerver T.J. Von Wald

Joshua G. Wurgler

Past Presidents Immediate Past President

G. Verne Goodsell

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

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

WHISTLEBLOWING

My guess is that most lawyers in South Dakota have only heard about whistle-blowing against employers. It is prevalent in various agencies, including the Internal Revenue Service, Occupational Safety and Health Administration, Securities & Exchange Commission, and others. Recently, a medical device manufacturer admitted bribing doctors and hospital to induce them to buy products. This case involved endoscopes. The former employ-ee was fired after raising concerns about the bribes. He then filed a whistleblower lawsuit. The endoscopes are used in the treatment and discovery of cancer. People are subjected to equipment that may not be the best tool, but is being used anyway, because of the bribes. The fines totaled more than $640 million. Of that, the whistleblower received $51.1 million of the settlement. The amount is not as signifi-cant as the fact that watching over the acts of large corporations is more important than ever. For many years, attorneys have policed large corporations through product liability lawsuits. These are incredibly expensive and long-lasting endeavors. There is no question attorneys have made prod-ucts safe by their product liability lawsuits. Whistleblowing can also contribute to peoples’ safety. The incentive for whistleblowing includes payment to the whistleblower. But the by-product is the identification of various fraud and other illegal activity. The hope is that companies will actually abide by the law because of the fear that huge fines will result if they don’t. The Dodd-Frank Act specifically states that employers may not fire, demote, suspend, threaten, harass, or discriminate against an individ-ual who provides information to the SEC. Whistleblowers who suffer from employment retaliation may sue for reinstatement, back pay, and any other damages that occur. Many times the identity of the whistle-blowers themselves can be protected. Lawyers have been the watchdogs of corporations for many years. That can and should continue with the whistleblower program.

March/Apri l 2016 Page 3

Spring is here. New life. New articles. New contributors to The Barrister! Thank you to Mark Meierhenry for his fantastic article on “assumption of the risk.” Anything informative that makes you laugh is well worth the time to read. Thanks, Mark. Thank you also to Brendan Johnson and his partners at Robins Kaplan for their article on litigating trust disputes. Thank you also to the Honorable Judge Bradley Zell for taking far more than the 30 minutes he promised me for his interview, and sharing his funny stories. I hope that you enjoyed being interviewed as much as I enjoyed interviewing you. I have a new respect for pole vaulting now. Running full blast with a long pole in your hands, jamming into the ground, and then flying over it backwards and up-side down takes far more courage than the average person can muster. Although, sometimes trial work feels very similar. Especially the flying back-wards and upside down part. Enjoy the weather and let’s keep our fingers crossed that we don’t relapse back into winter. Judge Zell has some fishing to do. Marie

EDITOR’s Notes & Comments Marie H. Ruettgers

NOTE TO YOUR ACCOUNTANT:

The NON-Deductible percentage

Of your paid dues for the FY 14/15

36%

Toast of the Trial Lawyer Award

Seeking Nominations

The SDTLA Board of Governors is accepting nominations for the Toast of Trial Lawyers annual awards selected from member nominations. SDTLA is seeking nominations for lawyers who de-serve special recognition for an act or acts of outstanding service to their community, profession or client(s) over the past year. The awards are given each year at the Annual Meeting in June. Multi-ple recipients are possible. Please send a letter with a brief synopsis of your nomination's excep-tional service or representation for use by the selection committee, which is made up of five SDTLA members appointed by the president. Nominations must reach the SDTLA office by May 1, 2016 to be considered. Mail them to SDTLA, Trial Lawyer Toast Award, PO Box 1154, Pierre, SD 57501-1154 or email to sdtla@mncomm.com.

March/Apri l 2016 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

The Barrister is published electronically six times a year by the South Dakota Trial Law-yers Association as a service to its membership and as part of its continuing commitment to educate and promote professionalism among trial attorneys. Submissions are wel-come. 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 submissions must be signed by the author. The Barrister is not responsi-ble 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 publica-tion of copyright protected 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 member-ship 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 advertising 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.

SDTLA Calendar of Events

2016 April 14 Board Conference Call May 12 Board Meeting, 8 am MT, Lodge at Deadwood May 12—13 SDTLA Annual Seminar & PAC Golf Tourney Lodge at Deadwood June 22 Board Meeting at Bar Convention Sioux Falls, 11 am June 23 Annual Meeting and Elections Ramkota Sioux Falls July TBA Board conference call August TBA Board meeting, 11 am, Vermillion 1Ls Event 1pm, USD Law School Courtroom September TBA Board conference call or meeting

HURRY!

The SDTLA Room Block

at the Lodge of Deadwood will be

released April 11!!

Call to reserve your room today!!

877-393-5634

March/Apri l 2016 Page 5

Scott A. Abdallah Michael C. Abourezk Grant G. Alvine Kenneth E. Barker Steven C. Beardsley John P. Blackburn John William Burke Michael J. Butler Renee H. Christensen J. Michael Dady Gregory A. Eiesland Aaron Eiesland

$1,800 ANNUAL Michael F. Marlow

Stephanie E. Pochop

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

Gregory A. Eiesland Scott N. Heidepriem

Clint Sargent Michael D. Stevens

Roger A. Tellinghuisen

$1000 ANNUAL Beardsley Jensen & Von Wald

Dorothy & Krause Goodsell Quinn

Heidepriem Purtell & Siegel Johnson Abdallah Janklow Johnson Pochop & Bartling

Meierhenry Sargent Robins Kaplan

Scott Hoy Turbak Law Office

$900 ANNUAL Gary D. Jensen

Nancy Turbak Berry

$600 ANNUAL Terry L. Hofer

Margo T. Julius Mark V. Meierhenry

James C. Roby Michael J. Schaffer

Whiting Hagg & Hagg Michael A. Wilson

SDTLPAC is the political action committee of the SD Trial Lawyers As-sociation. Organized in 1987, SDTLPAC contributes to any candidate for a state office who will support fair and equitable legislation to protect the rights of South Dakotans through the preservation of our justice sys-tem. WE THANK THESE CONTRIBUTORS FOR THEIR SUPPORT!

$500 ANNUAL DeMersseman Jensen Tellinghuisen

& Huffman Nicholson Tschetter Adams & Nicholson

Plastic Surgery Associates Steven S. Siegel

$300 ANNUAL G. Verne Goodsell Wm. Jason Groves

$250 ANNUAL Hoy Trial Lawyers

Johnson Eiesland Law Office Lynn Jackson Shultz & Lebrun

Waltner Kolbeck Law Firm

$180 ANNUAL Alecia E. Fuller

Brad J. Lee

$120 ANNUAL Richard A. Engels Robert B. Frieberg George E. Grassby

Ryan Kolbeck Michael Paulson

Catherine V. Piersol Haven L. Stuck T. J. Von Wald

SUSTAINING MEMBERS

Sustaining members pay $700 in dues each year, which entitles them to a discounted attendance at the Association’s annual seminar, the annual meeting and luncheon and a plaque denoting their sustaining membership status. Our gratitude goes to these members so that the association can continue 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

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

LIFETIME ACHIEVEMENT AWARD Carleton “Tex” Hoy John F. Hagemann Robert C. Ulrich

Terry Quinn

Jay R. Gellhaus G. Verne Goodsell Scott N. Heidepriem Scott G. Hoy John R. Hughes Gary D. Jensen Brendan V. Johnson Steven M. Johnson George Johnson Margo T. Julius David J. King Ryan Kolbeck Jeff A. Larson

James D. Leach Brad J. Lee Michael F. Marlow Lee C. 'Kit' McCahren Mark V. Meierhenry Bret C. Merkle N. Dean Nasser James S. Nelson Melissa B. Nicholson Stephanie E. Pochop 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 Roger A. Tellinghuisen Thomas P. Tonner Nancy J. Turbak Berry Thomas J. Von Wald Thomas K. Wilka Michael A. Wilson

March/Apri l 2016 Page 6

Continued on page 20

The Honorable Bradley Zell is writing his life story for his family. “I’ve already select-ed the title: “From the Melon Patch to the Bench.” Judge Zell grew up in Forestburg, South Dakota, on the family farm where he and his brothers helped with row crops, dairy cattle, stock cattle, hogs, and an 80 acre melon patch. He fondly remembers planting and tending the melon patch by hand as a kid, where the family grew water-melon, muskmelon, and pumpkins.

The youngest of four boys, Judge Zell excelled in the pole vault in high school track and field. “Believe it or not, I was 5 foot 10 inches and 135 pounds when I graduated from high school. I wasn’t fast as I didn’t have the lungs, so I did field events including pole vault and the triple jump.” Judge Zell signed a National Letter of Intent to compete in track and field for the University of South Dakota as a pole vaulter, but after his first semester at USD Judge Zell transferred to South Dakota State University. Because of his transfer between the two universities, Judge Zell was ineligible to com-pete in the spring track and field season. “I showed up to practice anyway and eventually became an assistant coach for the SDSU women’s track team.” Giving up his competitive pole vaulting career for coaching turned out well for Judge Zell. He eventually married Elaine Kempf Zell, a member of the women’s track team. After graduating from SDSU with a Bachelor of Science in history and political science, Judge Zell considered returning to the family farm. But, the farm crisis in the late 1970s made it impossible for the family farm to support his father, two brothers and Judge Zell. As Judge Zell tells it “Dad said ‘no room, figure out something else.’” That something else was law school. After graduating from the USD School of Law in 1985, Judge Zell served as a law clerk in the 7

th Circuit for then-

Presiding Judge Marshall Young, and Circuit Court Judges Merton B. Tice, Roland Grosshans, Jeff Davis and John Konenkamp. Elaine followed him to Rapid City where she worked as a teacher and a coach. The young couple wanted to stay in Rapid City, but the economy in the 1980s again played a big role in Judge Zell’s life. Judge Zell, like many other new lawyers in the mid 80s, struggled to find a position after his clerkship and found himself competing for limited openings with his unemployed classmates and a new class of 1986 graduates. A law school classmate and friend, Jeff Fox, was lobbying in the legislature at that time and knew Representative Scott Heide-priem was looking for help for his Miller, SD law firm. Scott asked Jeff if he knew of any young lawyers with a farming background who might want to practice law in a small community such as Miller. The rest is history. Judge Zell joined the Heidepriem Widmayer Law Firm in Miller where he practiced until his appointment to the bench over 12 years ago. “The practice of law has changed since I became an attorney. There are two significant changes: technology and civili-ty.” Judge Zell recognizes the need for and improvement to the practice of law technology has brought. But, he cau-tions practitioners that with the speed and convenience of email and electronic filing negative consequences can occur to the professional practice of law and the civility within the profession. “Technology is causing us to move away from a formal motions practice to an informal email practice. Attorneys set forth arguments about facts not sworn under oath or otherwise in the record through emails and forget those “facts” are not evidence and never make it into the record if not included in affidavits filed with the court.” A very informal and sloppy practice occurs when counsel seeks a remedy from the court in such a manner. Judge Zell also notes the effect technology has had on clients, whose expectations are analogous to fast- food restau-rants where the clients expect “drive thru justice” when it comes to how quickly clients expect an outcome or ruling from the Court. “The expectation has become ‘I’ve placed my order, where’s my justice?’” The speed of technology affects the perception of how fast the legal system should move, and Judge Zell advises lawyers to manage their clients’ ex-pectations. When it comes to technology, Judge Zell adds “technology makes it possible to type and send without thinking or time to reflect before hitting send.” Animosity that starts in emails, can move into depositions or discovery and eventually poison or taint personal interactions between counsel. “Think before sending,” he cautions. Judge Zell’s advice to new practitioners is “to jump in and try a little of everything. Then as you approach 8 to 10 years in practice, you should be more selective in the areas in which you practice, and have the experience necessary for good case selection.” Judge Zell believes reflection on the front end of a case is critical. He notes, “Attorneys should ask themselves at the front end: ‘how should I present this case?’ and try to visualize the answer before accepting the case.”

The Honorable Bradley Zell Interview by Marie Ruettgers

March/Apri l 2016 Page 7

Continued on page 13

The greatest transfer of wealth in the history of the world is underway. According to a study from the consulting firm Accenture, baby boomers are expected to transfer approximately $30 trillion in assets to their heirs over the next 30-40 years. South Dakota is poised to be a focal point in that transfer of wealth. In 2013, there were 65 trust companies chartered in South Dakota, most of which had been authorized over the past 15 years, and total assets surpassed $120 billion. Putting that in context, at the same time Minnesota had combined assets of just over $7 billion with three non-bank trust charters, and there had been no new charters since 2005. (https://www.minneapolisfed.org/publications/fedgazette/in-south-dakota-we-trust). The purpose of this article is to provide a brief history of how South Dakota be-came a magnet for trust assets, and then to discuss strategies for litigating trust disputes. Understanding South Dakota Dynasty Trusts Several states, including Minnesota, still have remnants of the arcane “rule against perpetuities.” As you may recall, this essentially requires that a trust extinguish and funds be distributed within a limited period of time, generally less than 100 years from the formation of the trust. In application, the rule has many complexities that risk the effectiveness of the trust and minimize tax savings that would exist if the trust could last longer. In 1983, South Dakota abolished the rule against perpetuities. See SDCL 43-5-8. This allowed for the creation of a true dynasty trust, a trust that lasts in perpetuity. The popularity of South Dakota dynasty trusts has also been the product of our state tax code. Of all the states that allow for true perpetual trusts, South Dakota is the only one that does not impose any type of tax on trust assets. In sum, properly implemented, a South Dakota dynasty trust is one of the most powerful estate planning tools in existence. Litigating Trust Disputes in South Dakota As South Dakota’s trust industry matures, it is expected that we will also become home to an increasing number of high-stakes trust disputes. The challenge for South Dakota attorneys interested in developing a trust litigation practice is that in South Dakota, the court is required to seal court filings and orders relating to trust actions if requested by a living trus-tor or by any fiduciary or beneficiary. See SDCL 21-22-28. These documents are generally protected in perpetuity and are not available to the public. This is an added benefit for those interested in a South Dakota dynasty trust, but it pro-vides a practical challenge to attorneys looking to develop their practice in this area of the law. Accordingly, the remain-der of this article will provide examples of trust litigation that our firm has been involved with outside of South Dakota and some of the most important lessons learned. Examples of Trust Disputes In one matter, we represented a trustee of a testamentary trust with two categories of beneficiaries. Class A beneficiar-ies (several charitable entities) received the proceeds of the sale of real estate, while Class B beneficiaries (heirs and friends of the settlor) received the remainder of the trust assets after the payment of specific distributions and trust ex-penses. After the death of the settlor of the trust, the trustee discovered a serious environmental hazard on the real es-tate that required extensive and expensive clean-up before it could be sold and the profits distributed. The trustee allo-cated the cost of the clean-up as a general trust administration cost. Class B beneficiaries disputed the allocation, argu-ing that it should have been charged against the proceeds received from the sale of the real estate. Despite the trus-tee’s numerous attempts to reach an out-of-court settlement, Class B beneficiaries filed suit in a court of general juris-diction. The complaint included allegations of breaches of fiduciary duty for such allocation of clean-up costs, misappro-priation of trust assets, and several other claims. While ruling that the trustee did not breach his fiduciary duty, the court held that the clean-up costs should have been deducted from the sale proceeds only. In another matter, a husband and wife owned and controlled a one hundred-year old family funeral home business. The couple created a testamentary trust with their two sons as co-trustees. The trust provided that upon the death of the surviving spouse, their two sons would inherit the family business and their three daughters would receive reasonably equivalent value from the sale of all remaining assets. Not only was there a dispute about what “reasonably equivalent value” meant, but the co-trustees had competing claims regarding operation of the business. As a result, the three daughters and one co-trustee filed separate suits, resulting in competing litigations in different courts. On behalf of the other co-trustee, we filed suit in probate court, seeking instructions on valuation of the assets. The parties successfully mediated the valuation issue. However, the co-trustees could not agree on the terms of operating the business and ran the risk of liquidating the business. Ultimately, during the course of litigation and on the eve of trial, the two brothers set-tled their dispute with the operational brother buying out the other. We also represented a trustee facing allegations of breaches of fiduciary duty and unfair dealing. In this matter, the wife died first, and the husband created an estate plan whereby he deliberately disinherited one child and bequeathed his assets in trust for the benefit of his remaining five children. His assets included $2million in cash, 3 beachfront

Litigating Trust Disputes in South Dakota By Brendan V. Johnson, Anthony A. Froio and Manleen Singh

March/Apri l 2016 Page 8

March/Apri l 2016 Page 9

WHY IS A PLAINTIFF TREATED LIKE A ROMAN SLAVE? By Mark Meierhenry

In the Burhenn v. Dennis Supply 2004 S.D. 91 685 N.W.2d 778 appeal, the Supreme Court knocked my arguments out like an Alaska fisherman using a baseball bat on a 20 pound Halibut. My partner, Clint Sargent, said “No. It was worse than that.” Now twelve years later, I was reminded of the concept of “assumption of the risk” by waiting my turn for a hearing. The defense lawyer was arguing the defense. Nothing sticks with a trial lawyer like a loss. South Dakota remains as one of three jurisdictions to retain the common law defense of assumption of the risk after the adoption of comparative negligence theory. Nebraska alone has a statute approving the defense. The purpose of the English common law assumption of risk defense was “to protect employers in the industrial revolu-tion from being sued by workers.”

1 The Romans invented the legal defense. The English adopted the Roman Conquer-

or’s law from antiquity. The Romans developed the legal defense to protect masters from slaves. Free men who entered slavery voluntarily were prevented from recovering damages against their master because of their master’s negligence.”

2

Not many slaves file cases in South Dakota anymore!

The Comparative Negligence Manual describes the defense thusly: Assumption of risk has evolved from a simple concept into a somewhat complicated one. This evolution

occurred because courts and society began to view as unfair the existing rule precluding a plaintiff from recovering any damages where plaintiff knowingly accepted the risk. As courts developed an approach that apportioned fault between plaintiff and defendant, known as comparative negligence, assumption of risk evolved into several sub-concepts, which resulted in such confusion and differences among dif-ferent jurisdictions that some courts suggested either abolishing the concept, or precluding the jury from being instructed on it for fear of hopelessly confusing them.

3 4

My aim in this short article is to heighten the discourse on this illogical and little understood defense. All too often, plain-tiff lawyers permit such an instruction to be given when the defense has no evidence to support its submission. People like visual information. States that have adopted comparative negligence and the judiciary retains the defense are shaded in stripes. States whose judiciary has abandoned the defense are white.

Continued on page 18

March/Apri l 2016 Page 10

South Dakota Trial Lawyers Association

Notice of 2015-2016

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DUE July 1, 2015

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* 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.

March/Apri l 2016 Page 11

March/Apri l 2016 Page 12

2016 Legislative Report

By Roger Tellinghuisen

Another year of work by the South Dakota Legislature has drawn to a close. The number of bills introduced was re-markably low this year – even lower than last year. There were 247 House bills and 172 Senate bills for a total of 419 which compares to 429 last year and 448 from the year before. Again this year, like last year, there were no real “tort reform” bills introduced. We did not introduce our proposed amendment to our comparative negligence statute this year (more on that below). Of the bills introduced, we actively tracked 50 bills as compared to 42 bills tracked last year. Sara Hartford’s March 12

th Legislative Update lists all the bills we tracked and gives their status as of that date. As of

this writing, I am not aware of the Governor having vetoed any of the bills we were tracking that reached his desk. To determine the final outcome of a Bill, go to the Legislative Research Council’s website at “legis.state.sd.us”, click on “Legislative Session”, select “2016” and “Bills”. Then you can either scroll through the entire list of bills by clicking on “Full List” in the menu to the left or you can use the “Quick Search” feature by typing in the specific bill number you are interested in (without typing in the prefix “HB” or “SB”). Scroll to the bottom of the bill status and you will see the bill’s final disposition. Last year’s HB 1103 was our bill aimed at amending our existing comparative negligence statute found at SDCL 20-9-2 to remove the bar to recovery in the event a plaintiff’s contributory negligence was more than “slight” in comparison to the negligence of the defendant. Although the bill passed out of the House last year with a strong vote in favor (54-13), it ran into serious trouble over in the Senate where it only garnered 9 votes for passage. This year, a decision was made by the board, upon my recommendation, that we not put the bill in. My reasons for recommending that we not reintroduce the bill this year basically came down to: 1) the membership in the Senate was exactly the same this year as it was last year so the chances of holding the 9 who voted for it last year AND getting an additional 9 who voted against it last year to change their vote was insurmountable; and 2) I’m sensitive to asking legislators who have supported us in the past on what turned out to be a losing effort to support us again when the likelihood of a different result is so poor. Additionally, 1 of the “yes” votes we got last year, Dan Lederman, resigned after session last year, so that only left us with 8 of the “yes” votes from last year. It’s a matter of not unnecessarily us-ing up the “chits” we work so hard to accumulate with legislators on a matter that doesn’t stand a chance of passage this particular year. This year is an election year and 4 of the senators who voted against us last year are term limited out, so they will be replaced. We’ll need to see how the elections for the legislature turn out this November to see whether the make-up of the Senate is better for us next year and make a decision whether the timing is right to once again reintroduce this bill.

Following are some of the other bills taken up by this year’s Legislature (they’re in no particular order of significance): HB 1077 - An Act to grant limited immunity from arrest and prosecution for certain related offenses to persons who assist certain persons in need of emergency assistance or who are themselves in need of emergency as-sistance. This bill would have granted limited immunity to persons from arrest or prosecution for misdemeanor posses-sion, inhalation, or ingestion of a controlled substance if that person contacts law enforcement or emergency medical services and reports that a person is in need of emergency medical assistance as the result of a drug overdose. This bill passed the House on a 59 – 6 vote, but didn’t make it out of the Senate Judiciary committee where it died on a 2 – 5 vote. HB 1078- An Act to grant limited immunity from arrest and prosecution for certain alcohol related offenses to persons who assist a person in need of emergency assistance or who are themselves in need of emergency assistance. This bill is basically a companion bill to HB 1077, except it deals with persons who are in need of emer-gency medical treatment as a result of alcohol over indulgence. It provides immunity to persons from prosecution for underage consumption, open container or public intoxication if that person contacts law enforcement or an emergency medical services provider and reports that a person is in need of emergency medical assistance. The bill also provides immunity to an underage person who basically self-reports that they are in need of emergency medical services as a result of alcohol consumption. SB 94 – An act to repeal the death penalty. As I predicted in last year’s Legislative Update, this bill came back and would have prospectively repealed the death penalty. Like last year, there were a number of “traditional” opponents to the death penalty who spoke in favor of the bill, including myself. One of the more interesting presenters was a former Supreme Court Justice, Norman Fletcher, from Rome, Georgia. He spoke of the many death penalty cases he presided over and how he has come to believe it’s not an appropriate penalty for a civilized society to impose. The testimony from both sides was emotional and heart wrenching at times. The bill was once again started in the Senate this year as it was last year and unfortunately, the result was the same - the bill was killed on a 7- Continued on page 21

March/Apri l 2016 Page 13

Properties and his residence. The trustee was a neutral, third-party, charged with paying income to the 5 children for their lifetimes. The trustee also had the authority to invade the principal for the “serious health or life-altering circum-stances” of the 5 children. Finally and to the extent all beneficiaries agreed, the trustee was authorized to sell any of the beachfront properties to any one or more of the beneficiaries. A dispute arose as to the trustee’s attempt to sell the beachfront properties and faced accusations that the sales were not arms’ length and of preferential treatment to certain buyers. Lessons Learned When a trust relies on valuation of assets for distributions to beneficiaries, such as in the last two examples in the previ-ous section, a trustee should immediately commission an appraisal completed by a reputable and qualified appraiser using commercially acceptable valuation methods and procedures. Without it, disputes will most definitely arise as to the reasonableness of the trustee’s actions, whether the sale price of an asset represented fair market value, and delay of distribution payments, to name just a few. Trustees should be wary of a catch-22 type situation when the trust has multiple beneficiaries. Trustees have several duties with which they must comply while administering the trust, including the fiduciary duty and the duty to treat all ben-eficiaries equally and in strict accordance with the trust terms. But, at times, compliance with all duties may force a trus-tee into a situation where any beneficiary could raise an issue. Take the first example of a trust dispute in the previous section. The trustee allocated the clean-up cost as a general trust administration cost. It was reasonable for her to do so since the trust required her to sell the property and distribute the proceeds. However, it is equally reasonable for the trus-tee to have charged the clean-up costs against the sale proceeds since the two are intertwined. The trustee’s decision has a necessary impact on the amount of distributions. Whichever allocation the trustee chose, one class of beneficiaries would be able to argue that the trustee did not treat them equitably, in accordance with the terms of the trust, or as in-tended by the settlor. Trustees must be mindful that this type of situation could arise in any trust with more than one ben-eficiary. One potential resolution of the catch-22 type situation described above is going to court early. One lesson we have learned is that seeking instructions from the probate court, or other court of specialized jurisdiction, early in the admin-istration of a trust may be the most efficient and cost-effective way to resolve disputes with beneficiaries. This lesson may seem counter-intuitive as formal court proceedings have been known to be lengthy and expensive. But, if done with careful thought and consideration, going to court early may avoid a lengthy and expensive trust administration process before a trust can be closed. And going to court early is key. Trustees tend to wait too long before going to court, allow-ing disputes to simmer. But, trust disputes are not like red wine – they do not improve with age. Going to court early is most effective when a trustee is faced with particularly aggressive beneficiaries whose only focus is on the bottom line – the dollar amount of their distributions. With a court order in hand, such beneficiaries will have no choice but to accept the distributions, rather than refusing to assent to the accounting and forcing the trustee to continue to manage the trust assets and incur cost. If the trustee does not go to court first, she risks being brought into court by the aggressive beneficiaries, who may deliberately choose a court of general jurisdiction, as opposed to a specialized court with the relevant experience. Such proceedings are almost always unduly lengthy and expensive. Trustees must also be careful in their choice of litigation counsel. While a trust typically allows a trustee to hire counsel, the trustee must always act reasonably. A trustee cannot accrue substantial legal fees on the assumption that the trust will cover the cost. Instead, the trustee must carefully choose a law firm, with legal fees reasonable and proportionate to the dispute at issue. Trustees should insist on a reasonable budget and ensure that counsel does not exceed that budg-et. Consequences of a trustee’s failure to keep a close watch on growing legal fees include being found to have breached the fiduciary duty and being held liable for payment of the legal fees, whether charged against compensation owed to the trustee or direct payment from the trustee to counsel. About the Authors: Anthony A. Froio, Robins Kaplan LLP, Managing Partner, Boston Office, Member of the Executive Board Brendan V. Johnson, Robins Kaplan LLP, Co-Chair of Government and Internal Investigations Group, South Dakota Office Manleen Singh, Robins Kaplan LLP, Associate, Boston Office

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What’s Trending Now in Trial 2016 SDTLA Annual Seminar & SDTLPAC Golf Tourney May 12-13, 2016—Lodge at Deadwood– Deadwood, SD

Don’t miss out on the fun and networking during this year’s SDTLA Seminar! “What is Trending Now in Trial” is designed for all ages and practice areas! The Education Committee has engaged nationally recognized speak-ers to educate and revitalize your practice. John Romano will discuss how to infuse your trial practice with old and new trends. John is an internationally recognized trial lawyer and speaker. He represents his clients with vigor, dignity and professionalism. His passion for the law and his practice has been passed on to his trial law-yer sons and the members of the Romano firm. The Hon. Jeffrey Viken will share his professional journey from private practice to his appointment to the Feder-al bench. As the present Chief Judge of the District of South Dakota, Judge Viken will also impart his observa-tions from the last few years as well as what he sees on the horizon.

Don Bauermeister will present on the application of recent cognitive neuroscience discoveries to understanding the art (and now science), of persuasion in the courtroom. Cognitive neuroscience is the scientific study of how the physiology of the brain produces the phenomenology of consciousness. The lecture will introduce cognitive neuroscience briefly to those who are new to the subject. It will then proceed to discuss what re-cent discoveries in this area of science have to tell us about how jurors and juries process information to arrive at the motivated conduct we think of as their verdict. You also do not want to miss the 2

nd Annual SDTLPAC Golf Tournament at the beautiful Spearfish Canyon

Country Club. Springtime in the Black Hills… golf with friends… what better way to recharge? From novice (Steve Beardsley) to pro (Clint Sargent), there is a golf cart waiting for you!

Agenda Thursday, May 12, 2016 9:00a.m. Registration – Pine Crest C 9:30 am SDTLA President’s Welcome – Steve Beardsley, Rapid City 9:35a.m. Connectionology - The Art and Science of Communicating With Jurors

John Romano, West Palm Beach, Florida 10:30 a.m. BREAK 11:00 a.m. Hon. Jeffrey Viken, Chief Judge of the U.S. District of South Dakota 11:30 a.m. Seminar adjourns… Golfers & non-golfers adjourn to bus for transportation to Spearfish Country Club Lunch at the course – (included in registration) 1 pm Shotgun Starts to 2

nd Annual SDTLPAC Golf Tournament (must pre-register)

5:15 pm Cash Bar opens – Pine Crest A 6:00 pm Networking Reception – (included in tuition) - Pine Crest A

Tournament Awards and other excitement!!!

6:45 p.m. Dinner (must have pre-registered) – Pine Crest A 3rd Annual Storyteller Award – all speakers Heavy gaming to follow!

Friday, May 13 – Pine Crest C 9:00 a.m. Jury Selection, the Neuroscience of Decision Making and Storytelling

Don Bauermeister, Bremerton, Washington

10:00 a.m. BREAK 10:15 a.m. Bauermeister Continued…. 11:15 a.m. Romano Part 2 Noonish adjourn

SEMINAR REGISTRATION FEES: (All registrations include the banquet dinner & roast) ____ $100.00 Sustaining members ____ $175.00 members over 3 years in practice ____ $150.00 members less than 3 years in practice ____ $100.00 public attorneys ____ $175.00 Minnesota, Iowa, Nebraska & North Dakota TLA members ____ $ 50.00 Judges, Legal Support staff & USD Law School Students ____ $100.00 Legal Support Staff non-member ____ $ 50.00 Spouses/Guest Banquet only* *must pre-register

ADDITIONAL FEES for Golf: (must pre-register)

_____$100.00/per person…this registration includes the golf course lunch, green fees, cart AND a contribution to the SDTL Political Action Committee which makes contributions to any candidate for a state office who will support fair and equitable legislation to protect the rights of South Dakotans through the preservation of our justice system.

ACCOMODATIONS:

Rooms can be reserved by calling the Lodge at Deadwood at 877-393-5634 and ask for reservations in the SD Trial Lawyer Association block. The block will be released APRIL11. The SDTLA rate is $99/night plus tax. Please photocopy and use a separate registration form for each registrant. Return this form and the appropriate fees to:

SDTLA Office PO Box 1154

Pierre, SD 57501-1154 If you have questions, call (605) 224-9292. Name_______________________________________ Email Address________________________________ City_____________________State________________ Telephone____________________________________ REGISTER ON-LINE by sending an email message with the above information to sdtla@mncomm.com. Please send your registration fee by mail to SDTLA, PO Box 1154, Pierre, SD 57501-1154.

March/Apri l 2016 Page 18

Below is a part of my brief from 2004, which did not convince our Supreme Court. Please improve it and use it in the cir-cuit courts. Few cases warrant the use of the defense, even as now retained. Finally, ignore the South Dakota pattern jury instructions on assumption of risk. The South Dakota patterns are simplistic and seldom properly worded to fit the facts of your case.

This abstract of my brief will give you a template to begin the long road to convince the Court not to continue to treat plaintiffs like the slaves of Rome.

South Dakota is an island of assumption of risk law. South Dakota is one of only three jurisdictions out of forty-

six that had adopted comparative negligence and in which the Judiciary retained assumption of risk as an absolute de-

fense. Davenport v. Cotton Hope Plantation Horizontal Property Regime states that “To date, the only comparative fault

jurisdictions, that have retained assumption of risk as an absolute defense are Georgia, Mississippi, Nebraska, Rhode

Island and South Dakota.” 508 SE2d 565, 571 (SC 1998). Since the 1998 South Carolina Supreme Court review of ju-

risdictions, Mississippi abandoned assumption of the risk. South Dakota joins Georgia and Rhode Island as the last

three states which retain “judge-made” assumption of risk as an absolute defense to secondary assumption of risk.

Mississippi wrote in 1999, “to hold once again that assumption of risk doctrine is subsumed into comparative

negligence.” Churchill v. Pearl River Basin Development District, 757 So2d 940, 942 (MS 1999). The Mississippi Court

established the view that “the doctrine of assumption of risk should either be subsumed into comparative negligence or

abolished outright and Horton accordingly carried precedential authority in this regard.” Id. at 942 (citing Horton v. Amer-

ican Tobacco Co., 667 So2d 1289 (MS 1995)).

The Supreme Court of Wyoming in 1994 discussed assumption of the risk. The case involved an interpretation

of the newly enacted RECREATION SAFETY ACT in Wyoming. The Court in Halpern v. Wheeldon, succinctly described

the status of assumption of the risk in Wyoming. 890 P2d 562 (WY 1995). The Wyoming Court stated that, “In Wyo-

ming, the absolute defense of secondary assumption of risk (contributory negligence) was abolished when the legislature

adopted the comparative negligence statute. Wyo. Stat. § 1-1-109 (1988) (amended 1994). Secondary assumption of

the risk is a basis for apportionment of fault under the comparative negligence scheme.” Halpern, 890 P2d at 565 (citing

Brittain v. Booth, 601 P2d 532, 534 (WY 1979)).

The Wyoming Supreme Court joined Montana, North Dakota, Minnesota, and Iowa in abolishing assumption of

the risk in negligence actions. The North Dakota Supreme Court observed in Wentz v. Deseth, “the affirmative defenses

of assumption of the risk and contributory negligence are no longer the law of North Dakota and negligence cases are

now governed by the doctrine of comparative negligence.” 221 NW2d 101, 104 (ND 1974).

The Iowa Supreme Court abolished assumption of risk as a defense under comparative negligence:

We hold that in a common-law tort case, in which the defendant raises the issue of plaintiffs negligence,

the elements of “assumed risk” shall no longer be pled and instructed on as a separate defense. The

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March/Apri l 2016 Page 19

facts of the case, as they bear on the reasonableness of the plaintiff’s conduct, may well be proper af-

firmative allegations of plaintiff’s negligence in the answer.

Rosenau v. City of Estherville, 199 NW2d 125, 133 (IA 1972).

The Minnesota Supreme Court likewise abolished assumption of the risk in Springrose v. Wilmore. 192 NW2d

826 (MN 1971). The Minnesota Court departed from precedent. The Court disposed of assumption of risk as a defense.

It stated, “The practical and most important impact of this decision is to mandate that, like any other form of contributory

negligence, assumption of risk must be apportioned under comparative negligence statute,” Id. at 827.

Eighth Circuit Judge McMillian writing the decision in Rini v. Oaklawn Jockey Club, made two wily observations

concerning Arkansas law. 861 F2d 502 (8th Cir 1988). Circuit Judge McMillian observed that at least two things are

commonly said about the doctrine of assumption of risk. Id. at 504. First, it is a frequent cause of confusion. “The sec-

ond thing that is said of assumption of the risk is that it is not well liked, particularly in recent times.” Id. Judge McMillian

set forth in Rini the state of law of assumption of the risk as defense to tort actions citing numerous commentators and

cases on the subject of the assumption of the risk and comparative negligence.

Nebraska, by statute, has the affirmative defense of assumption of the risk. Neb. Rev. Stat. § 25-21, 185.12 (1995).

Assumption of the risk is a more narrowly applied doctrine in Nebraska than South Dakota.

South Dakota and Nebraska do not have the same general elements of the defense of assumption of the risk.5

Nebraska Supreme Court holds, “the standard to be applied in determining whether a plaintiff has assumed the risk of

injury is a subjective one based upon the particular facts and circumstances of the event.” 6 The Court in Nebraska Su-

preme Court offered an historical perspective on assumption of the risk:

Assumption of the risk rests in contract or in the principle expressed by the ancient maxim, ‘volevolenti non fit injuria,’ whereas contributory negligence rests in tort. The former involves a choice made more or less deliberately and negatives liability without reference to the fact that the plaintiff may have acted with due care, whereas the defense of contributory negligence implies the failure of the plaintiff to exercise due care. As stated in some decisions, assumption of risk is a mental state of willingness, whereas contributory negligence is a matter of conduct. Cassio v. Creighton University, 446 NW2d 704, 713 (NE 1989). Assumption of risk differs from contributory negligence in that a sub-jective standard is applied to the former and an objective standard is applied to the latter.

Jay v. Moog Automotive, Inc., 652 NW2d 872, 880 (NE 2002) (citing Pleiss v. Barnes, 619 NW2d 825 (NE

2000)); Talle v. Nebraska Dept. of Soc. Services, 541 NW2d 30 (NE 1995). South Dakota’s pattern instruction creates

an objective standard “constructive knowledge” of “the existence of the specific risk.” No other state gives that broad pro-

tection to negligent actors. South Dakota should abolish the defense of implied assumption of risk in negligence actions

brought under the comparative negligence statutes.

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My practice advice is:

1. Discover facts on the defense – early;

2. Test the defense pretrial;

3. Make a summary judgment motion on the defense;

4. Submit proper instruction if the judge allows the defense – do not use the pattern instruction.

Have fun and do better.

March/Apri l 2016 Page 20

1 Comparative Negligence Manual, § 1:34, supra

2 Comparative Negligence Manual, § 1:34, supra

3 Burhenn v. Dennis Supply, 685 N.W.2d 778 (2004)

4 Comparative Negligence Manual, § 1:34 (3rd Ed.)

5 South Dakota’s pattern jury instruction, sets forth the following elements: 1) that the plaintiff had actual or constructive knowledge of the existence of the specific risk involved; 2) the plaintiff appreciated the risk’s character and 3) the plaintiff vol-untarily accepted the risk having had the time, knowledge, and experience to make an intelligent choice.

6 Nebraska’s elements are, “before the defense of assumption of the risk is submissible to the jury, the evidence must show that 1) knew of the specific danger, 2) understood the danger; and 3) voluntarily exposed himself for herself to the danger that ap-proximately caused the damages. Jay v. Moog Automotive, Inc., 652 NW2d 872, 881 (NE 2002) (citing Pleiss v. Barnes, 619 NW2d 825 (NE 2000)).

Notes

Continued from previous page

When in Judge Zell’s courtroom, he appreciates and can tell who is prepared. “Those who can be brief and succinct are the ones who are well prepared.” He also appreciates attorneys who file pleadings and motions early, before the deadlines set in scheduling orders. “Giving a judge more time to review and prepare for a hearing or trial is something I appreciate.” He adds, “The Second Circuit is buried in volume, and that volume makes it difficult for judges to have suf-ficient time to review everything submitted. Giving the judge a little extra time is greatly appreciated.” Finally, Judge Zell says “if you want to be good at something, you need to watch and learn from the best. If you want to be a great basketball player, you study Michael Jordan. If you want to be a great trial attorney, you need to sit, listen, and watch the best attorneys in our state. You want to watch the jury’s expressions in reaction to what a lawyer is or is not doing.” He adds, “We all know who the great attorneys are, and we as a profession spend too little time just watch-ing and learning.”

Judge Zell lights up when he talks about his family; and fishing. Mrs. Zell, who teaches middle school science in Brandon, was honored last year as one of SDSU’s Top 50 Women Athletes. Judge Zell and his wife have four children. Shannon, their eldest daughter, is a music teacher in Tea. Jennifer is an accountant for a HVAC business in Sioux Falls. Their son Ben, an entrepreneur, recently sold his business in Miller and is considering returning to school. Their youngest daughter, Mariah, attends Mitchell Col-lege in Connecticut and works part time as a professional model. Not bad for a once-skinny kid from Forestburg, South Dakota, who grew up tending the family melon patch.

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March/Apri l 2016 Page 21

2 vote. I don’t know whether this bill will be back again next year, but I suspect it will. SB 44 - An Act to classify vehicular homicide as a crime of violence. In its original form this bill would have done exactly as the title implies – it would have made vehicular homicide a crime of violence which would have lengthened the time a person would serve before they would have first been eligible for parole. This was an Attorney General’s bill and the Governor’s office came out in opposition because by increasing the time an inmate must serve before they’re eligible for parole, it would negatively affect prison populations. The bill was extensively hog housed to create a whole new category of crime called “aggravated vehicular homicide”. This new language was not acceptable to our organiza-tion or the South Dakota Criminal Defense Lawyers. As a result of the opposition to this hog housed bill, the bill was amended back to its original form which, once again brought out the Governor’s office in opposition. Long story short, when the Senate and the House could not agree, the bill went to a conference committee to see if something could be worked out. It could not – the Senate voted to approve in the conference committee recommendation which, was to not concur and to not reappoint a new conference committee which effectively killed the bill for this year. HB 1135 – An Act to establish venue for certain actions arising out of real property lease agreements. This was a pretty simple bill that requires a plaintiff to bring a breach of contract action arising out of a lease agreement in the county where any portion of the real property subject to the lease is located. The justification for the bill was that in those cases where a landlord has a tenant who moves out of the county where the property under lease is located, the landlord should not have to go to the expense of bringing their lawsuit for breach of contract in a venue that may be on the other side of the state. HB 1167 – An Act to revise certain provisions regarding the use of a suspended imposition of sentence for a misdemeanor and a felony. This bill will now allow a person to receive a suspended imposition for 1 felony AND for 1 misdemeanor. Under current law, a person was only entitled to a suspended imposition once in their lifetime regardless of whether it had been used for a felony or a misdemeanor. Now, a person will be allowed to receive 1 suspended impo-sition for a felony and a misdemeanor. HB 1084 – An Act to define when concurrent employment may be used to calculate earnings in workers’ com-pensation cases. This bill was introduced in response to the Supreme Courts holding in Wheeler v. Cinna Bakers, LLC, 864 N.W.2d 17 (2015) regarding the aggregation of wages in workers compensation cases. The legislature in ef-fect drew a line and established that wages from concurrent employment can be used in workers compensation cases arising after May 5, 2015 and that such wages could not be used for cases arising prior to May 6, 2015 (the date of the Supreme Court’s decision). In closing I would once again like to thank all of you who took the time to comment on specific legislation. Although this year was not a particularly eventful year for our organization, we did make our presence AND our mission known to the Legislature. Hopefully, in the years to come, whether it’s with me as the lobbyist for this organization or someone else, we’ll continue to “fight the good fight” for the folks we represent. It’s important to always remember that the “little guy” doesn’t have a lobbyist in Pierre and so often times we need to take up the cause on their behalf.

Thank you to Sara for keeping the Legislative Update up-to-date and forwarding the questions and comments that come in while I’m in Pierre. Once again, thank you to all of you for allowing me to act as your lobbyist once again this year. Lastly, “thank you” to my wife, Marya, for putting up with me being gone for the better part of two months in the dead of winter while I get to do something I so thoroughly enjoy!

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March/Apri l 2016 Page 22

NOTICE OF NOMINATIONS

The Elections Committee of the South Dakota Trial Lawyers Association is seeking nominations for the following offices:

President-Elect

Secretary-Treasurer AAJ Governor 2016-19 AAJ Delegate 2016-18

four (4) At Large Members of the Board of Governors for the 2016-18 term one (1) At Large Member of Board of Governors in practice

not more than three years/2016-17 term

NOTE: This notice is in lieu of the call for nominations from the floor during the 2016 SDTLA Annual Meeting, June 23, 2016.

If you wish to nominate someone for one of the above offices, fill out the nomination form below and

return it to the SDTLA office. All nominations must be received by May 1, 2016.

All nominees will be notified of their nomination by mail.

A sample ballot will be published in the May/June issue of the BARRISTER.

* * * * * * * * * * SDTLA NOMINATION FORM

I, ______________________________________, of _________________________, nominate

__________________________________________________ for the office of

_______________________________________________________________________________

He/She is a member of the __________________________________________ firm

and his/her address and email address is _____________________________________________.

RETURN TO by May 1, 2016: Elections Committee

South Dakota Trial Lawyers Association PO Box 1154

Pierre, SD 57501-1154

March/Apri l 2016 Page 23