S E P T E M B E R / O C T O B E R 2 0 1 5 I S S U E N O . 2 8 2

SAVE THE DATE

SDTLA ANNUAL SEMINAR &

PAC GOLF TOURNEY

May 12-13, 2016

Lodge of Deadwood

Inside this issue…… Welcome Barrister Editor Ruettgers—page 3 Rallin’ Justice—see page 6 Law School Times and much, much more…..

September/October 2015

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

THE INDICTMENT MILL

The American grand jury was created to provide an independent body to serve as a people’s watchdog against arbitrary and malevolent prosecutions. The modern grand jury would be unrecognizable to the Framers of the Bill of Rights. Today, grand juries are not a check on government, but a prose-cutorial tool. This writer has a lot of gray hair. So my experi-ence as a trial lawyer goes way back. When I started, many of us young budding trial attorneys gained valuable courtroom experience defending alleged criminals, in front of magistrates in prelimi-nary hearings. Prosecutors called policemen to the stand to testify regarding the charges our clients faced. The very competent magistrate judges marshalled the testimony. The direct examination was, of course, followed by cross examination, the ultimate truth finding function. Novel idea, I think. Sometimes the Defendant was bound over and, on occasion, the charges were dis-missed. Usually, because the prosecution had brought such a flawed case that even the magistrate believed there was no probable cause shown. Justice was served. The wrongfully accused was set free. The prosecutor certainly recognized by then that their case was fatally flawed. Now, our legislature has removed the right to preliminary hearings for misdemeanor charges, and a client charged with a felony rarely, if ever, is allowed to challenge the arrest through a preliminary hearing. Why, I wonder? Do you suppose the answer is that the prosecutor would prefer to skip a valuable adversarial step, and secure an indictment without question or resistance? Attorneys used to joke about winning default judgment hearings. Most attorneys win hearings where no one appears on the other side. Funny how that works. Those are civil proceedings in which the Defendant has every opportunity to appear and give his side. It is unthinkable that a default would be entered without the other party being notified and given an opportunity to be heard. When it comes to criminal allegations, most practicing lawyers would agree that one of the basic safeguards promised by the Fifth Amendment is a fraud. In fact, it may be the single largest flaw in our judicial system. No one gives it a second thought unless you are either a defense attorney or a prosecutor. The unfettered power of a prosecutor before a grand jury is simply a perversion of justice. First of all, the prosecutor decides which charges to submit. They then give an unanswered opening statement. It is then followed with the prosecutor’s single witness, the investigating officer. Grand juries commonly hear from only the investi-gating officer, eye witnesses or fact witnesses are rarely called. The testimony from the officer is usually hearsay, and some is hearsay upon hearsay. No wonder the running joke is “a grand jury could indict a ham sandwich.” In addition, exculpatory evidence is never presented by the prosecutor, and hardly inquired about. So the jurors never hear the other side. Not in argument; not in doc-uments; not in oral or written evidence. Wham, bam, thank you ma’am. Such wide-

Continued on page 15

September/October 2015 Page 3

Many thanks to Clint Sergeant, Raleigh Hansman, and Kasey Olivier for inviting me to serve as the new editor for the SDTLA Barrister. I am honored to serve, and hope that I can fill the shoes of our outgoing editor who did a terrific job for the past several years. Editing is, well . . . easy for most lawyers. We are by nature great critics, and excel at spotting typos, grammatical errors, and picking apart sentences to sharpen meaning. Drafting original content is much harder, especially content that does not translate into billable hours. Over the next year, I will be searching out SDTLA members, and non-members, as guest contributors. I encourage everyone who is seeking to increase his/her LinkedIn page, AVVO, firm blogs, or other social media outlet presence to consider writing for the Barrister. Writing and posting is one of the most effective ways of increasing your visibility and Search Engine Optimization (SEO), and hence, referrals. For those who are new to the practice of law, or to the area, getting “hits” on the internet can pro-vide you with self-referrals by new clients. It can also increase your AVVO score, and LinkedIn content score, which places you in front of other law firms and lawyers when someone is searching for local counsel and does a Google search to see what firms are located in a specific geographic area. It is not enough in the day and age of social media to just have a webpage and hope it pays off. You must add new and interesting content to make your webpage and social media presence generate referrals and clients. My firm and I are big believers in the power of SEO and social media. The time factor can make the process seem intim-idating, if not downright impossible. Here are some simple, yet effective steps to get you started on writing an article you can contribute to the Barrister, plus post on your website, AVVO, LinkedIn page and get the most bang for your buck by “recycling” content.

1. Find a topic or two about which you have a fair amount of expertise. It may be jury selection, opening state-

ments, client management, or some other part of the trial process. 2. Draft an article on the topics identified in step 1 for lawyers, and then redraft it for clients. Clients who are going

to trial need to understand some of the steps, techniques, and procedures that will happen in the courtroom. 3. Keep it short. Consider drafting an opening paragraph, a closing paragraph, and then the content in bullet

points. Bullet points are your friends when it comes to getting someone to read all the way through to the end of your article. Don’t believe me? Look how far you’ve read this bullet pointed list. You may not have read the paragraphs above, but as readers our eyes are instantly drawn to white space and bullet points.

4. Provide value to the reader. The greatest lesson I have learned as a practitioner is “give to get.” If you want to

attract clients, referrals from other attorneys, speaking and writing opportunities, then you have to give some-thing of value in order to get those opportunities. We as trial attorneys have valuable information that other at-torneys want to hear. Give a little, and watch how many emails and calls you get after publishing an article.

I will be reaching out to the SDTLA membership over the next few months soliciting authors and ideas for articles. If you are intimidated by the process, I will work with you to help you get published. As a former legal writing adjunct faculty member, I have some techniques and tips to help you accomplish the task and will make the time to help you with the process.

I look forward to working with you and to having every member of SDTLA get published in the Barrister at least once in the next two years.

EDITOR’s Notes & Comments Marie H. Ruettgers

September/October 2015 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 Lawyers Association as a service to its membership and as part of its continuing commitment to educate and promote professionalism among trial attorneys. 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 submissions 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 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 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 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 Decem-ber 1. Call for advertising rates.

SDTLA Calendar of Events

2015 October 23 Board Meeting & Meeting with Chief Justice November 19 Board conference call, 11 am CT/10 MT December 17 Board conference call, 11 am CT/10 MT

2016 January 12 – March 11 South Dakota Legislative Session January TBA Board Conference call for legislative issues February TBA Board Conference call for legislative purposes 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

September/October 2015 Page 5

Scott A. Abdallah Michael C. Abourezk Charles 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 Brad J. Lee

$120 ANNUAL Richard A. Engels Robert B. Frieberg

Alecia E. Fuller 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

September/October 2015 Page 6

RALLYN’ JUSTICE By Ryan Kolbeck

What else would any irrational person do with three free days in August? I chose to check out the 2015 Sturgis Rally of course. But for a person who has never ridden a motorcycle in my life I brought suits instead of chaps. The news reported hundreds of DUI and drug ar-rests, and I had heard about night and weekend court occurring during the Rally. For a crim-inal defense addict it sounded like a lot of fun. I like action, and I sought it out. I can only come up with this article. I know I may be accused of wanting to get money out of Sturgis bikers by “working” the Rally (similar to the guy selling a chicken leg on the street for $8.00) but I had no intention of making money. I went to experience the Sturgis experience. Instead of writing a chronology I have written this article from two perspectives. First, many

law enforcement officers were called to Sturgis to assist with the rally. The first and final portion of this article is from the law enforcement perspective. The middle portion of this article is from the perspective of the individual charged with a DUI offense during the rally. Both perspectives are entirely fictional, but also entirely possible. For those who do not practice criminal defense, to provide context two very big cases were decided in the criminal jus-tice world in the last six months. First, the United States Supreme Court in Rodriguez v. United States determined that any drug dog sniff which delays a traffic stop must be supported by reasonable suspicion. As a result, to detain an indi-vidual before a drug dog search the law enforcement officer needs a reason why the officer believed drugs were in the car. Next, in South Dakota v. Medicine, the South Dakota Supreme Court provided guidance regarding how law en-forcement should attempt to obtain blood from a motorist suspected of a DUI. As a result, in the absence of a person’s consent, these two cases provide the framework to determine whether an arrest for either marijuana or DUI is constitu-tional. A first-person perspective from a Highway Patrolman. As a highway patrolman, I do my job well. I respect the law and enforce it on a consistent basis, while treating people in a professional manner. I am aware of the Rodriguez and Medicine decisions as I have been trained to follow those decisions. In my experience outside of “Rally” time, it is typical for my reports to be sent to the State’s Attorney before a person is in Court. In Court, the defendant’s typically have a lawyer, either court appointed or someone they have retained. Sometimes I am brought into suppression hearings or jury trials and questioned by the defense lawyer. While I am in law enforcement, I understand and respect the role the defense lawyer plays in the process. I understand everyone has the right to a lawyer. It is a fundamental right. I, along with many additional law enforcement officers, went to Meade County to assist local law enforcement since nearly one million bikers were expected to flood the Hills during the 2015 Sturgis Rally. The bikers came, and along with them came hundreds of DUI and drug arrests. I know, since I arrested some of them. On my first day I did my job to the best of my ability as I am trained to do. I arrested an individual for DUI and adhered to the Miranda protocol, and followed that advisement with proper questions when seeking the person’s blood test. I fig-ured my reports would be reviewed at a later time and wanted to make sure my arrests were not able to be attacked by any defense lawyer. The last thing I wanted to do was end up defending my actions in Court in Sturgis. Heck, I don’t want to come back here and testify at a later date. I soon learned, however, that the Rally was different. First person account from the perspective of the Arrested Biker. I was arrested for Driving Under the Influence, but wasn’t taken to the regular Meade County Jail. Instead I was taken to a temporary jail in the basement of the Court-house. Across the hall from this temporary jail was the State’s Attorney’s office, with a courtroom in the middle. As I sat here tonight I learned I don’t have Court until 10:00 a.m. the next morning, with no opportunity to post bond before that time. One of the jailers told me that I should just plead guilty or talk to the states attorney, because I will only have to pay a fine to get out and go home. Speaking with the prosecutors seemed convenient, as the prosecutor’s office was in the same building. When I ask whether I could speak with a criminal defense lawyer, the jail staff informs that it can’t be arranged until after 2:00 p.m. the next day. I think to myself: that’s quite odd. How will I know what to expect at Court at 10:00 a.m. if I don’t have an opportunity to speak with a lawyer until 2:00 p.m.? I receive a stapled together

Continued on page 13

September/October 2015 Page 7

Etiquette for Taking a Verdict For a Fellow Trial Lawyer Observations and suggestions from Meierhenry Sargent LLP

Mark Meierhenry and Clint Sargent recently had an eminent domain trial in Watford City, North Dakota. Dennis Johnson and Ross Sundeen were their local counsel. After closing arguments, Mark and Clint packed up and immediately head-ed home, leaving Dennis to take the verdict. Dennis called Clint 90 minutes after the jury went out and said “I’m going up to take the verdict.” Mark and Clint drove in silence with long faces for the next 25 miles not wanting to say to each other what they both were thinking: “Not enough time for the jury to give any more than the State’s number.” After 20 minutes of agony, Dennis called again. “O.K., here it is.” And then relayed an amount significantly over the State’s number. Their experience (and a 9 hour drive) caused them to compose the following observations and sugges-tions during the remainder of their drive home:

If asking someone to take your verdict:

1. Do not ask anyone who lives or offices further from the Courthouse than you.

2. Do not ask someone who expects to be paid.

3. Do not ask if you are only returning to work at the office.

4. Do not expect the covering lawyer to babysit your client(s).

5. Explain what will be a WIN.

6. If you win, buy ALL drinks at the next social occasion with the lawyer.

If being asked to take a verdict for another:

1. Never refuse a reasonable request from a fellow trial lawyer.

2. Don’t expect to be paid.

3. Make sure you know what a WIN will be.

4. Do not call the trial lawyer until you KNOW the verdict, i.e. No calls stating “There is a verdict. I will run up-

stairs and then call you in 20 minutes.”

Proper reporting methods:

1. “WE won.” Followed by the amount of the verdict.

2. “YOU lost. Sorry.” Provide no commentary when reporting a loss.

Meierhenry Sargent LLP considers the above-guidelines of etiquette to be a “first draft” and any proposed changes

should be submitted to Sara for publication in the next issue.

September/October 2015 Page 8

September/October 2015 Page 9

Law School Times By Jon Hansen & Austin Hoffman SDTLA Co-Law Student Liaisons

Time to change or a change in times? Bloomberg’s Natalie Kitroeff recently reported that according to the National Conference of Bar Examiners, the average score for the July multiple choice portion of the bar exam was the lowest since 1988. As someone who will be taking the bar in less than a year, that is a scary, scary fact. The article, and a few others, blames several different factors. However, there is one thing they all tend to come back to: test takers that aren’t up to par for one reason or another. Some changes made to the test that some say makes it harder to pass, while some people say the exact opposite. The score needed to pass was raised and you also have to pass every portion of the test instead of just having on overall passing score. Civil procedure is also a new cornerstone of the exam. While Pennoyer is a name everyone with a law de-gree has heard a time or two, the ins and outs of Civil Procedure can be daunting to say the least. In the Bloomberg article, Kitroeff states that many law schools around the country are low-ering acceptance standards, which in turn is lowering bar scores. Even if those standards are being lowered, the higher tiered students are still being accepted. Therefore, it would only be a small percentage of students, most likely, that are pulling down bar scores. In the end, the question is what needs to be done now. Does the National Conference of Bar Examiners make the test easier? Do they leave it up to individual states and get rid of the national exam altogether? Do law schools start tightening acceptance standards? Or does it get left just the way it is? No matter what happens, there will be the same number of jobs waiting for students after graduation. A prospective employer will still be digging into a pile of applications and the best will find their way to the top. Asking the questions is the easy part. Coming up with the correct answer is where it gets difficult. But it is a conversation worth having. One thing is for sure, students are watching. It is a nerve-racking part of our lives and knowing the bar is looming weighs heavy on the shoulders. Knowing the trend is heading downhill only adds to that weight.

Greetings from the law school. Classes are now fully underway, and students are busy with their studies; trial team and moot court practice; and editing and cite checking. The law school is excited to once again host the South Dakota Supreme Court. The Oc-tober term of the Court will be held in the law school court room on October 5th, 6th, and 7th. The Court will hear nine oral arguments while in Vermillion. This is a truly exceptional learning experience for all USD law students. I can confidently express appreciation, on behalf of all USD law students, to the Court for its willingness to hear arguments at the law school. Observing the arguments before the Court was a highlight of my 1L year, and I know many other students have felt the same way.

Jon Hansen

Austin Hoffman

September/October 2015 Page 10

South Dakota Trial Lawyers Association

Notice of 2015-2016

MEMBERSHIP DUES

DUE July 1, 2015

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 atty 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.

September/October 2015 Page 11

NEW LAWYER REFERRAL LIST The South Dakota Trial Lawyers Association has compiled a list of aspiring young trial lawyers who are interested in accepting 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 independently 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.

Second Circuit Bethanna M. Feist 2121 W. 63rd Pl, #10, Sioux Falls, SD 57108 370-5088, Ext. 102 Family Law; limited Criminal Defense Melissa Fiksdal Jeff Larson Law 400 N Main Ave #207, Sioux Falls SD 57104 275-4529 Family Law, Criminal Defense Cesar Juarez Goosmann Law Firm 5010 S Minnesota, Sioux Falls 371-2000 Family Law & General Civil Litigation

Meghann Joyce Boyce Law Firm PO Box 5015, Sioux Falls, SD 57117 336-2424 Family law, Civil Litigation and Insurance Litigation

Eric J. Ronke Ronke and Feist Law Firm 2121 W. 63rd Pl, #10, Sioux Falls, SD 57108 370-5088 Business Law, Bankruptcy, Collections, Estate Planning, Land-lord/Tenant Fourth Crcuit Brian Baczwaski Baczwaski Law Office PO Box 454, Deadwood, SD 57732 717-0078 General Civil Litigation, Real Property, Business Law/Formation, Estate Planning Sixth Circuit Amanda Work Swier Law Firm 142 E 3rd St, Winner, SD 57580 842-3373

Criminal defense, family law, civil litigation, real property, and estate planning

Welcome New Members!!

Ashley Miles obtained her law degree in 2012 and continued to pursue a career in criminal justice as an advocate with the Minnehaha Public Defenders' Office. During her tenure as a public defender, Ashley zealously defended individuals' constitutional rights in cases ranging from petty misdemeanors to capital murder. Ashley joined Heidepriem, Purtell and Siegel, LLP, in May 2015, where she represents individuals in all areas of litigation, including civil and criminal matters.

Molly K. Beck, a native of Sioux Falls, is a May 2014 sterling honor graduate from the University of South Dakota School of Law. After law school, Molly clerked with the South Dakota First Judicial Circuit. Molly joined Fuller & Wil-liamson, LLP, upon the completion of her clerkship. Zachary T. Flood graduated USD Law School in 2014 where he was the president of the trial team. He clerked for the First Judicial Circuit for a year and began private practice at Morgan Theeler LLP in Mitchell in July of this year where his primary practice is civil litigation, personal injury, criminal, and domestic law. Catherine Chicoine is an associate at the law firm of Thomas Braun Bernard & Burke, LLP in Rapid City where she practices a wide variety of civil litigation. She graduated from the College of Saint Benedict in 2010 and the University of South Dakota School of Law in 2013. Prior to her current position, she served as a Law Clerk for the Judges of the Seventh Judicial Circuit of South Dakota.

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document of some type that resembles a directory of lawyers from Black Hills area towns. A couple of the names have stars written next to them in pen. People come back from the jail from speaking with the prosecutors. They tell me the State gave them an offer, and also that the prosecutor repeatedly told them what they are saying is not ‘legal advice.’ At approximately 8:30 a.m., the jailers call out those arrested for “misdemeanors other than DUIs” to be brought togeth-er to go to Court. These are basically all of those arrested for simple assault or marijuana charges. They also could not speak to a lawyer before going to court. Once assembled they all went upstairs. Shortly thereafter, one-by-one they come down with a different jailer. Some are getting their handcuffs removed and paying a fine, then walking away never to be seen again. Some are making calls to family and friends seeking money for a bond. Those who seek a bond are talking about when they have to be back to Sturgis for their next court dates. At approximately 9:30 a.m. it is time for those arrested for DUI to assemble. My name is called and I am brought to the Courtroom with the others, many in the same black Sturgis shirts and jeans we were arrested in. Some of us were just arrested in the last few hours and are now headed to Court. Once in the Courtroom, at 10:00 a.m. sharp the Judge appears. Standing in a semi-circle with at least twenty other defendants, I see tight security. At least five to eight sheriff deputies or jailers are in the courtroom. Everyone seems to be talking like old friends, but I remain silent out of fear as these people hold my fate in their hands. Standing here alone, I recognize that my future depends on what the prosecutor provides as an offer and the sentence of the Court. I listen as the Judge does a very thorough job advising me of my Constitutional and Statutory Rights. Among other rights, I am adequately advised on my right to a jury trial, the right to confront and cross-examine witnesses and my right to remain silent. I am also told multiple times that I have the right to a lawyer, but that will only occur after Court concludes. I attempt to look into the audience for a friendly face, but a deputy quickly tells me that I will be taken back to jail if I even turn around to look at my family and friends. Later my friends tell me that this is documented by a document hung outside the Courtroom, with the photo of a lawyer likely derived from a clip-art computer program. My friends told me the picture made the role of the criminal defense lawyer look very professional. The Judge advises us that when my name is called, one of four state’s attorneys will stand up and make me an offer to resolve the case. This plea-bargaining will take place in open Court. Since I did not seek out the prosecutor before Court, this will be the first time I hear from anyone about an offer. With no lawyer present (or available) I will have to make a decision to plead guilty or post bond. I am thankful that other people are called first. When the others go to the podium, one of four state’s attorneys stands up and notifies them of a plea offer. The system moves fast: the prosecutors have divided up the cases and are fully prepared on the facts of each case. In addition, all cases have blood tests results done within hours of the arrest. They must have a mobile lab set up in Sturgis specifically for the Rally. Some people plead guilty to DUI, while some are offered the opportunity to plead guilty to a reckless driving. All are given large fines. On DUI cases, the Judge suspends their driving privileges effective after they leave Sturgis, which seems nice but I wonder how they drive the rest of the way home. On reckless driving cases, the people are advised they may get into additional driver license problems when they get home. Some people seek a bond, and the Judge sets a cash bond (no surety allowed) and provides a Court date after the rally. I find it ironic, but I learn quickly that the amount of the cash bond is the same amount of the fine if I would just plead guilty. People are told the jail will assist them with getting money out of an ATM. My problem is that I need to go home, and I don’t really want to come back. When I hear my name I approach the podium. After this process I feel humiliated, embarrassed and worried about what will happen when I get home. As expected, one of the four state’s attorney’s stands up, states that I was pulled over for a traffic violation and states the results of my blood test. They tell me I am being offered the “standard” DUI

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offer, again with the caveat that they are not providing me with legal advice. They notify me of the large fine. The Judge then turns and asks me what I want to do. With the spotlight on, I have to make a decision. Do I plead guilty and walk out of here after paying a fine? Or do I attempt to post a bond and have to come back? I sure wish I had a lawyer to consult. In my time in Court, only one person was allowed the opportunity to speak with a lawyer and that was in the corner of the Courtroom. The Judge said that was a “rare” occurrence, as that person had some immigration questions. I am just from New Jersey, a citizen but I don’t get to ask the lawyer a question. I feel like I may still be drunk, or at a minimum hung over, and I just want to go home. Like many of the others, I plead guilty. It seems like that is what everyone wants me to do. Five days later: The Highway Patrolman perspective. As it is now day five of the Rally, my first ten DUI arrests have already pleaded guilty and been sentenced. Averaging two a day is great, as I am staying busy. My four marijuana ar-rests have also already pleaded guilty and been sentenced. I had a break yesterday and met some other patrolmen for coffee. We talked about how efficient the system is without criminal defense lawyers involved. I have learned that no one has been checking my reports. With all these arrests the Courthouse is quiet by 1:00 p.m. But without a criminal defense lawyer reading the reports, why should I continue to follow Medicine when I pull over that person for DUI tonight. Will I really be concerned about making sure he knows he has the right to refuse a blood test? Who will check to see whether I had a reason to detain that biker from Colorado pursuant to Rodriguez? With no real chance for a defense lawyer to be involved and with this rally over in a week, if I bend the Constitution just a little, will anyone know? These people aren’t from around here, will anyone care? Is this Rallyin’ justice, or Rally INJUSTICE? Writers Note: From talking with those who have more experience during the Rally, institutionally eliminating criminal defense lawyers has been a work in progress. Years ago defense lawyers were present and available for those who got arrested. Evidently some defense lawyers were seen as soliciting during the Rally, though nothing prohibits out-of-state lawyers from large scale advertising (billboards, etc.) through the Black Hills during this time. As a result, a decision was made that the defense lawyer was unable to go to the jail but could sit in the jury box during court. But having the law-yers in the courtroom became too loud and disruptive, and now that problem was eliminated by completely eliminating the pesky defense lawyer. The fundamental right to a lawyer is more American than the Sturgis rally and motorcycles. I do not claim to have the adequate answer for when a budget strapped county has to embrace big city problems for a few weeks, but the pendu-lum has swung too far against the fundamental right to counsel. While the Meade County Magistrate Judges adequately advised defendants of their right to counsel, the institution and realities of the Sturgis rally limited that right to be exer-cised. "Experience should teach us to be most on our guard to protect liberty when the government's purposes are benefi-cent...The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without under-standing." -- Supreme Court Justice Louis Brandeis Will anyone care?

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VERDICT REPORTED Zebrowski v. American Standard Insurance Company of Wisconsin (a member of the American Family Insurance Group) 51CIV14-631,

Seventh Judicial Circuit, Pennington County Claim for underinsured motorist benefits. Experts for Plaintiff: Dr. Chris Dietrich, Dr. Luke Mortimer Expert for Defendant: Dr. Richard Strand (ExamWorks). $400,000 jury verdict for Plaintiff Remarks: On October 6, 2011, Greg Zebrowski and his wife Lilla Zebrowski were traveling north on Haines Avenue in Rapid City, South Dakota, when a drunk driver crashed his vehicle into the back of the Zebrowskis’ vehicle, forcing them off the road. Greg Zebrowski suffered injuries to his neck and a torn meniscus in his right knee, requiring knee surgery. His doctors testified he will need injections in his neck for the rest of his life as well as knee replacement surgery. After settling with the tortfeasor ($100,000 liability limits), Zebrowski made a demand to American Family for the limits of his underinsured motorist policy ($250,000 per person), which was an additional $150,000. American Family’s initial offer was zero. Shortly before trial, American Family made an offer of judgment for $50,000. The jury awarded almost exactly what was requested for past and future medical expenses and wage loss, and then awarded additional amounts for disability, pain and suffering, and loss of enjoyment of life. Name of submitting attorney: Brad Lee, Plaintiff Attorney

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SOUTH DAKOTA TRIAL LAWYERS ASSOCIATION Board of Governors

Meeting Minutes August 13, 2015

USD School of Law

In attendance: Clint Sargent, Aaron Eiesland, Raleigh Hansman, McLean Kerver, Kasey Olivier, Josh Wurgler, Stanton Anker, Jason Krause, Amy Bartling and Sara Hartford. Participating by phone: Steve Beardsley, Ryan Kolbeck, Nate Oviatt, Casey Fideler and Mike Beardsley. A quorum was present. President Beardsley called the meeting to order and asked for approval of the June 17 minutes. Anker made a motion to approve as presented, Olivier seconded. Motion unanimously carried. Hartford gave the treasurer’s report as Kolbeck joined the meeting late. Account balances are $73,270 in Operations, $5,011 in Savings, $5,110 in the Reserve Fund and two CDs for $10,000 each. The PAC account has a balance of $27,422. Bartling made a motion to approve the treasurer’s report, Kruase seconded. Motion unanimously carried. Under old business, Olivier asked to table until later this year the issue of court-appointed attorneys for minors in a do-mestic case as the Family Visitation Center is still gathering data. Issue was tabled until further notice. Beardsley reported there is not any new information regarding the contributory negligence legislation. Beardsley opened the discussion for topics to bring to the Chief Justice’s attention. A list was developed and he will ar-range a meeting date with the Chief Justice. Under new business, Marie Ruettgers was selected as the new Barrister Editor.

Next Board meeting is TBA. Meeting adjourned.

spread grand jury subordination to the prosecutor controlling the proceeding allows the indictment of anybody, at any time, for almost anything. This flawed structure can only be characterized as a blatant violation of due process. According to Transactional Records Access Clearinghouse, “of 785 federal grand juries in 1991, grand jurors voted against the prosecutor in only sixteen of the 25,943 matters presented to them, a rate of 99.9% agreement.” David Burnham, Above the Law: Secret Deals, Political Fixes, and Other Misadventures of the U.S. Department of Justice, note 18, at 360 (1996). Isn’t it time we raise the issue and at least attempt to be fair to the accused? Isn’t it time to return to the preliminary hearing procedure so that the judge can ferret the unsupportable cases that cannot establish probable cause? It will be few that judges dismiss – just like it was 20 and 30 years ago. But, occasionally, when justice required, the case was dismissed. Another alternative recently adopted by the state of Hawaii involved the hiring of a “grand jury” lawyer. This lawyer ex-plains to the grand jury: (1) the elements of the criminal charges; (2) the standard of probable cause; and (3) answers any questions the jurors may have. This alternative may empower grand juries to be independent investigative bodies, like they once were. The “grand jury counsel” could, in the interests of justice, decide to disclose exculpatory evidence or inform jurors that certain evidence was obtained in violation of the Fourth Amendment and would be suppressed at trial. Hawaii reforms seek to strike a balance of power between the prosecuting attorney and the panel members. In no other instance is there a constitutional guarantee to deprive notice and opportunity to be heard. In no other in-stance do we purposely restrict reasonable cross examination, which is the most important truth finding exercise we have. Isn’t it time we change this archaic procedure?

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