Louisville Law Examiner
Serving The University of Louisville School of Law Community
Volume 8, Number 2 Louisville, Kentucky, October, 1982 Circulation 4500
Photo by Mark Ashburn
ATTORNEY DON L. COX pictured in his office during a recent interview.
Competition Concludes
Night student
Wins Pirtle-Washer
By Don Williams
On October 16, the final rounds of the
1982 Pirtle-Washer Moot Court Com­petition
were completed, with third-year
night student, Kathy Shortridge emerg­ing
victorious over second-year day stu­dent,
Culver Halliday. This marks the
eighth consecutive year of female
domination in the School of Law's oral
advocacy competition. This year's par­ticipants
debated whether an
"employee-at-will" has a cause of ac­tion
against an employer for their
wrongful discharge from employment
for alleging improper waste disposal.
Ms. Shortridge advanced to the cham­pionship
round by defeating Tom
Atkins, while Mr. Halliday was the win­ner
over Tom Stone. Throughout the
earlier rounds each contestant was re­quired
to argue both appellant
(employee) and appellee (employer)
positions. In the championship round
Ms. Shortridge delivered the appellee's
arguments and Mr. Halliday the ap­pellant.
As the winner, Ms. Shortridge will
receive a full, one semester scholarship,
while Mr. Halliday will receive a
scholarship for half a semester.
The Moot Court Board was very ap­preciative
of the fine efforts of the
volunteer judges and bailiffs.
The five judge panel in the champion­ship
round consisted of attorneys Mikell
McMurry, Gary Gardner, Ronald
Meredith, and Ernest Woodward, along
with University of Louisville law
professor, Carl Warns.
Cox and the Controllers
Alumnus Handles
PATCO Appeals
By John Schaaf
When Ronald Reagan fired 12,000 of
the nation's air traffic controllers last
year, the move was seen as decisive and
politically popular.
It was also illegal, according to a
Louisville attorney who is representing
about 60 of the fired controllers.
Donald L. Cox, a partner in the firm
of Lynch, Sherman and Cox, represents
nearly all of Kentucky's former con­trollers
and this month will present their
cases to the U.S. Merit Systems Protec­tion
Board in Washington. The Ken­tuckians
will be before the Board as part
of a mass hearing involving about
10,000 of the fired controllers who have
appealed their dismissals.
Cox thinks the government acted im­properly
in firing many of the con­trollers
and he said about 25 percent of
them will probably get their jobs back
after this month's hearing.
"The government took a statute
designed to give due process to its
employees and turned it on its ear,'' Cox
said.
Cox, a 1970 graduate of the Universi­ty
of Louisville School of Law, said
federal Jaw guarantees a government
employee at least seven days to respond
when the government proposes an action
against that employee.
The air traffic controllers were not
given the opportunity to respond before
they were dismissed, according to Cox.
Reagan issued a statement on August
3, 1981, saying he would fire any con­troller
not reporting to work within 48
hours. Then, two days later, the Federal
Aviation Administration (FAA) im­plemented
Reagan's deadline and sent
letters of "intended removal" to the
controllers who had not reported to
work.
. Cox and other attorneys for the con­trollers
are arguing that this chain of
events indicates that Reagan and several
other senior administration officials
decided to punish the controllers by fir­ing
them, and this was a predetermined
policy decision which was made prior to
the issuance of the required "notice of
intended removal" and before any of
the controllers had the opportunity to
reply.
Controllers who wanted to return to
work after the 48-hour deadline expired
were not allowed to do so, Cox said,
even though their seven day notice
period had not expired.
This constituted an "unlawful suspen­sion''
of the controllers puring the
notice period, according to Cox.
(Continued on page 6)
Photo by Charles Herd
1982 PIRTLE-WASHER WINNER Kathy Shortridge listens intently as
runner-up Culver Halliday delivers his arguments.
...
2 Louisville Law Examiner, October, 1982
Louisville Law Examiner
EDITORIAL BOARD
Bill Savarino
Editor-in-Chief
Ruth Ann Cox
Managing Editor
Steve Durham
Mike Kirk
Associate Editors
Mark Ashburn Rich Milster
Photographic Editor Brandeis Brief Editor
Richard Head
Business Manager
STAFF
Crystal Collins
Jon Hardy
Charles Herd
Judy Hoge
Steve Jamrozy
Ravi Myneni
John Schaaf
Catherine Spalding
Neil Ward
Judge MARLIN M. VOLZ, Advisor Professor LAWRENCE W. KNOWLES, Consultant
The Louisville Law Examiner is published seven times during the academic
year in the interest of the University of Louisville School of Law community.
_ Articles are invited from faculty members, students , and mem]lers ofJhe b
who wish to do freelance work. Any proposed article should be cleared with
the Editor as to topic and length.
Add · <'~s all communications to The Louisville Law Examiner, School of
Law, University of Louisville, Louisville, Kentucky 40208. Phone:
502-588-6398.
KRS Mental Health Revision
By Mary Ann Main
As of July 15 1982, the new Kentucky
Mental Health Hospitalization Act
became effective, bringing about a long
awaited change in the substance and
procedure of Kentucky's mental health
proceedings.
Under KRS 202A.014, the jurisdiction
over involuntary commitment cases has
been shifted away from circuit court to
district court. Every county has at least
one district judge, so the change was
made to expedite the processing and the
appeals. Contingent with this change, is
the fact that the County Attorney now
has the duty to prosecute these cases in­stead
of the Commonwealth Attorney.
Along with this idea of expediting the
procedure, are the two major defini­tional
changes. First, the definition of
"danger" or "threat of danger" has
deleted the requirement that the physical
harm or threat of physical harm be im­mediate.
The second change is a new
definition of a "qualified mental health
professional." In an attempt to increase
the number of individuals who can per­form
mental evaluations for involuntary
commitments, the term includes: 1. A
licensed physician; 2. A psychiatrist cer­tified
or eligible to apply for certification
by the American Board of Psychiatry and
Neurology; 3. A psychologist approved
by the Kentucky Board of Examiners of
Psychology to make suc.h evaluations; 4. ·
a licensed registered nurse with a
master's degree in psychiatric nursing
and two years clinical experience; and 5.
A certified social worker licensed for the
independent practice of clinical social
work.
As far as procedural changes are con­cerned,
when a person is presented to a
hospital, he/she must be examined
wi~hin 24 hours and the physician must
certify to the court within that 24 hours
that "in his opinion the individual
should be involuntarily hospitalized." If
a petition is not filed for involuntary
hospitalization, the person must be
discharged within 72 hours . Under
202A.071, if the respondent is detained,
the preliminary hearing shall be held
within 5 days from the day of detention.
The final hearing shall be held within 21
days of the day of detention.
The proof and procedural re­quirements
are otherwise basically the
same. Criteria for involuntary
hospitalization are that such person be
mentally ill to the extent that: 1. He/ she
presents a danger or threat of danger to
himself, family, or others as a result of
the mental illness; 2. He/ she can
reasonably benefit from treatment; and
3. Hospitalization is the least restrictive
alternative mode of treatment presently
available.
When handling any problem in this
area, the new statute should be con­sulted
for further changes.
Brandeis Brief The "Brandeis Brief" Series is an exclusive feature of the Examiner. Each "Brief" in the series is
authored by someone who is particularly qualified to comment on the topic we have chosen .
For the 1982-83 academic year, our " Brandeis Briefs" will cover an array of topics under the broad
rubric of " Emerging Legal Issues." By this change in our approach to th e series, we hope to avoid
repetition and believe that this year' s series will in turn prove to be more provocative and interesting to
our readers.
We are confident that our readers will find some interesting glimpses of the future of the law and
the profession in the 1982-83 series. If you feel inclined to comment on any of the ideas you encounter
in the "Briefs," please do. We heartily welcome your letters.
G. William Brown, a 1962 graduate of
the University of Louisville School of
Law, was appointed United States
Bankruptcy Judge for the Western
District of Kentucky on August 2, 1982.
Prior to his appointment, Judge Brown
was engaged in private legal practice for
twenty years in the firm of Brown &
Fowler, P.S.C. Judge Brown has
This nation's law of bankruptcy was
originally enacted as the Bankruptcy Act
of 1898, and since that time has been
continually updated and revised, most
extensively so through what is known as
the "Chandler Act" of 1938. In 1965,
officially recognizing that our laws on
the subject of insolvencies was inade­quate
in view of the increasingly com­plex
needs of consumer and commercial
financing, Congress undertook the task
of modernization of the bankruptcy law.
After eight years of extensive study,
debate, and comprehensive hearings,
President Carter, on November 6, 1978,
signed into law the Bankruptcy Reform
Act of 1978, bearing a generally effec­tive
date of October 1, 1979. The
Bankruptcy Reform Act is commonly
known as the Bankruptcy Code, .as
distinguishable from the former law,
now referred to as the Act.
One of the strengths of the Code is
that it grants to the bankruptcy court
broad jurisdiction over bankruptcy­related
matters by, in effect, continuing
the procedure instituted under the
Dischargeability Act of 1974. Prior to
that time, while the right to a discharge
was determined by the bankruptcy
court, the state courts determined the ef­fect
of that discharge in bankruptcy.
This split of procedure was expressly
recognized in the Federal Rules of Civil
Procedure which state that a discharge
in bankruptcy is an affirmative defense
and must be specifically pled. The abuse
that flowed out of the state
court/bankruptcy court separation was
that debtors erroneously relied upon
their defense of discharge to creditors'
claims and did not defend against the
state court actions which necessarily
resulted in the entry of numerous default
judgments.
The Dischargeability Act granted to
the bankruptcy court the license to
determine the right to, as well as the ef­fect
of, relief in bankruptcy. The Code
continues this practice by combining the
two aspects of discharge and allowing
the bankruptcy court to determine the
effects of discharge relief through the
vesting of power in the bankruptcy
court, within certain areas, to litigate
those issues that previously had been rul­ed
upon by state courts.
The automatic stay provision is new
under the Code and indirectly confers
jurisdiction in the bankruptcy court over
matters not previously within its realm
by bringing to a halt all judicial, ad­ministrative,
and other processes against
debtors and comakers unless through
appropriate proceedings in bankruptcy
court the stay is lifted under §362.
Perhaps the greatest strength of the
Code is the inclusion of the lien
avoidance remedies. The Code further
provides debtors with the tools for effec-previously
served in the capacity of stan­ding
Chapter 13 Trustee for the Western
District of Kentucky, and has taught
classes at the University of Louisville
School of Law over the last seven and
one-half years in the areas of bankrupt­cy
and commercia/law. Judge Brown is
a member of the Louisville, Kentucky
and American Bar Associations.
iing rehabilitation under Chapter 13
through not only lien avoidance, but
also the ability to modify the rights of
secured creditors as provided in § 1322.
In addition, confirmation of the plan
under Chapter 13 arrangements is man­dated
by §1325 provided the criteria
therein is met, which is a departure from
the provision under the Act which gave
creditors the right of acceptance or re­jection
of the plan. An area of criticism
regarding the Chapter 13 provisions is
the dissimilar treatment accorded non­dischargeable
debts in a 13 case as op­posed
to the treatment of these debts
under a Chapter 7 or 11 case. In a
Chapter 13, there exists only two bases
for a finding of nondischargeability as
opposed to the nine grounds affecting a
Chap.tet:.. LL or-.7 filing-located...i.n...§523....
As with any new enactment, various
individual provisions of the Code have
been challenged in the courts, but the
case of Northern Pipeline Construction
Co. v. Marathon Pipe Line Co., et al.,
decided by the United States Supreme
Court on June 28, 1982, strikes at the
very heart of the Bankruptcy Code, and
indeed at the underlying structure of the
system of bankruptcy courts which is to
administer that law.
As initially issued, the Pipeline case
evidences a split in the Supreme Court
although each segment relies upon
somewhat analagous approaches. While
the majority opinion appears to hold the
Code in its entirety unconstitutional, in
reality the focus of the holding is upon
the jurisdictional grant to the bankrupt­cy
court.
The impact of the Pipeline case is
directed to the jurisdictional grant con­tained
in 28 U.S.C. §1471, which essen­tially
grants to the bankruptcy court per­vasive
jurisdiction over "all civil pro­ceedings
arising under Title II or arising
in or related to cases under Title II," The
Supreme Court found that this broad
grant of jurisdiction exercised by judges
who do not enjoy lifetime tenure and
protection against salary diminution is
violative of Article III of the Constitu­t:
on.
This case brings into focus and ques­tions
the expansion of discharge
jurisdiction. In effect, a literal reading
of the Code would show that the
bankruptcy judge has even greater
jurisdiction than the district judge since
the former would rule on cases to be
reviewed on appeal by that district
judge. Thus, indirectly, the district
judge, through the appellate process, ex­ercises
jurisdiction also over cases over
which he did not have direct jurisdiction
in the past.
A literal reading of the Pipeline opi­nion
would indicate, however, that this
(Continued on page 3)
Brandeis
Brief
(Continued from page 2)
ruling of unconstitutionality will have
no effect on current or past debtors, and
will take effect only upon the expiration
date, as now extended by the Supreme
Court upon application of the Solicitor
General, to December 24, 1982.
At the current time, Congress in
response to the Pipeline mandate is con­sidering
several proposals to satisfy the
Supreme Court challenge. One approach
is to elevate the bankruptcy judge to Ar­ticle
III status by granting lifetime ten­ture
and salary protections. A second
tack is to restructure the jurisdictional
grant now in the Code by in essence
reverting to procedures that were in ef­fect
under the Bankruptcy Act - the
summary-plenary distinction. This
bifurcation of jurisdiction placed in the
state court matters essentially rooted in
an interpretation of state law and only
incorporated by reference in the
Bankruptcy Code. .
There is a further movement in Con­gress
to implement certain substantive
Louisville Law Examiner, October, 1982
changes at the same time giving con­sideration
to resolving the jurisdictional
dispute. It is anticipated that whatever
course of action Congress takes to bring
the Code into conformity with Constitu­tional
guidelines, this will not encom­pass
the suggested substantive changes
but will address solely the revision of the
jurisdictional grant. It is believed that
the substantive issues will be addressed
by Congress, if at all, on a later date. It
is mentioned here only in that those ad­vocating
such substantive changes ap­pear
to be attempting to gain conces­sions
in these areas in return for support
of the jurisdictional revision or the Arti­cle
III elevation, or the nonsupport
thereof. ·
It may be noted that the Code changes
substantially the process of appointment
for bankruptcy judges. Under the Act
such appointments were effectuated by
the district judges, and the term of ap­pointment
was for a period of six years.
Under the Bankruptcy Reform Act, this
process was changed to take effect in
1984 in that such appointments would be
made by Presidential nomination,
Senate confirmation, and would extend
for a term of fourteen years. Transi­tional
appointments from the effective
date of the Code until 1984 were to be
made by the district court judges with
the term of these apppointments to
automatically expire in 1984, thus these
specific appointments could not even ex-tend
for the initial six-year period.
While the proponents of life tenure
and the advocates of retaining the
presently effective system have both
made strong arguments in support of
their respective causes, it is doubted that
the supporters of Article III status for
bankruptcy judges will prevail.
Historically, such status is only achieved
as a result of thorough and exhaustive
study of justification and need therefore,
and has not been achieved as a result of
a Supreme Court decision. It is far more
likely that the outcome of the Congres­sional
modification will be a restructur­ing
of the jurisdictional grant.
Further, while there is great merit in
having a bankruptcy adjudicate all
issues that relate to or arise under a
bankruptcy case under administration,
to extend Article III status to bankrupt­cy
judges in order to achieve this
desirable end would still result in
broader jurisdiction being exercised by a
bankruptcy judge than that which is ex­ercised
by the district judge since, as
written, the Code does not mandate the
requirements of diversity of citizenship
or impose the limitations of the amount
in controversy.
Collateral to this issue is the forceful
argument that the rights or duties of
third parties relative to issues flowing
out of a bankruptcy filing and rooted in
an interpretation of state law should best
be determined in the state court forum,
NIGHT and DAY
Another
Six Minute
Mile
John C. Peabody
4tb Year Night Law Student
Tuesday, October 12, I left home at
7:40 a.m. Now that there is so little
sunlight, I leave a lamp on. It's depress­ing
to leave a dark house, go to
work/school, and then return to a dark
house.
No computer print out =hell.
Directed 253 people Monday. "Were
they arrested last night? Is the person a
juvenile? Did the case go to the grand
jury? What is the last name of the accus­ed?"
I knew on Monday that there was
not going to be a print out on Tuesday.
At 8:30a.m. a woman comes up and
asks about Mr. Doe. She has the worst
looking black eye that I've seen in the
2 Yi years that I've worked here at the In­formation
Booth in The Hall of Justice.
I inquire whether she thinks she wants
a picture of herself to be taken. She
mumbles a reply. I call City Police.
"Hello, my name is John, I run the in­formation
booth in the Hall of Justice. I
have a woman in front of me who has
had the hell beaten out of her, sorry to
be so abrupt, I have five people in front
of me waiting to find where they are sup­posed
to be - do you take pictures?"
After five frustrating transfers, I'm
told that the police officer must request
a picture to be taken.
I call Spouse Abuse. Pam Johnson
(nice person) is on another phone. I ask
about pictures. No problem. Can do. I
look to give Ms. Doe (I didn't notice if
she wore a wedding band) info. She is
gone.
I direct the five people waiting, then
go down to arraignment court. Ms. Doe
is near tears and asks if she can talk to
the Judge. I go in and ask the Judge if he
will move a case up to be heard because
she appears to have been beaten up. He
says he'll do the last few attorney cases
and then call Ms. Doe's case. (Why
doesn't the Judge call it it now, but bite
my tongue.) I tell her the case will be
called soon. She states that she hopes
Mr. Doe isn't going to go to jail.
(What!) I get her a place to sit and
Kleenex. (I always keep Kleenex.)
Ran into the Judge later. He said that
she asked that Mr. Doe not go to jail.
That she had not taken out a warrant.
The police arrested him. The Judge
stated that Mr. Doe had been convicted
of assault three times and acquitted of
murder.
I've got to learn to listen better. I had
forgotten why I call warrant court
"Love Me/Hit Me." Ms. Doe did not
want her picture taken and did not want
to prosecute!
What a start! And with only three
minutes gone it's on to law school for
the remaining half mile.
That little intra to part of my day is
simply for empathy as to why so little
tact is used for my following proposals:
1. Make it mandatory for teachers to
be taught how to teach. Methodology.
The majority of the teachers have no
notes. How can anyone teach without
notes?
2. Make a greater effort to focus
classes on bar courses. This is my fourth
and final year. Up to this semester I have
taken only bar courses and my writing
requirement. This semester I'm taking
five courses of which only two on the
bar exam. There simply aren't any
other bar courses offered this semester
that I haven't taken.
3. Supply sample answers to the ex­ams
which are on file. It is helpful to
look at old exams. However, is there any
doubt that having the answers would be
an aid.? Do answers exist?
The argument against this probably
will be that there is only so much
material on which one can be tested. The
yang side is that we are trying to learn
application, not regurgitation.
4. Let's stop the silly award students
give to the "best" teacher.
Students have the wrong incentive. Is
it likely that the teacher who gives the
largest percentage of D's and F's will be
selected?
5. Compose a questionnaire to be
given to alumni to find out what was
right/wrong about law school. A great
deal of the fear of retaliation would ap­pear
to be removed and some honest
feedback could be acquired.
6. Require a tour of significant
buildings (Hall of Justice, Federal Court
building, etc.). What good is it to learn
about the law if one doesn't know where
to practice it?
7. Put barbed wire and larger pyran­catha
on the east lawn of the law school.
People are lazy. They save 45 steps by
walking on what used to be grass.
In closing, people have asked me
"How is law school?" I've frequently
replied that irs like running a "six
minute mile." Most anyone can do it,
but many get bored/tired or simply
decide that it's a waste of energy.
Perhaps if some of these suggestions
were implemented, more alumni would
contribute monetarily and verbally in a
positive manner.
MOVING? Please send us your New Address
at least four weeks in Advance.
3
or at the district court level where ap­propriate.
Whatever the outcome, it is im­perative
that the issue be resolved at the
earliest possible date in order to remove
uncertainty as it exists relative to practi­tioners
before the bankruptcy court as
well as bankruptcy judges who are
presently called upon to exercise this
questioned jurisdiction during the
pendency of the Supreme Court stay, as
extended.
·The substantive provisions of the
Code have achieved sibnificantly the in­tended
result of affording to the debtor
the opportunity for rehabilitation and
the opportunity for a "fresh start." The
Code has accomplished its intended ob­jective
in that it has updated the law of
bankruptcy in light of the current rela­tionship
existing between creditors and
debtors, as opposed to the previously
fragmented and frequently amended
version ·of bankruptcy relief which was
in practice before October" 1, 1979. The
stigma of bankruptcy involvement has
now been greatly diluted. In view of our
economical and sociological departure
from the "cash and carry" system, con­sumer
financing has become a way of
life, and we will continue to see those in
financial distress for whr.tever reason
availing themselves of the relief afforded
under the law of bankruptcy.
"Racehorse" Hayne~
fails to make
Post Time at
K.A. T .A. Conference
By Don Williams
Kentucky's Academy of Trial
Lawyers held its annual conference at
the Marriott Inn, Lexington, Kentucky
on October 14-16. The event featured at­torneys
from all over the United States.
As is his custom, featured speaker
Richard "Racehorse" Haynes failed to
appear. Some guests commented that
this was the third time Haynes had failed
to appear in Kentucky seminars. In all ·
other respects, the conference was a re­sounding
success.
Louisville's School of Law was well
represented at the conference. In atten­dance
were attorneys Kevin George,
Mike Luvisi, and Jeff Wade, along with
students Don Battcher, Barry Willet,
Ruth Ann Cox, Carl Frazier, and Don
Williams. Featured Louisville speakers
were William Hurley, Ann B. Oldfather,
and Judge Charles Leibson. Even Ken­tucky's
Governor, John Y. Brown drop­ped
by to share some champagne with
the assembled notables. However, the
Governor did not get the chance to ad­dress
the group as the speaker schedul­ing
was tight and allowed for no inter­ruptions.
Perhaps the best part of the con­ference
was the address by Scott
Baldwin, a Texas ·attorney and member
of the "million dollar" attorneys who
have enjoyed great success in trial prac­tice.
Baldwin presented a full
demonstration of techniques to· effec­tively
diminish the value of opposing
testimony from an expert witness. He
suggested that one should never ask the
witness a "why" question on cross exam
as this serves to allow the witness to ex­plain
his position.
The conference ended with a stirring
talk by Stanley E. Preiser, a West
Virginia attorney who is a favorite
among KATA members . Preiser
demonstrated the value of visual aids in
connection with cross examination. His
address was not only informative, but an
excellent example of oratory technique.
..
•
4 Louisville Law Examiner, October, 1982
.Photos by Mark Ashburn and Charles Herd
Pictured Above, Louisville Attorney Larry Franklin, as he shares some tips on
trying a personal injury suit. Below left, Judge William Gant of the Kentucky
Court of Appeals. Below right, Justice John S. Palmore as he lectures on the
Criminal Justice System.
School of I~aw Holds
Fall Conference
By Bill Savarino
During the weekend of October 8,
9 and 10, the School of Law played host
to this year's Fall Conference for the
Sixth Circuit members of the Law Stu­dent
Division of the American Bar
Association. SBA Presidents and LSD
representatives from law schools in
Ohio, Michigan and Kentucky,
journeyed to U of L for the opportunity
to exchange ideas and hear speakers on
various topics of legal interest. Each lec­ture
was open to the entire Law School.
U of L's Don Shar_p, Lt. Governor of
the Sixth Circuit, organized an assembly
of speakers that included attorney
Thomas E. Clay, who spoke on trial
preparation and technique, and Chair­man
of the Kentucky Parole Board, H.
Rothgerber, who talked about parolling
the rapist.
In addition, Judge William Gant of
the Kentucky Court of Appeals
enlightened those present on effective
appellate advocacy. Judge Gant stressed
the importance of a well prepared brief.
"The Court really relies on it," he said,
and went on to give some tips for brief
organization. "The appendix to your
brief," the Judge advised, "can be very
valuable and should not be overlooked.
Include things in the appendix that in the
interest of efficiency should not be con­tained
in the body of the brief."
Citing his many years on the Court of
Appeals, Judge Gant summarized the
keys to an effective appellate practice: 1.
Preparation of trial with appeal in mind;
2. Proper preservation of error; and 3.
Following the procedural rules necessary
for a proper appeal.
Also on hand was U of L Law School
alumnus Larry Franklin, who gave a
stirring presentation of the in's and out's
of trying a personal injury suit.
Franklin, a past President of the
Louisville Bar Association, shared with
a captivated audience his ideas,
thoughts and favorite tactics that has
made him one of the leading personal in­jury
attorneys in the state. Known for
his ability to evoke large jury awards,
Franklin .stressed the importance of
relating to the jury. "Speak the language
of the people," he urged, "and above all
else, be yourself; a jury can tell when
you're being false."
Franklin believes that it is vitally im­portant
to know and understand each
client and in particular, the impact their
injury has had on them. He suggested
that the attorney spend as much time as
possible with injured clients, following
them through a typical day to see
how their lives have been altered. The at­torney
must fully comprehend and ap­preciate
the magnitude of a client's in­jury
before he can effectively com­municate
it to a jury.
Also featured as a speaker was the
Honorable John S. Palmore, who
recently stepped down as the Chief
Justice of the Kentucky Supreme Court.
According to Justice Palmore, who
spoke on crime and criminal justice, the
courts are not to blame for today's high
crime rates. "The function of the
judicial system is not to ~revent rime,
but to screen cases so that no one goes to
jail without due process of law." Justice
(Continued on page 5)
Louisville Law Examiner, October, 1982 5
Fall Conference
(Continued from page 4)
Palmore went on to say that society's
best alternative for lowering crime is an
effective police force, and that if the
public would be willing to bear the huge
costs of employing additional
policemen, crime could possibly be
eliminated.
Justice Palmore questioned the role of
judges, prosecutors and defense at­torneys
in our current criminal justice
system. He felt that judges and attorneys
should not bend to public pressure to
assume roles, like that of criminal in­vestigator
or psychologist, that they are
not qualified to handle. The Justice sees
Professor Honored
this pressure as. stemming from the
public's misconception of judges and at­torneys
as cure-alls for society's pro­blems.
In addition, Justice Palmore would
like to see general constitutional prin­ciples
taught in highschools so that
young people will know what society
demands and what rights we have as
U.S. citizens. According to the Justice,
such constitutional principles are often
at the heart of a criminal proceeding and
are easily misconstrued as the "mere
technicality" that allows a criminal
defendant to go free.
Aprile Elected to
NLADA Board
By Ruth Ann Cox
U of L Law School alumnus and part­time
professor, J. Vincent Aprile II,
was elected this month to the Board of
Directors of the National Legal Aid and
Defender Association (NLADA).
NLADA is comprised of public
defenders and attorneys who render
legal aid to clients on civil matters. Its
national headquarters are located in
Washington, D.C.
Aprile, the first Kentuckian to be
honored by election to NLADA's
Board, originally became involved with
the Association in October 1981 when
elected to its Defender Committee. The
Defender Committee's job is to make
recommendations to the Board of Direc­tors
about issues which public defenders
face on a national level. Every Board
member is required to participate in one
of NLADA's active committees.
For the past two years Aprile has
chaired NLADA's Defender Amicus
Committee. Its primary concern is the
defendant's Sixth Amendment right to
counsel in criminal cases. The committee
writes amicus briefs, which seek to in­fluence
case decisions on issues not
asserted by parties named in the suit.
Aprile's full time job is General
Counsel/Training Consultant to the
Department of Public Advocacy. In this
capacity, Aprile provides statewide
representation for criminal defendants
at the trial and appellate levels and at in­voluntary
committment hearings. He is
a legal supervisor to the civil attorneys
within the Department of Public Ad­vocacy
who focus on developmental
disability law. As General Counsel,
Aprile also defends the department
against suits and submits ethical opi­nions
to department attorneys.
All of the above work would be
enough to leave most people with little
or no spare time. However, Aprile has
been training attorneys on criminal trial
techniques on a regional level since 1976,
and a national level since 1978. This
requires traveling to various cities for
seminars and training sessions, and
recently, Aprile's schedule of such
events has been quite full.
In February, Aprile conducted a
search and seizure workshop for the
Criminal Defense Attorneys of
Michigan in Detroit. The presentation
was videotaped for incorporation into a
statewide travelling workshop. Aprile's
schedule for February also included a
lecture to the Louisville Bar Association
on ethical questions for criminal defense
attorneys. That same month, Aprile ap­peared
before the New York State
Defenders Assocation with a presenta­tion
entitled, "Sentencing: The
Neglected Critical Stage."
In March, Aprile was a featured
speaker at the Indiana Public Defenders
Association's Trial Practice Institute in
Indianapolis. Also in March, The Na­tional
College for Criminal Defense
(NCCD), a prestigious trial practice in­stitute
for criminal defense attorneys,
conducted a regional program in
Chicago at which Aprile spoke on
ethical problems for criminal defense at­torneys.
At the Kentucky Bar Association's an­nual
convention held in Lexington in
May, Aprile spoke on the topic of
"Preserving Error for Appellate
Review: Insights on Important Ethical
Considerations for Defense Attorneys."
Also in May, Aprile spoke at the Depart­ment
of Public Advocacy Seminar in
Louisville. In addition to giving an
ethics lecture, he reviewed significant
United States Supreme Court decisions
in the last calendar year and made an ad-
Visual cArts
P.J. CLAY
arl worl /or /ria/ Allornl''jJ
,.t.,_,.fJ - Jl'ltu·ing:J - fjraph:J
(.,.,,/,unr/ · "'' ,/ia,/- (J, u£)
tlrrt>e-c/imrn:Jiona/ rxhiti!J
502·241·5541
Photo by Mark Ashburn
Professor J. Vincent Aprile as he conducts his Criminal Defense Seminar.
dress on the new legislation concerning Florida at an annual training con-the
guilty but mentally ill verdict. ference.
In August, Aprile was the featured In a recent interview, Aprile remarked
speaker at the National Association of that while he had little interest in
Criminal Defense Lawyers' annual con- substantive criminal law while in law
ference in Steamboat Springs, Col- school, he became involved with it dur­orado.
Aprile spoke to an audience com- ing his five years in the Army's Judge
prised primarily of private practitioners Advocate General's Corps.
on "Gaining the Advantage through When asked why he had never entered
Ethical Principles" private practice, Aprile explained that as
On October 21, Aprile conducted the a public defender, the decisions he
annual Louisville Bar Association's makes on behalf of his client are not
Criminal Law Update. He summarized economic ones. He is provided the
important changes made in the past year freedom to practice a case the way he
by the United States Supreme Court, the and his client think is best without a
Kentucky Supreme Court and appellate concern for the limitations of his client's
courts in addition to noting significant resources.
legislative changes in criminal law. Aprile emphasizes that he genuinely
In November, Aprile will be a enjoys teaching both law students and
featured speaker at NLADA's annual legal practitoners, and attributes his ef­conference
in Boston and in December fectiveness mostly to his active practice
he will instruct the Public Defenders of as a public defender.
UNIVERSITY OF SANTA CLARA
SCHOOL OF LAW
SUMMER LAW STUDY ABROAD 1982
*TOKYO, JAPAN
Emphasis on U.S.-Japanese
Trade. Courses in Japanese
Legal System, Japanese
Business Law, Regulation of
U.S.-Japanese Trade. Internships
available with Japanese law firms
and corporate law departments.
*HONG KONG
Emphasis on Hong Kong as the
commercial focus for U.S. trade
with China and Southeast Asia.
Subject areas include financing
and taxation of international
transactions through Hong Kong,
commercial arrangements in
Southeast Asia, and the
emerging commercial structure
of the Peoples Republic of China.
Internship possibilities.
For further information, write:
*STRASBOURG,FRANCE
Emphasis on International
Human Rights. Public
International Law taught by
recognized experts from around
the world. Affiliated with
International Institute of Human
Rights. Courses on Sourtes of
International Law, Soviet Legal
System, and International ·
Environmental Law. Internship
possibilities.
*OXFORD, ENGLAND
Students live in 15th Century
. Oxford College and are taught by
Oxford Professors in Oxford
Tutorial Method. Course
offerings include Jurisprudence,
European Economic Community
Law, 'Legal History, Computers
and t,he Law and various
comparative courses.
Director, Summer Overseas Programs
School of Law
University of Santa Clara
Santa Clara, CA 95053
To reserve your place, please include a $100.00 deposit.
6 Louisville Law Examiner, October, 1982
Alumnus Handles PATCO Appeals
(Continued from page 1)
"The government set up this amnesty
period but they didn't tell anybody how
it would work," Cox said.
In opposing the controllers' claims,
the·government contends the controllers
and their union (Professional Air Traf­fic
Controllers Organization/ P A TCO)
were engaged in an illegal strike in viola­tion
of federal law and their employ­ment
contracts and were therefore legal­ly
dismissed from their jobs.
However, the controllers say the
burden of proof for this contention is on
A Casefor
Palestine
By Joe Scalone
Approximately 25 people ~rowded in­to
room 272 of the Law·school on Tues­day,
October 12 to listen to Mr. Richard
Heideman speak on the "Legal Aspects
of the Middle East. Crisis." Mr.
Heideman is a Louisville attorney who
spent three years in the Middle East as a
student. The talk was sponsored by the
International Law Society.
Mr. Heidem·an presented a case based
in law for an independent state of
Palestine. Creation of such a state, he
posited, could be based on the same set
of documents which gave rise to the
modern state of Israel. International law
has established qualifications for a na­tion
state, to wit, a permanent popula­tion,
a defined territory, a government,
and a capacity to enter into relations
with other states. Just as these qualifica­tions
had been met to form Israel, they
could also be met to form Palestine.
Due to the timely and controversial
nature of the topic the talk drew law
students, undergraduates, professors,
and professionals. Fortunately it was
recorded and the recording is available
at the International Law Society office
(room 082, law school) for those who
might to like to listen to it.
the government.
In their prehearing brief which was fil­ed
with the Merit Systems Protection
Board, the controllers said the govern­ment
must prove that each controller
who didn't come to work in that time
period was on strike.
"The mere fact the (controller) may
have belonged to (PATCO) is insuffi­cient
to impute P ATCO's alleged illegal
activities to him,'' the brief says. ''There
must be independent evidence that the
(individual controller) supported the
strike."
Cox said both the controllers and the
government acted incorrectly during last
year's labor dispute.
''The union didn't serve their
membership very well and the govern­ment
acted illegally," Cox said. "Labor
negotiations in the public sector are
usually handled badly."
Negotiations between public employee
organizations and government officials
are often managed by "rank amateurs,"
according to Cox.
Paralegal:
"They play politics and get caught up
in the rhetoric," Cox said. "It's too bad
we can't bring in the negotiating teams
from the steel industry and let them han­dle
it."
People negotiating a labor dispute
"should never say never," Cox said .
"Reagan shouldn't have threatened to
fire the controllers because he just
painted himself into a corner," Cox
said. "And the union, with their stance,
probably underestimated Reagan's
determination on the issue."
The New Professional
By Crystal Collins
Within the last decade, the legal com­munity
has seen the emergence of a new
professional: the paralegal.
A paralegal, or legal assistant, is a
nonlawyer, employed by an attorney,
who performs limited legal work under
the supervision of the attorney.
According to Susan Howard, a
paralegal with Greenebaum, Doll and
McDonald, the paralegal "does a lot of
the routine work .. . the leg work" for the
attorney. Such duties include initial
drafting of documents and interviewing
of clients. "We are considered part of
the legal staff, as opposed to support
staff (secretaries and copy- people),"
said Ms. Howard.
"We are a tool that an attorney will
use," said Maureen Ranny, a paralegal
with Wyatt, Tarrant and Combs.
"Paralegals could take over many of the
administrative procedures," added Ms.
Ranny, who is also a 3rd year student at
the University of Louisville Law School.
"In our office, paralegals work on
document preparation and other ad­ministrative
duties," said Joseph L.
Hamilton, an associate with Barnett and
Alagia, "law clerks work exclusively on
legal research and memoranda."
"Our profession is completely
separate from that of the attorney,' ' said
Ruby Fenton, a paralegal with
Greenebaum, Doll and McDonald, "we
are the technicians of the firm."
According to a recent article in Trial,
the American Bar Association was one
of the first to sanction the use of
paralegals as a way to increase efficiency
and effectiveness.
The paralegal can offer services to the
client at a reduced rate. According to
Charles S. Cassis, chairman of litigation
for Brown, Todd and Heyburn,
paralegals cut down on the client's ex­
·pense because the client is billed less per
hour than he would be if the atorney had
done the work.
"Much of the attorney's time is con­sumed
by research, paralegals can do
that, they are a way of saving time, for
the client and the attorney," said Laura
Fuson, an associate with Segal,
Isenberg, Sales, and Stewart.
According to a Falll981 article in Law
Office Economics and Management,
paralegals, with proper supervision and
education, "can perform substantial
legal research as effectively as a
lawyer."
"Our paralegals are supervised by an
attorney on a case to case basis," said
Mike Cronan, an associate with Stites,
Mc.Elwain and Fowler.
"Any work they turn out is closely
scrutinized by the supervising attorney,"
added Ms. Fuson.
Formal training for paralegals varies
from 3 day seminars to 4 year degree
programs. Presently, in· Kentucky, they
range from a 4 year degree in paralegal
studies at Eastern Kentucky University
to a 3 week program at Western Ken­tucky
University.
According to Ms. Fenton, who is cur­rently
the president of the Lo ·sv'lle _
Association of Paralegals, in 1981 the
average starting salary of a paralegal
was approximately $12,000 or $13,000 a
year. "This has probably increased by
$2000," she added.
The Louisville Association of
Paralegals, whose membership is
"about 120 people" maintains a job
bank that will provide attorneys with
names of available paralegals in the city,
said Ms. Fenton.
SBA
"Reps"
elected
Pictured from left to right, Ruth Ann
Cox, Johnny Hutchings, Lee Gentry,
Dave Sprawls, Anne Sharp, Denny
Ogburn, Charles Herd, Chris George,
Kathy Holder, Mike Levy, Babs Elliott,
Don Battcher, Ellen Hesen and Mike
Bishop. Not pictured is Diane Bogdan.
Photo by Mark Ashburn
Louisville Law Examiner, October, 1982 7
July Bar Results
"We are not final because we are
infallable, but we are infallable because
we are final. ''
Brown v. Allen, 344 U.S. 443 (1953), Jackson, J. concurring.
Play It Again, Sam
By Judy Hoge
[Judy Hoge is a full~time housewife,
full-time mother of two, and full-time
2nd-year law student. In her spare time
she writes articles for the Law Examiner.
Judy first entered U of L Law School in
1972, seven years after graduating from
Hollins College. "I knew I would never
be satisfied merely staying at home,
although I enjoy my children immensely
- I always knew I wanted a career, as
opposed to a job." She left after one
year to raise her family and work in the
area of real estate law. In 1981, her
children in school, she returned to law
school. "Law has always been
fascinating to me; working in the field of
law for several years made me even more
determined to get my law degree. I'm
happy with the way things have worked
out." ]
First year of law school.
What bittersweet memories those
seemingly innocuous words bring to
mind. Endless reading assignments; in­terminable
classes; dread down to your
toes that you will be called on for this
of all cases; the desire to fade with
chamelion-like obscurity into the wood­work,
combined with that surge of
adrenalin as the professor calls your
name. Then, of course, the realization
that comes with finals that all.was a pic­nic
compared to this.
Going through it once is bad enough
-but twice? I did- with a ten-year in­.
terval in between.
Changes abound, the most obvious
being the beautiful new library and
classroom wing. As handsome and im­maculate
as they are, there is a certain
selective forgetfulness that brings a
nostalgia for rooms that had personali­ty,
if nothing else. There was West base­ment,
with its dusty cramped seats,
clanking pipes and chilly breezes (winter
only), hot and cold running roaches. Or
the Annex, a rather rickety old building,
replete with narrow wooden staircase,
which stood roughly where the new wing
does now.
Of course, some things never change.
Torts with Professor Biggs was in the
Allen Court Room ten years ago just as
it was last year. There was a definite
feeling of deja vu, of time standing still,
as an ageless Professor Biggs led us once
again through Palsgraf, slippery banana
peels, and res ipsa loquitur. Of course,
the Allen Court Room is a thing of beau­ty
now, compared to its previous early­Showcase
Cinema seating arrangement.
Did I mention it all seemed much
easier then? Although not at the time, of
course. Time plays tricks on your
memory, softening the edges of even the
most dreadful recollections.
The student body - bigger now,
brighter, more agressive, out-spoken.
The individual breakdown according
to schools is as follows:
Took Passed
U.K. 124 114
U.L. 96 78
Chase 65 40
Out-of-State 71 58
TOTAL 356 290
LeRoy Rodney Albright .
Ann Leslie Bailey
Rickey Dean Bailey
Ann O'Malley Baribeau
Robert Mark Beal
Terry Ralph Beckner
Susan Amy Fair Bourne
Jerry Jay Bowles
Pamela Kay Clay
Daniel William Clifton
James Ralph Cochran, Jr.
Mary Margaret Lewis Corey
James Paul Dilbeck Jr.
Tawana Edwards
Kenneth M. Farmer
John Francis Faust, Jr.
David Scott Furkin
Barbara Jean Goodwin
Donald Groot
Donald T. Hansen
Keith Dale Hardison
Robert Moss Hardy, Jr.
Ronald Dean Harris
Teri Lynn Hasenour
Lucy Lee Helm
Robert Harvey Helm
Alice E.B. Herrington
Edgar Paul Herrington III
Harold Mac Johns
Derick Gene Johnson Sr.
Margaret Eileen Keane
Edwin Lewis Kincer Jr.
Charles Edward King
Larry L. Lakin
Michael Christian Lemke
Pass
Rate
92.00fo
81.0%
62.0%
82.0%
81.0%
Male-female ratio - an incredible
change. Ten years ago classes were
roughly ten percent women, compared
with about 50 percent today. I was con­sidered
somewhat of a novelty by my
non-law school (or "normal") friends.
Somehow, I miss that. There is a definite
nostalgia for being one of a few, rather
than one of many. There is not quite the
same feeling of "specialness". As I said,
you can be nostalgic for some pretty
strange things.
The feeling among the women
students was different too. We "girls"
all stuck pretty much together back
then, rushing headlong between classes
to the ladies lounge (yep - same one)
with its old red cracked-vinyl sofa, to
commiserate, complain, to read just one
more cases before class. It was not really
a segregated society, but almost. Today,
there seems to be more a feeling of
"equalness", of camaraderie, a feeling
between the sexes that "we're all in this
together.''
Women's lib is undoubtedly responsi­ble
to a great extent for these changes in
number and attitude. Upon my first ad­mission
to law school, I was interviewed
and asked if I was sure this was what I
wanted to do. After all, I had a hus­band,
child, home and plenty to do, the
implication being that you had to
choose, you couldn't do it all, and a
woman's place, etcetera and so forth.
Well, you can do it all- male or female
- and enjoy it all the more for pushing
yourself to the fullest extent of your
abilities.
James Montgomery Lloyd
Michael Anthony Luvisi
Susan Stephenson McCray
Colleen McKinley
Diana Skaggs Martin
Don Cecil Meade
Donald Jay Meier
Elizabeth Ullmer Mendel
Kenneth Mudd
Charles Everett Mullins
Paul Musselwhite
Charles Mussetter
David Byron Park
Linda York Schomaker Park
William Lee Parks
Mary Porter Parsons
Thomas Roy Payne
Jerrold Randall Perchik·
Claud Fillmore Porter
Phillip Terry Douglas Prater
Nicholas William Riggs
Thomas Edward Roma Jr.
David B. Rucker
Keith Leslie Runyon
Walter Alan Scholar
Thomas Joseph Schultz
Linda Seng
Leo Gerard Smith
James Michael Smither
David Jay Stetson
Carol Sue Teitelbaum
John Gaar Thacker
Jeffrey Lee Wade
David Joseph Walker
John Anglin Webb
Stephen Gerard Wheatley
Neil Bennett Worden
Cynthia Sue Williams Young
Jefferey Martin Yussman
INDIANA BAR
Steven Michael Fleece
Charlene Jeanette Hall
James Montgomery Lloyd
Norman Lewis Roelke
David Joseph Walker
Jonathan Wayne Webster
Cynthia Sue Williams Young
But I'll tell you - I wouldn't want to
go through it all again, not for a third:
time (as my 12-year old says) "Fer
shur!"
Photo by Mark Ashburn
Second-year student, Judy Hoge.
RANARD'S PICTURE
SHOW
Photographs as Documents
·John Ranard 502-584-8747 · I
•
8 Louisville Law Examiner, October, 1982
News-in-Brief
• Registration for classes and seminars if space remains: Thursday, October
28, and Friday, October 29 until 4:30p.m.
• Intramural Basketball:-anyone in a graduate or professional school or in
their 5th year, or in a Master's at Speed may participate. Playing starts
November 9. Entry fee is $20, $10 refunded if it is not forfeited. Call
588-6707/ 6708 or go to room 45 in the Student Center.
• 1983 Summer Law Intern Program: For students between their second and
third year of law school. There will be no particular academic class standing
required to apply; the Program is open to any second-year law student. Rele­vant
activities and experience will be weighed in the selection process. No inter­views
are conducted under this Program. Final selections will be made and
students notified beginning in mid-December. All application materials must
be received by the Office of Attorney Personnel Management no later than
Friday, November 12, 1982. Applications may be picked up in the Placement
Office, which the student is responsible for mailing to the U.S. Department of
Justice.
• 1982 Graduates, Frank Janowski and his wife Debbie Harris passed the
Missouri Bar.
• "Reading: Increasing Your Speed and Comprehension" is a six-week con­tinuing
education course being offered at U of L Nov. 2-Dec. 7.
The class meets from 7 to 9 on Tuesday evenings in Strickler Hall on
Belknap Campus. The course fee of $50 includes a $10 materials fee.
For more information, or to register for this or other U of L courses ranging
from "Effective Writing for Everyday" to "Practical Politics," call U of L's
Center for Continuing Education at 588-6061.
• October 16, 1982 Homecoming included a picnic in the Oval in front of the
administration building where more than 75 law alumni and their guests at­tended.
Published Quarterly
January, April, July and October
Articles on all aspects of law related to
education with emphasis on current and
emerging issues in school law.
Subscription Office
P .0. Box 1936
Cincinnati, Ohio 45201
Louisville Law Examiner
School of Law
University of Louisville
Louisville, Kentucky 40208
John M. Harlan Louis D. Brandeis
Louisville
Law Examiner
Volume 8
U of L Alumnus
heads PATCO
Appeal
... Page 1
Brandeis Brief
series begins
... Page 2
Professor
elected to NLADA
Board
... Page 5
Kentucky July
Bar results
... Page 7
Justice John S.
Palmore as he
addresses Sixth
Circuit Fall
Conference
... Page 4
October, 1982 Number2