Forrest S. Latta, President

May 2023

Volume XLVII, Issue 5

In This Issue...

Ann's Article...........................Page 2

CLEs......................................Page 5

Law Day.................................Page 6

Mentoring Moment.................Page 7

Lawyer Assistance.................Page 8

Young Lawyers.......................Page 8

Women Lawyers.....................Page 11

Significant Decisions..............Page 12

Mobile Bar Foundation............Page 13

Birthdays.................................Page 16

  2023 OFFICERS

President - Forrest S. Latta

President Elect - Raymond L. Bell, Jr.

Vice President - Judge Judson W. Wells, Sr.

Secretary - Gordon G. Armstrong, III

Treasurer - Mary Margaret K. Bailey

Asst. Treasurer - Brian K. Smithweck

Executive Director - Ann Forbes Sirmon

Editor - Tiffany Ray

Don’t miss our upcoming Law Day luncheon May 12 at the Battle House Hotel. It is one of our great traditions. Please be sure to thank our Law Day Chair, Cat Kirkland, and the excellent committee: Dru Bishop, Weathers Bolt, Ann Chapman, Beth Liles, Melissa Rankin, Suntrease Williams-Maynard, Valynda Jerome-Williams, and Alex Wood.

This year’s keynote speaker is one of our most distinguished members, former U.S. Congressman Bradley Byrne. We will also present the annual Liberty Bell Award to recognize the important work of one of our citizens, and we'll honor several local student winners of the Law Day essay and art contests. We expect a good crowd, so register early.



Law Day - What’s the big deal?

In 1781, after the smoke cleared and the whiskey was gone, America’s founding fathers faced a hard decision: how would we be governed? The idea of another King or Dictator or Emperor was out of the question. Instead, they decided we would be self-governed by an agreed-upon set of laws. We would take turns holding office. And when disputes arose, we would let judges and juries resolve them in public courts.

This system, which we call the Rule of Law, was frankly audacious and unprecedented in world history. There were doubters then as there are today. But the Rule of Law remains the defining essence of American individual freedom, rooted in our founding documents.

Yes, this Rule of Law can be noisy and chaotic, like everyone trying to talk at the same time. It has always been this way—ever since the U.S. Constitution was adopted by the thinnest margin amid much controversy.

This story is recounted in the fascinating book “Without Precedent” by Joel Richard Paul. It was recommended by Judge Ed Carnes, an Eleventh Circuit judge from Montgomery, who said it was one of the best lawyer books he ever read, and I agree. It focuses primarily on the life and work of Chief Justice John Marshall, a farm boy educated in a one-room schoolhouse. It was Marshall’s character, personality, and natural genius that enabled the U.S. Supreme Court to chart a course through rough political waters to shape and unify our nation.  There were many close calls. 

One surprising example from the book offers a glimpse of a different side of Thomas Jefferson. Marshall and Jefferson were cousins, but rivals. If Jefferson had gotten his way, our U.S. Constitution would never have been adopted. He preferred the Articles of Confederation, believing more in State rights, and particularly landowner rights. He refused to return from France to support adoption of the new Constitution, or even to help write the Federalist Papers. Jefferson believed the U.S. Supreme Court had no legitimate authority over individual states. And later, as President, he thumbed his nose at the Justices, refusing to comply with a Supreme Court subpoena involving alleged presidential misconduct. It got sorted out, but not without controversy. How familiar.

America’s democratic Rule of Law has now survived nearly 250 years. But it endures solely on the strength of public faith in the system. That includes the public’s faith in those of us who have the honor to serve as lawyers and judges. When controversies arise, as they often do, we must encourage the public to trust the system, let it work, and be patient.



Law Day is the one day annually when our profession gets to remind our fellow citizens: Don’t take the Rule of Law for granted. It stands for individual freedom and has become a model for the world. But it takes effort on everyone’s part!

Forrest

Forrest S. Latta

Mobile Bar Association, 2023 President

Happy May! The month of May is always busy for the Mobile Bar Association. We celebrate Law Day, it is Mental Health Awareness Month, and on a personal level, we have graduations, Mother’s Day, and other springtime celebrations.

First, let’s talk about Law Day. In 1957, American Bar Association President Charles S. Rhyne envisioned a special day for celebrating the legal system. In 1958, President Dwight D. Eisenhower established Law Day as a national day of dedication to the principles of government under law. Then, in 1961, Congress designated May 1 as the official date for celebrating Law Day. Law Day recognizes the role of law in our society and offers an annual opportunity to cultivate a deeper understanding of the legal profession. In the years since Law Day was established, Law Day programs have spread to many countries around the globe.

Every year, Law Day is centered on a theme. This year’s theme is Cornerstones of Democracy: Civics, Civility, Collaboration. We received approximately 80 student submissions in the three categories for our Law Day art and essay contests. I look forward to meeting and celebrating the recipients of the art and essay contest awards and the Liberty Bell Award recipient during our membership luncheon on Friday, May 12. We will display the 1st, 2nd, and 3rd place contest entries at the luncheon. Afterwards, we will place the entries in our display cases on the 8th floor of Government Plaza on the courthouse side.

May is also Mental Health Awareness Month. Established in 1949, the designation is intended to increase awareness of and educate the public about mental illness and mental health. The Mobile Bar Association strives to put this topic at the forefront. We all have someone in our life who is working through mental health issues.

Our Lawyer Assistance and Lawyer Wellness Committees do a great job of bringing awareness to this topic and providing a variety of resources to help us all. Our Lawyer Wellness Committee has provided yoga and boot-camp classes, walks, and hikes, all to help us de-stress. Our Lawyer Assistance Committee has written a variety of articles in past Bar Bulletins to remind us that we are not alone. We are also happy to announce that the Lawyer Assistance Committee has launched a Lawyer Assistance page on the Mobile Bar Association website. The page is under For Lawyers and is full of local, state, and national resources to help those of us struggling with addiction or experiencing mental health issues. Additionally, the committee is proud to announce a new confidential hotline for lawyers who are experiencing issues with substance abuse, depression, anxiety, gambling, stress, career, or personal concerns. You simply explain your need to a volunteer, who will refer you to a resource who can help. Again, the hotline is completely confidential. Wow! What great resources. As you can see, both committees are working hard to serve you. 

Thank you for your dedication to the legal profession. Thank you for keeping our traditions alive. Thank you for being a member of the Mobile Bar Association. Please let me know if there is anything we can do for you. I can be reached by email at asirmon@mobilebarassociation.com or by phone at 251.433.9790.

Your reminders for May:

• Many thanks to all members who have paid their MBA membership dues. If you have not, please make sure your dues are up to date.
• Make your reservation for the Law Day Membership Luncheon by Monday, May 8, so we will be prepared for you.
• Click Here to check out our Lawyer Assistance page on the website.
• The MBA office will be closed on Monday, May 29, in observance of Memorial Day.
• To all the mothers and grandmothers – Happy Mother’s Day!

P. Ann Forbes Sirmon

Executive Director

Mobile Bar Association

Women Lawyers Lunch and Learn

Tuesday, May 9, 2023 | 11:45 a.m. - 1:00 p.m.

Available CLE Credits: 1.0

LOCATION: Federal Courthouse

TOPIC: Danielle Mashburn-Myrick of Phelps Dunbar, LLP, who will discuss bankruptcy issues for the non-bankruptcy attorney.

To register, contact Ginger Poynter by email at gpoynterlaw@gmail.com.

Bankruptcy Section Meeting

Tuesday, May 16, 2023 | 12:00 - 1:00 p.m.

Available CLE Credits: 1.0

To register, contact Herman Padgett by email at hdpadgett@hermanpdadgett.com.

Civil Practice, Federal Court Section Coffee with the Court

Thursday, May 18, 2023 | 8:00 - 9:00 a.m.

Available CLE Credits: 1.0

LOCATION: Federal Courthouse, Juror Assembly Room

More information and online registration will be available on Wednesday, May 3, 2023.

Probate Section Lunch and Learn

Wednesday, May 24, 2023 | 12:00 - 1:00 p.m.

Available CLE Credits: 1.0 | Cost: $18.00, with lunch

LOCATION: ATHELSTAN CLUB

Advance registration deadline is Monday, May 22, 2023.

By Cat Kirkland, Law Day Chair

Our annual Law Day celebration is upon us! This year’s theme, Cornerstones of Democracy: Civics, Civility, Collaboration, provides a chance to reflect on the foundations of democracy and what steps we can take to build trust in our democratic institutions through civil discourse, voting, and community engagement. 

Several years before Law Day existed, its founder, President Dwight Eisenhower, eloquently remarked on those foundations, noting that, “[w]ithout exhaustive debate—even heated debate—of ideas and programs, free government would weaken and wither. But if we allow ourselves to be persuaded that every individual, or party, that takes issue with our own convictions is necessarily wicked or treasonous—then indeed we are approaching the end of freedom's road. We must unitedly and intelligently support the principles of Americanism.”

In the spirit of President Eisenhower’s words, we invited older students to examine the concept of civil discourse and debate in an essay for this year’s Law Day contest. Similarly, our elementary art contest challenged students to consider the role of voting in our society and its importance. Participation in this year’s contest was fantastic and we sincerely thank all of our local schools and community organizations for their support. All contest participants are invited to a special Judicial Event on May 3 at the state courthouse, where they will have the chance to talk with our local judges. In prior years, teachers have relayed to us that this event provides a positive experience for students who may not have the best impression of the legal system and, for other students, offers their first opportunity to visit a courthouse or meet a judge. 

In addition, Law Day organizers will co-host, in conjunction with the federal courthouse, a Civil Discourse and Difficult Decisions program with Davidson High School students on May 10. This innovative 3-hour program gives participating students a chance to analyze real-world scenarios as attorneys or mock jurors and to engage in debate, deliberations, and decision-making. 

Law Day also affords us the opportunity to select our annual Liberty Bell winner. The Liberty Bell award recognizes a distinguished non-lawyer member of the community who has contributed to strengthening the effectiveness of the American system of freedom under the law. 

We will formally celebrate Law Day at our May 12 luncheon, where we will honor our contest winners, discuss Law Day, and host a special speaker. Please make plans to attend.



I want to recognize and sincerely thank Forrest Latta, Ann Sirmon, Jeffrie Morgan, Melissa Rankin, and all the attorney Law Day Committee members, especially Dru Bishop, Weathers Bolt, Ann Chapman, Beth Liles, Suntrease Williams-Maynard, Valynda Jerome-Williams, and Alex Wood, for all their help and support. The MBA’s robust Law Day celebration is only possible due to their volunteerism and hard work. 

I hope to see you all May 12!

MENTORING MOMENT

By Greg Vaughan, Mentoring Committee Member

Pigs get fat, hogs get slaughtered.

Last month I touched briefly on the concept of “reasonableness.” This month, let’s discuss how to find “reasonableness” when arriving at the value of your case – and how to temper your client’s expectations. 

I credit this advice to MBA member Winston Grow. Over the years, Winston has invested a lot of time and effort into the rejuvenation of our local mentoring program. He’s a good friend and mentor of mine. Winston’s father, John Grow, Sr., was a longtime lawyer in our area. Per Winston, his father often reminded him of the adage, “Pigs get fat, hogs get slaughtered,” and how it applied to our profession. Winston has echoed these words to me a time or two as we’ve talked “shop.” Please note, this advice is geared more towards those with a Plaintiff’s practice – and the lawyers who deal with us. 

Initial client meeting

Have local marketing efforts been so effective that this potential client now seeks your assistance in obtaining a six-figure result in a low-impact MVA with no permanent injuries? If so, now’s a great time to remind them that most advertised results are not indicative of case values. This initial discussion should include the factors that drive value in cases (i.e., permanent injury, large medical bills, poor conduct of adverse party, venue, etc.). These factors will, without question, be a topic of discussion (again) during the life of the case. If the potential client has a value in mind that is based on other reasons, handle them with care and steer the conversation back to our planet.

Phone a friend

If you’re in a law practice with others, you have the tremendous advantage of discussing case value with your counterparts. If there’s more than one lawyer in your office, chat with several to elicit different perspectives. If you don’t have that option, then, to the extent our rules of professional conduct allow, have a discussion with a fellow lawyer about your case’s value, the factors you believe drive that value, and see if your range matches theirs.

Before sending the demand letter

Oftentimes, in the world of Plaintiff work, demands are forwarded to insurance companies that, shall we say, are on the “high side” of case value. I understand the concept. However, let me recommend sending a demand that is “not as high-sided” with a note to the adverse party that “you don’t have much room” to negotiate. “High-side” demands – without prepping your client as to the purpose – can create unreasonable expectations. You don’t want your client running the math to determine what his/her net recovery will be based on these demand figures. This can be a real problem in resolving a case – so please proceed with caution.    

Before the mediation

At least a week or so before mediation, set a face-to-face meeting with your client to discuss the process and how offers will be relayed. Prep your client for that initial “low dollar” response to a “high-side” demand (if one was made). Ask your client to keep an open mind. Discuss how the mediator provides a second set of eyes to review the claim and comment on case value. And cover the factors that matter to insurance companies when assessing case value – factors you hopefully covered during that first encounter with the client (i.e. permanent injury, large medical bills, poor conduct of adverse party, venue, etc.).   

***

I’ve spent a lot of time around more senior lawyers and judges through my involvement in the bar’s mentoring program. This collection of articles is some of what I have learned there – and some of what I’ve learned along the way.

If you have any questions, comments, would like to suggest some future topics, pass along some good vibes, or just meet for coffee to discuss your career, please send me an e-mail at: greg@vaughanpoe.com.

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LAWYER ASSISTANCE

By Alison Herlihy, Lawyer Wellness Co-Chair

The Lawyer Wellness Committee went on a hike in Blakeley Park on Sunday, April 23. It was a beautiful day to enjoy the outdoors, along with good fellowship with other Mobile Bar members. We plan to have another hike in the fall. Be sure to make plans to join us.

YOUNG LAWYERS SECTION

By John Leech, Young Lawyers Section President

Thanks to all who attended our April Young Lawyers Social on April 20 at Greer’s. This event was sponsored by Beasley Allen, and we would like to thank them for their support.  

The annual golf tournament is approaching soon on May 5. If you and/or your firm would be interested in entering a team or sponsoring, please contact Will Killion at WKillion@hglawpc.com. The event will benefit the Dumas Wesley Community Center, which does excellent work in our area. The night before, on May 4, we will have our kick-off party at El Papi starting at 5:30 p.m. The party is sponsored by Taylor Martino, and we would like to thank them for their support. We appreciate the support for this event year after year and are looking forward to another successful tournament.

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WOMEN LAWYERS

By Tiffany Ray, Women Lawyers President

Thanks to all who came out April 25 for the Women Lawyers’ Spring Social at Grace, one of Mobile’s newest restaurants. It was a great event! Much thanks to board member Kelly Adams for planning it.

Next up: Women Lawyers will host a May Lunch & Learn CLE featuring Danielle Mashburn-Myrick of Phelps Dunbar, LLP, who will discuss bankruptcy issues for the non-bankruptcy attorney. The CLE is scheduled for Tuesday, May 9, at 11:45 a.m., in the Federal Courthouse at 155 St. Joseph Street. The cost, which includes lunch, is $15 for members and $20 for non-members. RSVP to Ginger Poynter at gpoynterlaw@gmail.com and include any dietary restrictions.

And…SAVE THE DATE! The MBA Women Lawyers’ 11^th annual Trailblazer Tea is scheduled for June 14, 2023, in the Crystal Ballroom of the Battle House Hotel. We are proud to announce this year’s honoree is U.S. Magistrate Judge Sonja Bivins of the U.S. District Court for the Southern District of Alabama. Congratulations to Judge Bivins! See below for additional information about the event.

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In Cole v. Davis, No. SC-2022-0723 (Ala. March 24, 2023), the Supreme Court abrogated a line of prior jurisprudence regarding the enforceability of restrictive covenants on property. Although the defendant landowner had actual knowledge of restrictive covenants on property when he performed actions inconsistent with the same, the Supreme Court held that knowledge – actual or constructive – of restrictive covenants is not dispositive but is rather one factor for a trial court's consideration when determining whether, pursuant to the “relative hardship test,” resultant harm from enforcement of a restrictive covenant would be disproportionate to the benefit received by the landowner(s) seeking enforcement of the covenant.

In Davis v. Hamilton, No. SC-2023-0042 (Ala. March 24, 2023), the Supreme Court ruled that a case should be dismissed due to the failure to make a timely substitution after the death of a party pursuant to Ala. R. Civ. P. 25(a)(1). While the deaths of the original plaintiff and such plaintiff’s counsel both occurred during the pendency of the trial court action, the Supreme Court ultimately held that the personal representative of the plaintiff's estate failed to demonstrate that the approximately 31-month gap between the filing of a suggestion of death and motion to substitute was the result of excusable neglect.

In Allie Construction, Inc. v. Mosier, No. SC-2022-0790 (Ala. March 24, 2023), the Supreme Court held that obtaining a writ of garnishment was sufficient to enforce a judgment within the applicable 20-year limitation period provided by Ala. Code § 6-2-32. Although the judgment debtor was not served with the writ until the next business day, which was outside the 20-year period, the Supreme Court held that the judgment creditor had abided by the statute by timely commencing the enforcement action with a bona fide intent to serve process of the same.

In Upchurch v. Upchurch, No. SC-2022-0478 (Ala. April 7, 2023), the Supreme Court held that the act of executing a land sale contract for property owned as joint tenants with rights of survivorship was sufficient to sever the joint tenancy and convert to a tenancy in common, even if one of such joint tenants died before the consummation of the sale and the transfer of interest in the land. According to the Court, even though one joint tenant died while title to the land was otherwise still held with rights of survivorship, the execution of a sales contract during such deceased joint tenant’s life was sufficient to sever the joint tenancy, as it was an “act inconsistent with the continuation of the joint tenancy.”

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Law office for sale in the Government Street/Loop area. Perfect space for two or three lawyers plus support staff. Office furniture for sale as well. If interested, please contact Cameron Weavil at (251) 438-6000 or cameronweavil@gmail.com.

Simmece Frazier-Lofton is looking for the lawyer that prepared a will for her father-in-law, Alvin Sylvester Lofton, Sr. He was born September 14, 1959 and died March 12, 2022. Mr. Lofton lived in Eight Mile, Alabama and died at USA Medical Center. His will was potentially drafted in the summer of 2021. If you have any information, please contact Ms. Frazier-Lofton by email at SDFLofton@gmail.com.

In memory of: Francis A. (Tony) Poggi, Jr.

Donated by: Kathy Miller and Charlie Fleming

In memory of: Sydney R. Prince, III

Donated by: Susan and John Leach

In memory of Sydney R. Prince, III

Donated by: Anonymous Donor

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For a full list of upcoming events in 2023, click here to visit our website.

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Listed below are members who celebrate a birthday in May.

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