Volume 96 — No. 1 — January 2025 ALSO INSIDE: What’s Online Meet the Volunteers Who Guide Your Association Meet 2025 OBA President D. Kenyon Williams Jr. Page 44 PLUS Law Practice Basics
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contents January 2025 • Vol. 96 • No. 1 PLUS 44 Meet 2025 OBA President D. Kenyon Williams Jr. By Emily Buchanan Hart 50 Meet the Volunteers Who Guide Your Association 56 What’s Online THEME: Law Practice Basics Editor: Melissa DeLacerda FEATURES 6 Navigating Counsel Withdrawal in Legal Civil Proceedings By Jimmy Oliver 10 Rules for Oklahoma District Courts By Travis Pickens 12 The Naked Cat: Preparing Your Family Law Case for Trial By Allyson Dow and M. Shane Henry 18 Every Lawyer Should Use a Written Fee Agreement (This Means You!) By Richard Stevens 22 Initial Appearances: How To Make the Most Out of a Cursory Court Date By Amanda Lilley 28 The Basics of Preserving Error for Appeal: A Trial Lawyer’s Guide for Making a Better Appellate Record By Justin A. Lollman and Andrew J. Hofland 36 Tasked With Drafting an Order for the Court? Start Here. By Claire C. Bailey 40 Oklahoma Enacts Seven Uniform Acts in 2024 By Judge Thad Balkman DEPARTMENTS 4 From the President 58 From the Executive Director 60 Law Practice Tips 64 Board of Governors Actions 68 Oklahoma Bar Foundation News 70 For Your Information 72 Bench & Bar Briefs 74 In Memoriam 75 Editorial Calendar 80 The Back Page ON THE COVER: 2025 President D. Kenyon “Ken” Williams Jr. of Sperry visits Skiatook Lake northwest of Tulsa. Photo by Emily Buchanan Hart. PAGE 44 – Meet 2025 OBA President D. Kenyon Williams Jr.
THE OKLAHOMA BAR JOURNAL 4 | JANUARY 2025 This client-driven expectation presents multiple problems for law firms but is a real-world example of the necessity of adaptation. As both Past Presidents Brian Hermanson and Miles Pringle stated in their opening messages to the association, we are going through a time of tremendous change and at a seemingly accelerating pace. I am now serving in my 48th year as an Oklahoma-licensed attorney. Now more than ever, I am worried about the undue influence of politics on the structure of our independent judiciary. I am concerned about the lack of public understanding of the role of the courts in our system of government. I also do not recall a time when access to justice has been more out of the reach of individuals and small businesses than now. I do not recall a time when our rural counties had greater challenges in attracting and retaining new lawyers than now. As a result, my hope and plan for this bar year is for us to have a conversation about these challenges. I am aware of at least one state where their supreme court conducts remote hearings in different regions of the state for the express purpose of engaging the local populations, students and businesses. They do this to tear away the veil of isolation from the perspective of the general population under which appellate courts operate. Please share with me your thoughts and suggestions regarding how Oklahoma can protect its independent judiciary. Both the OBA and the Oklahoma Bar Foundation are aware of the “legal des- erts” that exist throughout the state. Past President Pringle wrote about legal deserts in his March 2024 message to our association. “ADAPT OR PERISH, NOW AS EVER, IS nature’s inexorable imperative,” is a quote attributed to H.G. Wells, author of classic science fiction novels. The quotation comes from Mr. Wells’ last book, Mind at the End of Its Tether, an incredibly pessimistic read so unlike some of his other classic science fiction that I enjoyed in my youth, such as The First Men in the Moon, The Time Machine and The Food of the Gods and How It Came to Earth, to name a few. I recall but cannot locate the science fiction novel (loosely based upon Great Britain’s historical forced immigration of convicts to Australia, among other places) in which I first saw an iteration of the quote, i.e., “Adapt or die,” which was a warning given to involuntary immigrants. Both quotations are harsh but instructive. I was reminded of those quotes while listening to a keynote speaker at the 2014 OBA Annual Meeting. Richard Susskind, an author and futurist, spoke about his 2015 book, Tomorrow’s Lawyers: An Introduction to Your Future. Mr. Susskind was then much more optimistic about the future of the legal profession and has continued to write about his predictions. One of his more recent books, The End of Lawyers?: Rethinking Legal Services, is a bit bleaker. Mr. Susskind predicts that artificial intelligence and other market alternatives will force traditional law firms to adopt such practices or become obsolete. He also views the “more for less” challenge to be a specific threat to the traditional law firm business model. “More for less” is the expectation our clients have that our legal services should be increasingly more efficient at a lower cost to them. An aspect of this client-driven expectation is that clients are increasingly refusing to pay for the training of new lawyers. Are You Available for Some Conversation? From The President By D. Kenyon “Ken” Williams Jr. D. Kenyon “Ken” Williams Jr. is a shareholder and director at Hall Estill in Tulsa. 918-594-0519 kwilliams@hallestill.com (continued on page 63)
JANUARY 2025 | 5 THE OKLAHOMA BAR JOURNAL JOURNAL STAFF JANET K. JOHNSON Editor-in-Chief janetj@okbar.org LORI RASMUSSEN Managing Editor lorir@okbar.org EMILY BUCHANAN HART Assistant Editor emilyh@okbar.org LAUREN DAVIS Advertising Manager advertising@okbar.org HAILEY BOYD Communications Specialist haileyb@okbar.org Volume 96 — No. 1 — January 2025 D. KENYON WILLIAMS JR., President, Sperry; AMBER PECKIO, President-Elect, Tulsa; RICHARD D. WHITE JR., Vice President, Tulsa; MILES PRINGLE, Immediate Past President, Oklahoma City; JOHN E. BARBUSH, Durant; BENJAMIN J. BARKER, Enid; CODY J. COOPER, Oklahoma City; KATE N. DODOO, Oklahoma City; PHILIP D. HIXON, Tulsa; JANA L. KNOTT, El Reno; CHAD A. LOCKE, Muskogee; WILLIAM LADD OLDFIELD, Ponca City; TIMOTHY L. ROGERS, Tulsa; NICHOLAS E. THURMAN, Ada; JEFF D. TREVILLION, Oklahoma City; LUCAS M. WEST, Norman; TAYLOR C. VENUS, Chairperson, OBA Young Lawyers Division, Enid The Oklahoma Bar Journal (ISSN 0030-1655) is published monthly, except June and July, by the Oklahoma Bar Association, 1901 N. Lincoln Boulevard, Oklahoma City, Oklahoma 73105. Periodicals postage paid at Oklahoma City, Okla. and at additional mailing offices. Subscriptions $85 per year. Law students registered with the OBA and senior members may subscribe for $45; all active members included in dues. Single copies: $8.50 Postmaster Send address changes to the Oklahoma Bar Association, P.O. Box 53036, Oklahoma City, OK 73152-3036. THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar Association. All rights reserved. Copyright© 2025 Oklahoma Bar Association. Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Although advertising copy is reviewed, no endorsement of any product or service offered by any advertisement is intended or implied by publication. Advertisers are solely responsible for the content of their ads, and the OBA reserves the right to edit or reject any advertising copy for any reason. Legal articles carried in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Information about submissions can be found at www.okbar.org. BAR CENTER STAFF Janet K. Johnson, Executive Director; Gina L. Hendryx, General Counsel; Chris Brumit, Director of Administration; Jim Calloway, Director of Management Assistance Program; Beverly Petry Lewis, Administrator MCLE Commission; Gigi McCormick, Director of Educational Programs; Lori Rasmussen, Director of Communications; Richard Stevens, Ethics Counsel; Robbin Watson, Director of Information Technology; John Morris Williams, Executive Consultant; Julie A. Bays, Practice Management Advisor; Loraine Dillinder Farabow, Jana Harris, Tracy Pierce Nester, Katherine Ogden, Steve Sullins, Assistant General Counsels Barbara Acosta, Taylor Anderson, Les Arnold, Allison Beahan, Gary Berger, Hailey Boyd, Cassie Brickman, Cheryl Corey, Lauren Davis, Nickie Day, Ben Douglas, Melody Florence, Matt Gayle, Emily Buchanan Hart, Debra Jenkins, LaRica Krischel, Rhonda Langley, Durrel Lattimore, Brian Martin, Renee Montgomery, Jaycee Moseley, Tracy Sanders, Mark Schneidewent, Ben Stokes, Krystal Willis, Laura Willis & Roberta Yarbrough Oklahoma Bar Association 405-416-7000 Toll Free 800-522-8065 FAX 405-416-7001 Continuing Legal Education 405-416-7029 Ethics Counsel 405-416-7055 General Counsel 405-416-7007 Lawyers Helping Lawyers 800-364-7886 Mgmt. Assistance Program 405-416-7008 Mandatory CLE 405-416-7009 Board of Bar Examiners 405-416-7075 Oklahoma Bar Foundation 405-416-7070 www.okbar.org OFFICERS & BOARD OF GOVERNORS BOARD OF EDITORS MELISSA DELACERDA, Stillwater, Chair BECKY R. BAIRD, Miami MARTHA RUPP CARTER, Tulsa NORMA G. COSSIO, Enid MELANIE WILSON RUGHANI, Oklahoma City SHEILA A. SOUTHARD, Ada EVAN A. TAYLOR, Norman ROY TUCKER, Muskogee MAGDALENA A. WAY, El Reno DAVID E. YOUNGBLOOD, Atoka
JANUARY 2025 | 7 THE OKLAHOMA BAR JOURNAL Law Practice Basics Navigating Counsel Withdrawal in Legal Proceedings By Jimmy Oliver THERE ARE TIMES WHEN AN ATTORNEY MUST WITHDRAW as the attorney of record in a civil case prior to its conclusion. This can occur at the client’s request or because the attorney has decided it is necessary. However, this decision doesn’t just allow an attorney to return the file to the client and step away from the case. The process to withdraw, including the necessary pleadings, is laid out by statute and is mandatory. THE MOTION TO WITHDRAW A motion to withdraw can be filed at any time in a case. A written motion must be filed, and a proposed order of withdrawal must accompany the motion. The court may only grant a motion to withdraw without replacement counsel if the body of the motion contains the name and address of the client.1 The motion should be signed by the client, acknowledging their knowledge of the motion. If the client does not sign the motion, the attorney is required to certify: 1) The client has knowledge of the attorney’s request to withdraw as attorney of record or 2) The attorney could not find the client after making a good-faith effort to do so. The statute requires the attorney seeking to withdraw to notify the court if the case is set for a motion docket, pretrial conference or trial.2 To ensure compliance with the statute, the motion should contain a statement as to any future case setting. The motion to withdraw must be served on the client and every attorney of record in the case. A certificate of service should be attached to the motion to prove compliance with the service requirement. Once filed, the motion should be set for hearing, and the client and all attorneys of record should be notified of the date and time of the hearing. THE ORDER It is important a client understands that a case does not stop when an attorney withdraws. Therefore, the statute requires that the order notify the client that they have a 30-day window to file an entry of appearance to represent themselves pro se or have an attorney file an entry of appearance on their behalf. The order must state that if no entry of appearance is filed within 30 days from the date of the order permitting withdrawal, the unrepresented noncorporate party is deemed representing themselves pro se. The order shall also notify the client that failure to prosecute or defend the pending case may result in the case being dismissed without prejudice or a default judgment taken against the client.3 An additional reminder about these obligations should be included in the closing letter to the client. ETHICAL RESPONSIBILITIES A client can discharge counsel at any time for any cause. If an attorney is discharged by a client, the attorney shall withdraw immediately. The Oklahoma Rules of Professional Conduct provide other guidance for when an attorney may withdraw from a case. An attorney is required to withdraw if a client demands or continues to demand that the lawyer take action that is in violation of Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
THE OKLAHOMA BAR JOURNAL 8 | JANUARY 2025 the law or the rules. An attorney can also withdraw from a case if the client does not pay for services as previously agreed upon.4 The rules emphasize that, even when withdrawing from a case, the attorney must take reasonable steps to protect the client’s interests. The rules give specific examples of such steps, such as “giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expenses that has not been earned or incurred.”5 Once an attorney withdraws, the client has the right to receive a refund for any funds still held by the attorney that have not been earned or used for legitimate expenses. The Court of Civil Appeals has stated that an attorney can only charge for services they actually provided and that those charges must be reasonable.6 It is important for the attorney to promptly send a final bill detailing the retainer paid and how the funds were used. Any remaining portion of the retainer should be returned to the client. TIMING FOR TRIAL/ HEARING SUBSEQUENT TO WITHDRAWAL The statute provides 30 days for a litigant to retain new counsel or be deemed as representing themselves.7 However, the appellate court has found that the statute does not require a trial or hearing to be postponed until that time frame has expired. Further, a pro se litigant can waive any such right by agreeing to a hearing date during the 30-day window.8 As the Oklahoma Rules of Professional Conduct require a withdrawing attorney to continue to protect the client’s interest, the attorney should caution the client not to agree to a hearing set prior to retaining new counsel. CONCLUSION Withdrawing as counsel by following the statutory requirements not only protects the interests of the client and the integrity of the legal system but also ensures that litigants, attorneys and the court are all informed about the status of the case and what will happen once the motion to withdraw is granted. ABOUT THE AUTHOR Jimmy Oliver has more than 10 years of experience in the areas of family law, juvenile law, guardianship and probate. He has served on the OBA Board of Governors and the Professional Responsibility Commission. ENDNOTES 1. O.S. §2005.2 (C). 2. Id. 3. Id. 4. Oklahoma Rules of Professional Conduct 1.16, Comments 7 and 8. 5. Oklahoma Rules of Professional Conduct 1.16 (d). 6. Wright v. Arnold, 1994 OK CIV APP 26, 877 P.2d 616. 7. O.S. §2005.2 (C). 8. Hilfiger v. Hilfiger, 2023 OK CIV APP 15, 530 P.3d 879. Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. PROPOSED LETTER TO CLIENT RE: Motion to Withdraw Dear [Client Name]: Enclosed is a copy of the Court Order allowing me to withdraw as your attorney. I will no longer be responsible for representing your interests in this matter. You should retain new counsel immediately or prepare to represent yourself. You have thirty (30) days from [enter date order was signed] for an attorney to file an Entry of Appearance, or you will be deemed as representing yourself. If you plan to represent yourself, notify the Court Clerk and Opposing Counsel so that you will receive pleadings and correspondence related to the case. A hearing is set in your case on [date]. You and/or your new attorney will need to be present at that hearing. Failure to attend future hearings or participate in your case could result in default orders against you or dismissal of your case. I have enclosed all the original documents from your file. If you believe there are additional documents in my possession, please let me know immediately so that I may search for them before I place my copy of your file in storage. Finally, I have enclosed the final statement for my work in this matter. If you have any questions about this statement, please contact my office at [insert phone number or contact information]. Sincerely, [Attorney’s Signature]
THE OKLAHOMA BAR JOURNAL 10 | JANUARY 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. THIS SEEMS TO BE A COMMON NIGHTMARE AMONG LAWYERS and other professionals: You suddenly realize you are due to take a final exam in a matter of hours for a class you attended the first day of the semester and then totally forgot or otherwise failed to attend thereafter. The traits that can make you a good lawyer – high regard for authority and perfectionist tendencies – are the same ones that may inflict you with these neurotic nocturnal horrors. And unfortunately, it can occasionally play out in real life when we discover or learn from the opposing counsel or a judge a rule directly related to what we are just about to perform or seek in court. One such group of rules that is fodder for either procedural mastery or ignominy is the Rules for District Courts of Oklahoma, a mandatory, wide-ranging set of rules issued by the Oklahoma Supreme Court and applicable to practice by all lawyers before the district courts in all 77 counties. These rules were originally adopted effective Jan. 1, 1982, and are found in the Appendix to Chapter 2 of Title 12 “Civil Procedure” of the Oklahoma Statutes or on the OSCN website under the “Legal Research” tab. The rules cover an array of procedural matters and details not otherwise covered (or fully covered) in the statutes, and they have the full force and effect of law. Knowledge of these rules is essential as they cover many of the most common and important procedures we practice. There is no obvious scope to the rules other than procedural practice, generally. Some rules will apply to every case you have; others may never apply to your practice. The rules primarily apply to civil procedure, but there are a few that are directed to criminal procedure. The rules cover broad and routine areas of practice, like “Motions” (Rule 4), “Pretrial Proceedings” (Rule 5) and “Summary Judgment” (Rule 13), but there are also rules that cover or add something regarding less common procedures, such as “Disqualification of Judges in Civil and Criminal Cases” (Rule 15) and contempt proceedings (“Indirect Contempt for Failure to Pay Child Support – Purge Fee,” Rule 8.3, and “Direct Contempt,” Rule 20). There are also apparent one-offs and arcana like “Notice Form for Condemnation Cases” (Rule 21) and “Legislative Continuances” (Rule 24). The rules can also serve as the birthplace for new rules issued in response to emerging trends and technology. Recent years and demands have led to rules being added – for example, “Limited Scope Representation” (Rule 33 in 2017) and “Videoconferencing in the District Courts” (Rule 34 in 2018). Every rule is significant and potentially crucial to your case or matter. Beware: These rules must be read along with the Oklahoma Statutes, case law and other applicable authorities in preparing your case as they contribute to forming the complete legal profile of your case. They may be the only law on point, or they may merely supplement a much larger collection of law found in the statutes or elsewhere. Law Practice Basics Rules for Oklahoma District Courts By Travis Pickens
JANUARY 2025 | 11 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. The rules are issued by the Oklahoma Supreme Court and should control over conflicting local district court rules issued by the courts of our various state judicial districts, usually comprising multiple counties, which also cover matters of civil and criminal procedure, and must also be researched and followed when practicing in the courts of that district. The Rules for District Courts of Oklahoma as a set is like the drawer in your house that holds the mishmash of odd keys and tools. These items could logically be stored separately elsewhere but are collected in one convenient place because they operate something you frequently use or unlock something you may not need for years but would otherwise never find the key. It is important to check the rules every time prior to approaching any matter before an Oklahoma district court. You’ll sleep better. ABOUT THE AUTHOR Travis Pickens is a civil litigation and ethics lawyer in private practice in Oklahoma City. From August 2009 to January 2015, he served as ethics counsel for the Oklahoma Bar Association and as an OBA liaison to the Lawyers Helping Lawyers Assistance Program Committee. For many years, he served as an adjunct professor of law practice at the OCU School of Law.
THE OKLAHOMA BAR JOURNAL 12 | JANUARY 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. OVERVIEW It’s been said, “There are many different ways to skin a cat, but the goal is a naked cat.” Likewise, there are many ways to prepare for and try a family law case, but the following steps will help you get to that naked cat – and may stop your client from wanting to skin the opposing party or their lawyer. A family law case is unique in that the client is typically going through something they never imagined they would face. On their wedding day, they stood before family and friends and recited their vows, believing they were entering a union that would last a lifetime. Instead, for whatever reason, it didn’t, and they have come to you for resolution. Whether this is the person leaving or the person being left, it is painful for them. They are going through a paradigm shift. Their future is going to be far different than what they envisioned. It’s quite uncertain, and no one likes uncertainty. However, as in a quote often attributed to American physicist and inventor Robert Goddard reminds us, “Just remember – when you think all is lost, the future remains.” Many of the clients will feel lost and afraid. For most, it is their first time going through a divorce. The fear and uncertainty of not knowing how the future looks causes people to act in different ways – most of them are not positive. Even worse for the clients is that they are dealing with two of the most important areas of their lives: their kids and their money. This is why you should brace yourself for heightened emotions when dealing with family law clients. BEGIN AT THE END The poet T.S. Eliot wrote, “What we call the end is often the beginning.”1 Actually, the best place to start with a client is at the very end. Begin every initial meeting with a client by asking them to define their ultimate goals. A new client is always quite eager to share their story. Tell them you want to hear everything about the facts of their case, but first, you want to know what end result they would like to achieve. Then, add that by understanding their goals, you can determine which of the facts in the case are helpful, useable and important. By stating this upfront to clients, they will be less inclined to engage in an “information dump.” They will understand that you don’t need to know everything about their situation and that learning what their goals are will help you focus the case. We are counselors to some degree, but we are trained in the law, so the resolution of their legal case is where we must focus. Often, the best thing a family law attorney can do for a client is to refer them to personal counseling, such as a licensed counselor or psychologist. This will not only steer the client to a professional who is better able to help them psychologically deal with their situation but might also save them money. When you ask them to determine their goals, be sure they understand each potential area of their case. For example, if they have minor children, explain the Law Practice Basics The Naked Cat By Allyson Dow and M. Shane Henry Preparing Your Family Law Case for Trial
JANUARY 2025 | 13 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. difference between sole and joint custody2 and what parenting time means, which will affect their goals. Then, talk with them a bit about child support. Explain how that works,3 find out what they owe and own, and then help them set reasonable child support goals. Find out if a name change is requested.4 Talk about tax exemptions. Find out if alimony5 is applicable and, if so, what their monetary goals are. Most importantly, listen and take notes. Lastly, read all of their goals back to them. Be sure you are on the same page and that you’re communicating clearly with the client. Once they hear you read their goals back to them, they might say, “No, that’s not what I wanted in that area.” By establishing exactly what their realistic, achievable goals are, you will have the basis for knowing where you will eventually end the case – hopefully, with a win. When you ask the client to give you the facts of their case, really listen. If possible, have a paralegal take detailed notes. It’s important that you take notes, too, but you should spend most of your time absorbing what the client is saying and processing that information. If you try to take down everything that is said, it will impede
THE OKLAHOMA BAR JOURNAL 14 | JANUARY 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. your ability to really listen. When they are finished sharing, go back through everything so they can see that you’ve been listening. It will increase their confidence in you, knowing that you understand the facts and where they would like to end up in terms of custody, visitation, child support, asset and debt division and alimony. SET EXPECTATIONS As you review each goal with the client, your next step is to set client expectations. For example, one parent will often ask that the other parent never see the kids again. Absent certain extenuating circumstances, that is not a reasonable expectation under Oklahoma law, so you need to correct those expectations with the client. Different attorneys do this in different ways. Some will confront the client directly. Personally, I like to explain to the client that I don’t make the laws in the state of Oklahoma and sometimes don’t even agree with them, but those are the parameters in which we’re working. Any solutions I can achieve for them will have to be filtered through the statutes and case law. And sometimes, if they keep pushing back, I say: “Look, I agree with you, and I wish the law were that way. So what I need you to do is run for office. Get elected and change the laws. But until then, here is the framework under which we’re going to have to work.” Usually, this backs them down and helps them understand the realities. As you are helping the client set reasonable expectations while reiterating each goal, you should also speak with them about the relevant legal standards and the authorities. This is a critical step. You have shown the client that you have listened to their goals and are helping them set reasonable goals. This reinforces that you care about them and what they have to say. You are also building your credibility by demonstrating that you know and understand the law and want the client to be a part of the process of goal setting and understanding what you’ll be doing together. COMMIT IT TO WRITING Your next step will be to start working on the request for relief. Each of the client’s specific requests should be listed for each area. Ideally, this list should be short and simple – one or two pages. For example, list custody and state precisely what your client is requesting. The request for relief will become your guide throughout the case. In addition, you can draw on it if your client goes off track, wasting money just to prove a point. If that happens, you can help the client refocus by asking, “How is this going to help us achieve one of these goals?” You can also remind them that they are getting ready to spend a lot of time and money on something that is not going to further one of their goals. When you start requesting discovery, your request for relief also helps you guide your case as it becomes the basis for gathering information and tailoring your questions. You may want to offer your client’s request for relief to the judge at the beginning of the trial as an aid to the court by stating that this is what your client will be requesting. Your trial strategy is going to be organized around this request for relief as you seek to show the judge what your client is requesting, why the request should be ordered, what the legal standards are and what facts support the request. Prepare the request for relief as soon as possible because it keeps everyone on the same page. I have tried preparing cases when the request for relief was completed right before trial, but that is a very inefficient and ineffective way to prepare.
JANUARY 2025 | 15 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. TRIAL PLANNING The next thing to do early on is start looking for the theme6 of the case. The theme is just a short phrase – a sentence or two that helps you sum up your client’s position in the case and helps separate your case from the hundreds of others the judge is hearing. Some themes our firm has used in the past, for example, have been “runaway mom,” “greed beyond the grave,” “big guy vs. little guy” and “set up for failure.” Explain to the client what a theme is, what it does and how it ties the facts together to make their case memorable. Next, after your client has shared the facts of the case, the two of you need to work together to prepare an outline and timeline of relevant events. For example, what events led up to the divorce? When we say relevant, we are referring to the events the judge needs to know that support the items in your request for relief. The request for relief and outline of events will serve as the basis of your case. Then, create a little story for each of these events. We call these chapters.7 As you are preparing chapters, you will hear things from your client like, “Oh, I’ve got a picture of that,” or, “I have text messages [or emails] supporting that!” This is the kind of evidence that will become the exhibits for your chapters. Throughout the case, work on crafting these chapters and obtaining what is needed for the supporting exhibits. Create a chapter index and an exhibit index, and Bates stamp the exhibits. Do this throughout the case so that if the client mentions a worthwhile new event or story, you can easily create a new chapter and start pulling together the relevant exhibits. Don’t rule anything out, as it is best to gather as much information and create as many chapters and exhibits as possible. Keep those chapters and exhibits together, index them, and Bates stamp the exhibits so they’re easy to find. When a client comes in with a big stack of text messages, photos, etc., take the time to go through them and Bates stamp them. There’s nothing worse than losing something critical to a case. Also, by letting the client see the chapters, exhibits and indexes, you are showing them that they’re part of the team. Ultimately, the client knows the facts of the case better than you do. They have lived it, so they can update chapters and assist with their case as an integral part of the team. MEDIATION CONSIDERATIONS In addition to preparing for trial, you need to take several steps to prepare for mediation. By the time mediation rolls around, you will know exactly what your client wants and why. Being armed with this information and what you learn from opposing counsel will allow you to properly advise your client about the range of settlement options. You will be able to tell your client whether something is or is not a good deal and what they likely would be facing if they go to trial. You will also be able to give them at least an idea of the best, likely and worstcase scenarios. Throughout this process, your job in getting a case ready for trial is, first, to work with the client to determine all of their goals, starting with the end goals, and then take all the facts and boil them down to the information, evidence and exhibits that are needed to present to the court. This is ideally to arm the judge with the information needed to rule in your client’s favor and achieve all of your client’s predetermined goals. Movie director and producer Ridley Scott said, “I think ... filmmaking is a team, but eventually there’s got to be a captain.”8 As the lawyer, your role is like that of a producer or a captain of a team. The recent movie Top Gun: Maverick was pared down from more than 800 hours of footage to its running length of two hours, 10 minutes.9 Despite the overabundance of solid footage that might have been included, it was condensed to only the very best takes. That is like your role as a trial lawyer – sifting through good material to find only the best for trial. CONSIDER THE AUDIENCE As we think about the judges in our cases, we know they are very hardworking and have a lot of pressure on them to be efficient and move their dockets along. They want to help people and take a lot of cases when the parties are unable to settle. Because trial time is a precious resource to all judges, the more we can boil down the relevant evidence and present it to the court, the more efficient, effective and successful we are in the courtroom. Besides facing enormous time pressures, judges’ attention spans and focus are limited, just as they are for all of us. Judges are human, after all. TED Talks present some of the greatest ideas and information being shared in the world today, even though the maximum time limit for each one is 18 minutes.10 TED Talks presenters have no choice but to boil their presentations down. Our attention spans
THE OKLAHOMA BAR JOURNAL 16 | JANUARY 2025 only last so long. In family law cases, clients often don’t understand this. They want to tell the judge every little detail. As their lawyer, our job is to highlight the most important information so that we can hold the judge’s attention and be the most effective. GET THE CLIENT INVOLVED Here’s an example of how to do that. Let’s say a client comes in with an overabundance of information, such as countless emails saved on a thumb drive. This is common. Usually, the best thing you can do is identify the main topics covered in these emails and then, for each topic, identify the three best examples to use as exhibits in the various chapters you’ll be presenting to the court. The client can then testify that there are hundreds of other examples just like those. The timeframe from the start of a case until the case goes to trial is typically several months or even more than a year. During that time, things will happen. Exhale. The parties may call or text you regarding new issues or developments that have arisen. You must have an organized way to capture that information; otherwise, right before pre-trial, you will have to go through a month’s or even a year’s worth of information and try to pull out the relevant details. That is not only stressful, but it is also an ineffective way to prepare your client’s case for trial. Instead, as information comes in, add chapters as needed. Do it right away. They don’t have to be perfect, but when an event happens, create a new chapter on it. Bates stamp and index all new information and evidence so that you’ll have an updated list of everything the client has sent you. This will help you in client meetings when the client says, “Well, I already sent you that.” You can pull out the exhibit index and ask the client to point out what they’re talking about because you’ve indexed everything they sent. Getting the client involved in their case is essential to giving them a sense of empowerment and control during their time of fear and uncertainty. Do this by sharing the chapters, indexes and corresponding exhibits with them throughout the process, including any new chapters or exhibits. Put it all in a cloud storage link, and send it to them for easy review. Bates stamping the exhibits is key because it lets you easily go to a specific document or page of a document in the cloud. Also, ask the client if they have any additional ideas when they review this material because no one else knows the facts of the case better than they do. Keep chapters to one or two pages. They should contain facts the judge needs to know regarding certain incidents. For example, if your client experienced an incident during a visitation exchange, the chapter would contain that information. When did it happen? Who was there? What happened? Who said what? Who did what? The chapter should be sourced to any supporting documentation, such as photos or videos of the exchange or relevant text messages sent or received before or after the exchange. As you prepare for trial, you can use the chapter index while working with the client and your paralegal (if you have one). You can decide on the order to present the chapters and evidence right before trial, a process called sequencing,11 but do not wait till the last minute to get the chapters ready. Procrastinating will make it very difficult to deliver a strong case at trial. Procrastination also puts a lot of stress on you, your staff and your client. Most judges statewide require mediation before pretrial. Fortunately, you’ll be well prepared for mediation because you’ll know what your client wants and what evidence you have as support – assuming you’ve established your client’s end goals in the request for relief and prepared your chapters, exhibits and indexes. All you need to do is send the request for relief, which can serve as the mediation statement, to opposing counsel and the mediator prior to mediation so that your client’s position on each issue is clear to everyone. This saves the client a lot of money and streamlines a mediation because the mediator doesn’t have to spend a lot of time in the room trying to figure out what the client wants. PRETRIAL The next step is pretrial. Pretrial is handled differently in family law cases than in other civil cases. The courts often handle it quickly and informally. Still, you’ll need to get a draft of the pretrial order started before pretrial. Identify what issues are agreed upon. Do the parties agree on jurisdiction and venue? If so, cite those details. List any other factual issues or matters the parties agree on as well. And then identify the issues that are not agreed upon. The judge will need to hear those issues and make a ruling on them. However, identifying them early on will help you organize issues for trial and pare things down so that the trial can be more efficiently run and more effective for both parties. Also, it’s always Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
JANUARY 2025 | 17 THE OKLAHOMA BAR JOURNAL smart to arrange for a phone call or in-person meeting with opposing counsel before pretrial to see which matters might be resolved in advance. Exhibits, of course, need to be listed on the pretrial order and exchanged with opposing counsel in advance of pretrial with enough time for the parties to review them and state any objections to the pretrial order. Different judges handle objections in different ways. Some allow objections to be reserved for trial. Nonetheless, in such cases, be sure to note the objections. Prepare for any objections that opposing counsel is going to make at trial. To summarize, exchange everything before pretrial, list all objections on the pretrial order, and then talk through those objections at the pretrial conference if the judge allows it. You are now prepared for both pretrial and trial – and the client has had significant input throughout your preparations. Schedule a phone or in-person meeting with opposing counsel before pretrial or certainly before trial to discuss which exhibits can be agreed upon and stipulated. For example, if you have a bunch of bank statements or tax returns, why waste time at trial laying the foundation for those kinds of things? Go through and see what can be stipulated. Then, when you first go on the record at trial, you or opposing counsel can announce to the judge the mutual understanding of the stipulated exhibits. Judges like that because it shows the attorneys are prepared, it saves trial time, and for the client, it even saves money. Also, by talking with opposing counsel beforehand about their objections and the reasons for them, you can see if something can be worked out. Typically, evidence in a family law trial is going to be admitted because it is not a jury trial. In bench trials, most judges allow parties to make their case with evidence being allowed in the record, viewing this process as separating the “wheat from the chaff.” Most of the time, relevant evidence is going to come in. Keep that in mind as you are deciding where to fight your battles. At trial, the judge’s time is a limited resource. So is the client’s money. We have a duty to our clients to be efficient and effective, which can help preserve the client’s resources as well as our own. The next step in efficiently preparing for trial is to go back and improve on the chapters. Again, work with your client to pare down which exhibits are used while fine-tuning factual details in the chapters. Throughout the trial, you need to be presenting evidence that supports your requests or refutes the requests of the opposing party. Otherwise, you are wasting time. Sometimes, you will decide not to use a chapter you’ve created. That’s perfectly fine; it’s better to have created chapters that are scrapped than to scramble to add a chapter at the last minute. CONCLUSION Every successful lawyer wants the same end result or naked cat – a win for their client. Although different attorneys may “skin the cat” differently to get there, having a clear understanding of a client’s end goals, being organized throughout the process, being well-prepared in advance of trial and clearly and succinctly presenting your case to the court is the most efficient and least stressful way to achieve that win. As stated in the quote often attributed to Chinese philosopher Lao Tzu, “New beginnings are often disguised as painful endings.” In the process of properly preparing your family law case for trial, you are successfully leading your client to their new beginning. ABOUT THE AUTHORS Allyson Dow practices family law and serves as a mediator. Ms. Dow served on the OBA Board of Governors from 2022 through 2024. M. Shane Henry practices in the areas of personal injury and family law. Mr. Henry has presented CLE courses on numerous topics related to Oklahoma family law. Ms. Dow and Mr. Henry are partners and trial lawyers at Henry + Dow + Masters + Aycock. They are also siblings. ENDNOTES 1. Line from the poem “Little Gidding,” T.S. Eliot. https://bit.ly/3CSBmO7 (last visited June 12, 2024). 2. 43 O.S. §§109 and 112. 3. 43 O.S. §§118-120. 4. 43 O.S. §121(A) (1-2). 5. 43 O.S. §121(B). 6. Thomas A. Mauet, Trial Techniques, Sixth Edition (2002). 7. Roger J. Dodd and Larry Pozner, CrossExamination: Science and Techniques (2018). 8. Kenneth Turan, “Man of Vision,” Directors Guild of America. https://bit.ly/4fbHbU6 (last visited Dec. 5, 2024). 9. “How Top Gun: Maverick Left 800 Hours on the Cutting Room Floor,” ScreenRant. https://bit.ly/3BlMfY5 (last visited June 12, 2024). 10. “TEDx Rules,” TED. https://bit.ly/3ZAPIeA (last visited June 12, 2024). 11. Roger J. Dodd and Larry Pozner, CrossExamination: Science and Techniques (2018). Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.
THE OKLAHOMA BAR JOURNAL 18 | JANUARY 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. Law Practice Basics Every Lawyer Should Use a Written Fee Agreement (This Means You!) By Richard Stevens
JANUARY 2025 | 19 THE OKLAHOMA BAR JOURNAL Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. A LAWYER’S CONTRACT WITH A CLIENT DOES NOT HAVE TO BE IN WRITING in most cases, but when a lawyer agrees to represent a new client or represent a current client on a new matter, the lawyer should prepare and execute a written contract. These agreements are known by several names, including engagement agreements, fee agreements, engagement letters, retainer agreements or simply fee contracts. Whatever the name of these agreements, reducing the agreement to writing can define the attorney-client relationship, define the duties and obligations of both the lawyer and the client, reduce the risk of misunderstanding and reduce the risk of grievances and disciplinary action. AGREEMENTS REQUIRED TO BE IN WRITING Contingent fee agreements must be in writing. ORPC 1.5(c) states, in part: A contingent fee agreement shall be in writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party (emphasis added). A contingent fee agreement must be in writing and must contain all the elements mentioned above to be in compliance with the Oklahoma Rules of Professional Conduct. Rule 1.5(b) requires: The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client (emphasis added). All written fee agreements, contingent or not, should contain the information required by 1.5(c) and more, and all fee agreements should be in writing. A WRITTEN FEE AGREEMENT SHOULD CLEARLY IDENTIFY THE CLIENT Defining the scope of the representation is essential. Essential to
THE OKLAHOMA BAR JOURNAL 20 | JANUARY 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. defining the scope of the representation is the identification of who is and who is not the client. A few common situations may give rise to uncertainty as to the identity of the client. For example, when a lawyer represents a business organization but not constituents, employees or officers of that organization. The identity issue may arise when a lawyer represents a partnership but not individual partners. Similarly, this issue may also arise when the lawyer represents constituents, partners or officers of organizations but not the organization itself.1 At times, someone other than the client may pay the fee for the representation. A third-party payor may think they are entitled to direct the representation or obtain confidential information about the representation. ORPC 1.8(f) prohibits a lawyer from accepting compensation for representing the client unless the client gives informed consent, there is no interference with the attorney-client relationship or the professional judgment of the lawyer and confidential information is kept confidential. When there is a third-party payor involved, a written fee agreement is a handy place to document informed consent. A statement signed by the thirdparty payor acknowledging that they have no ability to direct the representation or get confidential information without the consent of the client can also be included or contained in a separate document. An agreement about who (the client or the third party) is entitled to any refund of any unused part of the fee is also advisable. Clarity in an agreement about who is and who is not the client may prevent issues about confidential information, disqualification and later claims by constituents, officers, employees or a third-party payor, who believed they were represented by the lawyer. Providing that clarity in written form may later save a lawyer from disqualification motions, malpractice actions or disciplinary proceedings. A WRITTEN FEE AGREEMENT SHOULD CLEARLY DEFINE THE SCOPE OF THE REPRESENTATION The lawyer’s fee agreement should clearly set forth the scope of the representation. In many instances, the scope of the representation will be clear. In litigation, for example, a lawyer may be engaged to prosecute or defend a particular action settlement, judgment, dismissal or sentencing. In other representations – such as business formation, purchasing a business or real estate transactions – the scope of the representation may not be as clear. A lawyer who is engaged to represent a client in the acquisition of a business may need to list particular services that are included within the representation, such as preparing contracts, dealing with regulatory agencies, zoning issues and real estate closing. It is as important to define what the lawyer will not do in the course of the representation as it is to define what the lawyer will do. For instance, the lawyer engaged to represent a client in the acquisition of the business may want to specifically exclude conducting due diligence on the viability of the acquired business to avoid misunderstanding should the business not perform to the client’s expectations. REPRESENTING MULTIPLE CLIENTS When representing multiple clients in one matter, the lawyer must address issues that may arise in joint representation. Those issues include potential adversity between the clients, informed consent to the representation and the potential of a nonconsentable conflict as defined by ORPC 1.7(b) and Comment [17]. The agreement should address the issue of confidential information and how it will be shared. The clients should The written agreement may also remind the client of the uncertain cost of the representation when billed by the hour. If the fee is a flat or a fixed fee, it is imperative that the lawyer specifically describe the service to be provided.
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