Montana Lawyer December 2024/January 2025

DECEMBER/JANUARY 2024/2025 VOL. 49 | ISS. 6

Chief Justice Mike McGrath Retires After 50 Years of Distinguished Service to Montana

Also Inside: The Lost Land of Proximate Cause How to Have a Long and Successful Career as an Attorney

2024 Q4 MT Lawyer Print Ad.pdf 1 11/25/2024 11:45:20 AM

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DECEMBER/JANUARY 2024/2025 VOL. 49 ISS. 6

FEATURE ARTICLES

The Montana Lawyer is published 6 times a year by the State Bar of Montana, 33 S. Last Chance Gulch, Suite 1B, P.O. Box 577, Helena, MT 59624 as its official publication for all members.

Publisher | John Mudd Editor | Regina Mercado

email : montanalawyer@montanabar.org Montana Lawyer Subscriptions are a benefit of State Bar membership. Subscriptions for nonmembers are available for $50 per year. Ad rates and subscription information are avail able at www.montanabar.org/page/MTLawyer. Statements and expressions of opinion appear ing in the Montana Lawyer are those of the ad vertisers or authors. Unless specifically stated, they are not the official position or view of the State Bar of Montana, its officers or trustees, and they do not necessarily represent the views of all members of the State Bar of Montana. Postmaster: Send address changes to mon tanalawyer@montanabar.org.

STATE BAR OFFICERS President Antoinette “Toni” Tease, Billings President-Elect Aislinn Brown, Helena Secretary-Treasurer Erica R. Grinde, Missoula Immediate Past President J. Stuart Segrest, Helena Chair of the Board Albert “Rich” Batterman, Baker BOARD OF TRUSTEES Area A Ryan G. Hennen, Whitefish Area B Beth Hayes, Missoula Dana L. Hupp, Missoula Natasha Jones, Missoula Area C Kaylan C. Minor, Dillon Area D Anthony Gallagher, Great Falls Claire Lettow, Great Falls Area E Albert “Rich” Batterman, Baker Area F

Chief Justice Mike McGrath Retires After 50 Years of Distinguished Service to Montana

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The Lost Land of Proximate Cause

How to Have a Long and Successful Career as an Attorney

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ALSO IN THIS ISSUE 4 PRESIDENT’S MESSAGE

Position Vacant, Helena Anna Kecskes, Helena Lindsey Simon, Helena Area G Sherine Blackford, Bozeman Matthew Haus, Bozeman Area H Shane P. Coleman, Billings Eli Patten, Billings Michelle Sulivan, Billings ABA DELEGATES Michael Klepperich, ABA Delegate ( Young Lawyers’ Division ) Matt Thiel, Missoula (Statewide Delegate) Tucker Gannett, Billings (State Bar Delegate)

18 PRACTICING WELL 23 COURT NEWS 25 IN MEMORIUM 26 JOBS/CLASSIFIEDS

6 MEMBER NEWS 8 STATE BAR NEWS 11 ELECTION NEWS

PRESIDENT’S MESSAGE The Importance of the Aloha Spirit in Preserving Democracy

Where true human nature lies along the spectrum from the Aloha Spirit to Machiavelli’s much dimmer view will never be fully resolved, but we can all agree on certain aspirational prin ciples, many of which are reflected in the U.S. Constitution, as well as the Montana Constitution. The preamble to the U.S. Constitution speaks of (a) forming a more perfect union, (b) establish ing justice, (c) ensuring domestic tranquility, (d) providing for the common defense, (e) promoting the general welfare, and (f) securing the blessings of liberty to ourselves and our prosperity. The preamble to the Montana Constitution men tions a desire (a) to improve the quality of life and equality of opportunity and (b) to secure the blessings of liberty for this and future generations. Regardless of political persuasion, it is hard to find fault with these goals. The question is which form of government—a democracy or an autocracy— will best achieve them. First, let’s define these terms. An autocracy is a form of government in which power “is concen trated around one individual with limited or no checks and balances on that person’s authority.” 8 In a democracy, by contract, governing authority is granted “to the people or to governing officials through free elections.” 9 According to some, democracies are slow and chaotic, and autocra cies are fast and coordinated. 10 After visiting the fledging United States of America in 1831-32, Alexis de Tocqueville observed two risks associ ated with a democracy; the first is the tendency to degenerate into a “soft despotism,” and the second is the tyranny of the majority. 11 The separation of powers—as reflected in the U.S. Constitution— was the founding fathers’ attempt to address the risks identified by de Tocqueville. The benefits of a democracy are obvious to many, but they bear repeating here. According to the U.S. Agency for International Development, democracies “are more peaceful, experience higher economic growth and lower poverty rates, protect

In 1986, the Hawaiian legislature enacted the Aloha Spirit law, which requires judges and public officials to “give consideration to the Aloha Spirit” when fulfilling their official duties. The “Aloha Spirit” is defined as “the coordination of mind and heart within each person,” and the statute encour ages “[e]ach person [to] think and emote good feelings to others.” Hawaii Revised Statues § 5-7.5. Most people recognize “aloha” as a greeting, but it is also a reflection of Hawaiian values. The spirit of aloha encompasses peace, kindness, compassion and responsibility to future generations. 1 Contrast the Aloha Spirit with Machiavelli’s view of human nature, in which humans are “self ish by nature and opportunists.” Machiavelli 2 believed that human beings “tend to fulfil their self-interest” and that “men want protection but lack the strength to protect themselves.” As a result, “they rely on the state to seek security, and the government provides protection from internal as well [as] external conflicts and rivals.” 3 Machiavelli’s sentiments are echoed in the Federalist Papers. As summarized by at least one commentator, “Human nature does not prevent men from leading government, so long as the government is set up in a way that acknowl edges reality and constrains the worst part of an individual.” 4 In Federalist Essay No. 6, written by Alexander Hamilton in 1787, in advocating for a federal government, Hamilton adopts a view of human nature in which individuals’ desire for power and refusal to compromise (which Hamilton viewed as the base state of human nature) is countered by their desire for equality and safety. 5 In Federalist Essay No. 51, published in 1788, James Madison recognized that “people who run government can be corrupted and can manipulate and take advantage of the power that has been bestowed upon them.” 6 According to Madison, “If men were angels, no government would be necessary.” 7

Toni Tease is a regis tered patent attorney and a solo practitioner who specializes in intel lectual property law. Her office is located in Billings, Montana, and her website is at www. teaselaw.com.

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the environment, provide more clean water, have higher life expectancies, and see more equitable distribution of education.” 12 The U.S. Department of State asserts that “[s] upporting democracy not only promotes such fundamental American values as religious freedom and worker rights, but also helps create a more secure, stable, and prosper ous global arena in which the United States can advance its national interests.” 13 As the World Justice Foundation explains, democracy and the rule of law are inextricably linked:

Endnotes 1

Hawaiian Arts & Culture: The Expression of Aloha, https://www.gohawaii.com/hawaiian-culture#:~:text=The%20 spirit%20of%20aloha%20%E2%80%93%20being,and%20 responsibility%20to%20future%20generations, accessed on June 20, 2024. 2 Niccolò Machiavelli was an Italian Renaissance po litical philosopher and statesman who lived in Florence, Italy from 1469 to 1527. Source: https://www.britannica.com/ biography/Niccolo-Machiavelli, accessed on June 20, 2024. 3 Machiavelli’s Prince and His Idea of Statecraft, https://www.drishtiias.com/blog/machiavellis-prince and-his-idea-of-statecraft#:~:text=On%20Human%20 nature&text=Machiavelli%20views%20humans%20as%20 selfish,the%20strength%20to%20protect%20themselves (Nov. 30, 2021), accessed on June 20, 2024. 4 Salzman, Jenna Ashley, “Exploration of Human Nature in the Federalist Papers” (2019). Honors College. 64 at 8 (citation omitted). 5 Id. at 11. 6 Id. at 24-25. 7 Id . at 25. 8 Carnegie Council for Ethics in International Affairs, https://www.carnegiecouncil.org/explore-engage/key-terms/ autocracy-vs-democracy, accessed on June 20, 2024. 9 Id. 10 Niblett, Robin, and Leslie Vinjamuri, “Op-Ed: Why Democracies Do Better at Surviving Pandemics,” Los Angeles Times (May 26, 2020). 11 Democracy in America, https://en.wikipedia.org/ wiki/Democracy_in_America#:~:text=Tocqueville%20specu lates%20on%20the%20future,a%20tyranny%20of%20the%20 majority, accessed on June 20, 2024. 12 Democracy, Human Rights and Governance, https:// www.usaid.gov/democracy#:~:text=At%20USAID%2C%20 we%20believe%20democracy,more%20equitable%20distribu tion%20of%20education, accessed on June 20, 2024. 13 Democracy, https://2001-2009.state.gov/g/drl/de moc, accessed on June 20, 2024. 14 World Justice Challenge 2024: The Rule of Law: Foundation of Democracy, https://worldjusticeproject.org/ world-justice-challenge/world-justice-challenge-2024-rule law-foundation-democracy, accessed on June 20, 2024. 15 Is it beyond the scope of this article to address the many atrocities historically associated with autocratic regimes whose power is unchecked. While democracy is often described as “messy,” and injustices abound, a healthy democracy constantly strives to achieve the ideals described above. 16 WJP Rule of Law Index®, https://worldjusticeproject. org/rule-of-law-index/global, accessed on June 20, 2024. 17 Reagan, Ronald, Farewell Address to the Nation, https://worldjusticeproject.org/rule-of-law-index/global (Jan. 11, 1989), accessed on June 20, 2024. The views expressed in this President’s Message are those of the State Bar President. They do not necessarily reflect the views of all State Bar members and are not an official position of the State Bar itself.

While democracy establishes who exercises power and decision making, rule of law guides critical concerns about how that power is exercised, reinforcing democratic societies’ ability to realize key principles of representation, participation, equality, and accountability. Strong rule of law thereby helps sustain democracies beyond elections and establishes the rules that allow demo cratic institutions and processes to flourish. It ensures that citizens can hold their leaders accountable, that the transition of govern ment power is subject to the law, that elected officials do not use their office for private gain, and that people can know and un derstand the law and have access to justice to uphold their rights and resolve disputes peacefully. 14

Against this backdrop, how are we doing? If the con sensus is that a democratic form of government is more likely to bring us closer to our aspirational ideals than an autocratic regime, 15 where do we stand? According to the World Justice Project Rule of Law Index, 16 the United States ranks 26th among 142 countries—not exactly the “shining city upon a hill” of which Ronald Reagan spoke in 1989. 17 We have fallen behind two dozen countries, including Germany, New Zealand, Canada, Australia, the United Kingdom, Hong Kong, Singapore and Uruguay, in achieving and preserving our democratic ideals. Distilled into a single term, our founding fathers endeavored to create a system of “self-government.” Self-government, however, requires participation, process, debate, respect, and patience. Without these qualities, democracy will not thrive. Indeed, if all persons could be counted on to exhibit love and respect toward one another, never to abuse power but only to exercise it for the common good, to exhibit peace, kindness and compassion in our interactions with others, and to make decisions with future generations in mind, few checks on unfettered power would be necessary. The system that we have acknowledges the failings of human nature and attempts to counteract them through the checks and balances inherent in the separation of powers. If we wish to maintain our right to self-government, then it is imperative that we protect our democratic institutions.

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MEMBER NEWS

GUIDELINES FOR SUBMITTING MEMBER NEWS The Montana Lawyer welcomes news from members includ ing announcements of new positions, advancements, hon ors, appointments and publications. There is no charge for Member News submissions. If you have news you would like to submit to the Member News section, you can email it to montanalawyer@montana bar.org. Please direct any questions to the same address. We will include firm name, location, the change that is being announced, attorney’s name, law school, practice areas, and a high-resolution photo.

CAREER MOVES Garlington, Lohn and Robinson an nounce the addition of two attorneys to the team. Adam M. Taub and Christine A. Lindley joined the firm in 2024. Adam M. Taub graduated from the University of Montana School of Law in 2024. During his time in law school, he served as Articles Editor

for the Montana Law Review. He completed his Clinical Program

and effective representation to each client. Outside of work, Abby enjoys reading, hiking, and spending time with her husband and two Golden Retrievers Harper and Hobbes. Abby can be reached at (406) 201-9660 or Abby@hathaway lawgroup.com. Milodragovich, Dale and Steinbrenner, P.C. (MDS)

with the Honorable Shane Vannatta of Montana’s Fourth Judicial District and worked as a judicial intern for both the Honorable Kathleen DeSoto and the Honorable Brian Morris. He is currently pursuing a Master of Law (LLM) in Taxation at the University of Florida. At Garlington, Lohn & Robinson, Adam assists with legal matters spanning many areas of practice and is particularly interested in transactional work and estate planning. He expects to receive his LLM in 2026 and hopes to incorporate this education into his practice. Christine Lindley joined Garlington after working with the Ravalli

welcomes Rebecca Poliquin as as sociate attorney. A 2024 graduate of the Blewett School of Law at the University of Montana, Rebecca distinguished her self through her leadership roles as Honor Code Student Representative and Faculty Committee Student Representative. She was also an active member of the Mock Trial Team and the Margery Hunter Brown

County Attorney’s Office as a Deputy Civil Attorney. There she handled a variety of issues and cases for county local government, ranging from land use (including various administrative development processes), commercial real estate transactions, local gov ernment administration, property

Indian Law Clinic. Rebecca completed her undergraduate studies at Carroll College in Helena (2018) and has been admitted to practice before both the State Bar of Montana and the U.S. District Court, District of Montana. Her professional journey with MDS began during her law school years when she joined our practice as a legal intern. Rebecca has gained valuable experience in criminal appellate practice, service in the public health nonprofit sector, and time spent coaching Carroll College’s nationally recognized debate team. Originally from Arizona, Rebecca has embraced the Big Sky Country as her chosen home. Outside of her legal practice, Rebecca enjoys hosting gatherings around her dinner table, test ing her knowledge at local trivia events, and engaging in spirited discussions about cinema. Milodragovich, Dale & Steinbrenner, P.C. (MDS)

taxation, employment, and labor law, among others. Christine graduated from Pepperdine Caruso School of Law in 2023. At Garlington, Lohn & Robinson, Christine assists with legal matters including civil litigation, insurance defense and commercial litigation. Hathaway Law Group announces the addition of

Abby Shea. Abby graduated from University of South Florida with her bachelor’s in English literature. She then went on to earn her J.D. from the

Alexander Blewett III School of Law at the University of Montana in 2024. During law school, Abby demonstrated her com mitment to advocacy as president of the School’s American Civil Liberties Union chapter and was an active member of the Women’s Law Caucus, Environmental Law Group, UM Outlaws. She started at HLG as an intern in 2023. Abby is driven by a passion for helping individuals navigate chal lenging life transitions, focusing her practice on family law, estate planning, and appellate advocacy. She understands the sensitive nature of these legal areas and strives to provide compassionate

welcomes Sean Peterson as an at torney at our firm. A native of Missoula, Montana, Sean graduated from Big Sky High School before attending Montana State University, where he earned a degree in Political Science with a minor in Economics, graduating with Honors. He went on to earn a law degree from Widener Commonwealth University Law School in Harrisburg, PA graduating Cum Laude with certificates in

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Parsons Behle & Latimer Welcomes McKenna R. Ford

Parsons’ Missoula office is pleased to announce the addition of associate McKenna R. Ford to its intellectual property, litigation and employment practices. McKenna received her J.D. from the University of Montana School of Law where she graduated with High Honors and served as editor-in-chief for the Montana Law Review . Learn more about our Missoula attorneys at parsonsbehle.com .

127 E. Main Street, Suite 301 | Missoula, Montana 59802 | 406.317.7220 A Different LEGAL PERSPECTIVE

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United States District Court for the District of Montana. In 2021, she moved back to the Great Falls area with her husband, Aaron, where they spend their free time cheering on Notre Dame and Montana State University. Lindsay is the founder of the Montana Legacy Project, a non profit organization that provides support to rodeo committees and agricultural ambassadors. Her background in rodeo, 4-H, and agriculture sparked her interest in law and continues to be a driv ing force behind her passion for helping small business owners, ranchers, and farmers. Shaffer joins Moore, Cockrell, Goicoechea & Johnson, P.C. Shaffer attended the University

Administrative, Constitutional, and Environmental Law. Before joining MDS, Sean gained valuable experience interning with the Missoula County Attorney’s Office and three non-profit organizations focused on environmental, civil rights, and con stitutional law issues. Sean also served as Deputy Ravalli County Attorney for two years, where he prosecuted a range of cases including misdemeanors, felony violent crime, and DUIs. Outside of his legal career, Sean enjoys spending time with his fi ancé, two cats, and dog. He is an avid runner, enjoys cooking and baking, and is a passionate football fan. Lindsay Morse (Garpestad) has joined Front Range

Law, PLLC in its Great Falls Office. Lindsay was raised on her family ranch in Simms, Montana. She received her undergradu ate degree in Political Science and Business Administration from Carroll College in Helena, Montana. Upon graduating, she represented

of Wisconsin - Superior, where he received a Bachelor of Science degree in legal studies. Shaffer earned his law degree from Mitchell Hamline School of Law. After law school, Shaffer served as a Judicial Law Clerk for the Third Judicial District of

the Montana Professional Rodeo Cowboys Association Circuit as Miss Rodeo Montana. While attending law school at the University of Montana, she worked in the Veteran’s Advocacy Clinic where she assisted veterans in the appeal process. Her practice focuses on the areas of estate planning, taxation, real estate, business planning, and trust and estate administration. She is licensed to practice law in both Montana courts and the

Minnesota prior to relocating to Kalispell, Montana, where he primarily worked as a civil litigation and transactional attorney. Tim plans to work in all facets of MCGJ’s litigation practice.

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STATE BAR NEWS

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MONTANA LAWYER

Chief Justice Mike McGrath Retires After 50 Years of Distinguished Service to Montana JOHN MUDD

After serving two terms as Montana’s Chief Justice, Mike McGrath made his last official act before retire ment to preside over the swearing-in ceremony of his successor, Cory Swanson. McGrath also presided as Hon. Katherine Bidegarry took the oath of office, replacing re tiring Justice Dirk Sandefur on Montana’s highest court. Both ceremonies took place on January 6 in the Supreme Court chambers. For McGrath, the day marked the end of a 50-plus year legal career, including service as Lewis & Clark County Attorney, Montana Attorney General, and Chief Justice of the Montana Supreme Court for the previous 16 years. Chief Justice Swanson praised McGrath to The Montana Lawyer. “Chief Justice McGrath has been a stal wart leader of the Court and a public servant for his entire career,” Swanson said. “I’m honored to follow him in of fice, and aspire to lead the Court as effectively has he has.” State Bar President Antoinette (Toni) Tease also rec ognized McGrath’s service. “We thank Justice McGrath for his service and are fortunate to have had a Chief Justice who is committed to the rule of law and to improving access to justice for the citizens of our state.”” Tease said. “His leadership has had a lasting impact on our judiciary and our state.” McGrath was raised in Butte and attended the University of Montana, graduating in 1970. After serving Chief Justice Mike McGrath was recently honored with the Montana Chapter of the American College of Trial Lawyers’ (ACTL) inaugural Judicial Independence Award. ACTL President-Elect Rick Deane presented the award. The ceremony included remarks from incoming state chair, Randy Bishop, who highlighted the American College of Trial Lawyers’ long-standing commitment to elevating the standards of trial practice and defending judicial independence. The event underscored the critical role of the judiciary in preserving constitutional rights and the rule of law. Chief Justice McGrath’s acceptance speech reflected on the importance of judicial independence, the contribu tions of Montana’s judiciary, and the support of his family throughout his career.

Cory Swanson, right, takes the oath of office to become chief justice of the Montana Supreme Court on Jan. 6.

in the United States Air Force, McGrath attended Gonzaga University School of Law, graduating in 1975. Fellow Butte native Robert M. (Bob) Carlson, former State Bar President and President of the American Bar Association during McGrath’s second term, echoed Tease. “Mike McGrath was a dedicated public servant who put family, the people of Montana and the legal profession first,” Carlson said. “But in doing so he never forgot his Butte roots. His thoughtful approach to the work of the Montana Supreme Court will be missed.”

Chief Justice McGrath Receives Judicial Independence Award

Pictured: Former Chief Justice McGrath receiving the Judicial Independence Award from ACTL’s Montana State President Mikel Moore and President Elect, Randy Bishop

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Excerpted Comments of Randy Bishop [2025] will mark the 75th anniversary of the American College of Trial Lawyers. Fellowship in the College is extended by invitation to lawyers who have mastered the art of courtroom advocacy and whose professional careers have been marked by the highest standards of ethical conduct, profes sionalism, civility and collegiality. The College strives to improve and elevate the standards of trial practice, the administration of justice and the ethics of the trial profession. We hope you agree that today’s program served those goals. Membership in the College is limited to 1% of the total number of lawyers in the State and includes every type of courtroom practitioner: Criminal prosecution, criminal defense, lawyers for plaintiffs and defendants in civil disputes as well as those specializing in family law, arbitrations and the like. As a consequence, the College speaks with a broad and balanced voice. Nearly twenty years ago, the American College of Trial Lawyers described judicial independence as “decision-making free from outside influence and political intimidation,” and recognized such independence as a cornerstone of democracy that must be defended. Nationally, the College has both a Judiciary Committee, of which Montana Fellow Tim Racicot is a member, and a separate commit tee focused exclusively on Judicial Independence of which United States Magistrate Judge Carolyn Ostby and I are members. During the founding of our nation, Alexander Hamilton wrote in Federalist No. 78 that, unless the point of the Revolution is simply to substitute one form of tyranny for another, it is essential that no single person or body be vested with unlimited power. Hamilton emphasized that Congress may enact laws, and the Executive may exercise powers, but only within constitutional limits. Hamilton wrote that constitutional limitations can be “preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution, void. Without this, all the reservations of particular rights or privileges would amount to nothing.” Judges know that their decisions will some times be unpopular, but their oath of office grants no quarter – they have sworn to uphold the Constitution even in the face of contrary opinions of legislators, the Executive Branch, the public – and, at times, their friends, families and even their personal preference. This is “the weight of

the robe,” and it places judging among the most demanding forms of public service. Throughout his tenure, Chief Justice McGrath has established himself as a patient and tireless de fender of judicial independence and the rule of law. Excerpted remarks of Mike McGrath I deeply appreciate the decision of the Montana Fellows of the American College of Trial Lawyers to draw much needed attention to the subject of judicial independence and I am honored to be the first recipient of this important award. I want to begin by thanking my wife, Joy, who is present here today, along with many members of my family. Their love, encouragement, and understanding has been constant throughout my professional life. In situations such as this it is often said, but never in a more heartfelt way, that their support has made my career possible. I have been privileged over the past sixteen years to serve on the Supreme Court with extraor dinary Justices. Before joining the Court, each was an excellent lawyer and, upon joining the Court, each has served Montana with dedication and a genuine commitment to the rule of law in general, and the statutes and constitution of the State of Montana in particular. In addition, Montana’s judiciary is served by a remarkable group of exceptionally hard-working and talented district court judges, each of whom not only understands, but genuinely believes that an independent judicial branch is the linchpin of our democracy. Their job is to resolve disputes. It is difficult, and they do it based upon the rule of law, not personal point of view or political considerations. Over my many years in the law, and especially during my years as Chief Justice, I have learned that our system of justice works because the public has faith in it. And with all due respect to my col leagues on the federal bench who are present here today, I believe the public’s confidence in its judges is attributable to the fact that all Montana judges must stand for election within their community. By and large, Montanans go into court confi dent that the judge in their case will listen, apply the law as written and treat them fairly. Recent surveys show that Montana’s judiciary has earned an 86% approval rating. Moreover, 95% of respon dents report that the Montana Supreme Court does its work in a timely manner and respects precedent.

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ELECTION NEWS

Judicial Transitions

Montana Supreme Court Chief Justice Mike McGrath Retired; succeeded by Chief Justice Cory Swanson Justice Dirk M. Sandefur Retired; succeeded by Justice Katherine M. Bidegaray District Courts Judge Kurt Krueger – 2nd Judicial District Replaced by Judge Frank Joseph Judge Ray Dayton – 3rd Judicial District Replaced by Judge Jeff Dahood Judge Dusty Deschamps – 4th Judicial District Replaced by Judge Tara Elliott

Judge Bob Allison – 11th Judicial District Replaced by Judge Paul Sullivan Judge Randy Spaulding – 14th Judicial District Replaced by Judge Adam Larsen Judge David Cybulski – 15th Judicial District Replaced by Judge Benjamin Fosland Judge Nick Murnion – 16th Judicial District Replaced by Judge Rennie Wittman 20th Judicial District:

The position is currently vacant, with a successor to be an nounced. The State Bar will provide updates as the transition progresses.

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The Lost Land of Proximate Cause THOMAS M. O’TOOLE, PH.D & KEVIN R. BOULLY, PH.D JURY ECONOMICS $130M. That was the average damage award across the three mock jury panels we used to test liability and exposure for our client who was the defendant in a wrongful death case. The mock jurors were angry about the evidence they saw supporting the plaintiff’s negligence claim and they wanted to send a loud and clear message. Message received. Unfortunately, as absurd as this average damage award was, the plaintiff’s attorney had an even more absurd settlement demand, making it certain this case would proceed to trial. Frustrated by their inability to settle the case, the client decid ed to conduct another mock trial to see if there was anything we could do to improve the case before trial. One change was made, and the impact was significant. In the second mock trial, two of the three mock jury panels found in favor of the defense and the third panel awarded $65M. Notably, in the panel that found for the plaintiff, three plaintiff advocates wanted to award well over $100M but two well-armed de fense advocates were able to exert downward pressure on the final amount. Armed with these new insights from the changes we had made to the case presentation, we marched into the court room and delivered a short and targeted opening statement molded around the strategy change we made for the second mock trial. That evening, seeming to be in some sort of panic, the plaintiff asked to discuss settlement, dramatically reduc ing their demand to an amount no one expected. The defense countered with an even lower number and the plaintiff im mediately accepted. What was the change that we made between the mock trials? It was how we talked about proximate cause. The defense attorneys knew from day one that they wanted to argue proximate cause, but that argument was completely lost on the mock jurors in the first mock trial even though the attorney for the defense had clearly said the defense disputed that anything the defendant had done had caused this tragic incident. It was frustrating for all involved. This problem is not unique to this case. Proximate cause has become the land of lost opportunity for defendants.

When we entered the profession two decades ago, several de fense attorneys told us cases could not be won on proximate cause. They had anecdotes at best, but no real data to support this argument, yet they felt strongly about it. We have seen many defense attorneys struggle and fail on proximate cause in mock trials over the years, so this viewpoint is not particu larly surprising. The misconception however is that this argu ment cannot be won when our mock trial experience shows instead that defendants simply need to change how they talk about proximate cause. In this month’s column, we want to shine a light on how defendants can improve their chances of success on proximate cause arguments. The first thing to understand is that jurors do not nec essarily think about causation on their own. Instead, the reasoning often seems to be, if you did something wrong, you should pay the price. They never qualify that line of reason ing with, “and what you did wrong was a cause of the injury.” Instead, causation often goes assumed even when it should not be. This means the default mode for most jurors is to not even think about causation. Verdict forms often reinforce this lack of attention to proximate cause. In many trial venues, the verdict form does not have a specific question for proximate cause. Instead, the verdict form is designed based upon the assumption that jurors will understand every element of the claim and evaluate each independently. This is important because it means there is nothing on the verdict form that brings jurors’ attention specifically to proximate cause during their discussion in deliberations. And unfortunately, the ver dict form is the only document we can be certain that jurors will review in their deliberations. We certainly hope they will look at the jury instructions, but even when they do in our mock trials, they seem to gloss over proximate cause. Consequently, the first critical step for prevailing on proximate cause is to be so explicit about the argument that jurors do not lose sight of it in deliberations, and to establish the concept in their minds. This is the problem we see so often in our mock trials: defense attorneys think they are be ing clear about their causation argument, but it still ends up

MAX BAUCUS I NST I TUTE

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sounding like a negligence argument and, as noted earlier, jurors do not tend to go there on their own. Instead, the proximate cause argument just seems to get drowned out by everything else they hear on liability. This is why it is so im portant that defense attorneys walk jurors through how the law recognizes one can be negligent without that act of neg ligence being a cause of the injury suffered by the plaintiff. Examples can be helpful in making this point. For example, jurors might conclude that it was negligent for a defendant corporation not to train its employees on a certain subject, but also conclude that the lack of training was not an actual cause of the injuries the plaintiff suffered. Once the concept has been clearly laid out for the jurors, the next step is to repeat and repeat and repeat. Repetition is the most rudimentary form of persuasion. Trial is a battle of salience, and the prevailing party is usually the party that exerts the most influence over what the jurors remember when they get to the deliberation room. Consequently, it is critical that the jurors have repeated exposure to the explicit proximate cause argument. Defense attorneys can be creative in their strategy of repetition. For example, they could build sign-posting questions into witness testimony that reinforces the focus on proximate cause. This could be as simple as a question like, “Dr. Smith, as you are aware, the plaintiff not only has to prove that my client was negli gent, but they also have to prove that that negligence was a cause of the injury to the plaintiff, so I want to ask you a few questions about causation.” This kind of signposting, used with multiple witnesses, is a simple repetitive device to help keep causation at the forefront of how jurors think about the case. Graphics can also help jurors understand the indepen dent element of proximate cause along with the separate and independent burden of proof that comes with it. The most common visual analogy used in these graphics is a bridge, where each independent element of the claim repre sents a section of the bridge. The message is that the plaintiff must independently establish each element of the bridge

before they can get to the other side, which is a verdict in their favor. A graphic like this should be used early in trial in opening statement to establish the concept and then used again in closing argument to reinforce the point. Closing argument is another critical opportunity to shape the way jurors think about the key questions in the case. While most attorneys tend to focus on arguing in clos ing arguments (it’s in the name after all!), it is even more important to teach jurors how to deliberate in the closing argument and arm defense advocates with the tools they need to take control of the discussion. For most jurors, jury duty is a new and unfamiliar experience for them, so they don’t have a clear understanding of how delibera tions are supposed to occur. This is why prior jury duty is the number one predictor of who will become foreperson. Jurors are quick to defer to someone who seems to know what they are doing. Jurors want this guidance. They want to be shown exactly what to do in deliberations. They want to be shown where to begin and want to be given shortcuts. Consequently, defense attorneys should use this opportuni ty to drive the proximate cause arguments. For example, the defense attorney might suggest jurors focus on proximate cause first when they begin their discussion since the other issues in the case won’t matter if they conclude the alleged negligent act was not a cause of the plaintiff’s injury. Jurors might find this compelling since it simplifies the process. Even better, if jurors follow this suggestion, they begin de liberations on an issue that favors the defense, which creates natural momentum in favor of the defense in deliberations. Following the suggestion of where to begin, defense at torneys should then walk jurors through the verdict form, highlighting the key jury instructions along the way that make it clear that proximate cause is a separate question with its own independent burden of proof that jurors must answer, even if it is not explicitly asked on the verdict form. For example, the defense can start by highlighting the ques tion on the verdict form where proximate cause is relevant. In an ideal world, this is literally a proximate cause question

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such as, “was the negligence of the defendant a proximate cause of injury to the plaintiff?” Unfortunately, many judges do not use verdict forms with specific proximate cause ques tions on them. In these instances, the defense attorney should show jurors the relevant question on the verdict form and then show them the key jury instruction for that question, high lighting any sentences in the instruction that reinforce that this is a separate and independent element the jurors must decide. After showing these items, the defense attorney should then make the proximate cause arguments and explain what they mean for how jurors complete the verdict form. Beyond the case presentation, defense attorneys arguing a proximate cause defense also need to probe for jurors who are going to reject this concept in voir dire. There are some people who simply do not like the idea of letting a defendant “off the hook” because their negligent act did not cause the injury to the plaintiff. Some jurors want to punish a defendant for a negligent act regardless of its causal connection to the plaintiff’s injuries, so it is important to identify these people in jury selection using a de-selection approach. One example of a forced-choice question we have used in these cases is as follows: “I want you to imagine a situation for

people who would still find against the defendant in that situation because they feel like it would be letting the defendant off the hook to say the defendant was negligent but not a cause of the plaintiff’s injuries. I know other people who would disagree and say, if that negligence was not the cause of the plaintiff’s injuries, you cannot find against the defendant. By a show of hands, how many would tend to agree more with that first group and find

against the defendant because it would feel too much like letting the defendant off the hook to say it was negligent but that negligence did not cause the plaintiff’s injuries? ” Overall, the key to success on proximate cause is being explicit in establishing the concept for jurors and then holding their hand as the defense attorney shows them how it works and what it means for how they fill out the verdict form. The strategy should be akin to the instructions for putting together Ikea furniture. Defense attorneys should walk jurors through each individual step and show them how that builds up to a defense verdict on proximate cause. Thomas M. O’Toole, Ph.D. is President of Sound Jury Consulting in Seattle, WA. Kevin R. Boully, Ph.D. is Senior Consultant at Perkins Coie in Denver, CO.

a moment where you felt a defendant in a lawsuit was negligent, but you did not believe that negligence was the cause of the injuries to the plaintiff. I know some

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Parsons Behle & Latimer’s legal perspective is simple – we know our clients, understand their businesses and provide unsurpassed legal services from local attorneys. Our Missoula- and Helena-based attorneys understand Montana clients from family-owned farms and ranches to the largest corporations. We provide value-focused representation in water and environmental law; corporate, real estate and tax law; employment law; and litigation and can leverage firmwide resources to meet your legal needs. From our offices to yours, Happy Holidays. parsonsbehle.com .

John E. Bloomquist Of Counsel Water

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Abigail R. Brown Helena Managing Shareholder Water

Ross P. Keogh Missoula Managing Shareholder Corporate & Tax

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Emma B. Dugenske Associate Corporate

McKenna R. Ford Associate Intellectual Property

Elliott D. McGill Associate Litigation

Leah Trahan Associate Employment & Labor

Liz M. Mellem Director, V.P. and Sec. Employment & Labor

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Betsy Story Associate Environmental

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PRACTICING WELL Navigating Tough Conversations: Tips for Civil Discourse MERI ALTHAUSER

Are we trying to understand each other? Are we trying to identify a solution? Nothing irks me more than folks having a rousing conversa tion just to hear themselves talk… but, if that’s the name of the game it may not be important to be involved at all and you can busy yourself with the dishes. But you might also decide that this conversation needs to be interrupted before anyone gets personal. If there’s a possibility to build mutual respect, rather than simply declar ing a winner, then this conversation might be worth salvaging. With curiosity, try asking “why do you want to talk about this now?” 2) Listen actively and be curious. Don’t assume your opponent is going to say just what you’ve already heard on the news and is full of garbage. Hear out the position and get curious about clarifying their reasoning. Even if you only spend your time listening (without agree ing) you have likely built a modicum of trust that will go a long way when it’s your turn. Don’t forget that as an attorney other people probably hear your clarifying questions as cross-examination questions, so be sure to watch your tone and non-verbal communica tion to ensure you’re being curious and not trying to prove a point with your questions. If you’re having a hard time not getting cross-ex aminy, try mirroring: just say the last few words the other person said with a curious tone. “With a curious tone?” Yes! With a curious tone. Then the per son will likely continue to volunteer more

Happy early winter, Montana Lawyers. I hope that you’re staying warm and that the hol idays treated you well. In our current political climate I’m guessing the holidays entailed a few if not many awkward or uncomfortable conver sations with family over hot button topics (or taking valiant efforts to avoid hot-button top ics- that’s my signature move). The good news is, it’s not over! The Montana legislative session is now under way and with that brings more opportunities to see real change but also to be increasingly concerned about our collective fu ture concerning topics we hold deeply personal. Cue the dinner table difficult conversations! In our roles as attorneys difficult conversa tions are fairly second nature. Learning how to facilitate a passionate conversation, and to find the right balance between being curios about a position to understand it versus being persua sive about a perspective takes lots of research, practice, self-awareness and education. But the role is not as clear when it comes to general conversations, right? We can facilitate a difficult and civil conversation when we’re in charge of it, but when it’s our own thoughts or a conver sation with friends and family the plan gets a little murky. What we know about building consensus might fly out the window when things feel personal or when consensus feels unattain able. But it might also feel like avoiding topics altogether is no longer an option. Retreating and keeping to one’s self is just not a helpful solution. Watching the turmoil in government and politics is already stressful enough, so let’s not let uncomfortable conversations with family and friends add to the strain. To help reduce stress about political discourse, let’s strategize. Here are a few tips for having civil conversa tions in your personal life (hint: they’re nearly the same for work!) 1) What’s the purpose of the conversa tion? Does someone want to walk away from this conversation the victor for victories’ sake? The thought of stepping into difficult conversation terri tory in our personal lives likely strikes fear into the hearts of even the strongest orators among us (or is it just me…)

After over a decade of practicing family law and mediation in Missoula, Meri Althauser stepped into the role of Admissions Director with the Alexander Blewett III School of Law in June 2023. Her approach to law focuses on collaboration and solution-finding for her clients and their families, and now for mentoring students. She also offers consulting services in workplace well ness, with a certification as a Workplace Wellness Specialist through the National Wellness Institute and as a Resilience and Thriving Facilitator through Organizational Wellness and Learning Systems.

This image was generated using AI and may not depict real people, places, or events. Any resemblance to actual individuals or situations is purely coincidental.

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tools ensure comprehensive coverage while maintaining productivity. 3. Enhance Remote Collaboration with Cloud Based Solutions With hybrid and remote work environments now the norm, cloud-based platforms like Microsoft 365 and Google Workspace provide seamless access to essential tools and files. These solu tions promote real-time collaboration and file sharing, making it easier for paralegals and legal assistants to work together from anywhere. Implementing clear access permissions safeguards sensitive information while allowing efficient team interaction. Large law firms can benefit greatly from integrating advanced technology into their workflows. AI tools, e-discovery platforms, and cloud-based solutions help optimize team productivity and improve overall efficiency. Embracing these technologies ensures your team can work effectively in today’s demanding legal environment. personal history affects their understanding or goals. At the same time, be aware of how the source or the context affects your understanding. Maybe you got it wrong too. 5) Know when to walk away and have a plan to do so. We probably all have a code word or wing man who helps us out when we need to escape a conversation. “Oh, looks like grandma needs me in the kitchen!” or “I just realized I Ieft my casserole in the car, be right back!” On the one hand, it may be nice to exit a conversation that’s going nowhere, but it may not always be the nicest thing to use an excuse to ditch someone who is passionate about talking with you. If the relationship calls for it, consider the most respectful way to exit without an excuse. “It’s been nice talking about this with you, I appreciate learning about your opinion on this. Let’s leave it here for now!” “This has been a valuable conversation, I think this is a good place to pause.” Or “It’s clear we have different views but you’ve helped me to understand another perspective. Until next time.” Nine times out of 10 when you’re with your family, the relationship is more important than the conversational victory, so be judicious about when it’s time to move on and try to leave the conversation in a way that builds connection and respect. Nine times out of 10 when you’re with your family, the relationship is more important than the conversational victory, so be judicious about when it’s time to move on...

explanation and you will never say anything judgy. “Anything Judgy?” Correct, because you know you can’t help yourself… 3) Keep the discussion about ideas and not people. Recognize when things get personal and globalized and interrupt conversations that veer off course. Help steer clear of conversa tions that seek to tear down individuals instead of discuss ideas and solutions with phrases like “I see it differently because” or “I think what grandma’s trying to say about the ISSUE is” or “can we talk about the reasoning for this idea, rather than the con cerns about who suggested it?” 4) Remember the source and the context. Have you ever turned on a news channel with a different skew than your own, even a slight skew, to hear the newscasters explaining something all wrong from your perspective? I find it nearly impossible to find accurate information about two sides of an issue any more. Remember that we are all living in the new land of “alternative facts” and it’s hard for any of us to find the real story. Given this reality, avoid the tendency to blame others for being off-base and (after listening!) seek to educate rather than convince them about your side of the issue. Also remember how their own Recognize when things get personal and globalized and interrupt conversations that veer off course.

Tech Tips for Lawyers Tips for Managing Paralegals and Legal Assistants in Large Law Firms

As law firms grow, effective team management requires reliable technology. For lawyers managing large teams of paralegals and legal assistants, the right tools can streamline workflows, reduce errors, and improve efficiency. Here are three practical tech tips to enhance team operations. 1. Adopt AI-Powered Research and Drafting Tools AI is revolutionizing legal work by simplifying research and drafting processes. Tools like Casetext’s CoCounsel and Lexis+ Draft enable paralegals and legal assistants to analyze vast amounts of data, identify key case points, and draft initial docu ments efficiently. These tools reduce the time spent on repetitive tasks, freeing up your team to focus on strategy and client-facing activities. 2. Deploy E-Discovery Tools Handling discovery in complex cases can overwhelm even the most organized teams. E-discovery platforms like Relativity or Everlaw allow paralegals to manage, review, and analyze electronic documents with speed and precision. By assigning portions of document review to specific team members, these

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