Montana Lawyer February/March 2024

FEBRUARY MARCH 2024

BENCH & BAR CLE BACK IN BOZEMAN Popular event is Friday, April 12, at AC Hotel

AI TOOLS HAVE TRANSFORMATIONAL POTENTIAL IN LEGAL INDUSTRY ALSO INSIDE

FEBRUARY/MARCH 2024 VOL. 49 ISS. 1

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 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 available at www.montanabar.org/page/ MTLawyer. Statements and expressions of opinion appearing in the Montana Lawyer are those of the advertisers or authors and do not necessarily reflect the views of the State Bar of Montana. Postmaster: Send address changes to Montana Lawyer, P.O. Box 577, Helena MT 59624.

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STATE BAR OFFICERS President J. Stuart Segrest, Helena President-Elect Antoinette “Toni” Tease, Billings Secretary-Treasurer Erica Grinde (acting), Missoula Immediate Past President David Steele, Missoula Chair of the Board Aislinn Brown, Helena BOARD OF TRUSTEES Area A Randy Snyder, Bigfork Area B Natasha P. Jones, Missoula Erica Grinde, Missoula Beth Hayes, Missoula Area C Saidee Johnston, Butte Area D Claire Lettow, Great Falls Anthony Gallagher, Great Falls Area E Rich Batterman, Baker Area F Lindsey Simon, Helena Aislinn Brown, Helena Anna Kecskes, Helena Area G Matthew Haus, Bozeman Sherine Blackford, Bozeman Area H

AI HAS TRANSFORMATIONAL POTENTIAL FOR LAWYERS A “trust but verify” system can greatly expedite legal work — much faster than traditional methods — but only if care is taken to make it work smoothly and avoid the pitfalls.

COURTHOUSE SECURITY Improvement work gets under way using funds provided by the 2023 Legislature. Page 13

POWELL HONORED FOR

ADVOCACY WORK FOR ATHLETES DURING

COVID Page 8

ALSO IN THIS ISSUE 4 PRESIDENT’S MESSAGE 6 MEMBER NEWS 9 LAWYER WELL-BEING 10 YOU SHOULD KNOW 13 STATE BAR NEWS

16 TECHNOLOGY & LAW 24 RISK MANAGEMENT 26 JURY ECONOMICS 27 ATTORNEY DISCIPLINE 30 JOBS/CLASSIFIEDS

Shane P. Coleman, Billings Michelle Sullivan, Billings Eli Patten, Billings ABA DELEGATES

Matt Thiel, Missoula (Statewide Delegate) Tucker Gannett, Billings (State Bar Delegate)

PRESIDENT’S MESSAGE The anticipation (and busy-ness) of spring at State Bar is in bloom Early spring in Montana is a time of anticipation. The mountains still have snow, though this year perhaps not as much as we’d hoped. The first signs of the new season appear, the days grow a little longer and we look forward to a Montana summer (albeit all thrown off by the time change). At the State Bar it is also an opportunity for me as president to take a step back and survey our work, particularly as we look forward to celebrating the 50th anni versary of the State Bar in Missoula at the 2024 Annual Meeting, September 11-14. While my messages here have focused on pressing topics affecting our pro fession (as outlined in our long-range plan) the day-to-day work of your bar continues and warrants mention. By the time many of you read this, the 2023-24 compliance season will be complete. Each year, between January and April 1, over 5,000 State Bar members renew their memberships, complete their mandatory continuing legal education, and make their required filings. Spring is a tremendously busy time for bar staff. In the MCLE department alone, staff process over 60,000 CLE credits annually. With last year’s court ordered delay in reporting and the bar’s software change, that’s approximately 120,000 credits in the last six months! It remains the priority of your officers and trustees to build a true, one-stop online location for all your member information. Change is never easy. We and the bar staff appreciate your patience as we continue to build for the future. And we always value your input and suggestions. Along those lines, I am excited to let you know that, later this spring, we will debut a new online platform for sections and committees. Look for the “Thrive” community platform from Higher Logic in the coming weeks, making your sec tion membership more valuable than ever. Spring also means that bar event staff are busy traveling across Montana to bring you our own continuing legal education programs. This year, with the con tinued evolution of our hybrid programming, we are seeing some of the largest programs ever, meaning we are reaching more of you. We will continue to invest in our remote learning opportunities in the coming year so that you can complete your required education as efficiently as possible, while maintaining excellent programming. Speaking of which, we will hold our 2024 Bench and Bar CLE in Bozeman on Friday, April 12. This year will, again, feature an impressive array of speakers, including on the evolving topic of artificial intelligence and the law. The pro gram also will feature a not-to-be-missed noontime panel with candidates for the Montana Supreme Court. I’ll be there and hope you’ll join me. Finally, spring also brings with it our annual bar elections. This year, our col league and former bar president Randy Snyder will leave us after a second term on the Board of Trustees, and board member Sadie Johnston of Butte will depart. I thank them both for their service. Our self-regulating profession cannot func tion without the dedicated volunteer service. If you are interested in serving as an officer or trustee of the State Bar, I encourage you to participate. Election nomina tion petitions are due April 8. As I step back and survey our bar this spring, I am grateful to work with this dedicated community, whether elected or as staff, as we aim to continually im prove our profession and the quality of the justice system in Montana.

STUART SEGREST

Stuart Segrest is a senior attorney at Christensen & Prezeau, PLLP where he handles a wide range of litigation and appellate matters. Before joining the firm, he worked for the Montana Attorney General’s Office, where his career spanned the terms of four different Attorneys General. He served as Chief of the Civil Services Bureau, which represents the State of Montana in complex constitutional litigation and other cases of state wide importance in both state and federal court. He is currently serving as the President of the State Bar of Montana.

BENCH AND BAR CLE Read more about April’s Bench and Bar CLE, including an article by featured pre senter Damien Riehl on har nessing artificial intelligence as a tool for the modern lawyer, starting on page 16 of this issue.

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MEMBER NEWS

CAREER MOVES Sedivy opens mediation and arbitration business Lynda Sedivy, partner at Berg Lilly P.C. in Bozeman, has announced her departure from the firm to start her own business focused on mediation and arbitration services. Sedivy has

GUIDELINES FOR SUBMITTING MEMBER NEWS The Montana Lawyer wel

it to montanalawyer@mon tanabar.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. of Arts in Political Science from Marquette University. Snyder, Beaudry & Cook welcomes Mansch to firm’s Missoula office The Bigfork firm of Snyder, Beaudry & Cook, P.C. is pleased to announce the opening of its Missoula office. Larry D. Mansch will staff the office in the Florence Building. A 1983 graduate of the Creighton University School of Law, Mansch served as law clerk counties. He was a Senior Attorney for the Missoula County Public Defender’s office, and then was managing partner for Mansch, McLaverty and Associates. For nine years he served as Adjunct Professor of Sociology and Criminology at the University of Montana. He was a Judge Advocate General for the Montana Army National Guard, retiring as a Lieutenant Colonel in 2011. Mansch served as Legal Director of the Montana Innocence Project for six years. Working with Tobias Cook, the Project secured the exoneration of seven individuals who had been wrong fully convicted, and who had collectively Mansch for Judge Russell McDonough in Glendive. He then served as Public Defender in Richland, McCone, and Wibaux

comes news from members including announcements of new positions, advance ments, honors, 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 matters. Previously, she worked as a law clerk with HBS. She also has prior experience as an in-house paralegal in Fresno, California, for a regional industry leader in land acquisition, development, and home building. Smith practices

practiced law in Gallatin County for over 32 years in a general civil practice focused on all areas of family law, education law and business law. Before joining the Berg Law Firm she was a partner with Sedivy, White and

Sedivy

White P.C. Her new business is You Choose Solutions LLC. Sedivy earned a degree in economics from Montana State University in 1987 and graduated from Gonzaga School of Law in 1991. She is a fourth-gener ation Montanan and third-generation attorney. Sedivy also served as Gallatin County Bar President and as Area G Trustee (Gallatin, Park and Sweetgrass counties) for the State Bar of Montana. She can be reached at lynda@ youchoosesolutions.com or 406-223-4312. Hall Booth Smith welcomes 3 attorneys to Missoula office Hall Booth Smith Atlanta is

in business litiga tion, health care, and medical mal practice matters. Prior to joining HBS, she interned with the Montana Innocence Project, where she inves tigated changes in medical practices and forensic sci ences for post conviction relief and helped obtain parole for a man who had been in carcerated for over

Smith

three decades for a crime he is still in the process of overturning. She also worked as a legal assistant for local law firms. Fraser practices in appellate, general liability, government affairs, insurance coverage, and medical malpractice. Prior to joining HBS, he was an as sociate for a local firm. He also clerked for the Montana Supreme Court with Justices Beth Baker and James Rice. Britton earned his Juris Doctor from the University of Montana, where he was Editor-in-Chief of the Montana Law Review. He earned his Bachelor Fraser

proud to welcome attorneys Marisa Wahlstrom, Annabelle Smith, and Britton Fraser as it continues to grow to serve its clients in the state of Montana. Wahlstrom focuses her practice

Wahlstrom

on business litigation, business trans actions, corporate and partnership, health care, and medical malpractice

MORE NEWS, NEXT PAGE

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NEWS: FROM PREVIOUS PAGE

$280/hr. First 4 hours of travel time free “Gregg is an excellent mediator. He is well prepared and he has the experience to give you an accurate analysis of your case. Like any good mediator, he does a good job of listening to the parties and making sure each side understands the strengths and weaknesses of their positions. I wholeheartedly recommend Gregg Smith as a mediator on any civil litigation matter.” —Steve Fitzpatrick, Montana State Senator and trial attorney “An effective mediator must be empathetic, experienced, and persistent. A mediator needs insight to identify a position both parties can live with, persuasive credibility, and determination to see the matter through. Gregg Smith embodies these strengths as a mediator. A seasoned litigator, he understands that although parties need to be heard and validated in their grievances as a prerequisite to resolution, trial is rarely their best alternative. And he is tireless to the point of doggedness in his commitment to achieving compromise. Gregg's dedication to finding clients a reasonable solution is compelling. I could not recommend him more highly.” —Quentin Rhoades, Missoula trial attorney Looking for someone with a proven track record? Looking for a mediator who’s tried some cases? Caught behind your Scheduling Order? I will work hard to accommodate short notice settlement conferences RESULTS MATTER!

Arnø joins Orr McDonnell as associate Orr McDonnell Law, PLLC in Missoula is pleased to an nounce that Cathryn Arnø has joined the firm as an associate attorney. Arnø grew up in Darby, Montana, graduating from the University of Snyder, Beaudry & Cook is a general practice law firm. Brant Beaudry focuses on business and transactional law. Cook and Mansch specialize in criminal defense. served over 100 years in prison for crimes they did not commit. For their work at the Innocence Project, in 2020 Mansch and Cook were named Montana’s Co-Attorneys of the Year by the Montana Association of Criminal Defense Lawyers.

Montana with a B.A. in English and a M.A. in English Literature and a gradu ate certificate in Women & Gender Studies. Prior to attending law school, Arnø spent seven years working as a paralegal. Arnø earned her J.D. from the Alexander Blewett III School of Law graduating in 2023. She is admitted to practice law in all Montana courts and the United States

Arnø

District Court, District of Montana. Arnø’s practice areas include Family Law, Parenting Plans, Divorce, and Civil Litigation. McClafferty named Administrative Partner at Holland & Hart’s Billings office Holland & Hart is pleased to announce the appointment of several partners to new leadership roles effective January 1, 2024. The firm’s Management Committee appointed two new Practice Group Leaders and three new office Administrative Partners. Partner Brianne McClafferty was

appointed Administrative Partner of the firm’s Billings office. She succeeds Scott Mitchell, who served in this role since 2018. McClafferty guides clients through complex litigation, including commer cial, environmental, employment, and bankruptcy litigation. “Each partner joining the firm’s leadership team brings perspective and vision that will help shape the firm’s on going success over the coming years,” said

McClafferty

Chris Balch, firm chair. “They will make valuable contribu tions to our culture and the implementation of the firm’s stra tegic goals in their practices and markets. The Management Committee extends its sincere gratitude to the partners who served in these significant leadership roles for their incredible dedication and engagement.”

FEBRUARY/MARCH 2024

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Powell honored for sports law work on behalf of Olympic climbing hopefuls during pandemic

Having benefited personally from the being a part of sport ing organisations, Karen Powell sees the legal and regulatory volunteer work she pours into sporting clubs as a just reward. Over her lifetime Powell — a member of the State Bar of Montana currently living in Melbourne, Australia, where she teaches at Deakin Law School — has been involved in sports as diverse as ice hockey, water polo and roller derby. But it was her work helping sports climbing Olympic hopefuls access im portant training facilities during the COVID-19 pandemic that has seen Powell receive a prestigious industry award recogniz ing community service in the field of sports law. Powell recently received the Denis Callinan Award at the 2023 Australian and New Zealand Sports Law Association con ference, in recognition of the work she did for Sport Climbing Victoria during the pandemic. Something of which she’s very proud. “Being able to directly support our athletes was one of my proudest volunteer moments. More importantly, though, receiving this award provides recognition to Sport Climbing Victoria and all of its volunteers who work so tirelessly on behalf of athletes,” she said. “I’ve been a volunteer in sport as long as I have been playing sport. So, when Melbourne lockdowns happened, I knew I would be one of the few people who could combine regulatory expertise with climbing knowledge to support climbers through the pandemic – protecting not only their physical but also their mental health.” In 2020, as the Victorian government imposed lockdowns in response to the COVID-19 pandemic, Australia’s sports climbing community faced significant challenges. The sport was gearing up for its debut in the Tokyo Olympic Games, and top athletes, including Olympic hopefuls, were stuck in lockdown without access to training facilities. Sport climbing is a fully volunteer-run sport. So Powell, a long-time volunteer at Sport Climbing Victoria, took it upon

herself to navigate these difficulties. As lockdown restrictions eased for professional athletes, Powell used her legal drafting and project management skills to draft a comprehensive plan that adhered to government regula tions, including health and safety protocols, and was approved by the government oversight board. Karen Powell holds the Denis Callinan Award she re ceived at the 2023 Australian and New Zealand Sports Law Association conference.

James Reavis is available for attorney referrals for appeals to the Montana Supreme Court to handle your client’s criminal or civil case. Reavis has resolved over 130 appeals. He is a respected and well-known advocate before the Court. Reavis is available to attorneys for consultation, brief writing assistance, or taking a lead role in your client’s appellate strategy. Attorneys are invited to call 406-433-5511 or email james@nkbattorneys.com . APPELLATE ADVOCACY

301 N. 27TH STREET, #100, BILLINGS, MT 59101 • 406-433-5511

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LAWYER WELL-BEING & ASSISTANCE

7 reasons to get help for fears and anxieties By: Stan Popovich

health.

Ask your primary care physician if he or she knows anyone that can be of assistance. 3. You can’t manage your anxieties all by yourself: Your fears, anxieties, and depression can be difficult to manage and more than likely you will need some direction. Many people think that they can overcome their mental health problems on their own. This is a mistake. A person should seek assistance to start the recovery process. 4. You will improve: As you work with a professional, you will improve on your skill sets in managing your fears. You will be able to overcome your anxieties over time which will benefit you later on in your life. Knowing how to boost your mental health will get your life back on track and will make you much happier. 5. You will get better a lot fast er: Getting some guidance from a counselor will save you a lot of suffering in the long run. You will get the answers you are looking for which will help reduce your fears and anxieties. You will get better a lot faster by talking to a therapist and you will feel much better about yourself which is important when it comes to dealing with your mental

6. It is your life: Remember that you are the person who is suffering and not your friends and family. Don’t let the opinions of your peers prevent you from getting the relief that you deserve. Maintaining your anxieties should be your number one priority. Always do what is best for you and do not get into the habit of trying to please everybody else. 7. You will not be alone: You will have people in your corner who will be able to help improve your mental health issues. You won’t feel as alone when attempting to get rid of your fears. It is best to be with others who are supportive and who will understand your situation. This will help make things easier when it comes to your fears and anxieties. Stan Popovich is the author of the

Getting professional help for dealing with your persistent fears and anxieties is the single most important step in your recovery. Many people are reluctant to get the assistance they need for various reasons. Making excuses for not getting treat ment for your fear related issues will not help the situation. With this in mind, here are seven reasons why getting help for your mental health problems is so important. 1. You will get tips on handling your mental health issues : Getting professional help can lead to additional insights and suggestions to your stress and anxiety problems. A professional counselor can give you many ideas on how you can successfully manage your fears and anxieties. This is important in getting your life back on track. 2. Get access to different resourc es: Most counselors and psychologists know of ways to get rid of your fears. They can recommend certain treatments that will improve your situation. The only way you can get access to these treatments is if you talk to a counselor.

popular manag ing fear book, “A Layman’s Guide to Managing Fear”. For more informa tion about his book and to get some more free mental health advice, visit www.managing fear.com

“

In 2016, the American Bar Association (ABA) Commission on Lawyer Assistance Programs and Hazelden Betty Ford Foundation published their study of nearly 13,000 currently practicing lawyers. The study found that between 21% and 36% qualify as problem drinkers and that approximately 28%, 19% and 23% are struggling with

some level of depression, anxiety and stress, respectively. — 2017 Report of the National Task Force on Lawyer Well-Being

”

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YOU SHOULD KNOW A Montana law school tradition continues: 2024 Advanced Trial Advocacy School Blewett School of Law

school’s commitment to training law yers for the people-oriented practice of law: “Montana’s law school has a tradi tion of providing excellent trial skills training for its students. As Montana’s only law school, we want to do the same for Montana’s practicing bar. The law school’s Advanced Trial Advocacy School has had a long tradition of pro viding excellent trial advocacy training. After a short hiatus during COVID, the law school offers the 29th Advanced Trial Advocacy School this spring. We are excited to partner with Montana’s experienced litigators to provide this learning opportunity for the Montana bar.” “Trial school not only provides exceptional training opportunities, but also invaluable mentorship,” says Judge Karen Townsend, who is partnering with the law school in organizing this year’s program. This year participating judges include U.S. Magistrate Katie DeSoto, and Montana District Judges Jason Marks and Mike Menahan. Faculty also incudes experienced attor neys from both the plaintiffs and defense bars and the prosecution and criminal defense bars. The extensive trial experi ence of the advanced trial school faculty

makes this program an invaluable learn ing opportunity for practicing litigators who wish to hone their trial skills. The law school has applied for 30 continuing legal education credits, including ethics credits, for the course. Participants will benefit from a dynamic skills program that fosters camaraderie and a time-tested approach to sharpen ing trial advocacy skills. By participat ing, attorneys contribute to and benefit from the rich tapestry of knowledge and experience that defines the Montana legal community. Register for the 29th Advanced Trial Advocacy School at the law school’s webpage Advanced Trial Advocacy School (umt.edu). HOW TO REGISTER The law school has applied for 30 CLE credits for the 29th Advanced Trial Advocacy School May 20-24. You can register at the law school’s website at umt.edu, or by scanning the QR code below on this page .

This coming May 20-24, the Alexander Blewett III School of Law brings back an important Montana tradition, the Advanced Trial Advocacy School. The week-long program offers in-depth trial skills training for Montana litigators. Attorneys will hone their trial skills and receive feedback from current federal and state Montana judges and from seasoned Montana trial attorneys. Judges, trial attorneys, and communica tions experts will offer skills training to up to 30 attorneys. The law school in vites Montana lawyers to register for the 29th Advanced Trial Advocacy School. During the week-long program, attendees will hear lectures on case analysis, identifying the strengths and weaknesses of a case, and approaches to developing a powerful theme of the case. Attendees will also sharpen trial skills including cross-examination and making and meeting objections. Expert faculty will demonstrate trial skills before attendees practice those skills in workshops. Judges, experienced litiga tors, and communications specialists will provide immediate feedback. Dean Gagliardi conveys the law

Advanced Trial Advocacy School May 20-24, 2024

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PRO BONO CHRONICLES MLSA, group of lawyers team up for revival of in-person Helena Family Law Clinic

By Ellie Webster Montana Legal Services Association

Kenzie Heimbach from Jackson Murdo & Grant, along with support from Justice for Montanans AmeriCorps member, Michael Gray. The necessity of establishing the clinic was evident, addressing a need not only in Helena but across Montana. While vol unteer phone advice programs offering legal advice exist, the unique aspect of the clinic lies in providing in-person assistance, recognizing the significance of personal interaction. Clinics are scheduled on the first Tuesday of each month, creating a regular and accessible avenue for those seeking legal assistance. Clinics are held in the evening, to provide both clients and volunteers with time outside of regular working hours to participate. MLSA screens clients for finan cial eligibility, ensuring that those approved are matched with a pro bono attorney for one hour of free legal assistance.

I reflect on how enriching it is to witness clients who are confidently able to proceed pro se after having an hour to review their legal questions with an attorney. In addition to in-person clinic oppor tunities, MLSA offers statewide pro bono opportunities, training, and mentorship. Volunteers can participate in options that work with their schedules, varying from providing clients with full representation to limited scope assistance. MLSA offers volunteers free CLE training, malpractice insurance, and mentorship upon request. Anticipating further development, the program aims to garner increased participa tion from fellow attorneys in Helena, show casing the growing impact and importance of this vital community service. If you are interested in volunteering at the Helena Family Law Clinic or otherwise, please reach out to Ellie Webster, Pro Bono Coordinator at MLSA. Ellie Webster is the pro bono coor dinator at Montana Legal Services Association. You can reach her at eweb ster@mtlsa.org or 406-442-9830 ext.151

The Helena Family Law Clinic has a successful history of providing in-person family law legal assistance to Lewis and Clark County residents. After pausing the in-person clinic in 2020, Montana Legal Services Association (MLSA) received inter est from the community, prompting the clinics’ revival in September of 2023. During this time, MLSA continued to serve clients statewide through the Pro Bono Connect phone advice project. The return of the in-person clinic is a joint project between MLSA, Erin Lyndes from Jackson Murdo & Grant, and Trish Klanke from Drake Law Firm. Their col laboration consists of monthly volunteer ing at the clinics and extends to recruiting local volunteer attorneys. As a result, there has been strong engagement of dedicated Helena area family law attorneys participat ing in the project. In addition to pro bono attorney participation, the clinic benefits from the assistance of volunteer paralegal,

BETTR SECTION MENTORSHIP PROGRAM BETTR SECTION MENTORSHIP PROGRAM BETTR SECTION MENTORSHIP PROGRAM Volunteerism plays a central role in the clinic’s operation. Volunteers go above and beyond, working to provide essential legal aid to those in need. During each clinic, BETTR SECTION MENTORSHIP PROGRAM

WWW.MONTANABAR.ORG Providing limited-scope input within the mentor’s discretion, a mentor from the Business, Estates, Trusts, Tax and Real Property Section may be able to help. To learn more, or to find a mentor, email Brand Boyar, Mentor Program Chair of the BETTR Section, at bboyar@wordenthane.com . NEW TO TRANSACTIONAL PRACTICE? DON’T KNOW WHERE TO FIND ANSWERS? Providing limited-scope input within the mentor’s discretion, a mentor from the Business, Estates, Trusts, Tax and Real Property Section may be able to help. To learn more, or to find a mentor, email Providing limited-scope input within the mentor’s discretion, a mentor from the Business, Estates, Trusts, Tax and Real Property Section may be able to help. To learn more, or to find a mentor, email Brand Boyar, Mentor Program Chair of the BETTR Section, at bboyar@wordenthane.com . NEW TO TRANSACTIONAL PRACTICE? DON’T KNOW WHERE TO FIND ANSWERS? NEW TO TRANSACTIONAL PRACTICE? DON’T KNOW WHERE TO FIND ANSWERS?

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STATE BAR NEWS

Courtroom safety improvement work gets underway after funding provided by the 2023 Legislature Work to improve courtroom security

in Montana received a boost during the 2023 legislative session and is now underway. A 2021 judicial survey revealed needed improvements to protect court personnel as well as the public. Those concerns were echoed in a survey of attorneys conducted by the State Bar of Montana. In response to the issues raised by the bench and bar, the Judicial Branch convened a security task force, chaired by Hon. Shane Vannatta, with rep resentation from the state, local and private sectors. Kate Ellis, then immedi ate past-president of the State Bar, and former State Bar trustee Samir Aarab were members of the task force. The group also received assistance from a protective security adviser from the Department of Homeland Security. The work of the task force resulted in the legislature providing $500,000 in funding, including money for an in-depth statewide security and safety review of courthouses, funds to pur chase equipment or fund modifications as a result of the review, and resources Former state senator Jerry O’Neil has renewed his longstanding quest for a seat on the Montana Supreme Court, including filing and later dis missing a federal lawsuit against the Montana Supreme Court, the State Bar of Montana and the Montana Secretary of State. O’Neil previously sought a position on the court in the 1990s, suing the Montana Supreme Court and other elected state officials in federal court when the state refused to include his name on the ballot. The Montana Constitution requires that a citizen must have been admitted

The Cascade County Courthouse in Great Falls is pictured in this undated photo. (Adobe Stock photo)

for training for all court staff including local government employees. Doug Overman, recently retired as the police chief in Kalispell,john was hired to oversee the project and other

courthouse security initiatives. The last comprehensive courthouse security review occurred in 2006, result ing in a similar appropriation from the 2007 legislature.

Ex-Columbia Falls legislator files lawsuit, seeks Montana Supreme Court seat

to the practice of law in Montana for at least five years to serve on the Montana Supreme Court. O’Neil is not licensed to practice law in Montana courts. In 2006, the Montana Supreme Court held that O’Neil had engaged in the unauthorized practice of law. O’Neil’s previous case was dismissed by the federal district court, and the dismissal affirmed by the Ninth Circuit Court of Appeals. In 2017, O’Neil similarly sued the clerk of the United States District Court for the District of Montana and the court itself, having been denied the

right to practice before it because he was not a member in good standing of the Montana bar. That case was also dismissed. In his latest complaint, O’Neil had alleged that he earned a juris doctorate from the “school of hard knocks” and, again, that he should be allowed to run for the court. Defendants moved to dis miss the case and while those motions were pending O’Neil filed a notice of dismissal. On March 11, O’Neil filed to run for associate justice of the Montana Supreme Court.

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VIEW FROM THE BENCH Federal judge addresses vanishing trials, declining public respect for judiciary

Paul L. Friedman of the U.S. District Court for the District of Columbia ad dressed the American College of Trial Lawyers in October on the topics of 1) the vanishing jury trial and 2) the increas ingly vitriolic and personal attacks on judges, on the courts, on judicial inde pendence, and ultimately on the rule of law. This excerpted portion of his address was originally published in the Winter 2023 edition of the ALI Reporter. Judge Paul L. Friedman: … First, [I will address] the vanishing jury trial and its effect on our professional skill set: In a 2017 article by Jeffrey Q. Smith and Grant R. MacQueen, entitled “Going, Going, But Not Quite Gone” that appeared in Judicature magazine, the authors pointed out that “while trial remains a theoretical possibility in every case, the reality is quite different.” And the authors identified several reasons why. The first is the Federal Rules of Civil Procedure and decisions by the Supreme Court interpreting and applying the Rules. As those of you who litigate civil cases know, in 1986 the Supreme Court decided a trilogy of cases saying that summary judgment should no longer be considered “a disfavored procedural shortcut, but should be used when appropriate to secure the just, speedy, and less expensive way to resolve a case.” Federal judges got the message. And so today, approximately 19 percent of civil cases in federal courts are resolved by summary judgment. The Supreme Court’s summary judgment cases were followed by two decisions— Twombly in 2007 and Iqbal in 2009—that seemed to raise the plead ing standards needed to state a viable civil claim. Dismissal of cases now was encouraged to reduce the unneces sary expenditure of time and money by

the parties and the courts. As a result, dispositions by motions to dismiss are also granted more readily today than ever before. In addition, as we all know, discovery has become more expansive and expensive, particularly after the advent of electronic discovery, email, so cial media, and the like. Yale Law School professor John Langbein believes that the current discovery provisions in the Federal Rules of Civil Procedure, and the emphasis on judicial case manage ment and settlement contained in Rule 16, “have had the effect of displacing trial in most [civil] cases.” Indeed, he says, “precisely because discovery al lows such far-reaching disclosure of the strengths and weaknesses of each side’s case, discovery often has the effect of facilitating settlement.” These three developments—encour aged summary judgment, heightened pleading standards, and more expansive and expensive discovery—have dra matically reduced the number of civil jury trials in the federal courts. A study by the Civil Justice Research Initiative, part of the UC Berkeley School of Law, reported that in 2019 juries disposed of just 0.53 percent of filed federal civil disputes. And the study found that in the state courts, civil jury trials were even rarer. The pattern in federal criminal cases is similar. Following the passage of the Federal Sentencing Guidelines, the percentage of criminal cases resolved by trial in the federal courts significantly READ THE FULL SPEECH You can read the complete transcript to Judge Friedman’s address to the American College of Trial Lawyers at www.ali.org/ friedman-actl.

declined. And in my view, the decline in criminal trials is the direct result of three things: the advent of the Federal Sentencing Guidelines; mandatory minimum sentencing statutes; and the resulting increase in prosecutorial power in both charging decisions and plea Paul L. Friedman negotiations. For some defendants, the stakes have become just too high to risk going to trial. As a result, we have seen the virtual disappearance of the criminal trial in the federal courts. In the late 1960’s and early 1970’s, nearly 20% of all criminal defendants charged in federal court exercised their constitutional right to a trial. Today trials occur in only about 2% of federal criminal cases. And the most dramatic drop in the number of trials and increase in the number of pleas occurred almost immediately after the Sentencing Guidelines and manda tory minimum sentences firmly took hold. As the College recognized in its 2004 report on the vanishing trial, with the diminishing numbers of both civil and criminal trials, we are at risk of losing both a genuine trial bar and a genuine trial bench. … I bemoan the lack of trials not only because— as those in this room know so well — the art of trial advocacy is worth preserving for its own sake, but also because skilled, effective, persuasive The Honorable Paul L. Friedman of the U.S. District Court for the Dis trict of Columbia

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advocates can make a real difference to your client and often to the very out come of a case. … And there are institutional concerns as well; a transparent and public court system requires effective advocacy by skilled and competent professionals as counsel for both sides in a case. Quality advocacy promotes the legitimacy and fairness of the courts, the entire justice system, and the real-life meaning of the rule of law. The decline in trials is a great loss for society. As distinguished lawyer John Keker put it: “Trials let light into the process, helping keep prosecutors honest, cops more hon est, judges in check.” Now, pivoting to my second topic, threats to judicial independence and the rule of law, let me start with the Constitution itself. As you all know, the idea of separation of powers was thought to be one of the unique contributions of those who wrote our Constitution. Unlike other countries, the founders cre ated three separate and co-equal branch es – the Executive, the Legislative, and the Judicial. Because the Founders were concerned about guarding against a too powerful and overreaching Legislative branch – and also wanted to ensure that the rights of the minority were protected against a tyranny of the majority – they made the Judicial branch independent of the other branches in order to keep the other two in check. To assure such independence, the Framers provided that federal judges would be appointed for life – technically, for good behavior – that Congress could not reduce the compensation of federal judges, and that we could only be removed from office by impeachment for high crimes and misdemeanors. In other words, they cre ated a judiciary that was immune, by and large, from political pressure. The Founders thought these safe guards necessary because – as Alexander Hamilton noted in Federalist No. 78 – the Judiciary does not have the power of the purse nor the power of the sword. It wields “merely judgment.” And just as important as the Judiciary’s actual inde pendence is its perceived independence. As Justice Ginsburg observed 214 years after Hamilton, “[b]ecause the courts control neither the purse nor the sword, their authority ultimately rests on public

faith in those who don the robe.” Judicial independence can only be maintained, she noted, when the public has “confidence in the integrity and im partiality” of its judges and “accepts and abides by judicial decisions.” Judicial independence as the Framers saw it – and as we recognize today – ob viously doesn’t mean a lack of account ability. Certainly, we federal district court judges know we are not free agents. We are all too often reminded of that by our friends on the courts of appeals who review our decisions. Judges must follow the law and the Constitution, not our own political or philosophical predilections. And we are expected to approach each case with an open mind and render unbiased judgments. Judicial independence is the ability of judges to be free from outside pressure so we can decide cases impartially, without fear or favor. Chief Justice Rehnquist said that “[t]he Constitution protects judicial independence not to benefit judges, but to promote the rule of law.” Judges at the state court level, how ever, are not so insulated from outside pressures. Today 38 states elect judges, a practice that is virtually unknown to the rest of the world. And, because of the fallout from Supreme Court decisions …, many are elected in heavily financed, often vitriolic campaigns – campaigns that literally invite future conflicts of in terest for judges. … Margaret Marshall, former Chief Justice of the Supreme Judicial Court of Massachusetts, put it this way: “When litigants enter the courtroom hoping their attorney has contributed enough to a judge’s election coffers, we are in trouble, deep trouble.” Chief Justice Nathan Hecht of the Supreme Court of Texas has said: “[W] hen partisan politics is the driving force, and the political climate is as harsh as ours has become, judicial elections make judges more political, and judicial inde pendence is the casualty.” Predictably, both state and federal judges have in fact increasingly become targets for unsatis fied politicians who serve in the other branches of government. Let me be clear: I am not suggesting in the least that the work of judges and courts should go unexamined. Judges certainly make mistakes and we federal

judges do deal with some hot-button is sues. Our decisions must always be open to thoughtful, principled – maybe some times harsh – criticism. It comes with the territory. But even though developing a thick skin is part of the job, it is hard for me to remember a time when judges and courts have been subjected to so much gratuitous personal criticism, vitriolic commentary, and purposely misleading attacks. And it is particularly problem atic when such criticism comes from presidents, governors, and members of Congress. Going back in history we see that crit icism of the Judiciary is not new – even from Presidents. As early as President Thomas Jefferson, some presidents have railed against judges with whom they disagreed … Criticism from members of Congress is not new either. … But what I know concerns the American College of Trial Lawyers – and so many lawyers and judges today – is that the number of attacks on judges has grown exponen tially, and the attacks have gotten more partisan, more personal, more threaten ing, and more purposefully misleading than ever before. [historic and current examples removed for brevity, but can be read in the full document] … As Judge Barbara Lynn, former Chief Judge of the U.S. District Court for the Northern District of Texas, recently said: At once point “virtually everyone recognized how inappropriate it was to threaten the life or security of a judge because of a disagreement with the judge’s decisions. Now there are a lot of people who don’t think there’s anything wrong with that.” Widely disseminated personal attacks on judges by politicians and candidates for office, as magnified through social media, undoubtedly have contributed to this trend, even though – and let me emphasize – I am award of no politicians or government officials who have themselves personally threatened judges with physical violence. Such threats like these are not just reprehensible; they don’t just under mine the reputations of judges who have dedicated themselves to the administra tion of justice. They are, as my colleague Judge Trevor McFadden said, “nothing less than an attack on our system of government.”

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Integration of artificial intelligence has transformational potential for lawyers TECHNOLOGY & LAW

By Damien Riehl

ABOUT THE AUTHOR Damien Riehl, a lawyer with experience in complex litigation, digital forensics, and software development, will be a featured speaker at the Bench and Bar CLE April 12. Riehl has led teams of cybersecurity and world-spanning digital forensics investigations, and has led teams in legal-software development. At SALI, the legal data standard he helps lead, Damien develops and has greatly expanded the taxonomy of over 14,000 legal tags

More than a year after November 2022, when OpenAI introduced ChatGPT to the world, the legal industry continues integrating Large Language Models (LLMs) into legal practice – a development of increasing complexity and importance. This article presents an analytical overview of best practices to shape LLM use in legal tasks; balancing practi cal realities and challenges with their potential benefits and massive potential to transform the industry. That is, if we do it right. The Promises and Challenges of LLM Tools in Legal In 2023, LLMs significantly shifted most organizations’ approaches to legal work, introducing advanced capabilities with the potential to profoundly influ ence legal practice. Lawyer efficiency. The LLM trans formation occurs amidst evolving client expectations for efficiency and cost effectiveness. Traditional models of legal research and documentation face increasing pressures. In this context, LLM-based tools can be pivotal, pro viding a blend of speed, accuracy, and comprehensive analysis that outpaces conventional methodologies. Lawyers’ work is entirely language: We read, we analyze, and we write. That aligns well with LLMs’ core competen cies, which can understand text with post-graduate proficiency. And they can read text with superhuman speed. Same with writing – they do it faster than any human can. Today’s LLMs are really good at all of those things. Tomorrow’s LLMs will be even better. So LLMs’ proficiency in language processing — ingesting, analyzing, and outputting — offer significant potential for legal applications. When LLMs process text

that matter, helping the legal industry’s development of Generative AI, analytics, and interoperability. At vLex Group — which includes Fastcase, NextChapter, and Docket Alarm — he helps lead the design, development, and expansion of various products, integrating AI backed technologies (such as GPT) to improve legal workflows and to power legal data analytics.

— interpreting and analyzing disparate concepts — the industry refers to that as “interpolation.” That is, an LLM can review Concept 1 and Concept 2, then provide interconnected, related con cepts through interpolation. In doing so, LLMs can create coherent, contextually appropriate outputs. An example of the above: ■ Concept 1 = Negligence ■ Concept 2 = Fiduciary Duty ■ Concept 3 = Board Members ■ Concept 4 = Pirate Ship LLMs can then interpolate those disparate concepts. Here is an actual example of these concepts from GPT-4: Board members, akin to captains of a pirate ship, must avoid negligence by acting with care and loyalty, thus fulfill ing their fiduciary duty to prioritize and protect the company’s interests. That combination of disparate concepts constitutes interpolation. That interpolation is the essence of what the best LLM systems do today. And inter polation also provides the roadmap for what the best LLM systems will become tomorrow. But the promise of LLMs in Legal is moderated by concerns over their limitations, including the challenge of ensuring that they generate contextually

accurate outputs. Despite LLMs’ sig nificant promise for legal work, lawyers and legal professionals are approaching them with cautious consideration. A no table and valid concern is the propensity of LLMs — left unchecked — to produce outputs that may not be entirely ac curate or fact-based. This phenomenon is often labeled “hallucination.” In legal contexts, where precision and factual integrity are sacrosanct, this aspect of LLMs is particularly unnerving. And that’s why addressing hallucinations is seen as Job One. The Approach: ‘Trust but verify’ This article examines the best prac tice strategies to address these concerns, focusing on “trust but verify”. For decades, partners working with their associates and paralegals have trusted those associates and paralegals — but still verified the associates’ work. That “trust but verify” is essential in legal practice. This is also true with LLMs. Lawyers must trust but verify the LLM output — with the ground truth. So LLM-backed systems need to ensure that “trust but verify” is dead simple. Because “the devil is in the defaults.” And if the default is “verification is hard,” then users won’t

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jurisdiction comparison, and user-cen tric approaches to providing answers. Those legal tools should be flexible in selecting foundational models — not being confined to any single AI model — enabling any system to stay abreast of technological advancements, ensuring continued state-of-the-art efficacy. Throughout, this article discusses ways that legal tools can harness LLMs’ significant advancements — likely the largest legal-technology advancement in our lifetimes. With these tools, we can move beyond traditional tools, ef fectively integrating Generative AI into our legal practice. This has profound implications for the legal profession, and it can redefine the standards in legal research and practice. Lawyers Must Do More with Less Resources As legal professionals continue walk ing down the road of our LLM futures, we must address a major challenge that has been brewing for decades: the increasing expectation for lawyers and legal researchers to deliver better results with fewer resources. That’s true for external counsel (e.g., firms) as well as internal counsel (e.g., law departments). The current environment, marked by time constraints and budget conscious ness, demands an approach to legal work that is both efficient and effective. For example, traditional legal research methods are characterized by extensive manual review of documents and texts — a method that today’s post LLM work demonstrates isn’t sustain able. Clients’ reluctance to bear the costs of prolonged research, particularly when such expenses can be expedited, is driving a shift in lawyers’ behavior. The winners in legal-research innovation will offer solutions aligning client expec tations and research efficiency. Systems must enhance the le gal research process by significantly reducing the time required for infor mation gathering and analysis. They must also utilize state-of-the-art LLM models, permitting effective naviga tion through massive volumes of legal data, pinpointing relevant information swiftly. Expediting research with rapid turnaround times can address clients’

do it. Then bad things can happen. In other words, users should take advantage of LLMs’ capability to effi ciently process and synthesize informa tion, while concurrently validating LLM outputs against established legal sources: judicial opinions, statutes, and regula tory texts. Done poorly, a time-consuming “trust but verify” approach hazards giv ing users the feeling of “Why did I even use an LLM in the first place, if I have to do all the work anyway?” But done well, a “trust but verify” system can greatly expedite legal work — much faster than traditional methods. So those companies that build legal systems that integrate LLMs into legal practice must walk a fine line: leverage LLMs’ myriad benefits, while simultane ously making it easy for users to validate ground truth. Because if it’s not easy, users (e.g., lawyers) won’t do it. What a Successful LLM-Based Tool Looks Like User in control. Successful LLM sys tems must permit and encourage user enabled experiences. Humans in the loop. Those systems must simplify the verification process. They must provide more control over research resources. And they must offer contextual sum marization capabilities. If LLM systems do that, they can both address common user fears, as well as help users work in tandem with their LLM counterparts. Data = Oil. This article also under scores the need for underlying data. Data is the new oil. And legal practice is increasingly global. So to be effective, lawyers must have global oilfields — providing legal advice across jurisdic tions. As such, LLM-based tools must similarly be cross-jurisdictional. Multi-jurisdictional surveys. For decades, lawyers have relied on 50-state surveys. But in our global economy, more necessary are 50-country surveys. To survey 50 countries, you need data from those 50 countries: statutes, regula tions, judicial opinions. If you only have United States oil, you cannot refine legal advice globally. What is a modern legal tool? This article also explores a modern LLM system’s role in legal argumentation,

April 12 Bench & Bar CLE to feature panel with candidates for Supreme Court seats The 2024 Bench and Bar CLE promises another full day of important programming for Montana practitioners. This year’s event will be held at Bozeman’s AC Hotel on Friday, April 12, and will include a lunchtime panel with four candidates running for the Montana Supreme Court: Judge Jeremiah Lynch (retired) and Cory Swanson and Doug Marshall, each seeking the position of chief justice; and Hon. Dan Wilson and Hon. Katherine Bidegaray, running for the open associate justice seat. CLE programming topics include: the changed injunction standard in Montana; hot top ics for family law practitioners; enforcement of settlement agreements; representing un popular clients and causes, and a roundtable from members of the judiciary The program also will include a timely and informative presen tation on artificial intelligence by national AI expert Damien Riehl, Vice President and Solutions Champion at vLex, a global legal intelligence platform. VLex is the parent company of Fastcase and the developer of Vincent AI. Riehl, an attorney, recently presented on AI at SXSW in Austin, Texas, and is a member of the Minnesota Governor’s Council on Connected and Automated Vehicles. Other confirmed speakers and panelists as of publication date include: Hon. Rodney Souza; Hon. Timonthy Cavan; Hon. Christopher Abbott; Hon. Jessica Fehr; Standing Master Bradley Kneeland; Hon. Mike Moses; Hon. Mike Wheat (retired); Mike Lilly; Hon. Susan Watters; Mark Werner; and Randy Cox.

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