Montana Lawyer October/November 2024

OCTOBER/NOVEMBER 2024 VOL. 49 | ISS. 5

ANNUAL MEETING IN REVIEW Also Inside: Should You Actively Persuade In Voir Dire? For Lawyers, Is Moonlighting Worth It?

OCTOBER/NOVEMBER 2024 VOL. 49 ISS. 5

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

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ANNUAL MEETING IN REVIEW Celebrating 50-Year Pin Recipients: Honoring the distinguished members of the State Bar of Montana who have reached the 50-year milestone in their legal careers. Annual Award Ceremony: A feature on this year’s award winners, including the prestigious recognition of Neil Haight, Karla Gray, George Bousliman, Frank Haswell, and William Jameson, for their outstanding contributions to Montana’s legal community.

Should You Actively Persuade In Voir Dire?

For Lawyers, Is Moonlighting Worth It?

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ALSO IN THIS ISSUE 4 PRESIDENT’S MESSAGE 6 MEMBER NEWS 20 PRACTICING WELL 21 TECH TIPS

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)

22 CELTIC CLE 27 COURT NEWS 29 IN MEMORIUM 30 JOBS/CLASSIFIEDS

PRESIDENT’S MESSAGE Reflections on the Role of Lawyers in a Democracy

the legal professions, 50% of respondents gave lawyers an “average” rating, with 18% giving lawyers a “high” rating and 19% giving them a low rating. 4 We are, as a profession, resound ingly average in the eyes of the public. The public perception of lawyers is a two sided coin. On the one hand, we help grease the wheels of commerce and resolve inter personal conflict. On the other hand, we are viewed as an elite group of highly educated individuals who wield a great deal of power. Early America rebelled against the “elite” lawyer class. Colonial Virginia, which was influenced by Thomas Jefferson’s vision of a largely agrarian society with little interference from the central government, “displayed a violent and prolonged aversion to the lawyer.” 5 Massachusetts exhibited an “abiding hostility to lawyers[,]” partly as a result of the colonists’ desire to distance themselves from the common law of England but also due to the “prolonged intellectual repression” of seventeenth-century New England. 6 There are echoes of anti-lawyer sentiment in two constitutional initiatives that qualified to gather signatures for the 2024 general election ballot in Montana. CI-124 (Ballot Initiative No. 7) purported to remove the regulation of the practice of law from the province of the ju diciary. CI-125 (Ballot Initiative No. 8) sought to curtail prosecutorial discretion by allowing a relatively small number of a county’s electors to convene a grand jury. Although similar legisla tive bills failed, and neither of these initiatives garnered the requisite number of signatures, it

We have all heard of the four “pillars” of democracy: the legislature, the executive, the judiciary and the media. I would submit to you that lawyers are the fifth pillar of democracy in that we play a pivotal role in maintaining the boundaries among the three branches of government and upholding a common belief in the justice system. If lawyers are unscrupulous, the public confidence in our institutions as they currently exist will erode. But if lawyers are viewed as champions and problem solvers, all of the institutions that make up our democracy are strengthened. As stated succinctly by for mer U.S. Supreme Court Chief Justice Warren E. Burger, “Lawyers [are] necessary because, in their highest role, they are the healers of conflicts[,] and they can provide the lubricants that permit the diverse parts of a social order to function with a minimum of friction.” 1 After visiting the nascent United States of America in 1931-32, Alexis de Tocqueville concluded that there were only three coun tervailing forces against the tyranny of the majority: the institution of trial by jury, the limited power of the central government, and the legal profession itself. 2 Reflecting on de Tocqueville’s observations, Phil C. Neal, former Dean of the University of Chicago Law School, noted in 1967 that “lawyers in America more than elsewhere have come to play the role of all-purpose social engineers, of roving experts in getting things done.” 3 But this rosy picture is not universally shared. In a Gallup poll conducted in late 2022, when asked to rate the honesty and ethical standards of people in

Toni Tease is a registered patent attorney and a solo practitioner who specializ es in intellectual property law. Her office is located in Billings, Montana, and her website is at www. teaselaw.com.

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the majority, and the judiciary stands as a protection of the mi nority against the majority. But without lawyers, none of the other branches of government could function. The executive branch could devolve into a dictatorship if lawyers did not exist to challenge the exercised prerogatives of our chief executive, courts could not decide cases if lawyers did not bring them, and legislatures could run roughshod over constitutional rights if lawyers did not scrutinize their actions. Having been granted the privilege of practicing law, it is incumbent upon each of us to wield our influence and use our intelligence to bring about a more just society. If we do that, then we will help achieve the goal of forming a more perfect Union. Endnotes 1 Warren E. Burger, The Role of the Lawyer in Modern Society , 1975 BYU L. Rev. 581 (2013). 2 Phil C. Neal, De Tocqueville and the Role of the Lawyer in Society , 50 Marq. L. Rev. 607 (1967). 3 Id . at 611. 4 Honesty/Ethics in Professions, https://news.gallup. com/poll/1654/honesty-ethics-professions.aspx. 5 Anton-Hermann Chroust, Legal Profession in Colonial America , 34 Notre Dame L. Rev. 44 at 45 (1958). 6 Anton-Hermann Chroust, Legal Profession in Colonial America , 33 Notre Dame L. Rev. 51 at 65, 74 (1957).

would behoove us to consider the wellspring from which both of these initiatives arose. Despite the fact that it was inartfully drafted, the impetus behind CI-124 was to broaden access to the legal profession. Although a laudable goal, the broadening of access to the legal profession must be balanced against the need to provide protections for consumers of legal services. CI-125 would take us back to the vigilantism of the Wild West, but it is rooted in a belief that Montana citizens have the right to participate in legal processes. Both of these initiatives should cause us to engage in self examination with the goal of identifying and addressing the forces behind them. In the case of access to the legal profes sion, the State Bar could take a leadership role in supporting the development of an accredited online law school program for Montanans. We might also consider supporting an alterna tive pathway to Bar admission, such as the Supervised Practice Portfolio Examination approved last year by the Oregon Supreme Court. Although CI-125 would have upended the administration of criminal justice as we know it, it serves as a reminder that mistrust of lawyers is alive and well. A robust democracy depends on the participation of every one. The citizenry has an obligation to keep itself informed and to vote, the legislature enacts laws that reflect the will of

While the State Bar of Montana has strongly supported an independent judiciary and the independent judicial regulation of the legal profession, the views expressed here are my own, they are not the formal position or opinion of the State Bar and may not reflect the views of every Montana attorney.

THANK YOU TO 2024 ART FOR JUSTICE DONORS

A big THANK YOU to everyone who do nated auction items for the 2024 Art for Justice silent auction at this year’s State Bar of Montana Annual Meeting and for all who bid on the items. Thanks to you, this year’s auction raised $7,200 to benefit access to justice in Montana. A special thank you to Missoula lawyer and artist Matt Thiel for his yearly efforts organizing and donating art. 2024 ART FOR JUSTICE DONORS Judge Leslie Halligan & Mike Halligan (3-night stay, Whitefish condo) Judge Robert L. Deschamps (3-night stay, Flathead Lake condo) Cindy Thiel donated “Schooled” fabric art by Karen Winther and Untitled Welsh Corgi framed print

Nancy Dulop Cawdrey - “Close Encounter” framed original dye on silk Suzanne Shope - “Blue and Gold Series Waterworks” framed original acrylic on gold foil paper Tom and Patty Schupp - “Saturday Nite in Livingston Montana” framed cowpoke comic print by Orval Coop Susan Gobbs - “University of Montana” framed 1985 Monte Dolack print, “Eruption” print by Allison McGree, Untitled framed original watercolor by Audrey Powell, and Untitled framed print by Will James Betsy Brandborg - “Summer Dusk Little Belts” original oil painting by Taylor J. Lyde and “Little Bird Creek” original oil painting by Taylor J. Lyde

Eric Nord donated Untitled 19th Century oil painting by an unknown British artist Steve Fletcher - “Whitetail Camas” framed photograph on canvas and “Monet’s Reflection” framed photograph on canvas Laura and Matt Thiel - “Celebration of Sauvignon Blanc” wine basket Matt Thiel - “Autumn No. 1” framed original abstract oil on board and “October Moon” original oil on gallery wrapped canvas Stephani DeBoer - “August 2017” oil on gallery wrapped canvas James Todd - “Owl Man” signed wood cut print Kara Haygarth - “Blue Bison No. 1” giclee print

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MEMBER NEWS GUIDELINES FOR SUBMITTING MEMBER NEWS The Montana Lawyer welcomes news from members including an nouncements of new positions, ad vancements, honors, appointments and publications. There is no charge for Member News submissions.

CAREER MOVES Karell Kimmet Beddow PLLP, lo cated in Billings, announces that Brooke E. Catalano has joined the firm as an associate attorney. Brooke received a B.S. degree from Utica College in May of 2019 and earned her Juris Doctor from Vermont Law School in May

montanabar.org. Please direct any questions to the same address. We will include firm name, loca tion, the change that is being an nounced, attorney’s name, law school, practice areas, and a high resolution photo. Karell Kimmet Beddow PLLP, located in Billings, announces that Cole A. Derks has joined the firm as a partner. Cole received his B.S. degree with a concentration in Finance at Montana State University – Bozeman and his law degree from the University of North Dakota School of Law, cum laude. Prior to joining Karell Kimmet Beddow PLLP, Cole was a partner with Moulton Bellingham PC

If you have news you would like to submit to the Member News section, you can email it to montanalawyer@

2023. During law school, Brooke served in the following capacities: Managing Editor on Vermont Law Review, Intellectual Property Teaching Assistant, In-House Counsel

Contracts intern at a turbomachinery company in Vermont, Trademark extern at a private law firm with offices in Vermont and New Hampshire, and Student Clinician in the Vermont Law School Entrepreneurship and Legal Lab focusing on commercial law. While at Vermont Law, Brooke was also a visiting student at the University of New Hampshire Franklin Pierce School of Law in Spring of 2022 to focus on Intellectual Property law. After graduating from law school, Brooke served as the Judicial Law Clerk to the Honorable Colette B. Davies, Thirteenth Judicial District Court, before joining the Karell Kimmet Beddow team. Brooke can be reached at (406) 294-8487 or bcatalano@kkblaw mt.com.

of Billings. Cole’s practice areas include estate planning and administration, business succession planning, agriculture and commercial real estate acquisitions and sales, and mergers and acquisitions. He is admitted to practice in Montana and North Dakota. Cole can be reached at (406) 294-8486, or cderks@ kkblawmt.com.

Welcome Jessica to Holland & Hart’s Montana Team

Jessica approaches clients’ real estate, construction, and business needs with a tailored, solutions-oriented approach to deliver effective legal solutions that support their goals. She leverages dispute resolution and litigation experience to help clients evaluate risk and make pragmatic decisions in negotiations and transactions.

JESSICA P. HODGES Of Counsel Real Estate | Construction | Finance | Bankruptcy

401 North 31st Street, Suite 1500, Billings, MT 59101 | www.hollandhart.com BRIANNE MCCLAFFERTY | Billings Office Administrative Partner | 406.896.4642

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Parsons Behle & Latimer is pleased to announce that it has once again expanded its Missoula office with the addition of attorneys Mathew T. Bain and Emma B. Dugenske. Parsons continues its pattern of strategic growth in the Intermountain West to better serve our Montana clients. To learn more about our Missoula office, visit parsonsbehle.com/locations/missoula . Parsons Behle & Latimer Missoula Office Grows Again

Mathew T. Bain Associate Environmental

Emma B. Dugenske Associate Corporate

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

I DAHO • MONT ANA • NE VADA • UT AH • WYOM I NG • PARSONSBEHLE.COM

Gustafson Law Offices announces the addition of Dania E. Jones Oelkers to its team. As a Conrad native, Dania joins the office with the understanding and appreciation of small-town Montana. Dania graduated with High Honors from Montana State University with her Bachelor Montana, graduating with Pro Bono Honors. Throughout law school, Dania volunteered as a Court Appointed Special Advocate (CASA) where she advocated for the best interests of children within Missoula County who experienced abuse or neglect. She also worked within the Montana Domestic Violence Clinic where she provided holistic legal assistance to those affected by intimate partner violence, sexual assault, dating violence, and stalking. Her career experience includes working for the Gallatin County Attorney’s Office prosecuting criminal misdemeanor and felony cases, as well as previous summers interning with Gustafson Law Offices. In her free time, Dania enjoys being outdoors, playing piano, and spending time with her husband. of Science degree in Economics. She earned her Juris Doctorate and Master of Business Administration degrees from the University of

Measure Law, P.C. announces that Sarah Lyons Johnson has been promoted to Partner. Sarah has been

an invaluable member of the Measure Law team since 2018, and her promotion is a testa ment to her exceptional skill, dedication, and commitment to the firm and its clients. Sarah specializes in family law, employment law, business practices, and general civil litigation. Her diverse legal expertise, combined with her extensive experience, has made her a corner stone of Measure Law’s practice. A seasoned

attorney with a rich background, Sarah’s career has spanned both the East Coast and West Coast before she made Kalispell her home over a decade ago. She earned her undergraduate degree in Public Policy Studies from Duke University and is a proud graduate of UCLA School of Law. Licensed in both California and Montana, Sarah has been a member of the California State Bar since 2003. In addition to her legal practice, Sarah is the past President of the Northwest Montana Bar Association and continues to serve on its Board. Her leadership and dedication to the legal community are evident in her ongoing contributions. Outside of work, Sarah is usually out and about with her three amazing kids and her fiancé Greg, enjoying skiing, hiking, boat ing, camping, and exploring all the wonders of living in the Flathead Valley.

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Montana State Bar Honors 50-Year Pin Recipients at Annual Meeting STATE BAR NEWS

From left to right: (back row) Stuart Segrest, Joseph Engel, Bill Wagner, Jon Ellingson, J. Martin Burke, Cliff Edwards, Dennis Connor, Dennis Clarke, Peggy Tonon, (front row) Kenneth Olson

At the State Bar of Montana's Annual Meeting, a significant milestone was celebrated as a group of esteemed attorneys were honored with the 50-year pin, marking five decades of dedicated legal service. This year's ceremony was led by outgoing State Bar President Stuart Segrest, who highlighted the special significance of the occasion. These lawyers began their careers in 1974, coin ciding with the unification of the Montana bar and the creation of the State Bar of Montana. Segrest welcomed the attendees and introduced John Mudd, the Executive Director and General Counsel of the State Bar,

who announced the honorees. Among those recognized were J. Martin Burke, Joe Engel, Dennis Clarke, Dennis Connor, Cliff Edwards, Jon Ellingson, Ken Olson, Peggy Tonon, and Bill Wagner. Each attorney was presented with a pin as a symbol of their longevity and service to the Montana legal community. The 50-year pin recipients are a testament to the enduring commitment of Montana’s legal professionals, many of whom have been at the forefront of significant changes in the state's legal landscape since 1974.

Thank you to sponsors, volunteers & attendees who helped make the Annual Meeting a great success! 2024 ANNUAL MEETING SPONSORS INCLUDE

State Bar of Montana is providing notice that copies of the Fiscal Year End 2024 audit is available to interested members. Requests can be sent to Jill Lloyd at jlloyd@montanabar.org.

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50 Years of Legal Legacy: Award Winners and Highlights from the State Bar of Montana’s 2024 Annual Meeting

The 2024 State Bar Awards Banquet, gen erously sponsored this year by ALPS, began with a warm welcome from John Mudd, the State Bar of Montana’s Executive Director, Mudd expressed his gratitude to the past presidents, executive committee members, and trustees for their service and for join ing the celebration. His opening remarks set the tone for a night dedicated to reflection, recognition, and celebrating the Bar’s 50th anniversary. Toni Tease, the president-elect, delivered her “Reflections on the Role of Lawyers in a Democracy,” emphasizing that lawyers serve as a critical “fifth pillar” of democracy, alongside the legislature, executive, judi ciary, and media. Lawyers, she explained, play a key role in maintaining checks and balances between branches of government and preserving public trust in the justice system. (See President’s Message, page 4.)

From left to right: Carey Matovich, William J. Jameson Award; Jean Faure, George L. Bousliman Award; Honorable Benjamin Hursh, Karla M. Gray Equal Justice Award; Meri Althauser, Frank I. Haswell Award; D. Michael Eakin, Neil Haight Pro Bono Award.

Karla M. Gray Equal Justice Award Alissa Chambers, Executive Director of the Montana Justice Foundation, introduced Judge Benjamin Hursh as the recipient of the Karla Gray Award, highlighting his deep commitment to pro bono work and access to justice. She shared personal anecdotes about how Judge Hursh, as a partner at Crowley Fleck, PLLP, gave young lawyers like her a voice and a platform to engage in pro bono efforts. Since becoming a bankruptcy judge in 2017, Hursh has continued his dedication by collaborating on projects like a bankruptcy clinic for low-income individuals and improv ing access for pro se litigants. "Ben doesn’t just volunteer to help—he shows up, and he gives his all." - Alissa Chambers Hursh’s speech focused less on himself and more on his expe riences with pro bono clients. He emphasized the impact that pro bono work has had on his life and how it shaped his commitment to reducing barriers for those without legal representation. Hursh also expressed deep gratitude for his colleagues at Montana Legal Services and for the institutions that shaped his career. "A lot of people in our communities, just needed a little help navigating the legal system, and more importantly, navigating life." Frank I. Haswell Award Erica Grinde, State Bar Secretary-Treasurer, introduced Meri Althauser as the recipient of the Frank Haswell Award, recog nizing her outstanding contributions to The Montana Lawyer publication. Althauser has consistently written articles since 2020, focusing on lawyer well-being, offering vital reminders

While acknowledging that public perception of lawyers is not always positive, Tease stressed the vital role lawyers play as prob lem solvers and champions of justice. Tease also addressed two recent Montana ballot initiatives, CI-124 and CI-125, that proposed changes to legal regulation and prosecutorial discretion. She urged the legal community to reflect on the motivations behind these initiatives and to explore ways to broaden access to the legal profession while ensuring consumer protections. She called for innovative solutions such as support ing accredited online law programs or alternative Bar admission pathways. "Having been granted the privilege of practicing law, it is incumbent upon each of us to wield our influence and use our intelligence to bring about a more just society." - Toni Tease Neil Haight Pro Bono Award Past President, David Steele introduced Michael Eakin as the 2024 Neil Haight Pro Bono Award recipient, recognizing his nearly 50 years of legal service, often providing representation to those in need with little or no compensation. Eakin, who spent 30 years with the Montana Legal Services Association, is noted for his dedication to low-income families and tribal members, his ethical standards, and his significant legal victory at the U.S. Supreme Court in Babbitt v. Youpee . "I tell my clients I'm a lawyer—I don't think I could afford a lawyer. So, you know, help those not only that can pay nothing but also those that can't pay the full rack rate." - Michael Eakin

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about the importance of self-care for legal professionals. Grinde emphasized that Althauser embodies the same qualities as Judge Haswell, including common sense, warm humanity, and patience. "Her columns remind us that if we don't take care of ourselves first, we cannot serve our cli ents or our communities." - Erica Grinde Althauser humorously reflected on her experience writing well-being articles for The Montana Lawyer. She acknowledged her unconventional topics, like backed-up toilet water, that have made her writing unique. She also noted that while her colleagues produce significant legal research, her articles have fo cused on lawyer mental health and community building, empha sizing the importance of being authentic in the legal profession. "There’s space for all of us to be our unique selves in building our community and advocating for others, rather than the lawyer we think we need to be ‘as seen on TV.’" - Meri Althauser George L. Bousliman Professionalism Award Mudd introduced Jean Faure as the recipient of the George Bousliman Award for Professionalism, praising her long-stand ing dedication to the legal profession and her embodiment of the award’s values. He highlighted Faure’s impressive career, which includes a master’s degree in English, a law degree from the University of Montana, and a clerkship with the Ninth Circuit. Faure has served on numerous boards and commissions, includ ing the Commission on Practice, and is known for always step ping up to serve the legal community when asked. "Jean embodies what George Bousliman stood for—the pursuit of a learned art in the spirit of public service, always putting professional con cerns above her own business interests." - John Mudd Faure humbly accepted the award, expressing her gratitude while noting that she doesn’t see herself as doing anything differ ently than her peers. She emphasized the importance of paying it forward and committing to supporting the next generation of lawyers, encouraging professionalism and community engage ment. Faure highlighted the role of the legal profession in mak ing meaningful contributions beyond the courtroom. "Our pledge, our commitment, has to be to our current law students and ‘baby lawyers,’ to en courage them to pay it forward and to be com mitted and professional in what we do." – Jean Faure William J. Jameson Award State Bar President, Stuart Segrest introduced Carey Matovich as the 2024 William J. Jameson Award winner, highlighting her

dedication and contributions to the legal profession. He empha sized that Matovich, like other winners, embodies the spirit of showing up and standing up when needed. Segrest praised her extensive involvement in trial lawyer associations, her commit ment to advancing justice, and her role in programs like the Advanced Trial Advocacy Program, where she made a lasting impact on young lawyers. "These are folks who show up and they stand up when needed, and Carey fits that bill perfectly." – Stuart Segrest Matovich expressed deep gratitude, emphasizing the privilege of practicing law in Montana. She acknowledged the significant influence of her colleagues, mentors, students, co-counsel, and opponents throughout her career. Surrounded by her partners and her husband of 37 years, Matovich humbly attributed her success to the support of those around her, expressing heartfelt appreciation for the honor. "I am today what I am, whatever that may be, because of all of you, because you are my friends, and I am truly humbled by this association." - Carey Matovich Segrest closed out the evening by expressing his gratitude for the opportunity to lead the State Bar of Montana during the past year. He reflected on the organization’s journey over the past 50 years, acknowledging the work accomplished during his term while recognizing that many initiatives are ongoing. Segrest emphasized the importance of having a strong team, including the Board of Trustees and the executive team led by John Mudd, whom he called a “treasure.” Segrest touched on key issues the Bar is addressing, including the impact of artificial intelligence on the legal profession and the ongoing need to defend the rule of law and self-regulation. He also highlighted the creation of a Task Force on the Future of the Profession, to ensure the legal field remains dynamic and prepared for the challenges ahead, including alternative path ways to bar admission, the Next-Gen Bar Exam, and addressing the justice gap. "It's important and it's critical this next year, and this upcoming legislative session, for all of us to stay involved and be prepared to express to our legislators and clients the importance of a robust and independent judicial system." - Stuart Segrest As he passed the leadership role to Toni Tease, Segrest expressed confidence in her abilities to lead the Bar through the coming year, praising her preparation and commitment to the role.

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Understanding the Legacy of Americas Chief Justices

2024 Annual Meeting attendees were given a unique insight into the history and work of America’s chief justices from Chicago attorney and President of the National Conference of Bar President’s, Dan Cotter. Cotter, author of The Chief Justices: The Seventeen Men of the Center Seats , Their Courts and Their Times, was joined on stage by Professor Anna Conley of the Blewett School of Law at the University of Montana for a conversation intro duced by Montana State Law Librarian Franklin Runge. The Role and Legacy of Chief Justices Cotter captivated the audience

Left to right: Dan Cotter & Professor Anna Conley

with his insights into the leadership of the court and the unique responsibilities held by its chief justices, noting that while all jus tices have equal votes, "some justices are more equal than others." he highlighted the unique role of the chief justice in shaping the court’s legacy, particularly when it comes to building consensus on critical cases. Cotter and Conley discussed notable chief justices such as Earl Warren, whose leadership led to the unanimous Brown v. Board of Education decision, and Warren Burger, who excelled at admin istrative duties and reduced the number of cases the court heard, which contributed to his legacy as an efficient and effective leader of the judiciary. The Roberts Court and Current Challenges The conversation then shifted to the present, focusing on the legacy of the Roberts Court. While it may still be too early to define Chief Justice John Roberts' enduring legacy, Cotter ob served that Roberts has presided over several landmark decisions, including Citizens United . He emphasized that the composition of the court plays a crucial role in shaping a chief justice’s legacy. He referenced a quote from Justice William Brennan, who believed that the court should not be named after the chief justice but rather after every new associate justice who joins the bench. This reflects the dynamic and ever-changing nature of the court. Cotter highlighted the far-reaching impact of recent Supreme Court decisions: “The cases they take on now... are really just having much more magnitude of an impact on the way the nation may function going forward.”

Administrative Law and the Shadow Docket Cotter and Conley also addressed the rise of the Supreme Court’s "shadow docket," a term coined by University of Chicago Professor William Baud. The so-called “shadow docket,” had typi cally involved procedural matters, separate from the court’s “merit docket,” cases that are heard only after full briefing and argument. Cotter explained the implications of this increasing practice, not ing that some justices have expressed concern about the lack of transparency. In addition to the shadow docket, Cotter addressed cases related to administrative law, including Loper Bright Enterprises v. Raimondo , which overruled the long-standing Chevron doc trine of judicial deference to agency interpretations of ambiguous statutes. Cotter and Conley agreed that these cases signal a shift in how administrative agencies are challenged in the courts, poten tially leading to a wave of new litigation against regulatory bodies like the FTC and NLRB. As Cotter noted, “Anybody who's regulated is now challenging almost any administrative types of agency interpretations,” high lighting the seismic shifts taking place in administrative law. Conclusion The luncheon, which was sponsored by ABA Retirement Funds, was a highlight of the 2024 Annual Meeting. For those who were not able to make this year’s meeting, the 2025 Annual Meeting will take place in Helena, September 10-13, 2025.

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Defending Democracy: ABA President Bill Bay and Bar Leaders Address Challenges and Responsibilities

Hon. Anthony Johnston of the Ninth Circuit Court of Appeals was joined by former acting Montana Solicitor General Matthew Cochenour, Tim Tatarka, Appellate Chief with the United States Attorneys office and Prof. Constance Van Kley who teaches ap pellate advocacy at the Bleweet School of Law for an in-depth panel addressing into the nuances of appellate practice moder ated by outgoing State Bar President Stuart Segrest at this year’s Annual Meeting. Segrest opened the discussion by introducing the panelists, all of whom have significant experience in appellate work. Johnstone, formerly Montana’s Solicitor General and a law professor, shared his perspective as an appellate judge. Cochenour, with his back ground in handling appeals for the Attorney General’s office, American Bar Association President William (Bill) Bay of St. Louis arrived in Missoula for the 2024 Annual Meeting with a message: “Since the founding of the Republic, lawyers have played a key role, almost at everything we do … And I think we play a really key role in ensuring that laws are applied equally to all citizens and that government actions are subject to the review that is needed, that leads to accountability, transparency [and] predict ability.” Bay made the comments at a plenary panel discussion, adding: “In a very real sense, lawyer make justice real.” Bay was joined by Dan Cotter, President of the National Conference of Bar Presidents, for a discussion moderated by incoming State Bar President Toni Tease of Billings, The panel was presented in partnership with the Mansfield Center at the University of Montana as part of its Community Dialogues series. Tease opened the session by framing the panel’s focus on lawyers’ duty to uphold democratic principles, promote civility, and counteract misinformation. She emphasized that, as officers of the court, lawyers hold a unique position to influence public trust in legal institutions. Bay and Cotter echoed that sentiment, noting that with public trust in democratic institutions under pressure, lawyers have an opportunity—and responsibility—to demonstrate accountability and ethical standards in their work. “Thirteen percent of Americans, regardless of political affiliation, say that they don’t have to follow laws of a party for which they have not voted,” Cotter emphasized, citing to a new World Justice Project survey. The three leaders covered the importance of the legal profes sion in preserving judicial independence, especially as judges and judicial staff face increasing scrutiny and even threats. Cotter noted several examples including a tragic attack on a judge’s fam ily by a defendant before the court, illustrating the real dangers faced by members of the judiciary and their families. But the panel also addressed another potential threat facing the

profession, one that also might present opportunities: The role of artificial intelligence in the practice of law. Bay and Cotter both ac knowledged the challenges and opportunities AI presents, urging lawyers to be proactive in understanding and applying technology responsibly. They encouraged attorneys to use AI tools to en hance their work but emphasized the need to verify the accuracy of information, remaining vigilant against potential AI-generated errors that could impact client outcomes and public perceptions of the profession. Cotter pointed out that AI’s potential to introduce errors or “hallucinate” information underscores the necessity of human oversight in legal work. Bay and Cotter each highlighted the importance of mentoring and involving the next generation of lawyers in bar associations and community initiatives. By participating actively, young law yers can connect with the profession’s history and values, which ultimately benefit the public. Cotter urged senior lawyers to guide younger colleagues, providing them with practical experience and ethical ground ing that will support them in becoming effective advocates. “We have to convince young lawyers, particularly coming out of law school why the profession is important, why bar associations are important. Why it’s not just a matter of being a member but being involved,” Bay added. Of the future of the profesion, which Bay admitted remains uncertain, “I do know these things. I know number one, what we stand for, as a profession, [State Bar of Montana], the ABA, the many state and local bars. I know what we stand for and I know what we do. I really know what we do every day to make lawyers better. To advocate for the things we believe in … [and] I know who is there with me. I know a number of Montana lawyers, this is not my first visit. And I am glad to be in the trenches there with you.”

Mastering the Art of Appeals: Insights from the Appellate Advocacy Panel at the Annual Meeting

and Tatarka, the appellate chief for the U.S. Attorney’s Office in Montana, brought a government-focused viewpoint to the discus sion. Van Kley,who also teaches constitutional law and active litigator, provided insights into her experiences as both a scholar and practitioner. A central theme of the panel was the difference between trial and appellate advocacy. Van Kley explained that appellate prac tice is more focused and streamlined than trial work, where dis covery and fact-finding are still ongoing. On appeal, the issues are framed around a static record, and the legal questions come to the forefront. Cochenour and Johnstone added that there is a need for precision in appellate arguments, emphasizing that the ap peal should concentrate on specific legal errors, with Cochenour

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Cochenour emphasized the need to articulate “limiting prin ciples” in appellate arguments to ensure that the proposed rule is clear and does not lead to unintended consequences in future cases. Tatarka added that in government appeals, particularly in criminal cases, it is crucial to focus on the specific errors being challenged and recognize the high bar for overturning lower court decisions. Throughout the discussion, the panelists provided practical advice for appellate advocates. They emphasized the importance of preparation, the value of conducting moot arguments, and the need to present a coherent narrative that helps the court un derstand complex legal issues. Effective appellate advocacy, they noted, requires not only mastering the legal arguments but also understanding the judges’ perspective and adapting as needed during oral argument. The CLE offered a wealth of knowledge for both seasoned ap pellate practitioners and those new to the field, highlighting the unique challenges and opportunities of appellate advocacy.

noting the importance of limiting the scope of arguments to those necessary to the appeal. Tatarka also highlighted the criti cal role of the standard of review in appellate work. The speakers discussed the distinctions between different ap pellate courts, particularly between the Montana Supreme Court and the Ninth Circuit. Judge Johnstone provided insight into the Ninth Circuit’s process, noting that much of the case analy sis is done before oral argument, allowing the judges to focus on key issues during the hearing. Oral argument, he explained, often leads to quick deliberations, with cases frequently decided soon after the hearing. The role of oral argument in the appellate process was another key topic. The panelists stressed the importance of treat ing oral argument as a conversation with the judges. Advocates should respond directly to the questions posed rather than stick ing rigidly to pre-planned arguments. Judge Johnstone empha sized that oral argument is an opportunity for judges to clarify any remaining uncertainties about a case, and advocates must be prepared to engage in real-time dialogue.

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Should You Actively Persuade In Voir Dire? THOMAS M. O’TOOLE, PH.D & KEVIN R. BOULLY, PH.D JURY ECONOMICS

dire. The voir dire may have “conditioned” perceptions, but it did not condition results. The data against attempting to persuade in voir dire gets better. Even more important is the series of 2018 studies by Joseph Vitriol and Margaret Bull Kovera extending the prior line of 2011 research. The 2018 studies also evaluated the impact of conditioning voir dire on verdict decisions in a criminal trial setting – specifically evaluating whether voir dire could condition potential jurors (i.e. to be “death qualified” in a capital murder case), and whether such conditioning led to more conviction-prone decisions. As in prior studies, condi tioning voir dire shaped perceptions of a criminal defendant – a “death qualifying” voir dire approach increased pretrial perceptions that a defendant was guilty. Surely, there must be a relationship between increased pretrial perceptions of a defen dants’ guilt and guilty verdict decisions, right? The research ers did find a relationship. They found that people exposed to conditioning voir dire that increased their pretrial perceptions of defendant guilt were less likely to convict the actual defen dant than people who experienced a standard voir dire. So, in this series of studies, if you can persuade jurors of your view of a key case issue in voir dire, it decreased your chances of persuading the jury of your ultimate verdict. How could shaping people’s perceptions to perceive defen dants as more likely to be guilty lead to fewer guilty verdicts? Here are three interesting points about how jurors make decisions and how a process like voir dire can influence that process. 1. Expectations Set the Stage . First, expectations matter. It is worth noting that the 2018 studies showed that conditioning people in voir dire had an impact. In the authors’ words, “Our results are consistent with research demonstrating that pretrial knowledge structures influence jurors’ expectations for and evaluations of evidence.” They also note that a conditioning voir dire can shift jurors’ expectations about the evidence they should see in trial, influ encing their ultimate evaluation of the evidence they actually

Like taxes, getting older, and gravity, voir dire does not care how you feel about it. Potential jurors experience it as human beings with all the quirks and nuances of human psychology at play. And far too often voir dire happens with trial lawyers using the invaluable time to “chat” about their case, introduce their ideas, and attempt to “condition” the jury to see the case from their perspective. Is treating voir dire this way worth the limited time and effort these trial lawyers put into it? Is persuasion – or even just planting seeds – a reasonable and achievable goal of voir dire? The belief that trial lawyers should use voir dire to per suade jurors is everywhere. Perhaps the myth persists be cause of its “truthiness” – it does feel like it could work – or because it gives less comfortable lawyers a sense of control over an inherently uncontrollable process. Undoubtedly some trial attorneys have felt their brilliant persuasion in voir dire helped them win a case or two at some point in the past. It’s possible. But we spend this column exploring the research and our experience on this question so we can offer insights into whether your precious voir dire time is better spent with a different focus and approach. Take a series of 2011 studies by Sarah Greathouse and her colleagues. They evaluated how potential jurors’ pretrial perceptions formed during voir dire might influence verdict decisions. They found, as others have found and many have surmised, that a voir dire approach attempting to persuade or “condition” jurors could influence people’s pretrial per ceptions related to the case-specific issues. In their studies, a “conditioning” voir dire shaped potential jurors’ percep tions about a juvenile defendant’s probability of guilt before hearing the trial evidence and arguments. This led to more pretrial conviction-prone attitudes compared to people who experienced a standard approach to voir dire (i.e. without persuasive conditioning). This seems like evidence you should attempt to persuade jurors in voir dire, right? The conditioning changed people’s initial perceptions so it must be helpful? Not so fast. The Greathouse studies also found those initial perceptions influenced by voir dire did not persist and play a role in the actual verdict decisions people rendered in the study. In other words, people rendered guilty verdicts at about the same rate whether they were exposed to the conditioning voir dire or a standard voir Let’s start with legitimate research. Believe it or not, some of the best and most useful re search on the issue shows that “conditioning” a jury during voir dire, to the extent you can do it, does not ultimately impact verdict decisions – and if it does, it probably isn’t in the way you would expect – the key word being expect.

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see in trial. The resulting contrast between expectation and reality can explain reduced conviction rates in “con ditioned” jurors compared to those who were not condi tioned. Makes sense. The first time I saw a fireworks show was far more impressive than the last. This contrast between expectation and reality can function very simply by raising the bar of what evidence a person expects to see in a trial involving a murder, leav ing the actual evidence to fall short and result in acquit tal. This is known as contrast theory. We see it all the time in trials where an attorney overpromises and jurors contrast their actual perceptions with their preliminary expectations. This result can also function through a psychologi cal phenomenon known as reactance. Trial lawyer John Blumberg gives his opinion about conditioning jurors in voir dire in Plaintiff magazine, saying: “[Y]ou are not persuading anyone. In fact, the more you try to get jurors to agree with the proposition you’re advocating, the more they will resent your intrusion into their private thoughts and beliefs.” Why? They react to your condition ing attempts and build resistance to you and your target belief. This reactance is probably most easily recognized in young children. Think basic “reverse psychology.” Why does it work to ask a child to do the opposite of what you want? Because they can react with such a strong and impulsive resistance that they move strongly in the op posite direction. In jurors this happens more subtly and less impulsively but it happens nonetheless, particularly in today’s post-pandemic, 2020 jurors who do not want to be told what to think or what to decide. If jurors sense you trying to persuade them in voir dire, they often react in opposition and begin to build counterarguments and resistance before you’ve even begun to make your case. 2. Evidence Matters More. Perhaps the most important takeaway from the research is the consistent finding that evidence matters most to people’s ultimate case decisions. In both the 2011 and 2018 studies described above, the researchers varied the strength of the evidence against the defendant to evaluate how strength of evidence may impact the various voir dire strategies, including the impact of conditioning voir dire. Would conditioning voir dire lead to comparable con viction rates regardless of the evidence? Could voir dire “condition” people to find guilt even when the evidence wasn’t clear or would the evidence matter? It’s critical that the strength of evidence was the most important influence on verdict decisions, consistent with research by Visher and others going back as far as 1987. As Greathouse and her colleagues wrote in 2011: “Participants’ post-trial ver dict decisions were only influenced by the strength of the trial evidence.” This is, and should be, a reassuring finding for trial lawyers and a reminder that jurors are diligent and effective fact-finders who get the result right most of the time.

3. Deselection Over Persuasion . As so many of our fine colleagues have written, and as we advise our clients over and over again – your priority in voir dire should be to identify and strike jurors most likely to be unwilling or unable to give your case a fair hearing. Period. Stop. This means prioritizing the goal of probing and incisive voir dire over the unpredictable goal of condi tioning and persuading jurors in the jury selection process. Turning again to quality research, we cite a fantastic 2021 study by Jessica Salerno and her colleagues evaluating the impact of minimal voir dire compared to extended voir dire. Is it effective to simply hit the top of the waves while performing voir dire or do you need to dig in with more depth and detailed questioning? While the study is more than worthy of your time, and a worthy read for judges and members of the judiciary more broadly, the researchers conclude that “attorneys need the opportunity during voir dire to ask jurors about specific attitudes that might bias their decisions because relying on jurors’ self-identification of their own biases has little utility.” They go on to say, specifically, that “generic questions requiring jurors to spontaneously and explicitly acknowledge that they cannot be impartial are unlikely to aid attorneys or presiding judges.” This is important because you have limited time in voir dire and efforts to persuade directly trade off with efforts to deselect. Practically speaking, efforts to persuade jurors in voir dire more often result in “outing” your good jurors to the other side, aiding your opponent in their assessment of how to use their peremptory strikes. So while you may think you are gaining advocates in voir dire, you are actu ally losing advocates in the deliberation room as the other side discovers where their problems might be and removes them from the venire. The much more important and influ ential approach to voir dire is to identify and deselect jurors most likely to be biased against you. So, next time you begin thinking about voir dire as an opportunity to persuade the jury of your case, think harder again and again until you’ve identified the questioning approach that will best identify biases against you. 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. The net effect of the research and our expe rience is to acknowledge that conditioning a jury during voir dire is possible, but there is no guarantee doing so is helpful to your goal of persuading jurors’ verdict decisions (there is actually research showing it could be harmful).

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