Utah Bar Journal

Vol 21 No. 4 July / Aug 2008

PDF Version

COVER: Desert Flower, taken on Poison Spider Mesa above Moab, Utah, by first-time contributor John Lund of Salt Lake City, Utah.

* President's Message: Giving Generously
* Drawing the Short Straw - Mortgage Fraud and Straw Buyers
* The Commercial Loan Guaranty - Types & Techniques
* An Enigmatic Degree of Medical Certainty
* Winning Arguments Supporting the "Made Whole" Doctrine
* Utah Law Developments: Skeptics at the Gate - The 2007 Revisions to Rule 702, Utah Rules of Evidence
* Utah Law Developments: Highlights from the 2008 Legislative Session
* Book Review: No One Makes it Alone by Andrew A. Valdez
* Book Review: With Hope Across America, A Father-Daughter Journey by Bob Braithwaite
* Paralegal Division: Congratulations Deb Calegory: Recipient of Utah's 2008 Distinguished Paralegal of the Year Award
* Paralegal Division: Making a Difference in the Legal Profession and the Community

Giving Generously
by V. Lowry Snow

Bar meetings in Salt Lake City usually begin with a 4:30 AM alarm. My wife has become more accepting of my predawn rustling and rushing to shower and dress before heading out the door to catch the early commuter flight to Salt Lake City. Typically, I use the flight time in review of contracts, pleadings or correspondence – the things that I try to keep up with in a busy practice while still devoting a good measure of time to the fulfillment of my presidential duties. Instead this morning, I’m reflecting on the events of the past year and trying to identify what it is about this experience that has been so rewarding.

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Drawing the Short Straw – Mortgage Fraud and Straw Buyers
by Brad R. Jacobsen and Michael Barnhill

I. Introduction
Mortgage fraud is a significant problem in Utah, and it is growing. The FBI listed Utah as one of the top ten hotspots for mortgage fraud in its 2006 Mortgage Fraud Report.1 Recently, both state and federal agencies have increased their investigation of mortgage fraud and the enforcement of mortgage fraud laws. New Mortgage Fraud Task Forces have been created by state and federal agencies to tackle the problems created by these schemes and to stop those involved.2

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The Commercial Loan Guaranty – Types & Techniques
by Rick L. Knuth

The guaranty agreement is often only an after-thought in a commercial loan transaction. Lenders tend to focus more on the collateral, and borrowers tend to assume that a guaranty’s presented form is non-negotiable. As a result, no one pays much attention to the guaranty agreement – until the loan is in trouble, that is, at which point everyone suddenly becomes very interested in whatever recourse against the guarantors was agreed to back
on that sunny, optimistic day when the loan was first made. The proposition of this article is that the guaranty agreement ought to receive a more thoughtful, flexible consideration than that; that it should not be treated just as another document‑in‑the‑stack, but as a separate agreement of equal concern to all parties.

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An Enigmatic Degree of Medical Certainty
by Nelson Abbott and Landon Magnusson

Every profession uses its own jargon. Psychologists describe a client’s “affect” while an acting coach describes a student’s “expression.” The use of jargon frequently causes difficulties when members of differing professions converse. For example, economists and accountants find themselves at odds over the meaning of terms like “capital” and “profit.” In the legal profession, attorneys must also converse frequently with members of other professions. Misunderstandings and problems can be especially common when meaning is lost in the translation from “legalese” to plain English. For example, when professionals are required to give opinion testimony under Utah Rules of Evidence 702, such misunderstandings may result in testimony being wrongfully admitted or improperly excluded.

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Winning Arguments Supporting the “Made Whole” Doctrine
by John F. Fay

THE PROBLEM
Your injured client has health insurance. During litigation against the tort-feasor, your client’s health insurer pays some of your client’s medical expenses arising from the injury. Later, when you settle with the tort-feasor, the health insurer wants 100% reimbursement of those medical expenses.

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Winning Arguments Supporting the “Made Whole” Doctrine
by John F. Fay

THE PROBLEM
Your injured client has health insurance. During litigation against the tort-feasor, your client’s health insurer pays some of your client’s medical expenses arising from the injury. Later, when you settle with the tort-feasor, the health insurer wants 100% reimbursement of those medical expenses.

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Skeptics at the Gate – The 2007 Revisions to Rule 702, Utah Rules of Evidence
by John R. Lund and Keith A. Kelly, with assistance from Richard Vazquez1

Introduction
On November 1, 2007, the Utah Supreme Court adopted a significantly revised version of Rule 702, Utah Rules of Evidence, as well as a substantive Advisory Committee Note. Revised Rule 702 overrules a substantial body of Utah case law that called for a bifurcated standard in admitting expert testimony, depending on whether the testimony involved “novel” or “non-novel” expert analysis.2 Revised Rule 702 now provides a unified framework for determining the admission of expert testimony. The Advisory Committee Note explains the reasoning for these changes, while introducing the perspective of “rational skepticism” for a judge to take when keeping the gate for admission of expert testimony and emphasizing the instruction to focus on the “work at hand” when applying Rule 702.

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Highlights from the 2008 Legislative Session
by Nancy J. Delacenserie

As in most years, the 2008 legislative session was full of controversy. Subjects as diverse as immigration and water were hotly debated. The following is a brief summary of a variety of bills that were enacted during the 2008 legislative session. With the volume of bills passed, no attempt is being made here to provide the reader with more than a taste of several bills of general interest to Utah lawyers. While the bills discussed herein may not directly affect your legal practice, they may very well impact your life in other ways.

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No One Makes It Alone

by Andrew A. Valdez

Reviewed by J. Simón Cantarero

No One Makes It Alone (2006) was written by Andrew A. Valdez. Many readers will recognize the author as Judge Valdez of the Third District Juvenile Court. This book is Judge Valdez’s first book and is an autobiographical story about a critical time in his youth. While the book may not win any awards for being a literary masterpiece, it should be required reading for practicing lawyers to remind them of the importance of having and being a mentor, not only for their chosen profession but for life. The book is worth at least 3 CLEs.

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