IOWA LAWYER - ANJIE SHUTTS
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THE
IOWA LAWYER
June 2021 V81 N5
MEET THE 135TH ISBA PRESIDENT ALSO IN THIS ISSUE
ANJIE
DEPOSITION TIPS IN THE
AGE OF ZOOM PAGE 9
BLOCKCHAIN FOR
SHUTTS
LAWYERS PAGE 14
NEW REQUIREMENTS
Page 6 FOR SERIES LLCS PAGE 18
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Table of Contents
THE OFFICIAL PUBLICATION OF
THE IOWA STATE BAR ASSOCIATION
GENERAL INQUIRIES
isba@iowabar.org or 515.243.3179
EDITORIAL TEAM
Editor-in-Chief Copy Editor
Melissa Higgins Steve Boeckman
mhiggins@iowabar.org sboeckman@iowabar.org
515.697.7896 515.697.7869
THE IOWA LAWYER
(ISSN 1052-5327) is published monthly, except for
the combined December-January issue, by The
Iowa State Bar Association, 625 East Court Ave.,
Des Moines, IA 50309-1904. One copy of each is-
sue is furnished to association members as part
of their annual dues. Non-member subscription
rates are $40 per year. Periodicals postage paid at
Des Moines, Iowa.
CONTENTS
POSTMASTER
Send address changes to The Iowa Lawyer Mag-
azine, 625 East Court Avenue, Des Moines, IA,
50309-1904. Members can contact the member-
ship department to change their addresses by
emailing membership@iowabar.org.
PRINTER
The Iowa Lawyer Magazine is printed by Mittera
Iowa, 10776 Aurora Avenue, Des Moines, IA, 50322. Volume 81
Telephone 515.270.0402. Design and Production:
Mittera Iowa. Number 5
June 2021
ADVERTISING
CLASSIFIED. Qualifying ISBA members receive
two free non-job listings annually as a mem-
ber benefit. Members should contact the ISBA
Communications Department for ad placement:
communications@iowabar.org. For Career Center
IN BRIEF
postings, visit http://careers.iowabar.org/ 4 Reminder: Time to renew your ISBA dues
DISPLAY. Display advertising in The Iowa Law- 4 Masks no longer required in court for vaccinated people
yer Magazine is handled by Larson Enterprises,
909 50th Street, West Des Moines, IA, 50265. For
FEATURES COLUMNS
display advertising and non-member classified
ad rates, contact Alex Larson at 515.238.4406 or
alex@larsonent.com.
SUBMISSIONS
6 Shutts never stops giving back to the
profession she sees as a “gift”
5 President’s Letter
The Iowa State Bar Association seeks to publish
19 CLE Calendar
original articles that advance the education, com-
9 Tips for taking depositions in the
petence, ethical practice and public responsibility
of Iowa lawyers. Members are encouraged to sub-
age of Zoom: A practitioner’s guide 21 Transitions
mit articles to the editor for possible publication.
12 Considerations for the growing 24 Kudos
Submissions should be no longer than 1,500 words, role of the attorney-investigator
although exceptions can be made. Footnotes in the post #MeToo world 25 Thanks to Speakers
should be kept to a minimum. Include a short bio
of the author(s) and professional photo(s) when
14 Blockchain for lawyers 25 In Memoriam
submitting. NOTE: Not all submissions are guar-
anteed publication. The editors and bar leaders 26 Affirmative Legislative Program
review all submissions to make a determination of 18 Updated information on series LLCs
suitability for publication. Email all submissions to
in light of new Iowa Code Article 14
28 Classifieds
mhiggins@iowabar.org in Microsoft Word format.
20 Recognition of the ISBA’s 50-Year
Members
29 Disciplinary Opinions
STATEMENTS OR OPINIONS
The statements and opinions in this publication 30 Spotlight on Service:
are those of the authors and not necessarily those 22 Premium Finance: What is it, who is
it for and where is my risk?
Attorney mask-makers
of The Iowa State Bar Association. Readers should
consult original sources of authority to verify ex-
actness. Advertising in this publication does not
constitute endorsement of a product or service
unless specifically stated.
JUNE 2021 THE IOWA LAWYER 3
In Brief The Iowa State Bar Association
625 East Court Avenue, Des Moines, Iowa, 50309-1904
Main: 515-243-3179 Fax: 515-243-2511
www.iowabar.org isba@iowabar.org
REMINDER: TIME TO RENEW
PRESIDENT
Jerry Schnurr III Ft. Dodge 515-576-3977 jschnurr@schnurrlawfirm.com
PRESIDENT-ELECT
YOUR ISBA DUES Anjela Shutts
VICE PRESIDENT
Des Moines 515-288-6041 shutts@whitfieldlaw.com
The ISBA dues renewal season is underway with Henry Hamilton III W. Des Moines 414-403-9082 hhamil3@aol.com
mailings going out in May to existing members. SECRETARY
Dwight Dinkla Des Moines 515-697-7867 ddinkla@iowabar.org
You may also renew online at any time by visiting IMMEDIATE PAST PRESIDENT
iowabar.org, and clicking the “Sign In” link at the Willard "Bill" Boyd III Des Moines 515-283-3172 wlb@nyemaster.com
top of the homepage. Once you are logged in, DISTRICT GOVERNORS
you will see a “Renew Your Membership Now” DISTRICT 1A
Chris Even Dyersville 563-875-9112 ceven@locherlaw.com
prompt on your Manage Profile page. Daniel Fretheim Decorah 563-382-2959 fretheim@andersonlawdecorah.com
DISTRICT 1B
In addition to standard dues, please consider Shannon Simms Waterloo 319-291-6161 simms@nlfiowa.com
becoming a Sustaining or Cornerstone member Heather Prendergast Waterloo 319-234-4600 heather@neialaw.com
to help the ISBA further its mission of supporting DISTRICT 2A
Iowa lawyers, the court system and civic educa- Matthew F. Berry Clear Lake 641-357-7296 berrylaw@cltel.com
Megan Rosenberg Hampton 641-456-2555 mrosenberg@hobsoncadylaw.com
tion programs statewide (more information at DISTRICT 2B
iowabar.org/specialmembershipcategories). John Werden Carroll 717-792-3424 jwerden@eichlaw.us
Bethany Currie Marshalltown 641-421-0990 bethanycurrie@aol.com
You may contact the ISBA with any questions about DISTRICT 3A
your membership at membership@iowabar.org. Jack Bjornstad Spirit Lake 712-322-5225 jack@bjornstad.legaloffice.pro
Kevin R. Sander Estherville 712-362-7215 ksander@fitzgibbonslawfirm.com
DISTRICT 3B
Maura Sailer Denison 712-263-4627 msailer@frontiernet.net
James Daane Sioux City 712-252-2424 jdaane@maynelaw.com
DISTRICT 4
DeShawne Bird Sell Glenwood 712-527-4026 deshawne@selllaw.com
Deborah Petersen Council Bluffs 712-328-8808 deborah@petersenlawcb.com
DISTRICT 5A
Gilbert Caldwell III Newton 641-792-4160 gcaldwell@caldwellandbrierly.com
Miki McGovern Woodward 515-490-9081 MikiMcGovern50@gmail.com
DISTRICT 5B
Andrew Zimmerman Corning 641-322-4712 andrew@nielsenzimmerman.com
DISTRICT 5C
David Nelmark Des Moines 515-988-0447 dnelmark@gmail.com
Joseph Happe Des Moines 515-288-2500 joe@happemediation.com
Margaret A. Hanson Des Moines 515-246-7957 maggiehanson@davisbrownlaw.com
Bridget R. Penick Des Moines 515-242-8902 bpenick@fredlaw.com
Adam D. Zenor Des Moines 515-650-9010 adam@zenorkuehner.com
Donna Miller Des Moines 515-809-9699 dmiller@mzelaw.com
Kathleen Law Des Moines 515-283-3116 kklaw@nyemaster.com
Cindy Rybolt Mitchellville 515-243-1193 crybolt@iowalaw.org
Joe Moser Des Moines 515-288-0145 jmoser@finleylaw.com
Stacey Warren Altoona 515-414-8918 stacey@cashattwarren.com
William Miller Des Moines 515-283-1000 miller.william@dorsey.com
DISTRICT 6
Erin R. Nathan Cedar Rapids 319-896-4013 enathan@spmblaw.com
Melvin Shaw Coralville 319-337-7429 law@melvinshaw.com
Caitlin Slessor Cedar Rapids 319-365-9461 cls@shuttleworthlaw.com
MASKS NO LONGER Kristofer Lyons
Chad Brakhahn
Monticello
Cedar Rapids
319-462-3961
319-896-4002
klyons@co.jones.ia.us
cbrakhahn@spmblaw.com
REQUIRED IN COURT FOR DISTRICT 7
David J. Helscher Clinton 563-243-1243 dave.helscher@clintonnational.net
VACCINATED PEOPLE Christopher Surls
Ian J. Russell
Lowden
Bettendorf
563-941-5301
563-324-3246
cls@wbnlaw.com
irussell@l-wlaw.com
DISTRICT 8A
On Friday, May 14, Iowa Supreme Court Chief Rick Lynch Bloomfield 641-664-1997 lynchlaw@netins.net
Justice Susan Christensen signed an order Mike Mahaffey Montezuma 641-623-5425 mwm_mahaffeylaw@zumatel.net
revising the face-covering requirement in court- DISTRICT 8B
Tim Liechty Mount Pleasant 319-367-2251 bellortliechtylaw@gmail.com
controlled spaces. Pursuant to CDC guidelines,
REPRESENTATIVES AND DELEGATES
fully-vaccinated people entering court-controlled Iowa Judges Association Liaison
areas are no longer required to wear face Rustin Davenport Mason City 641-494-3621 rustin.davenport@iowacourts.gov
coverings, and thus the face mask or face shield ABA Delegates
Alan Olson Des Moines 515-271-9100 aoo@olson-law.net
requirements in paragraphs 4 and 5 of the David L. Brown Des Moines 515-244-2141 dlbrown@hmrlawfirm.com
supreme court’s amended Nov. 24, 2020 order Jane Lorentzen Des Moines 515-244-0111 jlorentzen@hhlawpc.com
do not apply to fully-vaccinated people. Kay Oskvig Des Moines 515-288-6041 oskvig@whitfieldlaw.com
LEGISLATIVE COUNSEL TEAM
The order states that judges shall inform James Carney Des Moines 515-282-6803 carney@carneyappleby.com
attendees at the start of court proceedings Doug Struyk Des Moines 515-282-6803 struyk@carneyappleby.com
Jenny Dorman Des Moines 515-282-6803 dorman@carneyappleby.com
that those who have been fully vaccinated ISBA YOUNG LAWYERS DIVISION OFFICERS
may remove their face coverings, leaving it to President Torey Cuellar Nevada 515-382-7255 toreycuellar@gmail.com
attendees to provide for their own compliance. President-elect Kristen Shaffer Coralville 319-365-9461 kas@shuttleworthlaw.com
Secretary Kyle Fry Muscatine 563-564-4982 Kyle.Fry@kentww.com
Immediate Past President
Abhay Nadipuram Des Moines 319-290-2585 anadipuram@careinitiatives.org
4 THE IOWA LAWYER JUNE 2021
Through thick and thin, ISBA
helps lawyers serve clients,
communities, courts
PRESIDENT’S LETTER FROM OUTGOING ISBA PRESIDENT JERRY SCHNURR III
Thank you for the opportunity to serve issues or identity theft. I could not be issues of civics education. While the
as your ISBA president. We started the more proud to be an Iowa Lawyer. pandemic did not allow that to happen
year with the pandemic and racial The ABA’s 2020 Profile of the Legal the way we initially envisioned, working
tension following the murder of George Profession focused on legal deserts and with John Wheeler and the Center for
Floyd. Then came the derecho. Then an soaring law school debt. The ISBA and Law and Civics Education, we were able
election followed by an insurrection at the Rural Practice Committee is to put something more useful together.
the capital. Through it all, your ISBA has working to address these issues so that We put on panel discussions with experts
been there to serve lawyers as they serve lawyers who want to work in rural in various areas of law to discuss civics
their clients, communities and the court. communities can. I often think of the education topics like Voting Rights, the
Many lawyers worked at home this year. conversation I had with a law student Rule of Law and Current Issues in the
How many have worn sweatpants for a this year who wants to return home to Supreme Court. We used Zoom to
year? We have mastered new technology. the rural community he grew up in, present these panels live with a number
Zoom meetings were almost unheard of but he can’t afford to because of school of schools. We were able to record these
before the pandemic. Now they are debt. The ISBA has started talking to presentations. They remain available to
commonplace. legislators about law student debt relief educators on the ISBA website (Visit
As the pandemic rolled along, the legal for those who commit to live and work iowabar.org/CivicstheLawandYou).
landscape changed quickly and frequent- in rural communities. I think lawyers The ISBA is in the good hands of
ly. Iowa lawyers stepped up and served in rural communities aids rural incoming President Anjie Shutts,
their clients and communities. The ISBA development. I realize there are other President-elect Henry Hamilton and
worked with Iowa Legal Aid and the Polk pieces to the puzzle, but we are Vice President Ian Russell. Their energy,
County Bar Association Volunteer working on the piece that we have seen experience and dedication is inspiring. I
Lawyers Project to provide a COVID-19 achieve some success in South Dakota. look forward to the great things their
Hotline for people to call if they experi- While we have not been able to meet leadership will bring. I am thankful for
enced legal issues because of the pan- in person this year, I am proud of the their service.
demic. Thousands of Iowans received way Dwight Dinkla, Harry Shipley This past year, as strange as it was, is
help from Iowa lawyers who volunteered and the rest of the staff work tirelessly the highlight of my professional life. I
to answer their questions. to serve our members and keep the genuinely enjoy being around lawyers.
Legal Aid and the ISBA put on frequent ISBA sound. We have also put together While we have not been able to meet in
free or low-cost CLEs on the shifting legal several task forces that are working on person, we will be together again soon. I
issues. These were invaluable to the important projects. For example, the come away from the past year with a
lawyers navigating the health emergency, Bar Insurance Committee is looking renewed sense of pride in our profession
working remotely and serving folks at the possibility of the ISBA offering and a belief in the importance of the bar
through the COVID-19 Hotline. health insurance as a member benefit. association. This feeling was described by
If you have never donated to Iowa We have a Transition Task Force working Harrison Tweed in 1945: “I have a high
Legal Aid, I urge you to make your first on materials to help lawyers through opinion of lawyers. With all their faults,
donation. If you have donated, I urge the retirement process including forms they stack up well against those in every
you to increase your donation. I am and checklists. We formed a Diversity other occupation or profession. They are
thankful for the service Iowa Legal Aid Initiative Task Force to work on the better to work with or play with or fight
staff and volunteer lawyers provide the identification of challenges and opportu- with or drink with, then most other
people of Iowa. nities for diversifying the legal profession varieties of mankind.”
Then came a derecho. Legal Aid, the in the state of Iowa. The work of the See you soon.
ISBA, ISBA YLD, the ABA YLD, the Polk sections and committees continues.
County Bar Association Volunteer One of my primary goals was to get
Lawyers Project and the Linn County Bar lawyers involved in civics education. Past Jerry Schnurr III
Association teamed up to serve those President Bill Boyd started “Lawyers in Schnurr Law Firm P.C.
with legal problems due to the storm. the Libraries” to provide legal informa- jschnurr@schnurrlawfirm.com
Lawyers helped people with FEMA tion to the public. I hoped to build on 515-576-3977
denials, insurance, landlord/tenant that with “Lawyers in the Schools” to get
issues, employment issues, contractor lawyers into local high schools to discuss
JUNE 2021 THE IOWA LAWYER 5
Shutts never stops
giving back to the
profession she
sees as a “gift”
By Melissa Higgins, Communications Director
If you spot Anjela (“Anjie”) Shutts the role of the 135th president of The Judicial Nominating Commission for
around town, it may just be as a blur. Iowa State Bar Association. Shutts is no Polk County, the Iowa Family Law
She is likely running from a client stranger to bar activities, previously Case Processing Reform Task Force
meeting to a board meeting or darting serving as Polk County Bar Association and the Iowa Center for Children’s
from the courthouse to the field to president, and for many years as a Justice board. She did stints on the
watch her kids play soccer. She has a board of governor and officer. school PTA and volunteers regularly
busy family, a busy family law practice She has also been actively involved with her church.
and a constant drive to give back to the in the Supreme Court Access to “My husband would say that I can’t
profession she loves. Justice Commission, the Iowa Organi- say no,” she said, with a laugh. “But I
This upcoming year might be her zation of Women Attorneys, the Polk think it’s ingrained. My dad was a
busiest yet, as she prepares to assume County Women Attorneys, the State public servant. He was a cop in Grin-
nell, where I grew up. He retired when
I was in high school and then worked
HDHADVISORS
for the county – getting elected to the
county board of supervisors where he
served until his death. He served on all
the community boards. He was a true
Offering business appraisal, financial advisory, litigation support and
public servant.”
related professional service to clients across the United States
An experience all the way back in
Combined, our team represents approximately 25 professionals and over sixth grade solidified Shutts’ desire to
100 years of experience Expert Witness Testimony step up when needed. The Grinnell
school system was considering getting
Contact one of our professionals in Des Moines for: rid of middle school athletics because
of budget cuts, but her parents came
EXPERT WITNESS BUSINESS VALUATION
up with the idea to start a concession
ECONOMIC DAMAGES MERGERS & ACQUISITIONS
stand to raise money to support the
athletic programs. Her family ended
up running the concession stand for
five years.
“We did the set up and clean up and
We’ve recently food ordering and found all the
moved and volunteers. If there was a tournament
expanded! New in town, we woke up at dawn to pick up
office in West the coffee and donuts and the whole
Des Moines! family went to set it all up,” she said. “It
taught me as a kid that one person can
make a difference. You just need to
show up and do it.”
Shutts’ busy schedule took a little bit
Business Appraisal I Litigation Support I Financial Advisory I ESOP’S of a slowdown over the last year
because of COVID. She worked from
DES MOINES I 4201 Westown Pkwy, Suite 340 I West Des Moines, Iowa I 515.225.3796 home, even conducting trials remotely,
ATLANTA I 2002 Summit Boulevard, Suite 950, Atlanta, Georgia I 770.790.5000 which allowed her to spend more time
WWW.HDHADVISORSLLC.COM with her husband and two daughters,
albeit in cramped quarters. Her
6 THE IOWA LAWYER JUNE 2021
Anjie Shutts
I started riding my bike a lot
during the pandemic. I ride it to
the Iowa Women of
Achievement bridge in
downtown Des Moines to just
be there and look at the names.
Some of them I didn’t know
until I read them on the bridge.
To think about that woman
doing something so novel
during that era, it’s amazing.
They were the first. They
showed up to do something
people told them they couldn’t
husband, Peter Kitundu, is also a Whitfield the summer after my first do. It’s very inspiring.
lawyer. He is chief compliance officer year of law school because it was an
at Wellmark. actual paying job. I really liked the
“My husband was working in our people a lot,” she said. “Then I sec- That sense of right and wrong has
bedroom. I was in the spare bedroom. ond-chaired a custody trial during an most recently led Shutts to focus on
Our girls were in their bedrooms internship at Iowa Legal Aid and I diversity and inclusiveness issues. She
doing virtual school. We were home thought, ‘Wow, I could do this.’ I could is spearheading the ISBA’s plans for a
together all the time,” she said. help people, but also be intellectually Centralized Diversity Initiative – which
Her daughters, age 17 and 14, challenged, in family law.” she hopes will eventually lead to
eventually went back to in-person Family law was also a way to have financing a full-time employee focused
school at Des Moines Roosevelt High her own files and clients right from on diversity efforts in the legal
School. But Shutts has remained the start. profession.
working from home. “I wanted to be in the courtroom “We have first formed a committee
“I discovered I like working from and handle my own cases. I didn’t want to decide how to set up that entity and
home. I get more done. I am more to research and write for the next four how to fund it. I hope that by the time
efficient, and it has allowed me to see years before even taking a deposition. I end my presidency, we can announce
my kids a lot more,” she said. “We’re It was a way for me to have client this has been created,” she said.
on borrowed time. They will be contact right away,” she said. She also plans to spend her presiden-
graduating high school soon.” Shutts knew she would become a cy promoting participation in the
Shutts maintains a divorce and lawyer at about nine years old. “My Young Lawyers Division Diversity
family law practice at Whitfield & Eddy mom would say I was argumentative. I Pledge (more info at iowabar.org/
and has witnessed that the extra don’t think that’s true, but I always diversitypledge). Diversity and inclusiv-
burdens placed on families over the questioned the ‘why?’ I had a strong ity efforts are very personal to Shutts.
last year has meant more stressed-out sense of justice about what was or Her husband is black, and her children
clients calling her. So how does she wasn’t right,” she said. are biracial.
handle what can often be a conten-
tious area of law?
“I am the quintessential middle
child,” she said. “I’m not going to start Hon. MarkW.W.
HON. MARK Bennett
BENNETT
(Retired U.S district judge)
(Ret. U.S district judge)
the fight, but I won’t back down either.
My approach is to try to resolve things Mediation,
Mediation,Arbitration
Arbitrationand
and
for people. It’s less of a strain on them Legal Consulting
Legal Consulting
financially and less of a strain on their
• 45 years of combined judicial and private
children if we can work it out.” 45 years of combined judicial and private practice
practice in
experience experience
more than in
30 more
federalthan 30courts
district
Shutts did not anticipate she would federal district
and multiple courts
state and multiple
and appellate courts.
end up in family law. She started at state and appellate courts.
National experience
Whitfield as a clerk while attending • Nationalwork
– Midwestern experience
ethic and rates
Drake Law School, and then started • Midwestern515-414-1186
work ethic and rates
full time when she graduated in 1996. mark@mbennett.us
“I went to law school because I
515-414-1186
www.mbennett.us
wanted to work for the county attor-
mark@mbennett.us • www.mbennett.us
Virtual mediation and arbitration available
ney’s office. But I started working at Recruited member of both FedArb & Resolute Systems
JUNE 2021 THE IOWA LAWYER 7
Q&A WITH ANJIE SHUTTS
What is your number one goal during your “Having two parents who are lawyers, it is very natural for us to talk to
year as president? our kids about current events issues,” she said. “But the events of last
“One word to talk about my goal is outreach summer with the murder of George Floyd really woke my children up to an
– to lawyers, making sure we are encourag- interest in social justice. They go to a very diverse school, which we wanted,
ing membership; to the underrepresented, so they are exposed to all the ways you can exist in the world.”
to encourage diversity and recruitment and It is also important to Shutts that her children travel the world and
retention of diverse lawyers; and to the experience different cultures. Kitundu’s father was originally from Tanzania,
public, to promote access to justice.” Africa and retired there, so the family made regular visits as the kids were
growing up.
Who is your mentor? “Travel is really important
“I owe a lot to Maureen Tobin. She is the to us,” she said. “It’s not
reason I’m at Whitfield to begin with. Her something I did as a kid. We
nanny and my sister were good friends. are fortunate we have gotten
Her nanny got me an invitation to dinner to go to these places and the
at her house and we hit it off. She had just kids have had those
gone back to work after having her third experiences.”
child and had just made partner. I had not Travel and soccer go
been exposed to female lawyers before, hand in hand for Shutts
so I asked her a lot of questions. I asked and her family. They have a
her about the balance or if she felt goal of attending a game
overwhelmed. What I learned by watching
in every single major
her and the diverse group of female
league soccer stadium in
attorneys at Whitfield is that there is no
right or wrong way to navigate being a the world. They even got
female attorney. What works for one may to witness the U.S. women
not work for someone else. You have to win the World Cup in
find your own path.” France in 2019.
Both of her girls are Shut ts’ family
is
What has been your most meaningful big into soccer and hope hospital in Ta pictured outside the fir st pe
nzania. Her m diatric
to play in college. Shutts Kitundu, was othe
volunteer activity? a nurse and he r-in-law, Mar y Ellen
secretly hopes they The maternity lp ed op en
“I was involved in the steering committee ward is named this hospital.
attend Luther College, af ter her.
when Kids First in Cedar Rapids wanted to
expand to Des Moines. I was involved in her alma mater, which
raising the money to open that. Then I she remains very
became really involved as it evolved into a connected to – currently
separate organization called the Iowa serving on its
Center for Children’s Justice. It was not an Board of Regents.
easy thing to make that transition, espe- She played softball
cially during a pandemic, but I felt very while she was an
fortunate to be alongside people who felt undergraduate
just as strongly as I did that that organiza- student there. The
tion needed to continue.” college awarded
Shutts their Distin-
Why do you enjoy serving as guished Service Award
a bar association leader? in 2018, one of many
“I have found being involved in bar accolades Shutts has
association activities to be a huge received over the years
professional challenge. Some of which also include
the times I have been challenged receiving the Willie
the most have been in those Stevenson Glanton
leadership roles. It is hard leading a Award, Supreme Court 0 19 .
J une 2
bunch of lawyers. I’m also an B e lg ium in
Voice of Justice Award, d in
extrovert. I like meeting people and picture
Polk Co. Bar Award of ’ family
learning about them and their Shut ts
Merit, recognition in the
practice and making those connec-
Des Moines Business Record
tions.”
Forty Under 40 list and the
What do you do to relax? Des Moines Register’s “15
“I love to read. Even in law school, people to watch.”
with all the reading you do, I would But it is not about the
read at night. I read fiction; nothing accolades or recognition for Shutts. She simply wants to keep giving back.
too heavy. It’s a nice way to unwind “I feel very fortunate I have a law degree and could become a lawyer,” she
my day.” said. “I don’t come from a family of lawyers. My parents didn’t go to
college. So, I feel I have been given a gift and I want to use that to the best
of my ability. That’s why I stay so involved.”
8 THE IOWA LAWYER JUNE 2021
Tips for taking
depositions in the
age of Zoom
A practitioner’s guide
By Alexander E. Wonio
A
s the judicial system all but shut down As Sweeney Court Reporting told me at Finally, double check the pricing with your
in-person conferences, hearings and the outset of the pandemic: “If you can open reporting agency. Most of the agencies we
other meetings, litigators were forced to an email, you can do a Zoom deposition.” have been working with are offering all of
scramble to keep cases on track. This meant This holds true to this day. Oftentimes the the remote abilities as part of their pricing.
an immediate, and often clumsy, reliance on agency will have all the software and video Now we must master the Zoom deposition
remote videoconferencing software. At first, equipment you need and will freely let you itself. In connection with this article, I
we all fumbled this process together, but utilize it. Technically, you need to consider presented a webinar CLE. The interactions
soon it became obvious that this was the “new the following: with the lawyers was invaluable. The first
normal,” and lawyers needed to adapt. • WiFi should not be counted on; thing to note is that Zoom (and most other
Since April 2020, we have seen an increase in hardwired internet lines are a must. platforms) offers a “101” course through its
remote depositions of more than 400 percent.
• Decide if you want the deposition website. These introductory webinars are
While maybe trite, the phrase “new normal”
recorded. A major benefit of Zoom essential and allow you to familiarize yourself
is applicable. Even when litigants attempt
to encourage in-person depositions, courts depositions is that they can easily and with the logistics of the remote deposition,
routinely call remote videoconference depo- readily be recorded (practitioner the various features and even some in-the-
sitions as the “new normal.” It is here to stay. reminder: a deposition that is to be moment troubleshooting.
While Zoom is certainly not the only video recorded must be noticed as such In visiting with other lawyers, and learning
software platform we are using, it serves as the under the Rules of Civil Procedure). the hard way, here are the absolute “musts”
appropriate metaphor for how quickly this all • Get your exhibits to the reporter well in for the practitioner:
changed. The deposition had been one of the advance (more on this later). • Learn the mute function. Practice it.
few procedural matters that had not changed
for decades. For the current practitioner, as
undesirable as it may be, the remote deposi-
tion is here to stay. And, under the ABA
Model Rules – those requiring “competent”
representation – it probably mandates a
commitment to learning the software and
honing your approach to these depositions.
In this article, I hope to provide some
direction to the practitioner, with a focus on
the process and specific skills/techniques
that need to be learned and applied.
The first thing (and maybe the only absolute
here) is to connect with a court reporting
agency that is fluent with remote depositions.
These folks have, like us, been forced to adapt
to the changing business model. They may well
handle all the logistics for you.
JUNE 2021 THE IOWA LAWYER 9
Zoom Depositions
• Do not tinker with settings if you are not 4. If anyone else comes in the room, agree and the reporter to identify what they
familiar with them. If your firm has the person will be identified. saw on the record.
resources, have a staff member become 5. Confirm all other programs are closed. 3. If you have had issues with a lawyer
an “expert” on these settings. We have 6. Agree not to look at anything without it taking advantage of the remote
all seen the hilarious video of the lawyer being identified. deposition (i.e. coaching or providing
who presented as a cat. Don’t be the cat. 7. Agree not to consult with anyone/ answers to the witness while others are
• Do NOT use the virtual background. If anything without identification. remote), consider insisting on a global
this means finding an appropriate 8. Agree the witness will answer all view. In this setting you have a laptop or
backdrop, so be it. The virtual back- questions by him/herself. other device that is set far back and can
ground is distracting. 9. Organize a protocol for interactions off capture the entire room, with a second
• Close all of your other background screen in advance and make them a device committed to the witness.
applications while conducting a remote part of introductory stipulations. 4. In preparing witnesses, there are no
deposition. Not only can these applica- more shortcuts. You need to do a mock
tions interfere with the deposition, but Prepare your checklist and go through it run, with the device and everything.
potentially sensitive/privileged diligently. You will be surprised how many Teach your witnesses to “embrace the
information can be broadcast. issues can be addressed/resolved prior to silence” as I call it. It makes them listen
the deposition! to the questions, permits me to lodge an
Once you have established some basics for I am a big fan of an in-person deposition objection if appropriate and provides for
the deposition, the competent practitioner or cross-examination. I have found it meaningful response. You also need to
needs to make some tactical decisions and extremely difficult to replicate the pressure practice teaching your witness/client to
learn to implement effective strategies. The of these intimate conferences. Advice of avoid looking at you before answering.
first question is whether or not the deposition others, trial and (much) error have led me to While this is obviously human nature,
can or should be conducted remotely. Can the following that I think will be beneficial especially if you are the only other
you afford to delay this until it can be for the practitioner: person in the room, the well-intentioned
conducted in-person? You must consider the 1. Learn how to utilize exhibits. I have juror may see this as a negative.
witnesses’ age, health, importance to the case found this is the single biggest change 5. There are only a few viable substitutes
and the ability to secure testimony via remote with the remote deposition. You must be for the pressures we can create
platforms. Once you have decided to conduct prepared. You need to provide your in-person. As the empirical evidence
a remote deposition, you need to prepare exhibits to the court reporter in supports, engaging a “lying” witness’
differently. advance and probably your witness (if fight or flight response (that which we
There are two primary areas of concern it’s your witness). As for opposing want the fact finder to appreciate) is
that the practitioner must account for when counsel, I do not like to provide them much more difficult in the remote
conducting a remote deposition: 1) Create an too far in advance – if at all. As long as deposition. This pressure is what makes
extensive and detailed series of stipulations, my reporter has them, and can post it difficult to hide truth and unmasks
and 2) learn how to effectively utilize exhibits them on command, then I feel less of a deception. The best way to recreate
in the platform. need to produce in advance. But, that pressure is to have a series of
Over the course of time and, including getting them to the reporter, marked quick-answer, but rapid-fire questions.
a great many recommendations I fielded from and in their own sub-folders, requires It is also advisable to tuck in your most
other lawyers, I have become more pre-planning. Do it. revealing questions during a series of
and more of an advocate for a series of 2. If a lawyer is sitting with a witness, and complex questions or at the very
detailed stipulations that are arrived at in the other parties are remote, under- beginning of the deposition when
advance of the deposition and some that stand that there is a natural tendency witnesses are their most vulnerable.
are established at the outset. I find the for the witness to interact with the 6. Be careful about exposing your own
following checklist helpful: lawyer. If something is improper, emotions as the lawyer. If you become
1. Make sure swearing-in protocol is immediately put it on the record. If emotional on camera, it is too easy to
followed. someone else lodges an accusation appear “nutty” when in fact you are
2. Have each person identify himself or against you on the record, explain in trying to convey a point. Intense
herself. detail the circumstances on the record. judicial scenes in blockbuster movies
3. Who else is in the room? It is also a good idea to ask other parties are choreographed for days, and hours
are spent in their execution. Getting
emotional during a remote deposition
can easily make you look unhinged.
Finally, ALWAYS have a back up plan.
Murphy’s Law applies.
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During the Covid-19 pandemic, Jeff and Mark are hosting ZOOM mediation teleconferences to keep all participants safe.Considerations for
the growing role
of the attorney-
investigator in the
post #MeToo world
By Fran Haas and Mary Funk
T
he role of the investigator has taken A natural by-product of a heightened interest complaints or potential concerns with work-
on a higher profile in recent years due in managing employee issues or misconduct is place misconduct, including harassment.
in large part to the #MeToo movement an increase in attorney-led workplace investiga- Although employers understand their legal and
that hit the cultural mainstream, leading tions. An attorney-led investigation was at issue practical obligations to respond to internal
to a cascade of high-profile allegations of in Fenceroy v. Gelita USA, Inc., 908 N.W.2d 235 complaints of misconduct, they may not be
sexual harassment and abuse in nearly all (Iowa 2018). In that case, the Iowa Supreme well-equipped to render findings on the more
industries. The #MeToo movement cast Court discussed the intersection of an serious internal complaints or concerns, which
a spotlight on how employers respond to attorney-led workplace investigation and the is when it might make sense to engage an
reports of sexual harassment and abuse, as Faragher-Ellerth1 affirmative defense, which can attorney investigator.
well as other misconduct in the workplace. apply to claims of harassment perpetrated by For example, if witnesses provide competing
As a result of this and other factors, many supervisors. 908 N.W.2d 235 (Iowa 2018). reports about what happened, an employer
organizations are taking a more engaged Among other observations, the Iowa Supreme must generally make a credibility finding to
approach in managing internal complaints Court wrote that employers frequently rely on determine whether corrective action is
or concerns about employee misconduct. an internal investigation to discharge their required. This can be difficult to do when a
These efforts include enhanced training, “duty to take reasonable measures to investi- party holds a management role, or is a peer to
more reporting options for concerned gate and eliminate workplace discrimination.” someone who may be handling the investiga-
employees and being proactive about Id. 908 N.W.2d at 241. tion. It may also be complicated by a party’s
addressing workplace issues before they Whether conducted by an attorney or not, a inability to devote internal resources to what
evolve into a more complex or potentially prompt, thorough and effective workplace are often time-consuming, lengthy investiga-
intractable set of problems. investigation is a critical tool in responding to tions. Another challenge with internal
investigations arises when an entity must make,
carefully assess and synthesize evidence or legal
Andrew B. Howie
issues – such as whether fraud has been
committed – that may be beyond the skill level
of an organization’s human resources team.
APPELLATE LAWYER And, as a practical matter, workplace investiga-
►Fellow, American Academy of
tions are also effective in identifying latent
Appellate Lawyers issues, such as unrelated acts of misconduct or
►Fellow, American Academy of harassment. Many employees are more likely to
Matrimonial Lawyers share concerns with a neutral third-party
investigator than a co-worker. Learning about
SHINDLER, ANDERSON, these issues can also serve as a way to under-
GOPLERUD & WEESE, P.C. stand and manage personality conflicts and
515-223-4567 improve employee morale.
howie@sagwlaw.com
Many of us have dealt with workplace
www.sagwlaw.com
Accepting Referrals investigations in our practice. Perhaps we
have been asked to conduct the workplace
investigation as counsel for an organization,
12 THE IOWA LAWYER JUNE 2021Attorney-Investigators
or advise clients on when, who and how to 2. Are there any drawbacks to conducting the omitted). When interviewing witnesses or
conduct an investigation, or recommend providing findings to a client, it’s critical that
what to do with the results of the investiga-
investigation for my own client? any investigator’s work rise above challenges to
Yes. As the Iowa Supreme Court observed in
tion. Many of us also litigate issues that arise honesty and truthfulness. An attorney’s ethical
Fenceroy, if litigation ensues, and your client
from workplace investigations. No matter obligation to be truthful and careful in dealing
relied on the outcome of a privileged investiga-
your level of involvement with workplace with others in an investigation furthers that
tion when responding to an issue subject to
investigations, here are a few considerations important goal.
litigation, a waiver of privilege may be neces-
to bear in mind when you encounter the Separately, attorneys are trained to use their
sary. 908 N.W.2d at 242-43. Even if your client is
need for a workplace investigation: judgment, analyze difficult and complex issues,
resistant to the idea, waiver may occur if the
identify potential new issues for consideration
client intends to rely on the investigation and
1. How do I know when my client needs an external the investigation is relevant to an issue in the
and assess witness credibility. These tools are
attorney-investigator? essential in every investigation. Attorneys use
case. Id. at 246.
There is no hard and fast rule that governs these skills regularly and are comfortable
If there is a possibility that privilege could be
when it’s appropriate to retain an attorney-in- drawing judgments and assessing the evidence.
waived, that means the outcome and findings
vestigator. One key factor that tends to justify Additionally, judges and juries may assign more
may be revealed in discovery. It also means that
the retention of an attorney-investigator is the credibility to an attorney-conducted investiga-
the attorney who conducts the investigation
seriousness of the allegations and who is tion, than one led by an internal human
may become a witness in any related litigation.
implicated. Are you concerned a crime has resources professional who may be presumed
See id. at 908 N.W.2d at 242. If your client wishes
been committed? Is there a potential violation to have an internal company-leaning bias.
to have its regular attorney defend any ensuing
of the organization’s anti-discrimination or litigation, or provide advice about what to do
anti-harassment policy that could lead to with the results of an investigation, it makes 4. Should I be concerned about an external attorney-
litigation? Are managers or supervisors sense to retain an external attorney-investiga- investigator poaching my client?
potentially culpable of misconduct? Is an tor to conduct the investigation and permit an A high-quality investigator should know
officer-level employee involved? Has human entity’s regular counsel to provide advice about better than to try and use an investigation as an
resources, who may otherwise conduct the what to do with the results of an investigation. opportunity to “steal” a client. That type of
investigation, been implicated? Is the conduct will destroy the integrity of the
allegation of misconduct mission-critical? Are 3. Is there a benefit to retaining an attorney to conduct investigation, and gives the impression that the
you short on internal resources to devote to a
prompt, thorough investigation? If so,
a workplace investigation rather than a non-attorney? attorney-investigator may have reached a
conclusion favorable to a company in an effort
Usually, yes. While many non-attorney
retaining an attorney who is well-versed in to develop more work or an enhanced role with
investigators, such as prior law enforcement
employment law and has experience conduct- a particular organization. External attorney-in-
investigators or human resources professionals,
ing difficult or sensitive witness interviews vestigators may be required to be deposed or
provide competent services, attorneys are
makes sense. testify at trial if the company elects to waive
uniquely positioned to provide services that are
Another factor is whether the organiza- privilege. See Fenceroy, 908 N.W. 2d at 242. If
subject to additional safeguards due to ethical
tion has an interest in maintaining the that occurs, all the communications, including
obligations required by the Rules of Profession-
findings of the investigation confidential an attorney-investigator’s effort to develop
al Conduct. For example, it’s critical to retain
pursuant to the attorney-client privilege. more work or market additional legal services,
an investigator who will be free from improper
Assuming the attorney-investigator provides will be exposed and cheapen the quality of the
bias when reaching a decision. Unlike many
the findings of a privileged investigation to a investigation and the perception of integrity.
other professions, Iowa attorneys are ethically
client in a confidential manner, the investiga- Whether hiring an external attorney-investi-
obligated to refrain from engaging in “miscon-
tor’s findings and report are protected by the gator or using in house counsel, the careful
duct,” including “conduct that is prejudicial to
attorney-client privilege. Fenceroy, 908 N.W.2d planning and conducting of a thorough and
the administration of justice.” Iowa R. Prof’l
at 242-43. However, as discussed below, the timely investigation on the front end, can ease
Conduct 32:8.4(d). The comment to Rule
organization may later need or want to waive clients’ burdens on the back end, in terms of
32:8.4(d) explains that “misconduct” includes
privilege to defend itself in administrative expense, time and liability.
“[a] lawyer who, in the course of representing a
proceedings or litigation.
client, knowingly manifests, by words or 1
The Faragher-Ellerth defense requires employers to show: (1)
A third factor is the message that an reasonable care was exercised to prevent and promptly correct any
conduct, bias or prejudice based upon race, harassing behavior; and (2) a claimant employee unreasonable failed
organization sends to its employees about to take advantage of any preventive or corrective opportunities by
sex, religion, national origin, disability, age, the employer. Fenceroy, 908 N.W.2d 235, 241-242 (citing Faragher v.
how seriously it’s taking the allegations. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v.
sexual orientation or economic status[.]” In Ellerth, 524 U.S. 742 (1998) (internal quotation marks omitted).
Retaining an external attorney-investiga-
other words, Iowa attorneys are ethically
tor demonstrates that an organization is
compelled to deliver legal services, such as an
committed to finding out what happened,
internal investigation, without improper bias.
and wants a neutral fact-finder to make
Another unique procedural safeguard for an
that determination.
attorney investigator is the requirement that
Because the decision about whether to
attorneys “be truthful with dealing with others
treat the investigation and its results as
on a client’s behalf.” Iowa Rule Prof’l Conduct
privileged often cannot be made until a
32:4.1. Attorneys are prohibited from engaging
later date, it is advisable to take steps from
“in conduct involving dishonesty, fraud, deceit,
the outset to protect the investigation. The
or misrepresentation,” which includes making
privilege can be waived at a later time if it is
false statements or incorrect statements “in
determined necessary to defend the client’s Mary Funk and Frances Haas are labor
reckless disregard for whether the statement
actions in litigation. But the privilege and employment attorneys at Nyemaster
was true or not.” Iowa Supreme Court Disciplinary Goode in Des Moines and Cedar Rapids,
cannot be retroactively applied if the results
Bd. v. Barnhill, 847 N.W.2d 466, 474 (Iowa 2014) respectively, where they lead the firm’s
are not what the client assumed would be
(citation and internal quotation marks workplace investigations practice.
the outcome.
JUNE 2021 THE IOWA LAWYER 13for Lawyers
By J. Mason Bump
A t the outset, blockchain technology
may seem confusing or downright
unnerving to lawyers, even those
who are masters at learning and applying
but I will do my best in the following
paragraphs to explain it in plain English.
any identifying information, with users
effectively acting under pseudonyms.1
The data of participants can only be
updated by consensus of the partici-
new information to their practices, but
THE BASKET OF TECH pants, which will be explained in the
The first piece that makes this work is
I’m here to explain that this technology the “public ledger” that shows the “state” example below. The decentralized
won’t fundamentally change many of the of the network at any given time, includ- method by which participants interact,
concepts we’re used to in the legal ing what the network looked like in the combined with the extreme difficulty in
profession. This technology will only past through records of transactions adding new information to the network
apply them in more effective ways and called “blocks.” In the blockchain world, and the “cryptographically secure”
will also result in more efficient out- think of the network “state” as the status manner that makes it resistant to
comes for all participants. of all accounts (or “wallets”) and the tampering, results in a reliable network
When we refer to “blockchain,” network itself, and think of “blocks” as system that does not require trust
“crypto,” or any other application of this new pages in a public checkbook of between any of the participants to
technology, what we are actually refer- transactions between participants that function as intended.
ring to is a basket of technology com- can be accessed and viewed at any time.
bined in a secure system with verifiable, Each new block is basically a memorial of PAPER BLOCKCHAIN EXAMPLE
reliable outcomes for all participants. the state of the network at a certain Interestingly, a blockchain system can
These systems have been deemed point in time, and is “append-only,” be built with pen and paper as long as all
“trustless” because they can operate which means that new data can only be participants are known and have equal
without a middleman that verifies the added in sequential order. voting power. Let’s say that you and your
negotiating position or credit of each By making this information public, the friends are stuck on a desert island, and
party, and because they provide instant integrity of participation, transactions you need to figure out a way to exchange
verification of network integrity. The way and the network itself is assured because value for resources without going to the
this is accomplished is a basket of tech anyone can verify the information of any highly inefficient barter system (in fact,
concepts that includes a digital “public transaction between accounts at will. “money” was the original “app” created
ledger” allowing the public to verify the However, in the case of networks like to solve the inefficiencies of this system).
integrity of the system as a whole and Bitcoin, this information merely shows You and your friends each get 100
“triple-entry accounting” that requires the movement of digital assets between “I-Coins” for agreeing to be part of the
all participants to rectify their own digital addresses, so in most cases those island’s monetary system. Each day, the
ledgers with the public ledger. If that all digital “wallets” can be created without ledger gets updated with I-Coin transac-
sounds like a mouthful, you’re not alone, tions, and the participants agree to their
new account balances by signing at the
bottom to reach consensus. Let me be
clear, I-Coins are not the same as
“membership units,” because each
person has the same power to vote on a
new batch of transactions regardless of
how many I-Coins they have.
For example, let’s say John wants to
send you 10 I-Coins in exchange for a
bag of tomatoes. Before agreeing, you
can check the ledger and verify that
John has 10 I-Coins and that John isn’t
trying to send both you and Tom the
same 10 I-Coins for two different
transactions. This is what’s known as
the “double-spend problem,” and is
what Bitcoin solved with its distributed
public ledger system.
14 THE IOWA LAWYER JUNE 2021Blockchain for Lawyers
You may be wondering now, what’s This is essentially the concept of city and are preparing for battle.
stopping John from fudging the “triple-entry accounting,” which solves Various generals can only communicate
numbers in the checkbook to make it what is known as the “trust problem” in with each other via a messenger. They
seem like he has more money in his double-entry accounting, in which one must agree upon a common course of
account? When dealing in the I-Coin party needed a third-party to guarantee action. However, we must assume that
example, it is relatively easy to verify or ensure the representations of the some generals are traitors who wish to
John’s account because all participants other party in case they were lying. prevent loyal generals from agreeing
are known to each other and transac- Under a decentralized blockchain upon a common course of action. An
tions are verified by them equally at system, parties are required to coordi- algorithm is needed to ensure that a
regular intervals. nate their own ledgers with the public small group of traitors can’t disrupt
In the context of a digital network of ledger in order to participate and communications. To solve the Byzantine
participants who don’t know each other, engage with other parties on the Generals problem, loyal generals need a
this concept gets a bit more complicated. network. Since the public ledger is secure way to come to agreement on a
Think of the digital checkbook example constantly updated and verified by a plan (known as consensus) and carry
as having automatically-updated, decentralized network of independent out their chosen plan (known as
cross-referenced page numbers, and third parties, if any part of the network coordination).2
each page has a unique identifier that is hacked or fails for any reason, the rest
has been verified by the account holders, of the network will continue to operate Although there are quite a few
and that these records are nearly in a decentralized manner, as intended. proposed solutions to this problem, the
impossible to change once entered. Bitcoin whitepaper published by
These pages of the checkbook are the THE BYZANTINE GENERALS PROBLEM Satoshi Nakamoto is the most success-
blocks of transactions and are secured This technology solves what NASA ful. This concept resulted in the first
by cross-referencing the identification called “The Byzantine Generals successful decentralized blockchain
data from previous blocks, all of which Problem,” which asks how decentralized network, with a limited supply cap of 21
have been verified by “signatures” and groups can come to a consensus about million coins incorporated directly into
adopted in the participants’ own the best way to carry out a plan, given its source code.3 The Bitcoin network
ledgers. In this way, if one wanted to the presence of bad actors or communi- achieves what is known as “Effective
change data in any given block, they cation failures. The analogy is essential- Byzantine Fault Tolerance” by enabling
would not only have to alter the ly as follows: asynchronous communication between
information and security data in that Several divisions of the Byzantine army nodes to replicate the state of the
block, but also in all subsequent blocks are stationed just outside of an enemy network, assymetric encryption,
that refer to it. peer-to-peer networking and Proof of
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