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Table of Contents

           GENERAL INQUIRIES or 515.243.3179

              EDITORIAL TEAM
Editor-in-Chief        Copy Editor
Melissa Higgins        Steve Boeckman
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.

Send address changes to The Iowa Lawyer Mag-
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Iowa, 10776 Aurora Avenue, Des Moines, IA, 50322.                                                                                    Volume 81
Telephone 515.270.0402. Design and Production:
Mittera Iowa.                                                                                                                        Number 5
                                                                                                                                     June 2021
CLASSIFIED. Qualifying ISBA members receive
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ber benefit. Members should contact the ISBA
Communications Department for ad placement: For Career Center
                                                        IN BRIEF
postings, visit              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,
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display advertising and non-member classified
ad rates, contact Alex Larson at 515.238.4406 or
                                                         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 in Microsoft Word format.
                                                        20 Recognition of the ISBA’s 50-Year
                                                                                                        29 Disciplinary 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

                                                           Jerry Schnurr III       Ft. Dodge        515-576-3977
     YOUR ISBA DUES                                        Anjela Shutts
                                                           VICE PRESIDENT
                                                                                   Des Moines       515-288-6041

     The ISBA dues renewal season is underway with         Henry Hamilton III      W. Des Moines    414-403-9082
     mailings going out in May to existing members.        SECRETARY
                                                           Dwight Dinkla           Des Moines       515-697-7867
     You may also renew online at any time by visiting     IMMEDIATE PAST PRESIDENT, and clicking the “Sign In” link at the   Willard "Bill" Boyd III Des Moines       515-283-3172
     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
     prompt on your Manage Profile page.                   Daniel Fretheim         Decorah          563-382-2959
                                                           DISTRICT 1B
     In addition to standard dues, please consider         Shannon Simms           Waterloo         319-291-6161
     becoming a Sustaining or Cornerstone member           Heather Prendergast     Waterloo         319-234-4600
     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
                                                           Megan Rosenberg         Hampton          641-456-2555
     tion programs statewide (more information at          DISTRICT 2B             John Werden             Carroll          717-792-3424
                                                           Bethany Currie          Marshalltown     641-421-0990
     You may contact the ISBA with any questions about     DISTRICT 3A
     your membership at            Jack Bjornstad          Spirit Lake      712-322-5225
                                                           Kevin R. Sander         Estherville      712-362-7215
                                                           DISTRICT 3B
                                                           Maura Sailer              Denison           712-263-4627
                                                           James Daane               Sioux City        712-252-2424
                                                           DISTRICT 4
                                                           DeShawne Bird Sell        Glenwood          712-527-4026
                                                           Deborah Petersen          Council Bluffs    712-328-8808
                                                           DISTRICT 5A
                                                           Gilbert Caldwell III      Newton            641-792-4160
                                                           Miki McGovern             Woodward          515-490-9081
                                                           DISTRICT 5B
                                                           Andrew Zimmerman          Corning           641-322-4712
                                                           DISTRICT 5C
                                                           David Nelmark             Des Moines        515-988-0447
                                                           Joseph Happe              Des Moines        515-288-2500
                                                           Margaret A. Hanson        Des Moines        515-246-7957
                                                           Bridget R. Penick         Des Moines        515-242-8902
                                                           Adam D. Zenor             Des Moines        515-650-9010
                                                           Donna Miller              Des Moines        515-809-9699
                                                           Kathleen Law              Des Moines        515-283-3116
                                                           Cindy Rybolt              Mitchellville     515-243-1193
                                                           Joe Moser                 Des Moines        515-288-0145
                                                           Stacey Warren             Altoona           515-414-8918
                                                           William Miller            Des Moines        515-283-1000
                                                           DISTRICT 6
                                                           Erin R. Nathan            Cedar Rapids      319-896-4013
                                                           Melvin Shaw               Coralville        319-337-7429
                                                           Caitlin Slessor           Cedar Rapids      319-365-9461
     MASKS NO LONGER                                       Kristofer Lyons
                                                           Chad Brakhahn
                                                                                     Cedar Rapids

     REQUIRED IN COURT FOR                                 DISTRICT 7
                                                           David J. Helscher         Clinton           563-243-1243

     VACCINATED PEOPLE                                     Christopher Surls
                                                           Ian J. Russell
                                                           DISTRICT 8A
     On Friday, May 14, Iowa Supreme Court Chief           Rick Lynch                Bloomfield        641-664-1997
     Justice Susan Christensen signed an order             Mike Mahaffey             Montezuma         641-623-5425
     revising the face-covering requirement in court-      DISTRICT 8B
                                                           Tim Liechty               Mount Pleasant 319-367-2251
     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
     coverings, and thus the face mask or face shield      ABA Delegates
                                                           Alan Olson                Des Moines        515-271-9100
     requirements in paragraphs 4 and 5 of the             David L. Brown            Des Moines        515-244-2141
     supreme court’s amended Nov. 24, 2020 order           Jane Lorentzen            Des Moines        515-244-0111
     do not apply to fully-vaccinated people.              Kay Oskvig                Des Moines        515-288-6041
                                                           LEGISLATIVE COUNSEL TEAM
     The order states that judges shall inform             James Carney              Des Moines        515-282-6803
     attendees at the start of court proceedings           Doug Struyk               Des Moines        515-282-6803
                                                           Jenny Dorman              Des Moines        515-282-6803
     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
     attendees to provide for their own compliance.        President-elect Kristen Shaffer Coralville     319-365-9461
                                                           Secretary Kyle Fry               Muscatine     563-564-4982
                                                           Immediate Past President
                                                           Abhay Nadipuram                  Des Moines    319-290-2585

     4     THE IOWA LAWYER JUNE 2021
Through thick and thin, ISBA
helps lawyers serve clients,
communities, courts

   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
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-             
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

                                                                                                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

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
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
                                                                                              (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,
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
   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.                                                             
   “I went to law school because I
wanted to work for the county attor-
                                                                                               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
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
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
                                                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.”
Tips for taking
depositions in the
age of Zoom
A practitioner’s guide
By Alexander E. Wonio

     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.
              For workers’ compensation, civil litigation, and family law cases                                               Alexander E. Wonio is
                                                                                                                              a partner at the firm
                                                                                                                              Hansen, McClintock &
                                                                                                                              Riley in Des Moines. His
                                                                                                                              experience includes gen-
                                                                                                                              eral liability, professional
                                                                                                                              negligence and commer-
                                                                                                                              cial torts. Wonio has also
                                                                                                                              successfully argued sev-
                                                                                                            eral appeals in the state appellate courts.
              Virtual mediations available via telephone and video conference                               He is a Fellow of the Iowa Academy of
                                  Call to Schedule: (515) 244-0111                                          Trial Lawyers and the Iowa Chapter of the
                                                                                                            American Board of Trial Advocates.

    10   THE IOWA LAWYER JUNE 2021
Jeff Boehlert and Mark Brownlee, each with 40+ years of varied litigation
 experience earning “AV Preeminent” ratings from their peers, now confine their
  practice to MEDIATION & ARBITRATION services in all areas of civil litigation.
    Jeff and Mark are experienced neutrals with high success rates assisting
   fellow attorneys and parties with FINDING SOLUTIONS to disputes through
           effective and efficient use of the confidential ADR process.

                        Jeff Boehlert                          Mark Brownlee
                        (515) 240-6914                          (515) 571-1931

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

      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.
                                                                                                         Many of us have dealt with workplace
                                                        Accepting Referrals                           investigations in our practice. Perhaps we
                                                                                                      have been asked to conduct the workplace
                                                                                                      investigation as counsel for an organization,


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         13
for 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.

Blockchain 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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